Dáil Éireann debate -
Friday, 17 Jul 1953

Vol. 140 No. 10

Health Bill, 1952—Committee (Resumed).

Debate resumed on amendment No. 80.

Mr. O'Donnell

When progress was reported last night, I was dealing with this amendment which proposes to insert a new section before Section 63. As the Bill stands at the moment, my interpretation of this section is that the county manager is to be the sole arbiter as to those who may derive benefit under the Bill. I do not wish to make any allegations against the county managers, but we should clearly understand the practice whereby they arrive at their decisions. It is customary for the county managers to inquire into the means of applicants to see if they are eligible for benefits of various kinds. The method adopted in rural Ireland—I do not know what the practice is in the cities-is for the home assistance officer to investigate the means of applicants. He has various devices of his own for carrying out his investigation. He interviews the applicant; he interviews the applicant's neighbour and, sometimes possibly, the applicant's enemies. As a result of the information which he obtains he makes his report to the county manager. On that report, the county manager decides whether or not an applicant is entitled to the benefits which he is claiming. The applicanthas no redress from the decision of the county manager, and in practice he has no redress from the report submitted to the county manager by the home assistance officer.

The amendments which have been moved to this section are an endeavour to remedy that position. Deputy Larkin's amendment, so far as I can interpret it, seeks to give the applicant the right of appeal to the Minister. Let us examine that position. Suppose for a moment that the Deputy's amendment was accepted, what method will be open to the Minister to re-investigate the means of the applicant and what method will be open to him to reverse the decision of the county manager? The most he can do is to get the file from the county manager whose decision was eventually based on the original report he had received from the home assistance officer, unless he sends down another officer to re-investigate the means of the applicant. He may do that but that will merely create more civil servants and it would be a tragedy that the Minister should send down from his office in Dublin an inspector to report on the veracity or otherwise of a report of a home assistance officer in Mayo, Donegal or Kerry. That is the principal argument against the amendment of Deputy Larkin.

Deputy MacBride's amendment should be most acceptable to the House. Deputy MacBride suggests that when an applicant is displeased with the decision of the county manager based on the investigation of the applicant's means by the relieving officer, the applicant should have the right of appeal to a district justice. District justices sit in the area in which applicants reside. They generally know the district. They have a method of hearing evidence for the applicant and for or against the county manager viva voce.They have a method of hearing it on oath. If the relieving officer in the course of his investigations has discovered or has been told by a neighbour that an applicant has a deposit receipt somewhere or other he will have to come in and prove it on oath and the applicant has a similar opportunity of appearing on oath before the districtjustice and disclosing his means and the justice can then arrive at his decision.

Deputy Peadar Cowan gave reasons for two serious objections to that. One is that you are putting the applicant to the expense of employing either a solicitor or counsel. Deputy MacBride met that by saying that you can specifically prohibit solicitors or counsel from accepting a fee for an appearance for an applicant in such a case.

Under the Unemployment Assistance Act an applicant may appear before a court of referees. He may bring an advocate with him to further his case but he is strictly prohibited from bringing either a solicitor or counsel to represent him. It might be possible to prohibit a solicitor or counsel from appearing before the district justice in these cases.

Captain Cowan

There would be a bit of sense in that. There is no sense in the other.

Mr. O'Donnell

I quite agree that it might be possible, if the amendment is generally accepted, for Deputy MacBride to amend his amendment.

Captain Cowan

And amend his thoughts.

Mr. O'Donnell

I agree. Deputy Cowan offered the objection that applicants might not wish to have their means investigated in public in the District Court.

Mr. L.J. Walsh

That is not always done. It is not always investigated in public. You can have it heard in private. That is done already.

Mr. O'Donnell

That is the answer I am going to give him now.

Mr. L.J. Walsh

It is already done.

Mr. O'Donnell

Where is it done already?

Captain Cowan

It is a misunderstanding.

Mr. MacBride

The Deputy is talking about something else.

Mr. O'Donnell

Deputy Cowan's objection is that an applicant may object to being brought into open court to disclose his means. There is a method whereby we may close the court. We already do it under the Affiliation Orders Act. Under the Affiliation Orders Act only certain people are permitted to attend the hearing of these applications. The Press is specifically excluded. It could be possible for us, in dealing with this amendment, to insist that the appeal be heard in camera,that only the applicant and essential witnesses for the county manager and for the applicant be present.

Captain Cowan

Public funds are involved. You could not do that.

Mr. O'Donnell

As it stands, we are dealing with public funds on the report of an assistance officer, and cannot we deal with public funds on the impartial report of a district justice? I cannot see why that objection should be seriously considered.

I do not wish to support this amendment merely for the purpose of talking. I think there is a lot in it. I have practical experience of the dissatisfaction of applicants for hospital treatment at the investigation of their means by relieving officers and I have to tell them: "You have no redress. The relieving officer has the right to make that report to the county manager, be it correct or otherwise, and the county manager will act on it." In many cases I have been requested to disclose professional secrets as to the means of applicants and, very often, in doing so we are treated as advocates of the applicant instead of being treated according to the manner in which we try to give this information. Here we go into open court. If a solicitor were summoned by an applicant he could disclose the amount of a legacy the applicant received. He could disclose his interest or share in his intestate father's estate, or such a thing as that.

There is a considerable amount to be said for this right of appeal. It may sound bad coming from the lawyers in the House but we are endeavouring to exclude advocating advantages to our profession by positively excluding thecharging of fes. I would strongly recommend the amendment to the House.

Parliamentary Secretary to the Minister for Social Welfare (Mr. Kennedy)

I would point out to the Deputy that the court of referees is presided over by an appeals officer of the Department in the case of an appeal in unemployment benefit and unemployment assistance cases.

Mr. MacBride

There is no appeal court here.

Mr. O'Donnell

There is no appeal court here. We are trying to put it on the same level.

Mr. Kennedy

You are advocating against an appeals officer in favour of a district justice, if there is an appeal.

Mr. MacBride

There is no appeal at the moment.

Mr. O'Donnell

There is no appeal at the moment.

Mr. Kennedy

I know that.

Captain Cowan

I have listened with great interest to the suggestion of Deputy MacBride that there ought to be an appeal by an aggrieved person to the district court. I was more than interested in Deputy MacBride's reaction to some of the practical questions that were put to him. Under the law as it stands at the moment, there is an appeal to the Circuit Court from every order of a district justice and, obviously, if a district justice hears and determines a matter of this kind, under the law, there is a right of appeal to the circuit judge. There could be a case of excessive jurisdiction or want of jurisdiction. The matter could possibly find its way up to the Supreme Court. There is no doubt whatsoever about that.

When Deputy MacBride is asked what about the appeal to the Circuit Court he airily says: "We will wipe that out." We are to cancel all our fundamental conceptions of justice so that Deputy MacBride will be able to put his argument over. Things would be very easy if, when there is an obstacle in the way we say: "We can get over that.Let us pass a law to say there is no right of appeal" even though it may do away with the fundamental right of any person who is aggrieved to go to the Circuit Court if he is not satisfied with the decision of the district justice.

Once you reach that stage, the local authority has as much right as the applicant to appeal. The local authority has the money to instruct solicitor and counsel to go in and defeat the applicant. If they are defeated in the District Court, they will proceed to spend hundreds of pounds of the ratepayers' money to bring the matter to the Circuit Court and, if necessary, they will go to the High Court and the Supreme Court. That is the first position we run into with regard to leaving this matter to the district justice.

Deputy MacBride was asked last night what it would cost an applicant to go before the district justice on appeal and he airily said: "We will pass a new law that the solicitor or counsel who appears for him will not charge any fees." Deputy MacBride may live in the moon but nobody else lives in the moon. He belongs to a profession which, if any such law was attempted to be enacted here, would be up in arms against us for suggesting that a counsel should go into court and act for anybody without being paid. There are a few solicitors who appear for people in charitable cases without charge, but they are very few.

I had the idea long ago that the legal profession was out to see justice done at all costs. I have been disillusioned. Like the medical profession or any other profession, when a job comes it is looked at from the point of view of what it will bring in. I do not think there is anything unreasonable in that. When a counsel looks at a brief the first thing that strikes him is: "What will I get out of it?" To suggest that a profession which has grown up in that way will allow this House to pass a law saying that they will not be allowed to charge any fee for appearing before a district justice is ludicrous nonsense.

It has also been suggested to Deputy MacBride that perhaps awoman who is looking for a maternity grant would not like to go to the District Court and have her circumstances published in the local papers. Deputy MacBride says: "We will get over that. We will have the cases heard in camera.One of the most contentious matters which come up before a democratic Parliament is this question as to whether court proceedings should be in the open orin camera.Under our Constitution, the law must be administered in open court. There are certain exceptions permitted on grounds of public morality, such as affiliation cases, to which Deputy O'Donnell referred, and cases of serious offences against girls. But they are limited in scope. It is in the public interest that these things should not be published in the Press. Outside that, the Constitution says that justice must be administered in open court so that the public will know what is happening in the courts.

If anyone attempted to bring in a motion here that a matter of this kind should be dealt with behind closed doors by a district justice, the great majority of the Dáil and of the thinking people outside would object to it. Three serious objections have been put forward and Deputy MacBride said that we can pass a law to do away with them. Deputy MacBride, if he wishes, may live so far apart from the realities of life as to be in an entirely different sphere, but Deputies have to keep their feet solidly on the ground. Deputy O'Donnell knows that the profession to which he and I belong would call a special meeting of protest if there was to be any interference with the right to earn fees. He says: "Prohibit them from appearing before the District Courts." What does that mean? Like our higher courts, the District Courts observe formalities. The district justice sits on the bench and lawyers are employed mainly because litigants are afraid to appear before the court without one. I can imagine an unfortunate man without a collar and tie going before some of our district justices. I can imagine a man going before a district justice and speaking to him as man to man.

Mr. O'Donnell

You have no experience of the district justices in rural Ireland or you would not say that.

Captain Cowan

I am saying that there are formalities in connection with District Courts that make it very difficult for the ordinary litigant to present even the smallest case.

Mr. O'Donnell

It is happening every day.

Captain Cowan

It is all right when a man is brought up for not having a light on his bicycle and says he forgot his lamp and is fined one shilling. But, let a man go into the court to assert a right and say: "My wife is entitled to be paid a maternity allowance but the allowance has been refused. I shall establish to your satisfaction that she should get it and that the local authority were wrong in not granting it." Can anyone imagine an ordinary individual doing that? Against whom is he doing it? Against the law agent of the local authority who will cross-examine him upside-down.

Supposing a man is not represented. Is it suggested that the district justice will give up his judicial position and become an advocate for that man? He cannot do it. He has to hear the evidence on both sides, and in that type of loaded court there is only one side, the side of the law agent of the local authority with his methods and his power to cross-examine the individual. Of course, Deputy MacBride says: "We will change the whole idea of the courts." Of course, we could do that. We could change the whole idea of the courts so that the district justice will come into court in his shooting-jacket and a cigarette in his mouth and say: "Now, Paddy, what is your case?" Deputy MacBride's idea is that we can pass a law to do that.

General Mulcahy

Most of them have pawned their shooting-jackets.

Captain Cowan

Or his gardening-jacket.

Mr. O'Donnell

Or his vest.

Captain Cowan

Deputy O'Donnell does not live in the moon; he has hisfeet on the ground. He realises that an applicant pleading that type of case against a trained lawyer representing a local authority is in a very poor position. You cannot get down to a round-the-table position. You can, of course, make it easy for the applicant by providing a bottle of "Gold Label" whiskey and some soda. The whole thing is so ridiculous. But let us see what are we going to invent this complicated machinery for. A person wants to establish he is receiving less than £600 a year, or he is establishing that his poor law valuation is less than £50 a year. These are two of the major things he would be establishing. Deputy O'Donnell, who knows all about relieving officers going out and investigating this, that or the other, knows that this is an entirely different form of investigation to that needed for home assistance where it means the difference between £3 and £3 3s. a week. But where you get down to £600 a year income, I do not see that in Deputy O'Donnell's part of County Donegal you would get thousands of that kind receiving more than £600 a year or with a poor law valuation exceeding £50.

Mr. O'Donnell

You are quite right.

Captain Cowan

So that the number of people appealing in regard to this will be small and, please God, they will become fewer from year to year as we wipe out all means tests and get down to health services in which there will be no means test and no investigation. That is what the Minister in his 1947 Act tried to bring in. He is meeting practical difficulties in regard to bringing in that, but in time it will come and we will have the medical services without the means test.

An Ceann Comhairle

Now keep to the appeal.

Captain Cowan

All I want to say, a Cheann Comhairle, is this. We all can live up in the moon if we want to, but we would not get the business of the country done above in the moon, and what we have got to do is to pass practical legislation that will be practicaland effective. The Minister said he does not want to deal with appeals that might come before him. Deputy Larkin as always has his feet firmly planted on the ground and does not go off in a balloon. He says that he accepts the Minister's view in regard to that and will limit his amendment to this particular thing-to the right to a service—and asks the Minister to deal with those appeals or appoint an appeals officer to deal with them. If the Minister thinks he cannot do it himself, let him appoint an appeals officer for the time being. There may be a number of appeals for a short period but after that the necessity for the appeals will disappear. I think that if the Minister would agree to examine the section on the basis of the suggestion put forward by Deputy Larkin he would possibly find it possible to agree to the inclusion of appeals officers who will hear the representations of the man, who will not be frightened by the cross-examination of local authority lawyers and will not be frightened by the formalities of the courts and will have a chance of bringing his case fairly and on fairly reasonable grounds.

Dr. Ryan

It appears that we could divide the question on which an appeal may be expected into two categories-No. 1, a means test. Now a means test is so clearly set down in this Bill that I do not think there can be very much dispute about it. There are three means tests in it. No. 1 is the person who is insured and his family entitled to certain treatment free. There can be no dispute about that. I do not see how any dispute could possibly arise on the issue whether a man is insured or not. No. 2 is the farmer of £50 valuation or less.

I do not see any dispute arising on that. No. 3 is an income over £600 and there may be a dispute on that. There cannot be a dispute, I think, if the person discloses and makes available all the information he is asked to make available. I am quite sure if he is an aggrieved party and goes to the District Court or the High Court, as the case may be, he will have to disclose there all the information thatthe local authority is looking for. All that is in regard to the means tests. I do not see that there will be any great run for appeals. It will not happen very often and if it does it should not come to the Minister because it is quite right what Deputy O'Donnell said. The county manager usually gets his information from the home assistance officer, who is his field man and if an appeal comes to the Minister, all it means is that the Minister would write to the local authority and would get in all probability the same report as the county manager got and if the Minister is in any doubt he may send down a person to investigate. That is a matter that would be very expensive and very slow and on the whole unsatisfactory as far as an appeal like that is concerned. So that means, I say, that it should not come to the Minister but I understand the person has the right to appeal to the courts. Deputy MacBride's answer to that is that the High Court is too far away and too expensive; to go to the District Court. If Deputy MacBride wants to do that I do not think that it is on this Bill he should do it. The Courts of Justice Bill will be here next week and why not do it then? I do not know what are the considerations about whether it fits in exactly with the usual powers of the District Court. I know that this Bill is coming before the Dáil—as a member of the Cabinet I had to read it—and I know that torts are gone up and contracts are gone up and I do not know whether actions will go up or down as the case may be. I am not in a position to make the case. There is only one person and that is the Minister for Justice who could argue that. I think Deputy MacBride should bring his case there if he wants to get it brought down from the High Court.

Mr. O'Donnell

Under the Fishery Acts, for instance, an applicant for a salmon dealer's licence may apply to a district justice for a certificate of fitness.

Dr. Ryan

I do not know, but if I were the Minister for Fisheries I think I would take a chance on that knowing that there was not going to be anenormous amount of work on the District Courts. I do not know here whether it would mean a large number or whether it would be in line with the work which the district justice is doing. I do not know whether if we were to agree to it, there might not be 20 or 30 other similar functions cited straight away and it might be said they should all go to the district justice. I think it should be raised on the Courts of Justice Bill.

Deputy Larkin agreed that the Minister could not conscientiously consider all these appeals but he said that what he had in mind and presumably what the Labour Party has in mind was not the means test or any of these things but that the person would get the treatment he was entitled to. As far as that is concerned, I think the Minister should do it because it is part of administration. As a matter of fact we are doing it. Any time I get a complaint from any individual it is always investigated. We do not get too many; we get a fair number, but we must investigate these complaints. I think it would be part of the Minister's business in administering his Department to do that. He would have to send a man out-an inspector-to investigate the complaint and if there was a genuine negligence or neglect on the part of either the local authority or the medical man or the nurse as the case might be, well, it is dealt with. If it is the local authority is concerned, it is just ordered to give treatment. It has no right to refuse it, no right even to delay it. If the complaint is against a nurse or a medical man, as Deputies are aware, they are dealt with by reprimand, suspension or dismissal. It is quite definite that we have the power to do that.

If Deputy Larkin and the Labour Party are anxious to know under what Act we are given that power, I could not state that at the moment, but I know the power is there and I shall, on Report Stage, say what the authority is. I intend further to do this. If the authority is not explicit or too clear, I shall certainly bring in an amendment putting a duty on the Minister, if you like, to investigate any complaint of neglect or negligencein treatment, putting a duty on him to see that the complaint is investigated and that the local authority or the officer concerned will be compelled to do his duty. If that is an interpretation of what the Labour Party desire, I have no hesitation at all in accepting it, but I would ask them to withdraw the amendment and give me an opportunity on the Report Stage of pointing out that these powers are there explicitly or, if they are not there, to give me an opportunity of bringing in an amendment to make these powers explicit. I do not think we could accept Deputy MacBride's amendment at all and I would ask the Deputy to withdraw the amendment and have the point raised on the Courts of Justice Bill.

Mr. Kyne

Needless to say, I am very pleased to hear the Minister make the statement he has just made in connection with our amendment. As explained by Deputy Larkin last evening, in the course of his second statement on the amendment, it was the Labour Party's intention to cover cases where services to which people were entitled were not given, cases where services to which people were entitled were, in the opinion of the applicant, not given in full, cases where a person who was treated in hospital had a complaint to make with regard, either to the amount of treatment he got, the manner in which treatment was given or delays in giving treatment. These cases would be more in the nature of complaints and, as we looked at the Bill, we were afraid that under Section 63 even a complaint could be ruled out.

So far as the question of the means test is concerned, the Labour Party felt that we would be able to deal with that at the level of the county manager. To be perfectly frank, we prefer to deal with it that way. We felt that councillors and friends of the applicant would be able to deal with questions of this kind more effectively than they could be dealt with in a relieving officer's report. We felt that we could make a better case in proving the right of a person to qualify for treatment with the county manager rather thanwith the Minister, who would not be in a position to deal with such a question as quickly as the manager would. There is, however, the certainty in our opinion that the county manager acting on a complaint with regard to whether or not the medical service given an applicant was sufficient or not or whether there was needless delay, would from the medical aspect be put in the same position as any ordinary layman. He would, in actual fact, be bound to accept his medical officer's opinion and he would have to stake his whole decision on what the medical officer told him. We think that at that stage it is very important that a second opinion should be there.

If, for instance, a person applies for a blind pension, he gets a certificate from his doctor to say that he has a certain degree of blindness. If, however, the certifying officer for the Minister, who examines him later, says that he is not a suitable case for a pension, there is the right of appeal to another doctor whom the Minister appoints. The same applies in the case of national health insurance. If you claim you are sick and the society sends the D.M.R. along, you have a right of appeal from his decision. We want that right of appeal to the Minister under this section and we think it will serve a good purpose. We shall get a second medical opinion of a high standard and we are quite satisfied that the Civil Service doctor appointed by the Minister will administer the law fairly and honestly, irrespective of politics no matter who is in power. The investigation will be conducted on a medical basis and nobody is suitable to perform that function except the medical officer appointed by the Minister. It will further have the effect that the certifying doctors in the first instance will always feel that there is a second opinion there and it will be a spur to them to do things in a proper manner. I am delighted that the Minister has accepted our point of view. We accept his assurance that he will make the matter explicit on the Report Stage. We have no complaint to make with regard to the investigation of the means test as we feel that that can be dealt with more suitably locally. We shall withdraw our amendment.

Mr. MacBride

I agree entirely with the distinction which Deputy Larkin drew yesterday, and which the Minister accepted to-day, between the two issues that are involved in any question of an appeal from the local authority. There is the issue, first of all, as to whether a person is eligible for benefit or treatment and then, side by side with that, there is the issue as to whether the treatment is adequate or not. As the Bill stands at the moment there is no right of appeal to anybody from the decision of the health authority. It seems to me that the first matter which the House has to consider is whether or not there should be an appeal. I think in most cases of this type there is an appeal. There is an appeal in the case of old age pensions, there is an appeal in regard to unemployment assistance, so that, by and large, we have so far recognised the necessity for the right of appeal. The question that does arise is to whom that appeal should be. There are two viewpoints on that. There is the viewpoint that it should be to the Minister or to some official appointed by him and there is the viewpoint that it should be to some judicial body like the District Court.

Frankly, I am alarmed at the growth, if you like, of power which is being given to whole-time officials of the central Government, but I think it is an inevitable tendency in modern times. I do not think there is very much we can do about it but it is an alarming tendency. The only thing we can do is to try to embody in legislation safeguards which will protect the individual from the arbitrary action of tin-pot dictators behind closed doors. It is essential that in any legislation we pass we should try to minimise the ill-effects resulting from the granting of ever-increasing powers to the State or local authorities over people's private lives.

The only safeguard that I can visualise is the safeguard of the courts that have been set up under the Constitution for the purpose of administering justice and of deciding issues between citizens among themselves and between the State and citizens. After all, if we have established them weshould have sufficient confidence in them to entrust them with decisions of this kind. What is the alternative— and this is what Deputy Cowan did not touch on. The alternative is to leave it to whoever is able to wield the greatest degree of political influence in a local district. Deputy Cowan said that I was living in the moon. I am not living in the moon. I know the amount of political influence that is wielded on every local body throughout the country. I know, for instance, that in some local bodies only the members of a political Party can get appointments as rate collectors. We all know that political influence is wielded on local bodies throughout the country and that it is wielded in this House every other day. We all know that, and what is probably worse than the actual degree of political influence that is wielded, we all know that a large section of the public are convinced that they can only secure their rights by having an approach to an influential T.D. or county councillor.

I think that that outlook is undermining our democratic institutions. I think it is undermining the political life in the country and we should try and get away from it. We would be certainly living in the moon if we failed to face up to the realities around us. Does not every T.D. receive letters every day that usually start with these words, "I have always been a staunch supporter of (blank political Party)". Does not every Deputy in the House receive these letters? Does he not receive them daily? Very often possibly the same writer writes the same letter to T.D.s of different Parties hoping that by displaying his loyalty to a political Party he will succeed in getting a T.D. to wield influence on his behalf. Is not every Government Department filled every day with hundreds of letters sent on by T.D.s or county councillors from people who try to secure something to which they are either entitled or not entitled? These are the realities of the situation, and I cannot help feeling that when Deputy Cowan is so opposed to the question of an independent investigation of an appeal before a district justice he is, in fact, advocatinga continuance of that system which in my opinion is corrupting the system of democracy in this country.

Mr. MacCarthy

Does the Deputy advocate the abolition of local authorities altogether?

Mr. MacBride

No, I am not advocating the abolition of local authorities, but I think that if they are allowed to continue having political influence on them and that is allowed to develop on the lines on which it has developed recently then they will have to be abolished.

Mr. MacCarthy

I have never experienced anything like the Deputy is saying.

An Ceann Comhairle

We cannot continue to debate the alleged corruption of local authorities.

Mr. MacBride

I am not alleging that local authorities are corrupt. On the contrary many of them do extremely good work, but there is an impression abroad that people can only secure their rights by using political influence and I think every T.D. must admit that. It does not apply more to one Party than to another; it applies to all Parties in the House. You all know it from your mail every morning. We should try to get away from that and I think we have the opportunity in the Health Bill. The Health Bill is going to increase very considerably the power and influence of local authorities. I think that Deputies have completely underestimated the number of cases that will have to be dealt with by local authorities—very considerably underestimated them. There is going to be a tremendous number of cases to be dealt with by every local body in the country. With that increase in the scope, function and powers of local authorities you are going to have a simultaneous increase in the demands that will be made to use political influence, to wield political influence, and undoubtedly some persons may decide that this is a good opportunity to avail of in order to secure additional political support by being able—

An Ceann Comhairle

The question before the House is whether there will be an appeal and you must deal with that.

Mr. MacBride

I am on that. I am discussing it.

An Ceann Comhairle

The Deputy is going back very far.

Mr. MacBride

All right, I will leave it, but I felt having regard to the statement by Deputy Cowan that it was necessary to put the whole position in its proper perspective.

If we are agreed that there is to be an appeal, to whom is the appeal to be? The Minister quite rightly says that his Department could not deal with the appeals, that he cannot conscientiously say he could investigate every single appeal and deal with it and that from that point of view an appeal to him would not be practicable.

I tried since last night to co-ordinate the views that had been expressed by Deputy Larkin and by the Minister with the views contained in my amendment, and have made a rough draft of an amendment which I thought might meet the position generally. If I may suggest reading it out for the House it may be of some assistance in considering the matter at a later stage. I made some slight alterations suggested in my own amendment to ensure that the only question that the district justice would be asked to decide is whether or not a person is eligible-in other words, whether he comes within a class, whether his means are such as to make him eligible for a service.

"(1) Any person who claims to be eligible to receive any of the services or other benefits provided by this Act and to have been refused such services or benefits shall on complaint to the district justice for the time being assigned to the District Court area in which such person resides be entitled to have such complaint investigated by such district justice.

(2) Whenever a complaint is made under the provisions of the preceding sub-section, notice of such complaintshall be given to the health authority concerned.

(3) If upon investigation of a complaint made under this section a district justice is satisfied that the person making such complaint is eligible to receive the services and/or benefits claimed or any of them such district justice shall make a declaratory order setting forth the services and benefits to which such person is entitled.

(4) Whenever a declaratory order is made under the provision of this section the health authority concerned shall make available to the person in whose favour such declaratory order is made such services and/or benefits as may be determined by such declaratory order and such order shall be final and not appellable.

I think that a stop would have to be put to the possibility of appeals dragging on and on.

"(5) Where a person who makes a complaint to a district justice under the provisions of this section is represented by a solicitor, counsel, or other person before the district justice to whom such complaint is made no fee or remuneration shall be chargeable in respect of such representation."

I see nothing wrong with that suggestion.

"(6) The hearing of complaints by a district justice under the provisions of this section may take place in chambers and in the absence of the public and Press."

If I might deal with one or two points raised in the discussion I have attempted to meet them in this amendment. I quite agree, of course, that finality would have to be reached and that the appeal from the local authority to the District Court should then be final. You have cases—I have not looked up the details, but there are a number of instances in which that happens at the moment. For instance, an application for a licence as a rag dealer is made in the first instance to the police superintendent and there isan appeal from his refusal to the local district justice. Likewise, an application for a bookmaker's licence is made in the first instance to the police superintendent, and if he refuses there is a right of appeal to the local District Court. Therefore, I do not think we are creating any new principle. The system is already in existence.

On the question whether an appellant—who complains that he has been deprived of some service to which he is entitled under the Act—is entitled to be represented legally or not, I think it would be unwise to exclude legal representation in such cases, but it would be quite right to provide that no fees can be charged in respect of it. I say that for one reason-which is one of the reasons pointed out by Deputy Cowan and some of the other Deputies who spoke.

The local authority would in all probability be represented at whatever appeal there is by one of its own trained officials or by its law agent and, therefore, it would be unwise to prevent complainant from having somebody to put his case forward. It could be a local T.D., a county councillor, a solicitor or a counsel; it could be anybody, but the one thing I want to provide for is that that person will not be allowed to charge a fee. It will have to be a voluntary service performed by some friend of the person who is appealing. In many cases the appellant himself would be the best person to present his own appeal. In other cases, particularly if it were a person suffering from an illness, it would be well to leave the door open to enable him or her to be represented on the hearing of the appeal, whoever it is heard by, whether in the District Court or elsewhere. It would be unwise to prevent an intervention of some third person to put forward the case for the appellant. It could be a trade union official, a lawyer, a county councillor, a T.D., or someone else. One thing I want to ensure is that no one is going to make money out of it or allow the thing to develop into a racket of any kind.

The next sub-section provides that the hearing of appeals of this natureshould be held in chambers, in the absence of the Press and the public. Deputy Cowan has talked a lot of nonsense. Probably Deputy Cowan is so anxious always to throw innuendoes of one kind or another that he even forgets the law that he should have learned. There are many instances of cases of appeals that are held in chambers. A typical instance, comparable to this one, is the appeal from an income-tax assessment. It is heard in chambers, in the judge's room, around the table. I suppose it was thought that persons might not like to have a public examination of their means. That is exactly the same type of procedure, so there would be nothing new in providing that appeals of this nature should be held in chambers. Of course, I would leave it to the discretion of the district justice to decide in some cases to allow the holding of the appeal in public. The parties themselves might wish to have it in public. All these arguments about the freedom of the Press, the lack of publicity and the lack of protection being put forward by Deputy Cowan are nonsensical, because his alternative is that there should be no appeal at all, or if there is an appeal, that it should be held bureaucratically behind closed doors, in which case no one will even know what evidence has been received or even know on what basis the claim has been turned down.

The appellant, the person who claims that he is deprived of his rights, will not even be present. All that he knows is that he sends a letter appealing, then he gets a printed form of acknowledgment and six months afterwards he is told he has lost his appeal or has won it. I trust that whatever system of appeal we have it will be one that will enable a person who claims he has been deprived of his rights to know on what evidence his claim has been turned down. For that he should be entitled to be present.

Now, to meet Deputy Larkin's viewpoint, which I think is an absolutely correct one, that quite apart from the question of eligibility, quite apart from the question whether a person comes within the framework of the Act or not and is thereby entitled to a service, there is a question as to whetherthe service is adequate or not, I tried a tentative draft of a section I thought might meet Deputy Larkin's viewpoint and also the Minister's viewpoint as expressed last night. It is as follows:

"(1) Whenever a person who is eligible for any benefit, service or treatment under this Act (whether free or subject to a charge) makes a complaint to the Minister as to the adequacy of such benefit, service or treatment the Minister shall cause such complaint to be inquired into and may issue directions to the health authority to ensure that the benefit, service or treatment in question is in all the circumstances of the case adequate.

(2) Save as aforesaid nothing in this Act or any instrument made thereunder shall operate to enable the Minister to direct the giving of any service or benefit to any individual person."

I tried to anticipate some of the difficulties that the Minister might have, first of all, by not casting the responsibility on the Minister personally for determining any question but merely by casting on him the responsibility for causing a complaint to be investigated and then leaving it entirely to his discretion as to whethere he would issue a direction to the health authority concerned.

Deputy Larkin's amendment as framed cast the legal responsibility on the Minister to investigate the question himself and to be satisfied himself on evidence before he could act. That would be a difficult task to impose on the Minister and one which it would be nearly impossible to comply with, in the legal sense. Therefore, we should aim at merely casting on the Minister the obligation of having the complaint investigated and then giving him powers to issue directions to the local authority, if he so decides, having had the report from his officers.

I think that two sections of that nature would probably meet the viewpoints expressed by the reasonable members of the House. The Minister suggested that my amendment should be left over for the Courts of Justice Bill. I do not think so. If I may remind the Minister, in most legislationof this nature the right of appeal from an adverse finding is contained in the Act in which the original right is provided. It is not contained in the Courts of Justice Act but in the Act which gives the right to the person. I think that these provisions should be included in this particular Bill and not in any Courts of Justice Act. I think we would be departing from the usual procedure if we included a provision of this nature in relation to health services in the Courts of Justice Bill. The point to be determined is whether or not there is to be an appeal as to the eligibility of persons to benefit under the Act and, if there is to be an appeal, who is to determine the appeal.

I think that the Minister should accept the proposals that were made by Deputy Larkin and myself in regard to these two questions. I can quite well understand that the Minister may want an opportunity of considering the position further and possibly of consulting the Attorney-General to find out whether it fits in with his views. I would ask him not to press the amendment to a division but to say that, generally, he agrees with the purpose of these amendments and that he will have the matter considered and will see how far he can meet our views on the Report Stage.

Dr. Esmonde

These two amendments have led to a very constructive discussion. I think it is fair to say that they have brought out the difficulties that we shall be confronted with in the implementation of this scheme. The Labour Party amendment suggesting that there should be an appeal to the Minister must certainly hold some weight. We feel that, in the implementation of these services, the county manager is the health authority and will be administering these services. It will be very difficult to divorce the actual services themselves — the services that the people are expecting to receive—from the means test.

The two cases that will arise are as follows. A person accepting or receiving benefits under these proposed health services may have a complaintthat he is not receiving the proper services. The second point concerns the question of means. A person may feel that he is entitled to such services but that such services are not being granted to him. Apparently, there is no appeal to anybody at all at present.

Dr. ffrench-O'Carroll

Of course, there is appeal to somebody.

Dr. Esmonde

Possibly there is, but it has been argued here that there is not. Now that we are on that point, would Deputy Dr. ffrench-O'Carroll be good enough to inform us to whom the appeal does lie?

Dr. ffrench-O'Carroll

There is an appeal to the local health authority.

Dr. Esmonde

The local health authority is the county manager. The very point I am making is that these two amendments bring out clearly the fact that these health services are being administered by the health authority The health authority is the county manager and, apparently, there is no recognised appeal to anybody else. That is a simple statement of fact.

The Labour Party have moved an amendment suggesting that the individual should have the right of appeal to the Minister. Deputy MacBride has moved an amendment that it should be a matter that should be referred to the courts.

The discussion this morning has been very interesting and very constructive. I am not a lawyer but I think that a "declaratory order", mentioned in Deputy MacBride's amendment, would seem to rule out what Deputy Cowan has argued just now that there could be a further appeal-that, if the case were transmitted to the District Court and the district justice ruled that such-and-such a person was entitled to treatment, it could subsequently be held that the health authority would have the right under the Constitution to appeal to a higher court. I do not think that is right. The amendment mentions a "declaratory order". I take it that that would mean that the district justice would have a final sayin the matter. Therefore, we are again on dangerous ground.

It might so happen that the individual who felt himself aggrieved would appeal to the District Court, as Deputy MacBride suggests, and that a declaratory order would be made and that the individual might not be satisfied with it. He would not have the right to go any further. Therefore, you are limiting the power of the individual, you are limiting the power of the courts, and, to a certain extent, you are limiting the functions of the Constitution.

All along the line in this Bill, we are up against terrific difficulties. You cannot divorce the means test from the services themselves. Deputy Cowan stated this morning that if we had no means test none of these difficulties would arise. I submit that they would arise. The difficulty is that you are offering people medical services. Whether you charge them for these services or whether they are entirely free, the difficulty will always arise that you will have an aggrieved individual who feels that he is not getting what he is entitled to get. That is where the whole trouble comes in. I think it is very difficult for the Minister to decide in this particular case whether he will accept the amendments or not. If he does accept these amendments, that brings us to another aspect of the matter. Our argument all through has been that there is no limit to where the administrative expenses may end.

Suppose you permit an appeal to the Minister. Suppose the Labour Party amendment is accepted in full. Last night, the Minister argued that he himself would be quite unable to deal with all the cases. I think it will be agreed by every Deputy that, if we extend the benefit of the health services, everybody in this State paying taxes and paying for these services-because, in the final analysis, the money comes out of the pockets of the people-will desire to get the fullest value from them. You will have numerous appeals. Many people will consider that they are entitled to the services and many people will feel dissatisfied that they are not getting the service which they think they should get. The Minister stated last night that he will be unable todeal personally with those cases himself and, therefore, that means an enormously increased administration. That brings us back to the argument that a lot of the money that is available for health services will be expended on the administration of the services. That is one of the main objections which, from the outset, we have been offering to this Bill. I do not see that you can very well leave the matter as it is. Our attitude from the beginning has been that this is not a workable Bill.

An Leas-Cheann Comhairle

The Deputy is getting away from the amendments, which deal with a question either of appeal to the Minister or to the District Court.

Dr. Esmonde

I am making the point that these amendments show——

Dr. Ryan

The Deputy is making the Second Reading speech he did not make on Second Reading.

Dr. Esmonde

——how unworkable the Bill is. This is a question of appeal and, when you are looking for a right of appeal, you are looking for redress of some sort. The fact that the point has been argued so fully that such things are necessary proves that the Bill is unworkable-at least, I argue so.

An Leas-Cheann Comhairle

The Deputy cannot discuss the Bill on these two amendments. He must confine himself to the matters contained in the amendments, which deal with the question of appeal.

General Mulcahy

And which are related to the question of services provided by the Bill.

Dr. Esmonde

The Labour Party amendment covers the entire services and it covers the question of appeal to the Minister in the case in which the applicant has been turned down.

An Leas-Cheann Comhairle

It does not deal with the services.

Dr. Esmonde

Surely an applicant is entitled to appeal in respect of any service he is receiving? We are dealing with the services as a whole.

An Leas-Cheann Comhairle

We are dealing with the question of appeal to the Minister or to the District Court, and nothing else, in these two amendments.

Dr. Esmonde

The position is that the administrative services must be enormously increased. I see no way out of that for the Minister if he is to implement the Bill. We are face to face with the difficulties and they are considerable. The alternative is acceptance of Deputy MacBride's suggestion, which, I suppose, is fundamentally sound except that if we limit it to a declaratory rights to the District Court, we are limiting the rights of the individual, rights to which he is entitled in this free State under the Constitution, to appeal as far as the law allows him to go. I see nothing but difficulties ahead and these amendments stress to the fullest the difficulties which face the Minister, his officers and all those connected with the implementation of the Bill.

Mr. Gallagher

The Minister met the Labour Party's amendment quite fairly when he said that he would make every effort to deal with the cases of applicants who might feel that the county manager did not give them a fair deal with regard to receiving proper service, the means test or valuation. The Minister has a reputation for making sure that, where there is a case put up, the people involved will get a fair deal. Deputy MacBride seemed to be extremely worried about the wielding of political influence on local councils. He must be out of touch with the local authorities. So far as Dublin is concerned, there are 45 members in the Dublin Corporation, and his Party have the same representation there as they have here. They have two members in the Dublin Corporation and two members here. I know these representatives on the corporation quite well-they are a fine type of men-and in respect of any case they or any other member of the corporation put forward at the public health committee there is no question whatever of political influence. The case is considered fairly, and any casethe two members of his Party put up is met fairly and squarely.

Mr. MacBride

I was not levelling a charge against any one Party. Does the Deputy read the reports of court cases in the newspapers?

Mr. Gallagher

The Deputy greatly exaggerated the position. He thought to gain a few points but he flopped very badly.

Mr. MacBride

What about the reports in the papers?

Mr. Gallagher

We are perfectly satisfied in the Dublin Corporation that there is no question whatever of political influence.

Mr. O'Donnell

Did the Deputy ever hear of the rate collectors who were appointed in Galway?

Mr. Gallagher

I am talking of the authority I know. I know a little about Donegal, too, and I might surprise the Deputy by what I know. Deputy MacBride wants to refer the question of appeals to the courts. I have no desire to be charged with sneering at lawyers-I do not think it is right for anybody here to sneer at any profession-but, from my experience, I fail to see where you will get a solicitor who will not charge fees. You may find one or two very charitable men to do it, but it is a wellknown fact that if you go into some solicitors in Dublin, they say: "Put down your three guineas and I will talk to you." That is the attitude of most solicitors in Dublin and you cannot blame them.

Mr. O'Donnell

Building societies usually look for a deposit, too.

Mr. Gallagher

When a lot of money has been spent on putting a person into a profession, such as medicine, which costs a lot of money, he cannot be expected to work for nothing, and I do not see where you will get any solicitor to appear for a person in connection with an appeal like this and not look for money. What would the Incorporated Law Society think of it?They would take a very serious view if they thought any solicitor cut his fees or made any allowance whatever.

Mr. Allen

They would put him off the register.

Mr. Gallagher

I do not think we can hope that any solicitor at present would be able to do it. If solicitors carried on that type of work, many of them would be under the £600 a year limit and would be eligible for benefits under the Bill.

Mr. MacBride

There is no necessity in most cases for a solicitor to go at all. A Deputy, a county councillor or a trade union official could go. No solicitor appears before the referee in unemployment cases.

Mr. O'Donnell

He is prohibited from appearing.

Dr. ffrench-O'Carroll

But the local authority would have their law agent there.

Mr. O'Donnell

Prohibit him also.

Mr. Gallagher

I do not think a district justice will take very kindly to having every Tom, Dick and Harry coming in. There are some politicians we know who would be looking for cases to get into court because it would be a nice piece of publicity. They would be looking for these cases and saying: "Let me go down with you."

Mr. P.J. Burke

Nobody in this House would do that.

Mr. Gallagher

You are an innocent man.

General Mulcahy

I thought that was the scheme proposed under the present arrangement of going to the county manager.

Mr. Gallagher

I know that the Minister will honour what he has said, that, when this comes up again on Report, he will meet the Labour Party in regard to dealing with applicants who feel they have a grievance. I think there is something in the Labour Partyamendment in regard to having an appeals officer or somebody else. My own personal opinion is that everyone would be satisfied if the Department were to meet the Labour people on this. It is not for me to tell Deputy MacBride, eminent lawyer that he is, that it is not a wise thing to press this question of getting people into the District Court. Deputy Cowan said that if an appeal comes before the District Court there is a right to appeal to the Circuit Court and the High Court. From what I know of the Dublin Corporation, the law agent would fight a case and would go to the Circuit Court if an appeal were made to the District Court. I think we can leave the lawyers out of this. The less they have to do with appeals the better. There is some substance in the Labour Party's point of view and the Minister should give it every consideration.

Dr. Browne

I must take issue with Deputy Dr. Esmonde in regard to his point concerning the badness of this Bill. He suggested that the debate had shown up the Bill's essential badness. The same Deputy wants a right of appeal. He supported the plea for a right of appeal to somebody or other. I am glad the Minister decided to meet the Labour Party amendment in that regard. Deputy Dr. Esmonde suggested that when an attempt is made to provide free schemes that appeals to somebody or other are necessary. On the contrary, the fact that a scheme is free means that there would be no necessity for an appeal to anybody. This Health Bill would be festooned to a considerable extent with means tests if the Fine Gael Party and Deputy Dr. Esmonde had their way. The fact that it has a means test at all creates the necessity for appeals. The appeals will be based on the fact that a person thinks he is eligible under the means test. If he is eligible he should have the right of appeal. The fact that this Bill contains a means test necessitates an appeal. The real weakness in this Bill lies in the fact that it has a means test.

The Fine Gael Party has unashamedlysupported the means test and I am afraid that Deputy Dr. Esmonde must take his share of the blame if all the Parties are now trying to find their way round the very serious problems which will arise because the Bill contains so many means tests.

An Leas-Cheann Comhairle

The question of the means test cannot be discussed on these two amendments.

Dr. Browne

It has already been discussed by Deputy Dr. Esmonde. Deputy Cowan said that if the Bill had no means test there would be no need for amendments or for appeals officers. I support that. Deputy Dr. Esmonde said that Deputy Cowan did not substantiate his case. I say that Deputy Cowan had a good case. The whole discussion in connection with this Bill is the result of there being a means test in it and the means test was included in the Bill at the insistence of people with the Fine Gael type of mentality.

An Leas-Cheann Comhairle

The only issue involved in these two amendments is the question of appeal to the Minister or to the District Court.

Mr. MacBride

May I make this point? There are more issues than that. In one case the appeal is one dealing with a refusal to award a service, and in that respect the means test does arise. The other appeal is in regard to the inadequacy of the service granted.

An Leas-Cheann Comhairle

Why the service has not been granted does not arise. The Labour Party's amendment is quite clear. It asks that such complaint should be inquired into, but it does not deal with the nature of the complaint. The second amendment is on similar lines. We are dealing with the question of appeal to the Minister or to the District Court.

Dr. Browne

Surely we are entitled to discuss why a person would appeal to the District Court?

An Leas-Cheann Comhairle

Not in any detail, Deputy.

Dr. Browne

I am merely suggesting that the reason why these amendments, particularly Deputy MacBride's amendment, are put down is because the Bill contains a means test. Deputy MacBride says he would meet that by having an appeal to the district justice. A number of Deputies suggested that that would not meet the case.

An Leas-Cheann Comhairle

We are not discussing the question of the means test.

Dr. Browne

I am referring to Deputy Dr. Esmonde's charge. Deputy Cowan suggested that this discussion would not have arisen, that these amendments would not be necessary nor would Deputy MacBride's amendment in particular be necessary and would have been ruled out of order if there had been no means test. Deputy Dr. Esmonde said that the amendments made the Bill a bad one. The reason why this Bill has a weakness and why this discussion was necessary is because there are so many means tests. That is one of the questions at issue.

An Leas-Cheann Comhairle

That has already been discussed. It cannot be discussed on these two amendments.

Dr. Browne

Surely I am permitted to reply to the charges made by Deputy Dr. Esmonde?

An Leas-Cheann Comhairle

I feel that the Deputy has already replied sufficiently.

Dr. Browne

That is quite another suggestion. Am I still allowed to carry on the discussion?

An Leas-Cheann Comhairle

The Deputy will relate his remarks to the two amendments which deal with the appeal to the Minister or the District Court.

Dr. Browne

I am endeavouring to do so. However, I should like to reply to Deputy Dr. Esmonde's charge in particular that this is a bad Bill. It is a bad Bill because it contains those means tests. I will go further and suggest that where there are entirelyfree schemes there is no necessity for a means test of any kind. The T.B. scheme is divided into two parts. There is one completely free part with no means test at all. Then there is the part which deals with infectious diseases allowances. There are means tests under this part. There is a necessity for an appeal under the means test allowances part but there is no necessity at all for a means test under the completely free part. So that where the scheme is completely free there is no necessity for an appeal. Consequently, I would suggest in relation to this whole scheme exactly the same conditions which appertain in relation to the medical part of the T.B. scheme. The necessity for appeals in this Bill is created by the existence of the means test and is not caused by any other weakness in the scheme.

An Leas-Cheann Comhairle

The Deputy should now discuss the two amendments and the question of appeal to the Minister or the District Court.

Dr. Browne

I am answering Deputy Dr. Esmonde's point.

An Leas-Cheann Comhairle

The Chair informed Deputy Dr. Esmonde that his point was irrelevant and did not arise.

Dr. Browne

Not in my presence. I would go further and suggest that our main difficulty will be to try and meet the many problems that will arise, as Deputy Dr. Esmonde quite rightly said, in the attempt to implement this scheme in so far as it is an endeavour in a small way to provide a free scheme.

I am glad to hear the Minister is prepared to try and meet the many almost insuperable difficulties which I think will arise in relation to two problems. One of those problems is that mentioned by Deputy MacBride in connection with eligibility under the service and the other is that pointed out by Deputy Larkin in relation to the question of medical services. It would be very difficult indeed to administer these services and to that extent I would agree completely with Deputy Dr. Esmonde. My hope is that as timegoes on it will become more and more apparent why no similar plan put forward by Deputy MacBride or one based on Deputy Larkin's amendment will work. As time goes on it will become obvious to the House, to local authorities, to the people generally— and even the medical profession will accept it—that the ideal arrangement would be to scrap the means test in this Bill and have it on a free, no means test basis, such as in the case of children's allowances, infectious diseases schemes, and so on.

Mr. O'Donnell

I entirely agree with the Minister that there is only one ground on which appeals will lie, and that is on the question of means. That is the only case under the Bill.

Mr. Cunningham

And the amount of service given.

Mr. O'Donnell

Means is the important thing. The Minister has gone further and says that he agrees that there should be an appeal, and that he has power to deal with cases where local authorities refuse to grant the benefits to which the applicant may think he is entitled. He goes on to state a case where a doctor or a nurse is negligent. He told us that on the Report Stage he would cite the authority he has for dealing with these cases. However, he forgets that he can only act where there is negligence on the part of nurses, doctors, or local authorities. The appeals which we will be investigating in this matter are appeals on fact, not on negligence. If an investigation officer or a relieving officer goes down to investigate a man's means and says they exceed £600, and the man says: "No, they are only £550," there is no negligence on the part of the officer or on the part of the county manager in acting on the report of the officer. It is merely a dispute as to fact, and in the law as it exists to-day there is no appeal from that. The Minister is not entitled to investigate mistaken fact. He is entitled to investigate negligence; he may reprimand, suspend or dismiss a nurse or a doctor but only when there is negligence on their part but not when there is a simple dispute onfact as we foresee in cases under this Bill.

Mr. MacBride

Section 63 prevents him from doing anything.

Mr. O'Donnell

I quite agree, but the Minister says he has inherent powers; he could not cite the actual Act or section but he said he would give us information on the Report Stage. That is exactly what he said. He went further to explain that he has this power but, as I say, he is only dealing with negligence. We are all agreed—the Minister himself agrees-that there can be an appeal on those grounds. An appeal on fact is something which must be dealt with by an appeals officer. The Minister admits that he cannot himself deal with all these cases. Some person must deal with them. If he is an appeals officer he must be specially appointed to deal with these appeals. He agreed with my suggestion that all he would have before him would be the file which the county manager had before him, with the report of the original investigation or relieving officer. He says that is the most he would have before him and that he possibly could not deal with it.

I say, however, that there is an appeals officer in the area, namely, the district justice. I want to deal particularly with the argument by Deputy Cowan against appeals to the District Court. Deputy Cowan says if you permit an appeal to the District Court you will be permitting a further appeal to the Circuit Court, a further appeal to the High Court and to the Supreme Court. I am rather surprised at that suggestion coming from Deputy Cowan. If proceedings are instituted ab initioin the District Court, there is only one court to which you may appeal, namely, the Circuit Court, and the decision of the Circuit Court is binding. You cannot appeal to the High Court or the Supreme Court except in the case ofmandamusorcertiorari,where the justice has acted outside his jurisdiction, has done something which he is not permitted to do. However, if he gives a decision in law or fact, there is only one appeal and that is to the Circuit Court.

Likewise if proceedings are commenced in the Circuit Court, there is only one appeal, namely to the High Court. You cannot go to the supreme court except in the case of mandamusorcertiorari.Again if proceedings are begun in the High Court there is only one appeal, namely, to the Supreme Court. That is what this amendment put down by Deputy MacBride asks the Minister to do. Here you have a decision given by the local authority. We are asking the Minister to give only one right of appeal from it, namely, to a district justice whose decision will be final. I think that is reasonable and I will deal with the argument against it.

Deputy Cowan has said that you are going to bring solicitors into court to appear for applicants. He says further that you cannot say to a solicitor: "Do not charge a fee." He contended that if the applicant cannot afford to bring in a solicitor the law agent of the local authority will come in and subject the applicant to a lengthy cross-examination. Could we not prohibit the appearance of counsel or solicitors for the applicant or for the local authority? When I say that I would ask Deputies to cast their minds back to the law as it existed prior to the 5th January, 1952. After that time under the Unemployed Assistance Acts a court of referees was set up, presided over by a trained lawyer, and if one was not procurable, then by a member of the medical profession. No legal advocate could appear for either the Minister or the applicant before that judicial court set up by the Act. I do not think it has ever been argued that the dice was loaded in favour of the Minister or in favour of the applicant by having a trained lawyer, presiding over this court. I do not think the applicant or the Minister suffered in any way by lack of professional assistance.

Now I am merely making suggestions which I hope will be helpful. I am only trying to assist. We can eliminate the necessity for solicitor or counsel for the applicant or the local authority at this hearing before the district justice. We are merely asking the district justice should do what Deputy Larkin wants the Minister to do,namely, act as appeals officer. I do not think any exception can be taken to that. The district justice's decision will be final except where a writ of certiorariormandamusmay be brought against any individual or justice of the courts at the moment.

The Minister accepts that there must be an appeal but, as the law stands at the moment, he can only deal with a case of negligence. He cannot deal with mistaken facts. I strongly recommend Deputy MacBride's amendment, subject to further amendment if the House so wishes.

Dr. ffrench-O'Carroll

I am in favour of some appeal from the local authority. I fully appreciate that it is impossible for that appeal to go to the Minister personally and be dealt with by him, or his officers, personally. I welcome the suggestion that the Minister should have a special officer dealing with appeals. I hope that such an officer will be a doctor, a sort of medical referee or medical assessor. Assuming that is the line of approach the Minister will adopt in order to meet the Labour Party amendment, I think Deputy MacBride's amendment is absolutely and completely unworkable.

What sort of complaints will be dealt with? They will be in the main questions of means and eligibility, or otherwise, for grants of maintenance and so on. The scope of these complaints will be much wider than Deputies seem to think. There are bound to be complaints, both minor and major, about nurses, officials, doctors, food and the adequacy or otherwise of the service provided.

Mr. O'Donnell

The Minister has pointed out that he has powers to deal with them as matters stand at the moment. He has power to deal with negligence.

Dr. ffrench-O'Carroll

We will await clarification on that from the Minister. Take the ordinary case. Is there any man or woman, a beneficiary under this scheme, who would prefer to have a complaint investigated by a district justice rather than by a medical referee in the Custom House? Is it not a simple matter for the ordinaryperson to send a letter to the Custom House and have his complaint investigated there? I am certain that in 99 cases out of 100 the ordinary person, who has a grievance, would prefer to have that complaint or grievance under the proposed scheme investigated by a medical referee in the Department of Health rather than by a district justice in the District Court.

Mr. MacBride

But that is a complaint in relation to the administration of the scheme. My amendment deals only with the question of whether or not the person is eligible.

Dr. ffrench-O'Carroll

Cannot all complaints be dealt with in the first instance by an expert working under the scheme? If, after that, a person is not satisfied that his grievance has been dealt with properly by the expert he will have the courts open to him.

Mr. MacBride

That is not so. That would not be practicable.

Dr. ffrench-O'Carroll

It would be more practicable than the Deputy's amendment. If an individual fails to have his grievance remedied by the expert appointed to deal with such grievances he can then seek legal assistance and fight his case in court rather than throw himself into a whole series of courts in the first instance and go through all the legal procedure.

Mr. MacBride

Nobody is talking about a series of courts.

Dr. ffrench-O'Carroll

These complaints may be something that can be settled in 24 hours. We have heard a good deal of talk about medical relationships, the intimacy of the doctor-patient relationship and so forth. Here in this amendment it is proposed that a complaint should be brought into court. It is suggested there should be no lawyers, no solicitors. It is suggested that the complaint should be heard only by the district justice. What beneficiary under this proposed scheme would prefer to go before a district justice rather than have his complaint investigated by a doctor or an equally competent assessor within the privacy ofthe scheme itself? I think the Deputy's suggestion is quite unworkable. I believe that if we put the District Court there as the place in which a person will make his complaint, in the vast majority of cases the complainant will be afraid to go to court at all. Irish people are not anxious to go into court.

Mr. O'Donnell

We are dealing with the question of appeal. They will only go to court on appeal.

Dr. ffrench-O'Carroll

One must deal with the matter in the wider sense. The Deputy argues from the particular to the general. The suggestion is that it would be more desirable to go to court in the first instance in relation to a particular complaint or grievance thereby putting the matter in the hands of the lawyers at the outset. That will be the effect of this amendment. I think the amendment is unworkable. The effect of providing this course would be that people would be afraid to make a complaint. We as a nation do not resort to the courts easily. We go to court only when we become absolutely mad with our neighbour and are determined to fight him to the finish. It would be foreign to our nature to introduce the courts into a matter of this kind. Our people would not be anxious to seek legal advice in relation to such complaints or grievances they may have. Irish people fear that when one enters into legal circles matters become more and more complicated as one progresses from court to court. From that point of view alone I think the suggestion is impracticable.

Mr. MacBride

Who does the Deputy think should hear the appeal on the question of the means test?

Dr. ffrench-O'Carroll

I suggest the medical referee or the medical assessor appointed under the scheme to hear complaints.

Mr. MacBride

He will never see the complainant. He will only know the basis upon which minds were made up or decisions given.

Dr. ffrench-O'Carroll

He will judge the case on the facts presented to him. If the complainant is not satisfied with his decision, he can then resort to some such measure as the Deputy has in mind. It is quite ridiculous to put a person through all the legal formalities in relation to a simple straightforward complaint in the first instance. Suppose a woman does not get a maternity grant. Is it suggested that she should then resort to the District Court?

Mr. Allen

This amendment has been defended by the principal opposition to this Bill and from that point of view, I was beginning to wonder if that Party had changed its outlook on the Bill. For some months we have been listening to State interference, State control and State everything else. Not satisfied with that, the Opposition now wants to bring in the judiciary and the legal profession into the Bill.

Mr. O'Donnell

Is it alleged that, because we do not vote for the Bill, we should not speak against it?

Mr. MacBride

We are here to protect the people's rights.

Mr. Allen

Deputy MacBride has been screaming about State interference and State obstruction. Now he wants to introduce more State control.

Mr. O'Donnell

Is that the Deputy's opinion of constructive criticism?

Mr. Allen

I have no doubt but that this amendment would finish up in the High Court and the Supreme Court because it provides for nothing. It does not provide that people shall go to court on the means test, the inadequacy of services or anything else. It leaves an open door. I am sure it would take the united efforts of the entire judiciary to interpret finally what the section means if this amendment is accepted, and no one knows that better than Deputy MacBride.

So far the Bill has escaped the necessity for interpretation by the courts. Now Deputy MacBride wants to bring in the courts at the tail-end. There is an estimated £2,000,000 to be spent under this Bill.

Mr. MacBride

Who will hear appeals?

Mr. Allen

I do not think this amendment is fair to the medical profession at all. If that principle is believed in, then I feel very much surprised that the Opposition did not bring in an amendment to protect the ratepayers and the taxpayers and the community in general against the county manager or the Minister for letting in somebody who was not entitled to benefit. But there has been no amendment put in to meet that eventuality. Why did not the Opposition bring in an amendment to give the ratepayer and the taxpayer the right to go to court and ask for a declaration from the district justice that A.B. was not entitled to get this service, especially in view of the fact that the cost of this is going to be such an important matter? There would be some sense in their argument if they had done that. There are rights on the other side as well as on the side that they are talking about. Deputy MacBride and Deputy O'Donnell seemed to indicate that it is only a small number of border-line cases in the middle income group that may need to go to court under this section.

Mr. MacBride

No one said that.

Mr. Allen

As I read the section, anyone can go to court if he believes he has a grievance because the manager did not send him to the dentist to get dental treatment of some kind. At the moment the community is spending not far short of £20,000,000 on social services. We are spending between £8,000,000 and £9,000,000 on old age pensions. I have yet to hear of a case concerning an old age pension that had to go to court. The law lays down that there is someone to determine who are entitled to get the pension. In the first instance, there is consideration of the claim by the local pensions committee which gets certain advice from the investigation officer. If the applicant for a pension has a grievance, he can appeal to the Minister. I do not believe, taking even the wildest viewpoint of the Opposition, that we will ever spend £9,000,000 under this Bill. As I havesaid, we are spending £9,000,000 on old age pensions, and the courts have never been called upon to determine as much as the spending of 1/- of that big sum of money.

I think the Minister has been most reasonable in agreeing to bring in an amendment to meet the amendment put down by the members of the Labour Party. The Minister's reasonable approach on that will, I believe, give more satisfaction than would the bringing of the community into the District Court. Under Deputy MacBride's amendment, there can be an appeal from the District Court to the Circuit Court, and, of course, we all know that there are ways and means of getting into the High Court and from it to the Supreme Court.

Mr. MacBride

The Deputy should not talk nonsense.

Mr. Allen

I am not a lawyer, but from our experience of life we know that there are ways and means of getting most things even into the highest courts. There has been a great deal of concern expressed in regard to border-line cases in the middle income group. Deputy Costello spoke on another occasion here about the farmers with the £50 valuations driving around in their Chrysler cars. Well, if a few of those were refused it might be no harm, that is if there are any such in existence. I do not believe there are. I have never heard of a farmer with a £50 valuation who could afford to drive around in a Chrysler car.

An Leas-Cheann Comhairle

That does not arise on the amendment.

Mr. Allen

It does not, but a plea is being made in this amendment for people of that type. The amendment does not apply to those in the lower income group. There is no concern whatever for them. I am sure they are getting full service at the moment, and that they have no need to apply either to the Minister or to the court. According to law, a full medical service is being provided for from 50 to 60 per cent of the community. Under this Bill, a full medical service will be provided for every woman in thecommunity who requires maternity service and without any means test. There is then left only the other section, the middle income group.

My colleague, Deputy Dr. Esmonde, told some sections of the people in County Wexford recently that this was a Bill of rags and jags that will give them the right to a bed in a public ward if they can get it. These are the only people who are concerned in this Bill. I think this is a foolish amendment. So far as this Bill is concerned, if it were accepted, it would bring the machinery of the State right on top of the community. I think it should be strenuously opposed.

Mr. MacBride

I am afraid that the type of speech we have just heard from Deputy Allen just shows that he has not listened to what the arguments are but is mainly concerned to try and throw a few cheap gibes about the place. It is the kind of thing that gives very little public confidence in the approach made to this by some members of local authorities. Nobody who spoke, either in support of the Labour Party amendment or of the amendment in my name, ever suggested that this should apply to the middle income group only, or even mentioned the middle income group in relation to it. The main effect of an appeal, I take it, will be in regard to the lower income group, people with £600 a year of a family income. It is very easy to talk of £600 a year. It has to be remembered that it is not £600 a year in regard to one person, but is the family income of £600 a year. Let us face realities and take the City of Dublin. In the average household in a working-class area, where you have two or more people working, you have a family income of over £600 a year at the moment. Remember, that the means test is in regard to £600 a year of a family income, which includes the wages of every person in the home.

An Leas-Cheann Comhairle

The Deputy is getting away from the two amendments. We are not discussing the question of income as a reason why a person should have the right of appeal to the Minister or the District Court. The reason why he is aggrieved does not arise.

Mr. MacBride

I am just pointing out that the reason he needs the right of appeal is to ensure that, on the assessment of the family income, he will be able to have the matter determined on the basis of facts. That is not going to be an easy thing to determine. If you have, say, a man, his son and daughter working, and if the family income is around £600 a year, I suggest that it will take a fairly fine assessment to determine whether it is so or not.

An Leas-Cheann Comhairle

There is nothing in the amendment as to why the party feels aggrieved by that position. The only thing contained in the amendment is the right of appeal to the Minister. The Deputy cannot discuss the reasons why any person has been refused a service. He can only discuss the question of the right of appeal.

Mr. MacBride

I understood that we had agreement between the Minister and this side of the House that there were two issues involved: there was the question of whether a person was eligible, which is the issue I have sought to cover in my amendment, and the other issue, as to the adequacy of the service. On the question of whether the person is eligible or not, the main and practically the only matter that will have to be decided is the question of his family income.

An Leas-Cheann Comhairle

The Chair has ruled that that cannot be discussed on the two amendments. It has already been discussed by the House. It cannot be discussed on these amendments which are simple amendments dealing with the right of appeal to the Minister or the District Court.

Mr. MacBride

I have said what I want to say. I think the Chair did not understand the point I was making. Deputies also seem to fail to appreciate that the reasons for the two amendments are the provisions of Section 63. The Minister says he has a right of appeal in some respects at the moment or that there is some provision whereby an appeal can be brought. Section 63 provides:—

"Nothing in this Act or any instrument thereunder shall operate to enable the Minister to direct the giving of any service or benefit to any individual person."

The Minister has deprived himself of any right of appeal under the Bill and it comes down to a question of whether or not there should be a right of appeal.

Deputy ffrench-O'Carroll also was inclined to confuse the two questions —the question of the suitability of service and the question of the adequacy of the service. These are all matters which undoubtedly an inspector of the Department of Health can deal with and should deal with. I do not think that an inspector of the Department of Health or any public official is the best person to deal with the question of whether or not a person is eligible for the services provided under the Bill. Certainly it is contrary to the fundamental concept of democracy and justice that these things should be decided behind closed doors by some official in a back room in the Custom House who will never see the appellant, decided on evidence that will never be known to the person affected by it, decided on representations that may be proper or that may be improper. I do not think that is the best way of administering a Bill of this kind on a question of facts.

I think it would be much more satisfactory to have it determined by somebody in a court. By all means give power to hold the hearing in a case of that kind in chambers in the same way as appeals in regard to people's means and many other things of that type are heard in chambers in court.

General Mulcahy

It is a rather new approach to the discussion of legislation here that when the courts are referred to and when their function is referred to as a matter of protecting people's rights a Deputy will say that this is just bringing another arm of the State into the administration of things.

Here we have a Health Bill that proposes to impose rather heavy charges for its cost on the rates and taxes and, as a result of that, to make provisionfor institutional treatment and specialist treatment to a large number of persons completely outside those who formerly got assistance under the Public Assistance Act or the Medical Charities Act. The two amendments that have been put before the House and the discussion that has taken place around them put the problem in respect of which an appeal tribunal or an appeal officer or an appeal court of some description is required in very clear perspective.

Deputy Dr. Browne and Deputy Cowan have remarked that these amendments and the fact that they would appear to some people to be necessary emphasise the insuperable difficulties of administration that will inevitably arise under this Bill. If there will be insuperable difficulties, a large number of them would appear to arise in deciding who is entitled to get a particular service under this Bill and the extent to which he should get it.

Deputy Cowan, very flat-footedly, has stated that a little experience of this Bill will show that the only alternative to it is a complete State medical service. Deputy Dr. Browne approached it in the same way. We are dealing here with the Government's proposals in the matter. Taking the figures provided by the Government, 1,000,000 of the population are those who are already receiving benefits under the Public Assistance Act. People who are receiving public assistance are people who already find themselves in certain humiliating circumstances as a result of their poverty or inability to provide for themselves the services that they require. The machinery that has been dealing with them up to the present might have had certain humiliating aspects about it but it was a machinery that was giving to people, already in humiliating circumstances, a charitable hand from public institutions to help them.

An Leas-Cheann Comhairle

How is this relevant to the amendments?

General Mulcahy

I am speaking of the type of people in respect of whom an appeal court is required. This Bill proposes to give services, both institutional and specialist, to a very muchwider section of the people. In return for payment of taxation and rates another 1,000,000 people immediately above those who have been availing of home assistance in the past are being promised by this Bill services of a particular kind and the proposals in the Bill leave entirely at the discretion of one particular person the extent to which and whether they shall be given these services or not. The answer of the Minister, in the Bill at any rate, is that he will provide them with the same machinery of examination and the same officer of appeal as was provided in the past to those who had to apply for assistance or services under the Public Assistance Act.

The Minister has indicated that he would introduce an amendment to endeavour to meet Deputy Larkin's amendment. But in the kind of gloss on the possibility of an amendment of that kind given by Deputy MacBride, the Minister offers nothing but the suggestion that he would perhaps do something to see that the machinery already in operation in relation to the Medical Charities Act and the Public Assistance Act will be operated fairly. I suggest to the Minister, however, that the decisions which the county manager will have to take as the deciding authority under the Bill will be vastly different from and wider than the decisions he had to take when he was dealing with the administration of the Public Assistance Act. He was then giving assistance in the most charitable way to people who required it, through machinery which was established for that purpose, to the best of his ability and to the best of his judgment as to what was required.

Now, even in respect of the Public Assistance Act, definite established rights are being offered of a newer and clearer kind when they are applied to people who will have to pay for them. The type of appeal that is likely to arise on this matter is an appeal, if you like, very strongly connected with the question of means around the two border lines, the border line that separates the public assistance group from the lower income group and the lower income group from the middle incomegroup, and, again, around the line of division that takes place between the middle income group and the higher income group. I submit that in all these cases there would be substantial grounds of complaint that certain persons were not being fairly treated with regard to the means question.

Deputy O'Donnell has given a rather clear and graphic picture of the machinery which exists for assessing means at present. That is the machinery which is offered now for assessing the means of people around the border lines. I submit that it is not sufficient in the new circumstances to leave the decision as to that to the type of machinery that decided cases under the Public Assistance Act.

Deputy Allen and others also said that this was the best approach. They are entitled to say anything they like with regard to that. We think that the approach under a measure of this kind should fairly recognise that where wide and improved services are being promised to the community there should be a reasonable, cheap and simple way of appeal as to whether persons were being fairly and justly dealt with or not.

I was rather struck by the Minister's reaction last night and the change in his reaction to-day with regard to the two types of amendment put up. Last night, on the ground of the difficulties it would be creating for his Department in making up their minds if Deputy Larkin's amendment was taken, the Minister expressed his view as rather favouring the type of appeal that Deputy MacBride suggested, namely, an appeal to the district justice. Now, for some reason or other, the appeal to any section of the courts is completely ruled out. It would be a completely new approach to any legislation providing facilities and services for our people if they were practically ruled out from going to a court. If the suggestion is that they would have to go to the High Court that would be a kind of class legislation such as Deputy Allen would think we would rather favour. It certainly is not the type of appeal that should be offered to people who might havegrievances under a measure of this kind.

As I say, the Minister to-day, although attracted by the court proposal last night, turns his back on it and produces a suggestion that if a proposal bringing in the district justice is to be considered it should be brought in under the Courts of Justice Bill which is coming before the House. But the amendment we have been discussing has been before the Minister and other Departments of Government for a sufficiently long time to have assembled the views of the various Departments on it. Apparently, it was only after the question was discussed last night that the Minister for Justice and the Department of Justice were brought into the matter for the purpose of showing what their reactions were. It is entirely wrong to take up the attitude that in this Bill, which is providing machinery for deciding whether or not the services which are being provided are adequate or entitled to be provided and the whole question of persons' means, we should depend upon the machinery which has been used up to the present for saying whether or not people should get public assistance.

Dr. Esmonde

As I understood Deputy Allen, he says that there is a right of appeal. It would be a very serious thing if we left this without having it definitely clarified whether there is a right of appeal. As Deputy MacBride has pointed out, under Section 63 the Minister is divesting himself of the right of appeal. What we object to is that the health authority is actually the county manager. He has the final say in everything; there is no appeal from him. It is all very fine for Deputy Allen to say a person can appeal. I suppose you can appeal against anything if you have sufficient money to enable you to go to the courts. But when you are introducing health services it seems rather an unfortunate fact that you arrive at a condition of affairs that a person has no right of appeal other than to employ a lawyer to go to the courts. Deputy Allen said here that the people in the lower income group are satisfied that theyhave got the services already, but these are being extended to cover other groups, and it is going to be a bigger scheme altogether and there will be difficulties and grievances, and to implement the thing properly there must be some right of appeal to somebody; but there is not. As far as I can see it, there is no right of appeal to the Minister. Then Deputy MacBride brings in his suggestion and I am not in full agreement with it.

I think there is a lot in it, but I feel the declaratory right would confine it to the District Court, and I think we are limiting a free constitution by doing that. That is the portion I object to. Deputy Dr. ffrench-O'Carroll suggested that medical referees be appointed and there are points in favour of that. But there are points against it as well. Deputy Dr. ffrench-O'Carroll said that if a person was aggrieved in any way that they could appeal to those medical referees, say, in the Custom House, and that they could write to the official there. I do not want to decry the Custom House, but I think it would be a considerable time before a private individual writing to the Custom House would get an answer. Anything to do with medical services, I wish to stress, is in the main—if not entirely—of an emergency nature. Perhaps a person believes he is entitled to a service, or has a child requiring treatment, or is not really satisfied with the service he is getting. Surely it is not meeting the situation to suggest that he should write to the Custom House. He might be dead and buried before anything would be done.

There is a certain amount in what Deputy Dr. ffrench-O'Carroll suggests. I think the only way to make quite sure is to appoint somebody. The suggestion of medical assessors appears to me to have a parallel in the case of workmen's compensation. But as Deputy MacBride puts it, persons sitting in the Custom House would not know local facts and conditions. So that we have reached a stage, as far as I am concerned, when I feel there are terrific difficulties ahead. I do not want to accentuate them. It seems tome that in matters of appeal Deputy Dr. ffrench-O'Carroll's suggestion has possibilities, but you would come up against local conditions and want of time and so forth. It seems you would have to appoint medical assessors to cover several areas. It would be quite impossible to deal with the situation by having one medical assessor sitting in the Custom House. Very serious questions will arise. I think it is the desire of all Deputies here—we may have disagreed on all sides of the House on a lot of things, but I think it is the will of all of us—that we should provide for the people the best medical service we can. If we are introducing medical services we should make them as freely available as possible and to do that you will have to make rapid decisions. The Minister is apparently considering this question of appeal. I will give him full credit for that, but he has in mind one suggestion that he will put forward a scheme and have an appeal of some sort. But I think he will realise that this section as it stands is not very satisfactory, it is not otherwise satisfactory. It is possible that he might be able to deal with the situation by having medical assessors appointed in different areas. I do not think it would be necessary to have one in each county, but if you had one to cover several counties they could sit and hear these appeals very often.

To refer to the question of the courts again for a few moments, I would like to stress the necessity of emergency action in all matters appertaining to medical treatment. It very often happens in some districts—to my knowledge it has happened sometimes— that you do not have a district justice sitting for, maybe, as long as three months. Where a person is not getting satisfaction—and dissatisfaction in the majority of cases would probably arise where a parent with a natural anxiety for a child for which he has a great affection feels he is not satisfied with the treatment or fears he is not getting the service he should get—he will wish to appeal. It would be poor satisfaction to him if he had to wait until the district justice came into the area after three months. He is precluded by Section 63, as I read it, from appealing tothe Minister. Therefore, in fairness, I think all Deputies will agree we must have somewhere to appeal to. I am not prepared to dogmatise on this in any way but I am putting it up that Deputy Dr. ffrench-O'Carroll has contributed a suggestion, or the basis of one, and I think the Minister could consider that and he could see if it is feasible. He might consider dealing with appeals that way—by appointing medical assessors or referees. Some Deputies feel these should not be medical men, but I think, as they will be dealing with medical matters, we would need experts of some sort to sit in the different areas. It would cover a wide area and would lead to promptness of decisions and avoid a lot of hardship. I do envisage a lot of hardship. It may not lead to deaths or anything like that, but there could be a lot of mental suffering.

Dr. Ryan

I wonder would the Deputy consider our mental sufferings for a while?

Dr. Esmonde

Why, what is wrong with you?

Dr. Ryan

Listening to you.

Dr. Esmonde

I am very sorry.

General Mulcahy

Is it in order for a Minister to insult a Deputy in that particular kind of way?

Dr. Ryan

It was often tried before.

An Leas-Cheann Comhairle

I cannot see there is any insult.

General Mulcahy

Is it in order for a Minister to say that it is mental suffering for him to listen to a Deputy's speech?

Dr. Esmonde

I do not mind. It is all right. I have taken no offence.

General Mulcahy

I would like a ruling from the Chair as to whether it is in order for a Minister to complain that it is mental suffering for him to listen to a Deputy's speech.

An Leas-Cheann Comhairle

The Chair does not consider it a disorderly remark.

General Mulcahy

I see. That is grand.

Dr. Esmonde

I am glad to say I am not suffering mentally from the Minister's remarks about my mental condition. I see the Minister's difficulty. He has divested himself of his powers here. He is introducing this scheme, and naturally there will be appeals. The Labour Party has introduced an amendment suggesting a method of appeal. Deputy MacBride has introduced another suggestion. They do not seem to be entirely acceptable to the Minister and Deputy Dr. ffrench-O'Carroll has, to my mind, laid down the basis for discussion, and I am suggesting that the Minister should listen to that. If that causes the Minister mental distress, I apologise to the Minister for whatever mental distress I may have caused him and also to the other Deputies to whom I may have caused mental distress.

General Mulcahy

I would like to ask the Minister to be a little more explicit. He has asked both Deputies Larkin and MacBride to withdraw their amendments.

Dr. Ryan

I will be explicit. I will be explicit so far as the Labour Deputies are concerned and what they need. As far as Deputy MacBride is concerned, I am asking the House to vote against his amendment.

General Mulcahy

That is not going as far as I want. Would the Minister say what particular type of powers he would give himself in relation to an appeal? Is it power to refer the matter to the county manager and require the county manager to have the matter reviewed again, or did he propose to take power that would give him a deciding opinion on any particular case?

Dr. Ryan

I am not taking any powers. What I pointed out was that if a person is wrongly assessed, having regard to his means, he has an action at law and I do not see why we should provide anything further in this Bill. If Deputy MacBride thinks that some provision is necessary to decide whether that action should be taken in the District Court or High Court, that is a matter for the Courts of Justices Bill.

General Mulcahy

When the Minister says that he has an action at law, does he mean that he can go to the High Court?

Dr. Ryan

As far as I know.

General Mulcahy

Does the Minister suggest that before deciding that matter, we should wait until the various matters dealt with in the Courts of Justices Bill have been reviewed?

Dr. Ryan

It has been the position for years.

General Mulcahy

It has not been the position for years that the services indicated in this Bill were provided for the people.

Dr. Ryan

It has been the position for years, as the Deputy knows, that a poor person had to go to the High Court if he thought he had a grievance and, of course, he could not afford that. Now we are dealing with the better-off classes in addition to the poor people.

General Mulcahy

Does the Minister suggest that they would have sufficient means to go to the High Court?

Dr. Ryan

I do not know whether they would or not but they have more means than a poor person would have.

Mr. MacBride

Would the Minister not like to have an opportunity of reconsidering the section or the suggestion made by Deputy Dr. ffrench-O'Carroll?

Dr. Ryan

I would rather that the Dáil would decide it.

Mr. MacBride

Does the Minister not consider that the Courts of Justice Bill would not be a suitable measure to deal with a matter of this kind? If such a provision is enacted, it should be included in this Bill. Would the Minister not agree to consider the matter sympathetically between this and the Report Stage?

Dr. Ryan

I do not want to mislead the Deputy. I am not promising to give sympathetic consideration to anything. If the Deputy wishes, he canput down an amendment to the Report Stage, but I do not want the Deputy to think I am giving any undertaking.

Mr. MacBride

Will the Minister consider it seriously?

Dr. Ryan

If the Deputy puts down another amendment I shall consider it.

Mr. MacBride

I have not time now to draft it, but if the Minister is prepared to consider it seriously, I am quite willing to leave it alone until the Report Stage.

Dr. Ryan

I shall consider anything put up, naturally.

Mr. MacBride

In a serious way?

Dr. Ryan

I cannot say anything in advance.

Amendment No. 80, by leave, withdrawn.

Question proposed: "That Section 63 stand part of the Bill."

General Mulcahy

This appears to be the only aspect of this Bill in which the Minister estops himself from controlling the county manager or giving the county manager a direction in any way. I should be glad if the Minister would deal with that point and justify this particular exclusion. In every other detail of this Bill, the Minister can give directions to the county manager.

Mr. MacBride

The section provides a negative to all our demands in this connection. It is a positive section which says that there shall not be any appeal to the Minister or anybody else. Would the Minister not let the section stand over until he has reconsidered the position?

Dr. Ryan

So far as I know this section is just declaratory. I do not know that it would make much difference if it were left out of the Bill but I should like to consult the draftsman on the matter. Even if the Bill were to stand without the section, there would be no appeal to the Minister. I want to make it clear that the county manageris the person who will decide, in the case of an individual applicant, whether he should get a service or not. That is one of the things specifically laid down for the county manager. That does not say of course that the county manager has everything under his control, but we are dealing with a case here in which the county manager has full authority and the council cannot interfere with him. I have defended that several times. If a person applies for some service and says: "My means entitle me to this", I have always held that that person would rather have that question decided in private than by a council at an open meeting. It has been laid down that in a case of individual services the county manager decides. It is true, therefore, that any appeal that would be advocated here would be an appeal from the county manager's decision, not from the county council's decision. The county council will certainly be in a position to give the county manager general directions but that is all. He must decide an individual case on these general directions. If, as I pointed out already, a man's means are very well defined, I do not think there can be very much of a dispute. There can be no dispute as to whether a man is insured or not, or no dispute as to whether a farmer's valuation is over £50. There may be a dispute as to whether a man's income is over £600 a year.

Mr. MacBride

That is the point. It is the family income.

Dr. Ryan

If a person makes a full disclosure of his means, I do not think there can be much of a dispute. It is only where the manager would say: "I am not accepting your return", or make the plea: "I do not think you are making a full disclosure", that there could be a full dispute. I do not think that is a question for the Minister to decide. As the law stands, I take it that a person could go to the High Court if he thought services to which he was entitled were being withheld from him. If the Dáil thinks that the High Court is too remote and too expensive, and that the action should be brought in a lower court, that, Isuggest, it not a matter for this Bill. I know it will be said that other Bills have had provisions of this kind, but I do not know enough about the powers of the District Court or the High Court to deal with that matter. If Deputy MacBride tables another amendment we shall consider it certainly.

On the other point, where a person who is eligible is getting certain treatment and makes an allegation that he is being neglected, the Minister will certainly take note of that. I should say—I do not want to be misquoted on this afterwards—that we sometimes get what are obviously frivolous complaints and we do not go very far with them but where there is a prima faciecase at all, the case is investigated and the persons concerned, whether doctor, nurse or local authority, are dealt with accordingly.

Deputy Esmonde between this and the Report Stage might look at the amendment suggested by Deputy MacBride if it is intended to cover the Labour suggestion. Deputy Esmonde has said that he thinks the amendment put in by Deputy MacBride is all right. I want to warn him that he had better consult his colleagues before he agrees with it because it does definitely give power to me to direct treatment. I avoided that and my predecessor avoided it as we did not want to confuse any medical man in his treatment. Deputy MacBride's amendment would give the Minister power to direct treatment.

Dr. Esmonde

Excuse me, that is the District Justice amendment?

Dr. Ryan

No, the amendment suggested by Deputy MacBride this morning. It is not in print.

Mr. MacBride

This one here.

Dr. Ryan

I want to warn Deputy Esmonde that he would want to be careful with his approach to the Irish Medical Association in regard to Deputy MacBride's suggestion. I do not think it would be right that the Minister should have power to direct what particular treatment should be given to any particular individual.However, I suppose we can leave it at that until the Report Stage.

Dr. Esmonde

The Minister was talking just now about the means test. There does seem to be one other part of the means test which he did not quite cover. There is a section also in this Bill—I have forgotten at the moment which one it is—in which there are certain incidents in which a county manager may decide where peculiar circumstances warrant special consideration of the case of a person who seeks a service and who has more than £600 a year.

Dr. Ryan

Oh, yes.

Dr. Esmonde

The Minister knows the section I mention. I think that a good deal of controversy might arise with regard to means. The position as it stands now is that the county manager would have the final say in that matter, would he not?

Dr. Ryan

Oh, no.

Dr. Esmonde

Nobody else. Surely that is an occasion when there should be a right of appeal.

Dr. Ryan

I do not think so.

Dr. Esmonde

I agree and I am perfectly willing to accept the fact that the county manager resident in the area would be familiar with the facts, but certain circumstances might arise where one man should not have to decide. It does not seem to me to be a good principle that one man and one man alone should decide the issue. It seems a case where there should be an appeal to somebody. As I understand the thing now there is not an appeal to anybody unless a person goes to the courts. If a person was in a particular income group, was actually in the higher income group, but owing to very peculiar circumstances—he might have a big family or dependents, or it would be necessary for him to seek these benefits, the local authority says: "You cannot have these benefits. You are not entitled to them". It seems reasonable that there should be a right of appeal somewhere. The Minister says that theyhave a right of appeal to the court. If a person is in such financial circumstances that it is necessary to seek benefits which he is not really entitled to according to the law because the income precludes him from that, surely there should be a right of appeal to somebody other than the Minister. I think it is ordinary common sense, ordinary justice, to suggest that the Minister should qualify that.

Mr. MacBride

I do not want to go over all the arguments we have had before, but the difficulty is that the Minister has given an assurance to Deputy Larkin that he will consider his amendment in some other form— that he will consider an amendment that would give a right of appeal to the Minister in a certain limited scope or sphere. This section which we are now discussing, if we adopt it, precludes the Minister from fulfilling his undertaking to Deputy Larkin because it precludes him from directing the giving of any service. Would not the sensible thing at this stage be to leave that section out until the Report Stage, until the Minister has had an opportunity of reconsidering the whole position with regard to the right of appeal—appeal in connection with Deputy Larkin's amendment and in relation to my amendment?

Dr. Ryan

Of course you could do it the other way round. Probably the section may have to be amended on the Report Stage but it is better to leave it in and amend it if necessary.

Mr. MacBride

Does it not involve a direct negative to all that we have been asking the Minister to do?

Dr. Ryan

I do not know. It may not.

Mr. MacBride

Does it not preclude the Minister? Is not the whole purpose of this section to prevent an appeal to the Minister? Why not leave it in abeyance until the Report Stage?

Dr. Ryan

Is it not better to leave it in then?

Mr. MacBride

No, because the Minster, in the section, is asking us to agree to something which he himself agrees he will have to amend later on,which is in direct contradiction of all the things we have been urging upon him, both Deputy Larkin and myself, so why not leave it alone until the Report Stage?

Dr. Ryan

The section need never have been put in. It would not change my powers in the least and I am very sorry that I ever put it in, because we have lost two days on it and I think we could do without it.

Mr. MacBride

Then why not leave it out?

Dr. Ryan

All right, leave it out.

An Leas-Cheann Comhairle

Section deleted.

Dr. Ryan

The best thing to do is to delete it.

Dr. Esmonde

Yes.

Dr. Ryan

It is deleted.

Mr. MacBride

You can consider the whole position on the Report Stage.

Amendment No. 82 withdrawn.

SECTION 64.

Question put: "That Section 64 stand part of the Bill."

Mr. MacBride

What is Section 64? Would the Minister say a few words about it?

Dr. Ryan

This is consequential. The Public Assistance Acts have nearly all been removed and this is just consequential.

Section 64 agreed to.

SECTION 65.

Dr. Ryan

I move amendment No. 83:—

Before Section 65 to insert a new section as follows:—

(1) In this section "the Act" means the Tuberculosis (Establishment of Sanatoria) Act, 1945 (No. 4 of 1945).

(2) Section 6 of the Act is hereby amended by the insertion after sub-section (2) of the following sub-section:—

(2a) Notwithstanding sub-section (1) of this section, when the establishmentunder this Act of a sanatorium has, in the opinion of the Minister, been completed, the Minister, if he so thinks proper, may transfer his estate or interest in the land on which the sanatorium has been established and the equipment of the sanatorium to a joint board established by an Order under Section 41 of the Health Act, 1953, and, in the case of any such transfer, sub-section (2) of this section shall have effect with the substitution of "joint board" for "county authority or county authorities".

(3) The following section shall be added to the Act after section 17:—

18. (1) Where the Minister has acquired land under this Part of this Act and, as respects such land or any part thereof—

(a) the Minister has not transferred his estate or interest therein under sub-section (2) or sub-section (2a) of Section 6 of this Act, and

(b) it appears to the Minister that such land or part is no longer required for the purposes of the establishment of a sanatorium,

the Minister may dispose of such land or part in such manner as he thinks proper.

(2) All moneys received by the Minister in respect of the disposal of land under this section shall be paid by the Minister to the Hospitals' Trust Board and shall form part of the Hospitals' Trust Fund.

This is to extend the powers under the Tuberculosis (Establishment of Sanatoria) Act, 1945. There are two things we want to give power to do. The first is that in the Act as it stands the Minister had power to hand over a sanatorium to a local authority or to run it himself, but there was no power to hand over to a joint board, which might be the more appropriate way of doing it in certain cases. This is to give us that power. The second point is that in taking lands for a sanatorium the usual thing is to buy an estate or a holding, but when a sanatorium is built we found that in some cases we had more land than was needed, butthere was no power to sell the land again. So this section really is to take these two powers, that is power to hand over a sanatorium to a joint board, and power to resell the land or part of the land that is not necessary. Any money, of course, that would come from that would be paid back to the Hospitals' Trust Fund.

Amendment agreed to.

Dr. Ryan

I move amendment No. 84:—

Before sub-section (6) page 27, to insert a new sub-section as follows:—

(6) For sub-section (2) of section 175 of the Act, there shall be substituted the following sub-section:—

(2) Expenses repaid under this section by a mental hospital authority shall be regarded as part of the cost of mental hospital assistance for the person in respect of whom they have been incurred.

This is really a drafting amendment. Under the Public Assistance Acts the Minister for Justice was required to meet the expense of supplying a Guard for the removal of patients, and this is a drafting amendment now to continue the same power in the case of the health authority.

Amendment agreed to.

Dr. Ryan

I move amendment No. 85:—

In sub-section (7), page 27, lines 21 and 22, to delete "forty-two shillings for each week" and substitute "six shillings for each day".

This amendment is to substitute for the 42/- a week the 6/- a day which was agreed to before.

Amendment agreed to.

Question put: "That Section 65, as amended, stand part of the Bill."

General Mulcahy

Will the Minister say what is the general import of the section?

Dr. Ryan

This is a very long section, but the total effect of that section is to put mental patients into line with other patients with regard to the means under which they are entitledto free treatment or partially free treatment and so on. In other words, it is dealing with the middle income group.

Dr. Esmonde

It is a very long section and there are one or two small points I would like to have clarified. First of all, does mental treatment come under specialist services?

Dr. Ryan

No, it will come in in the ordinary way with hospital or institutional treatment.

Dr. Esmonde

Most mental treatment—90 per cent. of it—is carried out as institutional treatment. Therefore, I take it that the middle income group are free for mental institutional treatment.

Dr. Ryan

The middle income group person in a hospital can be charged up to £2 2s. a week. The same would apply here.

Dr. Esmonde

In the majority of institutions, I take it that for the middle income group the specialist services are free. Are specialists not free to the middle income group in the majority of institutions, unless specially stated?

Dr. Ryan

Specialists are, but maintenance charges are not.

Dr. Esmonde

Surely the Minister will agree that mental service is a specialist treatment?

Dr. Ryan

Mental specialist, yes; but maintenance, no.

Dr. Esmonde

There is no charge in the institution?

Dr. Ryan

If a person goes to a mental clinic, that might be regarded as a specialist charge; that would be free. If a person goes into a mental hospital, the maintenance charge would not necessarily be free. If he is in the middle income group, the maximum he can be charged is £2 2s. a week.

Dr. Esmonde

I understand. It introduces an interesting point. Theposition now would be that in the lower income group or middle income group any doctor attending a person may find it exceedingly difficult to draw the border line as to whether a person should be committed to an institution or not. The Minister, being a professional colleague, knows that these mental cases present one of the greatest difficulties for doctors to decide. I take it—and it is a good thing if it is so—that in the lower income or middle income groups, if the patient is a person about whose mental capacity the doctor has doubts and is unable to decide, and if he wishes to get a further opinion on it, he is entitled to get the services of a specialist under this provision.

Dr. Ryan

That depends on the circumstances. The private person who goes to a mental specialist would not necessarily get that free. That is a case that would be regarded as coming more or less under the family doctor system. If, however, there were a mental clinic provided by the local authority, I think it would be regarded as a specialist service, and therefore it would be free.

Dr. Esmonde

The Minister will excuse me for pressing the point. It is one that it is very difficult to deal with. It would seem to me reasonable to suggest that if a general practitioner attending a person about whose mental capacity there is any doubt, there is such a thing as a mental specialist— there are many such mental specialists in the country, as there are in every country—and in such a case would the Minister agree that that doctor is entitled to transmit that patient to the mental specialist? The Minister mentions a mental clinic. I am not very clear as to what the clinic is, except that in our own county mental institutions on certain days of the week a mental specialist attends to see patients who may be sent to him. I take it it is possible to send anyone there without necessarily a fee being charged.

The idea of these specialist services is that one would give to a patient the best specialist service available. If adoctor feels that he would like to send his patient, about whose mental capacity he is in doubt, to a first-class specialist, to a big centre—Dublin, Cork, Limerick or somewhere else—is that covered by the Bill or not? It seems to me that there is some doubt about that and I would like it clarified.

Dr. Ryan

As soon as a specialist service is arranged by the local authority, it will be free; but if the family doctor himself, at the moment or even when this Bill is through, says: "I would like you to be sent to a mental specialist," and if he arranges that, it would not necessarily be free. If the local authority had provided a specialist service, then it would be free. Take, for instance, the case of orthopaedics. There is an orthopaedic specialist visiting various centres from time to time at present, and as it is an arranged specialist service it would be free.

Dr. Esmonde

The Minister means a service in the particular area concerned?

Dr. Ryan

Yes.

Dr. Esmonde

For a particular type of specialist treatment?

Dr. Ryan

Yes.

Dr. Esmonde

May I ask is it intended to arrange a mental specialist service of that kind? I am not suggesting that the Minister should arrange one in every health area.

Dr. Ryan

A number of local authorities have already arranged mental clinics in their own areas. That will be extended as time goes on, so the Deputy may take it there will be a specialist mental service.

Dr. Esmonde

At the present moment there is no change, it remains the status quo? The Minister is speaking only about the future?

Dr. Ryan

Yes.

General Mulcahy

Does what the Minister said mean that in the case of a specialist service a person will notbe in a position to take the specialist of his choice, in mental cases?

Dr. Ryan

I do not think so. I am not sure.

General Mulcahy

Would the Minister say, with reference to the general scheme of specialists, whether a person in the middle income group, outside institutional treatment, who is looking for specialist treatment, will only be provided with free specialist services where the local authority has provided specialist services of that particular kind; and even where specialist services of that particular kind have been provided, are we to take it that the patient will not be able to get the specialist of his choice but will have to go to the person with whom the local authority has the contract?

Dr. Ryan

Looking back on the Bill, there are only two choices provided— one is in the case of maternity, where the patient has choice of doctor; and the other is where the patient can have his choice of hospital. We know, of course, that a patient in choosing the hospital very often chooses it on account of the specialist who is there. To that extent, there is a choice of specialist. Apart from that, there would not necessarily be a choice of specialist.

It may happen as time goes on that when the services are fully developed, there would be more than one specialist in the area and to that extent there would be a choice of specialist; but there is no obligation on the local authority, and no undertaking on its part, to give such a choice.

Dr. Esmonde

The position really is that a local authority doctor may sanction the transmission of a patient free to a medical specialist outside his own area? He has the power to do so?

Dr. Ryan

He would have the power, but it is not mandatory on him to use it.

Question put and agreed to.

SECTION 66.

Mr. MacBride

I move amendment No. 86:—

After Section 66 to add a new section as follows:—

The provisions of the Public Authorities Protection Act, 1893, shall not apply to any action brought by any person for damages for breach of duty and/or negligence against a health authority (or officer, servant or agent thereof) in respect of any act of omission arising out of, or incidental to, the provision of any service, treatment or examination made available by virtue of the provisions of this Act and of the Health Act, 1947.

Can the Minister accept this amendment? Its purpose is to ensure that persons who receive treatment under the Act will not be precluded from their ordinary remedies in the case of negligence or a breach of duty.

Dr. Ryan

I do not think it would be appropriate to accept it under this Bill. The Deputy is aware that a Bill was brought in by Deputy Dillon and the Minister for Justice undertook to introduce a Bill himself. It would be much more appropriate to deal with it then. It will probably be covered there, in any case.

Mr. MacBride

My recollection of the discussion on that occasion is that the Minister for Justice was not prepared to go the whole way.

Dr. Ryan

Maybe not as far as the Deputy would like, but a good bit of the way.

Mr. MacBride

I think he would extend the period from six months to 12 months. The position at the moment is that if a patient has a right to an action for negligence or breach of duty against a doctor or a hospital, normally he can take his action within six years.

In the case of a local authority, he must take his action within six months or he is debarred of his right of action completely. Very often, the actual injury only becomes apparent long after the lapse of six months. May I take this as an example? I hope the medical members of the House will not make an issue of it. Suppose there is an operation and that something issewn up inside the patient—something that may not be felt for six or 12 months afterwards. Without a section of this kind in the Bill, the position would be that, in the case of a private hospital or a voluntary hospital, the patient would have full right of action but in the case of the local authority hospital the patient would be deprived of his right. The same applies if, say, somebody is being carried in an ambulance and the ambulance crashes on the way to the hospital, or something like that, and the patient is injured. I think that it is a section that the Minister could easily accept and that, from his own point of view, it would be quite desirable. It would help to keep the staffs in the public hospitals on the look-out for trouble.

I do not know what the Minister for Justice intends to do with regard to Deputy Dillon's Bill. I think he was not prepared to go as far as we wanted him to go, that is, to put the local authorities on the same footing as any other citizen in the State. In this case, I think he should.

Dr. Ryan

The thing that impressed me was that the theory in the Bill was that a person should know in six months whether he would take an action. That was considered from there, and the Minister for Justice said that he would see about extending the period. I am not sure what he has in mind. For the ordinary case, a year or two years would appear to be quite reasonable.

Deputy MacBride took, as an example, an operation and said that it might be more than a year before the patient would discover that it was a bad operation. I see something in that point, all right. I think the Deputy might perhaps withdraw the amendment now and re-introduce it on the Report Stage. By that time I should be in a position to inform him whether or not it will be covered by the Minister for Justice in his Bill.

Mr. MacBride

I agree with that. I know that there will be tremendous opposition to the placing of public authorities on the same footing as ordinary persons, but I would urge the Minister that, in the case of health services,he should certainly place them on the same footing. Otherwise, we should have a position of inequality in regard to health. Take, for instance, insurance. You will find that the voluntary hospital will have to pay a much higher insurance premium than a public authority hospital, and so forth. Therefore, I think it is desirable to aim at putting the public hospitals on the same footing from that point of view as the voluntary hospitals—and that will apply to all the other services provided.

Dr. Ryan

Not on the same footing but to remove any cause of——

Mr. MacBride

Disparity. Will the Minister agree to that?

Dr. Ryan

I will have it considered, yes.

Amendment, by leave, withdrawn.

Amendment No. 87 not moved.

Section agreed to.

SCHEDULE.

Dr. Ryan

I move amendment No. 88:—

In the third column to delete "Sub-section (4) of Section 44" and substitute "Sub-sections (4) and (8) of Section 44".

This amendment is consequential on an earlier amendment to Section 34.

Amendment agreed to.

Schedule, as amended, agreed to.

Title agreed to.

Bill reported with amendments.

An Ceann Comhairle

When is it proposed to take the Report Stage?

Dr. Ryan

Next Tuesday week.

Mr. MacBride

Does the Minister propose to introduce a number of amendments to the Bill on the Report Stage?

Dr. Ryan

I was looking through them yesterday. I think I have about eight or ten amendments. Only oneamendment was not mentioned on the Committee Stage. It is an amendment that I should have mentioned on the section dealing with schools. It is an amendment to give the teaching authorities some rights to have clinics in local authority hospitals.

Mr. MacBride

Perhaps the Minister would circulate his amendments as early as possible so as to give us an opportunity of examining them?

Dr. Ryan

The safest thing would be for the Deputy to circulate his own amendments in case I do not cover them.

Mr. MacBride

It would simplify matters a lot if the Minister did cover them.