Vol. 154 No. 2
I move amendment No. 1:—
In line 42, in the definition of "spectacles", before "and" to insert ", contact lenses".
The purpose of this amendment is to repair an omission in the section by including the words "contact lenses" in the definition of spectacles. I think No. 2 is a similar amendment.
Yes. This amendment meets No. 2, I take it.
I move amendment No. 3:—
In sub-section (1), paragraph (a), line 35, to delete "four" and substitute "five".
I do not wish to press this amendment. I put it down for the purpose of getting some definite information in relation to it. The section states that the Minister will appoint "four persons each of whom is a registered medical practitioner." I would withdraw my amendment, if I could be satisfied that these medical practitioners would be private practitioners in private practice, or would be recommended to the Minister by some medical authority outside. Would the Minister like to give me that information or that guarantee?
I am afraid I cannot say anything about that at the moment. The position, I hope, would be that the medical practitioners on the board would be representative of medical practitioners in practice.
I know, but can the Minister not definitely say that?
No. I can only express the hope.
Surely it is the Minister who will appoint those practitioners.
Yes, but I hope it will be possible for me to appoint——
Could the Minister give any reason why it would not be possible? Would the Minister give me a guarantee that at least three of these practitioners would be private practitioners?
I can only tell the Deputy my position in regard to it. I hope I will be able to appoint medical practitioners in ordinary practice.
Quite frankly, I do not see why the Minister could not do it. Will the Minister not indicate why he could not do it?
I cannot appoint people, if they will not act.
I am sure they would be prepared to act. Subject to their being prepared to act, will the Minister appoint four practitioners outside?
I can only say what my intentions would be. My intentions would be to appoint four medical practitioners in ordinary practice.
I am afraid I cannot understand the Minister. The Minister must appoint them according to the Bill. It is not very satisfactory.
Amendment No. 8 is cognate with that, I take it.
I move amendment No. 4:—
In sub-section (1), paragraph (b), line 37, before "and" to insert "and at least one of them is a dispensing optician".
There is not really very much to this. Sub-section (1) (b) of the section reads that the Minister shall appoint:
"six persons, each of whom is an optician and at least one of them is also a pharmaceutical chemist or dispensing chemist and druggist."
When I put down this amendment, the situation was somewhat different. There was only one register of opticians in this country, that is, ophthalmic opticians who existed as a body and were a sort of company more than anything else. I put down this amendment for the purpose of including an optician. My intention was to ensure that you would not have a board of 11 with six ophthalmic opticians, four medical men and one outside person, because I felt that would be giving overall powers to the ophthalmic opticians, as against the ordinary chemists or dispensing opticians.
Since then, many things have happened. What I am asking in this amendment is that one of the appointees will be a dispensing optician. By that, I mean an optician who is dispensing only and is not an ophthalmic optician as well. This amendment is really gathered up into another amendment which is coming later on. It is not giving very much and perhaps the Minister would accept it.
I wonder might I make a suggestion to the House. There is this amendment No. 4 and subsequent amendments which also deal with the construction of the board. I wonder if it would be possible to have them discussed together?
I was going to suggest, when we came to No. 10, that they all be discussed on No. 13.
They run from No. 4 to No. 13.
We could discuss them on No. 13.
They are practically all about the same thing.
Could we not reverse the procedure and discuss them all on No. 4?
Yes.
That is the best way.
Am I to go on then?
Yes, if the Deputy wishes to speak on any of the amendments which deal with the personnel of the board.
The object of any amendment that I put down has been to ensure that the opticians would get as fair a chance as the ophthalmic opticians. I do not wish the board to be controlled entirely by opticians. When the Bill was introduced, we had a register of ophthalmic opticians which was really a company. They were issuing licences to their members to practise or to prescribe glasses, but in most cases they were people who were confined to prescribing glasses alone. In a great many cases, they were chemists and there were also chemists who were ophthalmic opticians. You might have a board appointed which would consist entirely of ophthalmic opticians and it is to avoid that that I have put down these two amendments. I want to ensure that in these two registers they would be mostly exclusive to both sides; that you could not have a member of the ophthalmic opticians who is a member of the opticians' register as well. Under the Bill as it was introduced, I envisaged the fact that the board might consist of people who were confined entirely to the ophthalmic opticians, to the exclusion of the opticians.
I notice that the Minister has put down two amendments including amendment No. 13, which more or less means much the same as my own amendments. They more or less cover the same question, but, instead of making the provisions statutory, they simply provide for rules made for the purpose. I should like to suggest to the Minister that there are three angles to the ophthalmic treatment of people. You have the ophthalmic opticians and then you have a society known as the Dispensing Opticians of Ireland. I am informed that, while they have not yet obtained international recognition, they will shortly do so. As well as those, there are the ophthalmic surgeons. I should like to see an equal distribution of seats on the board between these three bodies. By doing so, there will be a safe guarantee that the eyes of the people will be properly looked after.
I should like to give the Minister some figures with regard to these three bodies. The Dispensing Opticians of Ireland have a strength of 178. There are 220 of these people altogether, but of these 178 belong to the Dispensing Opticians. There are 149 ophthalmic opticians and there are 133 ophthalmic surgeons. I ask that two of the members of the proposed board should be dispensing opticians and that four of them should be medical practitioners who are outside the confines of the Custom House. The remainder can be ophthalmic opticians. That is all I am asking the Minister for.
I do not agree with the Minister's amendment, because the danger we are trying to guard against is that one group or the other will get the upper hand and if one group got the upper hand, it could make rules to exclude the others. It should be statutory that both of them should get representation and that is why I am in favour of giving equal representations to the dispensing opticians and to the ophthalmic opticians. Unless there are some very good reasons to the contrary, I would very strongly press for an amendment of that kind.
The other amendment I have put down is rather contrary to that put down by Dr. Esmonde. He favours putting five medical practitioners on the board, instead of four, and my amendment is to the effect that there should be at least four. A time might well come, when this board begins to work smoothly, when it would be a good idea to let the ophthalmic opticians and the dispensing opticians look after the business themselves and it would not be necessary to have any medical representation. I do not mind whether the House agrees with that suggestion or not. The one amendment I am really pressing is that we should make it statutory to give representation to the two interests and not leave the matter to rules to be made by the board itself.
I put down an amendment to try to effect a necessary balance between the two groups who appear to have somewhat divergent interests. The form of my amendment is not anything sacred, because, as long as the principle is carried one way or another, I would be inclined to make it an elastic provision. I can see the wisdom of what Deputy Dr. Ryan has said with regard to having definite mandatory statutory requirements. I can also see the desirability of leaving it so that, without further legislation, with changed circumstances, the board could, in all fairness, give fair representation having regard to the number in each section.
The difficulty I do see is that any of these amendments will not be of any effectiveness to maintain a balance unless you couple with them — and this is the only part of my own amendment to which I have any real devotion — a requirement that the representatives of each section be elected by that section only. As I read the Act at present, and leaving out an amendment which Deputy Dr. Esmonde has to a later section with regard to dividing the register, the position is that the board shall be elected by the entire combined register consisting of the register of ophthalmic opticians and the register of dispensing opticians. If that happens — it does not matter what statutory requirements there may be with regard to actual representation on the board — if one group greatly outnumbers the other, on the whole picture the position will be that persons who nominally are, say, ophthalmic opticians but, in fact, do not really represent their interests or are not active in representing their interests, will be elected. If the dispensing opticians are in control numerically, vice versa, the other situation arises. In other words, if you are going to put in any amendment — I think the Minister's is probably good in as far as it is elastic —providing for a fixed number of each class of optician on the board, it is absolutely essential to tag on to that a provision that each class of optician be elected by his own members, in other words, by the persons who are in the same occupation as himself.
Therefore, I would not be so concerned about the form of amendment. I think any of those suggested would probably meet the case as long as there is tied on to that this provision that dispensing opticians will be elected out of the panel of dispensing opticians only and ophthalmic opticians will be elected out of the panel of ophthalmic opticians only. If that is not tied on to whatever amendments are put in, I do not think the amendments will be effective to keep the balance.
I am afraid I do not agree with Deputy Finlay. There are two amendments — Nos. 11 and 12. One of them is Deputy Dr. Ryan's and the other is my own. Amendment No. 11 reads:—
"In sub-section (1), line 11, before ‘shall' to insert ‘and at least two of whom are registered dispensing opticians, one of the latter to be also a pharmaceutical chemist or dispensing chemist and druggist'."
Amendment No. 12 reads:—
"In sub-section (1), line 11, before ‘shall' to insert ‘at least two of whom shall be ophthalmic opticians and at least two of whom shall be dispensing opticians."
That confines it to "at least". Therefore, you are perfectly safe on that. If there is a majority of dispensing opticians over the ophthalmic opticians, is it unlawful or wrong for them to have greater representation? I do not think so. It is the law of average, the law of democracy. Minorities are safeguarded by the words "at least". It is a great safeguard that we can introduce in this House. I agree with Deputy Dr. Ryan. The Minister's amendment seems to me to meet the case but it ought to be statutory. Rules may be played about with. If we are introducing, legislation for a definite purpose, let us have it statutory and have done with it rather than have rules. If the Minister does that we will all be in full agreement here.
I must say I was getting a bit cold about my own amendment and I am finding support for it now. I am conscious, as I think most Deputies are conscious now, that there are divergent and, perhaps, conflicting interests in the subject-matter of this Bill. There has been a view expressed that the board might be used by one particular interest to the exclusion of others. I do not know what value to attach to the suggestion but there are certain things which impress me.
First of all, I am impressed by the fact that this legislation, which did not originate when I became Minister for Health, but which was in principle the subject of a decision taken by Deputy Dr. Ryan, as Minister, I think it is fair to say, represents the efforts over a great number of years of the ophthalmic opticians. It was they who were seeking some form of legislation which would deal with what they felt to be abuses in relation to sight-testing, the sale of spectacles and a variety of matters of that kind. Therefore, the first fact that impresses me is that this was intended to be a Bill to deal with a case put forward by the ophthalmic opticians and to that extent I feel that, if there is to be any preference given on the board to non-medical interests, such preference should be given to the ophthalmic opticians because it is the Bill which they got as a result of their continued representation over a number of years. I only mention that generally as a matter which impresses me.
I am impressed by the danger that a board completely dominated by ophthalmic opticians might, although the matter could then be dealt with. be tempted to use the legislation and the board to the detriment of other interests, and I think that that should be dealt with.
Generally, my concern is to ensure that the board will be fairly representative of all sections but that any one section will not be able to use it for its own purposes. I have felt that the best way of doing that was, in relation to the election rules, to make it obligatory on the board to provide in their rules for representation for each interest amongst the opticians. I put down an amendment to that effect —amendment No. 13 — and if the Committee Stage had taken place prior to Christmas I probably would have moved that amendment formally but, turning the matter over in my mind since and listening to what has been urged here by Deputy Dr. Ryan and Deputy Dr. Esmonde, I feel that there is some merit in the suggestion that whatever provision should be made should be written into the statute itself.
Accordingly, I make the suggestion to the House, in relation to the different amendments, that perhaps the best way of dealing with the problem — feeling, as I do, that preference should be given to the ophthalmic opticians, but at the same time that steps should be taken to ensure that they do not control the board — is that an amendment could be moved on Report Stage, providing that, of the six optician members on the board, at least one must be a dispensing optician. I should also provide in such an amendment that power would be given to the Minister to vary by Order the respective members of subsequent boards.
My reason for suggesting this matter of varying by order, which involves a certain amount of ministerial control, which frankly I think is undesirable, is to endeavour to have the board set up properly at the beginning, and operating normally later, and I think if such a power is given to the Minister to watch the development of elections to subsequent boards and if, in fact, there is a ganging-up taking place which would destroy the effect of the board proposed, then it will be an easy matter to alter the legislation to redress that. I suggest to the Deputies who put down these amendments to agree with this course, that is that an amendment on the lines I have suggested should be introduced on the Report Stage. The amendment would provide that, of the six optician members of the board, at least one must be a dispensing optician, and I would reserve to the Minister for Health the power by Order to vary the respective members, as he feels proper.
With regard to the medical representation on the board, my view on that is that it is absolutely essential, if this board is to function properly — if it is to lay down adequate standards and if it is to deal with the abuses with which the Bill seeks to deal — that there should be available to it proper qualified medical advice, and I think a board without such advice and without the membership of medical practitioners would cease to be in any way effective.
In the first amendment he moved, Deputy Esmonde asked for a guarantee from me that medical practitioners whom I would appoint or who might be appointed at subsequent elections would be from outside the Custom House. I was rather surprised he asked me for such a guarantee. I could not give it because I had been told in discussions with the I.M.A. that they felt it would be doubtful if they would agree to act on this board. This is a free country; everybody is entitled to act within the law according to his opinion, and I do not blame the members of the I.M.A., if they wish to adopt that attitude. I am concerned to see that this board will have available to it medical advice. It might be regrettable that the I.M.A. considers it doubtful that they would co-operate and accordingly it may become necessary to appoint to the board doctors available to my Department.
I hope that Deputies will agree with my suggestion regarding the proposed amendment for the Report Stage. The proposal would be then that there would be four medical practitioners, five ophthalmic opticians, one dispensing optician and the eleventh member of the board would be appointed by the Minister. If that does not work out, it will then be open to the Minister, under the reservation in the section, to alter the proportion of the membership. I think it is unlikely that in a board so constituted any particular interest would have a dominating influence. Perhaps the three interests concerned would agree to work the legislation in the common interest of setting up proper standards and dealing with well-known abuses.
Might I ask the Minister one question? Could he give me an indication as to who this one other person would be?
I am afraid I could not at the moment. He would be a person appointed by the Minister.
Has the Minister no ideas at all?
It would be of great benefit to appoint a neutral and a sensible person.
It is good to hear that he is to be a neutral person.
I hope so.
I agree with the Minister's suggestion about the advent of this amendment, but I would like to suggest that he would accept my amendment which, I think, is No. 12. I should feel constrained to press that amendment on Report Stage. As regards Deputy Esmonde's last question, of course the Minister cannot be expected to say beforehand what he is going to do at his own discretion later on.
The Minister has mentioned the purpose of this proposed Report Stage amendment, and I take it he intends to leave the position still that it is merely a minimum — that he is going to leave to the general register of opticians as to the others to be elected.
That is so.
Then I intend to withdraw amendment No. 10.
With regard to the Minister's statements about doctors and the possibility of their not acting, might I ask the Minister again: if four private doctors are prepared to act on the board, will the Minister be satisfied to appoint these, instead of doctors from the Custom House? I take it from the statement he has just made his reason for going inside the Custom House for the practitioner members is the fact that he could not get four outside doctors to act. If there are four outside doctors who would be prepared to act, will he appoint those?
I should be very pleased to see that.
And very pleased to appoint them?
He will consider it.
I do not think the Minister has been over-generous to the opticians. The suggested amendment on the Report Stage would provide that there would be five ophthalmic opticians and one dispensing optician.
At least one dispensing optician.
The Minister has said that the Bill was sought by the ophthalmic opticians and in the amendment he proposes there shall be five ophthalmic opticians, one dispensing optician, four medical practitioners and one outside person.
I am afraid I did not express it too happily. What I intended was that, of the six opticians, at least one would be a dispensing optician.
In my amendments, I seek two dispensing opticians and I think it is a fair request, in view of the figures I have given the Minister. There are 178 in the organisation consisting of dispensing opticians in Ireland and there are 149 ophthalmic opticians. Would the Minister bear in mind that dispensing opticians do not suggest for a moment that they can prescribe spectacles? They are purely concerned with the dispensing and sale of the spectacles. The ophthalmic optician prescribes spectacles but he is also in the same category as the other inasmuch as he is dispensing and selling spectacles as well.
Allowing all that the ophthalmic opticians have sought out of this Bill, I think they would be getting a very fair deal if they were getting four. If the amendment is accepted for at least two, could not the Minister accept that?
Can the balance not be decided by those who vote? At least one will be a dispensing optician. If they have all these members qualified for registration, it would be open to them to elect a second or a third. If all these members exist, maybe the Minister will have to make an Order to preserve the position of ophthalmic opticians.
If this amendment goes through and is made a statutory Order, the ophthalmic opticians——
I did not express myself quite well. I intended to say that, of the six optician members of the board, I would propose to provide that at least one would be a dispensing optician. That does not mean that a second dispensing optician might not be elected but certainly at least one must be a dispensing optician.
I understand that perfectly well. It seems to me, however, that one is not a very generous measure: why not two? There are six members — whether they are ophthalmic opticians or opticians pure and simple. You have six seats allocated to them on the board. Surely it is not too much to ask for two seats?
If they are entitled to two, they will elect two. If they cannot elect two, they are not entitled to them.
The Minister is establishing the board, according to the Bill as I read it.
The first board.
Yes, that is what we are dealing with now.
We are dealing with the election of members of the board.
The Minister is establishing the board.
The first one. These are the elected members of the board. The first board will be appointed and the subsequent board will be elected.
I am pressing for this. This board starts as an established board. Whether it is an established board or an elected board, I want it on the statute that there will be a minimum of two opticians. It is obvious that to have that in the Act is a safeguard for the ophthalmic opticians. If it is open for ordinary election afterwards, it is very likely that there will be more opticians than ophthalmic opticians, and the ophthalmic opticians themselves will suffer. I think it is in their interests to have this legislation. It is in the interest of the ophthalmic opticians and of the opticians as well. It would be a fair balance of power. You will then have four doctors, four ophthalmic opticians, two opticians and one outside person on the board. I do not see what could be fairer than that.
Would the Deputy agree to withdraw his amendment if I undertake to examine the matter in relation to an amendment on the Report Stage?
Certainly. I am perfectly willing to meet the Minister. The Minister has offered us to provide on the Report Stage for one dispensing optician. I do not feel satisfied with that. I do not feel it an adequate safeguard in view of the figures I have given — 178, 149 and 143. It does not seem to me to meet the case. The Minister argued that this Bill was sought for by the opthalmic opticians but there is no reason why they should be given an overall power over everybody else.
I will consider the matter.
I do not intend to move amendment No. 14. That amendment would be tied up with amendment No. 13. It is a casual vacancy.
How is a casual vacancy filled?
That, also, would be subject to consideration on the Report Stage.
I move amendment No. 15:—
To add to the section the following new sub-section:—
(2) The Order referred to in sub-section (1) of this section shall give the reason for the removal of a member and a copy of the Order shall be laid on the Table of both Houses of the Oireachtas.
I do not think that what I have in mind needs very much explanation. The section merely says: "The Minister may at any time by Order remove any member of the board from office." My amendment is to the effect that the Minister must state a good reason for the removal. I think that, in all fairness, that should be done.
I have no very strong views about this. The only thing I feel that should be said is that it might be undesirable to include in an Order of the nature referred to the reason for the removal of the person. For example, it might arise that a member of the board was found to be incapable of carrying out his duties because of mental illness or some other matter of that kind. I feel that to make it a statutory obligation to place an Order containing these reasons, without any discretion, before the House might be undesirable. To meet the Deputy's point, I suggest that I would accept an amendment designed to ensure that an Order removing a member would have to be placed before the House. Then, if it were questioned, it would be open to the Minister to give his reason or to let it be known in other ways, if it were not desirable——
That would be prior notice to the Order?
The Order must be placed on the Table of both Houses.
That would be all right.
I will move an amendment to that effect on the Report Stage.
I move amendment No. 16:—
Before sub-section (2), to insert a new sub-section as follows:—
(2) The board, as soon as may be after making any rules, shall cause notice to that effect to be published in two or more daily newspapers circulating in the State and shall make a copy of the rules available at a reasonable price to any person who requests one.
Section 18 of the Bill gives the board power to make rules subject to the approval of the Minister. There is provision in the Bill for the requirement of ministerial approval to rules generally or of a particular class to be rescinded by Order of the Government. The rules which the board will make will cover a great variety of matters and will include rules in relation to registering, removal from the register, election of members to the board, provision of courses of training and examination, prescribing and dispensing of spectacles and the control of advertising. These rules will intimately affect all those persons who are at present engaged in prescribing and dispensing spectacles and in other ways in which they are at present unrestricted. It is desirable that these people should have an opportunity of considering these rules before they become law. This object, I hope, will be achieved by this amendment.
When the rules have been made, the board must publish notice to that effect in the daily newspapers. The rules will not, in accordance with sub-section (2) of Section 18, have effect until they are approved by the Minister, and this time-lag will give an opportunity to examine any representations regarding rules which may be made by persons affected. I think on those grounds the amendment is desirable, to make sure that those likely to be affected will have notice that will enable them to make any representations they may wish to make concerning the proposed rules.
I move amendment No. 17:—
To add to the section the following new sub-section:—
A person who has been registered in the register of dispensing opticians under Part IV of this Act shall not be eligible for registration in the register of ophthalmic opticians.
I have two amendments down, but they both really mean the same thing, amendment No. 17 to Section 23 and amendment No. 28 to Section 31.
Amendment No. 28 is cognate.
Since they both mean the same thing, I presume I may discuss them together. It seems there are to be two registers and the amendment implies that these would be mutually exclusive; in other words, a member cannot be a member of both registers and an ophthalmic optician cannot be registered on the dispensing opticians' register, and contrariwise. Will the Minister accept that, otherwise you will have ophthalmic opticians permitted to prescribe, dispense and sell, while the dispensing opticians' register would cover only dispensing and selling? The amendment would operate in the interests of each of them. Is the Minister prepared to accept it?
I would urge the Minister to accept this amendment, because I think — the Minister will be able to tell us, perhaps, whether or not I am right —as the Bill stands, it will be possible for a man to be on a register twice, both as an ophthalmic optician and as a dispensing optician, and that would be very undesirable. I think that Deputy Esmonde's amendment should be embodied in the Bill somehow or other.
I can understand the purpose of the amendment, but there are a few things I should like to suggest. While it is true that a person could be on both registers, in effect, it means that an ophthalmic optician could be on both registers, on his own register as an ophthalmic optician and on the dispensing opticians' register as a dispensing optician, while the dispensing optician could be on only one register. If amendment No. 17 were passed, difficulty number one would be that a dispensing optician could never become an ophthalmic optician because he could not be registered, even assuming he got whatever additional or other qualifications might be needed.
Excuse me, he could. He could resign from the one to go on the other.
The Deputy's amendment speaks of a person who "has been registered"——
No, a person who is registered.
But the amendment states: "A person who has been registered in the register of dispensing opticians shall not be eligible for registration in the register of ophthalmic opticians."
I intended it to read, "who is registered".
Perhaps if I put it this way — if in the composition or election of the board, if the register, as Deputy Finlay proposed, elected the appropriate membership to the board, one could understand an ophthalmic optician entitled to be registered on his own register also registering on the register of dispensing opticians, but that is an "if" and that is the only "if" in it. If that "if" does not exist, and it does not as at present proposed, there is no purpose in an ophthalmic optician also registering on the register of dispensing opticians, because, apart from anything else, he has to pay two fees, if he does so. He has to pay a fee for registering on the dispensing opticians' register, as well as on his own. Frankly, while I can understand the purpose of the amendment, I do not see what it is supposed to achieve. A person on the ophthalmic opticians' register is entitled, because of his registration, to prescribe and dispense and he has no added advantage in going on to the dispensing register, except if, by doing so, or by being on that register, he was entitled to vote for representation on that register alone.
That was the very point behind my amendment.
I think the amendment would be desirable, if the register were electing its own membership to the board, but that is not so. The membership is thrown open to both registers.
If the Minister would somehow or other ensure that we would have the principle of one man, one vote, that would be sufficient.
I shall certainly look into that. Would that meet Deputy Esmonde's wishes?
Would the Minister not consider introducing an amendment himself on Report Stage? My wording has been a bit unfortunate in that it refers to a person who "has been registered." I look at it in this way, that we have 149 ophthalmic opticians and the majority of those are chemists. If they were allowed to register on both registers, they would have a greater voting power and this would give them a decided advantage. The Minister in introducing an amendment on Report. Stage could re-word my amendment so that it would convey what I meant, that a person may be on only one register and may vote only on one register.
I shall examine it and do it on the basis of one man, one vote.
If the Minister is bringing in an amendment providing that at least one member of the board shall be a registered dispensing optician, then, again, we will run into the difficulty that, for the purposes of an election, even though a man has only one vote, an ophthalmic optician can get himself registered as a dispensing optician and can bring himself as a dispensing optician within the statutory requirements. In other words, it would go further than voting — it would mean that you cannot be on both for voting and candidate purposes.
That is quite right.
I move amendment No. 18:—
In line 26, before "and" where it secondly occurs, to insert "of training".
This is a drafting amendment.
I move amendment No. 20:—
In sub-section (2), line 47, to delete "seven" and substitute "ten".
Amendment No. 32 on Section 34 deals with a similar matter. The purpose behind the suggestion to increase the statutory period from seven years to ten is to satisfy the fear in the minds of bona fide opticians. We had an infiltration from across the Channel some years ago when similar legislation was mooted there, and the period suggested in the Bill would not be a sufficient span to eliminate those quacks infiltrating here to avoid similar legislation across the Channel. That is the purpose behind the two amendments, if we can take them together. One refers to dispensers and the other to ophthalmic opticians.
I think Deputy Ryan has a contrary amendment — amendment No. 22.
I was inclined to shorten the span. I did not advert to the fact that there was any danger as outlined by Deputy Brennan. I did think that, in some of those cases, five years was, maybe, a bit severe, and I put down my amendment, for discussion really, to see what the reasons were for the Minister's five years.
Seven.
Seven years, yes.
It is seven under Section 26, sub-section (2). Deputy Ryan's amendment is to sub-section (3), where it is five years.
Yes; it is five years all right.
Yes. The position about this is — dealing with Deputy Brennan's amendment first — that the ophthalmic opticians in their discussions with my Department felt that the period of practice for persons to be registered in the ophthalmic opticians' register should be a minimum of ten years. It was felt that that was unduly long, and eventually they agreed that the period might be reduced to seven years, and seven years is in the Bill. On the Second Stage a number of Deputies felt that it was far too long, and there was an amendment, not moved, by Deputy Maguire that the period should be reduced to a year. It is very hard, as Deputies will appreciate, to arrive at any fair period in a matter of this kind.
Frankly, I was extremely concerned lest legislation similar to this legislation should be passed before this through the British Parliament, because I felt that, if that took place, we would have an influx of quite undesirable persons dealing in matters of this kind. In fact, we are ahead of the British legislation, although I understand such legislation will be introduced, and we provided under sub-section (2) two safeguards. First of all, a person must be a citizen of the country. To be registered at all, he must be a citizen, and therefore in relation to the period, you are only considering, then, the practice by citizens, which, I think, removes one of Deputy Brennan's fears. You are not considering at all a person who comes in from outside, who is a non-citizen and has not been engaged in a bona fide practice here in this country. Considering the citizen who is able to show that his principal means of livelihood during the particular period has been the carrying on of business as an ophthalmic optician, the question is, then, whether seven years is or is not a fairly reasonable period. Frankly, I think it is. It is not as long as the ophthalmic opticians wanted. It is not so short as to dispose of the possibility of experience giving standing, and I think it is a fair in-between period. I would ask the Deputy to accept that.
I am sure the citizenship safeguard would meet the point which was held to be one requiring a safeguard, but I can also visualise the position where a registered company might obviate the Minister's proposals in cases where the majority of the members might be citizens. That might not be likely to arise, but there is a possibility that it could.
I do not think so.
I move amendment No. 22:—
In sub-section (3), line 6, to delete "five" and substitute "three".
There is a question of examination here, and this particular sub-section is designed to meet those who are not seven years in the business, but are, say, five years and prepared to stand examination.
No. It is intended to meet the case of those who cannot show that their principal means of livelihood has been the business of an ophthalmic optician.
I see. It is a matter of degree of occupation rather than time.
Yes.
I may have read it wrongly.
Yes. That is the idea.
The way I read it was that if a person was not a long time in the business, the matter was concerned with his standing and examination. However, the principle I have in mind is not so much altered by that, either. If the person must stand examination, then it appeared to me that it made very little difference, in principle, anyway, whether the term was three or five years. I put down this figure of three instead of five for that reason, but I am not pressing it by any means.
I have no views on the matter. I will accept the Deputy's amendment, if he is pressing it.
I should like to ask the Minister a question. In regard to the examination and the two years, does that mean that a person with three and a half years now and who waits until the end of the two years would qualify in that way or would he have to have five years after the passing of the Act?
The two years would be on the commencement of the register — two years from that.
If a person is three and a half years now, could he wait and qualify when the five years are up?
Five years on the establishment day.
That is right.
I think they are two different periods.
With the permission of the Ceann Comhairle, I should like to consider the matter further. I will withdraw the amendment and revive it on the Report Stage.
I move amendment No. 23:—
In sub-section (2), line 28, to add "and may, if he so desires, be represented by solicitor or by solicitor and counsel" after "him".
This amendment is to meet a point made to me that, on the investigation of any complaint against a person on the register, he should be entitled to be represented by a solicitor, or by a solicitor and counsel. I think that is reasonable.
I move amendment No. 24:—
In sub-section (3), to delete all words from and including "contravention" in line 31 and substitute "conviction under Section 45 of this Act".
The Minister has an amendment further down in connection with this particular clause. I must say that I do not like the way this clause runs. A person can be removed from the register of ophthalmic opticians. The same applies in this Bill in connection with the register of dispensary opticians. A person can be removed for contravening Section 45 of this Bill, "excluding a contravention in respect of which prosecution proceedings are instituted but are dismissed", but if proceedings were not taken, the person could be removed. That appears to me to be rather unfair. If proceedings are not taken, the person's name can be removed from the register and that is the end of it. I thought that was unfair and I put down an amendment which I am quite sure would not pass the draftsman, but I wanted to show in the amendment that I thought it was only fair that a contravention of Section 45 should be proved in court before the person's name could be removed.
May I say, first of all, in defence of the sub-section, that, under the sub-section, as proposed, a person can be removed for either a conviction under Section 45 or even where proceedings to convict do not take place? What that was intended to cover were facts which are not unusual in this country, where a person may have committed a flagrant breach of Section 45 and may have taken the mail boat, an Aer Lingus plane, to England or a train to the North, and it was not possible to proceed against him to conviction, when it was clearly established that he has committed a flagrant breach of the section and it is undesirable to have his name on the register. That is one class of case where there would not be a conviction, but where it is perfectly right and desirable that his name should be removed.
There may also be other circumstances on other grounds. It might be felt, perhaps, unfair or undesirable to proceed under Section 45 for a conviction, but that, nevertheless, the facts would bring about a conviction, if they were investigated in court. Again, it would be desirable to remove the person's name from the register. Those are the two reasons that occur to me in relation to the section why it would be unwise to tie it down merely to a conviction, because it may not be possible to prosecute or it may not be desirable to prosecute. In addition, of course, under the amendment, as proposed by Deputy Dr. Ryan, a conviction would have to be obtained at all times.
In fact, the next amendment, which is an amendment of mine to the sub-section, deals with the case where proceedings are, in fact, taken, but, by reason of some technicality, are dismissed because of that technicality— not dismissed on the merits, but dismissed because of lack of proof or something of that kind — but nevertheless, to all persons interested in the matter, it may be clearly established that an offence has been committed. Again, I think, that in those circumstances, if the register is to have the standard we should all like to see it have, it should be open to the board to remove from the register a person in those circumstances.
Arising out of the amendment and the Minister's own amendment which he has discussed himself, I should like very strongly to reconsider the form of the section as a general matter of principle. What you are doing, in fact, is creating, under Section 45, a number of offences that are contraventions of that section. You are providing by the Bill two separate forms of penalty for them. One is the ordinary penalty and the other, obviously the more powerful and significant penalty, is the removal of the man from the register.
If the section, as it stood, was passed, then the position would be that, in effect, a man would stand the possibility of being charged twice with the one offence. That is what it comes to. If the section, with the Minister's amendment, went in, then the position would be that the man could be charged in the courts with an offence under Section 45. The House should try and think of the position of a person defending him. He has a good technical point which is a good point in a criminal case, and good merits, but good merits are only as good as the district justice thinks they are. What is he to do? Is he to face a trial the next month before the board or throw away his technical point which he may have as a matter of criminal law? He may have a good defence in general law. Is he to throw that away in order to get a dismissal on the merits?
I think this would be a very dangerous precedent. I can see the Minister's point about the person who skips and whose name must be taken off the register, but that can be met by an amendment. In any case, provided the board has, after reasonable efforts, failed to serve the man with a summons under Section 45 within, say, three months, they may proceed against him for a contravention of that section. I would, however, ask the Minister to consider very strongly the desirability, where you create a criminal offence and where you make the commission of that offence a ground for the removal of a man from a register, of saying that the only way in which you can proceed to removal is by conviction in the open courts.
It is, of course, very difficult to envisage any circumstances which would justify the section as it stands, except one, namely, that the standard of proof before the board was less strict than the standard of proof required in court. The only possible reason which could justify sub-section (3) is if, in fact, it was easier for the board to convict than it would be for the court. If one examines it in that light, it becomes immediately apparent that this provision is an infringement of the ordinary right of a man charged with a criminal offence. I can see the Minister's difficulty with regard to people who have gone away. I think that can be met by a special section or by an addition to this sub-section. I cannot honestly envisage circumstances under which it would not be possible for the board to secure conviction in the courts, but it is possible for them to be satisfied, with sufficient proof, on their own deliberation that an offence has been committed.
I am inclined to agree with the Minister in this case. Section 28 really ties in with Section 45. The difference between the Minister and Deputy Dr. Ryan is that the Minister permits the board, for contravention of the regulations under Section 45, to remove from office or to remove from the register. Deputy Finlay holds that the position should be met by trial in the court. Now Section 45 says:—
"(1) A registered optician shall not...
(a) treat any disease of the eye, or
(b) prescribe or administer any drug for the purpose of paralysing ...the eye."
I want the House to consider this argument: supposing an optician is treating a patient and doing that patient definite harm, are we to wait to remove that person from the register until he possibly blinds the patient or has his case tried in the courts? The case may not come off in court for two or three months.
Is the Deputy discussing amendment No. 24?
I am dealing with amendment No. 24. I am arguing that it would be extremely dangerous to wait for a conviction before the board has the right to remove a person from the register, if that person is a danger to the public at large.
I agree to a great extent with what Deputy Finlay has said. I see difficulties in this section and I think it would possibly be preferable that we should recast the entire section. I would much prefer to see prosecutions being brought under this Act by the Department rather than the board. That would leave the position that the board's hands would not be tied one way or the other by the result of the court proceedings. I think Deputy Finlay's remarks are cogent from the point of view of ordinary practice in the law courts. I would suggest the section should be re-examined with a view to seeing if it would not be better to leave out all references to the proceedings taken in the courts as a defence or a bar to proceedings taken by the board in relation to the register. I think that could be achieved; it obviously cannot be achieved if prosecutions have to be brought in court at the instance of the board. It might be achieved if responsibility for instituting proceedings for infringements under Section 45 were taken by the Minister rather than by the board.
What then is the function of the board?
Removal from the register.
I think the effect of this section is not clearly understood. Section 28 is that section which is the most essential part of any legislation of this kind. It is the section which provides for the supervision and control of registered members by their board. It is the section, which, if properly used by a good board, will establish standards and a code of conduct for registered opticians, be they ophthalmic opticians or dispensing opticians.
Under Section 28 provision is made that the rules, by which and under which and in accordance with which the board may remove from the register any member, shall specify the causes for which such member will be removed. He might be removed for advertising. He might be removed for a variety of causes. The section says that the board shall, in addition to specifying a whole number of causes, also specify in particular that he should be removed for a contravention of Section 45. I think Deputy M. J. O'Higgins is under a misapprehension in this connection. The board does not prosecute. This is a criminal offence and prosecutions will be taken in the ordinary way by the proper authorities.
Section 58 provides for that.
I must apologise to Deputy M.J. O'Higgins. In any event, the purpose of Section 28, in relation to the establishment of a code of conduct, is to make quite deliberately the commission of an offence not an essential reason or an essential purpose for the board to strike a person off the register. They could do it for advertising or any other just cause they may specify in their approved rules. But they must do it if the member offends under Section 45.
In relation to contravention of Section 45, it seems to me that if the board, which is set up to establish and maintain standards, is in the position that they must have proof before them of a conviction by a court for an offence under Section 45, then their powers may be very illusory. Anyone who has any experience of courts knows that many a hardened sinner, through good advocacy, may leave the court with a halo round his head. That does not mean he is any less a sinner; it just means that he happened to be fortunate in having his cause seasoned with a gracious voice. If you were to insist on proof of a conviction or proceedings to convict in a section of this kind, you might tie the hands of the board completely. I think it is much better to leave it wide open, provided that the board can be satisfied in accordance with the rules that contravention of the section has taken place. They are immediately debarred, if it is established that proceedings in relation to an alleged contravention of Section 45 have been taken and have been dismissed. I believe the dismissal should be a dismissal on the merits. Section 28 is not being tied down only to Section 45. It deals generally with conduct unbecoming a person on the register.
I would urge the Minister to reconsider this. I appreciate the position in regard to the person who goes away and cannot be served with a summons. I must confess, however, I am quite at a loss to see the circumstances which would be sufficiently general or sufficiently probable to justify this sort of section under which the board could have before it evidence which would satisfy the board that contravention of Section 45 took place, and yet the same board would not be in a position to put that evidence into a court of law. I cannot see what harm it would do the board to require them to prove it in a court of law. I admit, in one case out of a dozen or two dozen, there might be a dismissal on a technical point and I think that is the sort of thing you should not legislate against because going to court might cause a certain amount of mischief. But in so far as you are providing that the condition of a criminal offence in contravention of a section of the Act is a cause for removing a man's licence to practise and providing, at the same time, that the board may prosecute for that, I cannot see any circumstances in which a case could be proved against a member and at the same time the evidence could not be produced in a court of law. I ask the Minister to consider that before the Report Stage.
Would the Deputy not consider that the board should have the right to suspend anybody? Would the Deputy not accept that?
I would be quite willing to concede that the board should have the right to suspend for a limited period anybody awaiting conviction. That would be quite a reasonable provision, if it would solve the Minister's difficulty. The board should be entitled, contemporaneously with the issue of a summons for an offence against Section 45, to suspend that person, without prejudice, until that summons was heard. If that would meet the difficulty, there would be no objection, but I do not think you will find any precedent for a provision in an Act that, where there is evidence of an offence and where there is power to prosecute, if the body concerned do not want to prosecute, the same body can try the case themselves and impose a penalty.
You might as well not have a board at all.
I think the Deputy misunderstands the position. The reference to prosecutions in this section is a limitation of the powers which the board have. My view is that that limitation should be removed and that there should be no reference to the result or the outcome of any proceedings brought in the courts under Section 45, that that should not be allowed to tie the hands of the board one way or another.
I do not understand the Deputy.
I move amendment No. 25:—
In sub-section (3), line 33, to delete "dismissed", and substitute "dismissed on the merits,".
This was to provide for the case that the dismissal must be on the merits. There was a technicality involved.
Do I understand the Minister is to reconsider the section before the Report Stage?
The only way I would be prepared to consider the section would be on what has been said in regard to prosecutions. While I know that, under the Act setting up the Pharmaceutical Society, the board there prosecutes, I think, for offences under the Pharmacy Act and also deals with pharmaceutical chemists, personally, if it is possible, I think it would be far more desirable if the Attorney-General brought the prosecutions in the ordinary way and I will consider that.
That is not what I have in mind. There may be some legal point there. In regard to the section, I do not mind so much a person being removed from the register without the necessity of going to the High Court, provided the person has not an appeal to the High Court against that removal.
What section are we on now?
I was speaking about Section 28.
I thought the Minister was speaking about Section 29.
I move amendment No. 26:—
In sub-section (1), line 42, to delete "either to the High Court or the Minister (but not to both)" and substitute "to the High Court".
I can see the case made by the Minister. It might be almost impossible to have this Act drawn in such a way that a person must be convicted of an offence before the High Court before his name could be removed from the register. I think that is true, but where a person's name is removed without the case going to the High Court, if he then has an appeal to the High Court against that removal, it is the same thing practically. I do not like the provision in this Act whereby the person is allowed to appeal either to the High Court or to the Minister.
I am afraid that a person will find it very hard to make up his mind. He may be afraid, if you like, politically that it would be dangerous in his case to appeal to the Minister. Therefore, he would go to the High Court, which would be more costly. Another person might say: "I am not afraid to go to the Minister because I think he is a fair-minded man and does not differ from me in politics", and so on. From that point of view, it would be much better in every way if there was an appeal to one or the other. I do not like the choice. If it had been the Minister alone, I would not have the same objection. The person may appeal to the Minister and nobody else. However, I would much rather if the appeal to the Minister was removed and that we had the appeal to the High Court only. If that is not acceptable to the Minister, then I would say the second best thing is an appeal to the Minister only.
I am afraid I take rather a different view from that of Dr. Ryan in this case. It seems to be everybody's constitutional right to appeal to the High Court, if he can afford to do so, but there are certain people who might not have the where withal to appeal to the High Court. Therefore, they should have the right to appeal to the Minister, which would cost them nothing.
Deputy Esmonde has stated what I would have stated in regard to the section as proposed. The idea is to enable a person to exercise a choice — to go to the Minister, if he so wishes, and, if he feels like undertaking the risk of heavy costs, to go to the High Court. That is his right, too. In framing this section, certain precedents were kept in mind. These went in two ways. Under the Medical Practitioners Act of 1927 and the Dentists Act of 1928, the appeal against removal was to the High Court. Under the Midwives Act of 1944 and the Nurses Act of 1950, the appeal is either to the High Court or the Minister.
I am conscious of the fact that, if the appeal was to the Minister alone, it might happen that a person who had a difference of opinion, even with the Department, not to say the Minister, might feel that his case would get a prejudiced hearing. Accordingly, if the section were to say "may appeal to the Minister", there might be found to be a body of opinion which would say that that was unfair. That depends upon the personality of the Minister, or on the person's relations with the Minister's Department. If we follow Deputy Ryan's suggestion, we are still going to give only one source of appeal and we make it to the High Court. That means that we put on a person the prospect of very expensive litigation, if he is to pursue his ordinary right to appeal against the board's decision. I think the best thing is to leave the matter as it is and allow him to go either to the High Court or the Minister, but not to both.
I move amendment No. 27:—
To delete sub-section (3) and substitute the following new sub-sections:—
(3) Where an appeal under this section to the High Court is successful—
(a) the court may award costs against the board,
(b) the board shall give notice of the result of the appeal to the Minister,
(c) the board shall restore the name of the appellant to the Register of Ophthalmic Opticians,
(d) the court may, if satisfied that the board acted in an unreasonable manner in removing the appellant's name from the Register of Ophthalmic Opticians, direct the board to pay such sum as the court considers reasonable compensation for any loss of practice sustained by the appellant between the decision of the board and the determination of the appeal and the board shall pay any such sum to the appellant.
(4) Where an appeal under this section to the Minister is successful—
(a) the board shall restore the name of the appellant to the Register of Ophthalmic Opticians, and
(b) the board may, if they so think fit, pay to the appellant such sum as they consider reasonable compensation for any loss of practice sustained by the appellant between the decision of the board and the determination of the appeal.
Under the sub-section as drafted, provision is made that where an appeal to the High Court against the removal of a person's name is successful and the name is restored to the register, the board may pay compensation to the person concerned. I considered that sub-section as it was originally in the Bill and I felt that there was a certain illogicality in it. The person whose name had been wrongly removed from the register appeals to the High Court and gets it established that the board had acted wrongly in relation to him. The question of compensation for loss of practice would then be left to the discretion of the board which had treated him wrongly. I felt that such a person might not look forward to the exercise of that discretion in his favour.
It is proposed in this amendment to enable the High Court, in its order restoring such a person to the register, to make an order imposing on the board the obligation to compensate him for the wrong done to him as he was unable to carry on his business. Neither in the original sub-section, nor in the proposed amendment, is it proposed to give any such power to the Minister, in the event of appeal to the Minister.
I welcome the idea which the Minister has with regard to the original section, but I think he ought to consider extending it to both types of appeal. There is a premium at present on appeal to the High Court, he can get compensation from that court. With the same set of facts, if he goes to the Minister, only the board can give him compensation. Would the Minister consider adding to the section the words: "The Minister may, if he so thinks fit, direct the board to pay compensation to the appellant". The present position would be that, with any given set of facts, a man being advised as to whether to go to the Minister or the High Court would decide that he would have a much better chance of getting compensation from the High Court.
With regard to the point made by Deputy Finlay, I think that, if this power were to be extended to the Minister, the form of machinery to be set up should be a direction from the Minister which would enable the compensation, if any, to be assessed by the board, rather than that the Minister should be put in the position of assessing it.
Quite frankly, I do not like the idea of putting in this provision for compensation at all. I think that any board, established like this one is and set up to control a profession, must act as a responsible body of individuals who are going to do their job seriously in the interests of their profession and who will not act frivolously or maliciously in regard to any member.
If the board is faced with the threat of compensation award being given against it, if their decision is upset in the High Court, it is going to impose a very strict régime of caution on the board—more than there should be. I am not making the case that the board should approach any case of suspension in any manner other than one in which the matter would be dealt with thoroughly and deliberately. I do think that, if they are faced with the provision that has been suggested, there will be something more than caution entering into the matter and the board might be inclined to back-pedal in cases where they should come to a decision to suspend. That is a point of view, in any event, which could well be considered.
Yes, that possibility was considered and that is why, in sub-section (d), it is proposed that it is only where the court is satisfied that the board acted in an unreasonable manner in removing the appellant's name the question of paying compensation arises. I was very conscious of the possibility that, in relation to the liability to pay compensation, it was possible that it might have quite an unintended effect on the board and that they might not remove anybody from the register for fear they might have to pay compensation later; but a court, whose function it is to hear evidence and which is presided over by a person trained for the purpose, will be in a better position to decide what, in fact, is an unreasonable manner than a Minister or a Department considering a matter of that kind. I have no very strong views. If it is the feeling of the House that, in relation to the appeal to the Minister, something similar to sub-section (d) of the proposed new sub-section be added, I will certainly consider that between now and Report Stage.
I move amendment No. 29:—
In line 27, before "and" where it secondly occurs, to insert "of training".
This is a drafting amendment.
I move amendment No. 30:—
Before sub-section (2) to insert the following new sub-section:—
The board shall, in accordance with rules, register in the register of dispensing opticians a person whose principal occupation is that of pharmaceutical chemist or druggist or jeweller and who applies for such registration and who satisfies the conditions that prior to the establishment date he was a member of the panel recognised by the Department of Social Welfare for the supply of spectacles on the prescriptions of ophthalmic opticians or medical practitioners and that at the time of his application, he continues to be a member of such panel.
Many people in the category mentioned in the amendment have been accepted already by the Department of Social Welfare and it is for their benefit and safeguard that the amendment is proposed. I hope the Minister will accept it.
I should like to support the amendment which really means that we are asking that those who are already on the register and recognised by the Department of Social Welfare should be accepted. It seems a reasonable argument that, if one Department accepts these people on the register and there has been no complaint against them, the Department of Health should accept them as well. I should be glad if the Minister would accept the amendment.
I also should like to support the amendment. May I be permitted to indicate that I have an alternative form of the amendment down? There is not a great deal of difference between the two. I think it is really an alternative; it is an addition to one of the later sub-sections, the idea being that, in addition to all the other qualifications, a person whose main business was not that of optician, but who was carrying on the business of optician, and was at the same time, a registered pharmaceutical chemist, should be accepted. As I understand the position, there is practically nobody coming within the ambit of the proposed amendment No. 33 who would not be within the ambit of Deputy Palmer's amendment. Therefore, I should like to support his amendment in substitution for my own, because I understand it takes in some jewellers and so on, who should also be provided for in the same way as I was trying to provide for chemists.
I might shorten the discussion on this by saying that I am prepared to accept the principle of the amendment, but I do not think the terms are quite satisfactory. The panel maintained by the Department of Social Welfare contains the names of 487 persons who are regarded by the Department as qualified to dispense the prescriptions of ophthalmic surgeons for spectacles. The procedure followed by the Department in placing names on the panel is, first of all, where a person possesses a recognised optical qualification, issued either in this country or in Great Britain, to place the person on the register without further question. If he has a recognised optical qualification, he is put on the register and there is no further inquiry. If the person possesses no recognised qualification, the Department of Social Welfare requires him to produce for them a letter from an ophthalmic surgeon to the effect that the applicant has satisfactorily dispensed glasses for the surgeon. On receipt of such letter, the name of the applicant is placed on the approved panel without further question.
I am a bit concerned at the scope of the Department of Social Welfare panel at the moment. It embraces a large number of people and, of course, it may not be completely up to date. It may be quite an old list of names. If the Deputies would withdraw the amendment, on my assurance that the principle will be accepted, I will endeavour to draft a suitable amendment for Report Stage.
Very well.
I move amendment No. 36:—
In sub-section (2), line 23, to add "and may, if he so desires, be represented by solicitor or by solicitor and counsel" after "him".
This is a consequential amendment.
I move amendment No. 38:—
In sub-section (3), page 12, line 28, to delete "dismissed", and substitute "dismissed on the merits".
I move amendment No. 40:—
To delete sub-section (3) and substitute the following new sub-section:—
(3) Where an appeal under this section to the High Court is successful—
(a) the court may award costs against the board,
(b) the board shall give notice of the result of the appeal to the Minister,
(c) the board shall restore the name of the appellant to the register of dispensing opticians,
(d) the court may, if satisfied that the board acted in an unreasonable manner in removing the appellant's name from the register of dispensing opticians, direct the board to pay such sum as the court considers reasonable compensation for any loss of practice sustained by the appellant between the decision of the board and the determination of the appeal and the board shall pay any such sum to the appellant.
(4) Where an appeal under this section to the Minister is successful—
(a) the board shall restore the name of the applicant to the register of dispensing opticians, and
(b) the board may, if they so think fit, pay to the appellant such sum as they consider reasonable compensation for any loss of practice sustained by the appellant between the decision of the board and the determination of the appeal.
I move amendment No. 42.
In sub-section (1), before "shall", line 27, to insert "who is not a registered medical practitioner".
As the section stands at the moment a registered optician who was also a medical practitioner would be debarred from giving treatment for the eyes. That was an oversight and the object of the amendment is to ensure that a registered optician who is also a medical practitioner may treat diseases of the eye.
I move amendment No. 43:—
In sub-section (1), paragraph (c), line 34, before "in" to insert "in relation to the diagnosis of eye diseases or".
The reason I move this amendment is because of the wording of the section. Refractions of the eye do not involve diagnosis and I want to ensure that ophthalmic opticians will not be legalised to treat diseases of the eyes in any shape or form. This is simply a technical point in order to safeguard the public.
This is rather a difficult matter.
I am asking the Minister only to consider it. That is all I ask.
I am prepared to do that.
I move amendment No. 44:—
To add to the section the following new sub-section:
(3) Nothing in this section shall be construed as preventing a registered ophthalmic optician from providing, in accordance with rules, orthoptic treatment for any person on the written direction of a registered medical practitioner who has examined that person, or from suggesting that he has provided or is capable of providing as aforesaid.
The purpose of this amendment is to provide the right to ophthalmic opticians to engage in orthoptics. I understand at the moment that a certain amount of orthoptic treatment is in fact carried out by ophthalmic opticians. I also understand that orthoptic treatment is in fact the physiotherapy of the eye; it is, in fact, a form of treatment to deal with squint and other such conditions and is applied to the eye in the same way as physio-therapy is applied to the body, which is not necessarily carried out by a medical practitioner. The case has been made, and I agree with it, that this treatment which is part of the services provided by ophthalmic opticians, should be considered to be so part.
I want to oppose the section in order to bring to the notice of the House certain objections I made to this Bill on the Second Stage. I would draw the attention of the House again to the fact that we are going further in this Bill than we have gone in previous Bills. For instance, in the Medical Practitioners Bill we provided that a person could not describe himself as a practitioner unless he was actually a medical practitioner. That provision does not prevent anybody from giving medical advice and from getting paid for the advice so given. But that person is not on the register. In the same way, under the Veterinary Surgeons Bill, a person can treat an animal for a farmer and get paid for it but he must not describe himself as a veterinary surgeon. It is the same with the dentists.
So far in this Bill we have laid it down that a person must not describe himself as an ophthalmic or dispensing optician unless he is actually on the register. To my mind, if we were to leave this section out, we would be putting this Bill on a level with the Medical Practitioners Bill, the Veterinary Surgeons Bill and other such measures and we would not be going so far as preventing a person from selling glasses, provided he is not permitted to describe himself as an optician in any shape or form. My opposition to this section is aimed at bringing that point of view before the House. I do not know the reason why we should propose to go further here than we went in other similar measures and I think we should consider the position very carefully.
The Deputy mentioned, as far as I recall his Second Reading speech, that this is a matter of approach to the problem being dealt with under this Bill. I have information available to me which came from police reports sent on by the Minister for Justice of cases in which useless pieces of glass were sold to credulous persons by dealers in spectacles — people who asked for and received quite large amounts of money for completely useless articles. I feel that, once this House sets about dealing with practices of the kind dealt with generally by the Bill, it would be a mistake if we were not to prevent that kind of fraudulent sale of spectacles. I can see no better way of doing that than to establish a register and a board which would procure standards and a code of conduct and which would have sufficient powers to see that these are observed throughout the country. That is the reason for this section.
I should like to remind the Minister that the same practice goes on in other instances. There are people setting themselves up as being able to cure rheumatism and other diseases, who give medicine and get paid for it. The other day I heard of a person who had a cure for goitre which, he said, was a fasting spit. You have things like that going on and if people want to avail themselves of that type of treatment or advice in medicine, dentistry or anything else, I see no reason why we should not let them have it, so long as the people concerned are not allowed to describe themselves as being qualified. I admit the Minister makes a strong case— that somebody comes along and offers glasses that are absolutely useless. On the other hand, I am afraid that when this Bill is passed people will be accusing us here of passing this legislation and of removing the opportunity they hitherto had of getting cheap glasses. I think we should let them have their cheap glasses.
I do not think so. I think we should take safeguards.
I think we would be accused of that because, when this legislation goes through, I am afraid that certain sources for the supply of glasses will be removed. Perhaps, if I were the Minister I would say: "And rightly so", but we will be accused by certain people of removing the sources of cheap glasses. I think the best thing for such people is to let them have their cheap glasses, even if they are no use at all.
Maybe the section is restricting the activity of people but glasses are prescribed by unqualified persons and sold ad libitum and do incalculable harm to the eyes. Having been in practice at some time or another, Deputy Dr. Ryan will know that very often when attending a patient you look at the glasses which have been taken off and in many cases you find that they are nothing else but window glass. In other cases you have people who were given glasses that may have a convex lens when, in actual fact, they required a concave lens. It may be a restriction of the personal liberty of the individual to a certain extent but the eyes are very important to people and this Bill is for the purpose of safeguarding people. I think that this section should stand.
I move amendment No. 45:—
In sub-section (1) line 19, to delete "registered".
The section is designed to protect the title of registered ophthalmic optician, registered dispensing optician, and registered optician and to restrict their use to persons who are registered in the registers set up under the Bill. The purpose of the amendment is to protect, in addition, the titles "ophthalmic optician" and "dispensing optician." If the amendment is passed it will be an offence to use either of these titles unless the person using them is registered in the appropriate register. The word "registered" is not being deleted from sub-section (3), the reason being that many opticians do a fairly extensive business in instruments such as binoculars, opera glasses, and so forth, and it has been represented that to prevent them calling themselves "optician"simpliciter would damage that end of their business. As sub-section (3) stands, of course, no one may call himself “registered optician” unless he is on one or other of the registers. As the section is drafted at present, it might be possible for a person to suggest that he was capable of prescribing glasses, dispensing prescriptions, or selling glasses by using some title, such as spectacle supplier or spectacle seller which is not specifically prohibited by the section. The two new sub-sections which the amendment proposes to insert will make it illegal to take action of this natu
I move amendment No. 46:—
In sub-section (2), line 26, to delete "registered".
I move amendment No. 47:—
Before sub-section (4), to insert the following new sub-sections:—
(4) A person shall not, on or after the appointed day, take or use any name, title, addition, description or certificate, implying that he is qualified to prescribe spectacles unless he is a registered medical practitioner or a registered ophthalmic optician.
(g) A person shall not, on or after the appointed day, take or use any name, title, addition, description or certificate implying that he is qualified to dispense prescriptions for spectacles or to sell spectacles unless he is a registered medical practitioner or a registered optician.
I move amendment No. 48:—
In sub-section (6), line 42, to delete "(4) or (5)" and substitute "(4), (5) (6) or (7)".
I move amendment No. 49:—
In sub-section (1), line 8, before "which" to insert "(including advertising by way of canvassing)".
This is to meet the case made on the Second Reading that the restrictions in the section might not extend to personal canvassing. The amendment is designed to ensure that all forms of canvassing will come within the scope of the prohibitions contained in the section.
I move amendment No. 51:—
In paragraph (d), line 42, before "optician" to insert "medical practitioner or a registered".
This amendment arises because, through an oversight, it was found that the section as originally drafted would prevent the carrying out of work under the supervision of a registered optician. It is to cure that oversight that the amendment is introduced.
