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Dáil Éireann debate -
Wednesday, 19 Nov 1969

Vol. 242 No. 8

Health Bill, 1969: Committee Stage (Resumed).

Debate resumed on the following amendment:
In page 9, lines 23 and 24, to delete subsection (9).
—(Deputy Ryan.)

I wish to refer specifically to section 12 (9) of the Bill. I wish to support the amendment which would take specifically from the Minister for Health the power which he now gives himself in this Bill, namely, the right to appoint the first chief executive officer of each of the regional health boards. Such an innovation is open to very serious objection and our party also support the amendment put down by the Fine Gael Party on this matter.

The dilution by the Minister of the functions of the Local Appointments Commission in this matter is certainly open to grave concern. There should be some transitional arrangement whereby the existing chief executive officers will be installed in their new positions as chief executive officers on the regional health boards. Certainly there should not be power given directly to the Minister to make a temporary appointment of a chief executive officer on his own volition. This would mean in effect that in the event of the new regional health boards coming into being he would appoint the alleged temporary chief executive officer. We know what happens in terms of temporary appointments generally.

I am afraid the Deputy has misunderstood. The first chief executive officer will be appointed by the Local Appointments Commission under subsection (6) of section 12 before the establishment of the health boards.

Not necessarily.

May I interrupt the Minister and perhaps seek clarification from him? On page 9 it is specifically stated that a temporary appointment of a chief executive officer may be made by the Minister.

In that case I might shorten the discussion by making it quite clear that we will examine the Bill between now and the Report Stage to make quite certain that section 6 is sufficiently clear so that the first chief executive officers appointed will be appointed only by the Local Appointments Commission. Will that satisfy the Deputy?

That satisfies me partially. Could I have a further assurance from the Minister in relation to a matter which is of much concern? For example, in the eastern area there are chief executive officers and various other officers in the health authorities. What is their likely fate to be in terms of the new situation? Will they have to apply to the Local Appointments Commission?

That arises on a proposed amendment to a further section where that specific question is raised.

One would be further encouraged to support the deletion of subsection (9). Can the Minister assure us that subsection (9) will be deleted by agreement?

The Deputy is referring to two different matters. Subsection (9) applies to a temporary appointment of a CEO where the previous CEO has retired, is being removed from office or has died. It does not apply to the first appointment of a CEO. I will examine subsection (5) to ensure that the Deputy need have no fear on this matter and I can come back on Report Stage and tell the Deputy so.

In view of other amendments in relation to the officers of the eastern health board, I am prepared not to press this amendment. The Minister now states that temporary appointments would apply only in cases of retirements, deaths or removals from office. On that basis, and on receiving that assurance of the Minister, I withdraw my objection.

I should like some information on this subsection. Where the Minister makes a temporary appointment on death or retirement is there any limitation of time?

As the Deputy will learn if he looks at the two amendments, 17 and 17a, through which Deputy O'Connell quite naturally would like to restrict the time to a period of two months, we have the difficulty that to fix a rigid limit would be undesirable because in certain circumstances it might be desirable to leave the office vacant. For example, we might be reorganising the country on the question of health boards after we have had some experience of the operation of this Act; or we might be reviewing the qualifications of the officers. As the Deputy and the House know, there are difficulties which arise in convening the board. As well, some candidates might not reply to correspondence. I am afraid this is quite possible even from very good candidates. A competition might not throw up a suitable candidate and equally a candidate could refuse an appointment. Therefore, it is absolutely impossible to fix the length of time during which a temporary appointment can be made pending the appointment of a new CEO.

As I have said, these temporary appointments will be made on the death, the retirement or the removal from office of a CEO. No officer of my Department in the ordinary way is appointed to such a post. The person concerned must have the right kind of qualification. The kind of temporary appointment to which Deputies have been referring takes place now and has taken place without much difficulty, without creating opposition or criticism in the past. The purpose of subsection (9) is inevitable in relation to these appointments.

The Minister is aware that many of the temporary appointments made in the past have come up against certain difficulties and there has been extreme dissatisfaction not only among medical personnel but civil administrators as well.

We are not talking about medical personnel.

Could the Minister not state here the optimum time for a temporary appointment? In exceptional circumstances it would be necessary to make a temporary appointment but in relation to such appointments amendment 17a puts a limit of two months on such appointments. In view of the importance of the post—we hope it will be one of the most important posts in the health boards—it should not be too difficult to find suitable candidates for the permanent appointment.

Because I did not have very much experience of the work of the Local Appointments Commission, I have made inquiries in this matter. I have consulted the officers of my Department and I have found that there have been occasions where there have been delays for one reason or another. I would hope that when it became known that a CEO was due for retirement, action would be taken in advance and I would hope that we would be able to arrange for the filling of the appointment in that way. The Local Appointments Commission procedure is inevitably a long one. I have given particulars of the kind of delays that can be caused and I can add another one—the finding of a date and a time on which the appointments board would be available.

Take the case of county managers and assistant county managers. I have inquired into the procedure here and I do not think that in general much damage has been done to local administration because of delays that have taken place in the appointment of county managers or assistant county managers. I do not recall there having been any serious complaints of maladministration or of difficulties because of delays. The process seems to have been fairly satisfactory and we are applying exactly that process here in relation to CEOs.

In the event of the dismissal of a CEO, would the Minister not have power to appoint a temporary one without reference to the Local Appointments Commission?

No, only the appointment of a CEO pending the appointment of a permanent officer. Obviously if a CEO were dismissed the Local Appointments Commission would have to wait until his dismissal was formally and legally made known to him. There would be bound to be a delay because of that. There might not be such delay if it was a case of his impending retirement. In the case of the dismissal of a CEO, it would be essential to have a temporary appointment.

The initial amendment which I tabled was caused by our objection to the Minister having power to make any temporary appointment, particularly without going through the process of consulting with the health board concerned. We were re-assured when the Minister gave an indication that subsection (6) of section 12 is to be amended so that it will be mandatory on the Minister to process the first appointment through the Local Appointments Commission. That certainly avoids the deplorable possibility that the Minister would appoint his own particular favourite which would give that person a greatly enhanced prospect of being appointed later by the Local Appointments Commission, whereas the Minister says the first appointment will be through the Commission and for that we are grateful.

I am always willing to do what is reasonable. There are certain amendments I cannot accept in this Bill. If the Deputy wishes I shall put down the amendment for Report Stage to the effect that the Minister will consult the chairman of the health board before making a temporary appointment.

That would certainly help greatly and I should be most grateful to the Minister. There should be consultation but I suggest, with respect to the Minister that the consultation should be with the health board, not just with the chairman. The chairman might, in fact, be the best person but there should be some process of consultation. I realise the Minister would still be free, having received advice, to exercise his judgment and appoint somebody else. It would greatly improve the position if we had this process of consultation.

I would not entirely agree with the Minister's view that local government administration has not been impaired because of delays which have arisen in making appointments in the past. Quite recently the Minister and some of his colleagues in reply to some parliamentary questions of mine acknowledged that in Government Departments as well as in local government there are appointments in critical positions, particularly on the professional side, unfilled not for a matter of months but for years. There is a great deal to be said for endeavouring in legislation to impose a mandatory obligation to have steps taken to fill these positions. I certainly appreciate all the difficulties the Minister mentions but we must get away from the practice which frequently arises whereby as much as six, nine or 12 months or even two years elapse from the time a vacancy arises before the Minister concerned asks the Local Appointments Commission to take the necessary steps to fill the vacancy.

I was referring to county managers in particular and I have not heard much complaint in respect of the appointment of county managers or the performance of temporary county managers or, indeed, any allegations that pets were appointed by the Minister as temporary county managers.

I would advise the Minister not to go too far back or it might be interpreted as an argument for the abolition, of the managerial system an argument for which much could be said including what the Minister has just said. If these posts are necessary, if it is desirable to have competent people in them, then the various Departments of State and public authorities concerned ought to move with much greater speed than they have been moving in the past to fill these vacancies in order that the most highly qualified people can be appointed and also to relieve the burden on the people who are frequently asked to perform the duties of officers for which they are not being remunerated. This is grossly unfair. It is wrong that an assistant manager or some other officer should be asked to perform the duties of his senior's office for many months or years at a lower rate of pay and at the end of it find that some stranger is appointed to the position. I am grateful to the Minister for the two amendments he says he will make.

The Minister should try to appreciate the concern of Members of the House about introducing legislation where we have provision for a temporary appointment with no limit to the temporary aspect of it. The Minister says he does not know of any case of complaint and that he has not so much previous experience. I can give him a case of a very responsible position, the position of county engineer in Dublin County where development was taking place faster, I think, than in any other county. That was vacant for eight years: it was a temporary appointment for eight years because of squabbles that were going on. Because this sort of thing can happen I can appreciate the Minister's difficulties in setting limits. There can be considerable difficulties in finding the right man and the right, when appointed, may find he has got a better job somewhere else and takes it up. All this sort of thing can arise. It could be reasonable, perhaps, for a year to elapse and nobody could regard the Minister as unreasonable for not having made the permanent appointment for a year but it is terribly dangerous to leave the situation wide open and to have no limit on a temporary appointment.

The Deputy is very skilled in local government law and he will know that in section 5 subsection (10) of the City and County Management (Amendment) Act the power of the Minister for Local Government is exactly the same. I am not doing anything different.

I appreciate that but this is what has happened under that Act.

Surely the Minister will appreciate that the breakdown of, say, local dispensary services in rural areas has been a direct result of temporary appointments and the failure of such areas to make permanent appointments or to advertise the vacancies? The same thing could happen here with chief executive officers. We are trying to stimulate applications from highly qualified people to temporary jobs that can be temporary for a year or five years—there is no limitation.

I have not had very much experience of these appointments but I understand that if you have a large regional health board covering a number of counties it is more than likely that you would appoint whoever was deputy to the chief executive officer or you might appoint the deputy to another chief executive officer. That would be the kind of appointment you would make. I would hope that such an appointment would be satisfactory to the House. Meantime, I can only give an assurance that as long as I am Minister for Health and after this Bill is passed, I shall take particular care to ensure that first, the regional health boards do their homework in requesting the Local Appointments Commission to appoint the CEO and, secondly, I shall do all I can with the Local Appointments Commission to see that there is no delay in the appointment of such a key person as the CEO to what would be a comparatively new health board. I can only give that assurance. The Deputy knows that I like to do things efficiently. I shall certainly make it my duty between now and the next general election to ensure that if the post of CEO in any regional health board becomes vacant, the machinery will operate as rapidly as possible.

While appreciating what the Minister has said, he will not be Minister for Health forever. He says "as long as" he is Minister for Health. We are trying to take precautions for a later stage when he has ceased to be Minister for Health. He implies that he will be Minister for Health until the next general election but we can never be sure of that. I can see a difficulty arising in the case of a dismissal. The Minister for Health will have the right to appoint a temporary CEO. In my opinion, we would not know for how long this would go on: we could have a temporary CEO in office indefinitely without any limitation. This is where the difficulty arises and I regard it as a very serious one.

Would the Minister not consider limiting the temporary appointment to one year and only re-appointing the temporary occupant of the post thereafter with the consent of the regional board?

What we are concerned with is the quality of the applicants for these positions. No married man with children will take up a temporary appointment in say, County Kerry where he can be on a temporary basis for many years. What has been sought in the amendment is the deletion of the section providing that a temporary appointment can be made by the Minister or that if it is necessary to make a temporary appointment that it should not last for any longer than two months. The efficiency of the organisation being set up should be such as to ensure sufficient applicants of quality high enough to fill these posts on an appointment basis.

I cannot guarantee to alter the machinery of the Local Appointments Commission to ensure a speedy appointment in, shall we say, two months. It would be very difficult to state any particular time in such a difficult matter. Sometimes there may be a considerable number of applicants for a high position such as this. At other times a number of important posts will be vacant and no suitable person may be found. I think that in the ordinary way it would be more than likely that I would appoint the deputy chief of the health board but I could not even put into the Bill that in the event of the retirement, death or dismissal of a CEO the deputy officer would be automatically appointed because there might not be one deputy officer, but two. So, I cannot do that. I cannot help the House over this. I do not see how I can go any further. Perhaps, Deputy Clinton who has knowledge of this can help me or, perhaps, someone from any side of the House. Does he know of any case in which it took five years to fill a county manager's position, because I do not know of one? I honestly think that in connection with this particular kind of very high executive position there have not been excessive delays.

Could the Minister state a particular time?

Twelve months or something like that.

Would the Minister agree to 12 months?

This is meant to be an efficient health service and we cannot find a chief executive officer within two months.

I think 12 months seems to be a fair period because we do not have to look far for a competent person. Inevitably these boards will be very big organisations and, in some of them at least, there will be an assistant and, in all of them, there will be a secretary. I am sure these will be the normal people to fill a temporary position. They could certainly fill it for 12 months without doing any harm to anyone.

I am sure the House is aware that it just so happens that if I put in 12 months instead of two months, the incumbent who had accepted the position could, during the course of the eleventh month, refuse to take the position. Really, the House must bear with me.

I am afraid I gave the Minister that one.

Recently I heard the secretary of a semi-State concern give a report on a course of lectures which he took on efficiency in public administration and his comment was that the lectures were not of much value to anyone in public administration but would be quite useful for anyone in private industry. I asked him why and he said: "Because we have different procedures which we must go through." Is it not high time that public administration got away from procedures which they believe they must go through? Why must public administration continue to suffer the inefficiencies which would soon bankrupt private industries, private operations or private commerce?

It is because of our anxiety to assist the Minister in streamlining the whole process that we are pressing for a new approach and, while we appreciate that the great value of the Local Appointments Commission is that they prevent the operation of graft and corruption, we should still emphasise here in the Dáil that we are dissatisfied with the long procedural delays which have tended to arise in many cases. I think those delays arise not because of the Local Appointments Commission but primarily because of the processing, the silly processing, of rates of pay and conditions of service between the Department concerned, the local authority concerned and the Department of Finance sticking their dead and rather soiled hand into the works. We should get away from that. I think the Minister has been kind enough to convey to those responsible that we want to see more expendition in making these appointments. I believe the debate we have had on the amendments has been worthwhile.

Amendment, by leave, withdrawn.
Amendment No. 17a not moved.
Question proposed: "That section 12, as amended, stand part of the Bill".

I do not exactly want an answer from the Minister but I assume that he has deliberately chosen the word "may" in subsection (6) which provides: "The Minister may, before the establishment of a health board——". I assume that is put in there deliberately rather than "shall" because of the fact that the Minister may, in fact, make certain appointments by transfer in the first instance.

The word "may" is put in there because the procedure for setting up these boards may, to some extent, be delayed and, therefore, the word "may" is used rather than "shall".

The Minister is not prepared to answer yet. I will not press him.

Question put and agreed to.
SECTION 13.

It seems that amendment No. 28a is cognate to amendment No. 17b and they can be discussed together if the House agrees.

I move amendment No. 17b:

In subsection (3), page 9, line 34, before "as" to insert "appropriate to his office".

Subsection (3) provides:

An officer or servant of a health board appointed under this section shall hold his office or employment on such terms and conditions and shall perform such duties——

My amendment suggests the insertion there of the words "appropriate to his office"——

——as the chief executive officer from time to time determines.

I think it is important to include this amendment. It is terribly important to the officer or servant of a health board to have his duties defined. It should not be left to the chief executive officer to determine the type of duties he carries out. I think the Minister will agree that it would be a very important amendment to this subsection to insert these words because the medical officers might be asked to perform duties not appropriate to their office, and servants and other workers in a health board might be asked, under the subsection as it stands, to perform duties not appropriate to their office. This could create some difficulties. Perhaps, their duties could be defined by means of some regulations. I think the Minister will agree that this would provide a safeguard for the officers and servants of the health boards.

I am advised that there is no need to add these words. The legal advisers inform me that the subsection as it stands, just as in the case of section 10 subsection (1) (b) of the Local Government Act, 1941, would not permit inappropriate duties to be assigned to any officer. Appropriateness to the office is implicit in the legal power to assign duties. An assurance of this will surely satisfy the Deputy.

If I can be assured by the Minister on that point, I shall accept that.

I can assure the Deputy that that is the case.

The amendment is an important one. The Minister, in giving his assurance has quoted local government law. I found myself in a position one time of being directed by the county council to do work which I did not consider was mine; in fact, I considered it home assistance officer work. I found it convenient to do the work but had I not found it convenient to do so, this section could have been quoted to me and I would have been compelled to do it. This is the danger I see in the section as it stands in the Bill. The Act the Minister quoted obtained at the time I was asked to perform this duty, and down through the years the use that is made of this Act has been one of the matters of contention between the State and the medical profession.

Such an officer can appeal to the Minister if he thinks he is being asked to undertake duties that are not suitable to him. In the case of medical officers the relevant medical association is quite willing to take up such matters. On occasions we get representations from the medical association on matters of status of doctors and so on. Deputy O'Connell and Deputy Gibbons would know that.

I support this amendment. Recently I was asked to enter into a very dangerous environment to treat a sick child and was informed by representatives of the chief executive officer that it was my duty to endanger my life to this extent, to enter in among a crowd of thugs to treat a sick child. I do not think it appropriate to my office or to the office of any medical officer to put one's life in danger in the pursuit of duties like these. I do not think the chief executive officer should have this power. As has been said on the far side of the House, he can quote section 3 of this Act and has the right to determine whose duty it is to do what. We feel that this should be negotiated from time to time and that the duties performed by officers should be appropriate to their office.

In the case the Deputy cites, it might be appropriate to his office and he still should not be asked to do it or it might be considered undesirable for him to do it. I am not aware of any experience in the past that would lead me to think that circumstances could arise where people would be asked to do things that were not appropriate. However, there are plenty of opportunities for appeal to the Minister in these cases, and I think successive Ministers have been reasonable in this connection.

What is the objection to accepting the amendment?

Because I am told by the legal adviser that it is not necessary.

I was inclined to accept what the Minister said, but, on second thoughts, I do not think there is anything wrong in clarifying this position once more by including this amendment. We have a situation at the moment where doctors are asked not only to prescribe but also to dispense, and I do not think that is a doctor's duty. My colleague on my right will agree with me; I must confess I have never been a dispensary doctor but I know of many complaints by them on this point. A doctor should not be asked to do duties that are not appropriate to his office, and that should be spelled out in this amendment. If that is done there will be no need for appeals to the Minister.

While the chief executive officer and the doctor are arguing as to what is appropriate to his office, the child is dead. The CEO is the managing director of the show, and should not be confined by having things like this spelled out.

We are not necessarily talking only about medical officers. This could apply to other people. It is important that when a chief executive officer asks a man to perform a duty that it should be a duty appropriate to his office.

While I can understand the motives behind Deputy Dr. O'Connell's remarks here, I can fully sympathise with the Minister's attitude. I do not see how it would be possible in any use of the English language to define what are duties appropriate to an office. If you start making provisions of that kind in this Bill, you are just creating a situation in which the whole administration and the provision of services will be totally cluttered up. One can well imagine some officer or employee being given a direction, and he says: "That is not appropriate to my office". What will happen? Everything stops and you count ten or somebody explodes. There may be, as Deputy Dr. Byrne mentioned, occasions on which a medical officer or somebody else may feel that what he is being asked to do is a bit extreme, harsh or unjust. At the same time, the duty has to be done, but the position can be rectified if there is a provision for appeal to the Minister subsequently in order to keep the score right.

Surely in relation to medical officers the important thing is to have the efficient and quick dispatch of the medical service where the need arises. Deputy Dr. Byrne mentioned a sick child. It would be incongruous, to my mind, if you had an even balancing of whether duties were appropriate to a particular office of a medical officer while a child was sick and, perhaps, dying. Obviously, this service has to be provided. I can sympathise with any medical officer or, indeed, any officer or employee who may get on the wrong side of some person superior to him and may feel he is being hard done by. Human society, unfortunately, is not and never can be perfect, and that situation must arise from time to time. The best that can be done is to provide a means for ventilating that grievance and the machinery is there. As I say, while I can sympathise with what has been said here, I do not see how you can possibly define in legislation here what are the duties, in the variety of changing circumstances, which are appropriate to a particular office. If you leave it as wide as "duties appropriate to the office" then you provide that the decide will be the person upon whom the provision of service depends and that is giving carte blanche to anarchy in the provision of essential services.

With reference to medical officers who will be appointed under the new Health Act it is not the position of the chief executive officer to dictate to the doctor how he should treat his patients as is the practice in certain instances in the dispensary services at the moment. Medical skills are being utilised for the prescription and provision of such domestic items as hair shampoo, suntan lotion and toothpaste. Under the present regulations if a medical officer objects to the directives issued to him he is told that it is part of his duty, and unless we have an amendment in this measure stipulating appropriate to his office, or appropriate to the office of all medical officers appointed, this situation will continue. It is far from satisfactory to have a medical officer's time taken up with petty jobs which bear no resemblance to his ability or his professional skills.

Section 6 makes it clear that medical officers make their own decisions about the treatment they will accord to patients for whom they provide services. Deputy O'Higgins stated the position quite correctly; somebody has got to define "appropriateness" in relation to an office. One could write volumes on the subject. The officer has a right of appeal to the Minister and a good many classes of officers and servants have at their aid trade unions or other organisations to enable them to make their case. They can compare their positions with others in the same grade in the service in regard to the character of their duties. There are trade unions and medical associations fully equipped to give them this information. I do not think the House need have any fears that people will be asked to do jobs that they are not supposed to do and have no method, without recourse, to appeal because it is clearly available.

I should like to appeal, as Deputy O'Higgins has appealed, to Deputy O'Connell to withdraw this amendment. Certainly in relation to servants it could not work in many institutions and I am saying this from some considerable experience. There is not room for a full-time specialist at most things in certain institutions. It is understood that a man drops a hammer and takes up something else when an emergency arises. There are many people qualified, and if they were outside and whole-time occupied in their particular craft or trade, they would not do anything else except that, but in an institution they are quite pleased to take up a maintenance appointment, for instance, which includes a number of things outside their normal work and their normal craft. This is understood and accepted by the unions and it could create a lot of trouble if it was written into legislation.

Amendment, by leave, withdrawn.

Amendments 17c and 17d can be discussed together.

I move amendment No. 17c:

In subsection (3), page 9, lines 34 and 35, to delete "from time to time determines" and substitute "negotiates from time to time with the organisations which, in the opinion of the Minister, are representative of officers and servants employed in the functional area of a health board or are representative of a particular grade or category on a national basis".

We on this side of the House regard this amendment as being of major importance in the health services. It opens up the whole question of what might be called the Victorian administrative structure of our health services. It was amazing to me, coming from a trade union setting into this House, to find written into legislation that the remuneration and the allowances of workers employed in the health services are determined without any reference to the trade union organisations. This amendment is designed to give recognition to the trade unions and the staff organisations which are already in existence in the health services.

I would strenuously object to any chief executive officer, appointed by a health board, being given unilateral right to determine the remuneration and allowances of officers and staff even where he may have to obtain Departmental sanctions. In order to democratise our health services it is essential that recognition of trade unions be written into legislation. There are 15 trade union organisations representing many thousands of workers employed by the health authorities throughout the country, and these unions negotiate and resolve a whole range of grievances, disputes and conditions of employment directly with the senior executive officers of these authorities day in and day out in all areas of the health services. All we are asking here is the insertion of the reality of industrial collective bargaining in the health services.

There is a good deal of authoritarian hangover in our health services, in our hospitals, in our dispensary administrative system, in our ambulance system and in the system of running local authority health clerical and administrative structures themselves, with very little internal democracy and this is what we want to see brought about. We are proposing this amendment to give recognition to trade union organisations and we seek the support of this House for it. We ask for the deletion of the words "from time to time determines" and the substitution of the words

negotiates from time to time with the organisations which, in the opinion of the Minister, are representative of officers and servants employed in the functional area of a health board or are representative of a particular grade or category on a national basis.

I feel somewhat upset that one should have to come into the House and plead for trade union recognition. Frankly, I am not interested in the Minister saying that it is there already, that they can have it, that they can go into the Department any time they like, meet an executive officer and that he will direct the executive officer to meet the trade unions direct and negotiate rates of pay with, say, an ambulance driver, subject to his sanction. My argument is that there must be negotiation recognised by the State. This is, perhaps, an innovation which the Minister himself, with his very considerable interest in joint consultation, which is quite separate from trade union recognition, and his general interest when Minister for Transport and Power in trade union relations, would find well worthy of his consideration.

I do agree that as far as possible conditions of employment and the arrangements made for the employment of people should be conducted on a basis where there is an assured form of machinery but at the moment we are in the position that the chief executive officer has, under this Bill, the ultimate decision in regard to these matters. As the Deputy knows, there is a conciliation and arbitration scheme for local authorities which was organised through the County Managers' Association and the trade unions. This deals only with remuneration and not with conditions of employment. The Deputy is right in saying that with regard to conditions of employment there is continuously discussion between the county managers and staff through their trade union organisation where matters relating to conditions of employment arise, even although it is not built-in to fundamental local government legislation.

I am very glad to say that there is a revision of the present conciliation and arbitration agreement being considered at present. Under this, I understand, the arbitration body would be more widely based. It might take in representatives of the Labour Court. The terms of reference of this new body which is under examination would be widened to cover conditions of employment. I was very glad to hear of this because I felt, even although I might not be able to accept these two amendments, that while it is desirable to have a situation whereby de facto trade unions and other organisations can discuss informally with county managers matters pertaining to conditions of employment, the county manager's decision being final in the long run and with, under an amendment to this section, appeal to the Minister, nevertheless, it would be better if we had proper complete conciliation and arbitration machinery for both the local government system and the health system.

I think it would be entirely unreasonable for me to anticipate the result of this examination by building into this Bill the two amendments suggested by the Deputy and I hope he will be reasonable about this. I understand that this machinery when it is completed and agreed will be provided for in a separate Bill and will probably be handled by the Minister for Local Government and whatever machinery is devised there will be applied by law and that, as the Deputy knows, can be done to the employees of the health boards. That is all I can say about it but I do think it would be quite wrong to place those who are negotiating for this new type of machinery in a very difficult position by pre-empting what they were going to do by accepting the amendment. I hope the Deputy will accept my sincerity in stating that.

As I have said, already there is an informal arrangement that, as the Deputy knows, can operate if somebody regards his conditions of employment as being entirely wrong or whereby, if he has a complaint to make, he can make a complaint but it is an informal arrangement at the moment and let us keep it that way until this new conciliation and arbitration machinery, which I am sure will include the kind of arrangements the Deputy wishes to cover—conditions of employment—will come before the House.

I have heard what the Minister has to say but at the present time he is, directly or indirectly, involved in a dispute which is taking place between the Medical Union and the County Managers' Association on conditions of employment of DMOs. The Medical Union find this body an intransigent body, downright offensive to them and not prepared to discuss conditions of employment. I would not like to see this continue. I appreciate what the Minister has said. I would like him to elaborate a little further as to what exactly is proposed in substitution so that the amendment will not be necessary. I should like him to spell it out a little more. Will it be brought in as separate legislation and will it cover all employees? I should like to have more information on these points before we could make a decision. Certainly, the present situation with the Medical Union and the County Managers' Association emphasises the need for the amendment.

I am afraid I cannot give any further details because these negotiations are continuing and I could not say how far they have advanced. From what I know of the improvement in industrial relations, it is hardly conceivable that the final conciliation and arbitration machinery, if it can be agreed between all the parties concerned, will not embrace conditions of employment since, in fact, these conditions of employment can already be discussed informally. Quite evidently, whatever machinery is devised, some one person will have to have the ultimate authority. How that will be arranged, I could not say. All I can say is that I know very definitely that these negotiations are continuing. They are being conducted under the auspices of the Department of Local Government, I understand.

Would the Minister like to comment on the present impasse between the Medical Union and the County Managers' Association?

We are still discussing the question whether we could not make certain arrangements in relation to off-time for medical officers. I should like to put it this way to the Deputy: the Medical Union and the Medical Association would themselves have to agree to any particular form of conciliation and arbitration machinery. This is something new. It need not be assumed that they will necessarily accept without long negotiation what part they would play in this. They will have to give agreement to a form of machinery which will cover many classes of officers and servants in the whole of the local authority and health administration. So, I should not like to commit the Medical Association or the Medical Union as to what their views would be in relation to either the amendments prepared by the Deputy or to the final machinery. That will have to be negotiated.

May I, perhaps, to short-circuit it, seek some assurance from the Minister that on Report Stage he would consider an amendment something along these lines: "the conditions of employment being determined in accordance with the conciliation and arbitration schemes which may from time to time be agreed between the parties concerned"? This would take out of the Bill the unilateral smack it has at the moment of a CEO arrogating to himself the right to determine such conditions. Once there would be elementary recognition that there was a negotiating function in this matter we could advance very considerably because I am conscious that conciliation and arbitration schemes are agreed without necessarily being embodied in any legislation. There are ad hoc agreements that never formally come before the House in pure legislation. I am anxious that conciliation and arbitration in the public service should be incorporated in the Bill. I do not think that would present any insurmountable difficulty.

We shall have to look it up to see if it is possible to do it legally. It is rather difficult, but we may be able to put in a new subsection saying that, in relation to the operation of this section, regard will be had to any conciliation or arbitration machinery which may be available.

That would be acceptable.

I do not know whether the draftsman may say that one cannot predict future legislation. It is rather tricky, but we will try to do it.

Amendment, by leave, withdrawn.
Amendment No. 17d not moved.

I move amendment No. 18:

In subsection (5), page 9, line 41, to delete "shall comply with any directions given by" and substitute "shall act in accordance with the directions of".

This is a drafting amendment. Its purpose is to prevent the chief executive officer from acting freely in any matter not covered by the directions of the Minister. Apparently, under the Bill as originally drafted, the chief executive officer would be free to create any type or number of offices and to determine any rates of remuneration he might consider appropriate, subject only to such direction as the Minister may have given in the matter. The effect of the amendment is to oblige the chief executive officer to act in accordance with the Minister's direction.

Amendment agreed to.

I move amendment No. 19:

In page 9, between lines 42 and 43, to insert the following new subsection:

"(6) Any officer of a health board who is aggrieved by a determination under subsection (3) or (4) may apply to the Minister to issue a direction in that respect under subsection (5)."

This is an amendment to clarify the position with regard to the rights of subordinate officers. It makes clear that these officers will have the right of appeal to the Minister and the Minister can direct the chief executive officer to take such action as he thinks appropriate in relation to grievances. There is a similar right of appeal in the Local Government Act, 1941.

That is to the Minister also?

To the Minister, yes.

Amendment agreed to.
Question proposed: "That section 13, as amended, stand part of the Bill".

This section deals with the appointments of officers and servants below the grade of chief executive officer, their conditions and remuneration. Subsection (2) provides:

The appointment of an officer referred to in subsection (1) or of a servant of a health board shall be a function of the chief executive officer.

I assume this does not necessarily apply to all grades below the grade of chief executive officer. Under the Local Authorities (Officers and Employees) Acts certain appointments are ear-marked as major appointments and these automatically went to the LAC. Can we take it that the existing major appointments will continue to be major appointments and will continue to be automatically passed on to the LAC and not made by the chief executive officer?

That will be the case.

The Minister will agree that that is not evident in the section.

Would subsection (6) of this section give authority to district medical officers, or their successors under this Bill, to establish rota systems amongst themselves in order to do duty for each other?

As I understand it, the rota system can be established.

There is just one minor point of clarification, though it is major to those directly involved: is any change envisaged in the setting up of the regional health board in the role of officers of mental hospitals?

Associated with that, is there any mechanism—there seems to be none—for transferring district medical officers to the new health system?

The matter Deputy Dr. Gibbons refers to arises under sections 33 and 36. So far as the point raised by Deputy Desmond is concerned, officers who are transferred must be transferred to a similar office. There will be detailed negotiations with the officers concerned and the appropriate organisations. The Deputy can be assured they will not lose in status or remuneration if they are transferred.

The Minister's assurance is welcome.

Question put and agreed to.
SECTION 14.

I move amendment No. 19a:

In page 10, between lines 7 and 8, to insert the following new subsection:—

"(2) A draft of an order which it is proposed to make under this section shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House."

Subsection (1) of section 14 reads:

(1) The Local Authorities (Officers and Employees) Acts, 1926 and 1940, shall apply to appointments of chief executive officers and of such other officers under health boards as the Minister, with the consent of the Local Appointments Commissioners, may from time to time determine as if the boards were local authorities, but subject to any modifications which the Minister may specify by order made with the consent of the Commissioners.

In regard to any modification the Minister might think of making under this section, it is only right, I think, that the Minister should tell the Oireachtas what he has in mind and give his reasons for the modification. Under other sections it is provided that draft regulations or orders be brought before the House for ratification. In the important matter of senior public appointments I consider it reasonable to ask that the same procedure be followed.

I support Deputy Clinton, but I should like to ask the Minister what offices or level of staff should be subject to local government appointment?

This is a most complex matter. It relates to one of the most important and valuable recommendations of the FitzGerald commission, namely, the essential interplay between voluntary hospitals and local authority hospitals. Already this is beginning to take place inasmuch as local authority hospitals are paying sessional fees to consultants who come from voluntary hospitals. They are going to appoint regional hospital boards within a fairly wide area. They will be making recommendations for the growing integration of the voluntary and local authority hospitals because of the growth in specialities and of the complexities in modern medicine —the growth in paramedical services and expensive laboratory equipment.

In section 40, it is proposed that functions relating to the selection of consultants and senior medical staff —only those—for appointments controlled by Comhairle na nOspidéal will be delegated to the Comhairle. We hope to get the agreement of all the parties concerned to a specialist selection procedure which will apply to all senior consultants and senior medical appointments and which will incorporate the best features of the Local Appointments Commission machinery which has been found very satisfactory up to now.

As the House knows, already the Local Appointments Commission do not operate the normal machinery if they appoint a consultant to a local authority hospital which is a teaching hospital because they make arrangements to consult the university concerned and the procedures are different. Deputy Clinton and Deputy Dockrell will be aware of that. It was quite obvious that, even before the very complicated regulations to be provided in connection with Comhairle na nOspidéal were formulated, those kinds of appointments are likely to grow in extent. Instead of merely appointing a consultant from a voluntary hospital to do sessional work in a local authority hospital, one might want to do the alternative or even more. One would like to appoint a consultant—for example a haematologist—who would have specific duties in relation to a number of hospitals in the whole of the regional hospital board area, quite apart from a health board area where you would have to consider the position of the voluntary hospitals involved which, up to now, made their own appointments, and the local authority hospitals involved.

Where the appointment is being made by the Local Appointments Commission and where there was a voluntary hospital which was also the teaching hospital, or a local authority one which was also a teaching hospital, the university would be concerned if the person so appointed would have to give clinical teaching in the course of his many duties. That was the object in framing section 14. I thought it would be sufficient, if we could not make any modifications under the section without the consent of the Local Appointments Commission. If the House feels that the consent of the Local Appointments Commission is not sufficient; that, with all their prolonged experience, they would be likely to permit a form of selection of this kind that I have mentioned that was undesirable, likely to lead to nepotism or to the appointment of unsuitable persons or to be unfair to any of the candidates, then I shall have to accept the amendment and I should do so quite willingly. However, I would ask any Deputy whether he thinks the Local Appointments Commission would be likely to consent to undesirable modifications.

What would the Minister do if they did not consent?

We could not make the appointment.

Would the Minister set up another commission that might consent?

There is the difficulty. I have a very open mind about this. Deputies will understand my position. There is bound to be a change. I am very glad to say that the voluntary hospitals themselves see the red light in regard to all this. They see the inevitable need for integration. As Deputy Clinton and other County Dublin Deputies know, there have already been a number of sessional appointments but that will not be sufficient.

When the Minister assures the House that what are at present regarded as major appointments and automatically go to the Local Appointments Commission will continue to be made in this way, that certainly, in itself, is a reassurance but that was not clear until the Minister told us that on section 13. I shall not press the amendment in the circumstances if the Minister feels it is better to leave it as it is.

I want to be quite honest with the Deputy. What I said is that the Local Appointments Commission will have to agree to a departure from the usual method of appointing, for example, an orthopaedic consultant who was working solely for a regional health board: that, if he is to teach in a voluntary hospital and also work with a voluntary hospital, they would agree to a special type of selection procedure to which they would give accord and in which the university and the voluntary hospital would be involved as well as the local authority.

The Minister has dealt purely with the medical side of it. What about the ordinary non-medical side? Certainly, in the eastern region, there will be a very large number of employees under that region.

We can do it in one of two ways. The Deputy will accept that the Local Appointments Commission certainly would not agree to any change in the machinery for the appointment of ordinary officers, the kind normally appointed by the Local Appointments Commission to the regional health boards. If the Deputy wishes, I could put another subsection into this on Report Stage to ensure that we would not even ask the Local Appointments Commission to decide whether or not there should be a change in the method of appointment of officers other than these consultants.

That would weaken instead of strengthening the legislation.

I think the Deputy can be assured that it is inconceivable that the Local Appointments Commission would agree that, quite suddenly, we should have some special procedure for appointing, say, the chief accountant of the health board.

Amendment, by leave, withdrawn.
Section agreed to.
SECTION 15.

I move amendment No. 19b:

In subsection (1), page 10, lines 13 and 14, to delete "subject to any directions in that respect which may be given by the Minister" and substitute "with the approval of the Minister".

We are moving this amendment because we feel that the chief executive officer of a health board should not be excessively inhibited by directions that may be anticipated from the Minister from time to time. We submit that it is far better that the executive officer of a health board should have authority to exercise his imagination and exercise his own initiative and delegate, internally, in the authority, functions performable by him to another officer, subject to approval by the Minister, rather than waiting for a direction to come from on high from the Department.

It may appear to be an amendment of no great substance. We think it changes considerably the tone of administration in a health board. Quite bluntly, if the chief executive officer and the regional boards are waiting for directions from a Government Department they will never exercise any delegation or initiative in the work they do. If they are to be perpetually subjected to directions—and we are all familiar with the kind of omnibus directions which tend to come out to the effect that nothing shall be done until one receives a direction to do so —it will mean that they do absolutely nothing for the remainder of their term of office. We feel the onus should be put on the chief executive officer to act in a normal manner and to seek approval. He should use his initiative and get approval for doing it but should not be subject to this odious phrase "ministerial direction" because this becomes the cloak for ineffective bureaucracy and ineffective administration where nobody will do anything without such ministerial direction. Officers will not show their initiative and seek approval for what they intend to do.

It is the intention that the Minister will issue a general direction specifying the kind of function which can be delegated and the conditions for delegation. Under subsection (7) it will be noted that the Minister will be kept informed of delegations so that he may revise his general directions if experience shows revision is required. The Minister can send to the chief executive officer a note of the kind of functions which can normally be delegated. It can be taken for granted that such functions will be comprehensive, such as the grant, but not the refusal, of services under the health Acts. Such functions could be delegated to the county secretary or to some of the staff officers of the health section.

Other functions which could be delegated would include the grant, but not the refusal, of the disabled persons maintenance allowance, and the registration of food premises. These functions could be delegated to the county secretary or to a staff officer, as could the grant of sick or annual leave and the certification of increments. Such functions could be delegated to the county secretary or staff officer in some cases. The appointment of servants— a peculiar phrase which I have never understood but which we have in the legislation—could be delegated to the county secretary or to some of the staff officers. If we make a bulk delegation proposal to the chief executive officer in advance it will surely meet the suggestion of the Deputy for avoiding unnecessary red tape.

Amendment, by leave, withdrawn.

Nos. 20 and 21 may be taken together.

I move amendment No. 20:

In subsection (5) (a), page 10, line 50, after "officer" to insert ", acting under the directions of the chief executive officer,".

The purpose of subsection (5) was not very clear to me. It was in anticipation of the possibility of somebody being held responsible for a wrong he did not commit that I made the amendments which I did. If the Minister would be good enough to explain why it is that the chief executive officer is to be held responsible for an act done by an officer and that even if the delegated officer does something contrary to previous instructions the chief executive officer is responsible, I will not press the amendments.

The subsection as it stands follows the lines of section 17 (5) of the City and County Management (Amendment) Act, 1955. I think the first amendment would be unnecessary as section 15 (2) (a) of the Bill makes it clear that delegated functions are performed under the general direction and control of the chief executive officer. Paragraph (b) of the subsection is designed to cover the case where the chief executive officer authorised a payment arising from a decision by another officer to whom he had delegated function. Obviously, where that officer was at fault in his decision he should have been liable to a surcharge as well as the chief executive officer. If the chief executive officer delegates a function and authorises a payment of a particular kind and the officer to whom he delegates the authority to make that payment makes a mistake he should bear a joint liability with the chief executive officer. This is a point arising from all the legislation concerned with the levying of surcharges. Some people in the House may have had prolonged experience of this but I do not think it has caused any great difficulty up to now. It is incorporated in a similar way in the City and County Management (Amendment) Act, 1955. I am sure the Deputy would not want me to read this long document. It has a very long series of paragraphs relating to surcharging.

I am grateful to the Minister for the explanation. He does not remove my fears. It seems that even if it follows the 1955 Act this section could lead to a situation in which an officer acting under a delegation and, perhaps, acting improperly would do a wrong and the chief executive officer would be held responsible. It does not appear to be right. I know the general principle in law is that a principal is responsible for the acts of an agent. That should not necessarily apply in the public service. While certainly I appreciate that under section 15 where delegations are made the officer shall perform the delegated functions under the general direction and control of the chief executive officer, it is possible that through mistake or deliberate malice or acting quite improperly, and knowingly so, an officer could do wrong and the subsection, as drafted, means that, notwithstanding the fact that the officer was acting contrary to the orders of the chief executive officer, the chief executive officer could be held to be responsible and could be surcharged. That does not appear to be right as a matter of justice.

I support Deputy Ryan in this. This is a classic case of Victorian Parliamentary drafting. I feel that any administrative or chief executive officer inevitably will suffer from permanent schizophrenia if he has to spend the rest of his life wondering if some minor officer of the board has made a mistake. These boards will cater for over one million people in the eastern region, for instance. It would be a physical impossibility for the chief executive officer to be given responsibility for a budget of, perhaps, £10 million. I have no doubt that that figure will increase to £15 million in the eastern regional board.

Therefore I feel that the Minister is faced with the kind of situation with which one would be faced if, for the sake of argument and I use this purely as an illustration—it has no other connotation—a member of the Garda goes berserk and shoots somebody. One cannot hold the superintendent automatically responsible for the wrong done by the individual. While there must be delegated responsibility, this is a Victorian, nineteenth century concept of administration, what I would call financial crucifixion by the imposition on people of this kind of concept. The Minister should seriously reconsider it. I do not know where we will chase a chief executive officer if somebody walks off into the night with a half million pounds. The courts of law are there for that kind of thing.

I hope we will not get into a long argument about surcharge legislation because my experience is that there is an appeal to the Minister in regard to a surcharge. It is made by an auditor and the auditor can exercise his discretion to some extent. I do not know how Deputy Desmond defines the word "Victorian" but if I am thinking of his definition of "Victorian" there has been nothing Victorian——

Cromwellian.

——about the extent to which the Minister has, within the last ten years, remitted surcharges whenever it is possible to do so. There has been nothing Victorian about that. I do hope we can just leave it the way it is because I cannot make these changes without getting into trouble with the whole of the local government code. I do not want people coming from the local government side and saying that I am making an inroad into surcharge legislation. I beg Deputies to leave it be.

Before I express a view in relation to this amendment I should like to say that I was amused by what the Minister said about appeals to the Minister in the case of surcharge. I recently met an ex-member of a local authority who told me that six months after being a member of the local authority he was amused to get a letter from the Minister for Local Government saying that he had decided in a certain case not to surcharge him.

I feel that we cannot get away from the fact that a CEO should have an overall responsibility even though he delegates certain responsibilities. As health legislation stands he shares the responsibility with the person to whom he delegates this responsibility.

I feel it would be wrong to remove this because it is a good thing for a chief executive officer to be able to say to an officer to whom he delegates authority: "If you go wrong here, we both go down together." I feel that there should be a certain amount of reconsideration by Deputy Ryan, who moved this amendment.

Devil's advocate.

I may be the Devil's advocate but I think the Deputy should take another look at this amendment before deciding that there should be no responsibility once the delegation is made.

It will make the CEO more prudent about the delegation too.

I wonder can he insure against it.

Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Section agreed to.
SECTION 16.

It is agreed that amendments Nos. 21a and 21(b) be discussed together.

I move amendment No. 21a.

In subsection (1), page 11, line 13, before "shall" to insert ", other than the Eastern Health Board,".

I should like to say before I speak on this that, on rechecking, I found that amendment No. 21(b) could stand without reference to section 18 of the Health Authorities Act. The last lines of the amendment read "...in the same way as they applied to the Chief Executive Officer under section 18 of the Health Authorities Act, 1960, and shall not apply otherwise". When I rechecked I found that this really applies to the delegation by the city and county managers of certain responsibilities to the CEO of the health authority and it does not really arise here. The amendment is better without it.

My reasons for moving this amendment are twofold. In the first place the members of the Dublin Health Authority are perfectly satisfied and happy with the present system and feel that this type of administration should remain. I am asking that it be continued in the amendment I have tabled.

Secondly, as far as the Eastern Health Board are concerned, the system proposed in the Bill would be altogether inappropriate. It unnecessarily complicates the administration of services which are already complicated enough. I believe too that the proposed system would impede the progress rather than foster the development of the services and it is the object of this Bill to promote the services.

I have considerable experience of the present system because I had the honour of being elected the first chairman of the Dublin Health Authority in 1960. I was there for all the teething troubles. I greatly fear that this legislation is framed in such a way that it would be quite impossible for the members to carry the responsibilities, give the directions and make the decisions that would be required of them in a very large administrative area such as we have proposed in the eastern region. It would be utterly impossible unless the CEO continued to have the responsibilities he has at present. Because of the volume of work, the population and area to be covered, the number of employees involved—about 6,000—and the vast number of decisions to be made daily, I do not think it would be possible for elected representatives to carry out these responsibilities and to give the directions and make the decisions that are indicated here. I do not know what is the reason for this type of dual administration. It is not spelt out at all in the same way as it was under the County Management Acts. It is very difficult to decide what in fact are the responsibilities, under this, of the CEO and what are the responsibilities of the elected representatives. I am concerned only with the Eastern Health Board. At the moment Dublin Health Authority cater for approximately a quarter of the population and under the changes whereby Kildare and Wicklow will be added we will be catering for approximately one-third of the population. This is an enormous area and there are an enormous number of decisions to be made every day. I know there is provision in this for sub-committees to be set up and for certain responsibilities to be delegated to these sub-committees. But no matter how it is fragmented there will still be an enormous problem. Before anyone can make a decision there will have to be a meeting and endless discussion and endless controversy unless the CEO gets powers similar to those given to him under the Health Act, 1960.

It is for those reasons mainly, and from the experience we have had, that I move this amendment. This Bill proposes fundamental changes in the health services. Surely this is not the time for bringing in an untried administrative system and replacing something which has stood the test of time and which has worked extremely well since 1960.

Progress reported; Committee to sit again.
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