Deputy Boland was in possession.
Medical Practitioners Bill, 1977: Committee Stage (Resumed).
NEW SECTION.
Debate resumed on amendment No. 18:
In Part III, page 15, to insert the following new section before section 34:
"34.—(1) as soon as may be after the establishment of the Council it shall be the duty of the chief executive officer of each health board to prepare and establish a roll of all those persons who are engaged in the practice of medicine within the functional area of such health board and to verify with the Council that those persons are properly registered in accordance with the provisions of Part III of this Act.
(2) After the establishment of the roll referred to in subsection (1) of this section no other person shall be entitled to practise medicine within the functional area of any health board unless he has firstly furnished to the chief executive officer of such health board—
(a) a copy of the notice of registration referred to in section 26 (3),
(b) verification, to the satisfaction of the chief executive officer of such health board, that he is the person in respect of whom the notice referred to in paragraph (a) of this subsection applies,
and received notice from the chief executive officer that his name has been entered in the roll referred to in subsection (1) of this section.
(3) It shall be the duty of the chief executive officer of each health board to verify the authenticity, and currency, of notices submitted to him in accordance with the provisions of subsection (2) (a) of this section.
(4) Where the chief executive officer of the health board is satisfied, in accordance with the provisions of subsection (2) (b) and (3) of this section, that an applicant is entitled to be entered in the roll referred to in subsection (1) of this section he shall so enter his name and inform him by pre-paid and registered post accordingly.
(5) Where the chief executive officer of the health board is not satisfied that an applicant for entry on to the roll referred to in subsection (1) of this section is entitled to entry he shall notify the Council of this fact forthwith.
(6) Where the chief executive officer of any health board is aware that a person is engaged in the practice of medicine within the functional area of such health board and has not complied with the provisions of this section he shall notify the Council of this fact forthwith.
(7) Where a person who is registered, or entitled to be registered, under the provisions of Part III of this Act, fails to comply with the provisions of subsection (2) of this section, the Council shall refer the matter to the Fitness to Practise Committee."
—(Deputy Boland.)
Deputy Boland will be here shortly. Perhaps the Minister might like to say something.
It is clear that Deputy Boland has put a great deal of thought into his work and into this amendment and for that reason I am sorry that I am not in a position to accept it. I think we would all agree with the objectives the Deputy has in mind in putting down his amendment but I would find fault with the procedure which he sets out. First, his whole approach is based on bringing the CEO into the situation in each area. I do not think that is the right approach, that responsibility in this area should devolve to the CEO. In the first instance, the CEO would have no control over and, indeed, very little knowledge of doctors in private practice or doctors in the voluntary hospitals and to that extent there would be a large sector of medical personnel with whom the CEO would have no contact and for whom he would have no responsibility.
Apart from that, I am not sure that the CEO is the person who should be involved in this area. He is an administrative officer responsible for the administration of the health services in his area and the matter of the professional conduct of doctors, their training, discipline and so on is not something in my view that would appropriately come within the jurisdiction of the CEO. The whole approach of the Bill is in the other direction, that the profession through this council should govern itself. Therefore, I see an objection in principle to giving an executive officer such as a CEO of a health board this sort of responsibility. Furthermore, I think the type of machinery which Deputy Boland envisages in his amendment would be impractical and very difficult to operate.
We are concerned in this Bill with providing a basic registration system, a fundamental document which anybody can consult who needs the sort of information that the register will contain. The council will provide that basic document and it will be there as a final point of reference to which people can have access. Deputy Boland envisages a sort of second series of registers in each health board area. That would only give rise to confusion, is not necessary, and is not the way to go about what the Deputy has in mind. The Deputy is concerned about persons who are not registered medical practitioners being able to masquerade as such. I do not think the sort of register that he proposes should be kept by the CEO would deal with even the situation he outlined. That instance can only be dealt with by a tightening up of the administrative procedure in the hospitals and institutions and offices of the health boards. I should like to give an assurance that in so far as that is the responsibility of the Department of Health we shall initiate some action in that regard.
No matter what registers you have or who keeps them, if the authorities and officials are lax in operating simple procedures there is nothing anybody can do about it. We must ensure that anybody at any level in the health board system who is appointed to a position is properly qualified for that position and competent to carry out the duties for which he is appointed.
On the question of the general public having a knowledge of who is entitled to practise medicine in the local areas of the regions, we must go about that in a different way. We already reached agreement his morning that we should have a system of certificates; that each registered practitioner will have a certificate issued to him and possibly we will provide that this will have to be displayed in some prominent place in the case of each practitioner practising medicine.
There is another suggestion I should like to make in that connection. It is that we might provide that each CEO would have an obligation to provide copies of the general register and the supplementary lists at the health board headquarters in every region in a way that would make them available for inspection by the public. That would achieve some decentralisation, if we made it mandatory that each health board would have to provide in some office to which the public would have access, a copy of the registers so that the general public would be able to inspect them and ascertain for themselves whether or not persons purporting to be registered practitioners were, in fact, such.
This Bill does not set out to stop people practising medicine; it sets out to make sure that people who are not registered practitioners do not hold themselves out to be such; that is all we can do. People are registered in a medical register and we want to make sure that people not so registered do not succeed in pretending that they are and holding themselves out to be. We cannot supervise the entire community and prevent anybody who wishes to practise medicine from doing so. Nor can we prevent people calling themselves doctors because the term "doctor" is traditionally associated with medicine but it is not necessarily an exclusively medical term. There are other sorts of doctors; there are a few specimens of the non-medical type of doctor in this House from time to time. For all those reasons, I do not think that the idea of a CEO compiling a register would be of any great benefit. It might be of some benefit to the CEO but we must, and will ensure that each CEO has a complete register of all the medical and paramedical people under his jurisdiction and that he is fully conversant with their qualifications and their competence. That is axiomatic, it is just good health administration. It has not much to do with what we are dealing with in this Bill, which is the registration of medical practitioners, their training and qualifications and so on. We will have to take steps to see to it also that the appointment procedures are strictly adhered to and that persons who come before interview boards for appointment are properly screened, examined and tested. If Deputy Boland is prepared to leave it for the moment and let me give some thought to the situation between now and Report Stage and to proceed along the lines outlined, namely that we will introduce some system of registration certificates which will have to be displayed and that in addition we will compel each CEO in each area to provide at a central point available to the public, a copy of the register and the annual supplements, we might be able to meet most of the points raised.
I am not in agreement with this amendment for the reasons outlined earlier. I am not in the general medical services and as such the CEO in my area would have no control over me.
The CEO should not have.
That is right, unless and until we decide to have a free comprehensive health service where every doctor would be working for the State. Deputy Boland's party are not for the free comprehensive health service which would give the CEO control over the doctor. Therefore the Deputy's request is a contradiction in terms. If the Medical Council could make themselves available to the public through an information officer, people could get information immediately.
No hospital should employ a doctor, especially a foreign doctor without seeing evidence of his provisional registration. That was a stupid mistake in an isolated case. Generally, hospitals ask for evidence of provisional registration before considering a doctor for a position. The Minister was right in saying that anyone can practise as a doctor, but a problem arises in relation to prescriptions. When considering this matter the Minister might consider introducing a special identification number for doctors. Anybody can forge a prescription on headed paper. In the United States doctors have a narcotics number which must be used when prescribing dangerous drugs. Doctors here should be given a number and there should be central control over them. That would eliminate the problem of forgeries and so on. Chemists and health boards would also be facilitated by this as they would not need to honour bogus prescriptions.
I accept a great deal of what the Minister said in relation to this amendment. It was not easy to draft the amendment and it is not easy to find a water-tight system of checks. Perhaps that is why it was not incorporated in the original Act and why it is not in this Bill. This Bill does not set out to stop people practising medicine, as the Minister says, but I do not know of any other Act that stops people practising medicine whether they are qualified or not. Would it not appear that this ought to be the legislation whereby the public can be protected from people representing themselves as being qualified doctors when they are not? That is why in subsection (2) of my amendment I advocated that after the establishment of the roll no other person shall be entitled to practise medicine. In section 55 of this Bill it is a criminal offence falsely to give documentation to the Medical Council so that one might become registered when one is not entitled to be registered, and falsely to represent oneself as being a registered medical practitioner. The offence is to mislead the Medical Council or to mislead other people into thinking one is registered with the Medical Council. It does not make it an offence for any person to put up a shingle saying that he is a doctor and that he will treat ailments. There should be some section of some Act which says that no person can put up a shingle advertising himself as a doctor if he has not got a basic qualification and if he has not been registered by the Medical Council or by one of the other member states in the EEC. Nothing the Minister has said will deal with that situation.
I accept that the CEO may not be the appropriate person to carry out these controls. I thought of various people who might be used. I wondered if the onus could be put on the Medical Council, but the difficulty there was that they are a council operating with a relatively small staff from an office in Dublin and their powers of ascertaining whether somebody in the far end of Donegal is practicising illegally or fraudulently would be very limited. As there is a criminal offence set out in this Bill in relation to misrepresentation as a registered medical practitioner I wondered whether there could be a criminal offence for misrepresenting oneself as a medical practitioner, placing the onus on the Garda, but I felt that the Garda have enough to do without trying to check whether a person is properly qualified or not.
The example that I gave was the main thing which prompted me to put down this amendment. It is all very well for Deputies to say that my example of a person holding himself out falsely to be a doctor, misleading an interview board in the health board, being employed by that health board as a house officer in a hospital, being subsequently asked to register as a foreign doctor with the Medical Council and being able to give sufficient false evidence to the Medical Council to persuade them to register him, is an isolated incident, but the question has to be asked: in so far as doctors setting up in practice or being employed by public authorities in health care are concerned, can we afford to have isolated incidents?
The example I cited was the most recent one to come to light. It happened in late 1976 and the man went on practising into this year. In fact the entire matter was only reported to the relevant health board on 3rd June last. As I said on Second Stage, more attention might have been paid to it by Members of this House and the media were it not for the fact that we were in the throes of a general election. As recently as that, a person practised medicine for six or eight months in a hospital, employed by a health board, managed successfully to have himself provisionally entered on the medical register, when he was not a doctor and, at best, the extent of his medical knowledge can be ascertained by the fact that he was either a threatre porter or a psychiatric nurse employed in a hospital in Britain at some stage.
That type of situation cannot be allowed to continue. Certainly we can maintain that the administrative procedures in the health boards and voluntary hospitals will have to be tightened up. I would be, to a fair extent, satisfied were the Minister to give the House an assurance that he would issue to health boards and all public bodies employing medical practitioners a directive that, before they allowed anybody to take up employment in their service, they had first checked with the Medical Council that the person was a properly registered medical practitioner. That would go a fair way to meeting the problem. Apparently that was not done in the example I gave.
If an onus were placed on doctors operating as general practitioners, or as specialists in a private field, not in any way in the employment of health boards—and they are very much in the minority; doctors who have no contact whatsoever with health boards —to display publicly the certificate which we agreed earlier will be issued from now on foot of an amendment to be put down on Report Stage, that also would go some way along the road towards meeting what I set out to achieve in this amendment.
There still remains the area—and the House must consider this—in which somebody decides to misrepresent his qualifications, to say he is registered or perhaps to procure a certificate of registration which belonged to somebody else, forge a certificate of registration, put that on display and maintain that he is a doctor. As the position obtains, nobody has the onus or obligation to go along and check on whether he is or is not a doctor. I am afraid that what the Minister is suggesting, even when this Bill is passed, will mean that that situation will obtain. I do not think that is a good thing and I draw the attention of the Minister and the House to it. I am not sure how it can be done but we ought to try to close that loophole. If the Minister could assure the House that, before we consider this matter again on Report Stage, he will look at this area, then I would be satisfied to a fair extent.
What is the area the Deputy is talking about?
The area of a person fraudulently representing himself as a registered medical practitioner, or a medical practitioner, setting up in practice and in which there is nobody to check whether or not he is what he claims to be. I do not believe the Medical Council are in a position to do it. I accept that there may be difficulties in using the chief executive officer. I cannot see what other person or body at local level can be used. But there is undoubtedly a need to check when somebody cames along and says: "I am a doctor, employ me" or: "I am a doctor, please attend with me and become my patient". There is nobody to say : "But are you a doctor? Please give us evidence". The only offence contained in the provisions of this Bill is for a person falsely to give evidence to the Medical Council in an effort to become registered or, separately, to claim falsely that he is registered with the Medical Council when, in effect, he is not registered. Apparently that is not an offence and the Minister does not propose that it should be. I maintain it should be an offence for people to hold themselves out in that way.
As Deputy O'Connell said on a number of occasions we are speaking in the interests of the general public, about people's health. It is not good enough to say : "Well, it is not an offence for somebody to say he is a doctor when he is not. It is only an offence for him to say he is a registered doctor when he is not". The Minister, the parliamentary draftsmen and his officials will have to examine this area and decide whether that ought to be an offence. If it is thought that it should be an offence, then the question of the penalty arises and the methods of finding anybody who would try to misrepresent themselves in that way and which should be enshrined in this Bill. This Bill appears to me to be the most relevant. I was not for a moment suggesting that the CEO would have control over doctors, as I think Deputy O'Connell feared. I was suggesting that the CEO or some other body should be in a position to say : "You cannot set up in practice and claim to be a registered medical practitioner until you have proved that you are. You can prove that by providing a certificate and proving that you are the person to whom the certificate relates; then I will check with the Medical Council to ensure that that certificate has validity and currency, that there has not been a subsequent erasure or amendment to the entry in the register". However, if it is to be done there should be some effort made at introducing control in that area.
Deputy Boland must be congratulated on raising this important question and for trying to deal with it, as he is entitled to do. I am inclined to share the views of Deputy O'Connell and the Minister in regard to this tricky question. Any attempt to place on the CEO the responsibility of verifying doctor's credentials—not alone doctors within his own direct responsibility but all those working within his administrative constituency —would be undesirable. Strange as that may seem coming from me, I would regard it as an undesirable extension of bureaucracy. Even though I know things are moving very fast these days it surprises me to hear somebody from the Fine Gael benches moving that rapidly to 1984 when it is supposed we will all be subject to the general feeling of a big brother watching us all. This principle would have to be extended, presumably, to architects, engineers, chemists and other people working for the health authorities, to check on their bona fides. In the absence of a national health service, as Deputy O'Connell said, there could not be any case—whatever case there might be then—as things stand. Oddly enough, I was engaged in a minor controversy once with a person who was very angry with me about my views on clerics. He wrote saying I had no right to call myself a doctor, that the only person who had such a right was a doctor of theology. I said that in my view the only person who had a right to call himself a doctor was a doctor of medicine. There is even a distinction between a doctor of medicine and an MB. In strictest terms an MB is not a doctor at all although Deputy O'Connell might disagree with me on that.
No, he is a bachelor of medicine.
Most of the doctors who call themselves by that title strictly are not doctors because relatively few of us become doctors of medicine.
The Deputy is aware that dentists are now insisting on this.
That does not surprise me. As the Minister remarked, quite a few politicians in this House call themselves doctors but they are really politicians. Deputy Boland is moving in rather difficult contentious circles in relation to the whole question of doctors. The Minister's main point was that he set up this body to establish the right of individuals to practise medicine. While one may disagree with its constitution, it is a body designed to have all the powers and authority to establish the training facilities and the criteria for them and then to see that these are carried out by the right of investigation of the standards maintained in the various medical schools and colleges. These people are mainly members of the medical profession and to a certain extent others may be included by the Minister. They will be handpicked for their qualification to decide on those who are qualifying as doctors. I do not think the CEO by training, qualifications or having regard to the administrative facilities at his disposal can verify what has already been verified by the council. What can an individual CEO add to the information available to this body as a result of the very complicated and complex apparatus that is being made available to them by the Minister under this Bill?
It is a difficult question to establish the bona fides of any person, whether architect, engineer or chemist. I read in the newspapers recently about somebody who was in the High Court because he has been practising as a bishop in the country and he got away with it.
We are back to the clerics again.
Apparently we cannot get away from them. I am trying to point out how it can be difficult to establish the bona fides of people. It is 30 odd years since I qualified and I do not know if I ever had a certificate. In any event it is obvious that if a person is seriously determined to set up in the lucrative side of medicine it is possible to get hold of a certificate; it may belong to somebody else or it may be forged. Therefore, it is not necessarily a safeguard. I am not suggesting the practice, but possibly the only way to establish a person's identity is by the use of fingerprints——
The Deputy suggested I was the one who mentioned 1984.
No. I am trying to point out that it is practically impossible to be certain in this matter. I agree with the Deputy that where the CEO is employing somebody he has a serious responsibility to protect the public. They accept that he is the person who is competent to decide, either through the LAC or a civil service appointments commission, that a certain person can be depended on to look after their health. I would make that demand totally in respect of his employees but the verification of his information must come from the council. Under section 31 the council are given many powers. Subsection (1) (b) states:
...every medical practitioner in the State who, following the establishment of that register is granted evidence of satisfactory completion of specialist training by the body recognised by the Council....
and there are other safeguards included. Deputy Boland is right that it is not a complete guarantee because it will always be possible to have someone who will misbehave. This is the whole marvellous and fascinating subject of confidence tricks. Unfortunately, it is rather more serious where medicine is concerned. With financiers and other people it is a kind of game. It must be exciting from their point of view and the worst that happens to them is that they go to prison if they are caught but where medicine is concerned it is much more serious.
If a CEO is faced with someone who is making false claims with regard to his qualifications he has no way in which he can verify the falsity of the claims. Much as I would like to go as far as I could to see that there was the protection that Deputy Boland wanted. I do not think this is the best way. All the Minister can do is give us a guarantee that the personnel appointed to this board will be the best qualified. Having given them that power we must accept their decisions in regard to the claims of the persons who are qualified. If they make a mistake we must take it up with them.
In relation to certificates, I think it would be a safeguard if the Minister made it mandatory on every doctor to display the certificate. However, with regard to the register, I am not very keen on an extension of bureaucracy if it can be avoided. Would it not be more proper for the function of the council to keep a register and if people wanted to verify if a doctor was qualified they could have access to this register?
Perhaps it might be kept at the public library.
Yes, somewhere like that rather than pushing it across to the CEO. It is not really his responsibility. It is the responsibility of the council and it would be very valuable if the register could be in the public library. I do not like giving this kind of authority unnecessarily to a bureaucrat.
The Minister should not consider too seriously the question of people who are practising and who are not registered medical practitioners. There are other doctors, such as osteopaths, who are capable of treating cases. Osteopaths are recognised by the National Health Service in Britain and by the American Medical Association, and they work in hospitals in America. Osteopaths are not registered medical practitioners but they are qualified to practise. There are also doctors of homoeopathy. In fact, they have their own hospital in London and they are entitled to practise. So we could not give the monopoly to registered medical practitioners and shove the others in jail for practising as doctors. We all know of the unqualified orthopaedic men who have performed miracles. I am tempted to attend one of them myself.
Bonesetters?
These people should not be excluded. Many of them have successfully treated people with serious problems. They are experts at manipulating joints. The prescribing of drugs is the main problem and it should be considered by the Minister. The availability of the register in public libraries would solve the problem.
I have been following this discussion with great interest and a number of important points have been made which would need careful consideration. I have no difficulty in giving Deputy Boland and the House the assurance that is required in regard to the health boards and the voluntary hospitals that are outside the jurisdiction of the health boards. I could give a formal ministerial direction to the health boards in regard to all the institutions under their jurisdiction but that might be going too far. I will try to devise some extra-statutory direction to all the institutions involved to ensure that the necessary certificates are provided by applicants for the different appointments. I want to assure the House that from now on we will endeavour to see that there is no looseness in that area.
Deputies Browne and O'Connell have made the point that we are only dealing with registered medical practitioners and not with the right to practise medicine, which is a different area. In so far as we are dealing with a select and limited number of people, namely, registered medical practitioners, I must try to devise as many safeguards as possible to ensure that the public will know whether or not a person is a registered medical practitioner.
The only reason I suggested that the general medical register should be made available by CEOs in public places was that it seemed to be a handy way to do it. If a copy of the register was available in every pharmacy and library everybody could check it. A reasonable system will have to be devised because we could not have the register available in every public library. I want to assure Deputy Browne that I will try to make provision for the general medical register to be available in a central headquarters and easily inspectable by the public and the media. The fact that the register is available for inspection in Dublin would not be of much help to people in Kerry and Donegal. A further step would be to have a copy of the register in each health board region. In addition, Deputy O'Connell had been pushing the point all day that some mechanism should be provided at the council's headquarters whereby the general public can have access to the information contained in the register without physically inspecting it. If we proceed along those lines we will have come a good distance towards meeting the points which were put forward.
Deputy Browne mentioned an interesting point which I would like to repeat. We are going a long way towards protecting the public in what we are doing here but there is no guarantee that a registered medical practitioner is capable of dealing with every case that comes before him. We can only push our safeguards so far. If we succeed in having an up-to-date register which is reasonably accessible to the public then we will have gone a fair distance.
I welcome the discussion on the amendment which, as it proceeded, highlighted more of the difficulties in this area. It may help Deputies to understand the difficulties I experienced when I tried to frame an amendment to deal with the situation. The amendment falls a little short of Orwell. As Deputy Browne was not here this morning I am sure he will be glad to hear that we have agreed that the Medical Council should issue certificates to those who are on the register. The person need merely supply a copy of that certificate and prove to the CEO that he was the person to whom it applied. Deputy Browne referred to the difficulty a CEO would have in proving the falsity of a person's claim. I did not envisage the CEO should have to prove that. The amendment suggested that if he were not satisfied he should draw the attention of the Medical Council to that fact and leave the onus on them because in the final instance they are the people who should investigate whether a person is registered or entitled to be registered.
The Minister has already given an assurance that he will make it clear to all public and voluntary institutions that they must not employ any person as a doctor without first ensuring that he is registered. That goes a long way towards meeting the difficulty and would have prevented the example I gave from happening. This morning we decided certificates should be issued. Deputy O'Connell went on to suggest that that area might be broadened by putting an obligation on doctors in private practice to display their certificates in their public rooms. The Minister suggested that I should withdraw amendment No. 14 relating to certificates and he would enter a suitable similar amendment on Report Stage. Perhaps he would indicate in that amendment that the certificates be put on public display.
The Minister should know that this is not very easy because some doctors practise in two areas. If one looks up the list in the Eastern Health Board area one will find, especially in the general medical services, that 70 per cent of these doctors practise in two places. I do not think we should bind the Minister because he may not be able to do that.
As we delve into this matter more deeply, I am glad everybody is beginning to realise the difficulties involved. If the principle embodied in this amendment were adopted I do not think it would be necessary to introduce a similar principle in relation to accountants, solicitors or others as was suggested. We are talking about registered doctors who are responsible for the health of the general public. As was said, if somebody plays around with finance and gets away with it, that is great fun, but we are talking about people who are engaged in the health care of the community. From that point of view there is an additional onus on us to try to build into this legislation as many safeguards as possible.
I accept there are osteopaths whose qualifications are recognised in some countries. Many of them practise here and do excellent work, although they do not seem to have any formal recognition. There are also the traditional bonesetters. I am not aware that those people call themselves doctors.
They practise medicine.
The person I am concerned about is the man who has no formal qualification, who claims to be a doctor and when the general public hear he is a doctor practising medicine they assume him to be a registered medical practitioner who would treat people and, most dangerous of all, issue prescriptions.
They cannot prescribe.
We can go back to the example Deputy O'Connell gave this morning of the bogus doctor he reported to the Medical Registration Council.
I said that because the Medical Registration Council were the culprits in that case. They registered him without investigating his credentials. They were the villains.
I believe that should be made a criminal offence. If it is a criminal offence falsely to represent oneself to be a registered medical practitioner or falsely to give information to the Medical Council, then I believe it should also be a criminal offence falsely to represent to the general public that a person is capable of acting in the same manner as a registered medical practitioner——
No country has ever gone that far.
——and that a person is representing to the public that he is a registered medical practitioner.
That is different.
I am not concerned with the osteopath or anybody like that. I am concerned with the person who says: "I am a GP. I am entitled to practise; please become my patient" when he is not entitled to practise. That area has to be looked at.
There is provision in the Bill.
There are two separate issues here. One is the person holding himself to be a registered medical practitioner when he is not. The other is a person holding himself to be capable of practising medicine when he is not a registered practitioner.
There is provision for a conviction of a person who falsely represents himself to be a registered medical practitioner. There is provision for 12 months' imprisonment or a fine of £500 or both.
That is dealt with in the Bill. That is straightforward. A person holding himself out to be competent to practise medicine, even though he is not a registered medical practitioner under the terms of this Bill, is a separate matter. No country has ever provided that.
Let us go back to the example of the health board I mentioned. I am sure that man did not go to them and say: "I am a registered medical practitioner." He said: "I am a doctor and these are my qualifications" and was employed on that basis. Then he was asked to register. This legislation should be trying to protect the public against that sort of person. I am sure we all realise the difficulties that are involved. I know the Minister will have a look at this area to see what can be done to meet those difficulties. I appreciate all the difficulties the Minister and his Department will have in this matter but if we are amending legislation which has stood the test of time we ought to look at this area as well.
Amendment, by leave, withdrawn.
SECTION 34.
I move amendment No. 19:
In page 15, line 22, to delete "at examinations".
The purpose of this amendment is to make provision for a situation in the future where examinations may be replaced by a system of on-going students, a consummation devoutly to be wished.
Amendment agreed to.
I move amendment No. 20:
In page 15, line 25, after "post-graduate" to insert "education and".
This is a drafting amendment which will line up the wording with that in section 35 which follows.
Amendment agreed to.
Section, as amended, agreed to.
Section 35 agreed to.
SECTION 36.
I move amendment No. 21:
In page 15, after line 44, to add the following:
"(d) the promotion of consumer interests in the training of medical personnel".
When we do not have the public involved in medical education one gets too narrow a concept of what medical education should be about. A recent study was undertaken of what the public thought of doctors and how they should be trained and how they should be able to cope and it showed that the public were very much at variance with doctors as to what constituted professional training and professional expertise. They found in so many cases that doctors were not able to communicate with patients. That is a very interesting discovery and a point that should be borne in mind in the education of young doctors. Where we are training and educating doctors the promotion of community awareness, the promotion of consumer interests in the training of medical personnel is vital. That is why I was hoping the Minister might favourably consider my amendment in the interests of the public. Training should be geared towards that and not be narrow in its concept which, unfortunately, it is still.
I want Deputy O'Connell to agree to withdraw his amendment and leave the matter stand over for the time being because I am looking again very closely at section 36. I want to explain to the House why. Deputies will notice that as section 36 is framed I am given the power to assign to this council a number of functions particularly in (b):
Wherever appropriate, the organisation of postgraduate education and training,
I am having second thoughts about that because we have in existence a council of post-graduate training. It looks as if we would have two bodies carrying out the same function. It seems to me on reflection, and I am reinforced in this by some views I got from the organisations concerned, that the right way to go about this is to have a proper post-graduate education training council and for the general Medical Council to have supervisory powers just the same as this council would have supervisory powers over the medical schools. With that in view I want to have a further look at that section between now and Report Stage when I hope to come forward with, perhaps, a different approach. I hope to take into account Deputy O'Connell's suggestion about some element of the consumer interests in the training of the medical personnel.
The Minister's remarks in relation to the section are welcome.
Amendment, by leave, withdrawn.
Section agreed to.
Section 37 agreed to.
SECTION 38.
In connection with this section amendments Nos. 22 and 23 are related and may be taken together.
I would be prepared to accept Deputy O'Connell's amendment, No. 23. I have an amendment along the same lines but as Deputy O'Connell spotted this first I should like to give him the credit.
Amendment No. 22 not moved.
I move amendment No. 23:
In page 16, subsection (3), line 13, after "body" to insert "or bodies".
I must confess that I sought the advice of a Dr. O'Concubhair who spotted this. He is a general practitioner in Oranmore and he asked me to put this in. It is at one with the Minister's amendment and I do not think there is any need to elaborate on it because we may delay the House unnecessarily over it, especially when it is recognised by the Minister and his Department.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 39.
Amendments Nos. 24, 28 and 35 are cognate and may be taken together.
I move amendment No. 24:
In page 16, line 30, to delete "practise" and to substitute "engage in the practice of medicine".
This amendment, and the other two, are drafting amendments. Section 2 defines "practice of medicine" and it is not proposed to use the wording where appropriate throughout.
Amendment agreed to.
I move amendment No. 25:
In page 16, subsection (3), after line 48, to insert the following paragraph:
"(b) A set of rules for the conduct of the inquiry by the committee shall be drawn up which shall include provision for dealing with evidence in the manner used by the courts of law and for the provision of legal advice to the committee".
It is important that we have this amendment so that there will be a set of rules for the conduct of the inquiry by the committee. This is important so that the accused brought before the inquiry will know exactly the procedure the inquiry should take. The whole procedure should be somewhat similar to that used in a court of law for the provision of legal advice to the committee and to the accused. This is important and just specifically to state "shall proceed to hold the inquiry" is not sufficient protection for the person appearing before the inquiry. It would be advantageous if rules were spelled out.
The view of my legal adviser is that this is not necessary. I refer the Deputy to section 13, the section which sets up committees and in subsection (7) it states:
The Council may, subject to the provisions of this Act, regulate the procedure of committees established under this section, but, subject to any such regulation, committees established under this section may regulate their own procedure.
The council and the committee have full statutory authority to regulate the procedure of committees.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 16, subsection (3), line 51, before "evidence" to insert "alleged" and to delete "alleged" before "professional".
This is a moot point as to which is more correct. Again, I am indebted to my colleague, Dr. O'Concubhair from Oranmore for this. He feels it would be much safer to put in the "alleged evidence". I am not the legal expert on this.
I am afraid our friend from the west has hit one bulls eye but has missed this one because the legal people have pointed out that it is not the evidence which is alleged. The evidence consists of the facts; it is the professional misconduct which is alleged.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 17, subsection (3), line 12, to delete "otherwise" and substitute "unfitness".
Again, I am indebted to Dr. O'Concubhair for this. He has gone into great detail for me about this. He feels the section should be more specific and state "fitness or unfitness". I would be pleased to have the Minister's opinion on this.
It is a very fine point and there is nothing much one way or another. The draftsman prefers it as it is and in trying to defend his wording the only thing I could suggest is that there might be some degree between fitness and unfitness, some slight variation which would neither be one or the other. As it stands it is better.
The council will now be given the power to counsel and admonish somebody without saying that he is completely fit or unfit and I wondered if that was the reason for the use of the word "otherwise" rather than "unfitness".
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 17, line 12, to delete "practise" and to substitute "engage in the practice of".
Amendment agreed to.
I move amendment No. 29:
In page 17, subsection (3), line 13, before "physical" to insert "alleged".
We will have to start calling this the Oranmore amendment.
I would be glad to do so.
On the basis of giving him some credit, we will accept this. I do not think it is particularly necessary.
Amendment agreed to.
I move amendment No. 30:
In page 17, after line 15, to add a new paragraph as follows:
"(d) The findings of the Fitness to Practise Committee shall not be made public by the Council without the consent of the accused medical practitioner unless the accused medical practitioner is found guilty."
This is an important amendment. As we know, a doctor may be arraigned before this committee but he is innocent until proved guilty and one may sometimes find lurid details in the media of an alleged offence. In the case of a doctor, his livelihood is at stake and unless the proceedings were held in private the doctor would lose his livelihood. Even if found innocent he could not practise again. This has happened to many doctors and they have had to emigrate. I remember one poor fellow who was fined one penny by the court; he lost his practice and went to Australia. I should like to make it clear that there should be no cover-up and justice must be seen to be done. Where the accused is found guilty by virtue of the evidence, then it should be made public. The proceedings should not be published without the consent of the accused, unless he is found guilty.
I support this principle.
This is a very important point and worthy of consideration. I am disposed towards accepting it. Of course, it can be argued both ways; it could work for or against the professional man brought before the Fitness to Practise Committee. There are two views of this. One could say that it would be undesirable that the findings should be published if the man were found innocent. On the other hand, the accused person should have a say in this. It is quite possible that there could be vexatious or irresponsible accusations made against a professional man and the very fact of their being made could have an effect on his or her career. I have discussed this in a preliminary way with some people concerned and I should like to discuss it further. I can give the House an assurance that I will favourably consider an amendment on these lines on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 31:
In page 17, subsection (4), line 19, to delete "any person" and subsitute "any persons".
A person may have two people representing him. This is a drafting matter and the draftsman assures us that in this sort of case the singular includes the plural.
I am satisfied with that.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 17, line 29, to delete "signed by a member of the Committee" and to substitute "signed by the Chairman of the Committee or by such other member of the Committee as may be duly authorised".
The purpose of this amendment is to provide that only the chairman or other duly authorised person will be enabled to sign a summons. The existing provision is thought to be a little loose in that regard.
Duly authorised by whom?
By the council.
In the event of the chairman being ill.
Should not that be stated?
The normal procedure is that there would be people delegated.
I am suggesting that the amendment should state that such a person should be duly authorised by the council.
I will consider that on Report Stage.
Amendment agreed to.
I move amendment No. 33:
In page 17, between lines 32 and 33, to insert the following subsection:
"(6) A patient's medical record shall be made available to the committee only with the consent of the patient, or of his parents, or of his next of kin, or of his legal guardian."
The patient's medical record is a private and confidential matter and the doctor could find himself in very serious trouble if he were to make available the medical record of a patient without the patient's consent or the consent of his or her guardian. This question of confidentiality is very serious and we should not treat it lightly. The patient's medical record may be called for and I should like to know in what position the doctor might find himself vis-à-vis the patient or his relatives. This would be a form of court proceedings. Can the doctor claim privilege in such a situation?
This is a point of some substance but I am loath to accept the suggestion. The patient's medical records are not the property of the patient but the property of the doctor. The patient could put the doctor in a very awkward position if we were to give him this power. It is a debatable matter and we must assume that the committee will act with fairness and impartiality. They have been given very effective powers of privilege and confidentiality and we must assume that they will act in a reasonable manner in this regard. My first reaction was in favour of this amendment. Why should my medical records be used in proceedings without my sanction? Why should some group of people have access to my medical records without my agreement? On the other hand, the more I thought about it the more I decided against it. One could visualise a situation where the doctor's records of his patient would be essential for his defence and he could be prevented from using them. There is a point of some substance in the amendment, but on balance it would be better to leave it to the discretion, the impartiality and the objectivity of the committee.
This is a far more serious matter than that. The record belongs to the doctor but it is not necessarily correct. Let us suppose that in a court case it was decided that the clinical, X-ray and pathological test records belong to the doctor, but when a patient disclosed confidential information to the doctor the patient did so on the assumption that it would not be disclosed to anyone. On this question I am asking the Minister to consult with his advisers again. It is a very serious matter. If a patient comes to me and gives me private information I have no right whatsoever to disclose that information and I must claim privilege in a court and I have no doubt the judge would give me privilege. Otherwise, I would soon cease to practise. I suggest that the Minister ask his advisers to think again about this.
I accept it is a very important net issue. It is a question of trying to decide which is right. I am sure the Deputy will accept that in most cases it would be the patient who would initiate the case against the doctor.
Not necessarily.
It does not matter which circumstance applies. If a member of the general public makes a complaint the same situation arises. If a patient lodges a complaint, in most cases he would wish to have the records produced, but he might not. I do not know how Deputy O'Connell would deal with a situation where a patient or a member of the public lodges a complaint, the practitioner has his professional record of what took place but the patient would have the statutory right to prevent him from producing his own records in his own defence. That would be an equally difficult situation. However, we will have a look at it again.
Suppose the patient withheld consent and the doctor gave the records without that consent, he would find himself in court, convicted and erased from the register on that basis alone because disclosing information without the consent of the patient is a very serious matter.
These are all totally privileged cases.
Suppose I ask a patient if I can disclose the record and the patient says I shall not. If I do he can bring me to court. The doctor has ignored the patient and he could find himself in a position of breach of contract and in court.
On the other hand, the Deputy must accept that a far more serious situation could be created if a patient complained of a doctor to the council and the council referred it to the Fitness to Practise Committee. The patient had an ailment, the doctor treated him for it, and let us suppose the complaint has arisen from that treatment. The doctor cannot prove it to the committee's satisfaction that he had treated the patient for the particular ailment. Whatever risk is involved, surely it is better that the doctor's record be made available to a privileged body of doctors sitting in judgment rather than have a situation where a vexatious patient could prevent the doctor from defending himself satisfactorily.
Suppose I am treating a patient who may have become pregnant and she does not want this to be made known to her parents. The mother takes me to court thinking her daughter had not got the proper treatment. In that situation I honestly think the balance should be in favour of the patient. Let the patient give consent——
The Deputy is arguing my case for me.
I appreciate that the doctor is in an untenable position but I still think the consent of the patient should be necessary.
Progress reported; Committee to sit again.