Is the amendment withdrawn.
Nurses Bill, 1984: Committee Stage (Resumed).
Debate resumed on amendment No. 16:
SECTION 25
In page 14, between lines 14 and 15, to insert the following subsection:
"(2) Any fee which may be charged by the Board pursuant to paragraph (b) shall increase by a percentage of not more than the percentage increase in nurses' salaries during the preceding year.".
(Deputy O'Hanlon.)—
No. We debated this amendment on the last day but I want to ask the Minister if he has given any further thought to the matter and, if so, what arrangements he proposes to ensure that the retention fee will not rise by an astronomical figure each year or if he has any ideas on this matter.
The new board will decide the level of fee but, and this is the critically important point, it will require the approval of the Minister for Health of the day and it will be subject to the approval of the National Prices Commission. I have already elaborated on the position at some length. I do not want to tie the hands of the new board unduly but I envisage they will be very sensitive in deciding on the level of fees. In my view this is a major improvement on the fifties situation when An Bord Altranais were not empowered to charge retention fees, that is an annual fee for renewing registration. It will be for the board to decide if the retention fee will be charged annually. They may consider it desirable to do this to raise the funds necessary to cover the day-to-day administration costs of the board. In that context this Bill is no different from the Medical Practitioners Act or the Dentists Act. I would be glad to answer any other queries on this point but we have already had a debate on it.
I accept what the Minister said but in the debate the last day there was general agreement on both sides. A number of Government Deputies spoke on this, but while they were not satisfied with the wording of my amendment they agreed with the spirit of it. In view of that, I thought the Minister might have looked at this during the recess and written something into the legislation to ensure that the fee would not rise by an astronomic amount. Four years ago the fee charged by the Medical Council was £14; it is now £38 and last year they were looking for a fee of £120. We would not like to see this happening with An Bord Altranais.
The Medical Council's approach was strongly resisted by the medical profession. I have no doubt that this body, being administered predominantly by members of the nursing profession will be very sensitive about the level of fee set. I am very reluctant to limit the fee to a percentage of nurses' income because that could be more than we would want and it might not be necessary to increase fees in a particular year. I have no doubt but that the fees will be modest. The most important thing at the moment is to have some kind of fee which will provide the board with an income, of which they are starved at present.
I support Deputy O'Hanlon's amendment which is intended to ensure that the registration fee would not escalate in future years. As I said last day, if it was felt that the wording of the amendment was deficient, we would be willing to consider any amendment the Minister might bring in which would incorporate the spirit of this amendment.
During the previous discussion on the amendment, the Minister said that registration for nurses who were not working and who were unable to get employment, other than short term or temporary employment, but who wished to keep their names on the register, would be lower than the fee charged for nurses in full time employment. I said I could not find any section in the Bill which would permit this. Perhaps the Minister would explain how the new board could vary the fee.
Section 25 is an enabling section and states that the board may charge such fees as they may determine. My understanding is that there can be a variation of the fees and the board already have absolute power in that regard. I did not want to lengthen the section which has eight different types of fees which could be charged for registration, retention, restoration, certificate of registration, registration of candidates, examination fees, applications to undergo nurses training and any other service. Within that framework it should be possible for the board to have a live registration fee and for nurses who are unemployed, working abroad or taking career breaks, to have different levels of fees. There is nothing to stop the board doing this and after the new board are set up I hope to have detailed discussions with them on the need for such variations. That is my intention. The board are very sensitive about this matter and I am sure they will act reasonably. To try to write a series of variations into a section would be impossible because of the exigencies that can develop from time to time in a particular profession.
I agree that what the Minister said is his intention but he will agree that the interpretation of this Bill when it becomes an Act will be a matter for the courts. At that stage I wonder if it will be possible for the board to have other than a single fee for registration. Will there be different fees at different levels for the retention of names and for registration of persons?
I will examine the situation ——
This matter is perturbing the nursing profession because obviously nurses who are unemployed — there are quite a considerable number of young nurses in this position at present — would find it difficult to pay any registration fee. The nursing profession generally are very anxious that there should be some type of assurance that the registration fee will be at a nominal level in respect of those who are unemployed or in short term employment.
I agree with Deputy Faulkner in regard to this point. Following the debate in the last session, I got the impression that the Minister had given a guarantee in relation to this point and that he accepted our case. It was reported in the newspapers last week that out of 50 nurses qualified in a Dublin city hospital in the last few weeks, only six have got jobs. I worry because this variation is not included in the Bill and the Bill could be strengthened in this regard. I ask the Minister to include a variation in the fee to cater for unemployed nurses and those in temporary and part-time employment.
I can assure the Deputies that I gave particular consideration to the points raised by Deputy O'Hanlon, Deputy Faulkner and others who spoke on 5 December last. Under section 25, there is nothing to inhibit the board from waiving or reducing a fee on a purely administrative basis. The Medical Council can waive a fee if they so desire under a similar structure of payments and that is already in operation. An Bord Altranais would have similar powers. However, I will examine the situation between now and Report Stage to see if any more definitive insertion can be made. I will consult the board, my officers and the parliamentary draftsman to see if any more precision can be given. The trouble about precision is that it may tie down the board excessively. I had difficulty in accepting the amendment proposed by Deputy O'Hanlon because, even to say that I accepted its spirit, would be tying the fee to the increases in nurses' salaries, which might not be necessary.
Amendment put and declared lost.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill".
With regard to fees, nurses generally feel that they are not getting much more than they have at present. They will be paying this fee each year and are anxious to know what benefit will be conferred on them as a result.
The microphones in the House are not very good and I am not quite certain to which section the Deputy is referring.
We are dealing with section 25.
Perhaps the Minister has dealt with this question before and, if so, I am sorry for wasting the time of the House. I raise the question of the frequency with which the Minister intends to keep the register updated. Perhaps a yearly updating is too frequent——
This section deals only with fees.
Yes, but several paragraphs in the section refer to the register. It is in connection with the charging of fees that this arises.
This matter arises in another section.
Very well, I will raise it in another context. As far as I can recall, this is the first mention of registers.
It is dealt with in section 27.
With regard to the benefits to be derived from fees, the overall problem is that I do not see An Bord Altranais providing an enhanced level of training, education and a professional role unless the board have the basic resources to do so. Therefore, these are the benefits which will inevitably accrue from an increase in revenue arising out of the change in the fee structure.
The Minister will appreciate that, up to the present time, nurses were only required to register once, when they were trained and took up employment for the first time. As I said, they feel that the changes in the Bill will not affect them. Therefore, I am asking the Minister to give a clear indication as to the benefits which will result from this change.
There will be far better and more improved training opportunities for nurses who are already qualified and registered by virtue of the development of the work of An Bord Altranais. As a result of the system of retention, there will be a prospect of far better manpower planning in the services. We are talking about 25,000 people spread throughout all services. To have an effective role we need much better manpower planning within the health services, as at present we do not have any. The fees would enable a far better system of selection of trainee nurses. It is now generally acknowledged that there is a need to streamline the general selection of students. The examination system can also be streamlined including that for existing nurses who wish to do further study. It will also give a higher professional standing when a fee is paid. I am at a loss to understand some of the objections to this section. Those involved in the training of nurses on the lay, religious and professional side have been very supportive of the concept and see great merit in it.
We have made our views known on the various subsections. The last time we debated this the Minister told us that on report stage he would look at the question of nurses having to pay a number of fees for essential services — for example, a fee for registration, a fee for retention of their name on the register and a fee for obtaining a certificate of registration. That is unnecessary. If they pay a retention fee they should automatically get a certification of registration and if they register for the first time they should certainly get a certificate of registration. We hope the Minister will come up with something worthwhile on Report Stage. Perhaps he might look at the other issues which were raised by myself and my colleagues, Deputies Faulkner and Ormonde, before Report Stage.
I will, but I hope that at administrative level some note can be recorded regarding the level of fees. There is enormous difficulty in getting it into a legislative framework. However, I take the point Deputies have made about not having a multiplicity of fees. The last thing we want to do is bureaucratise the board.
Question put and agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
What is the purpose of this section and what is it intended to do?
The board is being given permission to make rules for the establishment, membership, functions an procedures of committees. I should like the Minister to relate this section to section 24 which has been agreed by the House. That section deals with expenses. The Minister is a member of a Government which quite rightly have their eye on trying to control the incurring of expenditure. I should like the Minister to clear with the House whether it is envisaged that these committees are entitled to run up expenses. There is a case for the board having their necessary expenses paid for them but I would not be in favour of a proliferation of committees each of which in turn would be entitled to the same thing.
As the Bill stands, I am not sure it would empower the board to defray the expenses of separate organisms such as these committees will be. As it stands section 24 could not be interpreted as meaning that all expenses incurred by the board will include all expenses incurred by committees established in pursuance of the board's regulations. I hope I am right in thinking that. I should like the Minister and the House to be clear about it.
I have no doubt but that under section 26 in the event of the board establishing a committee it would have to meet in full the cost of such a committee provided the committee was generally drawn from the membership of the board. Even if it were to appoint outside working parties or study groups inevitably the board would have to meet the cost of that structure as well.
The funds available to the board will be rather limited. It is not in receipt of a grant in aid from the Department of Health as such. It will be obliged to present to the Minister of the day and to the Department an annual report and statement of accounts. To that extent there will be a very clear overall review of any expenses incurred by the board. We cannot inhibit the board from setting up committees.
The board will be a large one with about 29 members. As such it may decide to set up internal committees. Inevitably it must do so under fitness to practise, for example. It would have to meet the cost of so doing.
The Minister would be right in his reading of the Bill as it stands if it was intended under the expression "committee" to mean only committees of the board; in other words, if it was intended that the word "committee" would include only a membership all of which was drawn from members of the board. If there was a suggestion that it meant the board had a free hand to establish outside committees, including consultants and the devil knows what, the Minister would be opening the door to expense which he cannot now foresee. I do not think expenses incurred by the board under section 24 as it stands — it is only an off the cuff reading of it — would cover expenses incurred by committees not consisting of board members or consisting partially of people who are not board members.
I do not suggest that in the context of the Nurses' Bill there is the wildest likelihood of such a thing happening but it may be that some committee, not necessarily under this Bill, would decide to go on a fact finding mission to Tokyo. Public representatives are quite capable of doing that in other areas, as we know. I am just drawing the attention of the Minister to the fact that if he interprets the Bill this way and if it can be legally so interpreted, he is leaving the door open to more expense than he may think.
It is true that the Minister will put only a limited sum of money at the disposal of the board to start with. Once the system of committees is established he will find in the board's budget allocation for the following year items included relating to the operation of committees. I have no apprehension that the nursing profession or anyone connected with it is likely to do any of these things but I am drawing the Minister's attention to the inherent capacity and tendency to all public bodies to proliferate their functions. I should like the Minister to nail this down in such a way that he will not find himself presented with bills for the operation of committees whose membership is not drawn from members of the board.
The board is so largely representative that I am not sure what kind of function the Minister has in mind for a possible committee. I am so much a layman in these matters that I do not want to pontificate about it but this very elaborate and comprehensive board, as the Minister rightly said, is larger than any board which hitherto existed in this area, but surely there will be sufficient expertise on that board to help it in the discharge of its duties without going to outsiders.
I share the criticism made by Deputy Kelly that some statutory bodies have a propensity for expenditure and a proliferation of committees which needs to be examined. There have been instances of questionable proliferation and cost in a number of cases. But I would make the point that Bord Altranais are a self-funding body. Admittedly they must discharge accountability for fees collected from the nursing profession but there is provision in section 13 for an elaborate procedure for the setting up of committees. That procedure is very clearly laid down to enable the board to carry out their functions. For example, the board will be obliged to set out a fitness to practise committee and I can envisage there being a need for the setting up by the board of a number of subcommittees. It may well be that, for instance, for the purpose of giving approval to training hospitals and institutions, there would be a small committee of perhaps six or so members. These would decide on the procedures for examinations and so on. One could hardly envisage up to 30 members going around to every training hospital. It may well be that a small number of expert members of the board will oversee the conduct of those examinations. There is a whole range of issues in respect of which a number of committees could be established. From my knowledge of the board I do not think there will be scope for any profligate expenditure or esoteric activities that are not fully encompassed within the board but if there should be I am sure Deputy Kelly would be the first to bring that to our attention.
I asked the Minister to outline the purpose of this section but he has not done so. There is an elaborate procedure being provided under section 13 for the setting up of various sub-committees. This section gives the Minister more power in that the board will need his approval in making rules for any of these committees but I do not understand the need for the section. There is no similar requirement in similar legislation, such as the Medical Practitioners Act.
The section basically is a carry-over from the 1950 Nurses Act. The current rather elaborate rules for nurses were drawn up by the board in 1953 but I believe there is a need to improve on those rules made in those rather contentious days. There is a need for an on-going approval of rules for the purpose of the operation of the Act. That is regarded as standard procedure. It is in line with the general advice available to me. I would be reluctant not to have that authority as distinct from the setting up of committees.
Does this not put a restriction on section 13 which does not contain any reference to ministerial approval? I do not see the necessity for section 26.
Subsection (8) of section 13 provides that:
The board may, subject to the provisions of this Act, regulate the procedures of committees....
Section 26 provides that the board may, with the approval of the Minister make rules for the purpose of the operation of the Act. This may sound a circumscription of the activities of the board but it is desirable that there be overall ministerial approval of the number of committees and the way in which they are operated. Otherwise the board could maintain exclusive authority to set up committees and lay down rules without any reference back to the Minister thereby vitiating the whole purpose of the Bill.
The Minister is trying to justify ministerial interference with the workings of the board. Surely we spent long enough discussing section 9 which concerned the composition of the board to be reasonably satisfied that the board will be broadly representative, that those elected to it will be responsible people. It is hardly necessary to provide for ministerial approval for a committee. We should have enough confidence in the board to allow them draw up their own rules for commitees which is the case in respect of the Medical Practitioners Act. The inclusion of the Provision for ministerial approval in the 1950 Act is hardly a reason for such inclusion here. I would have hoped that the Bill would have taken account of today's situation instead of there being a dependence on the earlier Act.
I think the Minister is right. It is normal to give to any statutory body the power to make rules for their own functions and usually these need to be in acordance with the agreement of the Minister. It is salutary to so provide because at least even if the board lay down their own rules, there will be something they will be obliged to adhere to. It is better to have it this way than to have the board wandering at large, changing their minds in an ad hoc fashion regarding any of their functions.
Question put and agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill".
At this point perhaps I could raise the matter which a short while ago you would not allow me raise.
It is more appropriate to this section.
What are the Minister's intentions with regard to the frequency with which the register is to be maintained? The reason I was briefed in regard to putting this point is that nurses, particularly early in their career, go to distant places such as the Persian Gulf in order to gain experience, or for some other reason. Therefore, because of distance and the problem of unreliable communications it might be very easy for them to miss a registration date. In such cases annual registration might be too much to ask. Equally, the necessity of keeping up registration might not be present in their minds. There could also be such problems as changes of address and difficulty generally in communications. No representations have been made to me in regard to the question of general frequency of registration but I would ask the Minister to have regard to the question of nurses who are working abroad and for whom the requirement of annual registration might be burdensome.
In such circumstances I am sure the board would make a very special effort. I would envisage a computerised register which would facilitate enormously the work of the board in that regard. It is a matter of some concern and of regret that it has been suggested that up to two-thirds of those nurses whose names appear on the current register may not be practising for one reason or another. It is essential in this day and age that we keep in close touch with the people in the profession. I have no doubt that Mr. Daly, the very competent chief executive officer of the board, will make every possible effort to facilitate the nurses who are working in the Gulf or in other countries such as Iraq or America so that Irish nurses will be fully registered with complete details in respect of each nurse. This is essential, and it can be done.
I appreciate that the Minister is anxious to sound reassuring but I would press him to say whether it may be taken by the nursing profession that whatever system of registration is adopted regard will be had to an allowance being make for the difficulties of nurses who are temporarily abroad.
I assure the Deputy that the board will be very careful; otherwise it will run into considerable administrative difficulties. They will make every effort to facilitate nurses in that regard; otherwise there would be a danger of a person not fully registered being put off the register and medical, social and legal problems could arise. Great care will be exercised in maintaining contact. I will be keeping in close touch with the board as soon as the board is established.
Will the Minister direct the board as to how often they should publish a register? Can the Minister say how often it will be published? Will it be an annual publication or a longer term publication?
Subsection (7) says:
(7) Every person whose name is entered on the register shall, as soon as may be after that person's registration has been completed, be sent by the board a certificate stating that his name has been entered in the register.
In the past there have been complaints about delays in receiving that certificate. Will the Minister consider putting in a time limit in that subsection?
I endorse subsection (7). I am aware of cases of hardship that have arisen because of delays in the issue of certificates. It would be advisable to put in a reasonable time limit by which any candidate could expect to have a certificate.
It is our intention, not that we will be administering the system, that the current administrative work of the board will ensure the automatic issuing of certificates of registration. I have every confidence in the current administrative set-up. There has been an enormous improvement of late in the issuing of certificates and there is no reason not to proceed with the automatic immediate issue of certificates provided there is authentication. Neither the board nor the current chief officer of the board wish to have bureaucratic delays.
I too have had many representations in relation to delays. If the Minister is prepared to provide sufficient funds for the computerisation of the board there will be no further problems in relation to that.
Could the Minister explain subsection (8) where it says that a certificate issued by the chief executive officer without proof of the signature of the person can be used in legal proceedings?
This is basically a protective measure in terms of administrative proof that the certificate is a bona fide certificate. As the Deputy may know, under court rules there is a certification of each document and this gives a formal authenticity to these certificates so that there can be no legal doubt that the person who is a holder of the certificate has due legal entitlement to have it and it will not require automatic signing and formal written endorsement of each certificate.
I omitted to refer to the Deputy's comments about the publication of the register. In practice the board have not been requested to publish the register. The frequency of publication is something I would leave to the board. I do not want to lay down the law as to frequency but there will be a regular publication of the register. As yet the board have not given a view as to the frequency.
Question put and agreed to.
SECTION 28.
Amendments Nos. 30, 31 and 33 are related to amendment No. 17 in the name of the Minister and they can be taken together by agreement.
I move amendment No. 17:
In page 15, lines 27 to 35, to delete subsection (6) and substitute the following subsection:
"(6) A person to whom a decision under subsection (4) of this section relates may, within the period of two months, beginning on the date of the decision, apply to the High Court for cancellation of the decision and, if such person so applies, the High Court, on the hearing of the application, may—
Amendment No. 17 agreed to.
Question proposed: "That section 28, as amended, stand part of the Bill."
Would a nurse fail to be registered because of non-payment of a fee? Would she have to apply to the court to have her name restored to the register if it was removed for non-payment of a fee?
I will have to check the particular regulation. Will the Deputy please repeat the point he made?
Subsection (4) gives the board power to refuse to register a nurse's name. I wish to know if that will include refusal to register because the nurse had not paid her retention fee?
My reading is that where a person fails to pay a retention fee they fail to register and the board would have power to refuse to give a continuing registration. I have no doubt that following payment of the registration fee there would be restoration of the name by the board.
Can a nurse take it that in no circumstances would she have to apply to the court to have her name restored if it was removed for non-payment of the fee? That is a matter that is causing concern to nurses.
I doubt that. I have been checking on the matter and it does not arise under this section.
Subsection (5) of the section states that the board will forthwith inform the person in writing of the decision and the reasons for the decision. If a person is refused entry to the register, how long would it be before that decision is communicated to her? The word "forthwith" can mean various things and I should like to know the Minister's comments regarding how long it will take for the decision to be communicated.
If there are High Court proceedings it is possible that excessive legal costs may be incurred by a nurse. What is the Minister's view in relation to costs? If a nurse is successful in her case will it be, as in normal cases, that the board will have to pay any legal costs? Where a livelihood and a profession is at stake a person may have to go to considerable lengths to have that livelihood restored. Can the Minister give an indication if the board will be responsible for the legal costs if the person involved takes a successful action?
This is a very serious and important section. While I would be reluctant to have a limit written in formally, there is no doubt that the word "forthwith" carries a very emphatic edict and this devolves on the board. The board will have to write by registered post to the individual concerned, stating the reasons for their decision. They may be permitted some time to get the reasons into formal legal form but the word "forthwith" is most emphatic. The person concerned will also have to be told the date on which the board took the decision. If there was any excessive delay on the part of the board there could be an action for damages for imputation. The section will have to be implemented with great care. In the event of the High Court finding in favour of the individual it would be a matter for the court to determine damages if they were claimed and it would be entitled to arrange for the payment of costs.
Unquestionably An Bord Altranais will act with the greatest of care and the greatest of legal sensitivity when they are dealing with this section. They will be well aware that otherwise they could find themselves in queer street. They will probably have a legal adviser to give them clear legal guidance on the operation and implementation of the section. There is no doubt that they have to have power and, basically, this relates to the unfitness of a person to engage in nursing but if one is to allege unfitness one had better be prepared to prove it. In relation to the teaching, nursing or medical professions the prospect of litigation has cured many an insensitive decision. There are some well established case laws in existence that will stand on the side of the individual on issues with regard to matters of natural justice.
Subsection (4) raises the whole controversial question of fitness to practise that will be coming up on section 5, which refers to a fitness to practise committee. Section 28 (4) states simply that the board may refuse to register somebody on the grounds of the unfitness of that person to practise. There is no reference whatever to whether that has to go before a fitness to practise committee, nor does it say, as is provided under section 5, that not alone members of the board but any person, any member of the public, may apply to the fitness to practise committee alleging grounds of unfitness to practise by some person. There is nothing in this subsection to say who is going to make the allegation of the unfitness of that person to practise. Is it some outside person who gets on to somebody in the board and says that so and so is unfit to practise and makes those allegations, and that the board do not have to go before the committee? Do the board make the decision on the information given to them etc.? There is nothing in this section to show with any clarity how they are supposed to arrive at their decision. It is set out in section 5. Controversial as the whole thing is, it sets out procedure. There is no procedure whatever in this. They just may make decisions not to register the person on that basis. In view of the possibility of false information and a false allegation being made etc., is it not a pity that the Minister when making his amendment——
Perhaps the Deputy would help the Chair. The Deputy seems to be referring to section 5. Section 5 appears to be an appeal section. Perhaps the Deputy would relate it to what he is saying.
Sorry, I am referring to section 28 (4).
The Deputy went on to talk about section 5 then.
I am simply making a comparison between this and what is happening later on under section 5 where the whole question of unfitness to practise——
Section 5?
Part V I should say.
Sorry, Deputy. I was not certain about that.
I was referring to Part V which deals with this question of unfitness to practise. This is the only reference to it in the Bill outside Part V as far as I can recall. That is why I am raising the question as to why the procedures outlined in Part V are not referred to in section 28 (4). In view of the possibilities which I see under section 28 (4) I am asking the Minister if he would not consider it to be better to have some type of appeals procedure within the nursing profession, within An Bord Altranais, before the person can take it to the High Court? At the moment the person's only recourse is within two months to go publicly to the High Court, making a whole public issue of the question. By all means it is important that the persons have that right eventually, but surely there should be a procedure in between whereby they can appeal against this allegation or against whatever has been put before them, within the nursing organisation without having to go publicly to the High Court as soon as somebody makes an allegation. Whether the allegation is justified or not, whether the person is wrong or innocent, the mud will stick once that person has to go to the High Court. I am asking the Minister if he will not allow some appeals procedure within An Bord Altranais before the matter is taken to the High Court to overcome a wrong ruling or decision by the board on an allegation made about unfitness to practise.
I must admit that I had not noticed this point, but at first blush I think there is a good deal of substance in what Deputy Mac Giolla says. Unless I have missed something here I do not understand why there was no reference in section 28 to the procedure provided for in Part V. Even without that reference I would imagine that a court would interpret section 28 as being required to be construed in the light of Part V. Even without an express provision I think that a court would take the line that since the Oireachtas has set up a fitness to practise committee, and since the criterion of fitness to practise was mentioned specifically in the section which empowers the board effectively to deprive someone of his or her livelihood, it must have been the intention of the Oireachtas that a decision in the first place as to fitness to practise should be taken by the special committee. If that is Deputy Mac Giolla's point then probably he is right, but even without a reference in section 28 I imagine that that is how a court would look at it.
I cannot understand why the matter should not be put beyond all doubt by the Minister, unless I have missed something. It would be as well if he would put a further subsection in to section 28 making it clear that the judgment of the board on the question of fitness to practise must depend on a finding of the committee to that effect. Whether it is before the fitness to practise committee or before the board themselves, there is no doubt in the light of the whole string of decisions of the courts in the last 15 years or even more, that any procedure set up by the Oireachtas, even though it does not contain explicit provisions about how it is to be performed or conducted, must be conducted in accordance with the rules of natural justice. That means that any allegation or threat or, in short, anything which either the board, the committee or anybody else have against the nurse must be communicated properly to her or him in advance and he or she must have a proper chance to understand what is being alleged against him or her, a proper chance to prepare a case in reply and a proper chance to present that case. There is no necessity to spell that out here because it is now well understood and I am sure the board which will emerge from this Bill will understand it. If, for example, a board were to come to a conclusion about a nurse's fitness to practise without hearing the nurse, without explaining exactly what the board had against her, that proceeding on the board's part would be a complete nullity and undoubtedly the board would be certioraried by the nurse and would be obliged to pay her costs. Subject to that, I would like to know why the Minister feels it is not necessary to include a reference to the fitness to practise committee in section 28.
In the last intervention the Minister spoke about delay. The fact that delay in registering a nurse, which could be very injurious to her, is not mentioned in this section does not mean that she is deprived of a remedy. Any statutory body who fail to do their job with reasonable expedition, can be judicially compelled to do it by means of an order of mandamus. However, even though that is so, there would be a case for including in the procedure which the Minister has outlined in section 28 (6) as amended by his proposed amendment the possibility for an application to be made by a nurse whose application has been pending for, let us say, three months, six months, and who has not yet had a decision, to compel the board to reach a decision immediately.
Undoubtedly the Deputies have raised a very serious issue and the touchstone of our response must be, does the section operate in accordance with natural justice? I would point out to Deputy Mac Giolla that where the board takes a decision not to register or to refuse to register the name of any person they must, in accordance with section 28 (5), communicate that decision. They must state precisely the reasons there for the decision and they must be extraordinarily careful in so doing.
A nurse may have worked abroad for many years and on her return to Ireland may wish to apply for the first time for registration here, but may never have qualified in Ireland. The board cannot be inhibited in inquiring, perhaps from another nursing registration board outside the country, as to her record. If, for example, it is found that that nurse had been guilty of grave professional misconduct, the board would have to advise the applicant that, in their view, the assessment was such that it would not warrant registering her to engage in the practice of nursing in the Republic of Ireland. There is nothing to preclude the board from seeking the views of the Fitness to Practise Committee on that particular development. It is stated that the board, or any person, may apply to the Fitness to Practise Board to make an inquiry into the fitness of a nurse to practise, on the grounds of alleged professional misconduct. They may well obtain information which would warrant a reference. They would then come to a conclusion and communicate that to the applicant.
There must be a provision, one way or the other, for a person starting to seek registration with the board. There must also be an opportunity for the applicant to appeal to the High Court. I do not know what else we could do to give basic protection to the applicant against any capricious decision on the part of the board. A nurse may have been struck off the register in another country. That would have to be taken into account and advanced as a reason, if it is the reason, for refusal to register. Other examples may be that a nurse may apply for registration and be entirely open for registration in the normal course of events but may have come into serious conflict with the law — for example on issues relating to drug addiction, to give a typical example. The board would have to judge, on a subjective basis, whether that warranted entitlement to, or disbarring from, registration. One must be very careful about such assessments. The board must exercise the power of registration and I should imagine that they would take very careful cognisance of the findings of the Fitness to Practise Committee of the board in arriving at such a decision.
I did not see the significance of this at first but, according to the Minister's explanation, the whole matter appears to be unilateral until one arrives at an appeal to the High Court. That is rather extreme. Surely there must be some machinery within the section which will allow the person being refused registration to appear before the board long before the matter comes to the High Court. It is ridiculous that the only recourse of a rejected person is appeal to the High Court.
Deputy Ormonde is quite right. The point that the Minister was making and that I was trying to make myself is that, even though this is not explicity stated in the Bill, the law will impute a duty to the board to behave with natural justice. I listened to the Minister carefully, but he did not say something that I think he ought to have said, namely, that before the board make an adverse decision—certainly about somebody who already is in the profession— under ordinary law, even though it is not spelt out in the Bill, the board will be obliged to give that person notice of the fact that they propose to make an adverse order and give that person a chance to make her case. The courts treat these matters, even though it is not spelt out in the Act, by assuming that an authority set up by these Houses will respect natural justice but, even though that is so, the Minister would be wise to make a resolution now that whatever regulations the board make under section 26 will specifically include a procedure which will keep them right in matters like that. There have been many Irish cases, since the State was founded, on questions of natural justice. In the Law Reports alone there must be 60 or 70 and probably as many again which have not got into the Law Reports. Most of these cases happened, not because any authority were malignant, malicious, or deliberately trying to do somebody out of a livelihood but because, being lay people and not perhaps having a perception of what the law required of them, they took a shortcut, did what they, no doubt, thought was fair but which did not measure up to the standards of what the law demands in terms of fairness.
This board will consist of lay people in the legal sense and, to save them from pitfalls of this kind, I think the Minister should put it up to the board that their regulations should contain a procedure which will do as Deputy Ormonde advocates, namely give people a chance, at any rate in the case of those already in the profession, to be advised of what is held against them before decisions not to register them are made.
In the case of a brand new applicant, I am not so sure that the same would be true. For example, if I were to have a brain storm and apply for registration as a nurse, the board would presumably be within their rights in refusing me and, as my application would be patently unfounded, I do not think that it would be obliged to give me a hearing. However, people in the profession who have fallen out of it or above whose heads hangs a question mark in the ways which the Minister instanced must be told, before an adverse decision is made, what the board have against them and not be left only with the remedy of applying afterwards to the High Court.
Refusal to register somebody is just the same as taking somebody off the register. If it is those persons' livelihoods; they are unable to practise their profession. A whole procedure has been set up for removing somebody from the register but there are only a few words on refusal to register. The Minister should incorporate in subsection 4, 5 and 6 that this be done under the procedures outlined in Part V, or some simple wording like that.
There is also another aspect which I happen to have noticed. In the procedure of the Fitness to Practise Committee there is a specific subsection setting out that they must maintain confidentiality, that the findings may not be made public without the consent of the person. There is nothing in this subsection to say that the board may not make their findings public without the consent of the person. There are a number of protections outlined in Part V which are not incorporated in the procedure outlined here. I hope some wording can be formulated to remedy this. I would not know the legal way to phrase it.
The Minister has said there is nothing to preclude the board from consulting the Fitness to Practise Committee, which is quite true. Probably most reasonable boards would feel like doing that. On the other hand, there is nothing to compel them to consult the Fitness to Practise Committee before taking their decision. There is nothing to compel them to maintain the procedures set out in Part V in regard to confidentiality and various other aspects. I would hope that the Minister would insert that wording here, that the same procedure would have to be adopted in refusing to enter somebody on the register as is adopted for removing somebody from the register, that the Fitness to Practise committee procedure etc. be adopted.
The other point I raised already is in regard to having some type of appeals procedure or method of discussing a case without a person immediately having to go to the High Court, which is the only recourse open to them here. That is most unfair to the individual and constitues a very costly procedure for the individual and the board, which may eventually be necessary, but which should constitute their last resort only. There should be some procedure in between which would allow them to have their case thrashed out, discussed, possibly having their union representative present in order to resolve it within the board's structures rather than having to go to the public High Court where there is no confidentiality. Once one goes there everything is publicised. It is most important under the provisions of this section that the procedure be constrained by those contained in Part V. Also there should be some method by which an applicant can go back to the board with their union representative, or for that matter their solicitor, whoever they wish to have present with them, to appeal the decision taken.
I agree with Deputies who have spoken on this section. I do not understand why it is necessary to remove this function from the Fitness to Practise Committee. Under section 13 there is an obligation on the board to set up a Fitness to Practise Committee, which committee presumably will develop a certain amount of experience in dealing with cases for removal from the register. Surely the same procedure should be followed where somebody applies for entry on the register and when the board wish to refuse them?
Under the provisions of section 39 — where there is an application for removal of a name — the CEO of the board is obliged to write to that person notifying them that a hearing will be held, the reason for the application to have their name removed, informing them that they are entitled to be present at that hearing and, if they so desire, to be represented by another party. I do not see any reason under the provisions of this section that the whole authority in deciding whether an application should be accepted for registration should not be vested in the Fitness to Practise Committee initially, that they would take the decision and convey it to the board.
The Minister spoke earlier, in regard to subsection (5), of the urgency implied in the word "forthwith". If one is notifying somebody of something as fundamental as their right to practise their profession there should be a specified time written in. The Minister did say that the board might find it necessary to investigate a person's record, for example, that of a person who had worked abroad. But surely that is giving the board power to delay conveying such a decision to the applicant? I believe that a specified time should be written in. If it has to be a reasonable time, so be it, but I do not think we should leave that subsection in such a form that there could be a long delay or certainly one longer than is necessary.
I should like to say a few words about the appeals procedure. Under the provisions here the position will be that a decision will be conveyed which will take account of the fact that one is not being registered, when the appeals procedure is then open to one. In regard to many other boards or bodies in the country, there is, if you like, a middle appeal body or court. A person, having received a letter notifying them of the decision taken that they will not be registered has one course of action only open to them after that, which is that to be taken in the High Court which we know can be a lengthy procedure. Could there not be some middle ground in regard to appeals, whether through the Fitness to Practise Committee or some type of tribunal with a representative body, when a person would be afforded an opportunity of discussing their case at that level, of having it explained to them, when they could be furnished with additional information in relation to that decision and reasons given for that decision having been taken. A bland letter being issued is insufficient for a person who is being told that a decision has been taken to deprive them of their livelihood and that they cannot glean any further information until they institute court proceedings. I hope boards will take that decision as a last resort only. Unfortunately, however, in these times, there will be cases of persons being unable to be registered. Such a middle ground in regard to appeals might save much time, trouble and expense, when any such decision could be evaluated by the applicant. We know from experiences in other walks of life, even, say, in the case of a simple planning appeal, that reasons given are often not understood and applicants go back and question them. However, one must join the queue for the High court in order to glean a little more information. While presumably the board will exercise great care and discretion before reaching such a decision, possibly it will happen that the reasons for that decision given on the notice will not be fully explained or developed to an extent that the applicant can understand, when their only recourse then is to the High Court.
I know of a number of bodies, including the law society, where there is some disciplinary committee or tribunal to which a person can resort to have their case further explained, when they may then be convinced that they should take their case further to the High Court. On the other hand, if they are not so convinced, it may save them much trouble, time and expense, if and when the worst has come about and their livelihood is about to be removed from them.
I should like to support the views of various Deputies on this section, particularly that the nurses concerned should have the right to make their cases before the board reaches any decision.
Deputy O'Hanlon in his amendments to section 30 suggests that instead of saying "Whenever the board takes any action" should be changed to read "Before the board takes any action", which more or less makes the point. If those amendments are adopted then I take it we could assume that such would afford a nurse the right to present his or her case before a decision was taken by the board.
I might make a general point first, that is that strictly speaking under the provisions of this section a person does not receive the protection of the Bill until they are registered. A person is not a nurse until the person is registered as a nurse. We are talking basically about persons who apply. On seeking information about the person seeking registration, where the board comes into the possession of information which suggests that the person might be unfit, most likely they will seek the view of the Fitness to Practise Committee for a general opinion. It is important to bear in mind that the Fitness to Practise Committee proposal relates to existing registered nurses, nurses who are registered and practising. The committee would not have a formal function under section 28 (4). They deal only with registered nurses. Section 28 (4) deals with refusing to register for the first time for reasons which would be stated and would have to be stated.
The point made by Deputy Kelly applies to the rules for registration. These rules will have to be approved by me or by the Minister of the day. It would be wise and sensible to incorporate in those rules a provision that the person would be informed in advance of the intention of the board not to register. Persons would be given an opportunity to make any submissions they might wish to make directly to the board.
Unquestionably it would be a breach of natural justice not to so do. It did not take a former Garda commissioner to prove that to the legislators of the day. One has to be extraordinarily careful about such developments. In relation to the rules under sections 28 and 26 I would insist that the board should set out that procedure. I am reluctant to put a formal time limit on the work "forthwith". It may be necessary for the board to make inquiries. They may have to write to a registration board in Australia or some other country asking for information. There may be a gap in an application. Frequently detailed inquiries would have to be made.
The board would have to maintain a substantial degree of confidentiality and, in contacting other parties, the degree of that confidentiality might be reduced. In seeking information they may have difficulty in giving absolute protection to the question of confidentiality. In publishing or making letters available, or communications which are defamatory, the board could be in dire trouble. They would be in dire trouble if they made allegations against a person as grounds for unfitness to engage in the practice of nursing and for registration.
The suggestion that we should incorporate particular procedures in the rules is a very good suggestion. I do not think it is possible to lay it all down formally in a fitness to practise committee structure within the framework of the Bill. The rules for registration can provide for that. I would be prepared to do that and to give that assurance to the House. For example, there could be prior notification of the intention not to register and then to seek submissions. We would have to do that anyway.
I cannot see us departing from the role of the High Court. There must be the prospect of an appeal. I have often wondered about other professions where committees take decisions not to issue a membership card. The right of appeal under trade union rules frequently is very circumscribed. This is a statutory body and, as such, we would have to expect a very exceptional level of concern that people would not have their professional entitlements withdrawn from them. Great care would have to be exercised. I have no doubt that the board will do that.
The rules to be drawn up will lay down that structure with considerable precision. It is not possible to have massive insertions of new procedures in the Bill on the basis of registration. We have put in the fundamental protections. A decision must be made. It must be in writing, and it must be communicated to the applicant. That must be done forthwith. The reasons must be stated and there is the option of going to the High Court within two months to get that decision reversed. That is a fairly comprehensive protection but, under the rules, it may require further development.
I accept that the Minister may not wish to insert into section 28 the comprehensive procedures which appear in section 39 of the Bill. It is stated in section 39 that the board or any person may apply to the Fitness to Practise Committee for an inquiry into the fitness of a nurse to practise nursing on the grounds of alleged professional misconduct or alleged fitness to engage in such practice by reason of physical or mental disability. It does not state that it must be a nurse whose name is already on the register. In the first part of subsection (1) there is no reason why the Fitness to Practise Committee should not investigate or inquire into whether a person should be registered. I would accept that in section 39, dealing with the penalties which may be imposed by the board, there could be a dificulty. I do not see any reason why the Minister could not amend section 39 to give the board power to censure, or admonish, or attach conditions, or to refuse to register a person after investigation by the committee.
I endorse what Deputy O'Hanlon has said. I am glad the Minister made the point that the person would be advised in advance. People can then go before the board and presumably have somebody with them if they wish, go through the whole case, hear what the board have to say, and make their reply. That is good.
A range of things is outlined in Part V. Unfitness to practise can be on professional grounds. It can also be on social grounds. The person may be cohabiting with someone else or may be divorced. Unfitness to practise can also be on physical grounds or there can be an incapacity which is referred to in section 39. Procedures are outlined in section 39 in regard to physical or mental incapacity.
Those procedures do not come into this section. That is what we are saying. I do not think the Minister's reply was satisfactory when he said the procedures begin to operate only when the person is actually registered. Registration is a very important part of the whole procedure. Some people may succeed in becoming registered but there may be many who would not be registered in the beginning who should not be excluded from the fairly tight procedures provided in section 39. I do not see why the Minister would not introduce a simple amendment. The reasons for striking people from the register will be professional misconduct or physical or mental incapacity. The same procedure should be followed in relation to refusal to put people on the register. It would satisfy Deputies if procedures under this section were directly related to those in section 39.
A small amendment of section 39 would get the Minister out of his dilemma.
It would be extremely difficult. In this section we deal with a person who is not a registered nurse, a person with certain educational qualifications which would enable him or her to become eligible for application for registration. He or she might be registered in another country but might not be qualified here because we would not recognise the qualifications in the other country. The board would inquire into the professional qualifications of the applicant for registration and decide whether the person was entitled to be registered. Section 39 relates exclusively to people who have been registered.
However, I will have a look at the matter between now and Report Stage. The assurances I have given of fairly rigorous procedures in relation to registration as a nurse will be implemented by the incorporation of these procedures in the Bill, so it will not be necessary to have a formal revision of the Bill. If applicants for registration are turned down it will be in accordance with criteria. People may be qualified in another country but we may not recognise those qualifications. It would be a matter for subjective professional assessment by the board, and in relation to applicants from EC countries the matter would be subject to EC law.
The Minister is now dealing with section 29 which we have not reached yet. That section provides that this State is obliged to recognise any EC directive in regard to qualifications.
Applications from people in other EC countries will be subject to directives which the EC have adopted. We may have qualifications which may not be recognised elsewhere, particularly in relation to particular specialities. Therefore, there is a wide variety of circumstances which would not warrant the registration of the person in the Republic and it is not possible to lay them all down. Deputy Kelly's proposal is a good one and I think we should incorporate the safeguards he suggested in the procedures. I would be prepared to do that.
If the board turn down an application for registration because they are not satisfied, the applicant can go to the High Court, and there all the papers would have to be presented. Consequently, everybody would have to be especially careful. The High Court application is the only way, finally, to arbitrate.
I am still not convinced that there should be a significant difference between the procedures for refusing to register and for striking a person off the register. Therefore, I cannot see why the Minister could not include a small amendment in section 29, when we come to it.
The Minister has been missing our point completely, I trust not deliberately. He has been talking about new applicants and about applicants from abroad who have completed their education. In fact, no nurse is registered yet. Once the Bill is passed all nurses, the 20,000 people involved in the nursing profession, must register. We are not talking about one or two people coming from abroad but the registration of all nurses in the State. The board can refuse to register any of the nurses.
Most of them are registered automatically.
Under the Bill the board can refuse to register the name of any person who is otherwise entitled to be registered on the grounds of the unfitness of that person to engage in the practice of nursing. It is wide open to the board to refuse to register any person. Nurses from the start should have the full protection of the provisions in Part V, together with any further amendments the House may wish to make to section 39. I cannot understand why the Minister is digging his heels in so much on this. What is he protesting about? What is the difficulty about saying that the registration should be done in the same way as suggested under Part V? I do not see any difficulty about that. I accept that the people concerned will be advised in advance and can argue their case before the board. That is a good thing. Nurses should have the benefit of the procedures outlined in other parts of the Bill to protect them in regard to registration. It may be that the board may not wish to register a person who has been nursing for years and that person can be refused registration.
The Deputy is wrong. I should like to refer the Deputy to section 28 (3) which states that every person whose name, at the date of the establishment of the register, is entered on the register of nurses maintained by the former board pursuant to the Nurses Act, 1950, shall be registered in the register. I am not assuming any new powers at all. All existing registered nurses under An Bord Altranais will be automatically registered——
Under the Bill before us?
Yes.
What about subsection (4) of section 28?
They will be registered on the date of the establishment of the register. There will be a total carry-over of all registrations.
Will the Minister be deleting subsection (4)?
No. I am talking about new applicants, persons applying de novom. The new board will lay down examinations and qualifications needed by people to be registered as nurses. If a person does not have the required qualifications that person will not be registered. That is the main purport of the section and I do not think any Member can assume anything else. I do not think one should extend fitness to practise procedures to fitness for registration. If a board lays down basic qualifications for registration it cannot stray away from them and adopt arbitrary qualifications as it goes along. The board will lay down the required qualifications before certification. If a board laid down a whole series of other qualifications that would become obvious very quickly and be open to ministerial intervention.
The High Court will not allow any board of whatever composition to capriciously change its qualifications as it goes along. They will be set down for a specified period. I do not think there will be a massive problem in that regard.
I should like to point out to Deputy Ormonde that members of the fitness to practise committee are members of the board and, as such, will be laying down qualifications for entry in the register. I undertake to have a look at this matter between now and Report Stage but the fears of Deputies are unnecessary. The protection I proposed to give in the rules to be followed will be comprehensive.
There is a certain substance, even if it is only a verbal substance, in Deputy Mac Giolla's case. As I understand it, his point is that, while subsection (3) states that every person shall be registered in the register, the following subsection states that nothing in this section shall operate to prevent the board from refusing to register the name of any person, who is otherwise entitled to be registered, including those entitled under subsection (3), on the grounds of the unfitness of that person to engage in the practice of nursing. An answer to Deputy Mac Giolla—it might not be an adequate one—is that there is no likelihood of the board being faced with what otherwise would be the automatic operation of subsection (3) doing a fine comb operation on 20,000 nurses to see if it could discover personal unfitness in any of them. I do not think that is what the Bill intends or that the Minister intends it. At the same time there is a certain verbal substance in Deputy Mac Giolla's point. The sequence of the subsection suggests, with particular reference to subsection (3), that the operation of that subsection, which otherwise would be automatic, is made subject to the capacity of the board to refuse to register a nurse even though she had been on a previous register.
The unclarity could be avoided if the Minister made a small amendment to subsection (3) to clear up this point. Is it intended that the operation of subsection (3) should be automatic? Is it intended that the words "shall be registered in the register" means that any nurse maintained on the register under the 1950 Act will go straight to the new register by operation of law or does it mean that the board is under a qualified obligation to register the nurse, qualified only by its permission under subsection (4)? It seems to me that the wording of subsection (3) leaves both interpretations open. If the Minister was to make it clear that the intention in subsection (3) was that the registration was to be automatic and by operation of law without any interposition of the board's activities then the reason for Deputy Mac Giolla's concern would disappear. If, on the other hand, subsection (3) means that the board is required to register every nurse, that it is through the instrumentality, even if only a notional one, of the board that the nurses registered in the new register, then he has a point. I do not think there is a lot. of substance in it in reality because I do not expect that the board will fine comb 20,000 persons. However, I believe that is the substance of Deputy Mac Giolla's point and the Minister could clear it up by a small change in subsection (3).
I can assure the House that I am most anxious to clear it up because it was not the intention that there should be any doubt in that regard. I will consult with the parliamentary draftsman between now and Report Stage and it may be possible to delete "is" and insert the words "shall be". That might meet the situation. Between now and Report Stage I will consult with the draftsman in that matter. I can assure the Deputy that the automatic carry-over of the currently registered list was and is the intention.
Question put and agreed to.
SECTION 29.
Question proposed: "That section 29 stand part of the Bill."
Could the Minister clarify the wording of this section because from reading it I get the impression that once a nurse is recognised in another state we must automatically accept it and the nurse does not have to go through a procedure of registration. Is that so?
No. The board can still exercise their function under section 28 (4) but they would have to state the grounds. The automatic transfer across member states is not absolute. That is my understanding of the matter.
Section 29 reads:
Every nurse who is a national of a Member State and has been awarded a qualification in nursing in a Member State
and this I find very confusing
which, pursuant to the provisions of any Directive adopted by the Council of the European Communities, the State is obliged to recognise,
I presume that means this State.
Yes.
Tomás Mac Giolla:
—shall, on making an application in the form and manner specified in rules made by the Board, and on payment of such fee as may be so specified, be registered in the register.
I cannot see a way out of that. Once a nursing qualification is recognised in another member state this State is obliged to recognise it and the nurse shall be registered. I am not objecting to this because I do not have strong views on it, but I want to know if that is what we are passing.
The rules covered in section 28 (4) can come into play and the application must be made in the form and the manner specified in the rules. Without being in breach of EC directives, I will be implementing this section with considerable care. I have some reservations about that situation and if there is another informal meeting of Ministers for Health in the early part of 1986 I will look forward to having a close look at this situation. We will give the maximum protection to our qualifications. I will not elaborate on that further.
Do the Department feel obliged to omit from section 29 a similar provision to that in section 28? It seems that a nurse who is a national in another member state is entitled to be registered and so avoid the personal fitness hurdle. There does not appeart to be any provision for subjecting foreigners to the personal fitness test to which our nurses are being subjected. I hope I have not misread that. It appears that there is at least a strong case for including in section 29 a subsection similar to section 28 (4).
This arises in the context of initial registration. The board have an entitlement to determine fitness to practise. For example, if an individual from a member state had the desired qualifications he or she would have to make application to An Bord Altranais for registration. That board would and could be empowered under their prescribed registration procedure to make inquiries to the member state and, on obtaining the information, may decide not to register that nurse. The board would still have that residual power but it would have to be exercised under Community law or Deputy Kelly and Senator Robinson would make us the topic of conversation at breakfast tables all over Europe. The national of the Irish Republic would be on a par with the citizen of the member state. I gather this is a standard section in relation to registration of professional bodies and we do not have much option. I cannot qualify this any further.
I do not like mentioning these disobliging instances but the Minister had the courage to do so an hour ago. Suppose a nurse qualified in Denmark, and presents herself here. If the board hear that she has a string of convictions I cannot see where it is made explicit in section 29 that the board can decline to register her whereas with the bringing up to date of the register in the case of Irish nurses, that would be a black mark and the board would be entitled to refuse to register her on grounds of personal unfitness. Perhaps I have overlooked something, but I am not sure if foreigners should be put in a situation of privilege compared with Irish citizens.
Why not include at the end of this section wording similar to that in section 28?
I will check very carefully the point made by Deputy Kelly. The provision in this section is analogous to the provisions in the Dentist Act. This is the general format needed to meet the requirements of EC directives. We do not have an entitlement for total qualification but the application must be in the form and manner specified by the board. I am not sure if that is protection enough but I will check if very carefully and come back to it on Report Stage.
Question put and agreed to.
SECTION 30.
Amendment No. 18 in the name of Deputy O'Hanlon. Amendment 19 is consequential. Is it agreed that amendments Nos. 18 and 19 will be discussed together? Agreed.
I move amendment No. 18:
In page 16, subsection (2), line 3, to delete "Whenever" and substitute "Before".
Arising out of the discussion on section 28, the need for such an amendment becomes more obvious. The purpose of the amendment is to ensure that where it is proposed to remove a person's name from the register that such person should be notified in writing before that action is taken. I know section 30 (1) gives various examples of persons whose names would be removed from the register and, presumably, they will have been before the Fitness to Practise Committee. The section also deals with the registration of names in the register but, for the safety of the nurse whose livelihood is at stake, every safeguard should be taken and, rather than wait until after a change is made in the register, the person should be notified before such change is made. If the amendment is accepted, the next amendment in my name is to insert the words "proposed to be" after "actions".
I support the amendments in the name of Deputy O'Hanlon. We had a very long discussion on section 28 during which doubts were expressed as to whether, under that section, a nurse would have the right to put his or her case before the board. If Deputy O'Hanlon's amendment is accepted, it would ensure that the nurse in question would have the right to make a case before the board. Otherwise, the subsection could be interpreted as meaning that the board could make a decision unilaterally.
The principle of correcting, renewing and bringing the register up to date from time to time is to be welcomed. However, in relation to this, how often does the Minister envisage this happening? An outdated register is not much use to the board, the profession or to hospitals. Will it be updated every couple of years, particularly with regard to people who have died or who are not practising any longer? Other professions keep their registers up to date and it is essential in this case also.
As Deputies are aware, this section obliges the board to ensure that the register is kept in a correct and proper manner. There have been some inquiries about the meaning of verbal and clerical errors. They are as stated in section 1. Verbal errors may be interpreted as those which are recorded on foot of incorrect verbal or written information supplied and clerical errors occur when correct information is incorrectly recorded. We have taken cognisance of those two prospects but I regret that I am unable to accept the amendment suggested by Deputy O'Hanlon because the use of the word "whenever" would leave it to the board's discretion to notify the person either before or after they take any action to correct the register. For example, where an entry is procured by fraud or misrepresentation, it is incumbent on the board to correct the register as a matter of urgency. Such a person would, in any event, be notified under section 50 of intention to prosecute. Immediate action would be required in that regard because there could be serious medico social and legal problems arising in such cases. For these reasons, I am reluctant to accept the amendment suggested by Deputy O'Hanlon because the particular requirements are very rigid. Keeping the register correct will be enormously facilitated by the retention situation and it is of the utmost importance that we have an up to date, correct as possible, register in existence at all times. Therefore, I do not propose to accept the two amendments as they would substantially weaken the section.
I accept what the Minister says in relation to the importance of keeping the register up to date and correct. However, this is a very important section in that it can result in a unilateral decision to have someone erased from the register. Our amendment should be taken in that context. We are asking that the person concerned has some recourse to the board before a decision is made. We talked about unilateral action in relation to section 28 and it applies here also. This section can result in erasure from the board and, because of that, it is important that a person should have recourse to the board before a decision is taken. For that reason, I ask the Minister to reconsider in regard to these amendments.
It is confined to verbal and clerical errors and to entries procured by fraud or misrepresentation. It is also confined to changes in addresses which become known to the board and also in relation to deceased members. In cases like these the board have power to amend the register — it is all very mundane. The board should be empowered to work in a rational way on a day to day basis in keeping the register up to date——
Such amendments can result in erasure.
Yes, in very rigid circumstances which would clearly not give rise to a person being removed from the register in any kind of capricious way. It would not be possible to have advance notice given in those circumstances.
Having one's name on the register is of fundamental importance to the practice of their profession. It is possible that a name might be removed through an error on the part of the board. I cannot see any reason why the Minister will not accept our amendment and notify persons that it is intended to remove their name from the register within 21 days unless the board hears from them to the contrary.
If the board hears from someone that a nurse has died they will remove the name from the register and notify the next of kin. Having done that they could find out that the person in question had not died. What safeguard is there to ensure that the board would be correct in assuming that a nurse had died? If the Minister accepted our amendment the board could inform the next of kin that the name would be erased from the register within 21 days. If a mistake was made the person could then write to the board and point that out. That would be a safeguard to protect the interest of nurses.
The only basis on which a name would be erased from a register is in the event of death or in the case of fraud or misrepresentation. Fraud and misrepresentation are clearly defined in section 50 and there is the prospect of immediate prosecution. If a person has fraudulently succeeded in getting their name put on the register the quicker they are taken off the register the better rather than waiting to take them to court. The board would be loath to initiate a prosecution unless it was clearly evident that fraud or misrepresentation had taken place.
As regards the compilation of the register, people are notoriously slow about replying and one could be writing to people ad nauseam. They do not notify a change of address and if the board writes to a person and receives the letter back marked “not known at this address” they could not change the register. Health boards and hospitals keep up to date information regarding the addresses of their staff. In that way the board could obtain the correct address and write to the person to tell them that they have not sent in their correct address to the board. People are notorious as regards their personal administration and keeping themselves, one might say, alive professionally. That is why the section is there. It has no other purpose. The board will keep writing to people until they find out where they are, otherwise an up to date register could not be kept. I am sure the records will be computerised and I envisage warnings being issued to people to alert them that they cannot be contacted at the address which they gave to the board.
I do not agree with the Minister that section 30 is very confined. It mentions the various instances in which a name can be removed from the register. The board can remove from the register the names of persons whose deaths have been notified or come to the knowledge of the board. If somebody reads of a death in the newspaper column will that be accepted as coming to the knowledge of the board? What I propose would not increase the workload of the board because they are obliged to notify the next of kin after taking the action. I am suggesting that they notify them before taking the action to say that action will be taken within 21 days.
The Minister does not appreciate the importance to a professional person of maintaining their name on the register. We must put as many safeguards as possible into the Bill to ensure that names will not be erased incorrectly from the register. I see no reason why the Minister cannot accept this amendment.
I have strong reservations about the matter. Surely it is not suggested that where the board becomes aware that fraud or misrepresentation has been perpetrated, the board should write to the person? If one wants to refer a matter to the DPP one keeps one's mouth shut and one compiles all the necessary information. In the case of the board discovering a fraud or misrepresentation they will take action first and then proceed to prosecute. The DPP will take it from there. With due respect to the medical profession, people who are not doctors have performed operations. Under the medical and dentistry Acts there is such a provision whereby a name can be summarily withdrawn from the register.
I will have a look at it before Report Stage but I have some doubts about it particularly in cases of fraud and misrepresentation. They are serious charges. The board might be preparing an action against someone and that person could continue to practise for a few months.
As regards fraud and misrepresentation, surely the person will be presumed innocent until proved guilty? Before the board would act in such a case they would have all the information and proof they need. At that stage the board would notify him of their intention. The Minister is suggesting the person would scamper out of the country.
He could do so overnight. The real danger in giving advance information to people who are committing fraud is that it might mitigate the prospect of any kind of successful prosecution.
I agree with the amendment put forward by Deputy O'Hanlon. The Minister is referring to fraud as if a person had embezzled money or done something of that kind. What is involved is that the person procured his representation by fraudulent methods. The person has not forged any cheques or committed all kinds of fraud. Once the board have evidence of fraud or misrepresentation and it is discovered, I do not see why it cannot tell the person that and tell them that the board intend to strike him off the register. In all of this the Minister is assuming that the board will act in the most reasonable and sensible manner but if every board or every manager or trade union official acted in the most sensible and reasonable manner, we would not have any problems, industrial or otherwise. We must assume that some board at some stage, as can be the case of a Minister or Deputy, for instance, will not act in the most reasonable fashion. That is why we must provide in legislation for the protection of people against these types of possibilities. Consequently, I would have expected the Minister to accept the amendment immediately. I do not follow his point regarding fraud or misrepresentation. What we are talking about is merely procuring registration by fraudulent methods or by misrepresentation.
Fraudulent misrepresentation in this context means basically the use of the titles, "nurse" or "midwife" without the person concerned being qualified in that respect. We all know that can happen even with the best possible organised structure. We have all heard of cases of people wearing nursing badges purporting to indicate qualification in another country when they have never been qualified. There are people who would go to any lengths in terms of making false declarations or misrepresentation for the purpose of obtaining registration.
All we are providing in this section is that where the board become aware of such circumstances, they are empowered to remove from their register the entry concerned. My problem with Deputy O'Hanlon's amendment is that where that action is contemplated it is proposed that the person be given advance notification. That is not provided for in the Medical Practitioners Act or in the legislation dealing with dentists, so I do not see why we should place the nursing profession at a lesser advantage.
I cannot envisage how An Bord Altranais would come to such a decision. Would ordinary justice not dictate that a person would be notified that his professional registration was to be taken from him and that he be given the reasons for that action? I do not follow the Minister's argument about fraud and about the danger of someone absconding. In referring to fraud he drew an analogy with the medical profession but what he had in mind were people who were not qualified. These would not have been on the medical register in the first place. Consequently, the removal of their names would not arise. Likewise, the question of someone donning a nurse's uniform and purporting to be a nurse would not arise within the terms of the Bill because such a person would not be on the register. I could not envisage the board striking a person's name from the register without giving that person any opportunity of proving that he was properly qualified. From what the Minister has said I am more convinced now of the need for the amendment.
I will consider the amendment between now and Report Stage but I do not accept the arguments being put forward. Section 50 has been carefully drafted. We are talking about a situation in which a person might use the title, "nurse", thereby implying that she was registered as a nurse without having been qualified. I have come across that sort of situation in a nursing home. In that context the board should be given power to determine whether a person was registered on the basis of fraud or misrepresentation and, also, to remove the person's name from the register. It is not our intention to impose some kind of penalty as a result of an error on the part of the board because to do that would lead immediately to the board finding themselves in trouble, but where it is evident that a name should not be on the register, whether because the registration was obtained by fraud or misrepresentation or because a person had died in the meantime, the board should have the right to remove that name. I think any court interpretation of such an issue would be on those lines. However, I will consider the matter before Report Stage with a view to ascertaining whether there are any separate circumstances which require attention.
Section 50 refers to persons who were never registered but in section 30 we are referring to persons who have been through the rigorous procedure of having their names entered on the register. We spent a good deal of time on section 28 debating the various powers the board have in reaching a decision as to whether a person should be registered. We are talking now about removing from the register the name of a person who has gone through the procedure of being registered. In those circumstances ordinary justice would dictate that the person be notified in advance. Apart from the various reasons outlined in section 30, I have in mind in particular the board receiving knowledge that someone had died when that was not the case. Acceptance of the amendment would neither be lessening the power of the board nor doing any injustice to the nursing profession. It is merely a further safeguard to ensure that a person's professional standing would not be taken from him because of error.
I will give an extreme analogy here. If for the sake of argument an employee of the board accepted a bribe to register somebody wrongly and issued a certificate, the board on discovery of that should have automatic entitlement to act there and then to remove the person. No matter how careful the procedures of registration are that sort of thing can happen. In the medical profession in America where there are all sorts of protective devices in the health insurance schemes because of the prospects of litigation there is no end to the chancers who will get a registration. There will always be the one person who will beat the system. In that situation it can be of critical importance that the person be removed straightaway. If a person is fooling the system under that section the board will have to have manifest evidence and will have to refer the matter immediately to the DPP and prosecute and remove him. This might well be somebody who is installed in a hospital, a health agency or a nursing home purporting to practice as a nurse. What does one do? Do we send him a nice letter saying that it has come to our attention that he is not who he purports to be? The person would disappear overnight. He might be wanted by the Garda for malpractice in terms of activities which could have resulted in the death or injury of patients. That would give the person an alert so that he could disappear. Admittedly I am giving ultra extreme cases, but operations have taken place in Ireland by people who represented themselves to be doctors but who were not doctors.
They were not on the register.
No, but they managed to have documentation and certification saying that they were doctors. It is not unknown for people who are not nurses to wear nurses badges. I see the point the Deputy is making in terms of the need to counter-balance any prospect of injustice to people. At the moment I would have great difficulty in accepting the amendment as it stands but between now and Report Stage we will discuss it to see if we can resolve the issue.
In effect what the Minister is doing is justifying a power to the board to erase the name of somebody at short notice in the interests of the public and the nursing profession generally. I accept that in an extreme case it might be necessary to ensure that a person might not practise as a nurse but if what the Minister is saying on this section is justified surely he cannot accept Part V of the Bill at all, where there is rigorous and complex procedure for erasing a name following allegations of professional misconduct. Surely what the Minister is saying in relation to section 30 would have to apply in relation to section 39. If somebody was guilty of serious professional misconduct the Minister is saying that that person's name should be erased immediately to protect the public and the nursing profession, but that is not the case according to this Bill because in it there is a very elaborate procedure whereby the rights of every person whose name is on the register will be protected. Surely if a person is practising as a nurse and since that person has his or her name on the register by fraud or otherwise, there are other procedures whereby he or she may be dealt with. Such people could be suspended from duty and possibly court proceedings could follow. If we accept what the Minister is now saying in relation to section 30, it would be even more important where there were allegations of professional misconduct and where the board were satisfied that these could be substantiated without the elaborate investigation under section 39. It is a very dangerous area. It is necessary to include that safeguard to ensure that names would not be erased very rapidly in error.
I will consider the matter between now and Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Section 30 agreed to.
SECTION 31.
Question proposed: "That section 31 stand part of the Bill."
This section is opposed by Deputies O'Hanlon, Mac Giolla and De Rossa.
This section is of fundamental importance. I will read it out because of its importance.
The Board may, with the consent of the Minister, or shall, whenever the Minister so requests, register in a register maintained for that purpose, the names of persons who are engaged in a profession or calling which is ancillary to nursing, and the provisions of this Act, subject to such modifications as may be specified in rules made by the Board, with the approval of the Minister, shall apply to any such registration.
The board will have the power to register persons who are not nurses and the Minister will have the power to direct the board to register persons who are not fully qualified nurses. We consider it fundamental that a register of nurses should only contain the names of fully qualified nurses. In various professions registers only contain the names of fully qualified members of the profession. For instance, the General Nursing Council in the UK say that a profession cannot be defined by any one of its several features, that its practise needs to be based on a recognised body of learning and an independent organisation must be responsible for its development and control and that admission to a profession is based on standards of competence attested by examinations and attested by experience. To register persons who are not fully qualified nurses would cause chaos in the profession. There are ancillary grades of nursing who make a very valuable contribution to the care of persons. UK state-enrolled nurses are not recognised as being fully qualified by the health services here, nonetheless some of them are employed and make a valuable contribution to the care of patients. If the Minister believes, as he has said in this House as far back as February 1983, that ancillary professions should have their own registration body, I support him fully but the ancillary professions should not be registered in a register for nurses. We feel very strongly that only fully qualified nurses should be in a nurses register. It is a fundamental principle of all professions that there can be only one standard of qualification for that profession. We oppose this section with vigour. The Minister should delete that section altogether in the interests of the general public and of the nursing profession.
Will the Deputy report progress?
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.