Medical Practitioners Bill 2007: Report and Final Stages.
I move amendment No. 1:
In page 9, between lines 26 and 27, to insert the following:
"(2) The collective citation "the Health Acts 1947 to 2007" shall include section 57(9).”.
Amendments Nos. 1 and 55 are being discussed together. On Committee Stage, I indicated I would bring forward an amendment to the Medical Practitioners Bill to take account of the new provisions on protected disclosures which were included in the Health Bill. The first in this group of two amendments is included as a consequence to my proposed amendment to section 57 to ensure a citation of the Health Acts will include the new provision in section 57(9).
The new sections on protected disclosure inserted in the Health Act 2004 include a reference to section 45 of the Medical Practitioners Act 1978 which deals with an application for an inquiry on fitness to practice. As the Medical Practitioners Act 1978 is to be repealed by this Bill, it is technically necessary to make provision for the new replacement provisions under section 57 of the Bill under which a complaint may be made to be referenced in the Health Act as a protected disclosure. This is purely a technical matter to take account of the repeal of old provisions and their replacement with the new provisions in this Bill.
Amendment agreed to.
I move amendment No. 2:
In page 11, line 35, after "a" to insert "significant".
This relates to a concern I had with regard to differentiating between a significant failure by a practitioner to meet the standards of competence and the rather blanket term used at present. I understood the Minister would deal with this.
I examined this and took legal advice. The strong legal advice received and the advice of the Medical Council was to stick with the case law. In his decision in O'Laoire v. The Medical Council on 27 January 1995, Mr. Justice Keane stated:
conduct which could not properly be characterised as "infamous" or "disgraceful" and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute "professional misconduct" if it is conduct connected with his profession in which the medical practitioner concerned has seriously fallen short, by omission or commission, of the standards of conduct expected amongst medical practitioners.
Mr. Justice Keane also stated only conduct which seriously falls short of the accepted standards of the profession could justify a finding by the professional colleagues of a doctor of professional misconduct on his part. This is the case law and I am strongly advised by the Attorney General's office and the Medical Council that the Bill is appropriate and only deals with what the judge stated seriously falls short of accepted standards. Deputy McManus made the same point, that minor issues would not involve a doctor being struck off.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 16, line 11, to delete "where appropriate,".
I propose this amendment to take account of the matter raised by Deputy Gormley on Committee Stage. Following consultation with Parliamentary Counsel, the words "where appropriate" may be removed. I hope this satisfies the Deputy.
Amendment agreed to.
I move amendment No. 4:
In page 16, line 43, after "including" to insert the following:
"the advances, limitations and risks of current medical knowledge and practice".
I raised this matter on Committee Stage on the basis the Medical Council has a public education role which should be specified in the legislation. While I appreciate the Minister made the point that this was sweeping, I expected a Government amendment on it and the Minister indicated she would table one.
I had this matter examined. The medical profession specialist training bodies would have some expertise but other bodies such as the Irish Medicines Board would also have an interest. As it evolves, HIQA could have a partial role in holding information on some of these matters. On reflection, I consider this is not a role appropriate to the Medical Council and I discussed it with one or two staff members of the Medical Council. The information required to implement this amendment is too wide and varied and would not always be available to the council on an ongoing basis. While I appreciate the spirit of the amendment I consider it is not practical to assign this function to the Medical Council.
I regret this as an opportunity lost. One of the difficulties experienced was that the Medical Council is seen as a distant august body which perpetuates the idea that doctors are somehow superhuman and not like the rest of us. I though the Medical Council reaching out to the public would have been a good part of its brief.
Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 are alternatives and will be discussed together.
I move amendment No. 5:
In page 17, line 44, after "order" to insert the following:
"following consultation and agreement by the Council".
I commend this amendment to the Minister. I was unable to contribute to Second Stage due to a personal health setback. I wish to take this opportunity to emphasise what was stated by my colleague, Deputy Crowe, who spoke on Second Stage on my behalf. This Bill is necessary and its priority must be to ensure the best health care provision for patients through proper accountability and the highest standards of training for health professionals.
The core of the Bill and the subject of these amendments is the reform of the Medical Council. There has been much controversy on this matter and the representative bodies, both the IMO and the IHCA, were extremely pro-active. The last meeting I had on the Thursday night was a first-time experience with the IHCA. Little did I realise that within hours I would be dependent on their colleagues' professional services.
The arguments around this Bill centre on whether there should be a lay or medical majority on the council. I must state having given the arguments serious consideration, I do not have a difficulty with a lay majority. Whatever the case may be, the real question is who will represent the interests of patients. That is the most important thing to address. In our assessment of the matter we must ask whether the new Medical Council will serve the patient better. That is the question in the minds of most people, certainly all those interested in the passage of this legislation.
What is being attempted in amendment No. 5 is to strike a balance between self-regulation and public accountability. Taking on board that the immediate backdrop to the Bill is the dreadful experience of the women in the north east, as exposed through the Neary case, the shameful treatment of the women victims of that scandal, one must say that the Neary case was a classic example of self-regulation failing miserably and compounding the hurt and pain, as we saw in the address of the cases concerned by Mr. Neary's three colleagues. Following that there can be no doubt in anyone's mind that change was absolutely essential.
Legitimate concerns have been raised. I have listened carefully to the arguments of the IHCA representatives and I respect the positions articulated. They believe the Bill may in some respects go too far in one direction and confer too many powers on the Minister. My amendments and those of others on this Stage of the Bill's passage attempt to address those concerns.
Amendment No. 5 provides for consultation with, which is very important, and agreement of the new council before the Minister confers further functions or responsibilities on the council beyond those extensive powers and responsibilities already outlined in the Bill. That is a reasonable proposal which gives recognition to the integrity of the council. It makes very clear that the council is an integral component part of any consideration of future vesting of new responsibilities or remits. Before any proposal to widen same, the Minister must consult and secure the agreement of the council.
I commend the amendment to the Minister and hope she will recognise and appreciate the good sense in this and the good practice it would represent. I expect that the Minister and the House collectively will receive a good-hearted response from the varying interests that this Bill seeks to address. I commend the proposition to the Minister. Consultation and agreement of the council should be central to this area, specifically the widening of powers and responsibilities of the council in the future.
I will withdraw my amendment.
This seeks to simply reinstate the existing power under section 62 of the 1978 Act. In case there is confusion, the purpose here is to assign additional functions connected with "registered medical practitioners, their education and training and the practice of medicine by medical practitioners" and "the implementation of any directive or regulation of the European Union concerning the practice of medicine, medical practitioners who practise medicine and the recognition of qualifications of medical practitioners exercising their right to freedom of movement within the European Union". Clearly, any functions assigned to the council relate to these matters.
There is also a provision under section 8(2), which states: "Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which the House has sat after that order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under it."
I should have stated at the outset that I am delighted to see the Deputy back. I privately wished him well. He seems to have got back to good health very quickly and I am delighted that is the case.
I thank the Minister for her kind remarks, which she already conveyed to me personally. I am very grateful for that.
This is an important measure. There is a serious chasm between the position argued for by the representative interests, who have lobbied extensively, and what the Bill now proposes to do. While I have indicated, as my colleague did on Second Stage, that I have no difficulty with the lay majority issue, I am, nevertheless, mindful of the arguments articulated very well to me some weeks back. There is good cause and justification to take on board this measure, which ultimately leaves a responsibility on the council to determine the widening of its functions and remit. We should accede to that and accommodate it in the passage of this Bill. We should try to create a scenario where all interests will view the future role of the council and the whole area of governance, accountability and transparency of medical practice at all levels so that there is a broad welcome and a good heart — a pun I did not intend — towards an effective and efficient working relationship into the future.
I urge the Minister again to reconsider this amendment. Amendment No. 6 in the name of Deputy McManus seeks to achieve the same result. It is a very important issue. I do not wish to see a gulf of distrust or distress arising out of the passage of this Bill, which I again describe as very necessary.
I will reserve the position I will take on this to take into account the decisions arrived at in the course of this Report Stage. I urge the Minister to reconsider and I commend the proposition once again.
I have made my response. This is simply repeating in this legislation a provision that exists in the 1978 Act, which nobody would suggest has been abused. It concerns the functions of the authority around medical education or the practice of medicine or EU directives. It is not reasonable to have to consult a body to assign functions. If a body were in a position to indicate it would not take the functions, another body would have to be established or the first body may have to be dissolved. This is normal practice in much legislation and I do not believe anybody has ever been accused of abusing it. As I have stated, it can be annulled by the Oireachtas. In effect, it must be subject to the approval of the Oireachtas.
Amendment put and declared lost.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 18, to delete lines 24 to 32.
While I welcome that the issue of professional conduct and ethics is excluded from the "general policy directions" in the section, there is a contradiction. On the one hand, the Minister could give general direction on policy to the Medical Council, but the council need not abide by the direction on the other. If it did not believe the direction to be in accordance with its functions, it could decide to fulfil its functions or not to limit its performance in the way it perceives it has been directed. This contradiction would create a problem.
I accept we are moving away from the old idea of pure self-regulation and a closed professional system into a new era, which is for the good, but we must also acknowledge the danger of professionals abdicating their roles if they feel alienated by the Bill's provisions and the establishment of the new council. It is right that doctors must pay for the council via registration fees, but we should not remove the sense of ownership as we democratise the system. For these reasons I tabled the amendment.
There is a misunderstanding. Deputy Ó Caoláin's amendment sought to insert the clause "following consultation and agreement by the Council", that is, a Minister would only give a direction or extend the council's functions if it was consulted. It would be inappropriate to allow a council to decide against taking more functions. It is not the case that the council can ignore the directions, as it is obliged to follow them. They relate to public policy on education, EU directives and so on rather than operational, fitness to practise or ethical issues.
I agree with Deputy McManus in that it is important that the profession has confidence in the council. Regulatory bodies are to regulate in the public's interest, but it would be foolish not to regulate with the profession's confidence in the regulatory function. The Bill aims to support doctors and regulate in the public interest. The representative bodies have issues regarding the legislation and, on foot of some of the representations made, we made changes after the draft heads were published. However, many doctors, particularly those who are younger, are happy with the legislation and will have confidence in it.
Referring to a comment made by Deputy Ó Caoláin, the new council will probably not be appointed until July following the regulations being made and the elections taking place, but it would be my intention as the appointing Minister to appoint people who represent patients' interests in so far as they can be identified. There are a number of organisations. There are also extraordinary, talented and experienced people, notwithstanding the negative experiences in some cases, who have made invaluable contributions to public policy in a number of areas and who would make similar contributions to the functioning of the council. The directions only relate to public policy issues, not operational or ethical matters.
Section 9(2) could create a conflict in that nothing "in directions given under subsection (1) is to be construed to prevent the Council from, or to limit the Council in, performing its functions".
On patient representatives, I remind the Minister that when Professor Niamh Brennan examined the issue of reform of the health service and sought people to represent the public interest, thereby the patients, she could not find anyone to fit the bill as well as public representatives. No one else is democratically elected.
This is the difficulty of the idea of patient representatives. There are patient organisations and able people speaking on behalf of patients, but there is a danger of self-appointed people carving out a role they may fill well, badly or inappropriately and to whom the checks and balances placed on public representatives do not apply. I challenge the idea of patient representatives because it is a will o' the wisp. It is not that people could not be found to speak on behalf of patients, but there are no patient representatives to whom one could point as having been chosen for that role. This is a genuine difficulty to which I do not have a solution, but I would not use the term.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 19, lines 4 and 5, to delete "and in accordance with the request".
This amendment relates to control, as the Bill over-eggs the pudding. Throughout the Bill, the ministerial control of the council is not healthy or necessary. The Minister can make an order or a request and the council can make rules for the purpose of better operation "in accordance with the request". It sounds as if belts and braces must be used because the people in question are juvenile delinquents rather than sensible adults with considerable expertise. It is unnecessary wording and I ask the Minister to delete it.
Based on legal advice, it is necessary to include the wording to clarify that the request must be complied with.
Amendment, by leave, withdrawn.
Amendments Nos. 9 and 13 are related and will be discussed together.
I move amendment No. 9:
In page 22, lines 26 and 27, to delete all words from and including "in" in line 26 down to and including "Minister" in line 27.
As with amendment No. 5, this amendment attempts to moderate the somewhat heavy-handed approach implicit in the original wording of the Bill, namely, "in a form and manner in accordance with any directions issued by the Minister". Deputy McManus has accurately described the tenor of the Bill and this wording is another indication of a dictatorial approach on the part of the Minister and the Department. While I have no problem with that approach, it is unnecessary, as there is a clear obligation on the council to do all that is provided for in section 13.
The words I am seeking to delete have the further negative connotation of suggesting the strategy will be devised by the Minister or his or her office. Implicit in what is stated is a dictation that the strategy will be determined in the Minister's office, not by the council. I really do not think there can be any worthwhile outcome from the inclusion of those words in section 13, which requires the council to prepare and submit a statement of strategy. As the Minister's hopes and aspirations are already catered for in section 13, it would not be weakened by the removal of these unnecessary words. If we delete these words, this section will better reflect our approach and intent, in terms of the future working relationship in this regard. Therefore, I commend this amendment to the Minister.
While we are revisiting some old ground with these amendments, it is no harm to emphasise the point we wish to make once more. The Minister said she has met some young doctors who welcome this legislation. I do not really believe that is true, although it does not matter very much. My instinct tells me that most doctors do not care about the legislation or are not aware of it. Like the rest of the public, doctors tend to pay little heed to what happens in the Dáil until the implications of legislation become apparent. Very little has been said about the debates we have had on this legislation. If one polled this country's 9,000 doctors to ascertain whether they have any idea of what we are talking about in this instance, one would find that most of them know little about it.
Most of this Bill is quite technical. The sections of the Bill providing for ministerial direction will change the Medical Council quite fundamentally. I am not sure that it should be called the Medical Council any more. Its role is being broadened so that it will not just involve keeping doctors in check. The council will also be charged with examining the role of medicine throughout the health service, for example. Last week, we considered legislation on the Health Information and Quality Authority, which is being established because the HSE currently both purchases and provides nursing home services. It also sets standards in the nursing home sector and checks that those standards are being upheld. Nothing or very little was done over many years — certainly, patients were not protected. When the problems at Leas Cross, for example, hit the headlines, there was a slow movement to protect nursing home patients. I recently read an article which mentioned that Professor Des O'Neill's initial report on Leas Cross was half the size of the report that was eventually published by the HSE. Various officials in the HSE had to include various appendices to make clear they did not really do anything wrong, they should not be blamed, they did everything they could and somebody else was at fault. It was the patients who ultimately suffered.
This House decided last week to take the HSE out of the nursing home sector. We agreed to establish an independent organisation, the Health Information and Quality Authority, to set standards. We also gave the Social Services Inspectorate the responsibility for protecting patients in the nursing home sector. The Minister has also introduced the Medical Practitioners Bill 2007, under which HSE officials will be put on the board of the Medical Council. She has decided to subsume the Postgraduate Medical and Dental Board, which is responsible for specialist training of doctors and dentists and postgraduate research, into the HSE so that it is no longer an independent organisation. It appears that the Medical Council will have a role in the training and specialisation of doctors, thereby affecting the way in which they can register as specialists. It seems that this measure is being taken on foot of proposals from the HSE. I understand that the HSE will have a bearing on what will happen with regard to the competence assurance of doctors. The Minister has proposed that it will depend on resources being made available to the HSE. The Minister has taken from the HSE the power to simultaneously decide on standards and govern what happens within a certain part of the health service — the nursing homes sector. However, she has also introduced a Bill regarding medicine to put the HSE in charge of doctors, more or less.
I was a little surprised by the manner in which the Minister spoke about the HSE this morning. I refer to her comment that co-location is an issue for the HSE and has nothing to do with her. I find it fascinating that the HSE is now like "Big Brother", or like a computer that is more or less running itself. As a result of this legislation, the HSE is now in charge of the health services. Some people do not give a hoot about self-regulation and lay majorities. Most doctors are not engaging in this debate at all. They seldom get engaged in debates of this nature, other than when problems like those encountered at Leas Cross emerge. When something goes seriously wrong in the health services — Leas Cross was not the only example of such a difficulty — we should stand back and question how it was allowed to happen. In this day and age, how in God's name did those who were responsible for the inspection of nursing homes, including administrators who were being very well paid to protect elderly patients, not only fail to notice what was going on in such homes but also seem to allow it to happen without doing anything about it?
In 20 years' time, people will probably ask how in God's name we allowed legislation of this nature, which seems to give more powers to the Minister, to be passed in 2007. The Minister knows that such powers can easily be abused. Policy directions can easily be issued to quieten things down. The Minister has given herself the ultimate sanction of being able to threaten privately or publicly to remove some or all of the members of the Medical Council if they do not play ball. She has given incredible power to the HSE, which will be represented on the board of the Medical Council, and some other organisations that are linked to the Government, rather than to the protection of patients. The HSE is not about protecting patients. Many of the organisations and individuals which will be represented on the new Medical Council, such as the Royal Irish Academy, the Minister for Education and Science, the Health Information and Quality Authority and the Independent Hospital Association of Ireland, have nothing to do with patient safety. They are part of the mechanism of government.
The HSE and its Government allies will control things quite significantly. That is why I want to take the provision relating to ministerial responsibility out of the Bill. I have said that if I were the Minister for Health and Children, I would hate to have so much control over the Medical Council directly, which is what the ministerial responsibility provisions give the Minister, or indirectly, by means of the authority of the HSE and some of the other organisations which will now be part of the Medical Council. The ministerial appointment provisions could be bad for patient safety. I do not think it is a good idea to appoint to boards four or five people who usually have some connection with the Government. The Taoiseach has said that he puts his friends, rather than donors, on State bodies. That is what happens — it is a fact of life.
I do not think what we are doing has occurred to the Minister or to the majority of people. The general public is not engaged in this debate at all, but it will be interested in it in years to come when a report is published on what went wrong in the case of some serious disaster. I am not sure we have protected patients in the right way. I have asked the Minister previously to point out where the huge problems of which she has been made aware arise within the Medical Council, as it currently exists, or in the context of the Medical Practitioners Act 1978. It is important that some sort of critique be done on the effect on the Medical Council of the legislation before the House. I do not think the sort of ministerial authority that is being copper-fastened by this Bill was envisaged by anybody. It was envisaged that we would have proper systems of registration and competence assurance of doctors. It was intended to leave training to the training bodies. The Medical Council was supposed to have a specific role in maintaining standards and ensuring that bad doctors are rooted out of the system. The Minister has taken it a step too far.
We might rue the day that we brought this legislation through the House. The provisions contradict what the Minister is doing in other legislation, including the legislation we voted on last week. None of it is based on patient safety. Those who drafted the Bill in respect of HIQA had a different mind set to those who drafted the Medical Practitioners Bill. I do not know what will happen with the Pharmacy Bill and whether further amendments will be tabled before I read it tonight. That changed dramatically between Tuesday and Thursday. This is confused thinking. I am confused by it and, after 20 years in the health service, I am interested in this area.
The Deputy should confine himself to the amendment.
This is relevant to the amendment in respect of ministerial control. Serious concerns have been expressed by people who pay attention to these matters. What is the Minister's intention with regard to the legislation passed in recent days?
I was in the company of four doctors and a retired doctor at the weekend. I asked their opinions of lay majorities and was surprised that, in general, they thought it a good idea in moving into a different era. I consult people I know and other doctors do not have a problem with this.
Were they looking for something from the Minister?
It was a social occasion. They were not looking for anything.
Did they understand the implications of this Bill or was the discussion on lay majorities?
It was a social occasion in a private home and the only aspect we discussed was the lay majority. We did not discuss the minutiae of this Bill. Most people rely on their representative bodies or read the media and take an interest only if it is relevant to them. Doctors are concerned that minor matters and vexatious complaints will not result in an appearance before fitness to practice inquiries and their professionalism and reputation queried in an unfair fashion. The Prospectus and Brennan reports drew attention to the need for greater accountability by public bodies in the health sector. In line with initiatives by the Department of Finance with regard to public bodies in general, the Department of Health and Children issued a framework of governance document that is in line with this Bill. It outlines the form the strategy statement should take rather than the content. It should conform with the form that applies to all regulatory and statutory bodies under the aegis of the Department of Health and Children.
Competence assurance is a fundamental part of this Bill but we must wait a while before it is in place. Power in this regard is important for patient safety. A range of mechanisms are open to the Medical Council, including the preliminary hearings committee, the health committee and the mediation process. Fitness to practice applies to serious cases and immunity for doctors who report others is a matter that concerns doctors. We did not agree with everything proposed during our widespread consultation but much of this Bill is informed by representations and consultation, before and after the heads of the Bill were published.
The only duty of a member of the Medical Council is to the council. The member does not sit in a representative capacity to report to another. It is important to have a broader perspective on the council and on bodies generally. This can inform the work of a regulatory body.
I am accused of having too much control. When the Accounting Officer position was given to the HSE I was accused of giving away too much power. It seems I cannot win. Policy is decided by the Minister and the Government and its implementation is a matter for the HSE. It is not my role to receive tenders for co-location, sign contracts or decide on weightings. I do not have the competence to do so, nor would it be appropriate. That is the role of the HSE, availing of expertise to inform it, including outside legal expertise.
The amendment is in line with what is required of all public bodies under the aegis of the Department. It is good practice in respect of accountability and effectiveness.
I wish to raise a further point with the Minister, who did not respond to any of the points I made. I refer to section 13, requiring the council to match the expectation of the Minister and the Department in respect of the statement of strategy. These words are unnecessary and equate to the strategy being drafted in the Minister's office. It may not happen but it might as well. This is implicit in the manner in which this is presented. This further deepens the discontent. It is within the Minister's gift to remove this provision from section 13 and embark on a minor but important healing process.
It is in line with what is required of other public bodies. The Minister of the day may receive a strategy statement within six months of taking office. The statement must deal with the performance of the functions of the regulatory body, in this case, the Medical Council. The statement may contain information on the number of inquiries. The norm will be for such inquiries to be held in public and there will be more information available. It is in the public interest to know how many complaints were received, how many were filtered by the preliminary hearings committee, how many were health issues and how many went to mediation. These are required in a strategy statement. Members of the Houses are constantly asking me such questions. At present we receive broad information from the Medical Council. This is a good practice and is nothing more than exists in other legislation. The Prospectus and Brennan reports drew attention to the need for greater clarity and better information. For accountability and effectiveness it is a good for organisations to have strategy statements. Departments publish them and they are the subject of public debate. This focuses the minds of those who operate in such organisations, such as Ministers and public officials.
There is no objection to a statement of strategy. That was not the kernel of my argument.
Amendment put and declared lost.
Amendments Nos. 10 to 12, inclusive, are related and may be discussed together.
I move amendment No. 10:
In page 22, to delete lines 36 to 39.
This refers to the same issue of ministerial control.
When we talked this morning, it was clear that An Bord Altranais, which is responsible for nursing and midwifery training, will remain independent, as will the Pre-Hospital Emergency Care Council, which looks after the training of paramedics and ambulance staff. Even some of the bodies the Minister is talking about such as An Bord Altranais, the Royal Irish Academy, the Health Information Quality Authority and the Independent Hospitals Association of Ireland, all have boards of management with limited powers as well. The Minister is hell-bent on radically changing the Medical Council and not just as regards self-regulation and making it a lay majority. She is making quite radical changes as well as regards training.
There is a need for many of the changes, but like the competence assurance issue, the Minister is still unsure as to how this will work, apart from the fact she admitted on Committee Stage that it could take up to five years to achieve. That means, in order to root out individuals who must be watched as regards their competence, this will take quite some time. There should be faster ways of doing that. Even as regards education and training, words such as co-operation, collaboration and co-ordination tend to proliferate. Regardless of what changes are being proposed, care must be taken, especially when training bodies for doctors and dentists are being subsumed into the HSE in the manner the Minister is doing. The HSE has not covered itself in glory in its two years in existence. There is a need for far greater clarity and it is missing in this legislation.
As regards these amendments, since they were not accepted on Committee Stage, I shall withdraw them.
Amendment, by leave, withdrawn.
Amendments Nos. 11 to 13, inclusive, not moved.
Amendments Nos. 14 and 15 form a composite proposal. Amendments Nos. 16 to 18, inclusive, are related. Amendments Nos. 14 to 18, inclusive will be discussed together.
I move amendment No. 14:
In page 24, line 12, after "Council," to insert "and".
I want to press, in particular in amendment No. 16, that the council shall, in preparing a business plan, "have regard to the policies and objectives of the Minister and the Government as they relate to the functions of the Council". If we are getting rid of self-regulation and introducing a lay majority we should at least give the council some independence, one way or another. Removing its independence in the manner the Minister has done has neutered the Medical Council to a significant degree. The Medical Council has a role to play. It is akin to the question I have previously asked about what was so wrong with the 1978 legislation and the Medical Council as it is constituted that such a heavy-handed approach as regards ministerial responsibility is required. Why can it not remain independent?
It is an independent body as regards operational, ethical issues and so on. However, as a body it also has an important role as regards some public policy issues around educational training, workforce planning perhaps, and the implementation of EU directives. As regards the training issues Deputy Twomey mentioned, we are implementing the Buttimer report. The HSE is responsible for logistics and co-ordination, but the Medical Council is the quality authority in so far as education and training are concerned, and that is an important distinction. Earlier we mentioned the role of HIQA and that of the HSE, the service provider on the one hand, and the quality or standards authority on the other. Obviously the training bodies have an enormous role to play, but it is a matter for the Medical Council to decide on the appropriateness of training and provide for the registration of doctors, both general practitioners and specialists.
The Deputy asked me what was wrong with the legislation. Clearly we have learned a good deal and much has changed in the intervening 30 years. Medical regulation all over the world is changing as we have to in light of the circumstances in which we find ourselves. This legislation has been sought by the Medical Council for quite some time. Most of its provisions refer to requests made or the informed views of the Medical Council, from its experience, particularly as regards issues to do with training, education and competence assurance. Then there is the capacity of the council to be able to recruit people onto committees. These types of initiatives have come about in response to suggestions made by the council because of the major difficulties, challenges and workloads of its individual members, most of whom are very busy people. To try to allocate the time required under the current approach where one has to be a member of the council to serve on various committees is very onerous. This causes difficulties and pressure points for the council. Much of what we are doing is to respond to the views of the council.
The Medical Council would have agreed with many aspects of the competence assurance proposals, as regards specialist and general registration, because so much of this is important. Did it also agree there should be strong ministerial control over policy and direction and see this as a positive issue, or did it have concerns as regards the removal of the council's independence to such a significant degree? I am not talking about the lay majority stuff, but rather about——
To be fair to the council, I do not believe it advocated a lay majority. I met the Medical Council after the heads of the Bill were published. We took on board many of its suggestions. I met it after the Bill was published, and again we made some changes based in particular on what I have said earlier, about case law being the appropriate test for the fitness to practise issue. We also agreed on some other areas. For example, we have removed in so far as it is practicable, difficulties in terms of the HSE having to provide for competence assurance. The HSE will have to do that and resources will not be an issue.
Subject to correction, I do not believe the Medical Council takes the view that there is a good deal of ministerial control and direction here, although perhaps some of its members might. Assigning new functions was in the existing Act. We did not have the type of corporate governance structures and framework for public bodies in place in 1978. Much has changed over the years and a greater level of accountability has come about in the intervening period. It was not an era of strategy statements and business plans. Public bodies did not operate to that type of agenda almost 30 years ago, so things have changed a good deal.
Amendment, by leave, withdrawn.
Amendments Nos. 15 to 18, inclusive, not moved.
Amendments Nos. 19 to 21, inclusive, are technical alternatives and amendment No. 26 is related. Amendments Nos. 19 to 21, inclusive, and No. 26 will be discussed together.
I move amendment No. 19:
In page 25, lines 25 and 26, to delete all words from and including "the" where it firstly occurs in line 25 down to and including "and" in line 26 and substitute the following:
"a proportion of the members of the Council shall be appointed by the Minister, a proportion shall be appointed through election by the bodies regulated by the Medical Council, and the Council".
Is it possible that a proportion of the council could be elected by the medical profession and another proportion appointed by the Minister, while still maintaining the lay majority? When the Minister was sitting around the dinner table, discussing the Medical Practitioners Bill with her doctor friends——
I do not want to exaggerate that. I am sorry I mentioned it at all. It sounds like a very boring night.
That depends on how much wine was consumed.
I am sure the Minister's doctor friends could explain that doctors might feel disconnected from the Medical Council as envisaged. Doctors had an affinity with the Medical Council. A doctor felt a complaint against him or her was being examined by his or her peers. This affinity could disappear if the council is appointed solely by the Minister. One way of maintaining its independence is having a proportion of the council elected by the medical profession, while maintaining the lay majority appointed by the Minister. Such a structure would be closer to a partnership rather than a structure being imposed on doctors.
Amendment No. 20 in my name is pertinent to this evening's private Members' business. Many times, my Sinn Féin colleagues and I have raised the unacceptability of the manner in which people are appointed to State bodies. This Bill is different in that the members of the Medical Council will be nominated by specified bodies. Five lay people will be appointed by the Minister. As we have highlighted however, there is no way for any citizen to access these positions or offer their services or expertise to such bodies. There is no provision for this in the Bill or any other legislation presented to the House in the past five or more years. There is no openness in the process which requires address. In deference to my colleagues in the Green Party, their private Members' Bill will seek to address this serious deficiency. I will support their Bill when it is voted on later tonight.
As it is expected that the Government will not accept the Green Party private Members' Bill, I ask the Minister to accept amendment No. 20. It will allow for an additional safeguard in the whole process of the appointment of lay persons to the council. This will serve at least two purposes. It will temper the extensive powers, highlighted by all Opposition Members, that the Minister is providing for vis-à-vis the role of the council. It will also add substance to the Oireachtas Joint Committee on Health and Children and strengthen its scrutiny role.
I must mention to the Deputy that this is Report Stage and there are restrictions on time.
I am delighted to hear that. You are very welcome.
I urge the Minister to accept the amendment and allow for the Oireachtas Joint — or Select — Committee on Health and Children to have this further function. It would be a useful and welcome development. The Minister may very well find herself a member of the committee and welcome such an opportunity to participate.
I thought the Minister would have conceded the point on nominating bodies. It is important that people feel engaged with the proposed council structure. It is easy for people to walk away and not get involved in this type of project. People are busier, work is getting tougher and the days seem to be getting shorter. All these pressures are on people who give up their time to represent their profession. In terms of trust, it should be possible to allow the profession to nominate the persons it feels are best rather than have this oversight structure that pervades the legislation.
In the past the Minister made the appointments but we should be able to trust these professional bodies in making their choices. I am not certain we can always trust Ministers. Deputy Twomey referred to the Taoiseach's approach to appointments to State boards which hardly inspires confidence.
I gave an undertaking on Committee Stage to examine this section. I wanted to make it clear there was no question of a Minister not accepting those elected. That is why I tabled amendment No. 26 which states the Minister may not refuse to appoint as a member of the council a person nominated by a professional body.
When I was Minister for Enterprise, Trade and Employment, I was involved in nominating persons to InterTrade Ireland. The Sinn Féin Party directly nominated a person to the body who, the chairman informed me, made an excellent contribution. I recently nominated a Fine Gael Party public representative to the Crisis Pregnancy Agency. I like to think I look out for good people to nominate to appropriate bodies. That is the intention with this section.
On Committee Stage, Deputies were concerned that the specified bodies may elect persons to the council which the Minister may refuse to endorse. That is not the intention. Amendment No. 26 introduces clarity in this section to ensure the Minister shall not refuse nominations by those bodies which have powers to nominate to the council.
Amendment, by leave, withdrawn.
Amendment No. 20 cannot be moved. It has already been discussed with amendment No. 19.
No, it cannot be moved. Amendment No. 21, in the name of Deputy McManus, cannot be moved as it was already discussed with amendment No. 19.
I would prefer to withdraw it. I believe one could still propose an amendment even if it is grouped.
I was not in the Chair when we commenced the debate on amendment No. 19. The Leas-Cheann Comhairle said that amendments No. 19 to 21, inclusive, are technical alternatives to the same Part of the Bill and amendment No. 26 was related. In effect we took the three amendments in that context.
The amendments cover different issues. Deputy Ó Caoláin's amendment has nothing to do with mine.
I do not want to cause a problem but I understand a Member can move an amendment even it forms part of a group of amendments.
Amendment No. 19 was not defeated. At the discretion of the Chair apparently, that can be allowed. The important point to bear in mind, as the original note indicated, is that if the question on amendment No. 19 was agreed, amendments Nos. 20 and 21 could not be moved.
The question on that amendment was not agreed.
These amendments overlap, address the same Part of the Bill and must be discussed together, otherwise amendments Nos. 20 and 21 would fall with the decision on amendment No. 19 and there would not be an opportunity to debate them. However, I am advised it is possible, at the discretion of the Chair, to allow those amendments to be moved.
I move amendment No. 20:
In page 25, line 26, after "Minister" to insert the following:
", following consultation and approval by the Joint Oireachtas Committee on Health and Children".
It is almost like Ballinspittle; I feel something has moved here. With reference to amendment No. 20, the Minister did not comment on the proposal in the amendment regarding the possibility of the Oireachtas Joint Committee on Health and Children having a role in the approval and determination of five lay people who would serve on the council. Is the Minister prepared to accede to this proposal in respect of that committee?
No. If five people were to appear before a committee, it would be extremely controversial. I can give the Deputy an assurance that if he wants to put forward suggestions to me, I will be more than happy to consider them. I often sit in ministerial office talking to officials. If one considers the Health and Social Care Professionals Council, which met for the first time on Monday, one would note that its members are extremely competent and highly trained individuals. There was widespread consultation on the establishment of that council. The Deputy made a valid point in highlighting that there may be excellent people in the country who do not know how to go about being nominated. I would be delighted to facilitate a role for people making suggestions and they would be taken very seriously.
How stands the amendment?
Amendment put and declared lost.
Amendment No. 21 not moved.
Amendment No. 23 is related to amendment No. 22 and therefore amendments Nos. 22 and 23 may be discussed together.
Those amendments were submitted in error.
Amendments Nos. 22 and 23 not moved.
Amendments Nos. 25, 27 and 28, inclusive, are related to amendment No. 24 and therefore amendments Nos. 24, 25, 27 and 28 may be discussed together.
I move amendment No. 24:
In page 27, line 24, to delete "paediatrics" and substitute "anaesthesia".
I table these amendments as a result of consultation with the Medical Council. I was concerned that the provisions, as drafted, in the original Bill would not have given an option for a range of specialties to ever hold seat on the Medical Council. Therefore, I have proposed an amendment to provide, first, that the specialty of anaesthesia, which has an important role, will have a seat on the council. The effect of this change also means that the specialties of pathology and radiology will share one seat on the council instead of having the right to sit on every thirdcouncil.
I propose removing the guaranteed place for geriatrics and paediatrics as many of the issues affecting these specialties can be covered by others who are represented on the council. This leaves one open elected position which I hope will satisfy the concerns expressed to me by the Medical Council. As I have stated before, the council can include a much broader range of expertise, both medical and non-medical, on all its committees.
Amendments Nos. 27 and 28 are technical and consequential.
Amendment agreed to.
I move amendment No. 25:
In page 27, to delete lines 28 to 35 and substitute the following:
"(d) one medical practitioner registered, or able to be registered, in the Specialist Division in relation to pathology or radiology,
(e) one registered medical practitioner, not being a consultant, practising medicine in a hospital, and
(f) one registered medical practitioner not falling within any of paragraphs (a) to (e).”.
Amendment agreed to.
I move amendment No. 26:
In page 27, to delete lines 36 to 45 and in page 28, to delete lines 1 to 5 and substitute the following:
"(9) Without prejudice to the generality of the other provisions of this Act relating to the membership of the Council—
(a) the Minister may not refuse to appoint as a member of the Council a person nominated under subsection (1)(a), (b), (c), (d), (e), (g), (h), (i), (j), (k), (l) or (m) or elected as referred to in subsection (1)(f), and
(b) a person who was a member of the Council immediately before the commencement of section 3 shall, on that commencement, cease to be a member of the Council unless the person is appointed pursuant to subsection (1) to be a member of the Council.”.
Amendment agreed to.
I move amendment No. 27:
In page 28, line 6, to delete "Subject to subsection (2), the” and substitute “The”.
Amendment agreed to.
I move amendment No. 28:
In page 28, to delete lines 10 and 11.
Amendment agreed to.
Amendments Nos. 29 and 30 not moved.
I move amendment No. 31:
In page 30, line 14, after "satisfied" to insert the following:
"on the recommendation of the President of the Council".
I make the same point in regard to this amendment. I feel I am repeating myself over and over in speaking about the partnership that should exist between the Minister and the Medical Council. I propose that the recommendation of the president of the council should be included in the Bill to acknowledge the important place the president holds and the important role the Medical Council plays in regard to this issue.
On the face of it, this seems reasonable, but if the president, himself or herself, was the person to be removed, it would be difficult to see him or her recommending that. A member of the council can only be removed in specific circumstances such as illness, stated misbehaviour and matters covered under the ethics in public office legislation. A member cannot be removed because he or she is someone the Minister of the day does not like. A member can only be removed for particular reasons and I do not believe it has ever happened in the past.
Amendment, by leave, withdrawn.
Amendments Nos. 32 and 33 are technical alternatives to the same Part of the Bill, amendments Nos. 34 and 35 are technical alternatives to the same Part of the Bill and are related, amendments 36 to 38, inclusive, are related. Therefore, amendments Nos. 32 to 38, inclusive, may be discussed together.
I move amendment No. 32:
In page 31, line 7, to delete "Where" and substitute "Subject to subsection (7), where".
I gave a commitment to examine this matter for Report Stage. The amendments I now propose will provide that the removal of council from office under the terms of subsections (5) and (6) will require that a ministerial order, or draft of which, must be laid before both Houses of the Oireachtas. The draft must be accompanied by a statement of the reasons for the order. The order cannot take effect, unless a resolution approving it is passed by both Houses of the Oireachtas. The amendment to subsection (11) provides for the continuation of the performance of the council's functions in any such situation.
I welcome the Minister's amendment in this regard. It is a great improvement. I am glad she has lived up to her commitment. She was sympathetically disposed towards the amendment I put forward. I like her amendment because it also allows for more than the process whereby a document is placed in the Library and we have 21 days to respond to it. The provision in this respect is specific; a decision must be made in effect and approval given by each House. That is a much more appropriate approach. It gives significance to something which may never be happen but which would be a major and serious decision for a Minister to make. The fact that it will be made by the Oireachtas rather than an individual Minister is appropriate to the importance of such a decision.
I appreciate it is not fair to do this but I am still trying to chase up the statutory instrument in relation to the National Paediatric Hospital Development Board.
It has not been made; it was issued for consultation. I can send the Deputy a copy of it and I believe the hospitals have until this Friday to respond to it.
If I may point out a detail, when we received the Estimates it was stated that the board has already been established.
I invited a person to chair the board and I announced that person's name; it is Mr. Philip Lynch. The board has not been established. It must be established under statutory instrument. I gave an undertaking to the hospitals that they would be consulted. I believe that consultation process ends on Friday.
I welcome that clarification. When I got the back up material for——
——the Estimates, it stated it was established. That is what confused me.
I welcome the amendment. It improves the Bill immensely. I am glad to withdraw mine.
Amendment agreed to.
Amendment No. 33 not moved.
I move amendment No. 34:
In page 31, line 10, to delete "The Minister may" and substitute the following:
"Subject to subsection (7), the Minister may, by order,".
Amendment agreed to.
Amendments Nos. 35 and 36 not moved.
I move amendment No. 37:
In page 31, between lines 23 and 24, to insert the following:
"(7) An order under subsection (5) or (6) removing the members of the Council from office shall not have effect unless—
(a) a draft of the proposed order and a statement of the reasons for the order have been laid before the Houses of the Oireachtas, and
(b) a resolution approving the draft has been passed by each House.”.
Amendment agreed to.
I move amendment No. 38:
In page 31, line 42, after "subsection (5)” to insert “or (6)”.
Amendment agreed to.
I move amendment No. 39:
In page 35, between lines 13 and 14, to insert the following:
"(8) A disclosure under this section or section 31 shall be recorded in a register together with particulars of any interest of members of the Council or committee or persons to whom section 31 applies, and the register shall be available to public inspection during office hours.”.
This amendment deals with disclosure of interests being recorded in a register. We must get our act together regarding issues to do with conflict of interest. We have seen how easy it is for people to exert influence within the health service without the checks and balances that apply in other countries. The register should be available for public scrutiny.
This is a question as to whether the Medical Council should be required to go further than the requirements under the ethics in public office legislation and the standards in public office legislation. The council is required to comply with both codes of conduct and it would not be fair to single out the Medical Council for any greater scrutiny. I do not disagree with some of the points made by Deputy McManus regarding the need to have any conflicts of interest or disclosures appropriately dealt with under a code of conduct which the HSE now has for anybody appointed to positions in the HSE. Members are required to sign a register and declare their interests.
I ask the Minister to clarify the position. That may apply to the Medical Council members but are the people who may be co-opted on to committees also governed by the same requirements?
I will need to check that information for the Deputy.
How can it be checked as we are dealing with Report Stage?
The Bill must go to the other House and we may need to return to this House. I do not know whether it only applies to the council members. It would obviously apply to the CEO or the registrar under public office legislation but I will check.
It is more important that there is transparency regarding people who are co-opted on to committees. Everybody will know who is on the Medical Council but people can be drawn in who are quite distant from the Medical Council and who may have all sorts of reasons to want to gain influence. We need to be absolutely scrupulous and tough about any possibility of conflict of interest arising that is not known and understood and recorded. This is an important issue we need to address.
I will revert to the Deputy. If the ethics in public office legislation does not apply to people co-opted on to committees then perhaps a code of conduct would be appropriate. I will take advice.
The only problem with a code of conduct is that we will never know if people have complied with the code. The register contains information about any interest a person may have.
Where there is possible conflict with a person's work.
When one considers the amount of information that Members of this House give, there are no complaints because it is being done for a good reason. We must give information about our spouses and people unconnected with this House. It seems extraordinary that this could be an opening that could be availed of. This is the kind of body that could have significant influence and power.
I will clarify what applies to people co-opted.
Deputy McManus's point is far more important than the Minister may realise. The chief executive officer of the HSE is covered by codes of conduct and by the ethics in public office legislation but his advisers are not, even though they would have as much say and as much authority in the way policies are formulated because of their expertise which is also the reason they are acting as his special advisers. They will not be covered but he is.
They are covered by the code of conduct and they are required to sign a declaration of their interests which is available to the board.
They are not covered by the more significant ethics in public office legislation.
Is that declaration published?
I do not know. I have not seen it. The code of conduct was only approved recently by the Department.
I do not think it is since then but it was this year.
I will withdraw the amendment on the understanding that the Minister will return to the House.
Amendment, by leave, withdrawn.
Amendments Nos. 40 and 41 are alternatives and may be discussed together.
I move amendment No. 40:
In page 38, line 40, to delete "after consulting" and substitute "on the recommendation of".
We must be conscious that the balance is shifting in this Bill and there is a danger that it will shift to the point where people will simply feel disengaged. A process that works very well is one where the Minister responds through recommendation rather than simply consulting. The word consulting is the most abused word in the English language. Everybody consults all the time but that does not mean that it makes a blind bit of difference. Anybody who has served on a local authority knows this. Where there is consultation after all the decisions have been made is not a productive use of anybody's time.
My amendment is similar in that it seeks to achieve what Deputy McManus suggested.
I congratulate the Minister and I will withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 38, line 40, after "Council" to insert "or pursuant to a recommendation of the Council".
Amendment agreed to.
Amendments Nos. 42 to 46, inclusive, may be discussed together.
I move amendment No. 42:
In page 39, line 5, to delete "and".
The Deputy and I have a similar interest here. I have sought advice on the matter and in the interest of fairness I recognise that time must be given to persons using a particular title in advance of implementation of regulations to either achieve the standards required for its use or to allow them an adequate opportunity to stop using it in advance of the implementation of the regulations. I therefore propose an amendment to section 39(2) to make it clear that the regulations would provide for this to happen.
Amendment agreed to.
I move amendment No. 43:
In page 39, line 8, to delete "designated." and substitute "designated, and".
Amendment agreed to.
Amendment No. 44 not moved.
I move amendment No. 45:
In page 39, between lines 8 and 9, to insert the following:
"(c) the regulations made in exercise of that power provide that a person who was, immediately before the commencement of the regulations, lawfully using the title but who, on that commencement, would contravene section 40(2) if the person continued to use the title, may continue to use the title for the period specified in the regulations (being a period reasonable in the circumstances but, in any case, not less that 6 months) without contravening that section.”.
Amendment agreed to.
I move amendment No. 46:
In page 39, line 34, to delete "A" and substitute "Subject to section 39(2)(c), a”.
Amendment agreed to.
Amendment No. 47 not moved.
Amendments Nos. 48 and 49 are technical alternatives to the same Part of the Bill and may be discussed together.
I move amendment No. 48:
In page 41, to delete lines 27 and 28 and substitute the following:
"(3) The register may be established and maintained in paper or electronic form.".
On Committee Stage Deputy Twomey raised the matter of the meaning of section 43(3) and I undertook to consult with the Office of the Parliamentary Counsel. Accordingly, I propose an amendment which I hope clarifies the matter sufficiently for the Deputy. According to legal advice there must be one definitive version of the register, whether in paper or in electronic format. The alternative format can only be a reproduction of the register at any particular time. That is the reason the phrase "in paper or electronic form or both" is not used in this provision.
Amendment agreed to.
Amendment No. 49 not moved.
Is it for a particular reason that the Chamber is so cold?
I agree with the Deputy that the House is cold.
A little bit of warmth would not go astray.
It is down to the Green Party trying to conserve energy.
The Members of the Green Party are all in their nice warm offices.
If the heating is turned up it will increase the House's carbon footprint.
I move amendment No. 50:
In page 42, between lines 31 and 32, to insert the following:
"(9) A registered medical practitioner shall not be required to register his or her home address in any part of the register which is open to public access.".
The IMO is concerned, with some justification, about the issue of security. Having been married to a GP for many years, I am aware that the family home becomes a place to which people readily come if they find themselves in difficulties. As a result, one's family home can appear to be somewhat exposed at times. I am of the opinion that the IMO was correct to raise this matter.
The matter to which the amendment refers is covered.
Amendment, by leave, withdrawn.
Amendments Nos. 51 and 52 are related and may be discussed together.
I move amendment No. 51:
In page 49, line 12, to delete "A" and substitute "Subject to subsections (2) and (7), a”.
I understand why Deputy Twomey has concerns in respect of this provision. However, it is included for the purpose of correctly transposing certain provisions of Directive 2005/36/EC, which relates to the provision of services on a temporary and occasional basis by visiting medical practitioners. The provisions of the directive reflect case law of the European court of Justice which has stated that the provision of services cannot be delayed unnecessarily by requiring a person who is lawfully established in another member state to again undergo a full registration process in the member state he or she is visiting. However, the directive provides for a process of temporary, automatic or pro forma registration to be undertaken to allow for the application of disciplinary procedures in the host member state. In this way the directive differentiates between registration for the purposes of a more permanent establishment and registration for the temporary and occasional provision of services. I hope what I have said may reassure the Deputy.
Amendment agreed to.
Amendment No. 52 not moved.
I move amendment No. 53:
In page 54, line 16, after "offence" to insert the following:
"(being an offence which does or could potentially reflect on the registered medical practitioner's fitness to practice medicine)"
I made a point on Committee Stage regarding types of offences. The category of offences triable on indictment are extremely broad and a complaint could be made in respect of an offence that has nothing to do with a medical practitioner's fitness to practice medicine. Such an offence could, for example, relate to an infringement of planning or traffic laws. The provision appears too loose to ensure that the complaints process will not be availed of in a way that is inappropriate.
I accept the Deputy's point but it is difficult to rule things in or out. I am advised that if a complaint is not related to medical practice, the preliminary hearings committee will be able to dispose of the matter very quickly.
I have a difficulty with that because there can be a timeframe involved. We are discussing people's livelihood and reputation. If someone loses trust in his or her doctor, it is quite difficult for that trust to be won back. If a person makes a complaint that is completely without grounds because it is based on some offence that has nothing to do with the practice of medicine, he or she could still argue that the complaint has been put forward and that the Medical Council should pursue it. The council may decide that the complaint is frivolous and without foundation. However, it will still be obliged to consider the complaint and it can take time to do so. In the interim, the medical practitioner who is the subject of the complaint would be in a vulnerable position.
A certain security would be provided if a complaint could not be received or considered by the Medical Council because it did not adhere to the requirements of the legislation. It would prevent crazy people from making complaints to the council on all sorts of grounds if it was possible to check an offence against the list provided in the legislation. If an offence is clearly disconnected from the practice of medicine, a complaint should be immediately thrown out.
Section 57 specifies that the grounds for a complaint to be made must relate to professional misconduct, poor professional performance, a relevant medical disability, a contravention of a provision of the legislation or a conviction in the State for an offence triable on indictment, which would be a serious matter. It is not, therefore, possible to make a complaint in respect of a trivial issue. We took legal advice and were informed that it is difficult to restrict matters any further.
I referred to road traffic offences but these are not included in the list outlined in section 57. There are, however, other offences such as technical breaches of the Planning Acts or the Companies Acts. An offence could, therefore, be committed in circumstances that have nothing to do with the practice of medicine and the matter would have to go before the Medical Council if a complaint was made. The council would then be obliged to waste time making a decision on a frivolous complaint and the practitioner to whom it related would be left swinging in the wind. Due to the fact that provision is made in the legislation, the person bringing the complaint would be in a position to justify his or her actions.
We took specific advice on this matter, the substance of which was that we should not change the provision. I agree with what the Deputy is saying and we do not want the Medical Council to deal with planning issues — it will not do so — or issues that have nothing to do with a doctor's fitness to practice. The council is not supposed to investigate any other matters even though, I am sure, vexatious complaints will be made from time to time by people who do not like particular doctors. Essentially, the legislation is only designed to deal with professional issues. I will take further advice and see if we can take on board the Deputy's concerns. I do not disagree with what she is saying, it is merely a question of whether we can do what she asks.
Amendment, by leave, withdrawn.
Amendments Nos. 54 and 56 are related and may be discussed together.
I move amendment No. 54:
In page 54, between lines 19 and 20, to insert the following:
"(2) A complaint shall be made on a form prescribed by the Council and shall contain sufficient particulars to enable the registered medical practitioner to which the complaint relates to respond to the complaint.".
It is stating the obvious but sufficient information and particulars should be supplied in order to enable a medical practitioner to respond to a complaint. This is such a serious matter, there should be a requirement as to the nature of how a complaint is formulated. A complaint must be clear and comprehensive so that can a medical practitioner can respond to it in a way in which justice demands.
What the Deputy is seeking to achieve is covered in sections 59(3)(a) and (b), which give autonomy to the committee and thus provide greater flexibility because it can prescribe the form in which a complaint should be made etc. We are trying to strike a balance between being fair to doctors, the persons against whom complaints are made and also to complainants. Section 107(2)(a) provides that a specified form may include a statutory declaration.
Amendment, by leave, withdrawn.
I move amendment No. 55:
In page 55, between lines 22 and 23, to insert the following:
"(9) A complaint is a protected disclosure under the Health Act 2004 (as amended by the Health Act 2007).”.
Amendment agreed to.
Amendment No. 56 not moved.
I move amendment No. 57:
In page 57, between lines 27 and 28, to insert the following:
"(b) whether the nature of the complaint is such that it is capable of being resolved by means referred to in section 62,”.
If it is helpful, this is covered in section 61(1)(c).
Amendment, by leave, withdrawn.
Amendment No. 58 in the name of Deputy McManus. Amendments Nos. 61 and 62 are related and are technical alternatives to the same part of the Bill. Amendments Nos. 58, 61 and 62 will be discussed together.
I move amendment No. 58:
In page 60, to delete lines 39 to 44 and in page 61, to delete lines 1 to 5 and substitute the following:
"(2) A record shall be kept by the Fitness to Practise Committee of the proceedings before that committee, and the record shall be made available to the public by the Committee in the event of there being a finding adverse to the registered medical practitioner concerned, with the exception of any part of the record which the Committee decides to omit because it contains personal matters about any person which the Committee considers should not be published, or because the Committee decides it would otherwise be appropriate to do so. The hearings of the Committee shall otherwise be held in private unless the Committee otherwise decides for substantial reasons.".
In my amendment, I have taken on board a large part of the Deputy's intent here by requiring that the council, after consulting with the Fitness to Practise Committee, may publish a transcript of proceedings. The transcript may exclude identifying information of the parties to the proceedings. This is where the proceedings are held in private, and for public interest reasons.
I will accept that. It is broadly in line with what I am proposing and I welcome that.
Amendment, by leave, withdrawn.
I move amendment No. 59:
In page 65, lines 25 and 26, to delete all words from and including "(other" in line 25 down to and including "71(a))” in line 26.
This is where no penalty or sanction is imposed, and the right of appeal and censure. As I stated on Committee Stage, this is being adjudicated on in the courts. The legal advice from the Attorney General's office, and also from the Medical Council, is that we should await the determination of the court before we change the law here.
What happens when the matter is determined? Would the Minister need to return to the House with legislation?
If it was found that legislation was necessary, we would have to amend this legislation. That will probably not happen for quite some time.
Is the Minister referring to the outcome of the court case or the amending legislation?
I am referring to the decision of the court. The case is being heard in June. It is a question of whether a determination will be made in June or a couple of months later. It could be a reserved judgment. I am advised that depending on the decision, it could have implications for much other legislation as well.
Amendment, by leave, withdrawn.
I move amendment No. 60:
In page 66, to delete lines 13 and 14.
This is the ex parte application.
Amendment, by leave, withdrawn.
I move amendment No. 61:
In page 71, to delete lines 15 to 21 and substitute the following:
85.—The Council shall, if satisfied that it is in the public interest to do so—
(a) advise the public when—
(i) any measure referred to in section 84(1) takes effect under this Part in respect of a medical practitioner,
(ii) any measure referred to in section 84(2) in respect of a medical practitioner comes to the knowledge of the Council,
(b) after consultation with the Fitness to Practise Committee, publish a transcript of all or any part of the proceedings of the Committee at an inquiry, whether with or without any information which would enable all, or any one or more than one, of the parties to the proceedings to be identified.
Amendment agreed to.
Amendments Nos. 62 and 63 not moved.
Amendment No. 64 is in the name of the Minister. Amendments Nos. 64 and 65 are technical alternatives to the same Part of the Bill. Amendments Nos. 64 and 65 will be discussed together.
I move amendment No. 64:
In page 73, lines 18 and 19, to delete all words from and including "with" in line 18 down to and including "Minister" where it firstly occurs in line 19 and substitute "after it".
I propose an amendment in lieu of Deputy Twomey's amendment No. 65 to section 88(2)(a). I am satisfied there is no particular requirement for the council to obtain the consent of the Minister for Health and Children on the approval of programmes of basic medical education and training, and the bodies to deliver these programmes. I have taken on board Deputy Twomey’s amendment.
Amendment agreed to.
Amendments Nos. 65 to 67 inclusive, not moved.
Amendment No. 68 is in the name of the Minister. Amendments Nos. 68, 69 and 71 are cognate. Amendments Nos. 68, 69 and 71 will be discussed together.
I move amendment No. 68:
In page 80, lines 24 and 25, after "practitioners" to insert the following:
"pursuant to a professional competence scheme applicable to the practitioners concerned".
I gave a commitment to Deputies McManus and Twomey that I would introduce amendments on Report Stage linking section 91, in which the Medical Council is required to establish a professional competence scheme or schemes. The purpose of these amendments is to make clear that the duties of medical practitioners and employers, including the HSE, relate to any such professional competence scheme established under section 91 so that there is no doubt about it.
Amendment agreed to.
I move amendment No. 69:
In page 80, line 28, after "practitioners" to insert the following:
"pursuant to a professional competence scheme applicable to the practitioners concerned".
Amendment agreed to.
I move amendment No. 70:
In page 80, to delete lines 29 and 30 and substitute the following:
"94.—(1) The Health Service Executive and the registered medical practitioner shall ensure that practitioner's professional competence is maintained on an ongoing basis.".
The problem here is resourcing the competence assurance. The Minister has stated she has given a commitment that the resourcing of the competence assurance will be looked after by the HSE, but it is not guaranteed that the HSE will take full responsibility for resourcing. It is quite possible that registered medical practitioners could also see their fee for registration with the Medical Council increase dramatically to pay for the cost of this. As the Minister will be aware, medical registration is already a significant cost and this could add considerably to it. She has not made quite clear for how much resources the HSE would be responsible. Will the Department be responsible for the full costs of competence assurance?
In the Bill, as published, there was a reference to the HSE facilitating "to the extent practicable", and the Medical Council made the point of asking what that meant, for instance, if it meant they can use resources. We got rid of that for the reason Deputy Twomey outlined.
The cost of competence assurance has not been determined yet. We know the cost to the Medical Council of administering competence assurance. Having heard from the Medical Council, I felt it was important the State would have to pay up here. We have not determined the extent to which the State will have to pay up, but certainly the idea is that it will be a large proportion of the cost.
Amendment, by leave, withdrawn.
I move amendment No. 71:
In page 80, line 30, after "basis" to insert the following:
"pursuant to a professional competence scheme applicable to that practitioner".
Amendment agreed to.
I move amendment No. 72:
In page 85, line 10, to delete "subsection (2)(a)” and substitute “subsection (3)(a)”.
This corrects a typographical error in the Bill where an incorrect reference was made.
Amendment agreed to.
Bill, as amended, received for final consideration and passed.
