Health Service Executive (Governance) Bill 2018 [Seanad]: Report and Final Stages

Amendments Nos. 1 to 3, inclusive, 5, 6 and 12 to 14, inclusive, are related and may be discussed together by agreement.

I move amendment No. 1:

In page 9, to delete lines 10 and 11 and substitute the following:

“(c) 9 ordinary members.”.

These amendments arise from discussions on and an amendment accepted on Committee Stage to provide that ordinary members of the HSE board must include a patient advocate, a financial expert and two clinical experts. I acknowledge these were amendments from Deputy Donnelly. There was a debate and a focus in particular on clinical expertise in the context of board membership. I am proposing amendments which I believe meet the issues raised regarding this.

Amendment No. 3 provides that at least one of the persons appointed to the board must be a person who is practising, or has practised, as a member of a health profession, whether in this country or elsewhere. Amendment No. 6 sets out what is meant by a health profession. It covers doctors, nurses, midwives, dentists, pharmacists, as well as the health and social care professions regulated under the Health and Social Care Professionals Act 2005. I hope Deputies will agree this ensures the board includes membership with clinical expertise as was envisaged in the Committee Stage amendment. I listened to Deputy Donnelly’s compelling argument that it is important there is a designated space on the board for clinical expertise. It was never the intention to exclude that expertise. We went through the Public Appointments Service. I accept it is prudent and in the spirit of what Deputy Donnelly is trying to achieve in this regard.

Arising from this and the amendment made on Committee Stage, amendment No. 1 increases the number of ordinary members on the board from eight to nine. Amendment No. 2 is a technical drafting amendment to take account of the inclusion of the new provision of clinical expertise in amendment No. 3. Amendments Nos. 5 and 12 to 14, inclusive, are consequential to the increase in board membership, covering the quorum for the board and arrangements for calling board meetings.

My amendments would give scope for the clinical expert to be potentially the chair or the deputy chair of the board, whereas Deputy Donnelly’s amendment did not provide that the person could only be an ordinary member. There may well be a case where the clinical expert ends up being the chair or deputy chair of the HSE board. The amendment, as passed on Committee Stage, would not allow for that.

Also, the Bill, as passed by the Seanad, provides that at least two board members must be people with experience of or expertise in advocacy related matters affecting patients. The Committee Stage amendment would cause a conflict with these provisions which were included to meet the recommendations made by Dr. Gabriel Scally in his scoping inquiry into CervicalCheck. I do not believe anybody wants to have a conflict. Every Member is committed to implementing Dr. Scally's recommendations. There was an excellent amendment put forward in the Seanad by Senators Devine and Ruane to ensure that in law there are two spaces and it was not at the discretion of the Minister of the day. While it was not the intention, I am concerned about having anything in the Bill which would suggest that there should not be two patient advocates. My amendment reiterates that two of the seats should be dedicated to patient advocates, thus fulfilling an important recommendation of the Scally report.

I am not proposing to expressly provide for a financial expert on the board. The amendments made in the Seanad in regard to patient advocacy ensure it will always be part of the criteria for the HSE board membership. The amendment I am proposing on clinical expertise will ensure this too will always be part of the criteria for HSE board membership. Financial expertise, however, should be viewed in a somewhat different light. Unlike advocacy and clinical expertise, financial expertise is and must be a standard requirement for any board. Financial expertise will, therefore, feature as part of the HSE board membership make-up without the need for express legislative provision.

The Public Appointments Service campaign for HSE board membership sought candidates with experience and expertise in several areas, including financial planning and management. I hope to be in a position to make an announcement shortly in regard to a further board member with specific expertise in financial matters.

Deputy Donnelly's amendment on Committee Stage provided that the new board should contain a patient advocate. My amendment proposes two patient advocates. This will comply with the recommendations of Dr. Scally.

Deputy Donnelly proposed the new board should have financial expertise. I agree with him. I am giving an assurance that the vacant seat on the board will go to a financial expert. I hope to be in a position to announce that shortly.

Deputy Donnelly rightly said there should be one or two seats for clinical expertise. I am bringing forward a proposal that will allow for one.

My officials consulted the Office of the Parliamentary Counsel to ensure the Bill does not have any conflicts in how it is drafted. My concern is that the amendments passed in the Seanad could be legally conflicting with those proposed by Deputy Donnelly. I am trying to marry the spirit of what the Seanad and the Deputy were trying to achieve.

There are serious problems in the healthcare system, such as waiting lists, issues with which patients and their families have to deal, recruitment and retention issues, along with numerous human resources issues for nurses and midwives, non-consultant hospital doctors, general practitioners, consultants and allied health professionals. We all want them solved. We all have different views on how to solve them, however.

One of the root causes of many of these problems is down to the lack of a voice for patients - something that has been greatly under-represented to date - the lack of a voice for clinicians and the lack of financial oversight. Budgets have been running over by several hundreds of millions. Clinicians do not feel represented. There is now a chief clinical lead but it is a relatively new appointment; for a long time there was none. Many of our hospitals do not have a senior clinical leads or administrators to run them. The model whereby hospitals are run by such individuals tends to work well.

The exercise in appointing an interim board was very useful. We can now engage in a debate on the final details of the legislation, almost all of which Fianna Fáil will support, and have a conversation about the board that was appointed. The discussion does not have to be about hypotheticals relating to future potential boards. I will not mention any individuals or cast any aspersions. I hope that all of the eight of those who have been appointed to date are geniuses. I have no doubt that they are all excellent people. I do not refer to any individuals but let us take the board and ask if there financial expertise on it. The Minister has stated that there is not but he is looking to appoint some. There are two people with some background in patient advocacy. That is fantastic and very much in the spirit of Senator Ruane's amendment. However, something that really jumped out at me was that there was not a single person on the board with a clinical background, whether as a doctor, nurse, midwife, public health professional, physiotherapist or anything. The board is completely devoid of that. Furthermore, the chief executive has just been announced. I am sure he is a very fine person, I hope he is a genius and I wish him the very best of luck. However, it is interesting that, to the best of my knowledge, he also does not have a clinical or healthcare background or training.

Neither the chief executive nor the members of the board, which, on behalf of the people of Ireland, must hold that chief executive to account and support him in every conceivable way, have clinical backgrounds. This indicates that the very damaging culture in healthcare whereby clinicians have been silenced - and it has been wired into the system that their voices are not heard - is alive and well. I am not blaming the Minister for this. He did not pick the board, he was sent recommendations by the appointment committee, but is it not extraordinary that the machine has managed to appoint a chief executive and a board and not one of those involves has a clinical background? We have the opportunity to fix that culture, albeit not even close to fully, but to make a very important step and say that, at a minimum, two members of the board must have clinical backgrounds. That is not just a sensible thing to do but it is essential. As legislators, we will have to force the clinicians voice up the chain so that they are heard.

I take everything the Minister said in good faith but his amendment does not provide for two people with clinical or healthcare backgrounds. Based on knowing what the system appoints now that we have the interim board, I do not believe that it will do it on its own. It is essential that there are two people with clinical expertise.

On the number of patient advocates, it was noted during the Seanad debate that research shows two are needed. One person, whether he or she has a clinical or patient background, can feel alienated and ganged up on. The Bill, as amended, provides for two clinical advocates. The Bill says that "shall include a patient advocate" - it does not say that it is limited to only one - and later in that section, on the same page, it specifies that "at least 2 of the persons" will have experience of, or expertise in, patient advocacy. The two may not sing perfectly legally but they are clearly not in conflict.

The financial oversight is essential. While the Minister says he hopes to appoint someone with financial expertise the system may not want that. It did not want to appoint anyone with clinical expertise. The Bill, as amended at Committee Stage, makes the HSE stronger. It strengthens the clinical voice, financial expertise and oversight and still allows the two patient-advocacy positions. Therefore I will oppose the Minister's amendment. I would prefer not to go to a vote on that and if miscellaneous Bills come forward during the year when the legalese might be adjusted I will be very happy to work through that with the Minister. However, I would be reluctant to remove the necessity to have financial expertise and the two clinical experts given that the two patient advocates, which are also critical, feature on the same page.

Having represented clinical experts in the health service who were ignored when Deputy Donnelly's party was in government, I welcome this Damascene conversion. We must have clinicians on the board. It is ludicrous to me that we do not or that there is no proviso for this. Whether intentional or not they are excluded because it is not there. We must have patient advocates. I am very struck by the Scally report's observations on that. There must be two, one person on their own will not be able to fulfil that role.

The Minister said that the one remaining space will be filled by someone who will fulfil the financial role and that person has been lined-up already. I ask the Minister to explain this. Presumably that person is on the short list which has been sent to the Minister by the Public Appointments Service who the Minister believes has the requisite expertise. I share Deputy Donnelly's concerns. The difficulty is that while the Minister may be minded to make this appointment on this one occasion, if it is not mandated by legislation there might be another situation when the Minister has a change of heart or one of his successors is not so minded. Every day there are column inches full of the failings of people on boards in matters of money. I am struck by the need to have as many clinicians on the board as possible. The Minister indicated that he believes he has someone lined up who can deal with the financial end of things who is some class of an expert. Without giving away too much detail, I ask that the Minister would explain the level of qualification he or she has and why the Minister believes them to be suitable.

When the Public Appointments Service looks for board members, does it look for financial experts? Is it something that it has identified in its advertisements as an area that is desirable but not essential.

I am taken by the need to ensure that we have patient advocates. I am wedded to the idea that there be two of them. That is important because they can act as back-up and support for each other in that environment, which might be tough for a patient advocate given the level of work that will be undertaken. I am happy to support this provision. I ask the Minister to explain how that will be achieved given that he agrees with the need for financial expertise.

I am not in disagreement with what Deputies Donnelly and O'Reilly are trying to do here. However, I must tell the House, in all sincerity and in the hope that the Deputies accept my bona fides in this regard, that I have consulted the Office of the Parliamentary Counsel on this matter and its advice, which is therefore my advice to the House, is that the Bill, as currently written is - entirely accidentally and unintentionally owing to the various amendments - legally in conflict. This would make it very difficult, if not impossible, for me to enact section 16N(2)(b), the paragraph dealing with the two patient advocates. I fully accept that is not the intention of any Member.

Section 16N(1)(c), which provides for "8 ordinary members, who shall include a patient advocate, a financial expert and two clinical experts", is read by the advice available to me to be in conflict with section 16N(2)(b), which provides that at least two of the persons "appointed under paragraph (a) shall be persons who, in the opinion of the Minister, have experience of, or expertise in, advocacy in relation to matters affecting patients." The advice available to me is that the Bill, as currently construed, is in conflict accidentally. For this reason, I have come forward with what I believe to be a compromise, under which we will proceed to designate a seat for clinical expertise, as the Opposition has asked me to do, to appoint a financial expert in the coming weeks, whose name I do not have but who will come through the Public Appointments Service following a request by me, and to appoint the two patient advocates who I have already named and whose bona fides everybody accepts.

A further HSE governance Bill is due for publication this summer. This was in the Government legislative programme published in recent days. I am more than happy to work and engage with Deputies Donnelly, O'Reilly and Harty and the Opposition generally on further refining or rectifying this issue to achieve the outcome Deputy Donnelly seeks.

I advise, however, that adopting the Government amendments is the best way to achieve an effective board, one which will have two patient advocates and a clinical and financial expert, respectively, and be up and running at the end of May. Failure to do so will, according to the advice available to me, prevent me from enacting the Scally recommendation on two patient advocates, which is not the intention of anyone in this House.

While I accept that the Minister has been given that advice, I do not accept the advice. There is a missed opportunity. Unfortunately, the Minister's amendment reduces the clinical representation from two to one and does not bring in financial expertise. If he had tabled an amendment that adjusted the drafting but held on to the two clinical experts and the financial expert, we would be satisfied because the two patient advocates are contained in Senator Ruane's updated clause. Unfortunately, that is not what the Minister did. Instead, he proposed an amendment that materially changed what the committee agreed was required. I ask him to withdraw the amendments in order that we can proceed and have the essential financial expertise on the board, as well as two clinical experts and two patient advocates, as is currently provided for in the Bill. If there are drafting issues, as appears to be the case, they can be dealt with in the other Bill the Minister indicated will be forthcoming. I have no issue with adjusting the drafting.

This is a great opportunity to make a strong statement that for the first time we will give clinicians, patients and financial oversight the level of statutory footing that they require. That would be a great message from this House. I appreciate this is awkward for the Minister. I would be more than happy to rectify any drafting issues when we discuss the other Bill. It is essential, however, that we hold on to the numbers the committee agreed were required on Committee Stage.

I am a little conflicted on this because I do not want to do anything that interferes with the recommendations of the Scally report, which the Minister indicated the current wording has the potential to do. Likewise, I and my party have supported the inclusion of two clinicians on the board. It strikes me that the Minister has offered to potentially include such a provision in other legislation at a later date. If it can be done in a couple of months, why can it not be done now? Nobody is trying to convince anybody else because the argument has been won. We know we need clinicians and patient advocates on the board.

I am unwilling to contradict previous voting positions taken by my party. However, I do not want to put us in a position whereby this legislation cannot be enacted. I appreciate the Minister has received advice, which I do not have, but the advice I have is to the contrary. I understand the Minister cannot share the advice he has but that puts us in a difficult position. I do not want to do anything that will interfere with the enactment of this legislation. The board is needed and must be placed on a statutory footing, as I have called for previously. I do want to get in the way of that, nor do I want to let an opportunity go that will provide for the maximum number of clinicians on the board. It strikes me that if this issue can be fixed in a couple of months, surely it can be fixed now. Alternatively, as Deputy Donnelly suggested, if the Minister withdraws the amendment, we will be in a position to make any changes required in a couple of months' time if there are drafting issues.

I will make a few general points on this amendment. The Sláintecare report was published in May 2017, almost two years ago. One of the main recommendations of the report was to reinstate a HSE board. In November 2017, the Taoiseach, in response to a question I put to him in the House, stated that the Government was reversing its policy on abolishing the HSE board and would reinstate it. Now, 18 months later, it is important that we get this HSE (Governance) Bill absolutely correct. Sláintecare is very strong on patient and clinical involvement.

It is important that this Bill reflects the amendment that was introduced on Committee Stage. Unfortunately, the Minister was not available to attend that meeting. Perhaps we might have been able to thrash it out then if the Minister's expertise had been available. Nevertheless, the committee decided that there should be two clinical members of the board. After all, the Health Service Executive will oversee Sláintecare reform if it is given sufficient funding to develop its programme of reform and action plan. It is essential that there are two clinical experts on the board and I will certainly oppose any move away from that.

The Minister and Dr. Scally know how important it is to have patient advocates on a board. It is also critical to have persons with clinical expertise on how to deliver a service on a board. Any board that does not include clinical expertise will not be able to deliver the reform and oversee the health service as we wish it to. In that regard, I will support Deputy Donnelly's proposal.

My view and that of the committee was that having two clinical experts was critical. I know the Minister has included an amendment stipulating only one but it sounds like he is okay with two. I seek clarity from the Leas-Cheann Comhairle. My understanding is that with his permission or the agreement of the House, Report Stage could be withdrawn, as it were, the amendment could be updated and we could come back shortly to adjust the amendment and push it through.

That is not the case but I will explain the position. The amendments can be amended in the Seanad and then the Bill can return here. It is possible the amendments could be changed, although not necessarily undone. That question is down to wiser counsel.

It is not a view that is new to colleagues on the Opposition benches tonight that we must ensure the Bill is legally robust. We have spoken much about cervical cancer in these Houses, as well as the Scally report and recommendations. I accepted an amendment put to me in the Seanad and redrafted it to ensure we could implement the Scally recommendations. This relates to section 16N(2)(b) of the Bill. The reality is that the Bill as currently articulated would not enable me to enact that part of the Bill. Therefore, I would be able to have one patient advocate on the board. I understand that nobody wants to arrive at that point. The only disagreement we are having is whether we have one or two clinical experts.

A financial expert.

Yes, and such a financial expert. I am suggesting that we accept my amendments but at the next available opportunity I will make that change. There is an opportunity on the legislative list this year and I will work with the Opposition to further refine membership of the board if it is the view of the House that there should be an additional seat for clinical expertise and a ring-fenced seat for financial expertise. I will do that but I really do not see how the House would in any way lose out tonight by allowing us to get on with the board that has been announced through the Public Appointments Service. That will allow us to enact the part to comply with the Scally report recommendations and appoint two patient advocates. As a compromise on my part, there will be a clinical expertise seat on the board. We can review the matter in a number of months because the published Government legislative programme indicates the next HSE Bill is to be brought forward for pre-legislative scrutiny in advance of the summer recess.

I am happy to rectify the matter but my priority is to put this board in place and ensure we can have the two patient advocates. I know we all accept their bona fides and they have been identified. They should take their seats on the board from day one. As I said, I am compromising and changing my position in recognition of Deputy Donnelly's position in having a dedicated seat for a clinical expert. The Deputy would prefer two such experts and I am okay with that argument but there is no amendment before the House tonight from anybody to ensure that happens while enabling the patient advocacy element to be included as well.

I will attempt to bring a bit of clarity to the discussion. If the Bill goes back to the Seanad, it can make amendments but they cannot be outside the scope of the amendments here.

The Seanad can amend the amendments.

That is absolutely fine. The Minister has drafted an amendment and I presume the drafters believe it works within the Bill's parameters. The Seanad can amend the amendment very easily. Essentially, the Minister is seeking to delete the reference to a financial expert and two clinical experts. He is seeking to replace that reference with a reference to at least one person who is practising, or has practised, as a member of a health profession. That is basically what we are talking about. The amendment in question can be amended in the Seanad very quickly.

It may not happen very quickly. We can assume it will happen quickly.

It would certainly be much quicker than waiting for a Bill that might go into pre-legislative scrutiny before the summer. That could be a very long way out. The Minister's amendment can be amended very simply, although we do not need to get into drafting here. The amended provision could refer to two persons who are practising or have practised as a member of a health profession and a person with financial expertise. Let us meet halfway. If the Minister withdraws his amendment, we can amend this in the Seanad. It will be the same amendment but it will specify two people instead of one. My party will support that in the Seanad and we can come back here with what we need. The Minister's legal advice will be complied with, as will the committee's concern and that of the Opposition that there must be two people with clinical expertise on the board.

I have a real concern that if the mechanism for bringing the stipulation from one to two people with clinical expertise - currently there is none - comes from a Bill that may go into pre-legislative scrutiny before the summer, we know it could be any amount of time before it goes through its own Report Stage. This would be a reasonable compromise to bring about the wording desired by the Minister with what the committee and the House wants, which is to have two clinical experts and one financial expert on this board.

Deputy Donnelly's proposal is that the Minister should withdraw his amendment so it can be amended and tabled in the required format in the Seanad. Deputy Donnelly and I can confirm the support of our parties in the Seanad. Is that a workable solution? I am confused but I do not believe it is a workable solution.

The advice I have is that what Deputy Donnelly is suggesting is not possible. It is only the amendments made in the Dáil that can be amended in the Seanad. If an amendment is withdrawn here, it cannot be introduced in the Seanad and new amendments cannot be proposed.

What if the amendment is put to a vote and lost?

I will try to be helpful. Based on what Deputy Donnelly is endeavouring to achieve and the Leas-Cheann Comhairle has said, if the House passes an amendment at this stage, the Seanad can amend that amendment.

I can give my commitment to amending those amendments in Seanad Éireann to include two people with clinical expertise and a financial expert. Could we then pass my amendments tonight? The Deputies will have their parties represented in the Seanad anyway when I go back there with the Bill. We could then amend my amendment in Seanad Éireann if that is in order.

Yes. I am happy with that.

That works. I hope the Leas-Cheann Comhairle is right.

Taking into account the assurance given by the Minister, we are quite sure he will be a man of his word.

Amendment agreed to.

I move amendment No. 2:

In page 9, line 12, to delete "paragraph (b)" and substitute "paragraphs (b) and (c)".

Amendment agreed to.

I move amendment No. 3:

In page 9, between lines 21 and 22, to insert the following:

"(c) At least one of the persons appointed under paragraph (a) shall be a person who is practicing, or has practiced, as a member of a health profession, whether in or outside the State.".

Amendment agreed to.

I move amendment No. 4:

In page 9, between lines 21 and 22, to insert the following:

"(3) One member shall be nominated by the Irish Congress of Trade Unions (ICTU), and shall be appointed by the Minister so long as they have sufficient experience and expertise relating to matters connected with the functions of the Executive to enable them to make a substantial contribution to the effective and efficient performance of those functions.”.

I will be brief as we discussed this on Committee Stage. This amendment would allow for the Irish Congress of Trade Unions to nominate a person to be a member of the board. That person could not serve in a representative function but the HSE is the single biggest employer in the State and this provision is no harm, notwithstanding the hostility sometimes expressed in here towards trade unions. I am the daughter of a trade union official and I am a former trade union official so I do not share any of that hostility. Trade unions are wonderful and this would be a wonderful nominating body to the Health Service Executive, which is the single biggest employer in the State, as I said. That is why I tabled the amendment.

I consulted some of the representative groups within the health service. In other State enterprises the workers have a representative, notwithstanding the fact that the person could not act in a representative capacity. The purpose of the amendment is for a person to bring to the table the experience of being an employee of the HSE, which is really not as much fun as people might imagine all the time. We often are charged in here with being ideological, as if that is bad.

I do not think there is enough ideology in this place sometimes but that is where my amendment is coming from.

A discussion of our ideologies could be interesting. I want to make it very clear, as I think I did on previous Stages in the Seanad, that I certainly do not doubt that a person nominated by ICTU could well have all the qualities and experience needed to be an effective member of the HSE board. Based on my interactions with the trade union movement, I have no doubt about the calibre or experience of those individuals but I would stress that the issue is not about calibre. The issue is about nominees to the board by stakeholder groups. Having nominees by any individual organisation would not be good practice in the context of the HSE board and would inevitably result in requests for a range of other groups to nominate to membership of the board. We already take account of clinical, financial and patient advocacy expertise. Pointing out clinical expertise, they will presumably and potentially be employees of our health service as well. I do not think anyone, including Deputy O'Reilly, wants to see our board constructed by a series of nominations by a series of stakeholder groups. For those reasons and not the calibre of individuals, I do not intend to accept this amendment.

How stands the amendment?

I will withdraw the amendment on the basis that we have agreed a compromise regarding the other amendments.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 9, line 35, to delete "4 members" and substitute "5 members".

Amendment agreed to.

I move amendment No. 6:

In page 10, between lines 13 and 14, to insert the following:

"(12) For the purpose of this section, "health profession" means any of the following professions:

(a) dentist;

(b) a designated profession within the meaning of section 3 of the Health and Social Care Professionals Act 2005;

(c) medical practitioner;

(d) midwife;

(e) nurse;

(f) pharmacist.".

Amendment agreed to.

I move amendment No. 7:

In page 10, between lines 13 and 14, to insert the following:

"(12) Persons being proposed by the Minister for appointment as chairperson, the deputy chairperson and the ordinary members of the Board shall be required to make themselves available to the Committee to discuss the approach which they will take to their role as Board members and their views about the future contribution of the Board.

(13) In this section, 'Committee' means a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas, other than—

(a) the Committee of Public Accounts, the Committee on Members' Interests of Dáil Éireann or the Committee on Members' Interests of Seanad Éireann, or

(b) a subcommittee of a committee referred to in paragraph (a).".

The person who is appointed to the board and has gone through the requisite processes may not always be the best person for the job. This amendment would require him or her to make himself or herself available to come before a committee, a definition of which is contained in the amendment. This is a belt-and-braces effort. We have seen issues with boards and members of boards. Notwithstanding the fact that they are all appointed in good faith and no Minister appoints a person to a board believing that he or she will not be the best person for the job, a second option in terms of oversight is proposed here.

We already have guidelines on appointments to State boards that set out the confirmation process for chairperson. In fact, I think the chair designate of the HSE board offered to go before the Joint Committee on Health and the committee decided it did not need to meet with him. Persons being proposed by the Minister for appointment as chairpersons of State boards or agencies are required to make themselves available to the appropriate Oireachtas committee to discuss the approach they will take to their role as chairperson and their views about the future contribution of the body or board in question. This is a proportionate approach to take where the proposed chairperson comes before the relevant committee. I think it works well in practice.

This amendment would place in legislation a requirement not only that the proposed chairperson but all the proposed members of the board would have to come before the committee to discuss their approach and views about the future contribution of the board. When this amendment was put forward previously, the point was made that the chairperson has a crucial role in leading the board. Collectively, we made a conscious decision in recent years to take politics and party politics out of selecting board members. As a result, the Public Appointments Service makes a recommendation to the Minister independent of the Minister, people are short-listed and the chair then goes before the committee. I worry whether this amendment would bring a degree of politicisation into the process. I am not sure about its appropriateness. I note that there is no requirement in the code of practice for other members to appear. I appreciate what Deputy O'Reilly is trying to do but we would be placing a much higher burden on a member of this board than on a member of any other board in the State. I am not sure that is the best way to attract people to put themselves forward for State boards. I am satisfied that the current guidelines are appropriate and that the chair would come before the committee, as appropriate. Indeed, that would be at the request of the chairperson.

Amendment put and declared lost.

I move amendment No. 8:

In page 14, lines 36 to 38, to delete all words from and including "without" in line 36 down to and including "given" in line 38.

This amendment is about people essentially double jobbing. Running the HSE is a very extensive and important job. We read in the newspapers that it is also an extremely well remunerated job. I do not believe it is appropriate for the CEO to have another job or to sit on the boards of other companies or businesses while he or she is operating as the head of the HSE. We have seen how a person who occupied that role sat on the board of a US company that could do business with the HSE at some point. I understand that this was approved by the Minister but that does not make it right. If we are to have someone heading up the HSE, his or her focus should be solely on that job. We are asking this person to implement Sláintecare. That is an eight-days-a week, 24-hours-a-day job. We have already lost considerable time with regard to Sláintecare. This person will be very well paid. I am not sure he or she would need to seek other employment. We are asking this person to do a very onerous and important job and we want him or her to get it right on behalf of the State. I do not believe that is compatible with having another commitment. It is possible for this individual to have all those opportunities to sit on boards and take up other work when he or she retires but I feel very strongly that the sole focus of the person who heads up the HSE should be the HSE.

I had different views on this because we strengthened this legislation compared with the Health Act 2004, which did not suggest that the CEO would have to seek board approval for any other office, employment, business or the like. However, I am persuaded by the argument put forward by Deputy O'Reilly and am happy to accept the amendment.

Amendment agreed to.

I move amendment No. 9:

In page 18, lines 12 and 13, to delete ", or has been, or may at a future time be,".

This concerns the capacity of people to tell the future. We have entered into another realm. I was struggling with the words used in the Bill, on which we had a discussion on Committee Stage. I do not understand why the wording is included in this section. It gives the CEO the option of not disclosing any information if he or she has the capacity to simply say that it might be the subject of court proceedings. On the basis that anything someone says could be the subject of court proceedings, a person would have cover to say absolutely nothing. I will not get into a debate about whether we sometimes have to drag answers out of people but it is on the public record that sometimes we do. It is about removing the excuse that it may cause an issue at some future time. Allowing a CEO not to disclose information on the grounds that something might be the subject of court proceedings in the future is very confusing. It gives the head of the HSE the opportunity to effectively operate a veto on discussing important issues, which makes me very concerned. That veto is very broad. It is a very broad interpretation. My amendment is proportionate and in order and eliminates the possibility that the CEO can do this in the future. Deputy Donnelly and I discussed this anomaly and the recognition of it on Committee Stage. I think there was consensus at the committee. Most of the amendments were withdrawn and we agreed we would have the discussion here on the floor of the House. We had a small discussion, the anomaly was recognised and all I am seeking to do here is rectify that.

There has been a good debate and Fianna Fáil will support this amendment and indeed would have supported it on Committee Stage. I agree with everything Deputy O'Reilly has just said. If the amendment were made, the Bill would essentially state that the chief executive is not required to give evidence relating to something that may in the future be a matter for the courts or a tribunal. Within the world of healthcare, that is literally everything, so we could find ourselves in a very peculiar situation in which a committee is looking for information from the chief executive and he or she would just say no they are not required to answer any questions because everything said could at some point in the future come before the courts.

I will support the amendment. On reflection, though, there is an argument to delete the whole paragraph to be amended and I will explain why. Standing Order 59 is the one that, from memory, states that Members of the Oireachtas shall not comment on live legal proceedings in very specific situations - by my understanding it is where there is a jury involved and the discussions in the Houses of the Oireachtas may influence the judge or the jury. It is therefore a very narrow restriction on debate in this House. It is broadly interpreted in the House to the effect that we should not talk about live court cases, but my understanding is that we are not prevented from doing so. I have encountered this before. This is nothing to do with the Minister, Deputy Harris, but another Cabinet Minister refused to talk about Enet, the broadband contract, because the Department had lodged an appeal which would be heard in about a year's time and therefore, he said, he was prevented under Standing Orders from even discussing the issue. I looked into Standing Order 59 and it turns out he was in no way so prevented. I therefore make the point to the Minister, Deputy Harris, that even when it comes to matters which are before the courts, it is entirely in order in this House to talk about them, except under Standing Order 59, whereby we may end up influencing a jury or a judge. Say we wanted to talk about CervicalCheck, which we talked about this morning. One could argue that a chief executive could come in and say he or she cannot talk about CervicalCheck because it is before the courts. We could say we want to talk about patient safety in maternity hospitals but a chief executive could say he or she cannot talk about that because it is also before the courts. Healthcare being what it is, one can be pretty sure that when it comes to most issues the committee would like to discuss, based on this paragraph a chief executive could if he or she so wished say a case involving the matter is before the courts. We therefore do not have the mechanism to do this. I would like to see this provision removed because the danger that discussions in the Oireachtas might prejudice the outcomes of court cases is already covered in the Standing Orders of the House.

Anyway, this does not relate to the amendment. I welcome and will support Deputy O'Reilly's amendment. I am just making the point that all the amendment seeks to do is to delete ", or has been, or may at a future time be,". The fact that something was before the courts in the past should in no way allow any chief executive say, for example, in 1984 there was a case on this so he or she will not talk about it; that in the future, hypothetically, the organisation could be taken to court over anything he or she says or any of the issues discussed and he or she will not talk about them. I would go further. I refer to the issues before the courts now, just like CervicalCheck. We had four hours' debate on CervicalCheck this morning. This would allow a chief executive to say, sorry, but he or she cannot talk about CervicalCheck because there are multiple live cases before the courts.

I will make an additional point. I certainly did not understand Standing Order 59. I assumed it meant that none of us can really discuss issues that are before the courts. My understanding is that we actually can. We do so all the time. We talked about CervicalCheck this morning. I would therefore love to see the paragraph deleted. I do not believe it serves democracy or accountability at all. We will support Deputy O'Reilly's amendment.

I am disappointed by the position being adopted because I think it means it is likely that the amendment might pass. I need to put on the record of the House my concerns in this regard.

The first point is that this is the law today, so when Deputies were at the health committee meeting this morning discussing CervicalCheck, this was the law and has been the law in the Health Act since 2004, a law brought forward by Fianna Fáil when in government. It was brought forward for good reason and not just in the Health Acts but in, I think, 25 other pieces of legislation since, including the Data Protection Act, the Financial Services and Pensions Ombudsman Act, the National Shared Services Office Act, the Roads Act, the Workplace Relations Act, the Legal Services Regulation Act, the National Treasury Management Agency (Amendment) Act, the Competition and Consumer Protection Act and the Education and Training Boards Act. This is probably legislation on which most of us have voted and which most of us have supported. The rationale here is not to protect the entity before the committee, the HSE in this case; it is to protect the individual who may end up being adversely impacted, accidentally and unintentionally, in this regard. Often there is a lot of good work done in these Houses. We do not all discharge our duties as responsibly as we should all of the time. This is a protection for the individual.

The CEO, as the House will be aware, is required to present before a committee to give an account of the general administration of the HSE. The proposed amendment would remove the current law that stipulates that the CEO is not required to give an account before a committee of any matter which has been or may at a future time be the subject of proceedings before a court or tribunal. I fully appreciate exactly what Deputy O'Reilly is trying to do here, and she has articulated it very clearly. She is trying to ensure that no one can come before a committee and obfuscate and say he or she will not answer because the matter is before a court or tribunal, or may be in the future. I get what the Deputy is trying to do, but it is important to clarify that this is a provision in place today. Whatever else the health committee might say, it has not been unable to have very detailed and robust discussions, for example, on the issue of CervicalCheck, or on many other important issues. This has been part of our health laws since 2004, when the Health Act was first enacted. The provision has been used very sparingly and is designed to protect the integrity of future legal cases, or indeed past cases, where a confidentiality or personal information aspect may arise. It is fair to say that over the time the provision has been in force regarding the HSE, there have been many occasions on which the CEO or the director general has come before the committee and the provision has not arisen. It is also important to say that where the CEO is of the opinion that a matter has been or may at a future time be a subject of proceedings before a court or a tribunal, he or she needs to inform the committee of the reason and rationale for that opinion, and it is then open to the Chairman of the committee, or indeed the CEO, if he or she believes someone is hiding behind the provision, to seek recourse to our courts. As I said, this procedure has been in our Health Act since its very beginning, it was in precedents before then and it has continued to be in legislation since then. I am concerned about abandoning the precedent and I remain of the view that we need to protect the integrity of past and future court proceedings, not for the corporate entity but for the integrity of the individual before the court. This is why I would rather the amendment did not pass. I believe this provision protects the individual. As I said, the CEO must give reasons for his or her opinion and if, having heard the reasons for the CEO's opinion, the committee still feels that the CEO needs to give an account, we have recourse to the courts. Indeed, we have seen these Houses interact with our courts on occasion.

This is real and practical; it is not some abstract concept. There have already been situations in which this has happened. For example, the HSE would remind us that there was a matter before the joint committee in 2015 relating to foster care. I will not get into the specifics of the matter, but people will be aware of it as it is a matter of public record. The director general at the time was very limited in what he could comment on publicly as the matter was subject to a Garda investigation and I think this rationale was accepted by the committee. A follow-up briefing was then provided to the committee, so instead of an oral presentation there was a way of dealing with the matter that could get the committee the information.

I am not against the amendment because I wish to slow down the work of committees or stop the flow of information to them. I am just of the genuine view that this is a very long-standing precedent, not just in health law, but right across the range of our public services. It is one that this House put into the Health Act in 2004. I do not think it has caused a problem but I can see a particular problem were it not there. I would reference as an example that foster care case of 2015, where the provision was used and, I believe, accepted by the committee as seemingly reasonable. The committee did not want to cause harm. It asked for help in being provided with a briefing in another way that would enable it to get the information it needed, and that was carried out satisfactorily.

I am aware of that case. What happened in it would, I believe, have happened had this provision not been in place. People just behaved sensibly, decently and with due regard to the victim. I do not believe that removing the veto would encourage or force people to behave in a way that was anything less than decent and anything other than exactly the way in which they did behave in that instance.

I am minded to push this amendment. I have not been convinced by the argument made by the Minister. To me, it offers a veto. The difference between now and 2004 is that there is much discussion in the public domain regarding committees, what they can and cannot do, who can ask what, whether they should ask it, who is going to court etc. Given that environment, I am unhappy that the head of the HSE would have a veto on answering questions on the basis that something might happen. I do not believe removing this aspect will encourage people to behave in a way that is anything less than decent, as they did in 2015. Notwithstanding that, had the provisions not been there, I do believe the proceedings would have happened exactly as they did. That is because they happened in that way out of respect for the victim.

While Deputy O'Reilly has been a very robust opponent, I have never found her to behave in any way that is not decent. I acknowledge that.

I was referring to 2015 and not to anything else at all.

I hope that is something we can say about every Member of this House now and into the future. I understand the arithmetic of the House and I do not intend to divide the House on this. I accept the bona fides of what Deputy O'Reilly is endeavouring to do. I have cautioned the House regarding this matter. The record of the House will show that.

Amendment agreed to.

I move amendment No. 10:

In page 21, line 13, to delete “the person referred to” and substitute “a person referred to in”.

This is a technical amendment to section 14 of the Bill to replace the words “the person referred to” with “a person referred to in”.

Amendment agreed to.

I move amendment No. 10a:

In page 24, line 36, to delete "an audit committee" and substitute "the audit committee".

This amendment is a typographical correction to change the wording from "an audit committee" to "the audit committee".

Amendment agreed to.

I move amendment No. 11:

In page 30, line 38, to delete “Board authorised” and substitute “Executive authorised”.

This is a technical correction to Schedule 2 of the Health Act 2004 and provides for the authentication of the seal. The current reference is an employee of the board and this should be to an employee of the HSE.

Amendment agreed to.

I move amendment No. 12:

In page 31, line 10, to delete “Any 6” and substitute “Any 7”.

Amendment agreed to.

I move amendment No. 13:

In page 31, line 13, to delete “6 members” and substitute “7 members”.

Amendment agreed to.

I move amendment No. 14:

In page 31, line 19, to delete “5 ordinary” and substitute “6 ordinary”.

Amendment agreed to.
Bill, as amended, received for final consideration.

When is it proposed to take Fifth Stage?

Question proposed: "That the Bill do now pass."

I would like to clarify that what has been agreed is that passing the Bill here will mean that one amendment will be made in the Seanad.

Is Deputy Donnelly referring to the Minister's amendment?

Yes, that is correct. We want to pass this Bill now but I want to check that will still allow it to be amended in the Seanad.

That is correct. The Bill will pass the Dáil in the normal way. The Bill will then will have to go back to the Seanad anyway because it has been amended here. There will then be an opportunity for me to amend the amendments in the Seanad and I will do that along the lines we discussed in regard to the composition of the board. I believe the Bill will then return to the Dáil for approval of those final amendments.

I can confirm that is correct.

Question put and agreed to.

The Bill, which is considered to be a Dáil Bill under Article 20.2.2° of the Constitution, will be sent to the Seanad.