Skip to main content
Normal View

Joint Committee on Health debate -
Thursday, 30 Mar 2017

Health and Social Care Professionals (Amendment) Bill 2016: Discussion

In accordance with Standing Order 141(2), the purpose of this meeting is to scrutinise in detail the provisions of the Health and Social Care Professionals (Amendment) Bill 2016, in the name of Deputy Howlin.

The committee will now meet in this, the first of two sessions in the analysis of the Bill, with Deputy Howlin. Following the conclusion of this session, the committee will meet with officials from the Department of Health to hear their views on the Bill. On behalf of the committee I welcome Deputy Brendan Howlin, Mr. Neil Ward and Mr. Finbarr O'Malley. I draw the witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the Chairman to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. I also advise witnesses that any submission or opening statement they have submitted to the committee may be published on the committee's website after this meeting. I remind committee members of the longstanding parliamentary practice to the effect that they should not comment upon, criticise or make charges against any person or official outside the House by name or in such a way as to make him or her identifiable. I now invite Deputy Howlin to make his opening statement.

I thank the Chairman for the opportunity. I thank members for being here. The initiative we are trying to achieve is a single focus issue but a very important one, that is, the extent to which rogue counsellors and rogue agencies are, to put it bluntly, lying to women with crisis pregnancies. Some of these agencies have been operating, on and off, for more than a decade. Undercover journalism has disclosed the extent to which this so-called counselling involves lies, deceit and sometimes grotesque mistruths. Women in crisis pregnancy situations are being told, for example, that abortion increases a woman's risk of breast cancer or that women who have had abortions will later abuse or neglect any children they might subsequently have.

My starting point is that it is no longer tenable to stand over a situation in which health care professionals such as dieticians and opticians must be regulated before they can offer any services to the public but those people who counsel women who are in vulnerable situations face no requirements to register, to be regulated or to be overviewed.

In the belief that new legislation is needed to regulate this area, after some consideration Labour chose the Health and Social Care Professionals Act as the vehicle for this proposed reform. It is the vehicle best suited to deal with the elimination of rogue counselling agencies from the spectrum.

The Act applies to the newer health and social care professions outside the traditional core sectors of medicine and nursing, which as the Chairman knows very well is tightly regulated and always has been. The Act establishes registration boards for those designated newer professions; it protects the use of the titles of those professions and it provides for the resolution of complaints relating to fitness to practice.

We recognised from the outset that there might be practical difficulties in applying this Act to crisis pregnancy counsellors. The Bill was accepted by the Government and by the Dáil on Second Stage. I have discussed it several times with the Minister for Health, Deputy Harris, who has been very helpful and supportive. I thank the Minister and his officials for their support and ongoing engagement. I appreciate his anxiety to co-operate on the Bill and to accommodate what he agrees is a much-needed reform. The Minister for Health and I are at one with regard to the objective and we are trying to work out the best way of achieving that objective.

As we understood from the start, the Health and Social Care Professionals Act applies automatically to certain professions directly named in the legislation itself. These include: chiropodists, occupational therapists, psychotherapists and psychologists. These professions already have what we might call the infrastructure of a recognised and regulated profession, namely, a defined scope of practice, a representative professional body; defined routes of entry and recognised qualifications.

The Act then goes on to enable the Minister by regulation to designate additional health and social care professions. He or she does so by reference to the stipulated factors. In other words, the Minister assesses whether the profession has in place the infrastructure to enable it to be regulated. Normally speaking, the path towards recognition and designation may take months, if not years, involving consultation, assessment, the satisfying of preconditions and so on. That, however, is not the end of the matter. Designation of a profession as suitable to be covered by the Act is just the start of a process that will only lead to full regulation some months later.

For the reasons that will be spelled out later to the committee, the Minister’s approach is to designate counsellors generally, rather than trying to single out pregnancy counsellors and I do not oppose that approach. It might be a better route.

I will leave it to the officials to spell out how much progress they have made to date on this project. The Minister tells me that the Houses may have draft regulations to consider and approve before the summer recess and what work will then remain to be done. I do appreciate that this is inevitably a methodical process. I believe that part of our joint function is to ensure that progress is maintained on this matter, as a priority. I remind the members of section 4(4)(e) of the 2005 Act. It states that, in deciding whether it is appropriate and in the public interest that a particular health or social care profession be designated, regard must be had to "the degree of risk to the health, safety or welfare of the public from incompetent, unethical or impaired practice of the profession". That should be our overriding consideration as the giving of incompetent, unethical or impaired advice or counselling to vulnerable women with crisis pregnancies represents an unacceptable risk to their health and safety. It is for this reason that immediate action is warranted. I am glad that the Minister for Health agrees and that he has engaged so positively on this issue.

The progress achieved to date is not exactly along the lines proposed in the Bill but that is not the material point. What is important is whether and to what extent we are making real progress and whether we can sustain that progress and see this matter through to a resolution.

There is a role for Government and Opposition and for the committee in all of this, as well as for the Department of Health. I do not want to take up more of the committee’s time than is necessary because I believe it could more usefully be spent in listening to a presentation, which is about to come from the Department's officials, as they map out their views and the steps and timelines for achieving a way forward.

There is one other aspect I should mention. It relates to another Act with which I had some involvement when I served as Minister for Health a number of years ago. That is the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995. Committee members will be aware that this Act arose from the 14th amendment to the Constitution, which enshrines in the Constitution that Article 40.3.3° cannot be used to limit the freedom to receive and impart information about services available in another state, subject to such conditions as may be laid down by law. The 1995 Act lays down these specific conditions.

It seeks to balance the constitutional rights and freedoms bearing on the question of abortion information. The legislation seeks to ensure that any doctor or advice agency that provides what is classified as abortion information to pregnant women does so only in the context of full counselling on all of the available options, without any advocacy or promotion of abortion.

Section 5 of the Act applies to anyone who engages in the activity of giving information, advice or counselling to individual members of the public regarding pregnancy. The section states that where such a person is requested by a pregnant woman to give information, advice or counselling on her particular circumstances, it is not lawful for that person to give what is called "Act information" to the woman unless that information, counselling and advice are "truthful and objective". However, it is important to bear in mind - this is something that I want to underscore for the committee - that the scope of the 1995 Act is confined to Act information. This is defined as information likely to be required by women in availing themselves of pregnancy termination services. In other words, Act information relates to that information which helps somebody have an abortion, that is, providing the name, address and telephone number of a foreign abortion service and so on. The 1995 Act does not apply to more general information, such as information about the nature of abortion itself. Therefore, if a rogue agency that seeks to restrict access to abortion provides women with information that is objectively and factually wrong and untruthful, it can do so in my view without breaching the 1995 Act.

I understand that the Department is considering the possibility, in the context of a designated and regulated counselling profession, of amending and perhaps broadening the terms of the 1995 Act. Again, I will leave it to the officials to spell out what options are being considered. I will not take up any more of the committee's time. It may be unusual for the mover of a Bill and somebody who is very anxious to have it enacted to come before a committee and not argue for its urgent and immediate passage, but I know that the committee will want to hear from the Department. If the members are satisfied that real and substantial progress, in accordance with a realistic timeframe, is being maintained towards a practical and workable solution, then it may be that the committee’s best option would be to adjourn consideration of this particular Bill until we see what specific timelines and actions are to be made by the Minister for Health and his Department.

We are looking at a difficult issue and trying to find a solution. In this Bill, I have put forward what I think is a good solution. The Minister for Health has been thinking about this for some time since I have engaged with him. He may have a slightly different solution. To me, the objective is simply to find a solution rather than to have any particular legislation enacted.

I thank Deputy Howlin. We will now open discussion to the floor. Our first contributor is Deputy O'Reilly.

I thank Deputy Howlin and the Chairman. I take the opportunity to thank journalists like Ms Ellen Coyne for the good work done in pointing us to something that many of us would have known was going on and for shining a fairly bright light on it. Fair play to her for that.

I refer to the agency that was most recently highlighted in the media and the sort of disgraceful information that it was giving to women in crisis pregnancy situations. Is Deputy Howlin satisfied that said agency, given that it does not necessarily represent its staff as counsellors, will be covered by the Bill? I am not going to name but it is not very far from here and we all know what we are talking about. When we discussed this in the Dáil, I think there was unanimity among all Deputies that these people prey on vulnerable women and need to be stopped. We all want to ensure that, whatever is done, we do the right thing and the best thing for women in this. Is the Deputy satisfied that the 1995 Act can be amended in order to shore up the sort of information that can be given? My primary question is this: is the Deputy satisfied that the people operating the agency most recently in the media will be encompassed by this legislation?

I welcome Deputy Howlin. It is nice to see a Bill moving through the various Stages. From an Opposition perspective, we very often put forward Bills knowing that they may not travel very effectively through the legislative process and may at times not be legislatively sound. At the same time, however, they stimulate the debate and move the system to react and respond to the proposals being put forward. From that point of view, I want to congratulate the Deputy in that context.

As Deputy O'Reilly stated, the very least that people in crisis pregnancy should be entitled to is correct information that is sound in its medical aspects and professionally delivered. The Bill seeks to amend section 4 of the 2005 Act. In that Act, professions are primarily regulated by the setting of qualification standards. However, in the Deputy's proposal, it will not be set or regulated by qualification standards. It will be measured by the activity and the advice offered. Would that broaden the scope out to the point where there could be several professions and professional entities included beyond crisis pregnancy counselling, for example, a nurse or a GP, who would also very often give advice on these issues? In the Deputy's discussions with the Department, is there a way around that? Let us be very clear: many of the entities that we would like to regulate are ones that pop up and move on. While the Bill has very noble aspirations, there are, and I hope that the Deputy can accept this, huge technical difficulties in the context of achieving its aim. Is the Deputy willing to engage in a co-operative way to see this Bill amended to the point at which it would do what the Deputy and the committee would like it to do?

I welcome the Deputy. I apologise for being a bit late. Perhaps some of these points were covered in the Deputy's presentation. Realistically, within what timeframe does the Deputy see this coming to fruition? Will counsellors in this instance go through the exact same process as professionals currently regulated by the Health and Social Care Professionals Act 2005? I would like to pay tribute to Ms Ellen Coyne, as Deputy O'Reilly did. How would all of this be policed? If counsellors are working for organisations that do not abide by the law and continue to give false and misleading information to women, does the Deputy think that it will continue? Does he think that his Bill goes far enough to cover it?

I welcome the Bill. I believe it is hugely important that information made available needs to be accurate in general. There is so much false information in every sphere of life that affects us all. There is so much false information out in the open arena purporting to be well-meaning and soundly-based. Of course, that is not always the case. Where it affects the health of the community, and women in this context, it is particularly important that the information being made available is fair, even, balanced and factual. The presentation of false information in that context can have serious consequences for the people to whom the advice is given. In our business, we would often like to think that politicians should give fair, accurate and balanced information all of the time. We believe that they do to the best of their ability, though we might question that from time to time. This is a different issue altogether. This affects people's health.

In light of our recent history, it is very important that we recognise the urgency of the need to regulate the extent and degree to which the information is being made available, regardless of who is making it available. The theory is that professionalism should at all times prevail and that, as a result, there should not be a necessity to regulate. However, as time goes by, there appears to be a necessity.

The general thrust of the Bill is to ensure, by way of legislation, that fair, accurate and balanced information is made available to women in sensitive situations, with particular reference to crisis pregnancies. I know that the Minister is anxious to accommodate the Bill. It would be helpful if it were included under the general umbrella of legislation affecting regulation. I am not sure whether that can be done effectively or whether Deputy Howlin sees that as effective. Either way, we should support the thrust of the Bill.

I thank the members for their supportive comments. I express my appreciation for the work done by journalist Ellen Coyne, Catherine Sanz and by a colleague of mine, Sinead Ahern, who, in a difficult way, went undercover to hear exactly what "information" was being imparted.

To pick up the point made by Deputy Durkan, can one imagine a vulnerable woman, not knowing what to do, being told that if she has an abortion she is likely to abuse any children she may have in the future? It is shocking. We need to ensure that any advice or purported health supports are given objectively, truthfully and factually.

In terms of how this will work, we looked at both the 1995 Act and the 2005 Act to see which we could address by way of amendment. The 2005 Act looks at how to regulate the newest categories of health and social care professionals. There are a range of new health and social care professionals alongside the traditional doctors and nurses who, for generations, have been regulated in what they can do. In terms of Deputy Kelleher's point about GPs or nurses giving advice, they have professional standards and oversight. They have a fitness to practise procedure and any complaint can be properly dealt with by their colleagues. It is not that category of people that now need to be regulated, it is people who purport to be counsellors giving objective information through counselling agencies.

At the core of what Deputy Kelleher and Deputy Murphy O'Mahony asked is whether this approach will be watertight. I do not know the answer to that. That is why I have been engaging with the Department of Health. This aims to regulate a profession. It may be possible to get around this if a person does not set him or herself up to be a counsellor and states he or she is not providing information. People will at least be alert that they are not going to a professional counsellor if they are not regulated.

Deputy Kelleher asked about co-operation. I have absolutely no objective other than to get this job done. If there is an easy way of getting it done, I am all for it. As Deputy Durkan pointed out, it would be really good if this could be done by way of statutory instrument that would not require legislation. The Minister is working on that. We need to ensure that it is comprehensive and watertight to extend the categories through statutory instrument, which the Minister has the power to do.

Deputy Murphy O'Mahony asked about the policing of this. All the new categories of health care and social care professionals are regulated by the overarching new registration authority, CORU. The idea is that a person captured by the 2005 Act will be subject to registration and regulation by a statutory agency.

I think I have touched upon all questions that were put. I am interested in hearing the views of the Department and the Minister. My only objective and my encouragement to the committee members is to ensure that this is not put on the long finger. I do not believe that is the intention of the Minister. Hopefully, before the summer break we will have draft statutory instruments before this committee for consideration.

Is it possible to define specifically what a pregnancy counsellor is?

Those who hold themselves out to be counsellors can be regulated. The point I was trying to get at in regard to the very incisive point made by my Fianna Fáil colleagues is there will be a lot of people who will give out advice. For example, one could get advice from one's local priest in the confessional. They do not purport to be professionals and there is no way of regulating that. However, one knows what one is getting there. If one goes to a family member, a priest or member of the clergy, one knows upon what it is based. The difficulty is when one attends a person purporting to be a qualified professional giving objective advice but the information one gets is profoundly wrong. That is the area we need to regulate.

Is the Minister suggesting that all counselling should be regulated and this should come under that umbrella rather than specifically pregnancy counselling?

That is my understanding. I will allow the Minister's officials explain what they are proposing but that is what the Minister has explained to my colleagues.

I thank the Minister.

If he was a Minister he would have a large delegation with him.

Excuse me. Deputy Howlin. The committee will be preparing a report on this issue. Is Deputy Howlin withdrawing the Bill or-----

I want the Bill to progress if that is deemed to be the best way of doing it. I have complete confidence in this committee interrogating my approach and the approach being put forward by the Minister for Health. As we all share the same objective, I am content with whatever path the committee determines is the best way to go.

On behalf of the committee, I would like to thank Deputy Brendan Howlin, Mr. Neil Ward and Mr. Finbar O'Malley for coming to give evidence to the committee.

Sitting suspended at 10.08 a.m. and resumed at 10.38 a.m.

We will now resume in public session. We will now meet officials from the Department of Health on the committee's detailed scrutiny of the Private Members' Health and Social Care Professionals (Amendment) Bill 2016, sponsored by Deputy Brendan Howlin. On behalf of the committee I welcome Ms Teresa Cody, Ms Deirdre Walsh, Ms Geraldine Luddy and Mr. Kieran Duffy to the meeting, where we will continue our analysis of the Bill.

I wish to draw their attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009 witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Any submission or opening statement they have submitted to the committee may be published on the committee website after this meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I invite Ms Teresa Cody to make her opening statement.

Ms Teresa Cody

I thank the Chairman and members of the committee for inviting us today to talk about the Health and Social Care Professionals (Amendment) Bill 2016.

I would like to introduce myself and my colleagues. I am assistant secretary in charge of national HR division in the Department of Health. I am joined by Ms Deirdre Walsh, principal officer, Mr. Kieran Duffy, assistant principal officer, from the professional regulation unit of my division, and Ms Geraldine Luddy, principal officer, bioethics unit, which forms part of the office of the Department’s Chief Medical Officer.

The Health and Social Care Professionals (Amendment) Bill 2016 seeks to amend the Health and Social Care Professionals Act 2005. While I do not intend to go into details on the provisions of the 2005 Act in my opening statement, it is important to give the joint committee a brief overview of the 2005 Act, as this is key to considering the amendments proposed in the 2016 Bill. The information brief furnished to the committee also provides detailed background information on the operation of the Act and progress to date on the regulation of the designated professions.

Regulation under the 2005 Act is primarily accomplished through the statutory protection of professional titles by confining their use solely to people who have been granted registration. The structure of the system of statutory regulation comprises registration boards, a committee structure to deal with disciplinary matters and the Health and Social Care Professionals Council, known as CORU, which has overall responsibility for the regulatory system. CORU is Ireland’s only multi-profession health regulator, with 14 professions currently designated for regulation under the Act. Government policy is to conclude, by late 2018, the regulation of the 14 designated professions and to designate by regulation in the coming months the professions of counsellor and psychotherapist for regulation under the Act.

I will now turn to the Health and Social Care Professionals (Amendment) Bill 2016. Deputy Howlin’s primary concern, as shared by others, is to better protect women who are experiencing crisis pregnancies and seeking support at a time of extreme distress and vulnerability. He seeks to ensure crisis pregnancy agencies and individual counsellors offering crisis pregnancy counselling do so responsibly. This concern is shared by Government and the Minister for Health, Deputy Harris, has advised the Dáil that officials will work with Deputy Howlin to address these concerns. Deputy Howlin’s Bill seeks to amend section 4 of the 2005 Act to address the issue of persons who masquerade as counsellors, providing information on crisis pregnancy that is clearly neither truthful nor objective. The Bill seeks to do this by adding crisis pregnancy counsellor to the list of 14 professions designated for regulation under section 4 and to define the scope of practice of a crisis pregnancy counsellor by regulating the activity engaged in.

As outlined in detail by the Minister, Deputy Harris, during the debate on Second Stage, there are a number of policy, legal and implementation difficulties with the detail of these proposals. First, the Bill seeks to establish crisis pregnancy counsellors as a profession separate and distinct from counsellors as a whole. Crisis pregnancy counsellor, not being a distinct profession, does not meet the criteria for designation nor does it fulfil the legislative requirements with regard to implementation by way of establishment and population of a professional registration board and maintenance of a professional register. It is intended that the priority work currently under way on the designation in the coming months of counsellors generally by way of regulation under the 2005 Act, will encompass crisis pregnancy counsellors as part of this profession. This does not require an amendment to the primary Act and will provide an opportunity to assist in addressing Deputy Howlin’s concerns.

The amendment Bill also seeks to regulate crisis pregnancy counsellors by way of defining the activity engaged in. However, the activity outlined is also undertaken by a variety of other regulated professionals who may include doctors, nurses, social workers and psychologists. The 2005 Act regulates professions by way of setting qualifications and protecting title, and not by activity or scope of practice. There are very sound policy and legal reasons for this.

The amendments to the 2005 Act proposed in the Private Members' Bill would not prevent rogue crisis pregnancy counsellors from deliberately providing incorrect information. Registration under the 2005 Act is voluntary. While it is an offence for non-registrants to use protected titles, rogue practitioners, including those struck off the register for professional misconduct, could get around this by using an alternative title such as adviser.

Scope of practice is ever changing as education, training and the impact of technology on health and social care professions evolves, as indeed it should do. The activities engaged in by a number of professions can overlap and the professions are often regulated by different regulatory bodies with differing legislative provisions. Defining in primary legislation the scope of practice or the activity engaged in by a health profession, or both, has the potential to hinder health professionals working to ever-expanding scopes of practice, something which is vitally important in the delivery of services across all health settings. It would also result in primary legislation having to be amended on an ongoing basis as scope of practice evolves and, most importantly, to ensure those working to an expanded scope of practice did not find themselves being brought to fitness to practise arising from their scope of practice being rigidly defined in primary legislation.

Introducing a defined scope of practice for one profession under the 2005 Act would undermine the entire legislative construct of the 2005 Act which is based on protection of title and not defined activity. If the 2005 Act were amended to define activity for one profession, it could give rise to similar amendments being sought by some or all of the other 14 designated professions. This could restrict entry to the professions and pose significant legislative and practical difficulties given that their scope of practice overlaps, in part. As in the case of crisis pregnancy counsellor, defining the activity or scope of practice of these professions in primary legislation could also result in restricting their delivery of services on the ground and complicate implementation of the 2005 Act’s fitness to practise provisions.

With regard to other technical matters, the Bill as drafted does not provide for a number of key requirements such as the critical issue of setting grandfathering qualifications, a challenging but essential requirement for the registration of existing practitioners. When a designated profession is being regulated for the first time, the level of grandparenting qualifications to be set will determine the number of existing practitioners who will be granted registration. In addition, provision would also have to be made for the establishment of a 13-person registration board and a range of consequential amendments that would have to be made to the Health and Social Care Professionals Act 2005.

During the Second Stage debate on the amendment Bill last November, the Minister, Deputy Harris, in his desire to be constructive and make progress on this matter, detailed a sizeable and important body of work to be undertaken over a period to give consideration to better protecting the public from certain crisis pregnancy agencies or counsellors that are providing information that is clearly neither truthful nor objective. He committed to making progress through the forthcoming registration of counsellors, the existing Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995, and the review of this Act.

With regard to the regulation of counsellors, having consulted the Health and Social Care Professionals Council, as required under the 2005 Act, and having proceeded to public consultation in September 2016, 84 submissions were received by the closing date of 30 November 2016. Following examination, it is envisaged that the next steps in the statutory regulation of the professions under the Act will commence in the coming months with the submission of draft designation regulations to the Houses of the Oireachtas. This will be followed by the establishment and appointment by the Minister of the 13-member registration board charged with establishing the registers, which in turn commences the two-year transitional period, after which only registrants will be permitted to use the protected titles.

I will now turn to the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995. This Act prescribes the conditions for making available information to pregnant women and the public about services lawfully available outside the State for the termination of pregnancies.

During the Second Stage debate on the Health and Social Care Professionals (Amendment) Bill 2016 the Minister undertook to have the Bill reviewed by the Department to establish whether its provisions needed to be strengthened. The review is ongoing and a range of possibilities are being examined. Subject to the views of the Attorney General, for example, it may be possible to amend the Act to ensure only registered professionals would provide service under it. In particular, this might be feasible if, as expected, it were to be decided to proceed with the statutory regulation of counsellors. This would be looked at in tandem with forthcoming decisions on the statutory regulation of counsellors.

It is important to note in relation to publicly funded crisis pregnancy services, that under the crisis pregnancy programme in the HSE a framework for crisis pregnancy counselling services was developed. The standards were designed in line with HIQA's national standards for safer and better health care and consist of eight themes broken down into 28 essential elements. The framework commenced in 2015 and there is a requirement to implement it in the HSE's funded services. This requirement is outlined in the signed service agreements between the HSE and the individual service providers. However, the agencies that seek to manipulate women by providing "disingenuous" crisis pregnancy counselling services have, in the main, been private establishments that appear to set up and close down over short periods and have no linkage with State-funded services.

The Minister for Health, Deputy Simon Harris, committed to keeping Deputy Brendan Howlin informed on matters as work progressed. He wrote to him on 11 January 2017 and departmental officials also met the members of his team on Wednesday, 8 March to engage further on the matter.

I hope my statement has assisted the committee in appreciating what appears to be a short and straightforward Bill but which, in fact, poses significant policy, legal and practical difficulties in the operation and ongoing implementation of the Health and Social Care Professionals Act 2015 and the regulation of health and social care professionals in general when the broader context is considered. I reiterate that it is the Minister's intention to address the serious issues involved by working through the sizeable and important body of work under way. My colleagues and I will be happy to take questions from members.

I thank Ms Cody for her opening statement and will now take questions from members.

I, too, thank Ms Cody for her presentation. I want to tease out an issue. If we bring forward a plan for the regulation of counsellors and a registered counsellor gives an opinion which he or she firmly believes is the best advice he or she can give to a woman in a crisis pregnancy, will it be difficult legally in any way to make sure persons receive proper advice? I am concerned that, even with registration, one may have difficulty in following through on the regulation of advice given.

I am sorry that I was not present for the first part of Ms Cody's statement. The major issue is the revelations in the media of how vulnerable women were treated. Notwithstanding the good intentions of those behind the Bill, I am still not quite convinced, given what Ms Cody said in her statement about people who did not necessarily call themselves counsellors. The Bill has been designed to target a specific group of rogue counsellors or whatever name one wishes to call them who prey on vulnerable women at a particularly vulnerable time in their lives. Could the legislation be amended or tweaked to ensure it would encompass the people who put the issue on the agenda in the first place? We all know who they are and from where they operate. I am not convinced that they necessarily call themselves counsellors. My fear is that reputable counsellors, men and women who give good solid advice to women in a crisis pregnancy, will now have to pay a fee for registration. I am not saying it is necessarily a penalty, but those who are doing it correctly and well and their best to try to help women will be subject to regulation, while at the same time those who should not be let near women in a crisis pregnancy will not be encompassed by the legislation. Is it Ms Cody's opinion that we will be able to make the legislation sufficiently robust so as to capture those who have come to attention recently?

Ms Teresa Cody

My colleague, Ms Deirdre Walsh, will take the question asked by Senator Colm Burke on the registration of counsellors.

Ms Deirdre Walsh

I think the Senator's question concerns regulated counsellors who will be subject to all of the provisions of the Bill and who will, in their opinion, give the best advice and how we will capture a situation where, in fact, it is not the best advice. While the Act does not define the scope of a practice, each registrant signs a code of professional conduct and ethics, whether as a dietician, a speech and language therapist or a counsellor, to say he or she will work in accordance with his or her qualifications, skills, knowledge and competence. If a complaint is made against him or her, it will become part of the fitness to practise process. What the Senator is asking is how will one be able to prove the complaint in such a scenario. First, it will have to be looked at by the preliminary proceedings committee to establish whether there is a prima facie case to be answered. The Senator is correct in saying it is difficult to define it, but let us say it goes through the fitness to practise process and it is established that the person concerned did act outside his or her qualifications, competence or skill and give inaccurate advice. The standards to be met in the fitness to practise process are high; therefore, it would be difficult to bring a case, but if it were to be proved that the person concerned did act outside his or her skills or competence, he or she could ultimately be struck off for misconduct. However, I am not saying it would be easy; rather, it would be difficult to capture. That applies to all professions.

I thank Ms Walsh.

Ms Teresa Cody

I will respond to Deputy Louise O'Reilly's question. She said that if counsellors were registered, we would be capturing bone fide counsellors who would have to pay a fee, while others would stay outside the system. There is quite a wide demand for the regulation of counsellors and psychotherapists because of the variety of persons operating under the title of counsellor.

Ms Deirdre Walsh

In a sense we are talking about rogue counsellors in a scenario involving a crisis pregnancy. As Ms Cody said, the reason we engaged in public consultation was that there were individuals who were referred to as rogue counsellors dealing with eating disorders and operating in a vast range of areas, including suicide prevention. That is one of the reasons we are trying to bring these issues to the surface and provide for regulation, but the Deputy's point is valid in that it will be difficult to capture such persons, even in situations which do not involve a crisis pregnancy. Other jurisdictions have attempted to do so and not been successful. We are now attempting to do so. The point the Deputy is making is that somebody will not come forward for registration, yet he or she will still provide a service. I think Ms Cody covered that point in her opening statement.

The issue regarding regulation, whether one is a dietician, a speech and language therapist or whatever, is that they can change to a different title, so regulation does not catch everybody. That is a problem and it is not just in the area of counselling. It could be dieticians or others, so it is a difficult issue to capture.

It is not like the position regarding nurses. If one is a nurse, there are certain criteria that obtain whereas it is different for counsellors. It is not linked to qualifications or-----

Ms Deirdre Walsh

It is in a sense. The legislation relating to nursing, medicine or dentistry does not define activity. It refers to people registered in the practice of medicine or the practice of dentistry. CORU, which is a multi-profession regulator, must capture many other issues, so it hinges on the title used. It is a slightly different construct.

I thank Ms Walsh.

I have read the opening statement. The witnesses say that it might be possible, subject to the views of the Attorney General, to amend the 2005 Act.

Ms Teresa Cody

The Act of 1995.

Deputy Howlin's Bill seeks to amend section 4 of the 2005 Act if I remember correctly. This may be feasible if, as expected, it was decided to proceed with statutory regulation of counsellors. How does one regulate an entity that is so broadly based? Would it be regulation based on qualification standards? If it is activity based we could be here for ever.

Ms Deirdre Walsh

No. That point came out clearly in the 84 submissions we received from the public consultation. Under the Health and Social Care Professionals Act 2005 we must establish an academic qualification standard and protected titles. There are two parts to that. Let us say we are going ahead with counselling and psychotherapy. There are two sets of qualifications involved. One is for future graduates or future entry to the profession. That is the easier part to set. It is not very easy, but it is easier. One establishes a standard, be it at level 8, level 7 or whatever. That is for new people going into education to pursue that profession. The difficulty arises with the vast number of people who are already practising, who have a range of qualifications and none. In the consultation process we are looking at the grandparenting qualification. We must arrive at a qualification standard that will capture a sufficient amount of people who are currently practising. One of the matters coming through in the consultation process is that, given the nature of counselling and psychotherapy, it will have to be a uniquely devised grandparenting, multilayered approach. It could be people who have a qualification, not of a very high standard, and 30 years of safe practice; it could be people who have quite a high qualification and a very good standard. We have to find ways of establishing routes to grandparenting and that is a big exercise.

Let us take the example of a nurse who has a qualification as a medical practitioner and who might drift into a certain field of counselling or support. Would that person, who has qualifications that are already accepted in medical terms, be required to re-register as a counsellor? One could also take a similar example involving a GP.

Ms Deirdre Walsh

A GP is practising as a GP and he or she might be providing some counselling, or a registered psychologist or a nurse might be providing counselling. It is not that type of counselling. They are counselling within their own professions and probably referring people on. What we are talking about is-----

I accept that. However, a nurse might drift into this area of expertise and practise in it.

Ms Deirdre Walsh

She would have to have a qualification in counselling.

I thank the officials for appearing before the committee and for their opening statement. The Minister has given an opinion to the effect that it might be possible to accommodate what is contained in the Private Members' Bill under the umbrella of existing legislation. How feasible is that? It is important that the information being made available to somebody where there could be health implications be accurate, fair and balanced and, importantly, not lead to health consequences that, for whatever reason, might impact on the women concerned at a later stage. Perhaps the witnesses would outline what they would regard as a crisis pregnancy. A number of situations come to mind. If I were a counsellor and I was anxious that the legislation would accurately reflect what I was doing, I would like to know exactly what I could and could not do. If the intention was to depart from what is legally compliant, what measures would be in place to collect or entrap the information that I was giving with a view to ensuring that it did not have a negative impact on the health or well-being of the women concerned? I say that against the background of a number of incidents that I can recall in recent years relating both to treatment in hospitals, following treatment or advice from individuals, and subsequent treatment by individuals, some of whom were professionals and some who were not. There should be a very careful assessment of who has the right to operate and of the guidelines, rules and regulations within which they must operate. It is not just a social issue. It is a health issue as well and it can have health and psychological consequences. What are the witnesses' views on that?

In the opening statement there is a reference to the crisis pregnancy counsellor not being a distinct profession. It probably is not a distinct profession but the advice given in that area will have to have some type of health or medical basis in certain circumstances. Not all circumstances are the same. There are different situations. Again, I can think of at least one situation where a certain set of circumstances prevailed. I do not know whether advice was or was not given or whether action was or was not taken, but certainly the consequences were serious for the individual.

Ms Teresa Cody

The Minister, Deputy Harris, committed to making progress on the forthcoming registration of counsellors, which we mentioned and on which Ms Walsh will expand further, and also on the review of the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995. My colleague, Ms Luddy, will speak on the specific questions raised on crisis pregnancy.

Ms Deirdre Walsh

On regulation and how the Minister is proposing to move forward, what he outlined in the body of work is that we are already working on the regulation of counsellors and psychotherapists, so we will ensure that we will bring the crisis pregnancy counsellors within that registration process and regulation as we move forward. His point is that - looking ahead - when they are registered counsellors and psychotherapists, the 1995 Act could be amended to ensure that only registered practitioners would give the advice on crisis pregnancy. That could be broader than just counsellors and psychotherapists. It could include registered professions such as doctors, nurses, psychologists and so forth. That is closing the loop, as it were, whereby one registers them and then one brings it within the scope of the health information Act.

Ms Geraldine Luddy might pick up on the crisis pregnancy information.

Ms Geraldine Luddy

One of the questions the committee had was what determines a crisis pregnancy. That is a very individual issue relating to the woman or the couple involved. For some women, a crisis pregnancy may be because of all sorts of reasons. It might because the woman has had two children, is now having a third and the first is nine months old. There could be all sorts of reasons. Not all of them will go to counselling for their crisis because it may only last an evening or a night or because they have other support systems in place. That is a more generic sort of issue.

The 1995 Act with the very long Title is an Act designed to do a very narrow thing. It is designed for and applies to women with a crisis pregnancy who wish to seek information about services outside the State for a termination of pregnancy. It is quite narrow. It regulates that information. The Act states very clearly that when information of that nature is given out, the accompanying non-directive information has to be truthful and objective. If there is a breach of that Act, it is against the law. However, under section 10 of the Act, in order to activate that, the individuals would have to take that complaint to the Garda themselves. That is already covered in the Act.

With regard to crisis pregnancy counsellors, they are a distinct profession but more and more, they are people who provide a counselling service. The Act obviously covers people who can give advice: doctors, nurses, psychologists and counsellors. Those in the counselling service industry would say that they would really welcome the regulation of counsellors because it would set them with a criterion and would mean that their own profession is protected in some ways.

It is very difficult to capture the rogue agencies or the disingenuous agencies. They pop up and close down fairly quickly. They then open up again under another name in a different place. The crisis pregnancy programme does advertise its services quite well. If women google such terms as "abortion", "I am pregnant" or "I have a crisis pregnancy", the Positive Options services will hopefully pop up first. It has worked with Google and is paying to outbid the word so that its services will come up first. Obviously, the disingenuous agencies are also doing that. That is a constant that is kept under review. It is doing its best. As has been mentioned before, it is very difficult to stamp it out completely. What we have to do is try to cover any angles that we can. We will certainly look at amending the 1995 Act, when counsellors have been regulated under the 2005 Act, to state that it is only registered counsellors that may give this information.

With regard to giving counselling advice from a general practice point of view, we are advised to give non-directive counselling. We are supposed not to direct a patient in one direction or another. That must be done ethically and honestly. It is very difficult to regulate the activity of a profession, even a medical or nursing profession. It must be exceedingly more difficult to regulate the activities of counsellors and psychotherapists, which is a much broader range of activity. Is it actually possible to do that?

Ms Deirdre Walsh

The 2005 Act does not regulate activity for any profession. The new legislation will set qualifications and will protect title. It will ensure that the registrant is signed up to the code of ethics and conduct, which they commit to work with in their scope of practice, their qualification and education. If they fail to do so, registrants can be brought to fitness to practise. However, it is difficult. We are heading down the road of regulating counsellors and psychotherapists and it will be quite a challenge.

Of the 14 professions that are already regulated, does each one of those have a regulatory body?

Ms Deirdre Walsh

Yes, it has a 13-person registration board with a lay majority.

For instance, doctors have the Medical Council.

Ms Deirdre Walsh

Yes.

So each profession has an equivalent body.

Ms Deirdre Walsh

There is a registration board for each of the designated professions and they are governed by a council.

Such a body would then have to be set up for counselling.

Ms Deirdre Walsh

Yes. The council is in place. It would need the setting up of a 13-person registration board under that legislation.

I presume that setting up a regulatory body would be a very timely process to engage in.

Ms Deirdre Walsh

Yes. We intend in the coming months to seek the positive resolution of both Houses of the Oireachtas to go ahead and designate the counsellors and psychotherapists by regulation. We do not have to amend the primary Act. We will then go to the Public Appointment Service and ask it to seek expressions of interest in establishing the 13-person registration board. The members are then appointed by the Minister and set about the task. It will be quite a task. They have to set qualifications and decide on the titles to be protected. There also is the issue of grandparenting qualifications. It is going to be a difficult road.

When the Minister was before the committee this morning, he seemed to be willing to-----

Former Minister.

Sorry. The former Minister, Deputy Howlin. I called him "Minister" this morning as well. He was willing to concede that pregnancy counselling will most likely be brought in under the broader title.

Ms Deirdre Walsh

The point we are making is that, as this stands, crisis pregnancy counselling is not a distinct profession on its own to be able to meet the criteria of the Act. As part of the profession of counselling, it can be brought in under that scope.

Okay. Are there any other comments to be made?

What do we do with the Bill? Will we discuss that ourselves now?

Do we propose to hear from any additional stakeholders on these submissions? If not, the secretariat will draft a report of the proceedings today and we will seek legal analysis of the Bill from the Office of the Parliamentary Legal Adviser. We will then lay it before the Dáil.

As there is no other business, we will adjourn until 5 April, when we will consider the Cannabis for Medicinal Use Regulation Bill 2016 proposed by Deputy Gino Kenny. Is that agreed? Agreed.

I thank Ms Deirdre Walsh, Ms Teresa Cody, Ms Geraldine Luddy and Mr. Kieran Duffy for coming before the committee to give evidence this morning.

The joint committee adjourned at 11.18 a.m. until 1.30 p.m. on Wednesday, 5 April 2017.
Top
Share