Health Bill, 1947—Committee (Resumed).
I move amendment No. 18:—
In sub-section (3), page 15, line 45, to delete the word "fifty" and substitute the word "ten".
Sections 29 and 30 are linked together inasmuch as in Section 29 the Minister is authorised to make regulations specifying diseases which are infectious diseases for the purposes of Part IV of the Act and in Section 30 provision is made for declaring the general duty of persons to take precautions against infecting others with infectious disease. No objection, of course, can lie in regard to the authority conferred on the Minister to make regulations for this purpose and it is, of course, reasonable that there should be punishment for a person who knowingly does something which will cause infection of another person. What I am worried about, however, is the severity of the penalty which is provided in sub-section (3) of Section 30. That sub-section provides that any person who contravenes sub-sections (1) or (2) of the section shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50.
Two points arise there. First, there is the amount of the penalty—£50—a penalty which will be incurred mostly, I submit, by very poor people. The experience we have all had points, I think, to the fact that those who are likely to contravene sections dealing with infectious diseases are mainly poor people, and the suggestion that a court should be authorised by statute to inflict a penalty of £50 for contravention of one of these regulations seems to me absurd.
There is another aspect of the matter which deserves consideration by the House, the Minister and the Minister's legal advisers, that is, whether it is contemplated by the Constitution that the District Court or the Dublin police court should be authorised to inflict a penalty of £50. It has been the practice or, at least, it was the practice down to the beginning of the emergency of 1939 that the police court or the District Court could inflict a penalty or 40/- or £5—small penalties of that kind. No doubt, very heavy penalties were authorised under the regulations made under the Emergency Powers Act, but it will be remembered that where there was a likelihood that the penalty inflicted under that Act would be substantial the case was usually taken, not to a court of summary jurisdiction, but to a special court, entirely out of the ordinary routine of our courts. I do not say that it was an unauthorised court. It had all the status of a court under the Constitution, but it was a special court, consisting not of lawyers, but of military officers, and they were entitled to and did, in fact, impose penalties of £50, £100 and thousands of pounds. I do not think that it has been the practice to permit a District Court or a police court to impose fines exceeding £5. It is undesirable that that should be allowed. The practice has been that where a person was charged with a serious offence he was charged on an indictment, not summarily, and I would urge strongly that the fine that is imposed by this sub-section should receive very much more consideration in the House before we consent to incorporate in this statute a provision authorising the District Court on a summary hearing of a summons to impose any penalty up to £50. It will be argued, of course, that the court, in fact, will not impose the maximum penalty. That is a very weak argument and one to which we should pay little attention. If the intention is that the District Court will impose a fine of 5/- we should not pretend that we are writing into the statute a provision authorising the imposition of a fine of £50. If we consider that the penalty will be 5/-, 10/- or 20/-, then we should fix the maximum penalty at £5. I am suggesting in my amendment a maximum of £10. I think the Minister would be wise to accept that in view of the heavy penalties provided in other sections and sub-sections of the Bill.
What we are dealing with here is failure to take precautions against the spread of disease. There may be very serious consequences through negligence on the part of a person who knows, as the section says, that he is suffering from disease and who may spread that disease if he does not take proper precautions. The offences, of course, will vary much in gravity. I agree with Senator Duffy that it is quite possible that in many cases the offence would not warrant a fine of more than £1 or £2. I would ask Senators, however, to visualise a situation where the offence would be a very serious one. Take the extreme kind of case where a person who knew that he had smallpox did not take the proper precautions. He might do irreparable damage by being a source of infection. He might be the means of starting a very severe epidemic as a result of which there might be very many deaths and a great deal of suffering and economic damage due to the expense involved in stopping the outbreak. Again, let us take the case of a well-off man who might knowingly spread venereal disease. I think that an offence of that kind would warrant a very stiff fine. A fine of £50 would not be a bit too much.
I think Senators will agree that the District Courts have never been too severe in the fines they inflict and I do not think it is likely that they would inflict a very heavy fine on a poor person, such as Senator Duffy mentioned, where the consequences were not too serious. I would be very much opposed to having this figure reduced from £50.
It seems to me that the proper penalty in cases such as those visualised by the Minister is not a fine. If, for example, somebody is guilty of spreading smallpox, the proper course to adopt would be to take that person into custody and isolate him.
There is power in the Bill to isolate a person and to take from him the opportunity of infecting other persons. No matter how serious the offence, a poor person is not going to be affected by a penalty of £50. I think that the proper remedy for a very serious offence would be not a fine of £50 but rather to put the offender in a preventive institution for say a period of three months. My objection to this penalty of £50 is that it creates a false impression. It creates the impression of severity which the Minister and all of us know and believe is eyewash. The man in the street knows very well that the penalty will never be imposed, or, if it is, that it will never be collected. I would prefer to see the Bill written in a realistic fashion so that if a person is guilty of an offence, and there is a maximum penalty of £10, he will believe that it is likely he will be fined the £10, and that it is probable it will be collected off him. He knows quite well that if he is fined £50, in nine cases out of ten, it will not be collected and that the alternative will be imprisonment.
It seems clear from the wording of the section that it is unlikely that such a fine as £50 will ever be collected, because, remember, the person has to know that he is a probable source of infection.
If a doctor tells him he will know.
But if it is not made known to him, it would be a good defence, I think, if that person were to get up and say that he did not know that he was a probable source of infection.
That defence is taken away by the Bill in a case where the doctor tells a person that he is suffering from a disease. He is then presumed to know, so that the defence the Senator speaks of is taken from him. That is no argument for retaining a maximum penalty of £50. The Senator's argument is that he will never be fined £50.
I believe from the wording of the section that a person must know that not only is he a source of infection but that he is a probable source of infection. Sub-section (2) refers to the case of a person who has care of another person and knows that that other person is a probable source of infection. I am not a lawyer, but taking the two cases mentioned by the Minister, I think it would be a perfect defence for those people to get up and say that they did not know they were a source of infection or a probable source, even although they had spread venereal disease in one case and smallpox in another. It is quite possible that no doctor would have told them so beforehand. If, however, a person knowingly spreads either venereal disease or smallpox, then I certainly think a maximum penalty of £50 is rather small.
My point is that it is not a remedy at all.
Most penalties are not remedies.
What happens if the fine is not paid?
The Petty Sessions Act provides a table of penalties where fines are not paid based on the amount of the fine.
Amendment, by leave, withdrawn.
Question proposed: "That Section 30 stand part of the Bill."
Sub-section (2) of Section 30 states:—
"A person having the care of another person..."
I was wondering if that could apply to the medical practitioner in charge of the case?
It appears to me that this sub-section could apply to the doctor, in which case professional secrecy will be endangered because, as I read sub-section (2) it means that a doctor must report to an employer if an employee is, we will say, suffering from tuberculosis or some other infectious disease. If the phrase, "a person having the care of another person" does not apply to the doctor looking after the case, I think it would be well to insert that correction and say "a person other than the registered medical practitioner in charge of the case". I think it is a point which ought to be cleared up because it involves professional behaviour.
I am told that the legal interpretation of "person" in this case is a parent or guardian in charge of a child or a guardian in charge of a person of unsound mind. There is no doubt as to how it would be interpreted by the court.
It would apply to the head of a school.
He would be a guardian in that case.
Why should the doctor be free from the obligation under that section to take precautions to prevent such a person from infecting others? I feel that there should be some obligation on the doctor, if he knows a person is suffering from infection, to prevent that person from infecting others.
The doctor has his own obligations.
Under all the Acts, and, undoubtedly, the doctor will be dealt with under the regulations.
Question put and agreed to.
I move amendment No. 19:—
In sub-section (8) after the word "who" in line 44, page 16, to insert the word "knowingly".
In sub-section (8) of the section there are penalties provided not exceeding £100. There are three classes of offences. One is in regard to a person who contravenes a regulation. That could be quite a minor contravention. We do not know what the regulations will contain, but it is possible that that could be a comparatively minor offence. The next is if a person wilfully obstructs the execution of a regulation. To my mind, that is a serious offence, because the word "wilfully" is included. It does not say "obstructs" but "wilfully obstructs". The next is if a person gives false or misleading information in purported compliance with a request for information made under a regulation. That is a very serious offence, because that is deliberately giving false information purporting to comply with the regulations. It seems to me that there is a flaw there, because the first, which is a minor offence, should not apply to a person who knowingly contravenes the regulations. The whole spirit of most of the sections is if a person knowingly does something, and I think the word "knowingly" ought to be put in, particularly in view of the fact that the fine is up to £100.
I am afraid I do not get the Senator's point. Are we on the old point, that the citizen must know the law? I think we cannot depart from that.
No. The gravity of an offence, particularly of this character, is very different where it is done inadvertently or without knowledge. In this case we are dealing with regulations, many of which will be very important, some of which will be of less importance. The point I want to make is that you have in this section three offences, one of which could be of a very minor character, in fact, could hardly be an offence at all if the person did not know. That is why I think the word "knowingly" should be put in in that case.
As they were listed by the Senator I think the word "knowingly" comes in in the list of offences. I think that to put it in here would be very dangerous, because I am afraid that any citizen could make the defence that he did not know the regulations and therefore it would be impossible to carry out a prosecution. If a person makes the defence that he did not know the regulations and the court thinks it is a genuine defence and that the regulations perhaps were not too well known generally, I think the court would take a very lenient view of the offence. But to put in the word "knowingly" would be very dangerous.
A few minutes ago the Minister explained that it was only a person who knew who could be guilty of an offence in the case of an infectious disease. When we come to the unknown regulations, we have nothing whatever to indicate that the same provision will be put in the regulations.
I think it is quite a different thing to say that a person must know he is suffering from a disease before you inflict a penalty. But to say that a person could plead that he does not know the law would be a dangerous practice to adopt.
I do not intend to press this amendment, but we have very many Acts in which the word "knowingly" is to be found. It has often been raised and very often accepted. It is not a question of knowing the law. I do not suppose the Minister knows all the law; I certainly do not. I have a very general knowledge of the important things which one is not allowed to do or which one may do; but I certainly have no knowledge of the smaller regulations. In this case you are combining three offences and imposing the same penalty for each of them. I cannot help feeling that a person who contravenes a regulation, which might be giving notice of a disease in the wrong form—nearly every regulation has a prescribed form—should not be liable in exactly the same way as a person who deliberately gives misleading information and pretends he is complying with the section.
It does not say "deliberately".
It implies it. If you give false or misleading information in purported compliance, that is deliberately giving false or misleading information in purported compliance. It therefore covers that. However, I ask leave to withdraw the amendment and I may bring it forward on the Report Stage if it seems desirable.
Senator Douglas has, more or less, answered my point, but I meant to raise the point that I can imagine a person giving false or misleading information quite unwittingly. The word "purported" would mean that he was doing it with malice.
What it means is that he pretends he is giving the proper information in compliance with the request.
Amendment, by leave, withdrawn.
I move amendment No. 20:—
In sub-section (8), page 16, line 50, to delete the words "one hundred" and substitute the word "ten"; and in line 51, to delete the word "ten" and substitute the word "two".
This amendment is again related to the penalties which may be imposed for a breach of regulations made by the Minister. It will be observed that in this section the Minister is authorised to make regulations in relation to everything specified in the Second Schedule to the Bill and there is a penalty provided in sub-section (8) for contravention of any of these regulations. The penalty is excessive, in my opinion. The sub-section provides that a person who contravenes any of the regulations under the section, or who wilfully obstructs the execution of a regulation, will be liable, on summary conviction, to a fine not exceeding £100, and, in the case of a continuing offence, to a further fine not exceeding £10 for each day on which the offence is continued.
I should like to direct the attention of the House to the matters in reference to which regulations will be made under this section. Regulation will be made, for instance, placing restrictions on the holding of wakes. The Minister may make regulations prohibiting the holding of a wake where a person dies from whooping cough or any other disease the Minister cares to describe as infectious. Once the Minister makes a regulation under another section, declaring any disease to be infectious, he can go back to Section 31 and make a regulation in respect of that disease prohibiting the holding of a wake on the deceased person. The penalty for an offence, on conviction, is a fine of £100.
It may be that the Minister would make a regulation under paragraph 7 of the Second Schedule restricting the attendance at school of children who are probable sources of infection, and, if that regulation is made and the parents for any reason fail to comply or to secure compliance with the regulation, they are guilty of an offence and liable, on summary conviction, to a fine not exceeding £100. I have not found anywhere in the Bill any provision which exempts parents from the obligation placed upon them by the School Attendance Acts to have their children at school. Under one statute of this Parliament, the parents of every child between six and 14 years of age are required to have their children at school during school hours, and, if they fail to send their children to school, they are liable, on conviction, to the penalties provided in the School Attendance Acts; but if they comply with the School Attendance Acts in respect of a child, who, according to the regulations which may be made under this section, is a probable source of infection, they will be guilty of an offence under Section 31 and liable, on conviction, to a fine of £100.
It may be that the Minister would make regulations under paragraph 2 of the Second Schedule requiring adult persons to submit themselves, or the parents of children to submit such children, to examination by medical officers of health to find out whether such adult person or children are probable sources of infection. The purpose of the regulation is to compel adults, where the person suspected is an adult, or the parents, if the person suspected is a child, to submit to medical examination to find out if they are probable sources of infection, and if there is non-compliance with the regulation, there is a penalty of £100, with an additional penalty of £10 for each day on which the offence is continued. These penalties can mount up, and I suspect that if it is proven to the court that there is non-compliance over a period of six days, the tendency will be to step up the primary penalty and to make the penalty for a continuing offence fairly steep.
I submit that these penalties are unreasonably severe, and I repeat that in most cases the person concerned will be a poor person, so that there is no chance whatever that penalties of this magnitude can be enforced. If Senator Hearne says that the court will be reasonable and will not inflict that penalty, I want the Minister to accept that view and to delete the £100 from the Bill and to insert instead a moderate figure. A sum of £5 or £10 seems to be the maximum figure which should be mentioned. If it is the contention that the court will not inflict the maximum penalty or anything approaching it, we should be sufficiently realistic to write down the figure to an amount which seems reasonable. If, on the other hand, as the Minister must believe when he inserted this figure, the court will take a serious view of a breach or contravention of these regulations and inflict heavy penalties, I suggest that the real penalty is imprisonment and not a monetary fine.
I remember reading in some Summary Jurisdiction Acts a table of penalties of imprisonment which correspond to the monetary penalties where only a fine is inflicted. I think it is usual that if a person is fined 40/- and no alternative is mentioned, the actual alternative is a month's imprisonment and the period of imprisonment is extended as the fine increases, so that what we are doing here, in inserting £100 in the section in respect of a first offence, is decreeing that the person who is poor and unable to pay the penalty will go to jail. And for what? Because he has failed to comply with a regulation requiring him to submit himself or his children to examination by a medical officer of health to find out whether he or his children are probable sources of infection.
I assume that the Minister will be very reasonable in these matters, and, when drawing up his regulations, will insert some provision to ensure that a person will not be asked unreasonably to submit himself or his children for examination under this section, because as the section stands, related as it is to the Schedule, it seems to me that there is nothing in the world to prevent the medical officer or those working under him to require any person in the community, without showing cause, to submit himself or his children for examination on the ground that they may be probable sources of infection.
What is a probable source of infection? I assume that any person so designated by the medical officer of health will be deemed to be a probable source of infection and that, in these circumstances, the medical officer of health will be entitled under the regulations to require any person in the community, without showing cause of any kind, to submit himself or herself or their children to medical examination for the purpose of finding out if they are probable sources of infection and, if the parents or the children fail to comply with the request of the medical officer, then, under Section 31, an offence is committed and the penalty will be a fine not exceeding £100, with a continuing fine in respect of each day on which the offence is continued. In nine cases out of every ten the person on whom that penalty will be inflicted will not be able to pay the fine and will have to go to jail. If the members of the House think that is a reasonable attitude to adopt, they can adopt it, but I believe it is quite unreasonable and I am opposed to it.
I do not know why Senators should be so apprehensive of what will happen. I have to repeat that these provisions have been in force since 1878 and there has not been any great ill-treatment under them. A wake could have been prohibited since 1878 and, if the person who got notice to stop the wake did not do so, he could have been fined £50. Now, £50 in 1878 must have appeared a much higher penalty than £100 at the present time.
This applies to a regulation that has not yet been made.
But the Senator mentioned a wake, and I was dealing with that observation. Things will have to be very serious, indeed, before the Minister, under this measure, will prohibit a wake, so serious that if any person were to attempt to hold the wake he should get six months in jail and be fined £100 as well and, in my opinion, that would not be a bit too much. I think every offence mentioned by Senator Duffy was an offence since 1878 and the maximum penalty was £50. It is made £100 now, and that is not so much out of line.
One thing that I think Senator Duffy is inclined to overlook is that the court takes a person's circumstances into account. If the court believes a person is guilty of a very serious offence, I think you will find that if the person is well off the maximum penalty will be inflicted but, if the person is poor, the court will not inflict more than a fine of £4 or £5, according to his means. The courts have always done that. I do not know whether there is any general rule or practice that a fine of 40/- is considered the equal of a month in jail. That matter will have to be revised, I think, in view of the value of money nowadays.
I think it will be found that a court of summary jurisdiction provides a prison penalty to correspond with a money penalty.
I do not know if there is any law on the subject. In this case, as in all other cases where a penalty is indicated, it is not contemplated that the penalty will be inflicted very often. It is contemplated that the penalty would be justified in a very serious case. I do not think there is any danger that the court will be influenced by the maximum penalty where the case is rather trivial.
Amendment, by leave, withdrawn.
Sections 31 to 34, inclusive, put and agreed to.
I move amendment No. 21:—
In page 18, lines 21-22, to delete the words "or showing a dwelling with a view to its being sold or let".
This is a small point. It seems to me what is contemplated here is that where a person is concerned in selling or letting a dwelling-house and is aware that there has been infectious disease in that house within the previous three months, there is an obligation on him to inform potential buyers of that fact. But there is introduced here a provision which imposes a similar liability on a person showing a dwelling with a view to its being sold or let. I take it that is meant to apply to house agents.
I understand that they are presumed to know about this reservation.
Yes, they must know about it.
I think it is carrying the provision a bit far to impose this obligation on a house agent. He has, probably, 30 or 40 or 50 houses on his books. Somebody comes in and asks if he has a house in Rathgar and the clerk says that there is a house. He gives him the number of the house. Perhaps the agent has a car at his disposal and he takes out the potential lessee and shows him the house, the intention being to let or sell it. That is as far as the house agent is concerned. I think it is sufficient to impose a penalty on the person actually letting or selling the house— the owner or the landlord. It is carrying this too far to impose a similar liability in the case of the agent. In some cases an agent would not have the remotest idea of what was going on.
Surely, the penalty in Section 35 applies only when a person is asked a question and makes an answer which is to his own knowledge false and misleading? Surely, if a man is in the employment of a house agent and he is asked a question and knows the right answer but does not give it, giving instead a misleading answer with regard to any infectious disease, he is guilty of an offence?
He must knowingly give false or misleading information. Take the case of a house agent or a clerk who may, perhaps, have an interest from the point of view of commission if he disposes of a house. We shall have to deal with such a person.
Amendment, by leave, withdrawn.
Section 35 put and agreed to.
Question proposed: "That Section 36 stand part of the Bill."
On Section 36, I should like to know from the Minister how this section will be administered. It seems to me to be an awfully difficult problem how you are going to trace whether or not this has been done. I do not know what is the value of this section and I should like the Minister to enlighten us.
One of the big tasks the county medical officer of health will have will be to trace contacts. For instance, Senators are aware that a case of smallpox arrived here recently on a boat. If people had left that boat and a case was then discovered, there would be a very urgent necessity to trace contacts. Of course, that would be a very urgent case.
This section is intended to help the county medical officer of health in tracing contacts rather than anything else.
Section agreed to.
Question proposed: "That Section 37 stand part of the Bill."
I should like to raise one point in connection with this section. I observe that in Section 36 where the word "premises" is used in the first line, it was considered necessary to insert sub-section (2) to define the word "premises" as follows:—
"In this section the word ‘premises' includes a temporary dwelling."
That is because I take it the word "premises" has not been used in the definition section. The word is again used in Section 37. I am just wondering whether in that section also, which relates to the procedure on giving notice in relation to infected premises to the medical officer, the word "premises" also means a temporary dwelling and if so, why that is not stated. Why does the section not say: "In Sections 36 and 37 the word ‘premises' includes a temporary dwelling"? If I am wrong in that, perhaps the Minister will explain why it is necessary to define the word "premises" for the purposes of one section and not for the purposes of the other.
Section 37 is related back to Section 36. It is carrying on the procedure to be adopted.
On Section 37, I should like to know exactly what is the position under sub-section (2) if the doctor fails to do what he is instructed to do here. He must within seven days inform the owner. Supposing he fails to do that, I am not suggesting there should be a penalty as I imagine that the Department has its own ways of dealing with repeated negligence. I want to know what is the position of the person who owns the premises. Suppose the owner receives a notice in ten or 14 days instead of seven days, what would happen?
Sub-section (3) (a) says that if the owner does not receive intimation from the medical officer within seven days, then the premises are clear.
Perhaps that is correct. It seems to me that sub-section (3) (a) provides that there cannot be a penalty. The owner can go on with the sale of the premises after the expiration of that period. Although it is quite right that after seven days he should not be subject to a penalty, it does not seem desirable, if the doctor does not inform him within ten days, that there should not nevertheless be disinfection.
Seven days is a very good margin for the doctor to act.
I want to return to the point which I have already raised. The Minister says that Section 37 is related back to Section 36, but I cannot so read Section 37. Section 36 is related to the giving of lodgings in a house in which there has been infection. Section 37 has nothing to do with the giving of lodgings. It is in much wider terms altogether, and I am just afraid that the Minister has been misinformed in this matter. It is important that this House, which has some functions in relation to the revision of legislation sent before it, should insist that where there is ambiguity in the drafting of Bills, it should be removed. We had long discussions here, early on this year, on another Bill relating to house property, the Rent Restrictions Bill. We pointed out then certain sections and sub-sections which did not seem clear to us and we asked to have them clarified. We were assured then that the Minister had all kinds of official information to support the draft before us, but a Dublin evening paper on the 10th of this month had a report of proceedings in court which contains this paragraph:—
"An infernal muddle, a horrible frightful mess which it was impossible to administer, was how Judge Gleeson described the Rent Restrictions Act, 1947. He said that the man who drafted the Act should be made to come to court and tell them what it means."
This is a case in court in which the judge was unable to understand the draft of the Act and he wanted to bring the person who drafted it into court to tell him what it means. This is our opportunity of seeing that we know what this Bill means and I suggest to the Minister that he is wrongly informed in stating that it is sufficient for the purposes of this Bill to define in Section 36 the expression "premises" and that, in fact, if he wants to remove ambiguity he will again look at Section 37 where it is necessary to define the expression again.
In this matter Senator Duffy is perfectly right. It is quite clear that the expression "the word premises includes a temporary dwelling" applies only to Section 36. It says "in this section". I feel that if that was to be interpreted in case of a dispute in a court of law, it would be held that the word "premises" in Section 37 is not covered by the definition in Section 36 and I think the definition should apply to Section 37 as well as to Section 36.
The point is that it refers to "such premises" and "such premises" relates back to Section 33, 34, 35 and 36.
Where is the Minister getting that?
You must have a little common sense. It is impossible to draft an Act in such a way that every little point is parsed.
I know that but the point I put to the Minister is that it should be examined.
I quite agree and I shall have it examined. It appears to me that the expression "such premises" must refer back. We were dealing with premises in the last four or five sections and we are dealing all the time with premises in Section 37.
I am not going to hold up the Minister for one moment but I think it is the duty of this House to query this point when it seems doubtful. I would suggest that the matter is one that deserves examination and if the Minister says that it will receive such examination, I am satisfied with that. I put down no amendment.
I should have said that it is the expression "such notice" instead of "such premises", that refers back to the previous sections. I quite agree that the matter should be examined.
Section agreed to.
I move amendment No. 22:—
In sub-section (1), page 19, line 29, after the word "place" to insert the words "within the limits of the area for which he acts".
This again raises a matter of some importance. I take it that the Government view in regard to it is set out in the section and I can only submit in opposition to that view what my own view is. I should say that this amendment and the next amendment will stand or fall together. This is the section under which power is given for the detention and isolation of a person who is considered to be a probable source of infection. Sub-section (1) of Section 38 provides that where a chief medical officer is of opinion that a person in his area is a probable source of infection, that person must be isolated in his home or in a specified hospital during the time prescribed by the chief medical officer. It seemed to me, on reading that sub-section for the first time, that it meant that the chief medical officer would insist that a person whom he believed to be a probable source of infection would remain at home until the contrary was established or that he would be removed to the nearest hospital for isolation. But, according to paragraph (c) and (d) of sub-section (2), that does not seem to be the intention. The person who is a probable source of infection is spirited, in some obscure way, out of the area of the medical officer who examined him and detained somewhere else. If that reading is correct, the person will be out of the jurisdiction of the chief medical officer who gave the instruction for his committal. I do not know whether or not there is any obligation on the chief medical officer to have regard to the welfare of the person whose detention he ordered. I regard this as something equivalent to what happens in court. If a person is brought before a court, the judge will take every precaution to ensure that that person will not be removed out of the jurisdiction of the court until his case will have been disposed of. Something similar should be done under this section. A person isolated and detained should be retained with in the jurisdiction of the medical officer responsible until his case is finally disposed of. If that is not practicable in respect of all diseases, there should be some provision in the Bill to ensure that the person will be passed on to some other authority in a proper manner, which will be subject to check and examination.
As Senator Duffy has pointed out, the section authorises the chief medical officer of health to have a person isolated in a specified hospital or other place until he gives a certificate. Does that not mean that the person who is committed by the chief medical officer of health cannot get his discharge until he receives a certificate from such medical officer? The certificate must be issued, I think, by the medical officer who committed the patient rather than by the doctor in charge of the institution to which he has been committed.
That is the point that is worrying me. A person in County Clare may be suspected of being a possible source of infection by the chief medical officer of health. He is apprehended and sent to a hospital in Dublin or Cork. It will be difficult for him to get a certificate of discharge from the chief medical officer in Clare—140 miles away. That will involve considerable delay.
I am concerned about the human aspect of this case. I take it that this is the case of a person who has been in contact with infectious disease. Is that person to have no say as to where he is to go? The person concerned may have a friend who would be in a position to give him accommodation and to isolate him. Is he to have no say as to whether he may go there or not? According to the section, the medical officer is to be the sole judge. The suspicion attaching to the person may be remote and the human aspect of the matter should be considered.
The difficulty would arise in this way: the chief medical officer of health may discover that a person who has left the area is a possible source of infection. He makes an order committing that person. He cannot very well bring him back to his county because that might spread the disease. It is necessary to have power to commit him in the county in which he resides. The chief medical officer will communicate with the medical officer in charge of the county in which the person concerned is resident and will act on his advice. He may amend his order in such a way as to permit of the patient being released on the certificate of the chief medical officer of health of the county in which he is detained.
Those are not the provisions of the Bill. The first sub-section of Section 38 makes clear that the chief medical officer is dealing with a person who is suspected of being a possible source of infection in the area in which he is acting—not a person who formerly belonged to that area. There is no reference to the manner in which the person gets away from his area. We discover that only when we come down to paragraph (d) of sub-section (2). He may not be in the jurisdiction of the medical man who committed him at all.
I shall have to go back to 1878 again.
Do not quote those old British Acts again.
In the Act of 1878, provision was made whereby a person who had not a proper house in which he could be isolated could be moved to a place of detention. Those were roughly the terms of the provision. It was designed to deal, principally, with roving tribes—tinkers and so forth. It has not been applied to any other class to any extent from 1878 to the present date. This section amends somewhat the Act of 1878. It does not amend it extensively. Where a person can be isolated at home, it will be permissible, under this section, to isolate him there. Where it would be dangerous to isolate him at home, he can be placed in an institution on the order of the chief medical officer of health. The chief medical officer of health is the person responsible. As a rule the person will be isolated in the fever hospital attached to the area for which the county medical officer of health is responsible. That may not always be possible. Take, for instance, County Dublin. The cases from County Dublin are usually sent to Cork Street Hospital in the City of Dublin. That type of possibility must be covered. Secondly, if we have an epidemic in a particular county and if some of these roving tribes are dangerous from the point of view of having caught the infection there may be no room for them in that county. They may have to be shifted to an adjoining county in order to get accommodation. There are possibilities of the kind where it may be necessary to isolate a person outside the area of the particular county medical officer of health. As Senator O'Dea says, that would have to be done in consultation and agreement with the county medical officer of health responsible for the area in which they are put. However, the county medical officer of health who committed them will be responsible all the time. I think it is better that he should be, because he has the onus of dealing with the particular epidemic. He wants to clear it up. It would be very bad if we should have him, as it were, at the mercy of another medical officer of health who might not take such a serious view of the epidemic and who might afterwards be blamed. I think we will have to make it possible for a person to be detained outside the area. Such a person has, of course, as laid down in this section, an appeal to the Minister if he is not satisfied and it is laid down in the section how the Minister must deal with such an appeal. If the Minister thinks that it is not necessary that he should be detained then he is allowed to go out.
As far as the county medical officers of health are concerned, the House may take it for granted that their urge all the time will be to get people out of their institutions. They never keep anybody in an institution longer than they think is absolutely necessary, from the point of view of the health of the patient himself and of the health of the community in general, in the case of an infectious disease. I cannot imagine any doctor keeping a person for any reason whatever beyond the period that would be necessary, from the point of view of public health, at any rate, if not the health of the person concerned. I think it would be very dangerous, from the point of view of being restrictive, to accept the amendment proposed by Senator Duffy for the reasons that I have given. A county such as Dublin would have nowhere to put anybody, and a county that might be in the throes of a very severe epidemic might have its own institutions full.
Would the Minister say what is intended in the words "other place"? I can quite understand that such people should be put in a hospital or somewhere under medical care——
——but what other place is intended except a hospital where there should be medical care?
The Senator will probably remember that Senator Duffy raised yesterday the instance where a house was taken over in Wicklow. The house was taken over at a time when there was a very severe epidemic of diphtheria in Wicklow. The authorities thought they might want an overflow hospital. I do not think it was, in fact, ever used.
Surely in such a case it would be a hospital.
You have power to commit a person to a place which is not a hospital and where there is no medical care. I do not imagine for a second that such a thing would happen but I am not at all clear about the position from the Minister's statement. To my mind, a place such as the place he mentioned would be a hospital.
Perhaps the Minister has already dealt with this point in my absence. It strikes me that "committing" has a certain sort of penal aspect of the whole question. If I happened to be staying with a friend and if a certain disease broke out in the house presumably I would come under the provisions of this section. I would like to know whether I would be sent wherever the medical officer might choose to send me. Would I have no choice in the matter? Perhaps the Minister has already dealt with that. I am sorry if I am repeating myself.
I did explain it. This power has been exercised for many years but it has only applied to people who have no proper home where they could be treated and who are careless whether they spread the disease or not. It has only applied to roving tribes with no home, although I do not say it will not apply in future.
I cannot see the distinction between what formerly attached to the old British legislation and why there should be any quarantine. I have a different quarrel. I have the quarrel, to which I have drawn attention in sub-section (1), of a person being detained by a county medical officer of health, who is the committing officer, and who is allowed to take a person under his control. There can be no doubt that, so far as the Bill is concerned, the committing officer loses control over the person whom he has committed once he leaves his jurisdiction.
No, he is responsible for that person all the time.
I would ask the Minister to consider this point. Somebody goes to the sea-side in Bundoran and is lodging in a house in which some infectious disease is reported. This visitor at the sea-side is regarded as a contact. The county medical officer of health for County Donegal becomes, in this case, the committing officer in respect of the visitor. The visitor returns to Dublin or to Cork. He is detained in Dublin or in Cork in his own home district in an institution which is under the control of another county medical officer of health. I take it the person must comply with the instructions of the county medical officer of health in whose area he is detained and must conform to whatever regulations there are in that institution without any reference at all to the committing officer in Donegal. I cannot see, in the Bill, where the committing officer has any authority or influence whatever over the life of the person committed once that person leaves his jurisdiction in County Donegal.
I think Senator Duffy has made the case exactly for what is in the Bill. The man is in Bundoran. Suppose he is examined by a doctor— a specimen of his blood is taken and is brought to the pathologist. The pathologist finds that this man is suffering from a certain infectious disease. The doctor goes back to the patient to find that, in the meantime, he has taken the train for Cork. Surely, he is the only person who can commit him. He is the only person who has taken the specimen of his blood——
No, Sir. If you look at the sub-section——
——and who has got a report from the pathologist that this man is suffering from the disease. Who else has the knowledge but this man and who else can commit him but the man who has the knowledge?
I ask the Senator to read sub-section (1).
It is a pity then that the Senator says the opposite to what is in the sub-section. The person who becomes the committing officer in this case can make an order on his own inspection or on the report of somebody else. The medical officer of health in Cork can make an order on a report from the medical officer of health in Donegal.
The patient may be a contact or may suffer from an infectious disease and he is a source of infection if he is suffering from the disease. If the medical officer of health commits that person to an institution, the medical officer of health does not interfere further with the treatment. He tells the doctor in charge of the institution to send reports from time to time, and when that doctor says the patient can be released, the medical officer of health will do the legal part of the business in releasing him. That is what happens, but we have to go through this legal form to see that the person can be kept. A person who goes in to a fever hospital in the ordinary way can walk out again, even though the doctor says he should not go out.
Is the amendment being pressed?
No. Once we understand what we are doing, I am satisfied.
Amendment, by leave, withdrawn.
Amendments Nos. 23 and 24 not moved.
I move amendment No. 25:—
In sub-section (2), paragraph (a), page 20, line 10, to delete the words "under sixteen years of age" and substitute the words "a child".
Amendments Nos. 25 and 26 are purely drafting amendments, but I want to insist that we should write our legislation with some regard to form and intelligence. If we commence by defining the word "child", we ought to stand by that and not show carelessness throughout the Bill by forgetting it afterwards. We define a child as a person under 16 years of age and anyone over that age is an "adult". Having forgotten that, we refer in sub-section (2) (h) of this section to a person "under 16 years of age" when we mean a child. Further on, in sub-section (3), we say, "where a person is 16 years of age or over", when we mean an adult. The Minister may explain why it is put in in this way, but I suggest that the real explanation is carelessness or forgetfulness.
Perhaps so. One thing means the same as the other. If there are amendments being accepted on Report, we might accept these two.
This is a very revealing remark and I was just waiting to reach the point where it would be made. If it means that there are to be no amendments accepted to this Bill, we ought to stop discussing it now. If I am told that no amendments will be accepted and that a majority is going to vote us down, irrespective of the importance of the amendment, I will refuse to move any further amendments or discuss the Bill further.
I pointed out that the amendment might be accepted. I said that if there are going to be amendments accepted on the Report Stage, let us accept them, but I do not see that there will be any. The question then is whether it is worth spending £500 for a meeting of the Dáil to put in "child" instead of "person under 16".
It certainly may not, but I suggest that other points have been raised in the discussion.
And I promised to consider some of them.
The £500 would not be the overriding consideration?
No, not if it is worth while.
When we get a Bill of this character at this time, the Minister's mind is quite different from what it was in November. He does not want to accept any amendment now, as it would bring the Dáil back. It is quite clear that any discussion we have in July, when the Dáil has adjourned for a long period, tends to be unreal, unsatisfactory and unfruitful. We should never have to do a Bill which is not a Money Bill at this particular period. The Minister's own reason and his own reasonableness—they are two different things—are befogged by the desire not to bring the Dáil back. We should not have been asked to do this Bill at all and I agree with Senator Duffy that what we are doing is not satisfactory.
If we are to have dignity in our legislation, we should not be asked to weigh the merits of an amendment which would be an improvement, although it is only a minor amendment, against £500 to bring the Dáil back. Why is it necessary to pass this before the Recess? The Minister says he must start framing regulations. Is it not possible to start framing regulations to-morrow? It is only done in the office and the Bill need not be in the Statute Book in order to start drafting the regulations. Does not everybody know there is a dead season from now until the time the Dáil reassembles. Ministers and high officials are away on holidays and only the routine work is kept going. Is it the suggestion that we are not grown up enough to see that this Bill is urgent and must be passed before the Recess and until it is passed it is not possible to do anything under the Bill?
I must protest that Senators here are under the impression that I am resisting amendments because I do not want to call the Dáil together. I have been impressed by a few suggestions made so far. I have promised to consider them on the Report Stage. I have far from made up my mind that I will resist every amendment, but Senators here are leaving me no other course.
What does the Minister mean by that?
If Senators are persisting in adopting this attitude, that they are being ignored and insulted, all we can do is try to get through the Bill as best we can.
I agree almost entirely with what Senator Hayes has said. It seems to me that we had better adopt bluntly a realistic attitude. We have a certain responsibility here. If the majority of the House vote down something on the grounds that it might bring the Dáil back—it is not the Minister who does it—we still are not absolved from doing our duty in moving and pressing amendments that seem of importance. There is only one course open to us. We have agreed to take this Bill—perhaps we should not have done so—so we should take every amendment and get along with the business. The question as to whether the Dáil should be brought back or not, even if an amendment is passed, will be a matter for the Government; and it is not a question of spending £500 to bring them back but a question whether it is worth £500 to get this Bill on the Statute Book a month earlier than it would otherwise be.
I have a good deal of sympathy with the Minister and rather liked the frank way in which he referred to the £500, as he realised some of the difficulties and part of the absurdity of the position. We have had this same position almost every second year—and I have been a member for nearly 25 years. We have known other Ministers to be in the same position, but none were so frank, and I do not feel inclined to attack the Minister for having stated the position. I hope we will ignore it and proceed on the assumption that, if amendments are rejected they are rejected on the responsibility of the majority of the House, and if amendments are passed there is no responsibility on us for spending £500 or £1,000—that it is entirely a question whether it is desirable or not to have this Bill passed earlier. Might I just point out that we have good reason to believe from the attitude of another Minister that there is going to be some "Clean Wool" amendments and it is quite likely that he may think it worth £500 to get his wool cleaned a little bit earlier.
There has been an agreement by all Parties in this House that this Bill should be taken before the Recess. That agreement having been reached it is uncalled for that now, almost halfway through Committee Stage, the question of whether it was right or proper to proceed with this Bill at this particular time of the year should be raised. The question of the Minister not being anxious to accept amendments does not arise. This House is its own master and if any Senator puts up an amendment that is acceptable to the majority of the House, it will be passed regardless of what people may think about the advisability of recalling the Dáil. That does not enter into the matter and it is regrettable that this discussion should take place at this stage of the Bill, agreement having been reached on the matter.
I am very glad that Senator Hawkins has made that statement because he must know that I personally assented, quite willingly, to the suggestion that the House should meet to pass this Bill. I think the House would be neglecting its duty if it adopted the attitude that summer is in the meadows and we are not going to do any more work. That would be intolerable. However, I am afraid there is a kind of atmosphere in which we are told that this is a very well-drawn Bill, that there can be no snags in it and that it is better not to bring the Dáil back for some petty amendment. If Senator Hawkins says that is not so, I am delighted.
May I say one word on this? I do not want to hold up the progress of this Bill. I was a party to the agreement to do this Bill. I was a very unwilling party and it is not because I want my summer holidays. Senator Duffy is quite misleading when he says that. It is because I know, and because Senator Duffy has now been convinced, and because we all know that when the Dáil has adjourned for a long period discussions in the Seanad on a Bill, particularly on a Bill of this kind, which is a very large Bill, about which we have opinions and about which we do not differ fundamentally from the Minister at all, tends to be unreal just as a good deal of Senator Hawkins' statement was quite unreal and, of course, Senator Hawkins knows that.
Amendment No. 25, by leave, withdrawn.
Amendments Nos. 26 and 27 not moved.
Question proposed: "That Section 38 stand part of the Bill."
On the section I would like to put before the Minister the kind of situation that can arise under this section. Anybody is liable to be detained by a doctor, on suspicion, in some sort of concentration camp, for a period, as being a person suspected of suffering from some type of objectionable infectious disease. Any of us could find himself in that position. What happens when we get the certificate? There is no redress.
You may appeal to the Minister.
Yes—appeal to the Minister. We have been appealing to the Minister for the last two days here and I do not know how much redress we have got. We have all to admit that in this House there is no Minister who is able to keep better relations with the House than the present Minister. I say that genuinely. I can appeal to the Minister. What satisfaction is that to me, to my family, to the people who know me? The powers in that section are simply frightening. It is all right when you may be applying these powers to vagrants or gipsy tribes but smallpox is not the only infectious disease contemplated in this Bill. I have not attempted to deal with this section from that point of view but I cannot permit the section to pass without expressing my fears in regard to the powers that are vested in medical officers under it and the little protection provided for the ordinary citizen. A medical officer may have a kink. Medical officers are just like other human beings. Some of them may be peculiar and may have fads and fancies and may not like some people. All the protection there is for the medical man. The medical man has all the power and the liberty. As far as the suspect is concerned, he is treated as so much clay, with no power to react and no redress, whatever the humiliation may be. I regard it as a very serious position.
I do not want to follow the line taken by Senator Baxter because I do not think there is any need to erect a fence around the people to protect them from the medical officer. I do not think there is the slightest need for that. I am concerned with other aspects of this section which seem to me obscure and I hope they may be clarified before the next stage. For instance, I would refer to paragraph (k) of sub-section (2), which says:—
"If no determination of an appeal under paragraph (h) of this sub-section is made by the Minister and communicated to the person in charge of such hospital or other place within 21 clear days from the receipt by the Minister of such appeal, such person shall release the patient and notify the committing officer of such release and if necessary arrange for conveyance of the patient to his usual place of residence."
What is meant by the words "if necessary"? Who determines that? Is it related to distance? Is it related to economic circumstances? Is it related to age? Is it related to the nature of the disease? It seems to me quite sloppy to use the words "if necessary". If the Bill said, "If in the opinion of the committing officer it was necessary" or, "If in the opinion of the Minister it was necessary", one could see there was some person somewhere who determined the meaning of the expression "if necessary". As it stands here, it is a vague expression about which there could be endless litigation and in respect of which there could very well be surcharge of officers of local authorities. That phrase occurs again in the next paragraph —(1).
Paragraph (m) says that where an appeal is made under paragraph (h) of this sub-section the Minister shall cause one of his medical officers to examine the patient and report the result of such examination. Report to whom? To the Minister? To the committing officer? To the county council who provide the money? To whom? Again I suggest there may be a clear intention behind this expression but it is not in the Bill. It does not give any indication of to whom the report is to be submitted. I submit with all respect that it is another instance of carelessness in the sertion in which, admittedly, there are two other instances of carelessness, one where we use the expression, in paragraph (h), "under 16 years of age" and the other in paragraph (c) of sub-section (3) when we say, "being 16 years of age or over". These are two instances of carelessness.
Again, in paragraph (o) provision is made for the method of detaining a person who is to be isolated. It says:—
"Force may, if necessary, be used for the purpose of carrying out any provision of this sub-section."
Force by whom? By the dispensary doctor or a county medical officer of health or by a policeman, relieving officer or some other officer? Who is to use the force? Is it the neighbours? Is there going to be a riot in which somebody comes along and says: "This fellow is spreading some disease here and we are going to detain him until the doctor arrives or until an Order is made". I think that greater care should be taken in drafting the section. Can we be told by whom, and under what authority, force is to be used?
Question put and agreed to.
Does that mean that there is going to be no elucidation of the points to which I have referred?
The section has been passed.
Very well, that satisfies me.
Sections 39 and 40 agreed to.
I move amendment No. 28:—
Before sub-section (2), in page 22, to insert the following new sub-section:—
(2) In the exercise of their functions under sub-section (1) of this section a health authority, in lieu of or in addition to themselves making the provisions mentioned in that sub-section, may, with the consent of the Minister, make and carry out an agreement with the person having the management of some suitable institution for the education and training of any person for whose training and education they are entitled under sub-section (1) of this section to make provision.
The Minister is making provision here for the training and education of persons suffering or recovering from infectious diseases. I assume, rightly or wrongly, that the reference is to persons suffering from or recovering from tuberculosis. It appears that what is intended is that the local authority will provide suitable employment for such persons, that is, employment suitable to their condition of health. It may provide and maintain premises and workshops or other facilities for the purpose.
Now, in the past there has been one institution in this country which provided these facilities. It was in one sense an institution privately owned. I refer to Peamount Sanatorium. I am particularly interested in what is being done there, and the conditions under which it is done, because, without being egotistical, I was largely responsible for having these facilities provided. In 1926 I was asked by the Irish Trade Union Congress to visit Papworth Sanatorium and report to them on the work which was being done there for the relief and education of tubercular patients. The work was under the direction of Dr. Varier Jones, a gentleman of very great experience, who was, I think, eminently suitable for it. I was very much impressed by what I saw—I remained there for two days—as well as by the conversations I had with the people living there, some of them in houses and others in huts. I met people from the City of London who had come down there for treatment. They had taken up trades such as boot-making, cabinet-making, wicker work and other work of that kind. They brought their wives there. I was very much impressed by what I saw there. It seemed to me to be an answer to the question: what is going to be done with these subnormal people after their period of treatment has ceased in the institution?
Subsequently I presented my report which was published by the Irish Trade Union Congress. I was invited by the committee in charge of Peamount to lecture to them on Papworth. I did so, and the result was the establishment of a minor Papworth at Peamount. I refer to this only to show that Peamount is a private institution. It is not owned by a local authority, but it enters into contracts with local authorities for the treatment of persons sent there. I am anxious that a local authority would have power to enter into agreements under this section with other authorities such as those in charge of Peamount, to provide the facilities referred to in the section if they cannot provide them, or if they do not think it desirable to provide them themselves. The Minister who is a doctor has probably more knowledge of this subject than I am likely to have, and will not be averse to the proposal set out in the amendment so that arrangments may be made for the treatment of these cases where a local authority may not itself be capable or willing to carry out such an undertaking.
Further, this work of rehabilitation may be very expensive if undertaken by a local authority. We have, I think, 31 local authorities in the country. I can see that, in a number of cases, the undertaking would be expensive because it would mean providing facilities for a very small number of people. Nobody would think of suggesting that people treated for tuberculosis should be obliged to avail of these facilities. The proposition as I understand it is that the facilities should be provided, and that people would be induced by propaganda or by encouragements of various kinds to avail of the facilities when provided. In the case of a county like Leitrim, I cannot see that work being done except at great expense for probably a very small number of people, whereas a centre like Peamount might be in a position to offer facilities on very reasonable terms to the Leitrim County Council. I am anxious that if an arrangement of that kind could be made that provision should be made for it in the Bill. It may be, indeed, that the structure of the Bill already provides for it. If so, I am perfectly satisfied. What I am anxious to ensure is that the point is not being overlooked.
We are all agreed on the desirability of sending patients who are recovering from tuberculosis to places like Peamount, but surely sub-section (1) of Section 41, which says that a health authority may make such provision, covers it, or, if it does not, sub-section (2) does, because it says that the Minister may, by Order, direct a health authority as to the manner in which it can do so. Three sub-sections give the Minister power either to direct a local authority to do it or to allow the local authority to do it. I cannot conceive the Minister permitting, for example, the Leitrim County Council to set up a rehabilitation centre for Leitrim when there is a good centre already in existence at Peamount or elsewhere. I take it that this matter, which is certainly a desirable one, is already covered.
When I first read the section, I saw what I call a ray of hope, because it said, "a health authority" and the familiar words, "with the consent of the Minister" did not appear. I said to myself: "What is happening; have they slipped up?" Then I read on and I found sub-section (2) where the familiar control was more elaborated than usual. What puzzled me about this section when I read it first was, where will it end? The term "infectious disease" is very wide. Under this section, a person recovering from a short fever might obtain rehabilitation and all the after-care contemplated in this section. Then, when Senator Duffy spoke, he had in mind that these whole provisions related to tuberculosis, although it was never so stated. While I am prepared to admit that there is a special case for continued after-treatment in the case of tuberculosis, I think it should be confined to that, or perhaps some other infectious diseases of long duration which have a serious effect on the patient. But here there is no limitation. Any infectious disease case can, if the Minister so wishes, be made the subject of this expensive after-care. Is that intended? If it is not intended, it should be so stated. The after-care of tuberculosis cases and a number of other matters in connection with tuberculosis might well be the subject of a special Act. The Minister may tell us that there are measures in preparation relating to tuberculosis. The whole confusion in my mind largely arises from the absence of this model scheme or White Paper or general picture of our future health services which we have been asking for and promised but never yet obtained.
When we come to the general provision for expensive after-care, education and rehabilitation in the case of infectious diseases, why confine it to infectious diseases? Are not the results of a nervous breakdown every bit as serious as the results of many infectious diseases? They are as disastrous in their effect as the results of certain forms of tuberculosis. Is the Government prepared to provide after-care and treatment as contemplated in this section for such cases? I mention a nervous breakdown because it is an obvious example. There must be a number of other serious diseases, sufferers from which are every bit as deserving of this treatment as those suffering from infectious diseases. We are not told, but presumably this is limited to tuberculosis. The whole thing is very vague and fully justifies the general statement which has been made that the measure has been loosely thought out.
There appears to be something in Senator Duffy's amendment. I do not know that I can agree with Senator Hayes that the word "provision" is sufficient, because the section says afterwards,
"and for that purpose may provide and maintain such premises, workshops, farms, gardens, materials, equipment and similar facilities as are necessary."
I thought that Section 12 would provide for the idea which Senator Duffy had in mind when he introduced the amendment. But there is a difficulty about Section 12 which says,
"a health authority may enter into an agreement with persons having the management of an institution of the same kind for the use of that institution by a particular inhabitant of the functional area of the health authority, or by all inhabitants in that area, or by such of those inhabitants as belong to a particular class."
That confines the agreement that can be made under the section to an institution in the functional area of the health authority. If that were broadened out, it would carry out Senator Duffy's idea and make provision for the sending of a patient outside the functional area for treatment such as is contemplated.
When looking at Section 41 I had in mind that it might be conceivable that Section 12 met the case. I was not sure, however, and thought I would take the precaution of putting down the amendment. What led me to think that Section 12 might cover the case is that existing agreements are ratified under the Bill and I presume the existing agreements referred to in the Bill are those made by the various county councils with Peamount and similar institutions. However, I am prepared to have the Minister's view about it.
I am advised that this amendment is not necessary, as the matter is covered by Section 12, but, in particular, is covered by the section itself, which gives the power sought in the amendment. I think there is no difficulty about that. Senator Sir John Keane attacked me both ways. He wanted to know why we did not confine it to certain infectious diseases such as tuberculosis, or, alternatively, why we did not open it to other classes of diseases. I do not know why. We have certain infectious diseases in mind. But we have all through the Bill laid it down that the regulations will confine the application of each section to a stated list of infectious diseases. What we have in mind particularly is tuberculosis, but I can picture anterior poliomyelitis coming within the section, that is, infantile paralysis. Certain cases of paralysis from diphtheria are not unknown, but are not common. Why should we confine ourselves to tuberculosis if there is a possibility that other infectious diseases must be included? Why should we have to come back again to the Dáil and Seanad and say: "We forgot anterior poliomyelitis"? Would not Senator Sir John Keane say that we were careless and untidy in our drafting? Of course, Senator Sir John Keane would never forget a thing like that if he were in my place. I think a good deal of the criticism of this Bill is of the "hurler on the ditch" type. If the Senator were in my place he would try to make the Bill as wide as necessary; not perhaps as wide as possible, but wide enough to prevent the necessity of coming back with an amending Bill next month or the month afterwards. We must give ourselves a little elbow room and not say tuberculosis alone, but infectious diseases, because there may be other infectious diseases added.
Does not this part of the Bill deal only with infectious diseases?
Yes. Therefore we could not put in nervous breakdown because that is not infectious.
I should like to examine this a little more. I do not want to be just mischievous or annoying or provocative in my comments. I may be wrong, but I am making them with a good intention. Here is a Health Bill and under this Bill a person recovering from any infectious diseases, such as measles, whooping-cough, itch, can receive attention and rehabilitation. Nowhere in the Bill—the Minister suggests that it is somewhere else in the Bill because it would not be appropriate to this section which deals with infection, the Bill being a Bill for public health, not confined to infectious diseases—are such benefits extended to other diseases which may be every bit as debilitating and have just as serious consequences in loss of employment and of power to gain a livelihood as an infectious disease. I mentioned a nervous breakdown and I might mention the loss of a limb. A person might have both his legs broken and be incapacitated for a long time.
Senator Sir John Keane is not a realist, so far as this discussion is concerned. We are dealing with infectious diseases.
Surely not the whole Bill?
Yes, infectious diseases and infestation. We are dealing with the transmission of infestation or infection and imposing restrictions to the extent of arresting people. Senator Sir John Keane himself would be the first to protest against any infringements on the liberty of the subject. Now, in the case of a person who breaks a limb, he wants us to provide rehabilitation for him. We are dealing with infectious diseases, with people who would be a danger to their neighbours if allowed to go back to their own homes, and this facility is provided for a period during which such persons can make useful products for the community without being a danger to the community. The elimination of the typhoid carrier is being tackled at present and a carrier of typhoid is a danger by reason of possible transmission of the disease through food products, especially if the carrier serves in a restaurant or hotel, but such a person, if isolated and given these facilities, will not be a danger to himself or anybody else. It is, as I say, one of the matters which is being investigated at present.
Senator Sir John Keane should view the matter from that point of view. If a person gets a nervous breakdown, he does not transmit it to anybody else. If the Senator gets a nervous breakdown or suffers a broken leg, he will not transmit it to me. What we are really trying to provide against is the danger of the transmission of typhoid or tuberculosis to other members of his family or to his neighbours. The Senator has not realised that yet. We are not dealing with broken legs, wooden legs or mental diseases because these are not transmissible.
We are dealing with the section on the rehabilitation of persons.
I am not at all satisfied.
Amendment, by leave, withdrawn.
Question proposed: "That Section 41 stand part of the Bill."
Senator O'Donovan suggests that I am muddle-headed about the whole thing. I may be, but I should like him to clear my head. He suggests that persons who have had an infectious disease and who presumably have reached a point at which they are free from infection——
Is it while they are still infectious that all this rehabilitation will take place, and, as soon as they are no longer infectious, these benefits will not apply?
That is my reading of it.
I do not think the Senator is right at all. A person could have recovered from an infection and still claim, or be accorded, if the health authority saw fit, all this education and special treatment. I am not so muddled as Senator O'Donovan suggests. He himself may not be clear about it. Why, if these benefits are to apply to persons who have recovered from infection, should they not apply to persons recovering from a mental breakdown? I am told I am raising this point on the wrong section. If the Senator can show me that in any part of the Bill sufferers from mental diseases, nervous diseases, are dealt with, that will be the answer, but nowhere in the Bill is similar treatment accorded to other diseases. Why the discrimination? I cannot understand why a person recovering from an infectious disease is virtually a privileged sick person as against a person recovering from another disease. There is nothing muddled about that. I may have read the Bill wrongly and I am asking to be informed. The Minister's reply did not make the point clear.
This part of the Bill deals with infectious diseases. The Bill deals with institutions, mother and child welfare and with infectious diseases, with which we are now dealing. We then go on to such things as foods and so on, so that we are not dealing with diseases in general in the Bill. It is more a Public Health Bill than anything else.
Dealing with health, but not disease?
It does not deal with diseases to any extent, except infectious diseases.
Does the Minister contemplate extending in another Bill similar benefits to persons recovering from other diseases as serious as infectious diseases?
There will be proposals, but they may come from another Department, the Department of Social Welfare, dealing with some of the matters mentioned by Senator Sir John Keane, such as persons who sustain broken legs and so on in accidents.
I can only repeat that we should have approached this question with a complete picture.
This is a Public Health Bill, remember.
Question put and agreed to.
Amendment No. 29 not moved.
Sections 42 and 43 put and agreed to.
Amendment No. 30 not moved.
Question proposed: "That Section 44 stand part of the Bill."
Sub-section (2), paragraph (c), I presume, would cover compensation for loss of time of employment as a result of the detention of a suspected typhoid carrier? It deals with the maintenance of persons suffering from infectious disease and it may be necessary to detain a certain person to find out if he is suffering from typhoid or is a typhoid carrier. Paragraph (c) says:—
"who, as a result of taking such precaution, is unable to make reasonable and proper provision for his own maintenance or the maintenance of his dependents."
I take it that means that he may get compensation for loss of time or employment as a result of detention?
Question put and agreed to.
Section 45 put and agreed to.
Question proposed: "That Section 46 stand part of the Bill."
How will this section work in practice? Sub-section (1) says:—
"A person who knows that he is verminous shall, in addition to the precautions specifically provided for by or under this Act, take every reasonable precaution to prevent his infesting others with vermin."
That is all pious platitude and generalisation. A person suffering from fleas is verminous. I do not want to develop that too much, but surely an enormous number of people are suffering from fleas. What precautions, in effect, are they to take to prevent that? Under this section a person who knows that he is verminous must take every reasonable precaution to prevent his infesting others with vermin. If everybody who knows that he is suffering from fleas were to take every reasonable precaution, he would never leave his home, I would imagine. What reasonable precaution could he take during the course of his daily round? Should he put on a badge, on which would be written "I am verminous, as I am suffering from fleas," so that everybody could get well away from him? I do not want to reduce this thing to ridicule, but it is rather a long step between what is proposed here and the practical realities of life. Could the Minister assist us in bridging the gulf?
It is largely a matter of degree, I take it. A man suffering from a couple of fleas would not be a great danger, especially in the summer time. Perhaps the Senator would read sub-section (3). We really have in mind persons under treatment. Sub-section (3) sets out:—
"A person shall be deemed conclusively to have reason to believe that he or any other person is verminous if he is notified accordingly by a medical officer of health or a health inspector."
That makes the sense of this chapter rather obvious. We are dealing with people whom we are trying to rid of vermin.
I take it, therefore, that one does not know one is verminous until one is notified. You can be verminous by law. You need not be verminous in practice until the medical officer of health tells you, but you are verminous by law if you have fleas.
If you are told by the medical officer or by the health inspector that you are verminous, that is conclusive proof. I take it that if a person sitting beside me in a tram saw a flea on me, that would beprima facie evidence that I was verminous, but it would not be conclusive proof.
Question put and agreed to.
Question proposed: "That Section 47 stand part of the Bill."
Under this section, a person shall take every other reasonable precaution to prevent the use or exposure of any article under his control which he believes to be verminous. I wonder could the word "article" be extended to include living things as well as inanimate possessions? I would like it to include such things as a mangy dog or a sneezing cat or a diseased parrot and the various other possessions that could become quite dangerous things. One sometimes sees dogs in back streets and children playing with them. These animals can carry an awful lot of infection. One studying parasites is apt to recoil when he sees a dog or cat licking plates in the house or when he sees cats being nursed by children and he realises that they can be quite dangerous as sources of infection. If the word "article" could be interpreted to mean anything with four legs, or two legs as in the case of birds, I believe it would make the section much more useful.
The general power to make regulations, coupled with the Second Schedule, will, I think, give us the necessary authority to cover what Senator Fearon has in mind.
Question put and agreed to.
Sections 48 to 51 inclusive, put and agreed to.
I move amendment No. 31:—
At the end of sub-section (2) to add the words: "Provided that no proceedings for an offence under this part of this Act shall be brought after the expiration of 18 months after the date of the offence."
I regard this amendment as one of considerable importance, though not necessarily in the terms in which it is drafted because quite possibly the point could be met in a different way. Generally it is provided that a prosecution can only take place within six months of the date of the offence, but there is provision here that, notwithstanding any limit, there can be a prosecution at any time, even up to 20 years afterwards. There can be a prosecution three, four, six or ten years afterwards if the Minister is satisfied that the authorities can only get the evidence after that period. It seems to me that there ought to be some limit from the point of view of fairness to the person who is prosecuted.
We are dealing with offences under this part of the Act. One of the offences would involve the question as to whether you knew that you were suffering from an infectious disease or were a possible source of infection. After two years or four years how could a person produce the evidence to show he did not know? If you allow prosecutions at too long a period after the offence, there is a danger that you may do serious injustice and possibly cause a false conviction because of the inability of the person to produce rebutting evidence. That is peculiarly likely under a measure of this kind. The only object of penalties and prosecutions is to maintain the regulations properly and get a higher standard of health. They are not there for the purpose of prosecuting people. There should be some limit and I suggest 18 months, which is possibly too long. If the Minister or the authorities have no evidence within 18 months, the case should be allowed to go. It would be too late after that, because there is a danger of unfairness.
As this section stands, there is no limit. An important principle is involved and I suggest that there should be some limit after which you cannot prosecute. That is necessary in a matter of this kind where a person gets an infectious disease, goes through a period of illness, is away from work and probably suffers financial loss. Such a person is liable to be upset and he or she might find it almost impossible to produce rebutting evidence after a long period.
I want to support Senator Douglas. He approached the matter very properly from one angle. I approach it from the angle of being asked to defend a person charged under this section. Unless that charge was brought within a very short time it would be utterly impossible, in my experience, to collect adequate proofs for the court. I am not being in any way rude to the medical profession when I say that their notes and diaries are not as voluminous, perhaps, as those of solicitors, but even if they were, they would have only a limited use in cases arising under this section, which must depend to a very large extent on such proof as impressions at times of diagnosis, and so forth. It would be utterly impossible for a solicitor to produce proofs to a court unless within a very limited time. This section as it stands would, without question, impose considerable hardships in certain cases.
I agree with Senator Douglas's point that there should not be an unlimited time during which a person could be prosecuted in a case of this kind. The difficulty is to specify the time. A very long period may elapse in the letting of a house in which a person died of tuberculosis. It may take a long time before the member of the family going to live in that house is definitely diagnosed as having developed tuberculosis. It might conceivably be more than 18 months before that would happen. It would be a very serious offence if a person had knowingly sold a house in which tuberculosis had been present to another person who came along with a young family. One of the children might contract tuberculosis but it would be rather slow in developing. I think that in a case of that kind it would be wrong that we should be prohibited by a time limit in taking proceedings. While I agree fundamentally with the Senator's point my difficulty would be to see what could be done to provide for it. In fact, to be on the safe side, if the period were made too long it might not be worth while putting it into the section at all.
When the Minister says, "to be on the safe side", what does he mean?
To cover all possible cases.
The safe side, I take it, is safety from the point of view of the public, but we are now dealing with the question of the period within which a person guilty of an offence under the section should be prosecuted. The thing has been done, and all I am concerned with is to provide that the case shall be brought within a period which will ensure that there will be a fair trial. I would be as anxious as anybody to see that a person who deliberately let or sold a house in which there had been an infectious disease should be punished. I would be even more anxious than the Minister and I would be inclined to be more drastic but I am equally anxious to prevent the possibility of persons being found guilty of an offence which they have not in fact committed. I think experience has shown that there should be a limit of a period of, at most two or three years, to ensure that a man will get a fair trial. You cannot get a fair trial after that period. The object of the amendment is to provide that the prosecution should be brought within such period as to ensure that the person charged will have a reasonable chance of defence. If, for instance, I were accused of having let or sold an infected house 20 years ago and I was told after the lapse of that period that there had been tuberculosis in it, I would not believe it, but how could I produce proof that it was not so? Perhaps two or three witnesses would come along to prove that I did know and how would I find it possible to prove the contrary after such a lapse of time? I am only instancing that as one case. I shall withdraw the amendment with the intention of putting it down again for the Report Stage. I put it down for the purpose of being helpful and not in any sense to cause obstruction. I think that there should be some limit but I am not at all standing by the period of 18 months because I am not a lawyer and I did not consult Senator Sweetman. I put it down merely for the purpose of getting the principle discussed.
Before Senator Douglas withdraws the amendment, I want to draw the Minister's attention to one point. Under Section 35, a person concerned in selling or letting a dwelling in which there had been infectious disease would be liable to imprisonment for three months if he were found guilty of an offence under that section and again under Section 43, the aggrieved person has a civil remedy. I suggest to the Minister that it would be reasonable to permit the civil remedy to remain outstanding to meet the case in view of the fact that the proceedings in a civil remedy would occupy a long time and that a man would obviously find it extremely difficult to defend a prosecution after such a long lapse of time. I think that the case which the Minister instances under Section 43 could be dealt with within six years. I think it would be a tort to that degree. Senator O'Dea or Senator Ryan might be able to clarify that point perhaps a little better. A decree in a civil action should be adequate, without incurring the additional penalty of imprisonment. I appreciate that imprisonment is at the discretion of the justice, but if the justice decides to convict, as I think he must convict merely because after such an enormous lapse of time it would be impossible to produce rebutting evidence, the justice is not entitled to take into account the fact that it is a doubtful case in inflicting a penalty. It would be utterly impossible after a long lapse of time to produce evidence to satisfy the justice and he would have to convict. Having convicted of such a serious offence, without giving the defendant an adequate chance of defending himself, he would have to impose a heavy penalty. I think that would work out unfairly.
There are two points about which I am troubled in regard to this amendment. While repeating that I agree fundamentally with the Senator's proposal, I would have to get medical opinion as to what would be a reasonable period. If that reasonable period should mean two and a half or three years, I am not sure that it might not be a mistake to put it in the Bill because local authorities might say: "We have two and a half years within which to take proceedings." If there was no such limit, I could say: "You did not do this within 12 months as you should have." I do not say that is an insurmountable point but it is one of the difficulties that occurs to me. I should like to have an opportunity of examining the second point with regard to the civil action.
The wording of Section 43 is rather peculiar. I am wondering whether it gives the right of civil action against an agent who lets the house.
I think the Minister intended Section 43 to give such a remedy and I assume that he has given effect to that intention in the Section.
I should like to have that matter looked into because I am rather doubtful about it. It seems to me that it is a person who suffers from a disease and who does not take reasonable precautions who would be liable for the action. I think it will have to be expounded a little further.
I shall put down a similar amendment for the Report Stage. The kind of case I had in mind was that in which, say, I sold a house 25 years ago. There was no question whatever that I had any reason to think that some of my children had tuberculosis. I am thankful that none of them has developed it but supposing that in eight or nine years or even in four or five years, one of them did develop tuberculosis, I would not be guilty of any offence because I had no reason to believe that they had tuberculosis at the time I sold the house. It would, however, be extremely difficult to prove that at a later date and it is at a later date, when it is discovered, that the question of a prosecution might arise. I do not agree with the Minister that a time limit as long as two and a half or three years should not be inserted in the section. If it were a question of ten or 20 years his point might hold good but I think there should be a limit in the Bill of two years or even three years. I think that his own Department would find that more advantageous. One of the difficulties we often have in dealing with a Bill of this kind is that the Minister says "I". We are not dealing with a particular Minister but with any Minister who may hold office in the years to come. I find it extremely difficult to picture the present Minister as either Hitler or Mussolini but I am not sure that we could not have a Minister in the future who would be of that type.
Amendment, by leave, withdrawn.
Sections 52 to 54 agreed to.
I move amendment No. 32:—
To add to the section a new sub-section (2) as follows:—
(2) Regulations made under this section for the licensing or registration of persons engaged in the manufacture, preparation, importation, storage, distribution or sale of food shall provide that no licence shall be withdrawn or no person removed from the register because of a breach of the regulations except after a conviction in a court of law.
I put down this amendment not because I am sure that it is the most practical way of dealing with the matter but because I believe that there should be some provision in the Bill to safeguard the holders of licences. This section goes very far. I am sure the Minister does not intend to use it to anything like the extent to which it could be used. Every grocer in the country—and there must be over 20,000 of them—might have to be licensed. I am not really concerned with that because I do not think that it would be practical politics for a long time. During the war, a practice grew up which may or may not have been justified. Whether it was or not, I do not propose to discuss now. By that practice, a Department could withdraw the licence of a trader and thereby deprive him of his livelihood. That could be done whether or not there was a conviction in a court of law. It is arguable that, even during a war, action of that sort is justifiable. I do not think that it is. At all events, in times of peace I do not think that it could be justified. There should be some assurance that where licences are granted, they will not be withdrawn because of an offence unless there has been a conviction in court. That would be consistent with the general tenor of the Bill. I do not say that licences should never be withdrawn. The Minister might grant a licence for a period and not renew it. I am referring only to cases where there has been a breach of a regulation or something of that sort. The licence should not be withdrawn in such a case on a Departmental judgment. It should be withdrawn only on the judgment of a court. If we are to get confidence in the measure, some provision of this kind is essential.
This section was, I think, introduced in the Dáil. It was not in the original Bill. The section simply provides that persons must be licensed for certain purposes but there is no provision as regards penalty in case of a breach of the section.
The penalty will be that the offender will not be able to sell any more.
In sub-section (9) the penalty is prescribed—a fine not exceeding £20 for the first offence and £100 for succeeding offences.
It is not with the penalty I am concerned. It is right that there should be a penalty if there has been a breach. I am anxious that a person's livelihood, or a great part of his business, should not be taken away on a Departmental judgement.
There are no subsections in Section 55.
Section 59 deals with all the regulations made in Part V and this is a portion of Part V.
I intend to have prepared, as soon as possible, a more comprehensive Bill dealing with food. This Bill is necessary for the interim period of 12 or 18 months. I hope that, at the end of that time, we shall have our Food Bill ready. This provision does not change the present position very much. We deal with milk at present, for example. Under the milk regulations, the Minister can give a licence to a person to sell milk and withdraw that licence. I should like to add meat to those regulations. I do not know whether we shall be able to do it or not. We may also deal with restaurants and hotels—at least, in some areas. That will be about as far as we can get until our comprehensive Bill comes in. There is no intention to deal with all the grocers. It is with specific foods we shall be dealing.
Yes, but we shall deal with specific foods. We deal at present with milk. The same conditions would apply to anybody who would sell meat. They would be subject to inspection and so on. I do not think that we shall be able to go further than that except in regard to premises used for the sale of food for direct consumption, such as restaurants and hotels. Even that may apply only in a limited area, because otherwise we should not have the required organisation to deal with it. What I want to point out is that we are virtually leaving things as they are until we bring in a comprehensive Bill.
In the case of milk, are licences withdrawn without a conviction?
No. They have been warned several times, of course, that licences will be withdrawn but, so far as I know, it has never been done.
Is the Minister referring to licences for premises under the Clean Milk Act?
The Minister wants to leave things as they are. I want to find out how things are. Will the Department of Health withdraw licences, whether under previous Acts which come within their purview or under this Bill, in cases where there has not been a conviction? Will they regard themselves as the judges? If the Minister would give us an assurance that he does not intend to do that, I should be prepared to withdraw the amendment. Otherwise, I should have to press it, because I regard this as a very important matter on which we should have the decision of the House.
My own view is that the Minister should have power to withdraw a licence.
Yes. The Minister administers the Milk and Dairies Act. He has his inspectors going around and reports are continually coming in. My own firm conviction is that you will never get regulations properly enforced unless the Minister has full power even to withdraw licences. The person who is clever enough to evade regulations and disobey the orders of inspectors is usually the person who is clever enough to get off in court.
The purpose of the section is to enable the Minister to ensure that food will be properly handled. For a purveyor of food to find himself in a position in which, on the report of an inspector, his authority to sell food can be removed, is dreadful. It means that the man is deprived of his living. I concede that the inspector must be a man with a conscience and that the recommendations he will make should be based on justice. The recommendations he will make ought to be based on justice. The experience of inspectors in the last number of years in their dealings with traders all over the country are of such a nature as to make all of us hang our heads in shame.
That is a gross exaggeration.
That may be. Senators may judge how far I am exaggerating by reading the comments of some of the district justices in the courts where these cases were brought. I am quite certain the Minister does not want to approach this problem in that manner because I do not think it is going to be effective. My view is that, in the first place, the Minister ought not want to have that power. He ought not want to take the liberty from the man and to leave him without a trial by some other court. I believe that the Minister's policy could be effected far more easily by bringing the man to court. I believe that that course would be much more effective because nobody—the producer of the milk or the man who handles the milk, or meat or anything else—would like to have it said of himself or of the members of his family that he was dirty and careless in the handling of food and that he was a possible source of the spread of infection. In my judgement I believe that, apart from the principle involved—the liberty to take away a man's livelihood without a trial—the fear and the knowledge that a man would be brought to court, disgraced before all the people with whom he had dealings for years, held up as the sort of person who could not handle food in a clean manner, would be far more effective than the removal of permits to sell. One conviction of that kind would be more effective than the removal of fifty permits.
I would like to know if the Minister has considered whether the withdrawal of the licence will in itself be effective. It seems to me as if the regulations could be evaded. A man could use the name of a friend while he would be in power behind the scenes. What power has the Minister at present in connection with the preparation of food.
I think, Senator, I have explained that the Minister for Health is only dealing at the moment with milk. Under the Milk and Dairies Act the Minister has power to remove the licence. I may not have made myself very clear on the point. The inspector who walks into a shop has very little power. He takes a sample and makes a report. What the man is condemned on is the bacteriologist's report. A man would never be condemned on one sample alone. If a sample comes in which is very bad the inspector is told keep an eye on the man and to take samples very frequently. If the samples which are coming in are continually bad, according to the bacteriologist's report, then the licence is cancelled. Since I became Minister, at any rate, I know of no licence which has been cancelled.
The Minister has blown his own case sky-high. If the facts are as he states, and of course I accept his word, what easier proof is there to adduce to the court than the bacteriologist's report? If the Minister's case is that there are other matters I could understand, though I would disagree with him. As he takes the line that it is on this analytical report, I cannot see that there is any argument at all. If the breach of the regulations depends entirely on the report of the analyst surely it is the easiest thing in the world for the court to have produced to it that analyst's evidence. Obviously, evidence which can be produced by means of a certificate is cheaper and more satisfactory and it can be challenged if you differ with it. I think the Minister is correct in saying that that is the situation in regard to milk. I gather the Minister takes it that he is re-enacting the milk regulation at the moment. I understand that he is also going to deal with meat.
And hotels, and so forth. It appears to me to be what we had yesterday from Senator Ryan, that is, another denial of natural justice. A man is not going to be given an opportunity of defending himself before an impartial tribunal against the charge of which he is accused. That is what it amounts to. Under Section 55, if the Minister withdraws the licence, we are going to take away a man's entire livelihood.
We must face that situation. We must face the situation in which an Act is going to be administered not by Dr. Ryan or any other Minister of whom we can think just at the moment, but that it is going to be administered by the Government Department there for the time being. There is not the slightest doubt in my mind but that this section could be made the means of the most dreadful oppression. I want to be quite clear when I am saying "could be made". I am not making any personal accusation against the present Minister, against the existing Government, or against the existing Department that it is so intended. However, this section could be made the means of the worst oppression. I seriously suggest to the Minister that it is all wrong: that the line must be that every citizen in this country, if he is accused of something that means the loss of his livelihood, that means the loss of the opportunity for him of providing for his wife and family, is entitled to go before an impartial tribunal and have it decided whether he was guilty or not guilty of the charge of which he was accused. I think that is essential. I was almost going to use the word "elementary", because I think it is one of the elementary rights of natural justice for anybody.
I really think the Minister, if I may be so presumptuous as to say so, spoke without really thinking of the tremendous issues and principles that are involved in this amendment. Candidly, if Senator Douglas will forgive me, I do not quite like the wording of his amendment. I think it might be phrased slightly differently. What Senator Douglas has in mind is that a licence would not be taken away without a person's consent, except after a conviction. If, of course, the licence was granted for a couple of months, it would be deemed to expire at the end of that time; or a person might want to cease manufacturing and it might be right and proper that the licence would be withdrawn. Senator Douglas might withdraw this amendment and present it in a more tightened up form on the Report Stage.
I think the Minister was not quite complete in the explanation he gave. The Milk and Dairies Act is carried out through the local authorities, while the Minister for Local Government has the licensing of the designated milks. The information comes to the Minister through the local authorities, but the registration and supervision of shops and dairy yards is done by the local authorities and the prosecutions are taken to court by them. There is a section of the Act stipulating that, after two or three prosecutions within two years, a man's registration must be cancelled. There is confusion between the local authority and the central authority here. Instead of the Minister prosecuting, he has the power to withdraw the licence. When it comes to the local authority to bring a delinquent to book, the local authority has to do it through the courts under the 1935 Act. They have to prove the case in court, but that does not operate in the question of licences.
Under this section, it is the Minister who will grant this type of licence.
I do not think so. The implementation must necessarily be through the local authorities. No Minister could do it on his own throughout the country and I cannot see it operating except through local authorities.
The Minister will be the licensing authority for some of these things.
If all the points that Senator Sweetman has set forth are well founded, it is a very dangerous thing to give that power at all to the Minister. If you empower him to give licences, you must trust him, as it is in giving them he can do the injustices. If he were to withhold them, it would be a serious matter.
Once you are in the business and build it up, it is a far greater injustice to withdraw the licence than to say you cannot start.
We must presume that every person applying will be a person carrying on the business.
There will be new people coming on and they will apply for licences also. We give the Minister this power because we trust him and he is not fit to be Minister unless he will carry out this work impartially. We know that will be done no matter who the Minister is, and that there will not be injustices. An occasion may arise where a licensee may not be guilty of any offence, but his premises may become entirely unsuitable for the carrying on of the business because of some other industry or work established beside it, which may be the cause of infection. There may be a manure heap set up nearby and you can take no action.
Make them take the manure away.
The licensee cannot compel that to be done, though some other authority may. Are you to allow this place to continue in the meanwhile?
Is the obvious answer not to prosecute?
Occasions may arise where, through no fault of the licensee, his premises may become unsuitable for storing food of the nature prescribed in the regulations. You cannot prosecute him because he is guilty of no offence, but it would be a grave danger to the public if his premises continued to be licensed while the danger existed. On the other hand, he may be guilty of an offence. He may get in assistants suffering from skin disease. Should he be allowed to carry on business with those assistants until a prosecution could be brought against him in the District Court and a conviction given? Surely that is not the wish of the Senators who are raising this objection? We know the time it takes to lay a complaint. A court may be held within seven days and the summons cannot be served. There may not be another court until the following month and it may take two or three months. Is the place to continue licensed during that time, to the danger of the public? That would be a very bad principle to adopt. The only thing that can be done is to give permission to the licensing authority, whoever that is, to withdraw the licence until such time as the danger is removed.
The case the Senator makes is that the Minister ought to have power to withdraw the licence because someone else decided to clean out a cowhouse and put manure near it and the place became a dangerous place for storing food for sale. Are his premises to be closed and his wife and family denied the right to live because the public health authority winks its eye at the setting up of the manure heap?
What about the consumers?
The consumer should be handled in another way. The Minister and the public health authority should put the man in prison, if needs be, for putting his manure in such proximity to the food store that the food becomes dangerous for human consumption.
Business suspended at 6 p.m. and resumed at 7 p.m.
In view of the limited time available to finish this Bill, I do not propose to take up very much time in replying to the discussion on this amendment. It seems to me that some of the matters were more or less irrelevant. There is, to my mind, an important principle involved.
There is no limit of time.
We are dealing with the amendment that I moved.
Lest there might be any misunderstanding, all I meant to say was that there is no limit of time to the discussion of this Bill.
That is an unreal remark.
There is nothing in the Standing Orders to prevent a Senator from being brief if he thinks it is desirable to be so. Subject to your ruling on that matter, I propose simply to say that this amendment seems to me important because there is a principle involved. The Minister has made it quite clear that he believes the Minister should have power, without a conviction in law or in court, to remove a licence which will take away a man's livelihood. He says there are cases where the person would be so tricky that you could not get a conviction and that his Department are much better able to judge than a court might be. I hold the exactly opposite view. It seems to me fundamental that in a prosecution between the State and the individual only a court should decide.
There is nothing new in this. I have had experience of the administration of the Milk and Dairies Act under the board of health for a number of years. Under that Act a person and premises must be registered. Periodic inspection is provided for. Section 26 provides that the sanitary authority on being satisfied that a person or premises are unsuitable may cancel the registration subject to the approval of the Minister and in the event of the Minister approving of the cancellation, the cancellation Order comes into effect within seven days of the date of the Minister's approval. In other words, within seven days the man is put out of business. That is the law and that is the practice. It happened in my own county. That happened as far back as 1936 and we have been working that Act ever since. The board of health ceased in 1944. We had very great trouble in trying to get people to comply with the terms of the Milk and Dairies Act and, unfortunately, people were deprived of a considerable part of their income, I will not say their main means of livelihood. There is nothing new in the proposal here that a person may be deprived of his means of livelihood because he will not comply with the regulations or with the law of the land.
Do I understand that the amendment is being pressed?
I should like it put to the House.
The Committee divided: Tá, 14; Níl, 12.
- Baxter, Patrick F.
- Campbell, Seán P.
- Counihan, John J.
- Crosbie, James.
- Douglas, James G.
- Duffy, Luke J.
- Fearon, William R.
- Hayes, Michael.
- Johnston, Joseph.
- Keane, Sir John.
- Kyle, Sam.
- O'Donovan, Timothy J.
- Sweetman, Gerard.
- Tunney, James.
- Clarkin, Andrew S.
- Concannon, Helena.
- Crowley, Tadhg.
- Hawkins, Frederick.
- Hearne, Michael.
- Honan, Thomas V.
- Kennedy, Margaret L.
- McEllin, John E.
- O Buachalla, Liam.
- O'Dea, Louis E.
- O'Donovan, Seán.
- Nic Phiarais, Maighréad M.
Tellers:—Tá: Senators Sweetman and Crosbie; Níl: Senators Hearne and Hawkins.
Amendment declared carried.
Section 55, as amended, agreed to.
Sections 56 and 57 agreed to.
Question proposed: "That Section 58 stand part of the Bill."
Sub-section (2) of this section provides:—
Whenever regulations made under sub-section (1) of this section provide that any particular certificate or other evidence shall be evidence for all purposes of the result of a test, examination or analysis of a sample, such certificate or other evidence shall, as respects those samples, be accepted by all courts of justice as evidence of the result of such test and shall also be accepted by all courts of justice as evidence that such test was carried out under and in accordance with the regulations.
This is dealing with food and drugs. There are Acts dealing with food and drugs already, the 1875 Act and the 1890 Act. There is a special provision in these Acts that the certificate of the analyst will beprima facie evidence of the contents of the sample. The regulations provide that when a sample is taken it must be divided into three parts. One portion is given to the vendor, another portion is sent to the county analyst, and the person taking the sample retains the third portion. The reason for the division of the sample is that when the vendor gets a sample he may send it to his own analyst and that analyst may disagree with the analysis of the county analyst. In that event, the court generally sends the third sample to the public analyst and goes by what the public analyst says.
All this procedure is intended for a particular purpose, namely, to give a chance to the person from whom the sample is taken. The certificate isprima facie evidence, in other words, is evidence until the contrary is proved. There is also provision that a defendant may send notice that he intends to dispute the certificate of the county analyst and, in that event, the county analyst would have to come to the court to prove that he made the analysis properly, that he did not leave it to any of his officials, that the analysis was carried out by him and was a correct analysis. That is the procedure which is only fair and just to people from whom samples would be taken.
This section says, however,
"shall be accepted by all courts of justice as evidence of the result of such test and shall also be accepted by all courts of justice as evidence that such test was carried out under and in accordance of the regulations."
You cannot have one Act in force saying that a certificate isprima facie evidence and have another Act— because this Bill deals with food and drugs—providing that it will be absolute evidence and that there can be no contradiction of the certificate.
Is that the meaning of the sub-section, that no other evidence can be given?
That it shall be evidence, notprima facie evidence.
Could not rebutting evidence be given?
According to my reading of it, it is absolutely conclusive.
What is the meaning of "evidence" if the wordsprima facie are not inserted before it? You have such a thing as evidence and also prima facie evidence. Prima facie evidence means that it is evidence until the contrary is shown to be the case. If it is “evidence,” is is absolute evidence in my opinion. I suggest to the Minister that he should make this Bill consistent with the Food and Drugs Acts. If you proceed under the Food and Drugs Acts, you have to carry out these conditions and the defendant has the opportunity of sending a sample to his own analyst and finding out whether the other analysis is correct or not. Very often there is a contradiction between them and the public analyst then decides. The defendant ought to get that opportunity.
We are dealing with food and drugs. I am as careful as anybody else about the protection of the public; I would not give in to anybody on that point. There are manufacturers of food and drugs. They are very big firms and if a sample is found not to comply with the conditions what is to happen? Does it mean that all the food they manufacture must be destroyed? Does it mean that they are not to be dealt with again? Their reputation is gone. It is a very serious matter and I think they ought to get every opportunity possible to reinstate their character with business people, if it can be done. I suggest that the words "prima facie” should be inserted before the word “evidence” in the sub-section. If you proceed under the old Food and Drugs Acts and the sample is divided into three parts an analyst can come along and do all this. But supposing you cannot get the man under the old Food and Drugs Acts which contain the phrase, “not being of the substance quality and nature demanded” and you prosecute for non-compliance of this regulation, you may get him on the certificate and cut out his evidence. This Bill and the Food and Drugs Act will be inconsistent unless “prima facie” is inserted.
I marked the sub-section with the intention of asking the Minister the question that Senator O'Dea has answered. Senator O'Dea has a much more intimate knowledge of this matter than I have. The question I want to ask the Minister is whether the word "evidence" in this sub-section means that the certificate given by the type of analyst provided for in the regulation will be conclusive and cannot be rebutted. Senator O'Dea thinks that is the position and I am not in a position to say whether it is or not. But, if that is the position, it puts it on a different basis from the Food and Drugs Acts. It appears to me that the Minister might even make regulations under sub-section (1) which would not provide for the sample being divided into three parts. I wonder if the Minister intends to do that and if it is on all-fours with the Food and Drugs Acts, under which a person prosecuted on a particular analysis could have an analysis made at his own expense and, finally, I think, the matter went to the State analyst.
I should like to draw attention of Senators to the fact that there is more than analysis in this. There are bacteriological examinations as well as analyses and this section covers these as well. These bacteriological examinations are provided for in the Milk and Dairies Act and it would be a hardship actually on the owner of the milk to have a sample given to him, because, necessarily, the sample which he would keep under such circumstances would only worsen his case. There is no provision for dividing the sample into three parts. There is a provision for dividing it into two parts, and he can have one if he so desires. It is never desired because the sample has to be packed in ice before being taken for bacteriological examination, so that it would be a hardship on him to give him his own sample for examination, though he would be entitled to it. There is more than chemical analysis in this section, and I read it as meaning that the certificate would be taken as evidence in court without the necessity for the analyst, the bacteriologist or other person certifying appearing in court in person. That is the provision at present—the certificate of the analyst or bacteriologist is accepted without his having to appear in court. I thought that that was all that was covered by the section, because, necessarily, the regulations will have to deal with the method of taking the sample, the division of the sample and the way in which the sample is kept before examination. There are three provisions here, as I see it—analysis, bacteriological examination and test.
Senator O'Donovan has explained the position fully. There are two analyses—chemical and bacteriological. It is not proposed to depart from the regulations regarding chemical analysis and this is designed more to deal with bacteriological analysis. As Senator O'Donovan pointed out, there would be no use in leaving a sample of milk over for bacteriological examination, because it would be a bit older, and, therefore, worse, and the evidence of the man's own bacteriologist would presumably be much worse than that of the State bacteriologist. Further, sub-section (2) is designed to obviate the necessity of an analyst going to court to prove that it was his analysis and that the certificate is his. I think that is very desirable and that there should not be the expense of bringing the analyst to court.
That was done under the old Act, too. The analyst need not appear under the Food and Drugs Acts. It is only where the defendants give notice of intention to challenge that he must appear.
Does the word "evidence" mean conclusive evidence?
I think the Minister is wrong in that. Senator O'Dea, I believe, is right when he says that the word "evidence" means conclusive evidence. This is an enabling sub-section and depends, therefore, on the regulations made under it. I agree at once with the Minister and Senator O'Donovan that it is most desirable that the certificate of the analyst, unless it is being challenged, should be evidence, without the necessity of going to the expense of bringing the analyst to court to prove that it is his analysis and the certificate is in his handwriting. I differ from Senator O'Donovan, however, with regard to the bacteriological examination. Quite clearly, if the defendant leaves a sample over and does not send it for analysis by his own analyst until some time after, the position would be as he has indicated, but the defendant, at the time the sample is taken, may say, "There cannot be anything wrong with this," and, without waiting for the State analyst, may decide to send it to his own analyst. I suggest that the regulations should provide that he should be able so to decide, and, if he does so decide, it should be possible for his own analyst to give evidence in court and for the State analyst to be subjected to cross-examination. I appreciate at once that this is an enabling section and I would be perfectly satisfied with an assurance from the Minister that he proposed to ensure that his regulation would provide that the evidence and the certificate would beprima facie evidence.
How can that be done when the Act says there must be evidence of the contents?
I cannot debate whether the word "evidence" meansprima facie, conclusive or definite evidence, but I should like to put Senator Sweetman right in connection with these matters of test, examination and analysis. We find that, when speaking of any test, people call it an analysis. It is a specific examination for chemical composition, and I presume a test can be a test for foreign matter—what is known as the minute test—which could be carried out in the presence of the man who sells a particular commodity. An examination can be a bacteriological examination and an analysis is a separate thing for the chemical constitution of the product. With regard to bacteriological examination, no producer can comply with the provisions with which the man taking the sample has to comply, because, first, the sample must be packed in ice, and the man delivering milk, for instance, has not got the ice, and, no matter what division is made, he cannot treat his portion of the sample as effectively as the sampling officer is compelled to treat his.
Because he has not got ice.
Could it not be done on the wholesale premises of any dairy in Dublin, where all the refrigerating plant is available?
These samples will be taken on the street, during delivery, in shops, and so on.
And on the premises of any wholesaler who has refrigerating plant on his premises.
I say that to try to give the producer or person selling the product the same facilities in respect of his sample as the sampling officer has in respect of his would be very difficult. The sampling officer has an ice-box with him and the sample is immediately put into it, and, unless everybody delivering milk had a refrigerator on his cart, he could not have the same facilities as must be provided for the sampling officer's part of the sample. Anything you do to help him will only be a hardship.
Suppose it was a sample of ice-cream that was being taken?
I am dealing only with what is actually being done. It is entirely in connection with bacteriological examination, which should not be confused with analysis. They are two distinct things.
Analysis is covered by this also.
I know, but Senators have referred to this section entirely on the basis of analysis. There are three things—test, examination and analysis. I understood the sub-section was concerned with the fact that the person making the test, examination, or analysis, need not necessarily appear in court to substantiate the certificate he gives. I think that is what is meant by the section.
May I put this query to the Minister or to Senator O'Donovan? Suppose I am a milk producer. My milk is sampled by somebody acting for the public health authority.
It is only sampled in the way in which I am speaking of —for bacteriological examination.
This section covers bacteria.
It is only in Dublin it is done.
But it is sampled for other purposes. I get portion of the sample; the officer taking the sample retains portion; and the balance is sent away. Suppose I am doubtful about the results and decide immediately to send off my sample to my own analyst. When I produce my evidence in court, am I to be faced with the situation that a document presented by the public health authority on the result of the analysis is evidence which is to be accepted by the court, and, if I have my analyst in court, his evidence means nothing as against that document? That is how I read it.
I think Senator O'Donovan has brought us on to a side line. We shall have to examine the part of the Bill that is in question. It is Part V, Section 57. It provides that regulations may be made
"Prohibiting the sale for human consumption, or the offering or keeping for sale for human consumption, of any article of the food which is of a nature, substance, or quality, or in a condition, inferior to the nature, substance, quality, or condition (as the case may be) of the samples of the food submitted for examination by the proprietor of such article as stated in the relevant certificate issued to him under a regulation made pursuant to paragraph (b) of this sub-section."
Section 58 refers to the regulations that may be made and then the penalty is £100 or imprisonment. The regulations will provide that the food shall be of a certain nature, substance or quality. That is practically word for word what is in Section 6 of the Food and Drugs Act of 1875. If you are prosecuted under Section 6 of the 1875 Act for selling an article not of the nature, substance or quality demanded, the certificate is regarded merely asprima facie evidence. Supposing a summons is brought under these regulations, it may be for the same offence, but, because you are not sued under Section 6 of the 1875 Act and because you are sued for a breach of the regulations, then the certificate is absolute evidence that the food is not of the nature, substance or quality prescribed by the regulations and you can be convicted by the production of that certificate. If you had 40 certificates in court they would not be evidence. The Act says that this one certificate is to be regarded as evidence.
I prosecute in cases, but I still think the defendant should have a fair run for his money; no unfair advantage should be taken of him. I would be sorry to appear in a case in which a prosecution would be brought under these regulations and Section 6 of the 1875 Act omitted. I would be sorry to go into court and say: "There is the certificate and you are bound to act on it." If a person were sued under Section 6 of the Food and Drugs Act, 1875, he could demand that the analyst be brought in and he could produce his own certificate. He cannot do that when he is sued under these regulations. That is what I think is the unfair part of this Bill.
Senator Sweetman was referring to sub-section (1) (f), which sets out that the regulations may
"provide that any certificate or other evidence prescribed under paragraph (e) of this sub-section and given in respect of the test, examination or analysis of a sample shall as respects that sample be evidence for all purposes of the result of such test."
That is what Senator Sweetman was saying he would be satisfied with if the Minister would tell him that his regulations would make that certificateprima facie. But I am referring to sub-section (2), where it says:
"shall be accepted by all courts of justice as evidence of the result of such test and shall also be accepted ...as evidence that such test was carried out under and in accordance with the regulations."
According to that the guard who takes a sample will not have to prove that he divided it into three sections, that he gave one to the vendor and sent one to the analyst. The certificate will be evidence that all that was done.
And that that was the result.
Yes, that that was the result and that there can be no other test. That ought not to be passed by this House.
Senator O'Dea has in mind his experience of simple samples of milk sent for analysis. It could be any food; it could be a tin of hermetically-sealed meat, and that cannot be divided.
Could it not be milk as well?
It could be milk or butter.
The regulations would apply to everything; they would apply to loose milk, but that will be only one item.
The regulations must be free to cover every article of food. The sampling officer may take tinned meat, tinned fish, tinned fruit or tinned vegetables. He cannot, for the vendor's sake, divide those and subsequently have them bacteriologically examined. Milk in a sealed container, such as a bottle, has not to be divided into two or three parts because it would be to the vendor's disadvantage to have that done. We are concentrating on the old practice of taking a sample of milk for analysis where the sampling officer had to buy it and divide it into three parts. You cannot apply the conditions dealing with milk for its chemical content to other articles of food and, therefore, the regulations must be framed to cover hundreds of articles of food.
This discussion does not cover the wide field that the examinations under this measure must necessarily cover. Articles will not be sent for analysis. There will be tests and examinations other than a bacteriological examination. These things must be provided for. I think we are concentrating too much on the old-time sampling of milk for chemical analysis. That will be only an infinitesimal fraction of the work that has to be done under this measure.
The sampling of milk for fat content does not come under this Act; it comes under the Milk and Dairies Act.
I think it does come under it.
It could come under this.
I am doubtful that it could.
That is the whole point at issue.
If we are to go on with the bogey man under this Bill, we will not get very far. One can imagine all sorts of things happening under a section. One could go out into the street and be killed by a motor car and some Senator might ask why should a motor car be allowed to run down that street.
There is no such purpose at all.
The sampling of milk could come under this Bill but we are not going to bring it under this Bill. This is to deal with food generally and this section is designed to deal with bacteriological examination in addition to the regulations already dealing with chemical examination.
Why not take some power then to exclude these commodities?
You could do that by drafting ten or 12 additional sections.
Does the Minister propose to make the certificateprima facie or conclusive evidence?
There is no intention of making it conclusive evidence.
The word evidence troubles me.
I take it that sub-section (2) means that a certificate can be made eitherprima facie or conclusive evidence and of course the greater includes the lesser. If the Minister thinks he is going to make it prima facie evidence—
Why does the draftsman sometimes say that a certificate shall be conclusive evidence? Why does he not merely say that it shall be evidence?
I think if we are talking about a bogey man the Minister has now discovered one, I presume there is more than one draftsman.
If the draftsman wants to make "a certificate" conclusive evidence he will say so.
If I were quite satisfied that samples of milk for chemical analysis were not going to be brought under the section, I would be content, but I am not, and the Minister has not clarified that position for me. We see prosecutions all over the country arising out of the chemical analysis of milk. Farmers are getting more fearful of this than they used to be. Supposing I am in the position that my milk is taken from me and broken up for the purpose of analysis and I decide, in order to protect my own reputation, to send one of the samples for analysis, or suppose that a firm like McCullough's, who have, say, 100 cows and wish to protect their reputation, decide to send portion of the samples for analysis and they get back a report. They are taken into court. So far as I can read that section as a layman—and I am supported by Senator O'Dea—my analyst's evidence cannot be considered against the document submitted by the analyst working for the board of health. I think that is wrong and the Minister has not clarified that. If the Minister is going to take a chemical analysis of the milk as something that is not governed by this section, the whole thing is different.
There is an Act—I think it is the Milk and Dairies Act passed in 1935—under which we deal with milk, and we shall deal with all other foods under this Act until we bring in a consolidated Bill in relation to all foods and drugs.
I think there is some confusion in the minds of Senators as to the terms,prima facie evidence and conclusive evidence. So far as I can see, this sub-section empowers the Minister to provide by regulation that a certificate of the test of a sample shall be accepted by a court of justice as evidence of the result of that test. That means that it is not necessary to produce the analyst who made the test in court. His certificate will be accepted as evidence but that evidence may be rebutted by evidence of another analyst who made a test of the same sample. The word “evidence” only is used and the section does not provide that the Minister shall make a regulation that the certificate of any particular analyst shall be conclusive evidence.
"Evidence of the result".
The word "evidence" meansprima facie evidence.
There are two results and which result is the correct result.
There may be two results of the analysis of a certain sample of milk. Analysts may differ. But this deals with the test made by the person who gives the certificate.
And it shall be accepted by the court as evidence.
Yes. That is similar to the procedure in a number of cases under which a certificate under the seal of the Land Commission shall be accepted as evidence, but if it is accepted as evidence that evidence may always be rebutted by other evidence. It is not conclusive by any means and, therefore, not being conclusive, may be rebutted by further or better evidence. I cannot see what particular grievance arises under this sub-section.
May I, before any other practising lawyer intervenes, say that perhaps we could postpone this question to the next Stage and the Minister could consider the matter and get other opinions in the meantime. We have had the opinion of three lawyers already. One says that the word "evidence" means conclusive evidence, the other says that it meansprima facie evidence and the third says that by regulation the Minister can make it either conclusive or prima facie evidence. That is the section as it has been construed by three lawyers. It can be either prima facie evidence, or conclusive evidence—each or either —but it cannot be both.
There is one thing that should assure Senator Baxter and that is that the Food and Drugs Act and the Milk and Dairies Act are not being repealed by this Bill. Milk will be divided into three samples still.
Section agreed to.
Sections 59 to 62 inclusive, agreed to.
I should like to ask the Minister for some information in relation to the third sub-paragraph of paragraph (d) where it says "that such defendant shall be discharged from the prosecution but shall be liable to pay the costs incurred by the prosecution unless he gave due notice to the prosecutor that he proposed to rely on the said defence". I wonder is there any definition of, or do lawyers understand what is meant, by "due notice"?
It is of some importance.
It may be held to be 24 hours' notice or three months' notice. It may be that when the summons is served the person who is served should immediately give notice or it may be held that he should give notice the night before the hearing, that he intended to rely on this defence. I think there should be some understanding of the expression "due notice".
I think he has to give notice before any expense is incurred by the prosecution.
That is, if he wants to be relieved of costs. An inspector takes a sample of food. He proceeds to prosecute the seller. When the case is advanced, the seller says: "I had a warranty and I am not liable." If he had said that at the beginning, he would not have been prosecuted. The prosecution would have been brought against the original seller of the food. "Due notice" would be easy to interpret there—it would be notice before any expense was incurred.
I am satisfied that "due notice" can be reasonably interpreted but I am satisfied because my interpretation is not that of the Minister. "Due notice" does not necessarily refer to the time of the inspection. I think it means when the summons is issued and is intended to enable the prosecutor to adopt his line of evidence. I do not think that it would be reasonable to say that a man must give the inspector notice.
I did not say that. I said before the expense of a prosecution had been incurred.
I do not think that the defendant would have any chance of knowing cost was to be incurred until he would get the summons.
In any event, the law is the same as it has been for the past 70 years.
With great respect, it is not. The word used here is "proves". Under the Sale of Food and Drugs Act, all the defendant has to do is to give notice to the prosecution that he purchased on warranty and that he relied on that warranty. In this case he must "prove" that he purchased on warranty.
I think this provision means that, when a summons is served on the defendant, he must, if he intends to rely on this sub-section, give notice in reasonable time before the hearing of the summons. The summons must go to a hearing; otherwise he could not prove the three matters set out in the last paragraph. If it should appear to the district justice that he did not give notice to the prosecution within a reasonable time before the hearing so as to enable the prosecution to save the expense of producing witnesses or enable them to consider whether or not the summons should be proceeded with, it will be for him to take the proper course. The question as to what is "due notice" will be for the district justice. He would have to consider whether ten days' notice or a fortnight's notice before the hearing would be "due notice" within the meaning of the sub-paragraph. It is possible that rules of the District Court may be framed to deal with the matter and provide for the length of time which would be deemed "due notice". I think that it is unlikely that any rules of court will be made in respect of this matter. Therefore, I think it will be a question in each case for the district justice who hears the summons to decide whether or not the defendant should pay the costs of the prosecution. If he should so decide, then the defendant would have an appeal to the Circuit Court against such a decision. I think that the question of what is "due notice" is a question of fact in each case and that it would be very difficult to frame any general rules dealing with the matter.
Sections 63 and 64 agreed to.
I move amendment No. 33:—
In sub-section (1), page 33, after line 11, to insert the words:—"the expression ‘certain other articles' shall include general disinfectants, vermin poisons, water-purifying agents, soil fertilisers, and weed killers."
This part of the Bill contains provisions relating to medical and toilet preparations and "certain other articles". The object of this amendment is to make some of these "certain other articles" a little bit more certain by including some things that might be left out and which, I believe, should come under the very important control to be exercised by the Bill when it becomes law. For the first time in this country, we have a check on what used to be known as the "patent medicine racket". Nearly 40 years ago, there was first published a booklet entitledSecret Remedies; what they cost and what they contain. Certain people were startled to learn that a remedy that they were told was worth a guinea a box cost only a quarter of a farthing to manufacture. Some of these substances that appeared under various names had no remedial value whatever. Legislation has been invoked in various parts of the world to control certain of these substances by compelling manufacturers to publish their composition. For that reason, I am extremely pleased to see the requirement in this Bill that particulars of their contents must be shown. That would apply to the new vitamins and alkaloids. The actual name on the label will not convey much to the ordinary consumer but, if the particulars are properly printed, they will show what the substance contains and how much. That is provided for in the Bill in regard to medical and toilet preparations and a few other substances of equal importance to the welfare of our people.
I suggest that the "other articles" be extended to include such things as I have instanced in my amendment— general disinfectants, vermin poisons, water-purifying agents, soil fertilisers and weed killers. I should be very glad if the Minister were to take these articles under his care. As regards "general disinfectants", some of them are almost worthless. They have a smell but that is about all. The disinfectant should be accompanied by a statement as to its actual disinfecting power in terms of its particular use, which will be well known by people who buy disinfectants for use in large quantities. As regards water-purifying agents, these are used to sterilise water and make water soft. Some of them have no effect at all. I found that a particular preparation used to purify drinking water for a dog was completely insoluble in water and might as well be left outside the dog's drinking trough as inside it. That would not come under the heading of an ordinary medical preparation. As regards fertilisers, I think that the labelling of the fertilising preparations in circulation should receive attention. Some of these substances have been extremely poor. If a mixture is supposed to contain phosphate or ammonia, the actual content should be specified and the farmer should be taught to look out for the specification. I should be very glad if the Minister would take these forlorn but very important substances under the sheltering wing of this Bill by including them amongst "certain other articles", though they may not be primarily medical or toilet preparations.
I am afraid I will have to confine myself to medical preparations. Possibly disinfectants and water purifiers might come under that because they would come under health regulations. There is an Act in relation to fertilisers which I think is due for revision by the Minister for Agriculture, and I am sure it will appear in the near future. This is rather a wide amendment and it goes much further than I intended. All I can say to the Senator is that we shall watch such things as disinfectants and perhaps water purifiers, and if possible make a case, which I think we can, that they are concerned with health regulations.
I hesitate to intervene, because this is rather technical. I am very sorry that we have not got the assistance of either of our two members who are medical practitioners. Is the purpose of this section to protect the public against spurious preparations or perhaps not so much spurious as preparations which do good by faith rather than by their medical properties? I am a bit suspicious. You read in books and I have been told tales out of school about old ladies being given bottles which are really only coloured water. The reason for that is that they believe that if they are given something coloured, although it may have no medicinal properties at all, it will do them a lot of good. They have the faith and that is the treatment which suits them. There is the psychological aspect to be considered. Are we not going to be allowed to have our Beecham's pills simply because they contain only some very innocuous and cheap substance?
What is intended by all this? I agree that the analysis of all these preparations should be on the bottle. Any of these things which I happen to use contain an analysis on the label although it does not mean anything to me. The vitamins and all kinds of chemical formulae are listed. I take it it means something to somebody. I suppose the medical profession could let it be known that that is either good or bad, or perhaps the chemist could, and protect the people from taking things which are not necessarily harmful but which do not necessarily do any specific good. I would not care to get too much into the hands of the theory people on this matter. There is a large element of faith in these preparations which, so long as they do not do any harm, I should be very sorry not to have.
My reply to Senator Sir John Keane can be made in a very few words. I am not attacking faith. All I am trying to do is to prevent the exploitation of hope.
Amendment, by leave, withdrawn.
I move amendment No. 34:—
In page 33, before sub-section (3), to insert the following new sub-section:—
(3) The Minister may, after consultation with the Minister for Industry and Commerce, make regulations for the control of the importation of medical or toilet preparations not manufactured in this country.
I consider this amendment extremely important. I am not sure if I have it worded correctly. At the present time, owing to the operation of various other parts of the State machine, certain substances, products and medicines are being restricted in their entry into this country because they contain certain materials held up by the filters of other Departments. I can give an instance to the Minister of a substance I was trying to obtain, a food product, which has in it some of the protein of the wheat. The letter I got from the manufacturer states:
"... This preparation contains some wheat, oat and rye flour. The writer understands that the prohibition is tied up with Section 10 of the Agricultural Products (Cereals) Act, 1938, whereby commodities containing wheat or any product of wheat are prohibited from importation..."
The actual part of the wheat in this is not very important but apparently it is the thing which is getting in the throat of the customs. The writer informs me—— I quote:
"... I understand that given a medical certificate for every individual case it would be possible to obtain a licence to import some half dozen packets or possibly a few more"
I have no doubt that if one really wanted these things one would have no difficulty in getting them as a result of an individual appeal. It is particularly unfortunate that these products and others which are very unlikely ever to be made in this country should be held up because they contain something that some Act which was obviously designed to hold up something else manages to capture. There is a very important milk product—I shall not advertise it—which does not cost a guinea a box, and, although it is very unlikely that it will be made in this country as the problem of concentrate is troublesome and requires expensive apparatus, it happens to be held up in this way simply because it is a milk product. If the Minister for Health safeguards these things in some way so that they come into his province it would be much easier to appeal to him and to explain to him and he could be persuaded to relax the import restrictions on some of them. This is a technical subject and I do not want to complicate the mind of the House by trying to develop it. As a result of the pretty terrible food experiences of the world during the last few years it is now possible to develop very concentrated forms of nutrients from breakdown food products which can be injected into people. These are now being held up because they are derived from milk. My amendment read:-
"The Minister may, after consultation with the Minister for Industry and Commerce"—
or probably the Minister for Agriculture—
"make regulations for the control of the importation of medical or toilet preparations not manufactured in this country."
In this particular case the control would be the release of control. I would like the Minister to facilitate some of these as far as possible. I can give him the names—probably he knows them already—of the things which are tied up.
I wonder if the Minister could appeal to the Minister who directed the passing of the Agricultural (Cereal Products) Import Act?
I would have to think about that. The amendment proposed by the Senator is not necessary in order to give effective control to what he wants. There is no doubt that under sub-section (3) (a) there is sufficient power to do it. The point is whether the Minister concerned would be agreeable to do it. I think the cases mentioned by the Senator may have seemed important to the Minister for Industry and Commerce or to the Minister for Agriculture at one time, but I would not say so now—that is, these particular milk and cereals products. If I can make a case that from the health or nutritive point of view these things are important I think it should be possible to get it done.
It seems to me that what is wanted is not what is stated in this amendment. I agree with the Minister that probably there is plenty of power to make regulations. What is really wanted, however, is some provision by which other Departments will not prohibit the importation of goods or foods which are of value to the health of the community without first consulting the Minister for Health.
The Senator is perfectly right there.
I agree to the withdrawal of the amendment provided it be examined on the Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 35:—
In sub-section (3), page 33, line 19, before the word "sale" to insert the words and brackets "(whether by way of gift or otherwise)".
In this section we are starting to deal with the powers conferred on the Minister to make regulations regarding medical preparations. Sub-section (3) provides that the regulations may make provision for a number of things set out in subsequent paragraphs. Paragraph (a) deals with the prohibition of the manufacture, preparation, importation, distribution, sale or offering or keeping for sale of certain preparations. I seek to extend rather than to limit the powers of the Minister. If some of these preparations are of a character that should not be available to the public, provision should be made to ensure that they will not reach the public by an indirect method.
In other words, having made the regulation, there is still an opening left. A tobacco firm offering gifts to people who buy certain brands of tobacco may offer certain medical preparations or cosmetics to purchasers of those brands. A newspaper may offer similar gifts as an inducement to people to become subscribers. That may be extended to all kinds of things. You may find yourself being offered a certain preparation, or if you buy a baby car it may be filled with things the importation of which is prohibited. To complete the circle which the Minister is endeavouring to draw around this practice of putting objectionable commodities into the hands of the public, the words of this amendment are necessary.
We might classify these preparations as good, indifferent and bad. Some preparations undoubtedly are good and are good value and we do not intend to touch them, for the moment at any rate. The indifferent ones are those which are not doing any harm and we will put them aside also. We will deal with the harmful ones first and then with the indifferent ones or those not giving good value.
I can hardly imagine that any newspaper proprietor or tobacconist would buy these harmful preparations and give them out as free gifts, but even if they did, we have sufficient power to deal with them. We can prevent their manufacture here or their importation, and if we miss them on that we can prevent the distribution. There are many ways by which they can be caught in the net before they reach the consumer, either on sale or as a free gift. I do not think the amendment is necessary, but I am anxious to have the Bill watertight and will examine this further before the next stage.
Does the Minister attribute merit or demerit purely to the clinical properties of an article? There is a lot in the psychological aspect, in the general belief, in the faith people have that they are getting benefit out of a certain thing. It may have no clinical value, but that does not say it is not doing good. There is a very considerable factor outside the medical attitude and I think a psychologist would agree with me in that.
It is not a question of faith when you come to deal with hair dye. You may have faith in it, but it may leave your scalp without any hair.
Senator Sir John Keane has spoken as if he was aiding and abetting fraud. He seems to suggest that, if a fictitious product is sold at a fabulous price, we should allow it because of the psychological effect on neurotic patients. As a Legislature, we could not subscribe to that.
I am thinking of the substance which does not harm and if people like to believe in it, let them do so. I am against noxious preparations, but the public should be allowed to buy the other innocent preparations.
Amendment, by leave, withdrawn.
Question proposed: "That Section 65 stand part of the Bill."
There has been a certain amount of uneasiness which, in a somewhat flambuoyant way, Deputy Dillon endeavoured to raise in the Dáil. I was not present, but from the reports I do not think he succeeded in clearing anything up. It is a question as to whether the Minister has any intention of using the powers under this section to differentiate between the different classes of retailers, for a product which is otherwise quite suitable for sale to the public. I sympathise with the Minister when he says that if you are going to look at this from the point of view of the bogey man you will get nowhere. It is true that, under this Bill, a dictator would be able to do anything; but none of us would vote for it if we thought that likely. I hope we will get some assurance that it is not intended to differentiate between different classes of retailer in the sale of preparations which, in themselves, are not considered undesirable.
If I understood Deputy Dillon correctly, he was asking the Minister to interfere in certain business practices by which certain manufacturers will sell only to chemists and not to other distributors. I am not asking for anything of the kind. It would be highly undesirable, except for the purpose of controlling a dangerous or objectionable drug, for the Minister to interfere. I am not at all suggesting that he should do what seemed to me to be suggested in the Dáil. All I am suggesting is that he might give an assurance that he will not distinguish between different types of distributors where he is not of opinion that there should be restriction on the sale of a drug or a proprietary medicine. If it was dangerous it should be prohibited altogether.
Since the introduction of this Bill I was shown a statement in a journal which I think is published largely in the interests of chemists, in which they claim that now is the time to use pressure on the Minister to see that proprietary medicines could only be sold through chemists. I can quite see that prescriptions, even the faith prescriptions which are worrying Sir John Keane and Senator O'Donovan, but which do not worry me much, should only be made up by chemists but where there is a proprietary medicine on sale, the contents of which are published, and with which the Government sees no health grounds on which to interfere, I see no reason why it should be confined solely to chemists.
According to figures that were given to me—and I think they are fairly reliable—there are approximately 280 towns and villages that have a chemist and there are about 890 towns and villages where there are shops that sell proprietary medicines and where there is no chemist. It is reasonably obvious that no Government would restrict the sale to chemists of things in general use unless they considered that those things ought not to be in general use because, if they did so, they would cease to be available for people in many towns. I confess that I do not see very much ground for uneasiness because I cannot conceive of the Ministry using power in that manner but in view of certain claims made outside and in view of the fact that certain retailers who have been in the habit of selling ordinary proprietary medicines, particularly in towns where there is no chemists, have a certain amount of uneasiness, I thought I ought to raise the matter on the section.
The only way in which, if I so wished, I could use influence on behalf of the pharmaceutical chemists would be in the regulations to say they must be prescribed. I think that would be done in certain cases all right—for instance, that penicillin cannot be sold except on a doctor's prescription. It might refer also to some of the sulpha drugs. That is as far as our interference in that trade dispute will go. We could have done that under existing Acts, such as the Therapeutic Substances Act, but it will probably be done under this Act instead. Apart from that, I would like to assure the Senator that I have no intention of interfering between the two branches of the trade.
To my mind, that is a perfectly satisfactory statement on the part of the Minister. Having had an overdose of sulpha drugs and of penicillin, I completely agree that they should be prescribed by the medical profession.
Question put and agreed to.
Sections 66 to 69, inclusive, agreed to.
I move amendment No. 36:—
In sub-section (1), line 18, to delete the words "and shall if the Minister by Order so directs".
In this amendment we get back to something that a plain man can understand. It is simply this: Why not allow the local authority unfettered discretion as to whether they will appoint an assistant medical officer or not? It does seem that you are making these people robots and directing them to sign on the dotted line. As I said the other day, we have all the shop-window aspects of democracy and freedom but in practice—it is very clever how the Government have done it— they have given us complete freedom and yet we are practically a totalitarian system. Here is a local authority not allowed to use its own discretion as to whether it will appoint an assistant medical officer or not. The Minister may like to hear an anecdote. When I was a young person I wanted modern sewerage in our village and there was a meeting attended by the parish priest and the Protestant clergyman protesting against the expense involved. We have moved a long way from that. Now we have moved to the stage when the local authority is not allowed to use its own discretion to have an assistant medical officer or not. I do think we should allow the local authority some discretion. That is the purpose of my amendment.
I do not like Senator Sir John Keane's repeated use of the word "totalitarian."
Yes, I used it and I will use it again.
One might as well compare a local authority with a branch of a bank in a town and say that that branch should appoint an assistant manager on its own authority without the sanction of headquarters. It is the same thing. We are a national entity and each local authority is carrying out the work of the State.
What? The work of the State?
Yes, certainly, and the work of the individual citizens of the State.
That is a different thing.
Senator O'Donovan must be allowed to make his statement.
Surely every citizen who has responsibility in a local authority is a citizen of the State and what applies to him concerns every unit of the State. I think Senator Sir John Keane's argument is comparable with the argument that a bank in a country town should be entitled to appoint its own assistant manager without the authority of headquarters. You must have a central authority using its directive influence. I do not want to argue that the central authority should use the big stick or the iron heel, but I do say that while we are governed by democratically elected Houses of the Oireachtas like this, Senator Sir John Keane should not repeatedly use the word "totalitarian." It sticks. It gets publicity in certain papers. I know that you can say anything here and that the Senator pretty well does, but I am entitled to exercise my voice in protesting against the repeated use of the word "totalitarian" when we know, and I think Senator Sir John Keane knows in his heart, that this is anything but that.
I would like to say a word in support of the amendment. I could not conceive a worse argument against the amendment than that made by Senator Seán O'Donovan when he compares the position of a bank with the local authority. What responsibility have the local people in the control of a bank? None whatever.
The Senator compared two things that are not comparable.
I used an argument which applied to the Senator who used the word "totalitarian".
It did not apply to anybody. There is no comparison between the relations of a branch bank with its headquarters in Dublin and the relations between the local authority, the group of people elected by the citizens to discharge certain obligations to the local people, and the central authority. Of course, the purpose of this small phrase here is not to prevent the local authority appointing an assistant county medical officer if they want to, although the power is there to do it. The Minister need not consent. The real purpose of that is to direct the local authority to appoint two or three assistant county medical officers whether they like it or not or whether they regard it as necessary or not. I feel that it is not going to be used to prevent the local authority doing this although quite conceivably it could be so used. I am with Senator Sir John Keane in this—it does not matter whether Senator O'Donovan is pleased with it or not; it does not matter what term you apply in classifying this particular attitude and this particular approach—all this attitude towards the local authorities is the attitude of the superior to the inferior. Why they should be regarded as inferior and less competent is something that I am always in a difficulty to determine.
It is a position that I do not like. I feel myself that the only hope of strengthening our public health or other services that are related to the lives and wellbeing of our people is by giving the local people a sense of responsibility. A section like this in the Bill, which puts the Ministry in a dominant position, reflects in my opinion a wrong approach to this matter. While that attitude is adopted we can never hope to cultivate that civic sense amongst our people that is requisite if we are to build up a strong community in our local centres. I am convinced that Senator Seán O'Donovan, who is a younger man than either Senator Sir John Keane or myself, will live to regret the day when we approach the solution of our rural problems with that attitude of mind.
Anybody who is in contact with local affairs to-day cannot but be disturbed by the considerable degree of apathy that has prevailed in regard to them during the last 10 or 15 years ago, and definitely within the last 10 years. One has to ask oneself, what is the origin of that? I say that it is to be found in the attitude of the central authority to the local people. I am very strong on this because I dislike it. I think that the central authority will be much stronger if the local people are strong. When you weaken society at its roots the whole central structure is weakened thereby. I know, of course, the Minister will say that what is set out here is the established practice, and that he is only doing what the Oireachtas has authorised him to do over a considerable period. We know that Parliaments in other countries authorised inroads step by step on the authority and rights of the people. They discovered to their cost that that was a wrong method of promoting their people's wellbeing. I support the amendment.
It was with considerable difficulty that I was able to restrain myself from interfering more than once in the debate, but I am afraid that I have come to the end of the tether. It seems to me that Senator Sir John Keane's amendment, if accepted, would strike at the whole principle of the Bill, which is designed to overhaul the public health services. A great deal of the work of overhaul, as well as a great deal of the administrative work must, as we know, fall on the county medical officer of health. If he is not to get assistance it can happen that he will be powerless to do what we expect him to do under the Bill. May I illustrate my point in this way? Put a strong man even to remove a baulk of wood or a stone, and alone he is unable to do it. Give him assistance and there is no difficulty in clearing away the obstacle. This section, if it were altered in the way that Senator Sir John Keane suggests, implies that on occasions a health authority would be able to refuse to give a county medical officer of health the assistance he would need to carry out his duties. Senator Baxter and Senator Sir John Keane, from the way they speak, would have us believe that the whole relation between the Department of Public Health, as we may now refer to it, and the local authorities is something in the nature of the conditions of a cockpit: that there is continual warfare going on. That is not so. I suggest to both Senators that there could quite conceivably arise an occasion when a local authority would stick its heels in the ground and say that, regardless of the public interest, it was not going to provide certain assistance.
Mention was made here this evening of the bogey man that has been appearing through all the discussion. There is no bogey man in what I am suggesting because, from recent experience, we know that something like that has happened, and that serious action had to be taken against a local authority to compel it to fulfil essential public duties and to provide essential public services. It seems to me that this suggested alteration, simple as it looks, would, if it were to be adopted, strike at the very heart of this Bill and would leave it worthless.
My sympathies are always with local authorities. I do not like to see any of their powers taken away, but this matter, I think, is different. The Minister for Health is responsible for the health of the country generally. He has figures and statistics to show what the county medical officer of health and his assistants have to do, as well as what is done in other counties, such as the number of schools, what schools have been examined in different areas and what schools have not been examined. It would take two or three years to examine the number of schools in some counties. That would mean that certain schools would be neglected. I think that, if the expenses that are incurred on the health services of the country are shortened to the extent of having one man less than is required it will mean that the work of the others will be much less effective, and that the saving made by not having that one man would be a foolish attempt at economy. It would mean that money would be flowing out uselessly because the general scheme of the work could not be arranged in such a way as to produce the best results.
The person at headquarters is very often the best judge in a matter of this kind. He knows what other counties of the same size are able to do by having an assistant or two assistants. He will know what the particular county affected could do if a second assistant had been appointed, and he is the best judge really. He can see the matter in a different light from that of the local person who may be inclined to save the extra cost of one more assistant. In this particular instance, I can see no great objection to the words which have been inserted.
I think we will all agree that there is a very big task before us in this country to improve the health services and the health of the people generally. I cannot see how that can be done unless you have co-ordinated action on the part of all the various authorities. We want to get the authorities to carry out this job. They must have the personnel and the personnel must have the knowledge and equipment necessary. As I see it, if one county is to drag behind, a great deal of the work done by the others will be nullified, because in this matter of health, unless all our people, as it were, march together, a lot of the work will go for nothing. Much as Senators might argue against this, I think that the Minister must have power, if necessary, to make a county improve its personnel and improve the methods, etc., that it is adopting for carrying out the health services.
Senator Ó Buachalla mentioned an instance of a public authority recently which refused to appoint a certain officer until they were compelled to do so. That may happen for one reason or another. Possibly, Senators may say that there is good reason for refusing. But, even if there is good reason for refusing, we cannot run the risk of our health services failing because there is some dispute between one county and another county or one county and the Department. I think it would be very difficult to work a scheme of this kind unless the Minister had the ultimate power to see that a proper staff was kept in each county.
The Minister's observations to my mind, beg the whole question. He assumes that, because the central authority may deem it necessary, it is right. In many cases the opinion of a local authority, knowing the facts, may be every bit as good as that of the Minister and his advisers. They may be a little bit slower. They may not think it is necessary to have such a streamdined service. I think that is the test. If it looks uniform and orderly and the number of medical officers has a certain relation to the population, it is a good service. But, if there is any local disparity, any variations due to a difference of local feeling, that is bad. There is no good going on with this. I am in fundamental difference with that general principle.
I only wish Senator O'Donovan would intervene all the time in opposition because he stated my whole case. He compared the State with a bank. I rather think we are moving towards a position in which everyone will be appointed by the Minister. He denies the local authority any say whatever. All the officials of a bank, naturally, are part of the central organisation. That is what I feel the Minister's Department is verging towards. We may very soon reach the time when people will say: "Why bother to have local representatives at all? Why not have the whole thing like a bank and appoint everybody from above?" Probably you would get greater mechanical efficiency and a streamlined service. If you judge efficiency merely by Civil Service standards, it may be better. Senator Baxter asks for something more than that. He wants to have the people educated. You will not get education unless you give responsibility. My idea of totalitarianism does not necessarily imply what continental totalitarianism implies, but what grammatically it does imply, one total organisation from above. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 37:—
In sub-section (1), line 18, after the word "Minister" where that word secondly occurs to insert the words "after consultation with the local health authority".
I do not know whether the Minister's attitude on this will be any different. The circumstances in connection with this section and a number of other sections to which I have similar amendments are different. I hope the Minister will see his way to accept this one. I take it that his line is that there will be consultation. This section states:—
"The council of a county may, with the consent of the Minister, and shall, if the Minister by order so directs, appoint one or more than one assistant county medical officer to assist the county medical officer in the performance of his duties."
The Minister looks at this matter from the point of view of the central authority. I look at it from the point of view of the local people who are concerned about the employment of the person, the work the person is to do, the payment of the person, and the responsibility of the person to the local people. I look at it from the point of view of the person appointed having an appreciation of the fact that he has not been put over the heads of the local people, but rather came there after consultation between the local people and the Minister. I believe it is important to insert this amendment in this and other sections under which there will be directions from the central authority to the local authorities as to what they are to do.
The Minister will tell me that there will be consultation. Under the section there is no obligation to have consultation. The Minister can direct. His direction is fired at the head of the local authority. What do they say? I have listened to them, and even to Government supporters in my county who say more frequently even than people associated with me: "What are we coming here for?" Anyone who reads the local paper will see that. That is their general line: "What power have we? What can we do about this? We have got this order. Let them make the appointment." That is the situation at present in a number of counties.
Anybody who has experience of local authorities will admit that at the moment there is no great political tension in local authorities. They are far enough away, so to speak, from the period of their election to work and act together. But, frequently, you get people on the local authorities who are at sixes and sevens. In my opinion, it is altogether the wrong approach to this whole business of our public health services to have the Minister in the position that he can do this without reference to the local authorities, without communications that will be considered by them.
Frankly, I have not a great deal of patience with local authorities who are quite impossible. I want to see the public health services improved. As far as I am concerned, locally I stand for that, but, as a member of a local authority, I would resent a direction from the Custom House on a matter such as this without proper consultation and without the point of view of the people ultimately concerned being examined and heard. How will you get that point of view? I do not know how the central authority will get the point of view of the local people. They may get a report from the county medical officer of health in a particular case. So far as I can see, the county medical officer of health has practically no responsibility to the local authority. I repeat what I said the other day, that there has been a county medical officer of health in my county for a number of months and I do not know what he looks like. He has never been to a meeting of the county health authority.
I am satisfied that he is. I am satisfied that he is doing his work well, but something more than that is involved. The health of the people and the building up of the health of the people are not matters for a few officials alone. It can only be made secure and raised to a higher level by the consciousness of the necessity of that sort of approach and attitude on the part of the common people. There is need for education and propaganda. How are you to get these by the sending of a communication by the central authority which will be read by the county medical officer, considered by the county manager and sent back to the people in the Custom House?
I do not know how this thing works, but when you can have a position like that in a county, in which a member of a local authority can be so far removed from the people doing the administrative work, is there not something faulty in our methods? I am convinced there is. I could throw my hat at it just as well as other people and might show no more concern, but I do not think we can absolve ourselves in that way. It will be very bad for the future because most of us in the public life of this country got ourselves entangled in the wheels and could not extricate ourselves, but I do not see many volunteers from this generation ready to give their time and their services to the public, and, in a very short time we will have everything run by these few officials.
What happens when we reach that stage? What happens if you get an official working in a district—no matter what he is working at—and nobody in the district, with the exception of the officials with him, is interested in what he does? It is very bad for the morale of the man concerned. I do not know how he is to give good service and I do not know who is to be the judge of that service. I am against all that. I should like to shape things in such a way as to bring the local authority into all these matters, and I say that from experience and from the point of view of one who wants to obstruct no positive progressive step for the improvement of the health of the people and in the hope that we will forge links which will join the people whose needs are to be catered for and the people directing matters from the central authority.
I have great sympathy with the case made by Senator Baxter, but I am very much afraid that his amendment does not assist him in getting what he wants. I think what is proposed is that the county council may, with the consent of the Minister, appoint one or more than one assistant medical officer of health. Then, there is the alternative that, if the Minister, after consultation with the local authority, by Order directs them to make an appointment, they shall do so. I do not see any point in consulting the local authority, if, after the consultation, the Minister may direct them to do something he wants done. In consulting the local authority, the Minister will in fact be consulting the county manager. I do not see where the elected county councillors come into the matter. They do not fix the salary of one person employed by the local authority. They cannot dismiss anybody or discuss the status, appointment or conditions of service of one person employed by the county council. That is entirely the function of the county manager, so that what Senator Baxter is asking here is that, if the county council do not make the appointments, the Minister would be required to consult the county manager, and, having consulted him, direct the county manager to proceed with the appointment of one or more than one assistant medical officer of health. I think that is what is proposed.
This regimenting of local authorities has gone pretty far. It has gone so far that I do not think you will improve it by inserting an amendment of this kind in one section of this Bill. The whole question has to be tackled from another angle. We have to face the question whether we want representative bodies performing the functions of the local authority and directing the manager, or whether we are to have the manager in charge of administration and the county council merely an advisory body. Unless you alter the law under which managers are appointed for the cities and counties, there is not the slightest use in thinking that you are doing anything to confer authority on a local council by inserting an amendment of this kind and I suggest to Senator Baxter that we are merely wasting time in discussing this, because it cannot, even if accepted now by the Minister, be anything more than a gesture.
Suppose the Minister writes to the county manager saying that he is not satisfied with the council's refusal to appoint an assistant medical officer of health and that he proposes within a certain period to direct the appointment of one of these, would that letter not be brought before the local council? I rather think it would, and while I agree that the particular wording may not be satisfactory, if a direction is to come to the local body, it would be better if the local body got notice that the position they were in was that, if they did not do something, a direction would come from Dublin that they would have to do it, but I think that such a letter would normally be read by the county manager for the local body. While it is not perhaps of very practical value, one of Senator Baxter's points seems to be very sound—that we ought to do everything possible to carry the local people with us in our efforts with regard to these public health services, and, if anything in the form of consultation will carry them, it should take place. It is not entirely a matter of what you get done—there is a good deal of importance in the attitude of the mind of the people doing it.
Having listened to Senator Baxter on this section and some other sections in relation to much the same matter, one is more or less inclined to come to the conclusion that he, being a member of a public authority, should know much more about the working of local bodies. He seemed to try to convey to us that, to all intents and purposes, the functions of members of a local authority have been taken from them, absolutely and completely, and that, because of certain restricted powers now transferred to the county manager, council members have no power or authority under the managerial system. That is not so, and I disagree entirely with Senator Duffy when he said that the result of this action of the Minister would be that he would write to the county manager and instruct him to make the appointment. Reference has already been made here to a clash between the Department and a particular county council. If my memory serves me correctly, that clash was not with the county manager. The county manager in that case was prepared, I am sure, to make the appointment, as requested by the Department. It was the county council which refused to make the appointment, and therefore the county council are the responsible body in that case and in this.
Senator Baxter objected to the Minister having this power of directing the county councils, who now are and will be the public health authority, to appoint one or more than one assistant county medical officer of health. This is nothing new; this is no new legislation. In 1925 there was a Public Health Act passed and under that the county councils were ordered by the then Minister for Local Government and Public Health to appoint the first county medical officers of health. Some of us remember that that proposal was not accepted as it might have been by a number of county councils and we know that there were certain local authorities not prepared to undertake their obligations in respect of many matters.
I think Senator Duffy will agree with me that throughout the country it was often found that local authorities were not prepared to solve the housing problem as they should and action had to be taken by the Minister to compel the local authorities—and they were the elected representatives of the people—to carry out schemes in the interest of the welfare of the people. They were not prepared to carry out schemes and the Minister had to compel them. The same trouble arose with another county council that I have in mind. The members were not prepared to maintain the roads as they should be maintained and action was taken by the previous Government to compel them to do so. So it is nothing new to empower the Minister for Health or the Minister for Local Government to direct a county council or board of health to make appointments.
Senator Baxter also said that the medical officer of health has no responsibility to the members of the county council.
A county council may appoint a public health committee and I am sure, if any county councils avail of their powers under the Managerial Act, the county medical officer of health will attend just as the county surveyor attends to account for his part of the work at a county council meeting. I fear sometimes, when I hear so much criticism, particularly from members of local authorities, in relation to the managerial system, that they do not seem to know their powers or the county manager's powers.
I should like the Minister to inform us where the tuberculosis officer comes into this scheme. One would like to know what position he will hold under the scheme that will be prepared.
There has been a very big discussion with reference to local government and county managers and dictators. I should like to point out to Senator Sir John Keane that I am not the first dictator. The old Local Government Board—and Senator Sir John Keane might, perhaps, have more respect for their way of doing things than he has for my way—had their own methods. I was looking up some of their Orders and I observed that in regard to every appointment of a medical officer always this phrase occurs: "as the Local Government Board shall direct or approve." They never left it to the local authority. In 1925—and perhaps Senator Baxter would have more respect for that period——
I would oppose this in 1925 also.
In 1925 a Bill was brought in dealing with county medical officers of health and the Minister took power in these words: "The county council shall appoint...". That was with reference to the county medical officer of health. The Minister had power to compel them to appoint. That went on for ten years. I suppose there was no great dragooning in that, but the county councils took ten years to do the job they were asked to do. They may be just as slow about the appointment of these assistant medical officers.
With regard to Senator Mrs. Concannon's point, the officer in charge of tuberculosis is usually an assistant county medical officer of health, and, under our new scheme, it would be necessary in the fair-sized or bigger counties to have more than one assistant officer, because there will be so many duties to be performed in relation to infectious diseases—tuberculosis in particular—mother and child welfare, and many other things, that it would not be possible for the county medical officer of health to attend to them unless he has more than one assistant.
As regards Senator Baxter's amendment, he anticipated what I was going to say. He knows, and every Senator knows, that no Minister would order the local authority to appoint an officer unless he asked them several times to do so and negotiated and failed to get agreement. Then under the Act he would have to say: "You must do it." What is the purpose of the amendment? It puts the Minister to the trouble of writing an official letter—if he does not do it there will be trouble —which may not mean anything, because he has negotiated in every possible way with the local authority and they have refused and then he comes to the point where he makes up his mind that they have to do it. He writes the official letter and he says: "I will consult you before I go any further."
If Senator Baxter is really serious in desiring better relations and more consultation between the Minister and the local authorities, this amendment will not achieve that purpose. Senator Baxter's amendment would have purely a mechanical effect; the Minister would merely go through the mechanical operation of writing to the local authority asking them for their observations on the appointment of the medical officer. He has then consulted them and he can go ahead. The practice of consultation has operated in the past and I think that practice should continue. It will continue, but not as a result of the speeches of Senator Sir John Keane or Senator Baxter. The Minister and the officials of the Department have always consulted local authorities and will continue to do so.
Amendment put and declared negatived.
Sections 70 and 71 put and agreed to.
Amendment No. 38 not moved.
Section 72 put and agreed to.
Question proposed: "That Section 73 stand part of the Bill."
On the section, I should like to know what exactly is the Minister's view as to the remuneration of medical officers and how will districts be administered in the future. I raised this matter before with reference to the position of the medical officers in small and large districts. Will there be a grading of these districts and in what manner will they be administered? This measure will impose additional labours on a great number of medical officers and there must be a replanning of their districts. Am I to understand from what the Minister said the last day that that is the policy?
Yes, they will have to be replanned. That will be a slow job because it is like dividing a parish. You must wait until the existing man retires. If there is a medical officer who has a small district he may object to increasing it and we will have to respect his objection. There may be certain difficulties about doing it quickly but the idea is to get fairly uniform districts, so far as the work is concerned. There again it will not be altogether a matter of population. We shall have to take the distance a medical officer must travel into account too, and try to come to some sort of factor of distance and population combined. That is as far as districts are concerned where the medical officer is doing the work on his own. I think it will be possible also to devise a scheme in the larger towns to give the medical officer an assistant. In the cities certainly we shall put in assistants. I think the scheme of appointing assistants should prove a good one. They will get a certain amount of training under supervision and will be able to get districts of their own after a time. That is roughly what we have in mind.
Question agreed to.
Amendment No. 39 not moved.
Section 74 agreed to.
Amendment No. 40 not moved.
Question proposed: "That Section 75 stand part of the Bill."
What kind of a qualification will a health officer be expected to have?
These are principally sanitary inspectors.
Question put and agreed to.
Sections 76 to 78, inclusive, agreed to.
I move amendment No. 41:—
In paragraph (d), page 43, lines 6 and 7, to delete all words after the word "necessary" in line 6, to the end of the sub-section.
The House will observe that the purpose of the section is to incorporate in this Bill the provisions of the Land Clauses Acts. That incorporation is effected subject to certain modifications which are set out in paragraphs. I am concerned only with the modifications contained in paragraph (d) which provides that the arbitrator in assessing compensation shall not take into account any building erected or any improvement or alteration made to the land, that is, if the improvement is effected after the date on which the notice of the making of the Compulsory Acquisition Order was published, if in the opinion of the arbitrator, the erection of the building or the making of the improvement was not reasonably necessary and was effected with a view to obtaining or increasing the compensation. The purpose of the amendment is to take out these latter words: "and was effected with a view to to obtaining or increasing compensation." You are putting on the arbitrator the responsibility to decide the motive which actuated the owner of the land in erecting a building or in effecting what he describes as an improvement. How is the arbitrator to determine the motive?
Let us relate that to a case which is known to many members of the House. The Dublin Corporation years ago planned the making of a road on the north side of Dublin. It was to be one of the principal roads planned by the corporation running almost half-way around the City of Dublin in a half-circle on the north side. A certain gentleman disliked the corporation and everything they did and, having made up his mind that he was going to thwart them, he built three houses mid-way across the centre of the proposed roadway. In other words, half-way through, where this new road was being planned by the corporation, a crusty old boyo starts and builds three houses. They are there still. This magnificent job planned by the Corporation of Dublin 25 years ago has been held up. Their efforts to build a magnificent boulevard on the north side was frustrated by this gentleman. Because he decided he would not let them pass through his land, he built three houses. This gentleman, presumably, could show that he built the houses for the purpose of improving the land. The building has improved the selling value of the land because the ground rents, I suppose, would be worth £10 or £15 each. That is obviously a case where this gentleman would be claiming compensation arising out of the efforts of the corporation to provide amenities for the citizens. I suggest it is really opening the way to blackmail to compel the arbitrator to have regard to a claim by the owner of the land that these buildings were not only reasonably necessary but that they were not effected for the purpose of increasing compensation. I do not think the arbitrator should have the right to decide what purpose they were erected for. Once he decides that they were not reasonably necessary, compensation should be determined on that basis.
I do not know why Senator Duffy would wish to leave anything out of the sub-section unless he wished to assist people, like the man he mentioned, who would erect buildings after they got notice of the intention to acquire the property. What worries me about this section and practically all this Part of the Bill is that it seems to be more or less the same as the powers given in the 1939 Act to public assistance authorities to acquire land. Could not all this be covered by one clause saying that the health authorities shall have the same powers as are given in the 1939 Act to public assistance authorities?
Senator O'Dea is right, of course, but we are trying, as far as we possibly can, to consolidate the Health Acts by wiping out these small Acts here and there. That is the explanation for re-enacting the provisions of these Acts. The very same words are used in the Public Assistance Act of 1939 and again in the Mental Treatment Act of 1945. Although I see the force of Senator Duffy's argument I do not like the idea of changing this paragraph without at least finding out what would be the effect of deleting these words and leaving the remainder of the paragraph. I do not think a thing such as was outlined by the Senator could occur at the present time. At least in most parts, where the Town Planning Act is in operation, it could not occur.
I am satisfied if the Minister will have the matter examined. The case to which I referred is known to a number of people. It is an outstanding disgrace that it should be permitted.
The Town and Regional Planning Act was not passed at that time.
Amendment, by leave, withdrawn.
Sections 79 to 81 agreed to.
I move amendment No. 42:—
In sub-section (1), page 44, line 15, to delete the words "a newspaper" and substitute the words "two newspapers".
In this case, I am merely asking the Minister to follow his usual practice. During the last two days, the Minister has frequently reminded us of what the British Government put into their legislation 70 years ago and what he and his predecessors of the past 25 years have been putting into Bills. I refer now to Section 135 of the Harbours Act, 1946, in which the provision I am asking for is inserted. It is provided in that Act that notice be published in two newspapers and I do not see why the practice should be departed from in this case.
I should be strongly against publication in two newspapers. Notice has to be sent to the owner, or reputed owner, or lessee, and so forth. Then, you publish a notice. You are asked to publish a second notice. The expense to the local authority of publishing these notices is very great and I should be against the publication of the second notice.
There might be only one paper in a district. I understand that, where provision for publication in one newspaper is made, you can legally publish the notice in more than one paper if you like. In Wexford, I am sure that the notices are published in the three papers.
The majority of Senators on the Front Government Bench know that in the County Galway there are four or five papers. I saw a return by a Government Department showing the amount of money expended on advertising in certain newspapers in that county and the circulation of the papers. One of these newspapers in Galway has a circulation of about 25,000 and another has a circulation of about 1,100. I should be very disappointed if the notice in this case were published in a newspaper with a circulation of 1,100 and the paper with a circulation of 25,000 omitted. In the City of Kilkenny, there are two newspapers, one having four times the circulation of the other. Yet, Government notices were published in the newspaper with the smaller circulation and not published in the other newspaper.
If the amendment were accepted, this portion of the Act could not apply to County Longford because there is only one newspaper circulating in the functional area.
I am not referring to papers printed in the functional area but to papers circulating in it.
There is only one paper circulating there. TheLeader circulates in the whole of Longford. The Roscommon Herald has a circulation in the south of County Longford but not in the north.
The local body should be in a position to advertise in one paper or, if they think fit, in two papers or even in three. I should not bind them to advertise in two papers and I should not so circumscribe them as to compel them to advertise in only one newspaper. If the provision enables the local authority to advertise in more newspapers than one, if they so desire, I think it is satisfactory.
I am told that that is the legal meaning of it.
Amendment, by leave, withdrawn.
Sections 82 and 83 agreed to.
Amendment No. 43 not moved.
Sections 84 to 92 agreed to.
I move amendment No. 44:—
In sub-section (3), page 48, line 7, to delete the words "twenty-four" and substitute the word "twelve".
This amendment has relation to the detention of a person in a Garda station. Power is conferred on the Garda to detain a person who is apprehended under the section for a period of 24 hours. Unless there are compelling reasons for providing for that period in the case of a person against whom no Order has been made, I think it should not remain in the Bill. Imagine this happening in a rural area in County Longford where some person is suspected of being a carrier of infectious disease. If he is arrested, on the instruction of a doctor, power is conferred by this Bill to detain him for 24 hours. That seems entirely unreasonable unless provision is made to have him brought before a peace commissioner or a district justice. I do not think that a citizen in such a case should be detained for a longer period than 24 hours.
This is one of those sections which will be very seldom used. Where it will be necessary to use power of this kind, it is probable that there will be a very serious situation. It is conceivable that it would be impossible to verify the information within 12 hours. A person might be taken in very late in the evening and it might not be possible to get in touch with a neighbouring Garda station. This is one of those powers which will be used only in very grave circumstances and we should not make it ineffective by making the period too short.
What sort of evidence would be "corroborative evidence" of one's name and address?
If a man who is riding a bicycle without a light is asked to give his correct name and address and does not give them, I do not know what happens.
They bring him to the station.
In this case, if he gave a name and address, they would try to get in touch with a neighbouring station to verify the information.
Amendment, by leave, withdrawn.
Section 93 agreed to.
I move amendment No. 45:—
In sub-section (2), page 48, line 37, after the word "unless" to insert the following words:—
"(a) he is in a uniform provided for use by him when performing his duties, or (b)"
In this case, I think there has been an oversight. That is, unless I entirely misunderstand the provision. Something similar is provided for in Section 93. That section empowers the Garda to take action. It sets out: "An authorised officer (other than a manager or a chief medical officer) shall not make a requirement—that is, to state name and address—under this section unless either—(a) he is in a uniform provided for use by him when performing his duties, or (b) he produces, for inspection by the person on whom he makes the requirement... the appropriate written authority given to him by the Minister or the health authority...."
When you come to Section 94, which gives the right of entry, there is a departure from the usual practice because under sub-section (2) it is provided that an authorised officer, other than a manager or a chief medical officer, shall not be entitled to enter any premises unless he produces for inspection a written authority to do so. It seems to me that the requirements in Section 93 should be carried into Section 94 so as to make the two sections correspond.
I did not know exactly what the Senator had in mind until now. At least, it did not strike me that the two sections did not correspond. There will be men like sanitary inspectors in uniform. It will not be a very distinctive uniform. This deals with the case where they enter premises and is to ensure that there will be no mistake made by the person who is going to throw them out. I think the amendment suggested by the Senator would not be advisable. I do not think it is any great harship, where they have to go to the extent of entering premises, that they should have a signed authority to do so either from the manager or a chief medical officer.
This section empowers an authorised officer, other than a manager or a chief medical officer, to enter certain premises, provided he produces for inspection his appointment in writing. When we turn back to Section 91 we find there a definition of an authorised officer. There are six classes of authorised officers mentioned. Four of these classes of officers must be appointed in writing. In the case of the other two officers, namely the manager of the health authority and the chief medical officer, their appointment in writing is not mentioned. These two classes of officers are excluded under this section, and, therefore, neither the manager nor the chief medical officer can enter any premises. It is only the authorised officer who can do so, and he has his appointment in writing. Therefore, I think it is sufficient if such authorised officer produces his appointment in writing. I do not think there is any value in having an authorised officer in uniform, because I do not know what kind of uniform would be appropriate to such officer as is mentioned in paragraph (a) of Section 91. The uniform of the officer of the Minister for Agriculture, under paragraph (b) of the section, may be a different class of uniform from that of the officer of the Minister for Health.
If the Senator refers to sub-section (2) of Section 93 he will find that the same phrase is used—"an authorised officer".
That is an authorised officer other than a manager or a chief medical officer. That is a more extreme case.
What about the uniform? Will the Senator tell us something about the uniform of the officer of the Minister for Agriculture.
An authorised officer, before he can, so to speak, approach a person for his name and address, must be in uniform. I do not think that entering premises is as summary a method as stopping a man in the street. I think it is sufficient, before you enter a house, to produce your authority. It may be a different matter to approach a man in the street. In all events, it is sufficient for the purpose of entering premises that you should produce your authority.
I am afraid I cannot accept any of the versions of this section given by Senator Ryan. He is wrong, in my submission, in saying that the manager or a chief medical officer cannot enter premises. As I understand it, under sub-section (2) of Section 94 it is provided that a manager or a chief medical officer may enter premises without written authority and without being in uniform. That is the way I read the section. I also read Section 91 in this way: that any officer mentioned there may enter premises without a uniform, but not one of these officers is entitled to hold a man up on the street and ask him for his name and address unless he is in uniform or has written authority for the purpose. I think it is more important that a person should be in uniform going into a private house than that he should be in uniform for the purpose of accosting him in the street.
If I am walking along a country road and somebody stops me and asks: "What is your name and address?", I may be very polite to him or I may not; but if he shows he has authority I probably would feel under an obligation to give him an answer to his question. If he is in uniform, I know that he has some authority to question me, but, apparently, Senator Ryan thinks it is not necessary that there should be any badge or any sign to tell me that the fellow knocking at the front door is all right. I have got to let him in, and will be guilty of an offence if I do not. When he gets in he probably has a bogus authority to produce.
I think it is more satisfactory that, when an officer enters a private house, he should produce the written authority of his appointment than appear at the hall door in uniform. Anybody can wear a uniform. A burglar, for example, could procure a uniform and say that he was an authorised officer for the purpose of entering. There might be only a maid in the house, and he could go in and commit a burglary. It should be noted that, under sub-section (2) of Section 93, the wearing of uniform is an alternative to the production of his authority. Now, in this case it is required that he must produce his authority. I say that is a greater safeguard than the mere wearing of a uniform. I think myself that it is in the interests of householders that a more certain form of authority should be employed when a private house is being entered than the mere wearing of a uniform. How can the ordinary householder know what is the proper form of uniform of an authorised officer who goes to his house for the purpose of making an examination of the premises?
How would the householder know the proper form?
He could read the written authority. The form of authority will be prescribed by regulation.
He may not be able to read.
If we take the public at large, I would ask Senator Duffy whether they would prefer to see coming to their doors men in uniform to carry out the work under the public health authority or a private person with a private authorisation to carry it out in the home.
Amendment, by leave, withdrawn.
Question proposed: "That Section 94 stand part of the Bill."
Why is the manager or the chief medical officer of health not to produce some evidence as to who he is? All the people in the area do not know the manager by sight and could not possibly do so. His photograph does not appear in the paper as often as the Minister's.
I would like the Minister to look back on the section where he finds it necessary to define the word "premises", where he calls it a temporary dwelling. In this case, it includes a temporary dwelling and an aircraft. I am not convinced that the Minister has his book just right up-to-date and I ask him to look into it for the next Stage.
How is an ordinary person to know the manager?
What can we do about it? If I put in something to say that I must authorise the manager, Senator Sir John Keane will not be satisfied.
I do not see why the manager and the medical officer of health should not carry a card of identification, the same as a Gárda in plain clothes. If the medical officer of health or county manager in Kildare went to 50 per cent. of the people there, they would not know who he was and they would not have the faintest chance of knowing whether it was the correct man or an impostor. It would be quite easy to arrange that he produce a card of identification.
Question put and agreed to.
Section 95 agreed to.
I move amendment No, 46:—
In sub-section (2) to delete paragraph (c).
The regulations are to determine that certain payments will be made by the local authority to the Minister for Justice. Briefly, my view about it is that all the authority in this matter is being taken by the State and the State ought to pay for the carrying out of this duty by the officers of the law. I quite realise that at present the law is that certain payments have to be made by the local authority to the Department of Justice but we must presume that the number of prosecutions under this Bill will be ten times the present number of prosecutions. The cost may be a very considerable addition to local expenditure and in my judgment the local rates ought not to be burdened with this form of administration.
The local authorities will have to prosecute and will have to pay for the prosecutions while they have very little power in the matter and I submit that the proposal to eliminate (c) and (d) should be accepted by the Minister. I do not know whether any estimate can be made as to the probable cost of this to the local authority in a financial year but, on principle, the local authority should not be burdened with the responsibility.
The matter that is sought to be covered is food and drugs, for which the Guards have always been paid by the local authority. It is not intended to go further than that and I think the Senator will believe me when I say that, seeing the Minister will have to pay all the expenses, as I pointed out already, he will try to keep them down as much as possible.
In other words, it is clear that this cost will not fall on the local rates?
Except in respect of food and drugs, for which they pay already.
Amendment, by leave, withdrawn.
Amendment No. 47 not moved.
Sections 96 and 97 agreed to.
Question proposed: "That Section 98 stand part of the Bill."
What is the meaning of "practical experience or special knowledge"? It has been proved in the case of this House to have no meaning whatever.
Does the Senator mean by the constitution of the House?
Yes. As the Minister is aware, it has baffled successive committees and is baffling everybody to state whether a person has or has not practical experience or special knowledge.
I would like to say that I think one of the most important sections of the Bill is the proposal to establish a National Health Council. The Minister's record with regard to consultative councils is not too bad, in spite of what Senator Sir John Keane said about him, but the records of some of his colleagues in that particular matter are not too good. It is a sign of grace that the Minister should contemplate establishing a National Health Council but he has left himself an extremely free hand with regard to the method of the constitution of this council and the personnel of it and the particular functions and powers, if any, that it should possess. No one has suggested any amendments which would give that council any statutory functions but it would be helpful if the Minister would here and now give some indication of the kind of people he proposes to ask to join this National Health Council and the kind of functions that he hopes the council will be able to perform. In particular, I would like to feel certain that the Minister would consider the claims of the various universities and medical colleges in connection with a matter of such importance as national health, in connection with which they have highly specialised knowledge. I hope the Minister will be able to add to our information on these matters in the course of his remarks on the section.
I should like to draw the Minister's attention to the name of the council. This is a health Bill. It is not a public health Bill. Therefore, it would lessen confusion if the council were called the Health Council. The inclusion of the word "national" is not necessary. We have a National Health Society and there might be confusion. The title Health Council would be sufficient because it is bound to be national.
I have given some consideration to the constitution of this National Health Council. There will be, first of all, a number of medical men on it and then the allied professions, like dentists, pharmacists, nurses, veterinary surgeons. I do not know who else, except that I would like to have administrators on it.
What about bacteriologists?
They will be included in medical men.
I think you will have to get bacteriologists from the universities. The ordinary medical practitioner is not a specialist in bacteriology.
I would like very much if I could get the council appointed as far as possible on anex officio basis so that I would not have the selection exactly. I do not know if that is altogether possible. I think we should have administrators, laymen, say, members of county councils. I dare say we could get them selected by the General Council of County Councils or some body of that kind. That is how it will be constituted. It is called the National Health Council because it is possible that we may have regional councils and local councils in time to come. That is why the word “national” is put in, so that it would be a distinctive body.
Question put and agreed to.
I move amendment No. 48:—
Before Section 99 to insert the following new section:—
99.—(1) The National Health Council shall make an annual report to the Minister on their proceedings and the Minister shall as soon as may be lay such report before each House of the Oireachtas with such comments (if any) as he thinks fit.
(2) If the Minister, after consultation with the National Health Council is satisfied that it would be contrary to the public interest to lay before each House of the Oireachtas any annual report of the National Health Council or any particular part thereof he may refrain from so laying that report or that part as the case may be.
I am endeavouring in this amendment to secure that the National Health Council will submit an annual report to the Minister and that the Minister will lay the report before both Houses of the Oireachtas with such comments as he thinks fit. I am making a reservation that where the Minister, after consultation with the National Health Council, is satisfied that it would be contrary to the public interest to table the report, the obligation will not lie. If we are to have regard to the publicity value of the work of the National Health Council and the likelihood that its work will influence public opinion, it seems to me that the report of its proceedings would be of tremendous value if tabled in the House so that members would have an opportunity of reading it and so that it would be brought to the attention of the Government. I feel quite sure that the Minister would regard the functions of this council as being of great importance in the task that must be undertaken when this Bill becomes fully operative and when the regulations made under it are effective. I think he will agree that the method suggested in this amendment of concentrating attention on what is being done under the Bill is probably the most effective method that can be devised.
This will be an expert body, considering all aspects of the nation's health and advising the Minister on action which is called for under the Bill. I feel sure that the members of the House would be glad to be assured that the report will be, not merely published, but tabled in the House so that it will take on an official character.
I am afraid I have not the same conception of this council as the Senator has. Remember, it is purely an advisory council and I have stated here, I think more than once since we started this Committee Stage, that I expect it will meet, at least for the first year, every two or three months. I hope every two months, if they can find time to do it. But, they are an advisory council. We will discuss certain matters at that council. Some members will express one view; others another. My practice at these councils usually has been to try to sum up, if at all possible, the consensus of opinion on a particular matter. You do not take a vote because you are talking about a particular subject where it is not a question of "yes" or "no" but where some will hold a very strong view, others will go 80 per cent. of the way, others 50 per cent., and so on. At the end of the discussion I try to sum up the consensus of opinion and, so far, I have always been able to say "and I agree with that" but, some time or other, I might have to say: "I do not agree with it." If meetings are conducted in that way—four or six meetings in the year—I do not see what annual report you could publish except a verbatim account of what took place. An annual report saying: "We decided so and so" would be useless. An annual report giving the opinions of all the members on various subjects would be a very big document to compile and might, and probably would, lead to a certain amount of dissatisfaction because I am sure the gentlemen would say they were wrongly quoted, that did not represent exactly their views that it should be put in another way. I see great difficulties in drawing up an annual report of that kind. I would make this plea, in conclusion: this National Council is a very experimental business. I believe it will be successful, but I think that we ought not to make too many rules or regulations or to prescribe rigid procedure.
We ought to meet fairly informally, discuss matters and get the consensus of opinion amongst them and then proceed in whatever matter we are discussing to implement the regulations, or whatever they may be. I was presented with the same amendment in the Dáil. I think I persuaded the Dáil in the end to withdraw it. Let us give this council at least a couple of years' trial. After that experience we might be able, when bringing in some other Bill, to make some more precise regulations with regard to the functions and powers of this council.
I could conceive this council being somewhat different in this way. I thought I could see the Minister consulting the council in relation to, let us say, the problem of compulsory vaccination. I could visualise the council considering the implications of that question. In the course of the consideration of the matter, information would be collected regarding the incidence of the disease in other countries, its absence in this country, the causes for its absence, and the danger, if there are dangers, of its reappearance.
I could see the case being argued in such a way that whether it meant a majority decision or not or a uniform decision of the council a document emerging as part of the council's report to the Minister would convince the reader that the matter had been examined from every conceivable angle and that there were compelling reasons for the action taken by the Minister, whether that action was to abandon compulsory vaccination or whether it was to continue compulsory vaccination. I still think the council can have a great educational value. I rule out altogether the idea that there would be a report of the proceedings of a meeting, as such. I do not contemplate that. It would be of no value to the public if we had a verbatim report of the discussion between the Minister and the council. The arguments used might very frequently be technical arguments. On the other hand, a report containing a number of sections—one, as I mentioned already, dealing with compulsory vaccination and another dealing with, let us say, the definition of infectious diseases— would be of tremendous importance and, I think, of great educational value also.
In fact, is the Minister going to consult this council with regard, let us say, to portion of Section 99 and is he going to consult them with regard to the making of certain types of regulations? If these matters come up for discussion in either House the Minister will be constantly asked whether he has consulted the council. In that way the proceedings of the council will, to some extent, become public. Is that not so? It would not be necessary for the Minister to disclose everything, of course.
The argument of the Minister which made the most impression upon me was his final argument that the council is an experiment, that it is highly desirable that it should be allowed to experiment, and that it should not be entangled in too many rules at the very beginning. The argument in favour of the amendment seems to me to be that the more knowledge we can get about this the better. It would be desirable if we could have a report which would show the progress which is being made and upon what matters the council has been consulted. I can see the Minister's view—and, after all, no other view but the Minister's view can be made operative — that a report would be difficult. He has made clear the point that, after experience of the working of the council for some years, he may bring in a provision in some other legislation that there would be a report. I think there is more in the Minister's argument that the council is an experiment which should be let work without rules than in anything else he has said.
I am afraid that Senator Duffy has in mind that this council would draw up a report itself. I think the Senator has in mind something more on the style of a commission. Take, for instance, the regulations in connection with mother and child welfare. As I visualise this motion we will send out to them and say: "We want you to come along in ten or 14 days." We could not meet for more than a day—I could, but they could not. It would be a rather up-and-down discussion, haphazard on some things, there might be delay on other things, and to report on it would be impossible. The Senator admits that.
I do not think they would have any time to draw up a report, let us say, why they think vaccination for smallpox should be continued, or immunisation against diphtheria should be extended. I am afraid that would be a matter for a specialised commission. If the council think there is a necessity for that they could say: "We would like a sub-committee", and I would be delighted.
I wonder if the Minister knows, too, the practice that obtains at most international conferences whereby a report is taken——
——and at the end of the discussion a document is drawn up as we would draw up a minute——
——often covering 10,000 words. Could that be visualised as emerging from the work of the council even in the narrow sphere in which the Minister thinks they work?
Certainly. If the council think that would be desirable, I would do everything possible to facilitate them.
Will there not be a record of these discussions?
There will. They will, however, be more in the nature of minutes.
I take it there is nothing in the section as it is to prevent——
——the doing of what Senator Duffy wants done, if it should be regarded as a matter that ought to be done. I think there is a great deal to be said about the necessity for the views of these people being made public. I think they would have a psychological effect. There may be controversies about regulations. Attempts may be made to alter, to amend, or to reverse regulations that the Minister introduces. A good deal of that—some of it anyhow—may arise from lack of knowledge. In my opinion it would be terribly important that the views of the technicians, so to speak, should be made public. I see the point which was made by the Minister, and which was stressed by Senator Hayes, that we might tie people up, to a certain extent, in the beginning if everything discussed was going to be published, and so on. However, there is no person in the country more competent to handle a group of people like that than the present Minister. I have seen him in action many times. He can manage to balance things very well indeed and he can bring a group of people together when on other occasions, not two of them could be got to agree.
I believe that a group of people like this would be a tremendous instrument in the hands of the Minister if he could devise some plan whereby the trend of thought of these people could be published. I know that it may be difficult but I do think that Senator Duffy's point about a minute could easily be done. I presume no minute will be recorded without an opportunity being given to those who were "minuted," so to speak, to look over and see that they are correctly reported to ensure that it is an accurate record. In that way there will be records, and it might be very desirable to have portions of these determined by a committee of the consultative council itself, made available in some documents. I believe that the smoothness with which this whole measure will be made operate will be very much determined by the use of this representative council, by the way it transacts its job, and by the way it advises the Minister, and I think that the public should be made aware of the advice given so that the layman, like myself, may know what the advice of the experts was.
I do not intend to press the amendment, but I should like to point out that under the National Health Service Act in Great Britain I observe that there is an advisory body —the Central Health Service Council —with standing committees of experts on particular subjects and that provision is made in the Act for the publication of their reports. That council is appointed by the Minister for his own guidance on professional and technical issues arising out of his work. I take it that that corresponds with what the Minister has in mind. Still, provision is made for the publication of reports. I am not pressing that beyond directing attention to it. Do I understand that the Minister will publish an annual report of his own?
Yes, a report will be published by the Department.
Amendment, by leave, withdrawn.
I move amendment No. 49:—
In sub-section (2), line 33, to delete the words "may by Order direct" and insert in lieu the words "shall confer with and advise".
This is my swan song and I approach it with feelings of despondency. It is my final effort to get a little humanity into the whole business. There cannot be much danger in letting the local authorities have a slight say in the matter. It is a question of education and the means of education. The section says that information and advice on matters relating to health may be disseminated by advertisements, notices, pamphlets, lectures, radio, cinema exhibitions or any other means. There must be a great variety of methods involved in all that. Yet the health authorities, so far as I can see, are to be tied hand and foot by a lot of official regulations and memoranda as to how they will do this. Is it not conceivable that the Minister should say to the local authorities: "Do this thing as you thing best"? there are a hundred and one ways of doing it. There might be a travelling cinema or a motor with a loud speaker. Does the Minister conceive that it is possible to give directions as to all these matters? Would it not be a good idea to let the local authorities experiment themselves? There might be garden parties held to which speakers from Dublin and other centres would be invited. Unless this amendment is accepted, the dead-hand of officialdom will be over the whole business. I am hoping that this concession will be made, that, instead of directing the local authorities by order, the Minister shall confer with and advise the local authorities and that the local authorities will be guided by such advice. That is my approach to it and I implore the Minister to accept it.
I am very sorry that I have to disagree with Senator Sir John Keane in this instance. In this matter of propaganda, advice and so on, I am afraid that we will have to prevent certain things being disseminated that might be harmful. We might also have to arrange for the local authorities to co-ordinate in disseminating advice of any kind. Let us take an example. The County Wexford has been very much opposed to vaccination against smallpox. If the other 25 counties were to point out to the public generally the benefits of vaccination against smallpox and County Wexford were to point out the harmful effects of vaccination, it would be a very bad thing. They might not be guided by the Minister in that case if I were to accept the amendment. All I can say is that, generally speaking, the local authorities will not be interfered with in the type of advertisement they select or the way they want to do their advertising. But, if they should go very much off the straight road that is being followed by the country generally, then I think it would be the duty of the Minister to step in and prevent anything that might be considered to be harmful.
May I give this much consolation to Senator Sir John Keane? As I read the section, the Minister has power to direct the health authorities with regard to the subjects which they have to deal with; to direct them as to the manner in which they will deal with these subjects, but not with regard to the matter.
That is to say, that any county medical officer of health may present the matter after his own fashion.
If that were not so, the power assumed by the Minister would be immense. The Minister is merely prescribing in this, I take it, the subjects to be dealt with, the manner in which they will be dealt with, by lecture, radio, cinema and so on, but he is not necessarily prescribing the matter itself.
There is, of course, immense power in this section for a Minister if he so desires. For example, there are certain matters about which the overwhelming majority in this country have certain views but, presumably, these matters will not be dealt with. They are matters for the family and not for the local authority But, particularly, I want it to be made clear that the Minister will not prescribe what precisely the local authority is to say in this dissemination of information. Is that correct?
I may be stupid, but I am not satisfied. I do not see any possibility of the local authority indulging in propaganda against the advice of the Minister.
They will be guided by such advice. This means that the Minister can stop them. There is reluctance to trust the local authority. The Department think they know better. That is what I object to. In the long run, I do not think they know better than the local people. They all come from the same source, and I think it is just six of one and half-a-dozen of another as to which is right.
Perhaps under this section Dean Swift would not be permitted to write his pamphlet encouraging people to cook and eat babies because they were too poor to feed them. Perhaps I am wrong; I may be over-estimating the power of the Minister in regard to it.
Amendment, by leave, withdrawn.
Section put and agreed to.
Amendment No. 50 not moved.
I move amendment No. 51:—
Before Section 100 to insert the following new section:
Without prejudice to the powers and duties conferred or imposed on the Minister by any other Act, the Minister may under this section conduct or assist by grants or otherwise any person to conduct research into any matter or matters relating to the causation, prevention, diagnosis or treatment of illness of mental defectiveness.
I am trying to confer on the Minister power which I think he has not got; to confer on him the power to assist by grants or otherwise any person to conduct research into any matter or matters relating to the causation, prevention, diagnosis or treatment of illness or mental defectiveness. I know that the Minister has power to spend money on research work. I do not know that he has power to make grants to other persons engaged in research of this kind and it appears to me that that power ought to be conferred on the Minister. There are certain institutions in the country in which research is being carried out and, in some cases, I think private hospitals——
Under a research grant committee.
Work is being done in Portrane by Dr. Dunne which is not assisted from any source. It is purely a matter of the doctor's personal interest in the work.
I have in mind matters of that kind where enthusiastic people attached to institutions would be willing to do research work in relation to patients with whom they are concerned. I desire that the Minister should have power to aid them, if he thinks fit.
I entirely agree with the idea in the amendment, but I think the Minister has power.
There is, as a matter of fact, money provided in the Estimate for research. We must get it through the Dáil, but there is power to make grants and we do assist the Medical Research Council. There is power also under the Hospitals Act to spend some of the money in the Hospitals Trust Fund on research, and part of that also goes to the Medical Research Council. We have adopted the policy so far of doing all our research through that council, but we are not bound to do it. It is better, however, that it should be done through one body of that kind, because it is more co-ordinated and they can keep track of it better. I have all the power the Senator wants to give me.
Amendment, by leave, withdrawn.
Question proposed: "That Section 100 stand part of the Bill."
I want to give notice that I intend to raise again on Report the question raised on Section 58 with regard to the certificate being evidence.
Question put and agreed to.
Section 101 agreed to.
Question proposed: "That Section 102 stand part of the Bill."
This is one of the most important features of the whole measure. Home nursing to a partial extent is being carried out at present, but to extend it in any proper manner involves a complete overhaul of the dispensary system about which we have been told nothing, although I mentioned on Second Reading that the dispensary system was the foundation of the public health service. It is totally inadequate in the towns and could be very much improved in the counties. Such home nursing as is done is largely in the hands of a voluntary organisation. We need not bother about the title of that organisation. Some Senators may not like it, but the title can be changed. I have been told, although I have not been authorised to speak on behalf of the organisation, that the Minister would find no difficulty in getting a more appropriate title if the question of the title were the only difficulty.
Is this an illegal organisation?
No. It is a body which has rendered yeoman service to the cause of health and it is an example of the best method by which this sort of work should be done. It is done by voluntary committees, on which all classes of the community—I am speaking for my own district, but I have every reason to believe it is typical—are represented. The clergy of all denominations are generally on the committees and there are local collectors. There is all that spirit which I have been trying to get all along in my attitude towards local affairs—the human approach. Here you have by means of this home nursing a voluntary committee getting in touch with all the necessitous cases and getting to know not merely those cases, but almost their personal problems. It is the most valuable human agency one can conceive.
There is a very considerable fear that, not to-morrow but in the course of time, this voluntary body, owing to lack of sympathy, lack of funds and possibly a diversion of some of the grants which they get at present, will be squeezed out and that we shall get in its place a sort of regulated, regimented Civil Service body with rules and regulations —the kind of body which delights the heart of the official. It will be all well under control. There will be no cranky individuals on local committees to bother about—thefiat will go forth that the thing be done. If that voluntary organisation goes, you lose the most valuable human agency there is in the country for getting into the homes and enlisting the sympathy of the people. I hope the Minister in his home nursing will work in close association with this body—practically the only body in the field—and will realise that home nursing requires an essentially different training from that required by hospital nursing, although they have a great deal in common, to enable these people to go into poor homes, to improvise and to work with appliances of the most primitive kind, while, at the same time having the kind of approach to the people which is most important.
There is, then, this organisation which has experience—long years of experience. Three generations of our family have been connected with it. It has a long experience of the right approach to this very essential service, and I am very much afraid that, even though the Minister now is well-intentioned, in the course of time, this desire for official steam-rolling will come along and it will all be harnessed to regulations, files and Orders and all that essential local application will be lost. I hope the Minister will be able to give an assurance that he is fully sympathetic and intends to use as far as possible the services of the existing organisation.
Lest there might be any misunderstanding, I should like to correct an impression which, I am sure, Senator Sir John Keane does not mean to convey, that those of us who are associated with local authorities do not fully appreciate the work done by nurses of this organisation. I presume the Senator refers to the Jubilee nurses. It is a voluntary organisation doing very good work and that work is fully appreciated by us. I know that my urban council makes an annual contribution from the rates to their funds and I know that that is also true of the urban district of Athlone and of the county council of which I am a member. There is an annual contribution towards that organisation and we have overcome our, if you like, repugnance to the name, because we fully appreciate the good work being done. Senator Sir John Keane may have given the impression to members of the House that it is existing solely on voluntary subscriptions. The position is that the local authorities make substantial contributions to the funds of the Jubilee nurses.
I think that is a most important statement from Senator Hearne and it will do a great deal of good; it agrees entirely with the evidence I have had. I have had a certain amount of contact with nursing organisations and I am aware that they get grants of the type described all over the country. I believe their work is fully appreciated. I have hardly ever heard a word said against it. They have a very valuable nursing staff and, in view of the experience they have gained, I do not believe any Minister in his senses would do otherwise than encourage that organisation.
As one who has been in touch with the Jubilee nursing scheme for very many years, I wholeheartedly endorse the tribute paid to its work by Senator Sir John Keane and Senator Hearne. In my particular area we have had one of those nurses for the last 30 years or so and her work has been very much appreciated. She goes into homes that would seldom be touched by doctors. She has the confidence of the people and her services are generally appreciated throughout the county, so much so that applications have come from other areas for a Jubilee nurse. The people in my area, the poorer classes, co-operate wholeheartedly and I think it would be a great pity if that system would be interfered with. As Senator Sir John Keane has pointed out, this organisation has approached the question of home nursing in a very humane way. Those nurses are very much appreciated in various districts; the people like them and it would be a pity to interfere with a system that is doing such very good work.
Mr. Patrick O'Reilly
I should like to point out that there are areas where services are not given by the Jubilee nursing association.
Mr. Patrick O'Reilly
In my county there is no service at all and I have often thought that that is a pity. There are areas where the services of a Jubilee nurse amongst the poorer people would be very much appreciated. On the other hand, there are areas relatively not so poor and I am sure there are people there also who would appreciate such a nursing serice. I think it is a tragedy that we have not some such nursing service in Leitrim. I am aware that the dispensary districts are what one might term stone-age as they are at present constituted and they should be reorganised. Something like that should be done by the local authorities in my county. In the administration of this measure it will be necessary for the local authorities to provide adequate services. Even allowing for the fine work done by the Jubilee nursing association, it is obvious that there is a need of an effective home-nursing scheme. That should be supplied directly by the local authority, possibly in co-ordination with the Jubilee nursing organisation.
Like everybody else, I appreciate the work done by the nurses in that organisation. I intend to meet representatives of the organisation amongst others as soon as regulations are laid down under this measure; we shall certainly seek their co-operation. So far as I can see, we want every nurse who is available in this country, for our lifetime anyway.
I appreciate the Minister's attitude and I fully recognise—I may have not said it in my original statement—the help that has been given and the sympathy that has been accorded to the nurses by the various local authorities. It is because I fear that local authorities will be increasingly submerged by central direction that I made my plea for the acceptance and development of an organisation such as this.
Question put and agreed to.
Sections 103 to 107, inclusive, put and agreed to.
I move amendment No. 52:—
After sub-section (4) to insert the following new sub-section:—
(5) The next preceding sub-section of this section shall be construed and have effect subject to the proviso that the expression ‘personal representative' contained therein shall be deemed to include any person who if the proceedings were taken under the Workmen's Compensation Act, 1934, would be entitled to claim compensation under that Act and the reference in the said sub-section to the Fatal Accidents Acts shall be construed accordingly.
Senator Sir John Keane has had his swan song and I had beter have mine.
Swans do not sing at all.
This is an amendment to the section which deals with the payment of compensation in respect of injury to persons or property arising out of something done under this Bill. It will be observed that sub-section (4) provides for the right of the personal representative of a deceased person to claim compensation. But the claim, as I understand it, will be founded on what is known generally as Lord Campbell's Act. That right was recognised in law 101 years ago. Prior to that, where a person had a claim against another person for a tort, the claim died if that person died, but under the Fatal Accidents Act, 1846, provision was made which enabled certain dependents to claim compensation in respect of the tort which caused the death. The right is conferred on certain dependents, but not on all. Under this sub-section as it stands in the Bill the brother or sister of the person who dies as a result of something happening under the Bill could not claim compensation; a widow could claim compensation; the husband of a woman who dies could claim compensation, and so could the son or daughter. But the sister or brother or step-sister could not claim compensation. I am endeavouring to substitute for this provision an equivalent provision in the Workmen's Compensation Act which gives that right to claim compensation, in the event of death, to all the immediate relatives. In other words, I want to make this Bill, in regard to claims for compensation, correspond with the Workmen's Compensation Act, which is a logical and reasonable thing to do.
Mr. Patrick O'Reilly
Under sub-section (3) of this section it is provided that a person may recover damages from a local authority. There is some doubt in my mind——
We are discussing an amendment, not sub-section (3).
Senator Duffy, in support of his amendment, says he wants a provision in the Workmen's Compensation Act applied rather than the Fatal Accidents Act because it is wider, and, under the Fatal Accidents Act, the only parties considered are the husband, wife, parents and legitimate children. In the other case you have a wider range. There may be something to be said for Senator Duffy's amendment, but I think it is the Fatal Accidents Act that should be amended. I believe it would be better to amend the Fatal Accidents Act, but we cannot do it here, of course. When the Bill was before the Dáil I tried to amend it so as to bring in public assistance institutions, but the Ceann Comhairle would not allow me; he said it was out of order.
This is a much more generous House.
I know it is. The whole thing requires further thought. There will be a Bill coming along which will deal with public assistance institutions and the counterpart of this will then be put in. Whether, in the meantime, we could do something further about the Fatal Accidents Act is a matter for consideration. I think it would be very inappropriate to insert the amendment here. It does not come within this code.
I certainly say that the Minister is much more resourceful than the Minister for Industry and Commerce, much as it may surprise this House, because when the Workmen's Compensation Act was going through in 1934, I instigated certain people to put down an amendment which enabled the Act to cover brothers, sisters and other dependents excluded by the Fatal Accidents Act, and the Minister saw no reason to resist it in the case of the Workmen's Compensation Act. The idea never occured to him that we should go back and amend the Fatal Accidents Act.
I do not understand exactly what Senator Duffy has in mind because I understood he was going to approach it in a different way. As sub-section (4) included everybody who would come under the Fatal Accidents Act, and who could come in as a personal representative, he would have to go to the expense of administering. I thought Senator Duffy was trying to avoid that expense and I would be with him in trying to do so, but the amendment does not widen the class.
It does. It includes brothers, sisters and others who are excluded by the Fatal Accidents Act.
Then I misunderstood the Senator in that case.
Apart from that, the Fatal Accidents Act affords the right to certain persons to sue in respect of deceased persons but these are a limited number. Brothers and sisters and half-brothers and half-sisters are omitted.
Is the amendment being pressed?
I shall let the Minister consider it before the Report Stage.
On the section itself, sub-section (1) is practically a repetition of Section 74 (2) of the Public Health Act. Section 38 of the same Act is repealed. I am particularly worried about sub-section (3), which states:
"(3) Any person who suffers damage by reason of injury to his person caused by the negligence of a health authority or of any of their officers or servants in the exercise of their powers or performance of their duties under this Act shall be entitled to recover compensation for such damage from such health authority."
There is no necessity for that sub-section, I submit, because people already have the right to recover. There is also no reason for the following sub-section because the law is that the personal representative can claim under the Fatal Accidents Act. I have an idea that what the Minister had in mind in introducing this section was an action in the county court in regard to a man who lost his eye, I think it was, and he was defeated on the grounds that the patient was a non-paying patient. I quite agree that is a law that should not be allowed to stand and that provision should be made for that. A similar judgment was given in the Offaly case but there are other questions that have not yet been fully decided. For example, it has not been decided that a public health authority is liable for the negligence of a doctor. Even the case of Gouldv. the Essex County Council did not go so far as that. By this section, you are widening the law in regard to the responsibility of the authority and the result will be that you will have more actions against local authorities. Insurance premiums will go up, as they have gone up very considerably already. It will be very hard to get insurance to cover future accidents or liabilities. I would ask the Minister to consider that matter.
I think the Minister's point of view, if I understand it correctly, would be met by providing that if an action is taken in respect of an injury to a person or in respect of a death, it would be no defence to that action to say that a patient was a non-paying patient and then leave the law as it stands at present. That would get over the difficulty. I should not like to widen the responsibilities of local authorities. For example, why should these people have greater rights than a person who is attended by an ordinary doctor? It is very hard to recover damages for negligence against a doctor because it may be that he did not know that what he was doing was wrong and then he could not be held guilty of negligence. On the other hand it would be very easy to prove a case of negligence against a local authority if this section is put in.
If an action is taken against a local authority, it would be much easier to prove that the doctor did a certain thing which was wrong. Some other doctor might be produced who would say that he had not applied proper treatment. The jury would immediately find that there was negligence and give a verdict against the public authority as they are always anxious to give verdicts against public authorities. I imagine that if that section is inserted the result will be that insurance companies will walk out, as it were, on the local authorities and such authorities will have to bear the risk themselves.
Is it intended to go on after 11 p.m.?
The arrangement is that the House will adjourn at 11 p.m.
Mr. P. O'Reilly
That was the point I intended to raise when I unfortunately interrupted Senator Duffy. I did not intend to interfere in the discussion on the amendment.
The amendment is still under consideration.
Mr. P. O'Reilly
I understood the Senator left it to the Minister to look into it.
I had a similar impression.
With all respect, I have not withdrawn the amendment.
Would the Senator withdraw it now?
I have not withdrawn it because I want an undertaking from the Minister.
There is no question of our not adhering to the agreement to finish the Committee Stage to-night.
We must finish this Committee Stage. All these points could be raised on the Report Stage. If Senator Duffy withdraws the amendment now, he can put it down on Report Stage and a certain amount of latitude can be extended to the discussion of it then as it is one of the last sections.
I do not want to hold up the House. If the Minister gives me an assurance that he will consider it before the Report Stage, I shall be satisfied. Until I get that assurance, the amendment is before the House.
I shall certainly give it further consideration.
Then I agree to withdraw it.
Amendment, by leave, withdrawn.
Section 108 agreed to.
Mr. P. O'Reilly
I again want to state that it was not my intention——
May I point out that it was decided to complete the business by 11 o'clock and we still have Section 109, the two Schedules and the Title to deal with.
Section 109 and First Schedule, agreed to.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill."
On this question, I want to make one small correction. The Minister told us that the penalty where there was a burial under the Act of 1870 was £50. I have since looked it up and the penalty is one not exceeding £5.
The Bill itself provides that where a person is treated in a fever hospital no charge shall be made. There is a section of the Poor Law (Amendment) Act, Section 41, which provides that a charge shall be made and that a master and mistress are liable for the maintenance of a servant. I do not know whether the Minister would agree to inserting that in the Schedule.
Question put and agreed to.
Title agreed to.
Bill reported with one amendment.
In the event of a withdrawal of labour in the Restaurant taking place there is a possible repercussion on our meeting on Thursday.
Nothing should be allowed to stand in the way of this House meeting if it wishes. We have met under much more difficult conditions.
Report Stage ordered for Thursday, 31st July.
The Seanad adjourned at 11.3 p.m. until Thursday, 31st July, at 3 p.m.