Vol. 45 No. 15
I move amendment No. 1:—
In line 40, after "register" to add "under this Act".
This is purely a drafting amendment. I suggest that the words "a person registered in a register" are far too vague and that what is clearly meant is "registered in a register under this Bill".
The only thing that I would like to say on that is that the word "register" is defined earlier in the interpretation section as meaning "the Register of Ophthalmic Opticians" or "the Register of Dispensing Opticians", so that in the definition to which the Senator has put an amendment "registered optician" means a person registered in the register of ophthalmic opticians or in the register of dispensing opticians. If the Senator so desires, I will have the matter examined.
I will be satisfied, if the Minister looks into the matter.
The word "spectacles" is defined as including pincenez, contact lenses and monocles, but does not include sun-glasses, goggles or similar articles. I am not too happy about entrusting the prescribing of contact lenses to persons other than ophthalmic surgeons. I should like to direct the Minister's attention to the fact that the technique of selecting contact lenses is a very delicate piece of work.
The only thing I can say with regard to that is that at the moment, if contact lenses were not included in the Bill, anybody—not necessarily an ophthalmic optician but a blacksmith—could fit contact lenses, if he got somebody foolish enough to go to him. Contact lenses are included in the Bill so that they can be fitted, under the supervision of the board, by a registered optician or a medical practitioner. I think that adds to the safety of the position.
I move amendment No. 2:—
In sub-section (1) (b), lines 38 and 39, to delete "also a pharmaceutical chemist or dispensing chemist and druggist" and substitute "a dispensing optician".
Perhaps it would facilitate the House if I discussed amendments Nos. 2 and 3 together—the amendment to Section 9 and the amendment to Section 10. Amendment No. 3 reads:—
"In sub-section (1), line 13, to delete ‘by registered opticians' and, in line 14, after ‘board' to add ‘The registered dispensing optician referred to in sub-section (2), paragraph (b) of this section shall be elected by voters composed only of those on the dispensing register. The remaining five members referred to in sub-section (2), paragraph (a) of this section shall be elected by registered opticians'."
These amendments have been tabled because, as the Minister himself stated, in setting up this board his object is that no group or combination of groups shall gain control of the statutory board, especially in view of the sharp divergence of opinion on optical matters and policy that exists within the profession. For this reason, in determining the composition of the board, dispensing chemists have been grouped with ophthalmic surgeons or oculists on the grounds of the past liaison between the two groups, and four seats have been allocated to the surgeons and one to the dispensing opticians. The remainder of the statutory board is to be composed of five ophthalmic opticians and one neutral ministerial nominee.
We all approve of what the Minister has in mind in giving fair representation to all groups on this board and endeavouring to ensure that no one group will, so to speak, control it. There is, however, a certain amount of disquiet amongst the members of the profession of dispensing opticians. They feel that, while they are more than satisfied with the fact that it is the Minister's wish and intention to allot them one seat on this board, in view of the proposed amalgamations that are taking place between other groups engaged in the profession, in actual working it may turn out that, as the elections to the board would be held, they might lose this seat. It is for this purpose, and for this purpose alone, to endeavour, so to speak, to copperfasten what the Minister intends, that Senator McGuire and I are proposing this amendment.
I should like to associate myself with Senator Crosbie and Senator McGuire in this amendment, because, when speaking on the Second Stage, I pointed out to the Minister that I felt there was a danger in the manner in which the board was being set up that the dispensing opticians might, in certain circumstances, lose the representation which he intended to give them under the Bill. The difficulty, it would seem to me, is that we want to ensure that a true dispensing optician will be in a position to gain the representation he is entitled to under the Bill rather than a dispenser who would be allied by membership to the Ophthalmic Opticians' Association, because we must remember that if we have a register composed of ophthalmic opticians and dispensers allied by membership to that group, it is quite obvious that a dispensing optician might not be able to secure membership of the board.
Very wide powers have been given to this board, some of which we will come to discuss later, and I am sure the Minister would be as anxious as we are that representation should be as wide and as truly democratic as possible. Therefore, I think this is a very fair amendment, to take further steps to ensure that we have what I might call a true dispensing optician rather than a dispenser allied to the Association of Ophthalmic Opticians, and that the ophthalmic opticians would be put in on their own feet rather than on the dispensing optician's vote.
With regard to the first amendment, which is to Section 9 of the Bill, that amendment, if passed, would make sub-paragraph (b) of sub-section (1) read: "Before the establishment day, the Minister shall appoint six persons each of whom is an optician and at least one of whom is a dispensing optician". That would be substituted for the sub-section which as proposed at the moment, reads: "Six persons each of whom is an optician and at least one of whom is also a pharmaceutical chemist or dispensing chemist and druggist". Under the proposed sub-section, the pharmaceutical chemist or dispensing chemist and druggist must be a registered optician under the Bill, and there is power later on in the Bill to provide for registration of such persons.
Accordingly, it is open at the moment, under the section as it stands, to me, as Minister, to appoint a dispensing optician to the first board and accordingly, there is not any need for the amendment, unless it is desired to make it mandatory on the Minister to appoint a dispensing optician, and I do not think that is necessary. I fully intend to appoint a dispensing optician on the first board. I have the power and intend to do it.
With regard to the second amendment, which relates to the second and subsequent boards, that is, the boards that will be elected, I feel that it is not necessary, either. The elections under Section 10 must be conducted in accordance with election rules, and it is mandatory on the board to make election rules which must be approved by the Minister.
As I understand the sense in which the amendment is moved, it is this, that there is a fear that, by reason of numbers, the ophthalmic opticians could secure by some way all the seats on the board, or certainly influence all the seats on the board, provided, of course, that one of the members of the board must be a dispensing chemist. As I gather, there is a fear that through their numbers the ophthalmic opticians might influence the member of the board who would be a dispensing optician. In fact, I think the position is likely to be the reverse.
On the information available to me at the moment, which I concede is not accurate, but which is the latest I have, there are likely to be 140 registered ophthalmic opticians and 170 registered dispensing opticians. Accordingly, it would seem to me inevitable that the dispensing opticians, who have a smaller membership on the board, because, largely speaking, they are part-time, but who nevertheless are entitled to vote just the same as the ophthalmic opticians, are more likely to influence membership of the board than the minority of ophthalmic opticians. Certainly it seems to me inevitable that the majority section on the register would be in a position to elect a person whom they desire to elect when they have one seat out of five reserved for them.
Accordingly I do not think that there is any need for the amendment, and, furthermore, I feel there is a danger that the amendment, if accepted by the House, might bring about an undesirable situation. I am aware, as I have already told the House, that there is a jockeying for position by those interested in the matter dealt with by this Bill. If that were continued for any length of time, the purpose of the Bill might well be destroyed by this vying amongst the different interested groups. I feel that if the registers are to be split up for election purposes, as is proposed in this amendment, the present divisions will be perpetuated, until perhaps it becomes necessary to amend the Bill later on.
The best way to provide against perpetuation of divisions is to allow the elections to proceed as provided for in the Bill, with five members of the board who must be ophthalmic opticians, and in these elections we have to have regard to the fact that 170 of the people concerned are dispensing opticians. The board, when established, will work in the interests of all sections, and not of any one section. Accordingly I cannot accept the amendment. I appreciate the reasons which prompted the movers, but I think the first amendment is unnecessary, and the second also unnecessary and possibly undesirable.
I quite appreciate what the Minister says, that the first amendment is unnecessary, but I am not quite satisfied with his explanation in regard to the second amendment, because it seems obvious that certain ophthalmic opticians and the dispensing opticians who come within this Bill can be more powerful than the group of dispensing opticians. In practice, we could have dispensing opticians working on their own, and we could have other dispensers who are allied by their membership with the ophthalmic opticians and who are, for instance, working as assistants to ophthalmic opticians. It would seem that such a dispensing optician, with backing from the ophthalmic opticians and from a group of dispensing opticians, could secure election to the board as a dispensing optician.
I do feel that when we are passing legislation of this nature, we must take account of the worst possible position, and, in circumstances such as I have outlined, a dispensing optician could, with the backing of ophthalmic opticians, be elected to this seat as the representative of the dispensing opticians. We should see that the dispensing opticians get a fair representation, and I think the splitting of the register for that purpose would be a fair thing to do in all the circumstances. It is the only way to preserve the identity of the dispensing opticians.
With the permission of the House, I will withdraw amendment No. 2. I also propose not to move amendment No. 3, but I suggest that between now and Report Stage, the Minister might perhaps reinvestigate the possibility of splitting the register.
I should like to support the suggestion that the register should be split. It would seem to me to be illogical that the Bill should create two classes of opticians and yet not split the register and have separate elections for each class.
I agree with what Senator Cox has said. I feel that the words "registered ophthalmic optician" should be the words in the amendment, if you are going to split the register, and it is only the registered ophthalmic opticians who should have the right to elect the five people who are to be the ophthalmic opticians' representatives on the board.
There is just one matter which I intended to explain when speaking. The phrase "splitting the register" has been used. The position, under Section 10, is as I have already explained, that the election will be conducted in accordance with rules which will be drawn up by the board and which will have to be submitted to the Minister. If they are approved, the first election and other elections will be conducted in accordance with these rules. Under the Bill as it stands, it is open to the board, if it so desires, to conduct the elections in the manner suggested by the amendment, but that, I feel, should be the function of the board. I do not think it should be written into the Bill. I do not think that it is desirable that it should be because that would create a situation in which the board will be composed of three watertight compartments and the kind of divisions which I have mentioned will be perpetuated. It might well be that the first board, when the growing pains have subsided, might decide to hold the elections in the manner suggested by the amendment. It is in accordance with their powers to do so and the best thing to do is to leave the system of election to themselves, rather than to propose something in the legislation setting up the board. Accordingly, for that and for the other reasons I have mentioned, I cannot accept the amendment.
Arising out of what the Minister has said, I wonder whether under sub-section (1) of Section 10, the board would, in fact, have power to make rules of the nature which the Minister has suggested. Sub-section (1) says that the election shall be by registered opticians. I would be rather doubtful about the position, having regard to that sub-section. Perhaps the Minister would consider the point?
I am advised that it would be election by registered opticians.
I do not want to delay the Minister too much on this amendment, but I wonder if he could give us some idea of the reason for his opposition to maintaining what he calls the "three watertight compartments". I do not know his reasons for objecting to the three watertight compartments, or intimating that it might be better if they went. I think it would be better if they were maintained.
If the dispensing optician does not succeed in establishing himself as far as this board is concerned, there is another thing that may happen which I do not think would be in the interests of the health of the public's eyes at all, and that is this question of what I might call the dispenser who is allied by membership to the Ophthalmic Opticians' Association. I think I am right in saying that the ophthalmic opticians are at the moment organising a course and endeavouring to establish yet another type of medical ancillary in the present extraordinarily complicated position where so many different grades of people are involved. Surely it would not be in the interests of working this Bill satisfactorily that, for example, the dispenser—who is allied by membership to the ophthalmic opticians—should be established as yet another type of optician and that he should then be elected to the ophthalmic opticians and take the place of the dispensing opticians?
Could the Minister give us some idea of why he thinks it would be better if these three groups of doctor, ophthalmic optician and dispensing optician were not maintained? I think it would be in the interest of everybody concerned and of the best medical work to try to maintain that relationship.
The success of this measure will depend upon the standards the first board can lay down and the abuses which I hope the board will deal with. The first board will consist of 11 members—four medical practitioners, five ophthalmic opticians, one dispensing optician and a chairman who may or may not be a member of any group. I hope that that board will be so constituted that it will be able impartially to consider, as the first board, the best way of carrying out its legislative functions under the legislation. That board will lay down the election rules for future elections. It will consider also the suggested qualifications put forward either by the ophthalmic opticians or any other group of opticians, and it will decide whether these qualifications will be recognised or not.
Any group of opticians who think that merely by posing something to be a qualification now will lead to its automatic acceptance by the first board are greatly mistaken. That board will have the statutory function of laying down, itself, the qualifications it will recognise and whatever qualifications it will adopt for the future. That board will not be dominated by any interest, either by a combination of the dispensing opticians and the medical practitioners or by the ophthalmic opticians as against those other two groups. I think that board will be able to function properly and will be able to give cothrom na Féinne to the three interests involved.
I fear that if an amendment along the lines suggested were accepted, we would lay down as a sort of motto for the first board that there would be, all the time, three interests having very little in common, except their special interest in the subject of optics or the matter dealt with in the Bill. That would be undesirable. In my view, the three interests are equally involved and equally interested. They have a common purpose in ensuring that the standards aimed at by the Bill are established and they can only be established if they work together.
Is it the Minister's wish and intention in framing this legislation that that particular seat should be held by a dispensing optician from the dispensing opticians registered and not by somebody associated with, or working with, or allied to——
Undoubtedly, and, if it were found that that was not achieved for some reason or other, there is power to alter the representation on the board.
I take it from sub-section (3), that the Minister is in a position to abolish the board more or less on his own conditions, if he is dissatisfied in any way with the carrying out of their functions. I feel that is a pretty drastic sub-section. I was just wondering why the Minister felt it necessary to have such absolute power over this board.
The answer to the Senator's question is contained in sub-section 1. The Minister can abolish the board only if he is satisfied they have not performed any of their statutory functions—any of the functions which they are required by the Act to perform. The reason for that is that it is never a very sound thing to keep a dog and bark yourself. If the board do not do what they are supposed to do under the Act, then it is necessary to get a board that will. The only way in which that can be done is to abolish the board that does not do what it is supposed to do.
The Minister is not compelled to appoint a board in its place. It mentions a person or persons to discharge the functions.
If, for instance, the first board, for some reason or another, did not carry out its statutory functions, presumably the Minister— faced with that situation—could appoint, if he so wished, another body to perform the necessary statutory functions and get a proper board established under the Act. To appoint a new board is another way of saying that.
I have not put down an amendment, but I wonder if the Minister has considered, under sub-section (3), whether he should take power to order a new election of elected representatives, as an alternative to some other method of having the functions of the board fulfilled?
I will consider that.
I should like to ask the Minister if he should consider under this section whether the board would have the right to consider the suitability of a person to apply to be admitted to the register. As the section stands, apparently, if the person had the qualifications, they would have no power to refuse to admit to the register?
I think what the Senator says is so. If the applicant or candidate has the statutory qualifications, the board, under Section 25, must register. There is no question of suitability on other grounds, because the other grounds are not statutory grounds. That is following the same pattern, I think, as in other similar statutes and probably it is felt that the question of general suitability is not a matter that should be considered in relation to a matter such as this.
I move amendment No. 4:—
In sub-section (2), page 10, lines 1 and 2, and in sub-section (3), lines 10 and 11, to delete "on the establishment day he was a citizen of Ireland and that."
Amendments Nos. 4, 10 and 11 may be discussed together.
I do not know whether there is, in fact, any such person, but it does appear to be clear that from the way it is drafted that a person who is not an Irish citizen, but who had occupied himself in this profession for the requisite period would be debarred from registration, although there is no limitation in the case subsequently of a person who holds the necessary qualifications, when the board is established and is being registered. Even if the amendment I suggest here were adopted, it would still remain that this person must, within the seven preceding years, have carried on the business of the profession within the State, so that in fact he would have been here. He could not thus be applying for citizenship when the Bill is passed, because a qualification is that he is a citizen on the date the Bill is passed.
I do not know whether there is any such person, but if there is such a person the effect of passing this Bill might be, without any fault on his part, of depriving him of his livelihood, and I think that is a point that the Minister ought to consider. There is no limitation once the board starts operations, in the case of anyone who holds the necessary qualifications.
The position with regard to this matter can be put in this way: a non-citizen can be registered under Section 25 of the Bill, if he has undergone a course of training or passed certain examinations as will be recognised by the board. The purpose of Section 25 is to ensure that the legitimate optician who, perhaps, has a qualification which is recognised in Great Britain, or elsewhere, and which the board to be established also recognises as being a suitable qualification can be registered under Section 25. Again, under sub-section (1) of Section 26, a non-citizen can be registered, if he has qualifications inside the State that would be approved by the board.
In setting up the board, the general purpose of the Bill is, of course, to establish standards for opticians, as well as to deal with the question of abuses. The way in which that would be done is by specifying qualifications and holding examinations. Obviously, that would be unfair, if it were applied immediately in respect of many opticians already carrying on business, who, by reason of their age perhaps, or other reasons, could not fairly be asked to sit for an examination, or to take out qualifications which perhaps they have not got. Therefore, concessions are made under sub-section (2) of Section 26 to those who, over a period of seven years, have been carrying on, or who are able to show that for a period of seven years their principal means of livelihood was the carrying on of, the business of ophthalmic optician inside the State.
That is a concession and I feel that, being a concession, there does not seem any reason why that concession should also be extended to non-citizens. It is a concession in respect of those who were citizens inside the State on the establishment date or, who for a specified number of years before, were carrying on the legitimate business of ophthalmic optician. I cannot see any cogent reason why that concession should be extended to include non-citizens, particularly as I feel—I mentioned this on the Second Reading—that there will be a considerable number of non-citizens who, in the face of similar legislation in England in the future, may be tempted to come in here and to avail of any concessions that might be made. However, I have not any strong views on this. Those are the reasons why the section is as it is at the moment in the Bill. I felt that non-citizens were given a fair opportunity of qualifying or of registering and that the concessions that were made were rightly confined to citizens of this country.
As I have said, I do not know whether there is any such person, but there well may be. The point the Minister has made about people coming in from outside is, I think, not applicable, because the section expressly says that the person entitled must have done this work inside the State for the past five years, so that it would not be possible for someone to come in from outside now and, at the same time, be qualified under it. The Minister speaks of this being a concession. In a sense, I suppose it is a concession, but, if the so-called concession were not made to citizens of the State, obviously those citizens would at once be deprived of their livelihood.
I would again submit that a very grave injustice may be done, if there are such persons who have been working here perhaps for a number of years and have been honestly making their living, and it would certainly do a great injustice not to allow them on the register, if certain other people were allowed on if they had the qualifications. I ask the Minister to reconsider it. Probably very few people are affected.
The Senator has impressed me completely. Not only will I consider the amendment, but I accept it.
While the Minister is correct in saying that this is a concession, it is a concession which is nearly always made when a register is set up. My earliest recollection in this connection is in regard to secondary teachers. In that case, qualifications were prescribed, but persons teaching for a number of years were allowed on the register. I was going to suggest that, if there were not many people involved, it would be simpler to accept the amendment. As the Minister has accepted the amendment, perhaps Senator Cox would leave the drafting of the amendment to the Minister.
Would the Minister take into consideration people born in Northern Ireland subsequent to 1923 who would be non-citizens but who would become citizens?
That would be covered in the amendment.
That is what I mean.
I should like to ask the Minister whether, in the second line of Section 27, the words "may refuse" would be interpreted as "shall refuse"? I suggest to the Minister that, instead of the word "may", there should be the word "shall".
The Senator will agree that a great lot of argument could go on both here and elsewhere as to what exactly is meant by the word "may" there. I will consider the matter.
I move amendment No. 5:—
In sub-section (1), line 30, after "opticians" to add "or may suspend him from practice for such period as the board may think proper".
Amendments Nos. 5 and 6 may be discussed together.
Under the Bill, the board has power, as a disciplinary matter, to remove the name of a person from the register. In other professions, a similar disciplinary body is sometimes given power to say that a person should be temporarily suspended. It would seem to me that a disciplinary body should have power, in addition to power to deprive a person of his profession for all time, to suspend him for a year or two years, or something like that, which would be a punishment and a deterrent. I would ask the Minister to agree to give this board powers similar to those held by other professional bodies.
The position with regard to the Senator's amendment, as I see it, is that I do not think it is necessary. The Bill does not deal with practice, as such. The Bill says that only an optician registered can carry on the business of an optician, be he a dispensing or an ophthalmic optician. Registration gives the right to be in business. Accordingly, it is not exactly the same as suspending a person by not finally dealing with him. The board, under Section 29, may remove the name of a person from the register, and, under Section 31, the board may restore that person's name to the register the following week. For the period he is off the register, he is not permitted to carry on his business and I should imagine that the board, as the thing will work out, will say: "We took so and so off a month ago; I think he has learned his lesson and now we will put him back again." That, in effect, meets the sense of the Senator's amendment. Under other codes, he would be suspended from practising for a definite period during which he could not practise. Here, during the period of his removal from the register, he is unable to carry on his business, but the removal may be only temporary, and it does not mean it would be a permanent removal. I think it is very hard in respect of a board of this kind, where the carrying on of the business concerned depends on registering and continued registration, to apply the rules which, perhaps, apply to the legal profession and other similar professions.
For those reasons, I do not think it is necessary. I think the board have the right under Section 29, read with Section 31, to take a person off for such a short period as would constitute a lesson rather than a complete putting out of business. I think that is what is intended by the amendment.
I fully appreciate what the the Minister has said, but I have experience myself of sitting on disciplinary bodies, and, in a borderline case, anyone sitting on such a body is always very reluctant to go to the extreme, whereas if some minor penalty could be imposed, he might be prepared to enforce it.
I know nothing about the opticians' profession, but my impression is that the Minister is now going in to clean up a sort of Augean stable. If that is so, I think that any disciplinary board would like to have the power to impose a temporary suspension and would hesitate very often to punish, where it meant complete removal. I fully understand that there would always be the possibility of getting back on to the register. I think that striking off a register should be regarded almost as a solemn act. If it were regarded too lightly and the general idea was: "I am struck off to-day and, in six months' time, I will be back again," that would take away from the force of what was being done. Possibly the Minister, between now and Report Stage, will consider the matter. I think, with great respect, there is some substance in the amendment. The power would not have been given in other professions to impose these minor penalties, if it had not been felt that it was a good thing, having regard to what human nature is.
I will certainly examine it, but I feel that the suggestion made by the Senator in his amendment is not in accordance with the general tenor of the Bill. It would be something quite outside the tenor of the Bill itself. I will certainly examine it.
I move amendment No. 7:—
In sub-section (1), to delete "either" in line 53 and "or the Minister (but not to both)" in line 54.
Under the Bill as drawn, an appeal is given against erasure from the register, but it is provided that that appeal can be either to the High Court or the Minister, but not, of course, to both. I would submit that the appeal should always be to the High Court. I do not know whether the Minister has considered this, but I suggest that it is quite possible, particularly in view of a case which I understand is at present pending in the Supreme Court, that it might be held that, unless there were an appeal to the High Court, the whole provision as to disciplinary powers might be contrary to the Constitution. In the case of every other provision, the appeal has to lie to the High Court, and I would suggest that it would be an alarming precedent, and I am quite certain one that the Minister himself would not very greatly enjoy, that appeals as to whether a name had or had not been rightly struck off the register should go to the Minister and not to the court. I understand the whole tenor of decisions of the court in other professions where there are appeals to the court is that the court is very slow to interfere with the judgment of the professional body, and I am quite certain the same principle should apply to opticians, so I would like to move that the appeal should be to the High Court and not to the Minister.
I am not sure if this is actually the first case of this kind. I think that there were other cases previously where an appeal would lie either to the Minister or to the court, and it is just possible, I presume, that a person might prefer an appeal to the Minister rather than to the court, from the point of view of expense. If the appeal to the court is left optional to the person concerned, it appears to me that, if you take it that the Minister was doing something detrimental to the appellant, the person being struck off the register could desire to make an appeal to the court. Senator Cox will agree that the decision of the courts, which may reach the Supreme Court eventually, on whether or not particular professional tribunals are constitutional, does not affect this particular section. While I myself have always been in favour of appeals to the court, the section does appear to give an option to the person who might not like to have the expense of going to the High Court and who might prefer to go to the Minister. From that point of view, it does not seem to do any harm to or to take from the jurisdiction of the court, because it leaves the courts there for anybody who wants to resort to them. The real objection to many of these provisions is where they prevent a person going to the courts, but this particular section, as drafted, does not do that.
I should like, with respect to Senator Hayes, to say that I agree that going to the court might involve a certain amount of expense. In this country, there is no poor persons' assistance, but, on the other hand, I have never heard of a poor person who was not able to get justice. It has always been the practice, both of the Bar and of the solicitors' profession, to assist such persons in a proper way. I do not think there is very much point in that. But, on the general question, I think the precedent of substituting the decision of a Minister on a judicial point is one which is a very grave one. As far as I can understand it, in Communist countries, all justice seems to be administered by referring the matter to civil servants to decide. One of the great distinctions between the two sets of countries is that, in the one case, all matters go to the courts, and, in the other case, they do not. I am not, of course, suggesting that there is anything sinister in the Bill, but I suggest that this is a precedent which is not of a desirable nature.
It is not a precedent; that is to say, it is not the first example. There have been previous examples of appeals in the same sense. I am surprised at Senator Cox pulling Communism out of the hat in this particular instance. He places me in a difficulty when he tells me that of course the legal profession is very generous, because I have himself behind me and the Minister in front of me and Senator Walsh on the front bench, and a member of the legal profession in my own family, and I actually am a qualified legal person myself, although, thank God, I never found it necessary to practice. I do, however, suggest that whatever the generosity may be, or the capacity, of the solicitors and barristers, any ophthalmic optician who has been removed from the register and has the right of appeal to the High Court will necessarily consider that it is going to cost him something, and going to the Minister might appeal to him more. It seems to me that this widens the choice given to the person. To say that an appeal to the Minister in this country and in our circumstances, as we have known it, is equivalent to, say, justice in Communist countries, is hardly up to Senator Cox's usual standard.
I do not think anybody would doubt that it would be more desirable to have the appeal to the High Court than to the Minister. That is how I feel. It is a little unfair that the Minister should be suggested because it is cheaper than going to the court. I do not entirely agree with Senator Hayes, because I do not imagine that anybody will go to the High Court, unless he has a good chance of winning there, and if he has got a good chance, he does not have to worry about the expense. I favour a decision of the High Court and would prefer that to an appeal to the Minister. I take it from the sub-section that an aggrieved party can do both—can go to the courts also.
No, not to both.
That was the point I wanted to make. If the person who is aggrieved did go to the Minister and felt that the Minister did not give him satisfaction, he would then have the opportunity of going to the court. That is not a new principle or a precedent in this country. I think that, under the income-tax code, if one does not like the special commissioners, one can go to the court. Maybe the Minister might consider that giving the person a right to go to the court if he felt aggrieved by the Minister might remove the objections which have been raised on this matter.
If Senator Cox is right, then the proposal in the section is wrong and I do not want to say that any number of wrongs can make a right. It is, however, proper, I think, that Senators should know that this proposal is not any Communist proposal put forward by me in this Bill. It is a proposal that is already contained in the Midwives Act, 1944. It is exactly similar and it is also similar to a provision included in the Nurses Act, 1950.
I think that whatever may be said about the effect of the litigation which Senator Cox has mentioned, it may be that provisions of this kind will be found to offend the Constitution. I do not know anything about that, but it does appear to me that it would be fatuous for the Oireachtas here to legislate on a whole series of "ifs" and "ands" and that, just because legislation is taking place in which a particular question is posed, we should in our legislation take that into consideration.
If, in fact, this form of appeal to the Minister, or forms of appeal similar to it are found to be unconstitutional, then that is that and the law of the land will take its course. The case for providing an alternative appeal such as this has already been put by Senator Hayes and other Senators: that a person affected by a decision of the board may not necessarily be a poor person. Senator Cox is right in saying that a poor person in our democracy here is not denied access to the courts and to certain persons practising law, but it is not the poor person to whom the costs of legislation might become a serious anxiety. It is the person such as is dealt with in this Bill who may be carrying on a business which is his livelihood and who suddenly finds that livelihood taken from him. That person, if Senator Cox's amendment is accepted, would be told: "Well, it is too bad, but the only way to get it back is to proceed in the High Court of Justice".
That person, whether advised that his proceedings will succeed or not, will find himself driven by necessity into taking such proceedings which may, on the advice extended to him, not succeed. Such a person, if he were not a poor person, undoubtedly could, in the example I have given, find himself involved in a considerable expenditure. I feel that it is only fair that there should be an alternative method of appeal open, without the costs involved. It may be that that might not be as perfect a way of dealing with an appeal, but it will be quick and easy to go to the Minister.
It will be remembered that in the other parts of the section, there is this encouragement to a person who feels quite genuinely that he has been badly or unreasonably treated by the board and who is strengthened in that belief by legal advice. He has the right to go to the court and is encouraged to do so, because he knows that, from the judgment of the High Court, he can get compensation or costs, but if he goes to the Minister, even if he succeeds, he will not get any compensation.
I feel therefore it is not profitable for the Oireachtas to consider a possible decision the Supreme Court might give in pending litigation. Similar provision, as I have already stated, has been provided in at least two other Acts, and perhaps even more often. It provides an easy appeal for a person whose livelihood has been taken from him and the person can feel that he has a quick and easy way of having his complaint investigated, without a lot of costs, as would be involved in another form of litigation.
I move amendment No. 9:—
In sub-section (3) to delete paragraph (d).
Amendments Nos. 9 and 15 could be discussed together and, if necessary, a separate decision can be taken on each.
This is a provision under which the subsidiary committee or the board may erase a name, and if an appeal lies with the courts, the court can award damages against the board or the committee for the loss which the person has contracted in the meantime. That, of course, appears to be very just in the case of a person deprived of carrying on his business by such action on the part of the board. I believe, however, it is a very novel provision that the tribunal which has to pronounce a decision can render itself liable to damages, if it errs. Again, it does seem to me to be a rather dangerous precedent to adopt. I quite appreciate that, in certain circumstances, the result may be just but it seems to me that no such provision for compensation arises in any other similar case. Therefore, I suggest it should be deleted from this Bill.
My view in regard to the Senator's amendment can, I think, be best put in this way. I do not think the Senator is quite correct in saying that this is a novel precedent, because it, in fact, provides that, where a lower court, if you like, has erred in a decision, it can be made to compensate the person affected by the error it has made. The sub-section does not provide that. It provides that if the High Court is satisfied that the board acted in an unreasonable manner—and it will be a matter for judicial determination as to what is unreasonable —certain things may be done. I should imagine that the court would be asked to consider whether any responsible board would have acted in the manner in which it did in the particular case it would be considering.
If the board has behaved in an unreasonable manner in that connection and, by reason of the manner in which it behaved, has deprived a man of his livelihood, wrongly and unreasonably, then, and only then, can the court award such reasonable compensation as it thinks fit against the board. It does not follow from that that, merely because the High Court disagrees with the view that the board came to as to the conduct involving the removal of the name of the man from the register, they would be entitled to invoke paragraph (d). The court must be satisfied that there has been unreasonable conduct by the board before it can invoke that paragraph. I think the paragraph is necessary. I think there should be some sanction to prevent a board behaving in a way which would be injurious, but which can be quite malicious and quite wrong in relation to the unfortunate person who is affected.
I appreciate what the Minister has said and I withdraw the amendment.
I want to ask the Minister a question in connection with sub-section (4) (b). Part of the sub-section reads as follows:—
"Where an appeal under this section to the Minister is successful—
(b) the board may, if they so think fit, pay to the appellant such sum as they consider reasonable compensation for any loss of practice sustained by the appellant between the decision of the board and the determination of the appeal."
I wonder what is the necessity for the words "if they so think fit". If it has been ascertained that the name of the person involved was removed from the register improperly, or without due consideration, one would imagine that it would be right that he should get compensation for his loss of practice, because of that error. Why should any qualifying words of that nature be inserted in the sub-section? Furthermore, I would ask the Minister what funds will the board have at their disposal to grant this compensation envisaged by this section of the Bill, or is it the Minister and his Department who will find the compensation?
I can answer the last question the Senator asked by saying "No." The funds, presumably, will be whatever funds the board get from their legitimate activities under the Bill. They collect funds and a variety of revenue of that kind. The reason why, under the sub-section the Senator mentioned, it is not mandatory on the board to give compensation where an appeal to the Minister is successful is that the issue as to whether the board has behaved reasonably or not is primarily a judicial question. It is not a matter for the Minister, and, if the optician affected wants that determined, he must appeal to the High Court and invoke the court's jurisdiction under paragraph (d) of sub-section (3), to which I have already referred.
There is not any machinery available in my Department to consider matters of compensation or things of that kind. However, where an appeal to the Minister is successful, then the board—if they feel they had perhaps acted on wrong grounds or on wrong information, or something of that kind, and had, as a result, unwittingly or unintentionally affected harshly an optician—might themselves on their own motion pay him compensation, but they could not be ordered to do so, unless the appeal had been brought to the High Court, and the High Court felt they had acted in the manner envisaged under paragraph (d).
I am still not too satisfied with the position under this sub-section. The possible appeal that we have under discussion now is the appeal to the Minister. Of course, as has already been stated, it would be the easier line of approach, I suppose. However, since the appeal is to the Minister, would it not then be right and proper that it should be left to the Minister to order that compensation be paid to the aggrieved person and that it should not be left then to the board? It is not being left to the board under the former section to fix the compensation for the aggrieved person. Under the former section, it is the High Court —in other words, the tribunal to which the appeal is made. But, in the second case, under this sub-section (4), paragraph (b), the tribunal this time is the Minister. Why not give the power to that tribunal, rather than to the board, to fix the compensation, having regard to all the circumstances of the case?
I would regard that as primarily a matter to be determined by the court. It is a judicial matter. I do not regard an appeal in the sense set out here as being a judicial matter. It is a matter of fact, largely, as to whether, on the facts set out, a person's name should be restored to the register or not.
With regard to compensation and as to whether the board behaved in a reasonable manner or not, these are questions to be determined by a court. The procedure is set out in the section. If a person wants that determined and wants compensation as a matter of right, he can get it on order of the High Court, but not otherwise. It would be quite an invidious system if we were to establish in the Department of Health a section to deal with the assessing of compensation and matters of that kind which are quite foreign to any Department.
I take it the Minister would agree that an appeal, say, in a case under the Town Planning Acts from the council to the Minister for Local Government is a judicial function? I can see no difference between the hearing of an appeal such as is envisaged under this section and the hearing of one under the Town Planning Acts. I am not quite sure what the procedure is in regard to the hearing that takes place before the Minister. Is it a matter of an affidavit or is the Minister to hear oral evidence in this connection? At any rate, I can see no difference between the hearing before the Minister and the hearing before the High Court as set out, because the applicant has the alternative of one or other of those two types of hearings.
There is quite a marked difference. An appeal might be successful because the Minister might feel that it was a bit harsh on the facts to take a man off the register. That does not mean that the board was not fully entitled to come to the desision it came to. The appeal would be successful on that ground. It might also appear that, in an appeal to the Minister, the board had acted quite irresponsibly and had wronged the person in a very definite way. Again, I think that is a matter that the Minister should only be allowed deal with by putting the person back on the register and reporting the facts to the board. If the person injured had considered the question of compensation, that person could have gone to the High Court. There is a decision open to him and the choice is there.
A third kind of appeal might exist in which the board unwittingly had acted on completely wrong information, information which, on later investigation, had been proved to have been wrong and incorrect, and the appeal would be successful. The facts would be reported to the board and, if the optician had been injured in his livelihood for a certain period, the board might consider it reasonable in those circumstances to provide compensation for him, and they are entitled, and they have the power, to do it under the sub-section, on their own motion, when they consider it reasonable to do so. I imagine they would consider it reasonable to do so only when they found that they had been led as a result of incorrect information, into taking a decision which otherwise they would not have taken. That is why that power is there and I think it is reasonable to have it in that way.
On the question of dealing with the board for acting wrongly, that is a matter for the courts and the procedure is there at the option of the person injured and not at the option of anyone else.
I move amendment No. 12:—
In line 44, after "Opticians" to add "or against whom a disciplinary inquiry under that register is pending".
I suggest it would be a strange thing that the board would have to register a person against whom an inquiry was already proceeding under the other register. It would seem to me that the board should certainly have power to suspend registration, while an inquiry is pending.
I considered that matter and perhaps I could answer the Senator in this way. The board would have no power to register on the ophthalmic register an optician who was registered on the dispensing register. If, in fact, an inquiry of a damaging kind was taking place with regard to a person on the dispensing register, he would still be on that register and therefore could not be registered on the ophthalmic register. So that, in fact, the fact that he is on the register is sufficient to prevent the abuses which the Senator has in mind.
I fully concur and withdraw the amendment.
I move amendment No. 16:—
In sub-section (1), line 12, to delete "A registered optician" and substitute "A person".
Section 48, sub-section (1), provides that a registered optician, who is not a registered medical practitioner, shall not on or after the appointed day, treat any disease of the eye. These are matters which obviously require a very high degree of professional skill, but I would suggest that the Bill as it stands might leave it open to anyone to do any of these things, if he is not a registered optician. The prohibition is merely on the registered optician and the amendment I am suggesting is that no one should be entitled to do these things, unless he is a registered practitioner. In regard to the general practice of medicine, while a person must not hold himself out as being a registered medical practitioner, there is no prohibition on a person not qualified as a medical practitioner from practising medicine, if he chooses to do so at his own risk. When one proceeds to legislate definitely in respect of something which obviously should be done only by a registered medical practitioner, I suggest that the logical course to adopt would be to say that no person other than a registered medical practitioner should be entitled to do these things.
I understand what the Senator has in mind. Perhaps I might put it in this way: a registered optician by reason of his business is in a special relationship to a person with an eye condition. His business puts the condition of the eye into the forefront. It is true that any person, with certain exceptions, can treat or purport to treat eye conditions. It is not intended that they should be interfered with. After this Bill becomes law, the only group of persons in the country who will be prohibited from treating eye conditions will be registered opticians. Anyone else will be entitled to do it, because to attempt to prevent in a general way any person doing anything to the eye would lead in the end to the absurd situation in which a father could not put eyedrops into his child's eye, or a nurse in a hospital could not provide whatever treatment might be necessary in the way of providing drops for a patient's eye. I do not think there need be any anxiety about that.
There is not such a public danger in that as would warrant prohibitions, but there is a possibility of danger, if an optician is permitted to treat the condition of the eye because he is in a public position. He is brought into a closer relationship, and, by reason of the business he carried on, the business itself might hold out the suggestion that he is qualified to treat conditions of the eyes which, of course, he is not qualified to do. As Senator Cox says, the same position applies in relation to the practice of medicine. Anyone can proceed to treat any medical condition, if he can get a fool as a patient. The only prohibition is that he cannot say he is a qualified person, that he is a medical practitioner, but he is quite entitled to do it and in fact quite a number of them do it, but, again, the section means that only registered opticians are prevented from doing this. That is done for the obvious reason that, if they were permitted, with everybody else, to treat conditions of the eye, then the business they carry on could contain inevitably the suggestion that they were qualified medically to do what they are obviously not qualified to do. For that reason, I think the amendment would carry with it very serious consequences and I ask him, for the reasons I have mentioned, not to press it.
I agree with what the Minister says. I will withdraw my amendment.
I move amendment No. 17:—
To delete sub-section (3).
I move the deletion of this sub-section because, when we discussed this matter on the Second Stage, the Minister took some pains to point out to us that he was very anxious there should be no possibility of opticians of any kind carrying out treatment. Section 48 is brought in for that purpose and it goes quite a long way to prevent the treatment of eye conditions or diseases by opticians, ophthalmic or otherwise. I think it is extremely unwise that this exception in sub-section (3) should have been made in regard to orthoptics. It seems to me contrary, in the first instance, to the spirit of the section and, secondly, to make an exception in one of the most dangerous instances that an exception could be made to this particular section, because, under this sub-section ophthalmic opticians will be in a position to carry out orthoptics treatment.
Further, they will be in a position to advertise themselves as capable and competent to carry out orthoptics treatment on the direction, not of an eye specialist, mind you, but a registered medical practitioner. I should just like to put a case to the Minister, as I see it, under that sub-section. Take the position in a country town, in a city, or anywhere else in Ireland, where there is an ophthalmic optician who acquires a reputation, let us say, for the treatment of squint. According to the sub-section, he is perfectly entitled to hold himself out as a person competent to treat squint, provided he has a written direction from a registered medical practitioner. A parent will bring along his or her child to this optician. The parent will say that he would like to have the squint in the child's eye corrected because he has heard that this optician has a very good reputation for dealing with such cases successfully. All the optician will be obliged to do under the sub-section is to say to the parent: "I would like you to obtain a certificate or a direction from a registered medical practitioner."
In those circumstances, the registered medical practitioner would be, in nine cases out of ten, the family doctor. The family doctor would probably be a general practitioner and he, too, would know as little as, and probably a great deal less about orthoptics than the ophthalmic optician, and in so far as he was concerned, the giving of a medical direction to the ophthalmic optician to carry out the treatment of squint would be a matter of convenience, and it would be given in the way in which all doctors give certificates of that nature, merely to comply with that regulation. Once a certificate or medical direction is given by the family practitioner, the treatment of squint would be left entirely to the ophthalmic optician.
I do not have to go any further than that for anybody in this House to realise that an ophthalmic optician is not a suitable person to undertake treatment of this nature. Orthoptics is a highly specialised branch of eye-work—a job in which people are specially trained—and it is entirely wrong that it should be passed over to ophthalmic opticians and that the only medical supervision would be that it was done under a direction from a registered medical practitioner. If the section had suggested that it could only be done under the medical supervision of an ophthalmic optician, that would be different, but, again, I realise that it would not be practical either to put into the section that such treatment can only be done under the medical supervision of an ophthalmic optician.
I would ask the Minister to consider most seriously dropping this section altogether. There is no necessity for it. I cannot speak with facts and figures because I have not had an opportunity of examining the position, but I doubt if there are any—there may be one or two—ophthalmic opticians in this country at the moment who are trained to deal with squint. As I say, there may be one or two, but the vast majority are not trained to treat and deal with squint. It may be said by the Minister that, under the new board, courses will be provided and that ophthalmic opticians may be trained in orthoptics. Even if they were trained over a period of years it would be most undesirable that this treatment should be handed over to them and that the only medical supervision would be a certificate from the local practitioner.
I could visualise a situation where ophthalmic opticians, using the publicity to which they are perfectly entitled under this section, would have squint clinics established throughout the country and would carry on these squint clinics entirely on their own, just covered by a letter from the local doctor. I would urge the Minister in the interest of trying to maintain a good standard, as far as eye work is concerned, to consider seriously dropping this sub-section altogether.
I cannot speak with any expert knowledge on this amendment, but I have been asked by several members of the medical profession to speak on it and to ask the Minister to withdraw this section from the Bill. The profession feels very strongly about it, and I think the case has been put admirably by Senator ffrench O'Carroll. I can add little to what he said, beyond saying that I do happen to know that there is a very strong feeling among the profession as a whole that the sub-section is undesirable. If the unskilled people, unqualified people, are allowed to treat children for squint, very serious damage may be done to the health of the child, which may last the whole of his life. I am informed that there are persons in Ireland holding diplomas from London University and Oxford University, for special training in this subject. There are at least two in Dublin, and at least one in Cork and probably others in the country, over and above ophthalmic surgeons and the medical profession as a whole.
The point Senator ffrench O'Carroll has made does seem to me to be a reasonable and sensible one, that, if the ordinary family doctor, the general practitioner, does not feel equal to dealing with a patient himself, he should hand him over to a properly qualified ophthalmic surgeon, and not to an optician. If the condition which he is asked to treat is one of which he does not profess to have special knowledge himself, he should not hand it over to a person who has a lower degree of professional qualification than he has, and, as Senator ffrench O'Carroll says, quite a number of abuses might arise in this way, that opticians might advertise that they were specially qualified to do this work. It might become a paying proposition, and doctors might, so to speak, fall into the trap and give letters to their patients recommending those opticians, and a great deal of harm might be done to the people suffering from squint. In view of the fact that this opinion is so strongly held by each member of the medical profession, the Minister might seriously consider amending the Bill in this respect.
I most heartily join with Senator ffrench O'Carroll and Senator O'Brien in asking for the deletion of this section. I do not think it is necessary to traverse the grounds and arguments of Senator O'Carroll. I think that from every point of view it is undesirable to permit these people to undertake this work, which might be very tricky, simply because some very busy medical practitioner for some reason has given them their hand. What I also find rather alarming and sinister in this section is that nothing will prevent him from suggesting that he has provided, or is capable of providing, this service.
Another thing which is disturbing in this Bill is the question of advertising. Sweet are the uses of advertisement, and we are putting the profession that must not, by its ethical standards, advertise in what may be competition with the profession that lives by advertising. I have lived long enough in this town to know how excellent advertisers some of the opticians are, and how very impressive the advertisements are and what wonderful pieces of apparatus they show and all that kind of thing. One thing that I certainly think would happen if this section were retained is that the ophthalmic optician would feel it necessary to suggest that he has these powers. He would feel it his duty to emphasise that suggestion, and it would be a direct incitement to advertise. For these two reasons, I certainly hope that the Minister will delete this section, and consider the possibility from time to time that the board when in action, can stress the necessity of controlling the ethics of uncontrolled advertising on the part of the non-medically qualified people who are involved.
I rise to support this amendment, and I would strongly urge the Minister to consider it very carefully, and recommend it not only to the sympathetic consideration of all, but would impress upon him that this amendment, to my mind, is much more in keeping with the spirit of the Bill than Section 7. On the Second Reading, Senator ffrench O'Carroll gave a short but accurate survey of the attitude of a professional man of many years' standing towards the technician of a few years' standing who perfects his work and reaches a high degree of expertness and skill. On the Second Reading, the debate was confined largely to the subject of the provision of spectacles. No professional man dealing with eyes likes the idea of any technician taking full responsibility for the treatment of errors of refraction, but, as the Minister has told us in a very neat right hand cross counter, it is possibly better for him to do that than to have nobody at all to do it.
This sub-section introduces a point which goes far beyond any question of a register, or even a board of administration. It introduces the word "orthoptics." My slight knowledge of the classics suggests to me that since "orthos" means straight, orthoptics means "straight eye." But it often involves squints, and there are nearly as many different types of squints as there are amendments to this Bill. It would be perfectly disastrous that any form of technician would be permitted to deal with anything approaching a squint, because it involves so much.
To bring it down to practical politics, supposing I put it to the Minister that I have a carpenter who does work for me and I have a great admiration for his technical skill, and, in my fancy, I bring him in and show him how I remove an appendix. I make him do it himself two or three or ten times, and he does it nearly as well as myself, and more cheaply. Supposing the Minister has a child troubled with his appendix and a friend tells him "Johnny MacDonnell" in Mobhi Road is a wizard at taking out appendices", will he send his child to that technician?
I put it in another way. I can easily attribute to the Minister deep knowledge of the law and its intricacies. Supposing that we have a brilliant young solicitor who has gained all the prizes that he can possibly gain and he inherits a chief clerk in his office who is obviously able to play rings around him in court procedure, would his profession allow him to send that chief clerk to appear for him in court?
We are not dealing with simple technicalities like errors of refraction or spectacles. You are dealing with what might be very fundamental trouble in a child's eye, and, without indulging in heroics, everybody knows that a child's eye is one of the most astounding miracles of the Great Designer. I would just like to quote what Senator Murphy said in his speech on the Second Reading last week, speaking as a member of the Labour Party. Referring to spectacles, he said:—
"Our view on this matter is that, whilst spectacles could be purchased cheaply in certain shops, it was false economy and was dangerous and injurious to the eyes of poor people, that they should be able to purchase these spectacles, or so-called spectacles."
The same words apply even more strongly to orthoptics, and I would ask the Minister to consider very seriously the deletion of this sub-section.
I fear that this matter is in danger of being exaggerated in relation to its importance. Naturally, I am impressed by the views expressed by Senator ffrench O'Carroll and Senator Barniville on any matter of this kind. They are perhaps more susceptible than other Senators, because they in relation to their profession feel these matters more keenly. It may be that many Senators wonder what on earth is meant by orthoptics. I am told that it can be described as physiotherapy of the eye and means the exercise of the muscles of the eye. Physiotherapy is something which has been practised in medicine for some years and is used for the exercise of certain muscles which require to be got back to tone in order that they may be improved.
If any member of this House has been to see some of our new hospitals, he will have found the physiotherapy department there a very important part of the services available, because, after the doctors have finished and have given all the medical care required to the patient, the patient is then handed over to the physiotherapy department to be encouraged to take the necessary muscle exercises to complete the cure already started as a result of the medical attention.
The practice of orthoptics, I am advised, is in relation to the eye what physiotherapy is in relation to the muscles of the body. I am told that at the moment it is carried on quite generally by nurses, and even by doctors' receptionists, and also, to some extent, by other persons, such as ophthalmic opticians. It is done at the moment not by doctors, but by persons working under the direction of doctors who have engaged in this form of physiotherapy. It further is a recognised treatment in dealing with certain conditions of the eye which require the exercise of the muscles. I am advised that since orthoptics is carried out at the moment under the direction of medical practitioners, by nurses and by others, and also by ophthalmic opticians, it would be a very unfair prohibition on ophthalmic opticians to prevent them from doing something which they are now doing and still allow nurses and other persons completely untrained, from the medical point of view, to engage in this exercise or aid to medical care.
I have considered representations made to me in connection with this matter and I have been impressed by the case put up. I feel that, while very definite prohibitions are contained in Section 48 to prevent any medical treatment on the eye, this subject of orthoptics is something which should be exempt. I provided in an amendment on the Committee Stage in the Dáil that this orthoptic treatment can only be carried out on the representation and under the direction of a registered medical practitioner, after he has given a certificate that he has examined the person's eyes and directs that this treatment should be carried out by an ophthalmic optician.
I am afraid I cannot agree with Senator Barniville and Senator ffrench O'Carroll in what they say about the ordinary medical practitioner, the general practitioner. I think that the general practitioner, the family doctor, would be most unlikely to send a patient of his, whether a child or an adult, to any person for specialised treatment or advice, other than a specialised ophthalmic surgeon. I think it is most unlikely and highly improbable that a general practitioner, feeling that a child required ophthalmic treatment, would send that child to be treated by an ophthalmic optician. What I would regard as probable is that an ophthalmic surgeon would direct that a patient avail of the services of an ophthalmic optician to have this orthoptic treatment carried out. That would not be unusual. I think the denial of this useful service to the public would be unfair. Therefore, I cannot accept the amendment put forward by Senator ffrench O'Carroll, but I want to be perfectly fair to him. I can recognise the anxiety which he has expressed and which Senator Barniville has felt on this matter, and, while I do not share their fears, I am quite prepared to leave a decision on this matter to a free vote of the House.
I wonder would the Minister reconsider the position between this and the next stage? Am I in order in going over some of the points the Minister mentioned?
Yes.
The Minister referred to physiotherapy departments and said that, when one goes into a hospital, one sees these departments. That is perfectly true. You see the work being carried out by physiotherapists, but what the Minister overlooks is that the people who are being treated are people who have had their fractures and arthritis treated by doctors and who are going to have their physiotherapy done under medical guidance. That is the important point. It is done under the guidance of specialists, not under the medical guidance of general practitioners. I am speaking as somebody without specialist knowledge and nothing I say casts any reflection on general practitioners. In medical work, there is a field for the specialist and a field for the general practitioner. The general practitioner is not competent to supervise specialist treatment. Take the position in hospitals to-day. Is the general practitioner competent to provide specialist treatment in these hospitals? He refers his patient to the specialist in the hospital and that specialist then arranges for specialist treatment under his supervison.
The Minister pointed out that unsuitable persons are doing orthoptics. I know that is so, but that does not make a case for allowing it to be carried on by slightly less unsuitable people. What we want is that it be carried out under specialist supervision and that is what we must aim at. At one time, anæsthesia was carried out by general practitioners. I have been in other countries and have seen anaesthetics given by men who were not doctors at all. Here certain types were given by persons who were not doctors, but that did not prevent us in this country from moving towards the establishment of anaesthesia on a specialised plane, and we have reached the position where anaesthetics are administered, in our large hospitals at any rate, only by specialised persons. In other countries they make wide use of medical auxiliaries, but I know the feeling generally here in this country is that we should be very careful what we give to the medical auxiliaries and what is to be done under the supervision of a specialist.
I see no reason why we cannot have this work carried out under the supervision of an oculist. If the Minister were to state in that section "The oculist or ophthalmic surgeon", the position would be entirely different, but I submit, with respect, that so far as the ordinary patient is concerned, he will go to the general practitioner, ask him for a medical direction to an ophthalmic optician and the general practitioner will give that direction merely to comply with a formality. He will know himself he is not competent to supervise the treatment and he does not feel, by giving the certificate, that he is supervising the treatment.
I would ask the Minister to reconsider the position, because I feel there is no necessity to make this an issue here in the House. I believe the evidence in favour of keeping this under specialised medical supervision is overwhelming, and, if the Minister looks into the position, I am sure he will reconsider it.
May I ask the Minister a question on this? We laymen may have to vote on this matter in a few moments and it is obviously a very touch-and-go question. One thing I should like to know. Supposing we do delete this section, will there be enough qualified medical practitioners in the country to cope with the present demand for this kind of service, or will it mean that a number of people who want this kind of service simply will not be able to get it, if the practising opticians of the moment are prevented from giving it? If that practical difficulty arises, I think we laymen will have to vote for some treatment rather than no treatment at all.
Perhaps if I might just reply to both Senators in this way. It is the last thing I am going to say on the section. It is impossible to say whether there would be sufficient specialists to carry out orthoptic treatment, whether it be by design or by legislation reserved for them, and I could not answer the question, except to say they do not do it at the moment. At the moment, it is the accepted thing—I am speaking on the advice available to me—for a doctor to say that the boy or adult needs orthoptic treatment and that he should go down to the nurse, and in some cases it is the receptionist who does it and, in some cases, an ophthalmic optician.
I feel that, out of justifiable concern, the two Senators, Senators Barniville and O'Carroll, have rather magnified the importance of this thing. It is generally done. In fact, almost without exception, it is done by unskilled persons, and I am advised that you do not find the specialist doing it himself. There is one thing I would ask Senator Dr. ffrench O'Carroll to appreciate and it is this: under the sub-section, the decision, the initial decision, the primary decision, as to whether the treatment will take place and as to who will give the treatment, is not for some poor ignorant person. It is the decision of a qualified medical practitioner. It is he who decides what treatment will be given and who will give the treatment.
Orthoptic treatment cannot be given by an ophthalmic optician, except on the written direction of the patient's doctor, who certifies that he has examined the eyes and directs the ophthalmic optician to give him such treatment. The direction comes from the person who is qualified to know the medical conditions, to know what is to be done for his patient. The particular patient will always remain the patient of the medical practitioner, if he directs an unqualified person to give this treatment and that medical practitioner remains responsible in the eyes of the civil law, and in relation to his own oath as a medical practitioner, for what is going to be done for that patient.
Senator ffrench O'Carroll said that a general practitioner would not be competent to supervise specialised treatment. I quite accept that. That is why we have specialists and that is why we have general practitioners, but, after all, a general practitioner is not a person who can be shrugged aside. The general practitioner represents, I suppose, 75 per cent. of the medical profession in the country, the ordinary family doctor, and surely we can trust general practitioners to know when the conditions of the eyes of a patient require the attention of a specialist. If the conditions of a patient's eyes require the attention of a specialist, the House may be quite certain that the general practitioner, knowing that he is not competent, by reason, perhaps, of lack of experience, to advise on or treat the condition of that person's eyes, will refer him to an ophthalmic surgeon. I have no doubt, if the sub-section remains in the Bill, if it becomes law, that, in the ordinary sequence of events, an ophthalmic surgeon will, as a matter of practice and of habit, if he finds that orthoptic treatment is necessary, direct it to be carried out by an ophthalmic optician.
Therefore, just to summarise, the decision as to whether an ophthalmic optician shall carry out this treatment or not and the decision on the need for it and the type of it will be the decision of a medical practitioner who will be the family doctor and the doctor in charge of the patient in question. That medical practitioner will remain responsible for the consequences of the treatment and for what will be done. He will be responsible in relation to his own conscience and he will be responsible in relation to his liability at law. In these circumstances, I think that to express the anxieties that have been expressed by Senator Barniville and Senator ffrench O'Carroll, while understandable, is, I fear, magnifying the situation and making something more of this than, in fact, exists.
The common practice at the moment is that this kind of treatment is given only by untrained persons. It is necessary. It must continue to be given. Whether this sub-section is removed from this Bill or not, it will continue to be given by young girls, possibly receptionists in doctors' rooms, nurses and a variety of other people except opticians unless the sub-section remains in the Bill.
In relation to Senator ffrench O'Carroll's question, I will consider the matter. I do not want to be unreasonable or to give the Senator any short answer in this connection. However, this represents a ministerial amendment during the Committee Stage in the other House. It was inserted at my request on the Committee Stage and the Dáil, having fully considered it and having been satisfied that it was necessary, felt that it certainly did not contain any of the objections the two Senators felt it did contain.
Under Sections 24 and 25, ophthalmic opticians have to undergo a certain type of training and pass examinations. Will training in the treatment of squints be part of that course, because, if so, it might allay some of our fears?
Many of these squints have been cured by an ophthalmic surgeon in 20 minutes. If a general practitioner sends a child for optic treatment he may keep that child for years, when, as a matter of fact, the trouble can often be cured in ten or 20 minutes.
I do not want to intervene on what is a medical debate, but I suggest that non-medical members of the Seanad are qualified to speak on these matters, especially if they are briefed. I think the Minister must agree that one has not got to be a medical practitioner to discuss a Health Bill. I have been briefed in this connection by some eminent men and I think I am speaking for a large section of the medical profession. I do not want to delay the House, but I must say I think the Minister has been blowing hot and cold.
With regard to one of Senator Cox's amendments, the Minister was very strong that it was all right for certain things to be done. You cannot prevent the ordinary nurse or parent, or anybody else, from treating eye conditions, but it is different if it is done by people who set themselves up to be experts. If that is true about Senator Cox's amendment, then it is equally true here. You cannot prevent parents or anybody from treating squints.
However, the ophthalmic optician is the person whose very name almost suggests that he is qualified. I suggest that if what the Minister said earlier on the Bill is true, then it is equally true now. Following Senator Dr. ffrench O'Carroll, I do not think that the mere fact that a person is sent by a general practitioner is necessarily the answer to the objection. The medical profession generally seem to share that view. The representatives of the profession in the Seanad have been unanimous about it. Although I am not a member, I have been approached and instructed about this matter by members of the medical profession. I think I am only doing my duty by them in trying to put their point of view.
There is one last point which I should like to deal with and it concerns the people who hold diplomas in orthoptics. If this matter is as simple as all that, why should universities such as Oxford and London think it worth their while to provide diplomas in the subject, if it can be done almost by anybody without special training? If people with these diplomas are in Ireland, why should they not get some preferential treatment over people who have not gone to the expense or trouble of getting special qualifications?
The last question asked by the Senator is part of the problem. Some ophthalmic opticians have the particular diploma which the Senator mentions. Were this sub-section to be removed from the Bill, all these ophthalmic opticians, whom Senator O'Brien regards as being qualified because they have this diploma from some English university, would be expressly prohibited from providing the service in which they have become expert, while the untrained or unskilled person or nurse or doctor's receptionist would be entitled to do it. That is a reductio ad absurdum which I think the House should not too easily lend itself to.
Standards and qualifications will be a matter for the board, but, as I have indicated, there are ophthalmic opticians who have already a recognised diploma in this particular subject and naturally they are the ophthalmic opticians who carry out this treatment at the moment. I should imagine that the board, whose function it will be to lay down standards and to provide what qualifications will obtain in the future, will have to consider what an ophthalmic optician can do in relation to the eye and provide qualifications accordingly. I think it is largely a matter for the future.
The Minister suggested that, when a doctor gave a written direction, he might be still held as responsible. The section says "at the written direction". I take it that that would mean that if a doctor wrote on half a sheet of notepaper, it would be a direction to go to so and so. It seems to me that if there were to be any legal obligation on the doctor, or if he were to be responsible in any way for what happened afterwards, the words should be "under the written direction". The words in the section are "at the written direction".
Another point that has struck me is that the section does seem almost to ask for advertising. I should have thought that the point the Minister made would not require the addition of the ultimate words "or from suggesting that he has provided or is capable of providing as aforesaid". These words seem to me almost a direct invitation to a certain optician to advertise. I am not in the least suggesting that, if these points were met, they would remove the objections which have been voiced here this afternoon, but it seems to me that the last words are practically an invitation to advertise.
It is prohibited or controlled by Section 22. It is a general section.
It would be very difficult, if these words remain in Section 48, to forbid under Section 52 advertising of this kind. Section 52 deals merely with, so to speak, the manner of advertising.
It would involve advertising a registered optician.
It would.
I listened to this discussion with great interest and I have a great respect for the opinions of specialists; but I am not quite clear as to whether I am qualified to vote on this matter, after the discussion. The position is, surely, that the Bill is an improvement on the present situation in every direction, while it may not be perfect and while it does not do everything that people want it to do. My sympathies, owing to my associations, are to a very great extent with specialists, because I know a great many of them. At the present moment, as I understand it, an ophthalmic optician can do this work; and the Bill, and the particular section of it to which objection is taken, concerns the insertion of a general practitioner between the patient and the ophthalmic optician. I take it that that is so.
I have always heard from specialists that the best kind of general practitioner is the general practitioner who knows his limits and who, at a certain moment, says: "You ought to go and see Barniville"—not necessarily Barniville, but I am inserting Barniville as a particular person. Some of them might say: "You ought to go and see Dr. ffrench O'Carroll" or something of that kind. I have always heard from specialists—the most distinguished in Dublin—that that was one of the principal features of a good general practitioner—that he would say at a certain stage: "Look, I have done all I can for you and you ought to go and see a surgeon."
What is to happen when a parent finds a child with something in the nature of a squint? What is he going to do with the child? He surely brings that child to the ordinary practitioner. Is there any way of avoiding the situation in which that ordinary practitioner proposes to treat the child himself? I think there is none, as a general rule.
If the practitioner prescribes an ophthalmic surgeon, then I take it that Senator ffrench O'Carroll and Senator Barniville are satisfied. If the general practitioner says: "You ought to bring that child to Tralee, Limerick or some place, where she will see an eye specialist," the people here, who oppose this sub-section, would be quite satisfied; but, if he goes on treating it himself, nothing we can take out of or put into this Bill will affect that situation. I would like to know what the objection to the sub-section is. Those people at present can go to an ophthalmic optician. Under this sub-section, they cannot go to an ophthalmic optician, unless a general practitioner says that is what they are to do. Whether the wording of the Bill might be amended or not, as Senator Cox says, is another matter. From the practical point of view, the ordinary people in the country have not normally access to ophthalmic surgeons. They are dependent, I think, upon a dispensary doctor, upon their family doctor—upon the general practitioner—to tell them that they ought to see an oculist or an ophthalmic surgeon.
If it is true—and it appears to be accepted that it is true—that a person not being a doctor is qualified to do this work, why should he not be allowed under direction to do it? It would be, perhaps, an ideal situation if nobody ever prescribed anything for a child at all except a specialist, but, unfortunately, that situation is not available to us. Surely, it is best to insert a general practitioner between the patient and the ophthalmic optician rather than to leave the situation as it is at present. It would be very difficult not to agree with that argument. We are all at one in wanting to make the best possible decision for the patient. I feel inclined to stand up for the ordinary practitioner and to say that he is not such a reckless and careless person as has been represented. One would imagine from Dr. ffrench O'Carroll that a person goes to a general practitioner and the practitioner writes out a few lines and he says: "Go away to the shop" or to the ophthalmic optician. I do not think that is the way he does his business. If it is not, then the sub-section does not do the harm suggested.
It seems to me also clearly indicated that better treatment for the eyes, if it were possible, ought to be made available. I have serious doubts whether, if we delete this sub-section from the Bill, we are in fact making better treatment for the eyes available to the ordinary person. That is what worries me.
I believe that there are more ophthalmic surgeons available in the country and in the country districts than Professor Hayes suggests. We have the most specialist treatment now available in the country. With widespread motor transport, I think there is no difficulty for any person having a child, who may be suffering from complaints of that nature, examined by a thoroughly competent specialist. As a father—I am reticent to speak on this —I would hate to have my child treated by anyone other than a specialist, particularly for that complaint, and I think these specialists ought to be made available to the poor in the country. I should like to see, if there is any question of that, that they will be under the direction of a competent specialist and that the person who is giving treatment would have to report back to the specialist on the manner in which that treatment is being given.
I am sorry for wearying the House and this is the last time I am going to raise the matter. Senator Cox puts the position quite clearly. What I suggest to the Minister is in regard to sub-section (3), the last line of which says:—
"Or from suggesting that he has provided or is capable of providing as aforesaid."
That line there, to my mind, leaves the initiative entirely with the ophthalmic optician rather than with the medical practitioner, and I believe that that says to the ophthalmic optician that he is perfectly entitled to advertise himself as somebody who is competent to do optics and that, in view of his advertisement, which would be quite in order under that sub-section, the initiative will lie with him—that the parent will read or hear of his ability to do that particular treatment and will merely seek a certificate from the general practitioner in order to have treatment.
He must get it.
When I say he must get it, that is not any reflection on the general practitioner. I am pointing out that the family practitioner in those circumstances, when asked to give a certificate to people who have to go to a recognised firm in the town, established and with a reputation for carrying out a certain type of treatment, it is extremely difficult for him to refuse it. I do not want to press this amendment. The Minister knows what is the feeling of the House. We know he will do his best to meet us. If he could even drop these last few lines, it might ensure that the parent would attend with the child at the medical practitioner's, in the first instance.
On a question of procedure, the Minister is hoping to finish this Bill before six o'clock and would be very indebted to the House if he could finish now. I think, from Senator ffrench O'Carroll's last remark, that we are certainly not going to divide on this question now. If any part of the sub-section needs to be deleted, if necessary, we can divide on it on the next stage. Would the House agree to finish the Committee Stage? There will be a Fourth Stage.
Would the Senator withdraw the amendment?
I mentioned to the Minister before the Committee Stage was taken, the question of advertising by people supplying glasses resident in Border towns such as Derry, Armagh, Newry and Strabane. Those people would be living outside the jurisdiction. They would not be registered opticians, but would be advertising in newspapers circulating in the State. Those papers may or may not be published inside the jurisdiction, but they would hold out advertisements to encourage people to cross the Border to obtain glasses. I was wondering if the Minister could in any way prevent these people from enticing our people to come across to be supplied with glasses by people who had not been registered by the board.
I will consider that.
