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Seanad Éireann debate -
Wednesday, 11 Dec 1963

Vol. 57 No. 4

Health (Homes for Incapacitated Persons) Bill, 1963: Committee Stage.

SECTION 1.

I move amendment No. 1:

In subsection (1) to delete lines 12 to 15, inclusive, and substitute:

"‘incapacitated', in relation to a person, means incapable of looking after himself by reason of—

(a) old age,

(b) physical infirmity or a physical injury, defect or disease, or

(c) mental infirmity or a mental handicap;"

This is a point which was raised by Senator Jessop on Second Stage. I support it. There are people who are old without being incapacitated at that time of their lives and they would feel very upset if it were said they were physically or mentally incapacitated. If we must have an incapacitated person, or a person who is at least an inmate of these homes, must he be either physically or mentally infirm? I am not quite sure on reading the amendment again whether the Minister wishes to include all types of people in this section. Could an infant not be kept in a home where the other inmates of the home are very old people? It would not be very suitable for infants. Would it be included in the terms of the Bill that a child could be kept in a home where normally very old people are kept? In that respect, I am quite sure that we should not, in the amendment, put in the word "and" in sub-paragraph (a)—"old age and physically incapacitated or mentally incapacitated". In other words an incapacitated person means a person incapable of looking after himself by reason of old age and physical infirmity or mental infirmity as the case may be.

In that respect, we had the Minister replying to a question in the Dáil some time ago, as reported at column 1216 of the Official Report, volume 205 No 9. The question is headed Homes for Incapacitated and Old Persons:

Mr. O.J. Flanagan asked the Minister for Health (a) the number of homes in the State in which incapacitated and old persons are kept for private profit, and the total number of persons so kept in these homes; (b) the number of homes in which such persons are kept by charitable institutions, and the number of persons kept in such homes; and (c) the number of homes in which such persons are kept (i) by health or other local authorities, and (ii) by State authorities.

I take it that in this Bill we are dealing with incapacitated and old people. I certainly would support this amendment in order to get some clarification on that point.

Further on, the Minister mentions these homes: it is always incapacitated and old persons. It creates a doubt in my mind as to what is covered by the Bill if incapacitated but not old people can be kept in the same home as incapacitated and old people. I should like the Minister to clarify that point.

When the Bill was before the House on the Second Reading, I was under the impression that it was not necessary to define "physical infirmity" further. I felt that people who, by reason of their age, had to be looked after in a home were, ipso facto, physically infirm or mentally infirm. However, if it will put the matter beyond all doubt that a home in which an old person, who of himself would not admit to physical infirmity or mental infirmity, is maintained then I shall accept the amendment.

I am very glad the Minister does so and I am also pleased with what he says about "incapacitated" and "old". Will the Bill deal with homes where incapacitated persons of a very youthful age can be kept?

Yes, it does. We do not have to say "and". If we were to do that, then two conditions must be fulfilled—(1) the person must be old and (2) the person must be physically infirm. We do not want to do that: at least we assume Senator Jessop did not wish to do that, but rather that his purpose was to ensure that any homes in which an old person simpliciter was maintained for profit would be subject to the provisions of this Bill. I am prepared to put that matter beyond doubt and to say “yes” and that the Bill accordingly so provides. However, I do not want to accept an amendment which will lay down two conditions, the first being that the person must be old and the second that he must be mentally infirm or physically infirm. I wish merely to let it run that one condition only is necessary—either that a person must be aged or that he must be physically infirm or mentally infirm. If more than one such person is maintained for profit in a home then that home will come within the provisions of this Bill.

I think the amendment as drafted meets what the Minister has in mind.

I am accepting the amendment.

Amendment agreed to.

Amendments Nos. 2 and 3 might be discussed together.

I think they are two separate principles. Proviso (a) is that premises in which no incapacitated person is maintained for private profit will be excluded from the Bill.

We can take the two for discussion and get a separate decision on each.

Oh yes, I have no objection.

I move amendment No. 2:

In subsection (1) to delete paragraph (a), lines 18 and 19.

The object of the second amendment is to make quite sure that all homes may be inspected by inspectors and, if we can amend the Bill further, that they must be registered and must show a certificate of registration in a prominent place. The two second matters I have mentioned will come up later in the discussion.

I think as a matter of general principle that all homes of this kind should be inspected and should come under the provisions of the Bill in general. We are very grateful, of course, to the many voluntary charitable bodies who are doing this work. But, on the other hand, there is the possibility that conditions in these charitable homes may be bad. I have some vague evidence —I will not say more than vague— that in some cases conditions are bad, and that is the kind of thing we should prevent by legislation.

In a sense these non-profit making homes are in competition with profitmaking homes. It could be that these homes can take people without charging them only by giving them what might be called substandard conditions. There is a risk of that and it would be well if the Bill prevented that risk so that all homes were liable to inspection and came under the provisions of the Bill. I do not think there could be any objection to this by any of the homes. After all, schools run by religious and charitable bodies are regularly inspected. They do not resent that or feel that it is an infringement of their liberties.

I argue on principle that all homes should be inspected. That is the reason I also put down the second amendment. I do not see why one old or incapacitated person may under the Bill he treated with the greatest carelessness or neglect. One person does not count. Is it democratic, is it Christian, to regard one person as not counting? There must be two, three, four, five or six, but I do not see that distinction. On the Second Reading I quoted the text: "If one sparrow should fall to the ground your Heavenly Father heeds it." Why should we neglect one sparrow? Why should we start only when there are two? Perhaps there are administrative difficulties. If they are very great perhaps we should yield to them, but otherwise I put this amendment for the sake of the one sparrow and perhaps the Minister will see his way to accepting one or both of these sparrows.

I would be against the first amendment, that is, amendment No. 2. I think this Bill was introduced for the purpose of preventing abuses in the case of people who for reward brought old people or ill people into their premises to look after them and failed to look after them properly or perhaps even neglected them. I think the important words in the proviso excluding premises in which no incapacitated person is maintained for private profit are "private profit." It is extremely unlikely that a charitable institution run by a religious order, or indeed, by a group of lay people would neglect people under their care or abuse them. I do not think we have any evidence of abuse in such homes and, therefore, I think it was a good thing to exclude charitable institutions of this sort from the provisions of the Bill until such time as there is evidence that it is necessary to include them. I would like to feel and hope that that day will never come.

I would agree with the second amendment proposed by Senator Stanford and would support him there. If one old person is kept for reward and is not properly looked after or is neglected, the State should see to it that that does not continue. If you go back to existing legislation which deals with young infants who are boarded out you will find that if a person takes one child into his or her house and rears it for reward that home becomes subject to inspection and the enforcing authority sees to it that the child is properly looked after.

With regard to the first of the amendments under discussion at present, if this section goes into the Bill as it finally passes this phrase in paragraph (a) will be difficult to interpret and difficult to implement. What is meant by private profit? I notice that Senator Fitzpatrick used the phrase "for reward". If "reward" were mentioned instead of "private profit" it would be more understandable. What is going to happen if this section stands in the eventual Act? Will it have to be proved before a court that private profit was made on keeping these old people? It might be argued that, in fact, there was a loss. In fact, we all see in our mind the situation where some money reward is taken for keeping aged or incapacitated people. I am not happy at all about the "private profit" phrase in the section and I should like to know what the Minister has to say about this amendment.

With regard to the second amendment I also think that the Bill should cover one sparrow as well as a nest and I support the amendment.

I would ask the Seanad to reject both these amendments. As Senator Fitzpatrick pointed out, the Bill was introduced in order to prevent abuses which are alleged to exist—mind you, not abuses established after due inquiry but abuses which are alleged to exist. That is the purpose of the Bill. It is not the purpose of the Bill to establish an inquisition into premises which are ostensibly and genuinely charitable institutions. That is why the phrase "private profit" forms part of the definition. If a person receives another, maintains him and tends him either at a loss to himself or at the expense of charitable members of the community, then it may be said that he is not operating these premises for the purpose of private profit. The homes which have been singled out for criticism are places which it is alleged are run for private profit and in which old persons or infirm persons or persons mentally or otherwise incapable are taken in and, instead of receiving the attention which should be given to them in return for the amount which is paid, are exploited and, as a corollary, their friends and relatives exploited also. These are the homes which, it is alleged, exist, which may exist but in no single case have been proven to me to exist—but that is by the way.

The purpose of this Bill is to ensure that if such homes should be in existence they will not be permitted to continue and that persons will not be exploited and the relatives of persons exploited simply because for one reason or another they have to enter such homes. We cannot go outside that objective.

I regard this definition of the word "home" as it appears in Section 1 as a vital part of the Bill and, so far as the paragraph is concerned, if the amendment is carried then that is the end of the Bill so far as I and the Government are concerned. We are not going to permit this Bill to be amended so as to set up a system of inspection here which would include within its ambit these charitable institutions which we all know exist and about which no complaint has been made. But, we are prepared to deal with these homes which are run as commercial institutions where people are taken in to be looked after, to be attended upon, but where, as a result of that, the proprietor of these homes makes a profit—it may be that the profit is more or less but it is a profit in the sense that he receives from the maintenance of such persons more than he expends in maintaining them.

The Minister has made very clear the attitude of the Government towards the Bill. But we are speaking as Senators, as one of the Houses of Parliament, whose object is to make Bills as good as possible, irrespective of the wishes of the Government. Very often the Government have great wisdom but they have not a complete monopoly of wisdom. It may well be that the Parliament, which is the ultimate government of the country, not the Cabinet, can improve Bills. That is what we are trying to do in this amendment. We are trying to do what we think would make a better Bill. If the House says "no" that is the end of it. But if the House says "yes", the Government will have to think again. But, it need not concern us in the slightest degree what the Government want to do with the Bill.

Unless you want to kill it and you can kill it quite readily now.

What concerns us is what is the best kind of Bill this House can produce after consideration and whatever the Government say, in a sense, is irrelevant. That is the function of this House and on that I stand.

Now I say this: If these non-profitmaking homes have nothing to fear with regard to inspection or any other provision in this Bill, why should they be exempted? I agree that probably 90 per cent of them have excellent conditions for the patients, but I suspect— and I say I suspect; I cannot give concrete evidence for this—and I have reason for suspecting that some ten per cent at least do not give adequate conditions and these are the people that some of us are trying to get after. We have this kind of inspection, as I said, for religious and charitable bodies in education. Why should we not also have it in health?

There are three types of person concerned in this legislation. Let us have them quite clear in our minds: (1) the authorities of non-profitmaking homes; (2) the authorities of profitmaking homes; (3) possible and actual patients.

Now, obviously, as the Bill stands, it very nicely suits the authorities of non-profitmaking homes. They, naturally, want this exemption. We all understand that. But the authorities of profitmaking homes may have a grievance, because if conditions in these non-profitmaking homes, which may be substandard, are such that if brought up to standard they would have to charge something, then, in a sense, these non-profitmaking homes are in competition with the authorities of profitmaking homes. I am afraid that is rather complicated, but I think it is perfectly clear if you think about it. If people are doing something for nothing but not doing it up to the standard that the country expects, it is unfair to people who are doing something for a monetary consideration when their standards are up to what the counrty expects. So, I think there is a certain injustice to the authorities of profitmaking homes in this Bill.

Thirdly, there are the patients—and these are the persons we are really concerned for. I say there is a risk that some of our elderly or incapacitated relations—the relations of us in this House—may eventually go to a charitable institution where, as a result of not amending this Bill, the conditions will be unsuitable and inadequate. I am not prepared to take that risk, and I hope the House is not either.

I think the Minister is wise in resisting this amendment because, as he has said, its acceptance would render the Bill impossible to put into effect. I listened to the discussion here several months ago that was initiated by certain members of the Labour group and I understood that they were concerned only with these institutions that were being run for profit.

"For reward", I think was the phrase used.

There is no fundamental difference between "profit" and "reward".

I am afraid there is, according to what the Minister says.

If we take it upon ourselves to go about regulating the affairs of those institutions that are not being run for profit or reward we will be going too far. We will be establishing, to my mind, a totalitarian system here, which nobody wants. You might as well say that we would be justified then in going into people's homes to regulate their affairs when these homes are not being run for profit.

We do in certain circumstances go into people's homes and take them up for cruelty to children, for example.

If it transpired that there were abuses in these institutions that are being run without profit, I am very sure the inmates of these institutions would find a remedy. They would be able to attract public attention to their plight in these places without any inspection by officers of the State. In any case, the acceptance of this amendment would involve the appointment of more and more inspectors and I do not think that what would be achieved would justify that.

Would the Minister comment on the second amendment? I should be grateful to hear his views on that.

I accept what the Minister says on the first amendment but, like Senator Stanford, I am not convinced that the Minister has made a case against the second amendment and I should like to hear him further on that.

The second amendment which proposes to delete from the interpretation the excluder of premises in which not more than one incapacitated person is maintained in fact is consequent upon the first amendment. As Senator Murphy pointed out it is going to be rather difficult in most circumstances to determine whether or not a person is maintained for private profit if only one person is concerned. Normally, a person will not take a solitary invalid, that is, one only, into his home for private profit. He will do it most likely out of the goodness of his heart, going no further than to ensure that he will not suffer significant loss. I do not want to confuse the issue. That is why I thought these two amendments should be discussed separately. Senator Standford's first amendment raises the issue that the Bill is to be expanded in order to cover what are ostensibly and genuinely charitable institutions. Between institutions which are ostensibly and genuinely charitable ones, there is another class of institution where it may be a matter of doubt as to whether the person is being maintained solely for private profit. That is why it would be quite impossible in the majority of cases, as Senator Murphy pointed out, to determine whether or not there was an element of private profit where there is only one single person. But, where you have two people being maintained in a home, and as generally would be the case, though not invariably the case, they were not related to each other or in any way associated, even by ties of friendship, with the owner of the home, then it is easier to prove that this element of private profit exists. It would be difficult, as I have tried to show, if there were only one person concerned. It is much less difficult if there are two people being maintained and still much less difficult, in fact, comparatively easy, if there are three people being maintained. The dividing line in deciding this issue would appear in my judgment to be that if there is one person you cannot prove one way or the other that he is being maintained for profit and it will remain a matter of doubt; but if there are two people concerned the doubt is very much less, and you can proceed fairly safely on the assumption that if there are even more than two people being maintained in any premises, then they are being maintained for private profit. That is why I would ask the House not to accept Senator Stanford's amendment.

Much of what the Minister says has obviously some force, but let us look at it from another point of view. If we pass the Bill as it is now then it would mean that in every home, where there is one person, the authorities in that home can do what they like with that person, but where there are two people they must be careful. Even if the Bill cannot very easily be enforced for one person I think the fact that it is in the Bill means that the one person has the sword of justice protecting him.

I entirely agree with Senator Stanford. If the Bill goes through as it is at present drafted there is nothing to prevent an individual taking an incapacitated person into his home, charging him for maintaining him and proceeding to treat him in a most disgraceful manner by neglecting him or not feeding him properly, or not looking after him properly. The Bill will be powerless to do anything about it. I think it would be, if we find a person taking an incapacitated stranger into his house and keeping him there. It is highly likely that he is doing so for profit or reward. Indeed, it might not be going too far to make it prima facie that he was keeping him for profit or reward. I think with a little more thought a section could be put into the Bill which would exclude close relatives but which would protect a person who is taken in by a stranger and neglected, while at the same time that stranger is being paid for looking after him.

I think it is a favourite subterfuge to state the extreme case as if it were a general one.

I do not want to interrupt the Minister but if it were not for the extreme case there would be no necessity for this Bill, and that is the basis on which it was introduced.

This Bill was not introduced on that basis at all. It was introduced because fears were expressed here, and elsewhere, that inmates of these homes and institutions are subject to exploitation. I have explained, and I repeat it, that no case of such exploitation has been brought to my notice in terms which would warrant me having that matter investigated and pursued. So, it is not because such cases are known to exist but because it is feared that they exist that this Bill has been brought in. We have been told here that by this Bill I am giving permission for people to take persons into their premises and into their houses and there to exploit them and it is said that there is nothing to prevent this being done. That, I think, is what Senator Fitzpatrick said—there is nothing to prevent a person taking an incapacitated person into his home and not looking after him properly, not feeding him properly. Of course, that is not the case at all, there is something to prevent it. After all, the people who have to go to these homes are members of a family and are sent to the homes because the family wish them to be properly looked after and because the members of the family are not in a position to look after them themselves. Therefore, they are prepared to pay for them in a home. They are not being received for nothing into these homes. Remember it is only with a home or a house in which a person is being received for private profit that the Bill is concerned. These people are being paid for by their families. Are we to believe that these families are so indifferent to their welfare? Are we to believe that their spouses, or sons or daughters are so indifferent that they are going to permit these people to be maltreated in the way in which Senator Stanford has suggested.

Unless we feared that, we would not have the Bill at all.

We fear many things in this world.

You are fearing Cork at the present time.

We fear many things in this world but at least we are entitled to proceed on the assumption that every one of our neighbours is as concerned about filial duty and the practice of the virtue of charity as we are ourselves. We are saying here, if we are to accept this, that people whom we know, whom we meet, people of the ordinary status in society as ourselves, are so inhuman that they will send their close relatives into these homes to be exploited, that they will pay for them in the homes and that they will not see to it that those of their relatives who may be in homes will be properly looked after.

Of course, everybody knows that there are people who are failing in their ordinary social duties but we do not go around saying that because a man is a pickpocket every other man must go around with a lock on his hip pocket, or that every lady must have her handbag chained on to her because there happen to be snatch thieves. We do not go to that extent, but it is proposed to do that in this amendment, that because some people may act inhumanely every person should be regarded as a potential offender. I do not think that that is right social outlook. We have to consider the position of people who are prepared to take people into their homes and look after them. If a son or other close relative will pay for such a person, surely he will be prepared to see that that relative is properly attended to. That is what is involved.

We must act, as I have said, on the ordinary principle that everybody else is just as decent and humane as we are ourselves. If we do that we will not go to the extreme indicated by Senator Ó Ciosáin who pointed out what, in fact, had been suggested by Senator Stanford was that because it was believed that ten per cent of these homes were not being properly conducted then the State had a right to walk in and inspect them. Carry that just a little step further and say that in one house there is a person living who is not a member of the family. He may be paying for himself or somebody may be paying for him. We suspect that he is not being properly treated, and, therefore, the State has a right to walk in, to inspect every room in that house, and subject every member of that household to an inquisition, and where do we go? What is the difference between that and the system which we were all deploring eighteen or nineteen years ago?

We must realise that if we are going to protect the people against undue interference by the State we have to draw the line somewhere. The line I am drawing is this—where there is only one person concerned, we cannot assume that he is being maintained for private profit, nor may we assume that he will not be properly treated. Senator Stanford has referred to a Biblical story, but there was another episode where a person walking with two angels was asked whether if only ten per cent were likely to be just people the Lord would then spare two cities. That is a much better parallel than the one the Senator quoted.

The House is no doubt aware that the Minister has been referring to Sodom and Gomorrah in his last statement. I think that if he looks up the actual bargaining between Abraham and the Almighty on that occasion he will find that he has not quite got his statistics right. Perhaps, however, these Biblical analogies cancel each other out, and we will not refer to them again.

I still do not think that three-quarters of what the Minister has just said has anything whatever to do with the difference between having one person and two people in a home. His argument means that if one family can look after one patient two families can look after two, and we could go right through the Bill and say that it was all unnecessary. I ask the House to consider that one person who is weak and incapacitated should not be left to the mercies of exploiters, as may happen if the Bill is not strengthened. I see certain administrative difficulties, but even if the Minister does not administer it strictly and sharply in the case of one person the fact that the Bill does not leave this loophole for homes with one person will be a deterrent and that is what these amendments ask for.

I would like to ask Senators who are supporting this amendment if they would want to include a house in the country where an old age pensioner, perhaps a neighbour or an old friend, has gone to live because he was fond of the people or they were fond of him, pays them, or sometimes only promises them something, and they keep him for the rest of his days. Does Senator Stanford want that house to be inspected? There are lots of cases like that, and I would not like to see anybody interfering with that relationship in the country at any rate.

I have accepted the first amendment.

Amendment put and declared lost.

I move amendment No. 3:

In subsection (1) to delete paragraph (b), lines 20 and 21.

I should like to press this amendment.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 25; Níl, 18.

  • Ahern, Liam.
  • Boland, Gerald.
  • Brady, Seán.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Connolly O'Brien, Nora.
  • Costelloe, John.
  • Donegan, Bartholomew.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Healy, Augustine A.
  • Hogan, Daniel.
  • Killilea, Mark.
  • Mooney, Joseph M.
  • Nash, John Joseph.
  • Ó Ciosáin, Éamon.
  • Ó Donnabháin, Seán.
  • Ó Maoláin, Tomás.
  • Ó Siochfhradha, Pádraig.
  • O'Sullivan, Ted.
  • Ruane, Thomas.
  • Ryan, Eoin.
  • Ryan, William.
  • Yeats, Michael.

Níl

  • Butler, John.
  • Crowley, Patrick.
  • Davidson, Mary F.
  • Desmond, Cornelius.
  • Fitzgerald, John.
  • Fitzpatrick, Thomas J.
  • L'Estrange, Gerald.
  • Lindsay, Patrick J.
  • McAuliffe, Timothy.
  • McDonald, Charles.
  • Mannion, John.
  • Murphy, Dominick F.
  • O'Brien, George.
  • Ó Conalláin, Dónall.
  • Prendergast, Micheál A.
  • Quigley, Joseph.
  • Ross, J.N.
  • Stanford, William B.
Tellers:—Senators O'Farrell and Ó Donnabháin; Níl: Senators Murphy and Stanford.
Amendment declared lost.
Section 1, as amended, agreed to.
NEW SECTION.

I move amendment No. 4:

Before Section 2 to insert a new section as follows:

"(1) The Minister shall effect the registration of any person or persons in respect of an incapacitated persons' or old persons' home under this Act and shall issue a certificate in respect of each home, subject to such conditions (to be specified in the certificate of registration) as he may consider appropriate for securing—

(a) that the number of persons received in the home and in particular rooms in the home at any one time does not exceed such number as may be specified in the certificate of registration;

(b) that the rooms occupied or to be occupied by persons in the home are suitable in all respects for such persons;

(c) that a person with such qualifications or experience as may be specified by the Minister is in charge of the home and of the persons employed thereat;

(d) that the administration of sedatives and injections is carried out only by qualified persons and that a register of stocks of drugs be kept in the premises and be available for inspection by a medical practitioner or by the person or persons authorised to inspect the premises;

(e) that the home is adequately staffed both as respects the number and as respects the experience of the persons employed thereat and is adequately heated, lighted, ventilated and equipped with suitable fittings, furniture and equipment;

(f) that suitable accommodation (including washing facilities and sanitary conveniences) is provided in the homes;

(g) that the person carrying on the home shall take all reasonable steps to satisfy the Minister that his requirements as to staffing, qualifications and experience of staff and cleanliness of the premises are being complied with;

(h) that the premises, fittings, furniture and equipment used in connection with the home are adequately maintained;

(i) that the persons received in the home receive adequate care and attention;

(j) that there are adequate arrangements for feeding persons received in the home and that an adequate and suitable diet is provided for them;

(k) that records are kept in relation to the persons received in the home containing such particulars as may be specified by the Minister;

(l) that an adequate properly trained inspection staff be appointed by the Minister, or by the health authorities under the direction of the Minister, with authority to enter such homes or premises for the purpose of ensuring that the requirements of this section are complied with.

(2) The Minister shall cause to be drawn up a register of all homes for incapacitated persons and old persons, copies of which register shall be available on request from the Department of Health or from the local authority.

(3) Any person aggrieved by a condition subject to which registration is effected under subsection (1) of this section may appeal to the Courts and on any such appeal the Court may confirm, reverse or vary such condition.

(4) A person authorised under subsection (1) (1) of this section to inspect premises may visit and interview in private any person in the home—

(a) for the purpose of investigating any complaint as to his treatment made by or on behalf of the person, or

(b) in any case where the person so authorised has reasonable cause to believe that a person in the home is not receiving proper care.

(5) Where, in relation to a home, there is a contravention of a provision of this section, the person carrying on the home and any person concerned with the management thereof shall be guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding fifty pounds, and, in the case of a continuing offence, to a further fine (not exceeding fifty pounds in all) not exceeding five pounds for each day on which the offence is continued or, at the discretion of the Court, to imprisonment for a term not exceeding three months or to both the fine or fines and the imprisonment.

(6) (a) Where a person is convicted of an offence under this section, the Court may, either in addition to or in substitution for the penalties referred to in subsection (5) of this section, by order declare that the person shall be disqualified during such period as may be specified in the order for carrying on, or taking part in the management of, the home to which the conviction related or, at the discretion of the Court, any home.

(b) A person in respect of whom an order is made under this subsection shall not during the period specified in the order carry on, or take part in the management of, the home specified in the order or any home, as the case may be.

(c) A person who contravenes paragraph (b) of this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding fifty pounds and, in the case of a continuing offence, to a further fine (not exceeding fifty pounds in all) not exceeding five pounds for each day on which the offence is continued or, at the discretion of the Court, to imprisonment for a term not exceeding three months or to both the fine or fines and the imprisonment.

(7) A person who wilfully obstructs the execution of a provision of this section shall be guilty of an offence and shall be liable, on summary conviction to a fine not exceeding fifty pounds and, in the case of a continuing offence, to a further fine (not exceeding fifty pounds in all) not exceeding five pounds for each day on which the offence is continued or, at the discretion of the Court, to imprisonment for a term not exceeding three months or to both the fine or fines and the imprisonment."

The amendment is already in the hands of the members so I do not propose to read it through.

I have a feeling that in our thinking on this Bill, the Minister, myself and my colleagues came very close to full agreement as to what was necessary to make the Health (Homes for Incapacitated Persons) Bill, 1963 an incisive weapon capable of cutting through red tape and outmoded practices and leaving only a number of simple, clearly-stated conditions and rules which would safeguard our infirm aged and incurably ill persons who, for any reason, have had to be placed in the homes to which this Bill relates.

I can see clearly the Minister's mind moving to build his bridge to bring these helpless people across a chasm of neglect to a haven of safety. What, I ask myself, caused the Minister to leave the bridge only half built?

The amendment now before us is the other half of the bridge which the Minister should have completed. With the resources and advice available to him he could have built the entire bridge much better than we can. Unless the Minister is prepared to put in the steel girder of registration right across the gap, I feel his bridge, this Bill, is unsafe and will not serve the purpose for which it was sought.

With the registration of these homes the Minister and his inspectors will have a map before them with all the institutions clearly marked. Having this, he can do his job as Minister for Health in a more efficient manner and ensure that through his inspection staff, whether operated through the local authorities or otherwise, all homes will be inspected at some time or another in the course of a stated interval of time.

I do not think it is necessary that I should go through the various clauses of the amendment. I have endeavoured to make them as clear and concise as possible. Some of them are, in fact, taken from the list of things the Minister proposed to take power to do by regulation. I feel, however, that the safest way to ensure their being operated is to have them written into the Act for all to see.

Perhaps I should mention clause (d). The Minister thinks I am unduly cautious on the question of the availability and administration of drugs. I would ask if anyone can be over-cautious where a human life is concerned. An inexperienced person might think a particular drug took too long to act and might, as we say, double up, or a person, with various other duties to do, might forget that a tablet had already been given and give another. A qualified person would hardly be likely to make such errors. For various obvious reasons, too, there is need for the keeping of a register of drugs which, as the amendment says, should be available for inspection by a medical practitioner or other authorised person. Perhaps, too, it might be wise to have a record of the supply source of all drugs.

Subsection (2) of the proposed new section would enable persons to obtain a list of registered homes. This would serve as a guide to persons seeking accommodation for an infirm relative and make it more difficult for an unscrupulous person to take a chance and receive an invalid or two in unsuitable places under cover of saying nothing about it.

Subsection 4 (a) and (b) introduce a subject which is, I feel, absolutely necessary to ensure peace of mind for patients and relatives. The provision for inspectors to interview patients in private is an extra safeguard that they will receive proper care and attention. The provision will not cause inconvenience to anyone and will not add to the cost of running the homes.

Subsections (5) to (7) are the provisions which the Minister has already put in the Bill, as circulated, with a few minor changes to suit the amendment which I hope the Minister will accept.

I hope the Minister will not say I am asking too much. I am merely trying to improve his proposals in some cases and add a few essentials here and there. If he will give a good look at my amendment, I feel sure he will agree it is quite reasonable and if he is honest with himself. I do not think he can throw it overboard. My colleagues and I, however, cannot be satisfied if he still merely wants to take power to make regulations. We feel we must insist on the most important stipulation in the amendment which is, that the Minister must effect the registration of any person who undertakes to run or, in fact, is at present running a home for persons for whose care and safety this Bill was sought. Without registration, the Bill goes only half way towards solving the problem and half way is not far enough.

We do not claim our amendment covers all that is necessary to make the homes perfect but it would improve the Bill before us and would not add to the cost of the Bill as introduced. Perhaps, the Minister feels he should have the right to make regulations to cover other essential matters which our amendments may have omitted, such as fire protection, etc. We would have no objection to his taking that power so long as the requirements set out in our amendment are written into the Bill.

If I seem to be pressing this matter too persistently or to appear to ask too much for our aged and infirm people, I would ask the Minister and the House to recall a few words from a speech made not so long ago in this building and now holding especial poignancy for all of us:

"We need men, who can dream of things that never were and ask why not?"

I missed an opportunity of speaking on the Second Stage of this Bill but I think any remarks I make now will still be relevant on this amendment. This Bill was introduced, I should like to feel, as a result of a discussion in this House on a motion proposed by Senator Miss Davidson. In that discussion I think it was established that there had been in the past, cases of abuses in homes catering for incapacitated persons within the meaning of this Bill. I was satisfied that a case had been made on those lines and I assumed that the Minister would accept the motion proposed by Senator Miss Davidson. I was, then, very surprised, indeed, that, in his reply to that debate, the Minister seemed to resent very much that the motion had been introduced and he seemed to give Senator Miss Davidson a telling off. However, the Bill followed that discussion in this House.

I think the object of the Bill is to eliminate abuses but that it is not intended to hand over nursing homes and other types of homes covered by the Bill to bureaucrats or to enforce unnecessary interference with the running of these homes. I am satisfied that there are, indeed, many very well-run homes in this country by dedicated communities or dedicated groups of charitable individuals and that there are no abuses of any description in those homes. The Bill has set out to eliminate abuses and I feel it is strong enough to eliminate them. If we have registration, as suggested by the amendment, I think we are going too far. We would then have a state of affairs where all existing homes would have to apply for registration and be subject immediately to inspection before they could get a certificate and where any other home in which it was proposed to cater for incapacitated persons would have to get a certificate before it could go into business.

As somebody said earlier, you have to think of the homes and you have to think of the patients in the homes. Not alone would well-run homes become subject to a form of drastic inspection but the patients in those homes would become subject to inspection. You might reach a state where the standard would become very high and the cost of running these homes would become excessive. If that point were reached the people who can now afford to send their relatives to be looked after in comfort in these well-run homes at modest cost would be unable to continue to do so and in that way the amendment might and I think would defeat its own object.

I should not like to think that we should reach the stage in this country when all the nursing homes and homes covered by the Bill would be handed over to bureaucrats and subjected to unnecessary interference and unnecessary inspection. I repeat that I am all in favour of eliminating the type of institution which was described by Senator Miss Davidson when she spoke so forcefully to the motion in this House some months ago and I am satisfied that the Bill as it stands, with the possible exception of subsection (1) upon which the Minister insists and on which there was a Division just now, goes far enough to eliminate the things which we all so strongly resent and would like to see done away with.

I support the amendment specifically with regard to registration. I have had experience lately of people in these homes which were not registered. The people were under notice to leave these homes because the amount they had in pensions or emoluments was not sufficient to pay for them with the present day cost of living. They were actually asked to leave and they had been so long away from their own homes that they really had no homes to go to. The case arose where the county councils concerned with these people were asked if they would subsidise them in the homes. I had experience of approaching the county councils and asking them to subsidise them. They said they could not do so for the reason that they were not registered or recognised by the State.

Registration is the most important thing we can have. These people might be slightly mentally incapacitated. They might be physically incapacitated or slightly mentally incapacitated but not sufficiently incapacitated mentally to be brought to a mental home. This is the type of people in whom I am interested at the moment as we have such a case on hands and I should not like to see them brought to a mental home. If they do not get money from the local authority they have no other source from which to get it and they will be sent out of these homes into mental hospitals. As we know, there are certain types of people who do not want to be sent to a mental home. We know quite well that they may be slightly mentally deficient but not a case for a mental home. I have a letter from a county manager saying he would be prepared to pay a fee for people in homes but that he cannot do so because they are not registered or recognised.

Has the Senator got the letter?

It is a letter from the Kerry county manager.

Would the Senator read it for us?

I have not got it on me but I can go and get it. I have the name of the county manager and, if necessary, I can give the name of the person concerned to the Minister or a copy of the letter.

I should like to support the amendment. My only fear is that it may be too big a package deal, if I may so phrase it, for the Minister to accept. It asks for rather more than the Minister would even consider accepting, perhaps, but I should like in that case to appeal to him not to reject it in whole and in part. I personally support it as a whole, but he may say that he cannot accept the whole. Then I should like to draw his attention to parts which should be specially stressed and, if necessary, we could bring them in on Report. I should not like them to fall by the wayside because they are a part of this record amendment in this House, for in the 15 years I have been here I do not think I have seen quite so comprehensive an amendment before.

There are two matters for special consideration. One, as Senator McAuliffe has said, is the matter of registration and I do believe that we should, if possible, have that. The second is paragraph (d) of subsection (1) of the amendment which says that the administration of sedatives and injections should be carried out only by qualified persons. I do think these are important matters. If it should be that the whole amendment does not pass, I hope that these two matters will be given special consideration later.

I support the amendment. I want to put a little emphasis on some points made by previous speakers because they are very important. Despite the fact that Senator Stanford has described as a package deal the amendment before us at present, I think it is a rather important package deal and one which I believe should be looked at in this light seriously by the Minister. Quite candidly, I submit that unless we can insist on having some kind of package deal of this sort written into the Bill, the Bill is not worth the paper it is written on and will inevitably fail miserably from the outset to achieve what it set out to do according to the promises made by the Minister in this House.

I want to confine my comments to two aspects of the matter before us. One is the obvious lack of one of the elementary if not the most essential provisions that should be written into this Bill if it is to be even half effective, that is, registration.

I do not think it is quite good enough for the Minister to come along to us and say that we are alleging that there are abuses. By his very speeches even in defence of his attitude to the amendments that have been taken already this afternoon he has conveyed, to me, at any rate, quite clearly, that his object is to throw doubt even on the necessity for this Bill at this stage. But, is it not clear that unless the Bill carries the fundamental element of registration that any Bill of this sort would naturally be expected to contain we cannot possibly hope to get at the abuses that we all in our hearts do know to exist if we cannot, even from this point on, decide on where we are to look for them? Without registration, it is clearly impossible for anybody to satisfy himself that these abuses do not exist.

I want merely to make this observation on that aspect of this problem, that I find it extremely difficult to accept a contention that either the Minister or his Department or his Departmental officials are not very well aware by now that abuses do exist and I do not think it is quite fair to suggest that they do not.

That is to suggest that I am misleading the House.

Well, Sir——

You must assume that I am speaking truthfully when I say that we have no record of these abuses.

I accept the Minister's statement as made now but I think I am entitled to make the observation that I find it extremely difficult to accept a situation in which the Minister for Health and his Department at this stage of our knowledge of this problem are still looking for absolute evidence of abuses.

I am looking for evidence. You cannot make a charge without trying to support it.

Very well. If you will allow me. About 12 months ago I put my signature in support of a motion in respect of the problem to which this Bill is related and I did not even have to look for evidence. I have a letter here signed by a responsible official of a responsible organisation and in that letter six specific homes are mentioned.

Would the Senator read the letter?

I prefer to pass the letter to the Minister, if you do not mind, through the Chair, as we are supposed to do, to try to remedy this defect that he is complaining about this evening in relation to lack of evidence of abuses, but I do propose to quote the letter in one or two respects. In the case of the first home they allude to they describe this home as badly run, with no night attention whatever.

On a point of order, if the Senator is going to quote bits out of the letter, particularly when he refers to six homes, that letter ought to be made available to all the members of the House by being read in full.

On a point of order. I suggest that the letter cannot be passed to the Minister except through the Chair, that it must pass through the proper channels. It should go to the Chair.

Very well. If that is how you want it, you can have the whole thing. I thought I was being kind to the Minister in putting it at his disposal.

No. Do not withhold any information from the Seanad.

The letter is addressed to me by the Irish Nurses' Organisation. The date is 1st August, 1962. It reads as follows:

With reference to our letter of the 28th May re registration and inspection of nursing homes, a meeting of the Private Nurses' Section of the Organisation was held on Thursday, 26th July, and the following nursing homes were reported as unsatisfactory and in need of investigation:— Martinville Nursing Home (Mrs. T. Kiely), 23 Corrig Avenue, Dún Laoghaire; Mrs. B. Royce, SRN, 4 Willowbank (off York Road), Dún Laoghaire—no night attention; St. Jude's, 18 Clarinda Park, E., Dún Laoghaire—very badly run; Mrs. McCarthy, Iona Nursing Home, 41 Iona Road, Glasnevin (male nurse looking after female patients); St. John's Nursing Home, 68 Palmerston Road, Rathmines — no trained staff except proprietor; Sancta Anna, Wellington Road, Ballsbridge—chronics (proprietor is not a nurse and it is claimed she has administered a drug without a doctor's orders).

What is the date of the letter?

1st August, 1962.

It took it a long time to come to me. Perhaps the Senator will put that letter in on the records?

By all means.

So that we may be able to follow it.

An Leas-Chathaoirleach

Or it can be put in the Library.

My point is that I do not think it is quite fair for the Minister to come along this afternoon and by the use of sentences like "It is alleged that abuses occur" and that sort of thing, throw that sort of doubt on the absolute necessity for a properly legislative type of Bill that would at least contain the essential elements of the amendments which are now before us, thanks to Senator Miss Davidson. That is the only case I want to make.

Senator McAuliffe referred to an aspect that rather concerns me. I am not a member of a health authority but, as far as I understand it, a health authority can make payments to institutions approved under Section 25 of the Health Act. I think the practice with the Voluntary Health Authority is the same. In other words, if a patient goes into a home and is insured in the Voluntary Health Insurance, payment can be made for the maintenance of that patient, I think, at the discretion of the Voluntary Health Insurance Board, but I think they operate on the basis that if that home were approved under Section 25 of the Health Act then it would qualify for maintenance payment in respect of that patient. The same, I suppose, operates with the health authority. If they decide to make a payment in respect of a person maintained in an institution or home that institution or home would have to be approved under Section 25. I have not had the opportunity of looking at the section. I do not know what is involved in it but I wonder would the Minister tell us, if the section as proposed in the Bill goes through, whether the homes we are talking about will then be approved homes under that section?

Not necessarily.

What would be necessary in order to have them approved? Would it be necessary to have them registered as is envisaged in the amendment?

No. It is quite different. Registration has nothing to do with it. I beg your pardon. I will deal with it later.

It is a small matter. The Minister, when replying, may clear it up for me. That is one of the reasons why the amendment is desirable. Where registration is required it would certainly be easier to provide that they would be approved under Section 25 of the Health Act, that the inmates who would qualify under the health legislation would get maintenance benefit, and those others who are insured under the Voluntary Health Insurance, equally would get benefit for maintenance when in those homes.

Senator Stanford referred to this amendment as being a very comprehensive one. Indeed, it is, and if it were accepted it would result in so much regimentation of the people of this country that they would find it very difficult to stand for it. I notice now in paragraph (1) in the first line "the Minister shall effect the registration of any person", any one person, who would be kept in a private house in any part of the country. Does anybody here seriously suggest that it would be a good thing, that it would be a deserving thing, to have the name of every person like that registered in the Department of Health? We all know in certain parts of the country old people are taken in. One person would be taken in, an old age pensioner put in by his or her relatives. If that private transaction, which I will call it, has to be registered it would reduce the Bill to an absurdity. Everybody knows that. We have heard of all these abuses which have taken place, which are alleged to have taken place in these homes. It is only today that we have got some inkling of what some of the abuses are and that they happen to be in the city of Dublin. I am sure that there will be a means of ascertaining what the conditions are in those institutions that have been mentioned in the letter.

As I said, the acceptance of this amendment would be another step towards the establishment of a totalitarian society here, which the people do not want. I was inclined to think, when I read these amendments, especially this one, that the people who expressed such anxiety here in the early stages for the enactment of this legislation do not want it at all because if there were one way more than another of defeating the purpose that these people had in mind it would be the acceptance of an amendment like this.

I think this amendment would make it easy to operate the Act. We know in Section 2 of the Act that the Minister may make such regulations as he thinks appropriate in relation to homes. That is purely on the basis that if the Minister thinks so he would make regulations. The amendment, as submitted by Senator Miss Davidson, sets out clearly what is required and I think the Minister should accept all the requirements as set out in the amendment, and which are actually required, despite what some Senators may think, that the regulations would be just too severe. But, our first duty is to protect the ill, the patients, regardless of what home they may be in. Those of us who are members of health authorities recognise, and point out from time to time, all the requirements that are necessary for patients in various hospitals. Hospitals are fairly well run institutions where there is a good deal of regularity and attention given as regards medical services and the type of accommodation that is required. This Bill is principally dealing with homes about which we have very little information on the way they are operated other than information such as we got from Senator Crowley this afternoon. The reason for the Bill at all is that it was felt that such a position did exist in regard to homes, not in regard to hospitals in general, which are run under the control of the Minister and the health authorities. Some Senators appear to get alarmed at the views conveyed in the amendment, that the regulations in regard to homes may be too strict. I do not think so. There is nothing in the amendment making it too strict but the amendment does set out what care is required, which is to have a section in the Bill fully safe-guarding the position of patients in homes.

The amendment sets out clearly what is required, and, if the Bill is to be effective at all, we would need a clause such as is set out in the amendment rather than just leave it on the basis that the Minister may make such regulations as he thinks appropriate in relation to homes. There is nothing set out in that portion of Section 2 to indicate what may be required, or if the same kind of regulations apply to each home, or what they are. It would be much better if it is put into the Bill and it then becomes the law of the land. We would ensure that all our homes would be on an equal basis. As it is at the moment, or even as that portion of the section sets out, they can evade certain regulations. We are bound to have changes of Ministers from time to time and there would be no setting out of regulations on a matter of this kind, whereas, if we put it into the Bill, now that we have an opportunity to do so, there would be set out regulations in regard to all homes.

I was challenged today by Senator Ó Ciosáin to produce evidence in connection with a statement I made. I have the evidence here now. If you like, I shall read the letter. It is from the Kerry County Council. I will not give the name of the home except to say that there are at least 50 people in it and is run by an order of nuns. I will not give the name of the person involved. This is the letter:

I am directed by the County Manager to refer to recent representations made by you on behalf of Mr. X, shall we say, who is anxious that the Council make a contribution towards the maintenance and treatment of his sister who is actually 85 years of age, who is a patient in such a home, which is run by an Order of nuns in County Meath. (I will leave it at that.) I decided to inform you that as this home is a private mental home the Council has no authority to make a contribution. However, the county manager submitted this case to the Department of Health for special sanction for the payment of a contribution of one guinea per week. A reply was received from the Department to say that as this home is neither approved under Section 10 or Section 25 of the Health Act, 1953, that ministerial sanction could not be given to the payment of this contribution.

I am inclined to suggest, in view of the letter read by the Senator, that the real reason why a contribution could not be made by that particular County Manager was because no contract existed between the Department of Health, the local authorities and that particular institution. Most local authorities maintain mental hospitals at great expense whether in Sligo, Mullingar or Tralee or somewhere near it, and because of that they are not over anxious to have duplication. I myself ran up against that problem in the case of a particular well-known private mental hospital in Dublin where very good treatment is given. They took a very long time, indeed, to arrive at a position when a contract could be made between the Department of Health and the particular hospital concerned, that is, St. Patrick's in James's Street. I have come across cases of hardship where people, maybe on the advice of a local dispensary doctor or a private doctor, sent a patient to such an institution. It was found that Leitrim or Cavan County Council could not in the then circumstances make any contribution from their funds towards the maintenance of a patient even though a hardship might exist. The only thing that could be done in such a case is that the Department of Health and the local authorities would arrive at a contract. I did not catch where or what was the particular institution that the Senator referred to.

One must always keep in mind that if you are going to have a growth of private mental hospitals, where there will have to be wide variety of services, it would be a rather severe strain on the funds of local authorities in counties like Cavan, Monaghan, or Leitrim, to maintain them and also to maintain the institutions which they are under a statutory obligation to maintain.

Surely they are overcrowded.

In regard to the general principle of the amendment, to go too far too fast, as was said in substance by a very great man, is a mistake. It takes a certain length of time. Why not give the present Bill a trial to see how it will work in practice? In the long run the greatest machine in the world, if it can only be operated by its designer, is not much help to anybody. Simplicity should always be an important factor in the design of a machine, and the machinery designed in this Bill is a step forward. There has been a suggestion of abuses, but not too many people—whether they lack the moral courage or for any other reason—seem to be over anxious to bring home that there has been abuse. That being so, since the Minister brought in this Bill he is entitled to get a chance of seeing how far it will work in practice. If the machinery does not work satisfactorily I am sure that he will be the first person to agree that it was time to amend it.

In regard to the general principle one of the fears I have about the discussion of such homes, whether run by local authorities or by private people, whether they are mental hospitals or homes for aged people who may be regarded as partly mentally deficient as a result of old age, we are drifting willy-nilly into a mental attitude of disregarding the very important principle that children have a moral obligation to maintain their parents just as parents have a moral obligation to maintain their children. I am beginning to wonder how far that principle is being undermined or forgotten. If there were a fuller realisation of that moral obligation there would be less need for legislation in this regard. A wrong mental concept seems to have come in here and to be growing very rapidly. There are quite a lot of people in hospitals run by local authorities or in private homes simply because it is a matter of convenience to their relatives. That is a tragedy because it is undermining that very important Christian principle. We seem to be drifting into a mental attitude that we ought to have more such institutions for people in that category. We should be very careful, indeed, because it is very easy to go in that direction.

I am at a loss to know what degree of unity exists among those who are supporting this amendment.

You told them that on Sunday.

Senator Stanford wants legislation because among other things it will enable some control to be exercised in respect of the administration of sedatives and injections. I am not going to talk about injections, but take the case of sedatives. Some of us, on occasion, may after a day of debate here wish to sedate ourselves for a night's sleep with a barbiturate. Are we going to have to send out for a doctor in order that the sedative should be administered to us? Is there any reason to believe that the people who have persons under their control and in their care and custody are going to treat them in a way that would be dangerous or imperil their lives? I do not think we can accept that as a general principle. I suggest that, apart from that, it is not necessary that we should adopt this amendment in order that the danger which Senator Stanford believes to exist and which—I do not want to blink the fact—may be in some instances a real danger, can be safeguarded against.

The Minister will have power under a section of the Bill to make regulations. I cannot forecast what he will do. It is a matter which will require a great deal of consideration. One of the matters he may regulate is the manner in which institutions of this sort will be controlled and administered. It is not necessary, therefore, to accept this amendment in order to ensure that there will be a degree of control exercised over the administration of sedatives in these homes. That, I think, was the main reason why Deputy Stanford—I do not know whether I am demoting him or degrading him in referring to him as Deputy, but I am bringing him to not lower than my own level anyway— appears to want registration.

I think we can achieve his end in a much simpler way, not by writing it into a Bill but by allowing the Minister to deal with it by regulation. Talking about writing it into a Bill, I think it is illusory to believe that merely because a matter is written into an Act will ensure that the measure will be more stringently administered than if the Minister deals with the problem by making a regulation in regard to it. In fact, the Minister, having made a regulation in regard to a particular matter and having taken personal initiative in it, is much more likely to be convinced that it required attention than because it happened that an Act made it obligatory on him to make the particular regulation. It is the efficiency with which the ministerial head of the Department for the time being and his officers act that really gives a greater or, it may be, lesser assurance that the intentions of the legislature will be carried out and that the general policy of the legislature in regard to public issues will be made effective.

I do not know to what degree those who are in favour of the amendment are in unison with each other. It would appear from what Senator McAuliffe said, and to some extent from what Senator Crowley said, that what the Senators who support the proposed amendment are concerned with is that these homes, about which we have heard such appalling suggestions made here this evening, should be subsidised by public funds, that they should be approved of, so that contributions would be made in respect of persons who were sent to them, inmates of them.

If the homes are proper homes and run poperly there should be nothing wrong about them.

That is an interesting remark. It loses sight, however, of the fact that this is a rather nebulous problem. If you deal with what it was once usual to refer to as nursing homes, but which now are not unusually referred to as private hospitals —these, I may say, are the homes to which I think Senator Murphy was referring when he asked what was required in respect of a home under Section 25 of the Health Act—it depends upon whether that private hospital or nursing home can provide the institutional services which a hospital would be required to provide if a patient were in it as a health authority patient, under Section 14 or Section 15 of the Health Act. As the Seanad knows, a person may elect, instead of going into a generally designated hospital, to go to another hospital or place of his own choice under Section 25. If he goes there it must be approved by the Minister as a home which will provide him with proper treatment for what I may describe loosely and broadly as an acute condition.

There are other homes to which I shall refer in a moment. The point is that it would now appear—and this has emerged in the course of this debate but at the beginning the case was not put that way—that some Senators are in favour of this amendment because it will enable those institutions to be subsidised by the local authorities. As I say, the institutions envisaged are of a very nebulous character; they fall into a sort of no-man's-land, between what might be described as county home proper, and premises run by private individuals in which amenities might be something above the grade of the ordinary county homes and perhaps equivalent to district hospitals. Some people have supported the amendment because they think that persons who have to go to these homes should be subsidised by the local authorities. The local authorities provide well-run county homes, homes in which conditions are now greatly improved and which will be improved very much more; but they are county homes, known as county homes, and the fact that they are county homes does not commend them to those who think they are a cut above the ordinary. They will not go into these homes. They want to go into a private home perhaps—because it has something of a snob appeal. What really was involved in the letter which Senator McAuliffe put before the House was that there was a man down in Kerry who had a sister incapable of looking after herself. She could have found a place in a public mental hospital, but that would not be good enough for her. Of course, she herself was not aware of this in her circumstances— then I should say that it would not be good enough for her relatives, and so she was sent to a private home. Then her brother went to the local authority in Kerry asking them to pay for her. The other thing about that letter was that if the local authority in Kerry, under Section 10 of the Act of 1953, had been prepared to recognise and approve that home they could have contributed. They took the view which most ordinary people will take—if you want special treatment then you have to pay for it. You cannot expect ordinary people who have to put up with the "run of the mill" to contribute towards your personal comfort, when you require it to be rather above the general standard.

It is not fair of me to equate them with myself. I recognise they are in a special position.

Only eleven of them.

Senator Crowley's letter was more interesting. It was dated, I think, June, 1962. It was from the Irish Nurses' Organisation. The Irish Nurses' Organisation were received in my Department in April, 1960. The Department on my direction wrote to them on the 9th August, 1961, and the letter wound up by saying that the onus of making a case for registration rests on those who seek it. In the Minister's view the case for registration had not been adequately demonstrated. Between the despatch of that letter by me in August, 1961, and sometime in the middle of 1962 the Irish Nurses' Organisation apparently discovered six premises where they believed abuses to exist. They did not address themselves to me. They did not address themselves to the Minister for Health. They addressed that letter to some other person and they made serious and grave allegations in it. One would think, if they were really and seriously intended, they would try to have an investigation. I do not know who would have investigated them. Perhaps I would find some residuary powers that would enable me to have an investigation into these charges; but they did not come to me.

In no instance has an allegation been made to me about a home in terms which would enable me to hold an inquiry, to have the charge substantiated. That is my position. I am not prepared to say there may not be substance in some of these allegations: I just do not know. It is possible that the Bill in operation may bring abuses to light; and then perhaps we may have an examination of them.

In general, the amendment before the Seanad will change the character of this Bill completely and, therefore, with all due respect to the Chair, although it has been discussed, I think it is contrary to the principle of the Bill. If people wanted registration they should have said so on Second Reading, they ought to have said that because the Bill does not contain registration they would vote against it and that the Minister could go out of the Seanad and take the Bill with him.

Senator Stanford had a great deal to say about responsibility when he was discussing the second and third amendments but the Minister has responsibility too. As a member of the Government responsible to his colleagues and others, the Minister has to have a mind of his own on these matters. It is his solution that has to be considered in the first instance— his proposals. If either House of the Legislature does not approve of those proposals, is not prepared to accept them in principle, then it is their duty, as has happened in other cases, to vote against them and put them out.

If a Bill gets a Second Reading and the general principle of it is accepted, then I think the amendments should be within the general concept of the Bill in the first instance. If they are not, well, I would not propose to fetter the Seanad in the discharge of its responsibility, but what the Seanad may decide does not ipso facto bind the Minister.

The Minister says we do not require registration. He said his regulations would be just as good. I do not believe that. I am sure the Minister himself is aware that there are some Ministers who can get very cross on occasion, who can bang their hands on the desk and threaten to run off to sea and not to come back again unless they get what they want. I want to prevent the Minister from doing that. I want to prevent him from saying: "I am running off to sea. I shall not bring in that regulation."

I want the regulation written into the Bill so that no Minister can run off to sea and leave us high and dry. There is little or nothing in the amendment beyond what the Minister says he wants to take power to bring in by regulation. There are lots of things we do not like. One of them would be the inspection of our homes and for some people their nursing homes. None of us likes to return his income for income tax purposes. We all have two thoughts about the little bit of something which we possess but we have to make these returns and we do so. The same thing applies when children are put out to nurse, as the phrase goes. For one child there is provision for inspection.

I know perfectly well that regulations very much like those in the amendment are working very smoothly and causing no trouble whatsoever in Herefordshire where the county council manager told us things are much simpler since they put in these new regulations. Senator O'Reilly said we would price these people out of the homes. On the Second Reading, I mentioned that Newcastle Sanatorium will be emptied and so will Blanchards-town. That involves, I think, maybe the loss of occupation for nurses, and so on. Why can the Government not face up to their responsibility if these people cannot pay and put these old people in these hospitals and keep the staff there looking after them?

I think it is the duty of the Government to undertake this work where private people cannot do it. These are not likely to be long-term cases. I think the term used in the original motion was "aged or incurably ill". If they are aged, there is a limit to age and if they are incurably ill and sent home from hospital they will not live very long so they are not really long-term.

Senator O'Reilly referred to the machine. I grant that the machine is in the Bill. It is a very fine one, nearly a Rolls Royce, but there is no place for petrol and there is no motive power and the machine will not work without registration. That is why I am so firm that it will not work. The Bill will not work satisfactorily without registration and registration will not cost any more and will not cause greater hardship on either patients or those responsible for them, or, indeed, for anybody else. I make a final appeal to the Minister to have another look at it and to see how much good registration would do and how little harm.

Quite possibly the reason why the Minister did not get the specific complaints I alluded to this afternoon, or possibly even more complaints from people such as the Nurses' Organisation and other people in the country who have information on this point, is that he is not getting that information direct because we have had no Act of this kind on the Statute Book up to now.

I concede that that may be.

There was some question as to why I did not act sooner in submitting the letter to the Minister. I have a certain regard, if not a certain amount of admiration, for the Minister when he refrains from some of his oratorical gymnastics and shows himself to be the efficient Minister he is. I really mean that. I have had experience of how efficient the Minister really can be when he wants to. Only a few months before I received that letter, I had occasion to direct the attention of the Minister to complaints by a number of people who had come to me and drawn my attention to an obvious public nuisance. To his credit and in all fairness I must say that the moment I directed that complaint to his notice action was taken on it in a matter of days. The nuisance was abated and the proper remedy applied. I pay tribute to the prompt and very courteous attention given by the Minister when he was acting, as is the case more often than not, in his ministerial capacity.

Thank you very much.

I just want to make the point that the reason I did not submit this information——

An Leas-Chathaoirleach

On the question of the letter, if I may be allowed to intervene, the ruling is that the Chair cannot compel a member to produce a private letter and lay it before the House. A member may if he so wishes lay it before the House. In this instance if Senator Crowley agrees the letter will be placed in the library for the information of Senators, but only if he agrees.

I was challenged to produce the letter and I am not sorry I did so because it will help to pinpoint one of the social abuses and help to correct it. The reason why I did not produce it sooner for the Minister's attention is that when the Minister dealt with our motion here last year on the question of the Health Bill I was one who accepted his assurance and undertaking at that time that he would, in fact, bring an effective measure before the House. Because I know how efficiently the Minister can act I had every confidence that he would bring that type of Bill before the House and I am sorry that I have to expresss disappointment at the measure before us because I honestly believe that it is deficient in these points. I am fully in agreement with the amendment before the House and I would ask the Minister to accept it in that spirit.

I should like to endorse what Senator Crowley and Senator Miss Davidson have said because the Bill as it stands is defective. During the course of the Minister's reply he referred to a statement I made and said I was worried about people who would not go to county homes because they felt too swanky and felt that the county home was not good enough. I have as much experience of county homes as anyone else. We have a county MOH in Meath at the present time who believes that people should get up to 30/- a week for keeping old people at home, that the Minister should be asked to sanction that in order to keep people out of the county home. At present we have not got a bed in the county home. There is no room. If homes were registered and recognised by the Department then the local authority would be in a position to make a small contribution which would be only half, a third or a quarter of what it would cost to keep a person in the county home. The cost of keeping a person in the county home in Westmeath is £4 and quite a number of people could be kept in other homes or in their own homes for £1 instead of £4. The less people we have coming to the county home the better.

In view of the remarks made by Senator Crowley in relation to the motion which was before the House, I should like to recall what I did say in the course of that debate. I quote column 792 of volume 56. I said:

I have had for some time proposals under consideration which I believe will meet these requirements. What I have in mind is not a registration scheme but an arrangement for official intervention confined to those cases where there is reason to believe that conditions are unsatisfactory... Health authorities under the procedure which I hope shortly to propose would be empowered by legislation to inspect any premises in which sick or infirm persons are kept for reward and, if the conditions disclosed are such as to justify such drastic action, the legislation would provide machinery to require the occupier of such premises to desist from the practice of taking in and looking after such persons. It is proposed to exclude from the scope of the legislation any premises in which only close relatives, and these would be strictly defined, are maintained. The legislation is at present being drafted and I hope it will be introduced in the near future.

The Bill, I submit, which the Seanad are now discussing follows exactly that announcement.

I am sure the Minister will concede at the same time that while what he has said is perfectly true it does not preclude us——

——or relieve us of the responsibility for pressing for a better measure.

Question put.
The Committee divided: Tá, 9; Níl, 27.

  • Crowley, Patrick.
  • Davidson, Mary F.
  • Desmond, Cornelius.
  • Fitzgerald, John.
  • McAuliffe, Timothy.
  • Murphy, Dominick F.
  • O'Brien, George.
  • Ross, J.N.
  • Stanford, William B.

Níl

  • Ahern, Liam.
  • Boland, Gerald.
  • Brady, Seán.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Connolly O'Brien, Nora.
  • Costelloe, John.
  • Donegan, Bartholomew.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Healy, Augustine A.
  • Hogan, Daniel.
  • Killilea, Mark.
  • McGlinchey, Bernard.
  • Mooney, Joseph M.
  • Nolan, Thomas.
  • Ó Ciosáin, Éamon.
  • Ó Donnabháin, Seán.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick.
  • Ó Siochfhradha, Pádraig.
  • O'Sullivan, Ted.
  • Ruane, Thomas.
  • Ryan, Eoin.
  • Ryan, William.
  • Yeats, Michael.
Tellers: Tá, Senators Crowley and Murphy; Níl, Senators Ó Donnabháin and Farrell.
Amendment declared lost.
SECTION 2.
Government amendment No. 5:
Before subsection (3) to insert the following subsections:
"( ) Regulations under this section prescribing requirements of the kind referred to in paragraph (a) or (b) of subsection (2) of this section shall provide that a requirement shall not apply in relation to a home carried on by or on behalf of a religious body or organisation if compliance with that requirement by the home would be contrary to the religious beliefs or principles of the body or organisation.
( ) Regulations under this section prescribing requirements of the kind referred to in paragraph (a) of subsection (2) of this section shall provide that a requirement shall not apply in relation to a person if submission by the person to the carrying out of that requirement in relation to him would be contrary to his religious beliefs or principles."

It is recognised that certain medical procedures may involve questions of conscience not only in the case of an individual but also in the case of the religious persuasion to which the individual in question may belong and the purpose of these amendments is to ensure that no person, whether as a patient in or as the undertaker of a premises to which the Bill applies will be compelled to do anything in violation of his religious beliefs or principles.

Amendment agreed to.
Question proposed: "That Section 2, as amended, stand part of the Bill."

On the Second Reading I raised the question of whether in Section 2 the word "may"—"The Minister may" and so on—is a binding term. The Minister replied that he would refer me to a decision given by a late Chief Justice in which the Chief Justice said that the word "may" can always be construed as meaning "shall". I should like to ask the Minister a simpler question. Does this statement in the Bill, "The Minister may" mean that the Minister will, as distinct from "shall"?

The Minister most certainly will.

I am quite satisfied.

Question put and agreed to.
SECTION 3.
Amendments Nos. 6 and 7 not moved.

I move amendment No. 8:

Before subsection (3) to insert a new subsection as follows:

"( ) Homes whose names and addresses have been communicated to the health authorities as prescribed in subsections (1) and (2) of this section shall be inspected by a properly qualified inspector, who shall, if satisfied with the conditions of the home in question, issue a certificate of suitability to the person in charge of that home. This certificate shall be displayed in a prominent and clearly visibly place in the entrance hall to that home."

The object of this amendment is perfectly simple. It may be that the amendment is not drafted in the best possible way for legislation. In that case, if the Minister accepts the principle, I hope he will consider bringing in a better-drafted amendment on Report Stage.

It is perfectly clear what this amendment wants. It wants what we give in the case of hotels. When someone comes to a licensed hotel in this country he goes into the hall and he looks for the certificate of Bord Fáilte that this is a decent hotel, which Bord Fáilte will stand behind, and we have other certificates of that kind throughout the country. They are a very great benefit to people who may be misled. In this case the amendment asks that there shall be inspection, as with Bord Fáilte hotels, and that a certificate will be issued which will make it quite clear that so far as the Department of Health are concerned, the home is satisfactory. This certificate will be displayed in a place where everyone can see it on entering the hall-door. I do think it may be very salutary to have a provision of this kind. That is why I propose this amendment.

It appears to me that the real difference between what is suggested in this amendment and the proposal for registration is slight and one of my objections to the proposal that these homes should be registered is that it will induce an element of rigidity into the whole system which, I think, would be undesirable.

I am prepared to consider this further. I am not accepting it. I want to make it quite clear about this amendment that I am not accepting it but I will give some further consideration to it. The amendment, I may say, as drafted, is incomplete. For instance, what is going to happen if the inspector says it is not suitable? I will give some consideration to this and I will see whether I can introduce an amendment on Report Stage which may go some way towards meeting the Senators. Again, I want to emphasise I am giving consideration to it and I am not accepting it.

Amendment, by leave, withdrawn.
Question proposed: "That Section 3 stand part of the Bill".

I just want to ask the Minister if this whole Section 3 does not in effect amount to registration and will there not be registers kept?

The Senator is quite right. There will be a register. There is bound to be a register but it will not be an officially prescribed register. It will not prescribe conditions for registration. It will merely mean that the fact that certain homes exist will be recorded and that the local authority, if it feels it should, can inspect them. Provided you notify the local authority you can open a home. If there is a complaint about a home the local authority will have power to go in and inspect the premises and if they find the inmates are not being properly looked after they have power, under another section of the Bill, to have the person prohibited from running a home again. There are no prior conditions laid down for opening a home but before doing so you can call on the local authority, who may inspect the home, if it feels it should.

Would that list of homes be available to a member of the public or should it be made available?

I have not considered that.

I had not considered it until this moment but I should be able to go in and see if a certain home were actually on the list.

Yes, I think I could consider that.

Question put and agreed to.
SECTION 4.
Government amendment No. 9:
Before Section 4 to insert the following section:
(1) The Minister may, if he so thinks fit, grant exemption from the provisions of this Act to any home approved of by him pursuant to a provision of the Health Acts, 1947 to 1960, for any of the purposes of those Acts.
(2) The Minister may, if he so thinks fit, on the application of any home, grant exemption from the provisions of this Act to that home.
(3) This Act shall not apply in relation to a home in respect of which an exemption under this section has been granted and has not been withdrawn.
(4) An exemption under this section may be withdrawn at any time by the Minister.

The purpose of this amendment is that where a home is already recognised and approved by the Minister, pursuant to any of the Health Acts, he may exempt such a home from the requirements to notify.

I do not think the amendment is as simple as the Minister would have us believe. I agree that subsection (1) of the new Section would appear to do exactly what the Minister has said but I think subsection (2) of the proposed new Section goes very much further. It says:

The Minister may, if he so thinks fit, on the application of any home, grant exemption from the provisions of this Act to that home.

This means to me that the Minister may, without a sign or reason, and on no set of principles or according to any standard, exempt a home from this Act. Say he exempts you from the provisions of this Act there is no standard set down. Earlier in the Bill we have exempted certain types of non-profit making homes and that is quite understandable. But, I certainly would be very much against giving the authority contained in subsection (2) of this new section to any Minister, even to the Minister whose picture we had painted for us by Senator Crowley some time ago.

Do not let that prejudice you against the Bill.

I certainly would be against placing this subsection in the hands of future Ministers we do not know about. I think it is very wrong.

I am sorry if I did not bring out precisely the point which is covered by this subsection. The position is that there are some charitable institutions in this country, and there are certain mental institutions also, where provision has been made by the relatives of some of the inmates for their future maintenance in them, generally by way of establishing and endowing a trust. These, undoubtedly, are very exceptional cases but, in respect of the particular person concerned, it could be said that that person was being maintained in a home for private profit. They were making a profit out of a particular inmate of the home, but so far as the general body of the inmates was concerned they were not making any profit at all, since it was unmistakably a charitable institution in its general character. The subsection is to cover that sort of case. After the Bill had been drafted one or perhaps two instances of this sort came to my notice. There are certain institutions in this country, purely charitable, to which at the moment local authority patients are sent at the expense of the authority, though as the capitation fee scarcely ever more than covers the full cost of their maintenance it could not be said that they were being maintained for profit. In these institutions, however, there may be one or two or a few patients, whose relatives made provision for them when they entered them, by establishing a trust fund. The income from that trust fund goes to the institution. In some cases it may be that the institution receives a benefit in excess of the cost of maintaining a particular patient and in the case in question the home would not be exempt from the provision of the Bill as it stands. It may have happened, too, in the case of other homes, of which I have no record, but this one instance did obtain, and it was brought to my notice. I feel we should make a provision for it.

I see. If that is the Minister's interpretation of private profit in Section 1 of the Bill I have misunderstood it because in my reading of private profit the institution or the community as a whole could be making profit on the running of the home. That would not be private profit. It would be profit for the institution.

You want to hark back to the definition. It says where a person is "maintained for private profit". Whether the profit is private or not it is the point and I did not feel we should leave the position in any doubt.

As I say, that is my interpretation of private profit in Section 1 of the Bill, that it does not apply to profit made by institutions. Be that as it may, we have gone away from Section 1 and we are dealing with a new section, which the Minister proposes to insert before Section 4. If subsection (2) of this section is necessary for the purpose which the Minister has in mind, with the greatest respect I say that the Minister should say so in so many words in that subsection and not take on himself in that subsection the right to scrap the Bill.

That is not the purpose.

I think the Minister will agree with me that if this new subsection becomes a part of this Bill, when the Bill becomes an Act, the Minister can then at his own discretion and without assigning any reason, exempt any home which he likes from the provisions of the law. If I am wrong in that I would like the Minister to say so.

Let me, first of all, draw the Senator's attention to the definition of a home. It means particular premises in which incapacitated people are maintained and it excludes homes in which any incapacitated person is maintained for private profit. So far as the rest of it is concerned, after all, Ministers are not rascals or dishonest persons——

Some of them. What happened in Poland and Rumania?

——they are individuals who have secured first the confidence of their constituents and then of Dáil Éireann.

They might be about to lose it.

Hitler got the confidence of all Germany at one time, and Mussolini got the confidence of all Italy.

Senator L'Estrange has never got the confidence of any constituency in Ireland.

He will the next time.

If you had not missed the train at Mallow you would not be here today. You would have joined the British army.

Perhaps so. I might be anywhere you like, but anyway can you not say that it was a very good thing for the country that I did?

I went within one vote of getting a seat.

It has to be assumed that Ministers will act in accordance with the general tone and principle of the legislation. There are occasions when it must be necessary to make exceptions. In this case an exception might be made. If the Minister does happen to exempt a home and it is felt that he is exempting homes to such an extent that he is exercising his powers under the section in such a way as to nullify the Act, there is a remedy. He can be called to account in Dáil Éireann for what he does. It would be quite impossible to cover every sort of case in which exemption might be justifiable. There is nothing very unusual in this. Many statutes contain a similar provision that a Minister may if he thinks fit do certain things. If he does these things he can always be brought to account. That is the only safeguard the legislature has.

It appears to me that this is an afterthought.

No. Quite frankly this position would have been covered, in the original draft, so that this amendment would not have appeared if I had been aware of the situation which, I discovered afterwards, existed in at least one institution in this country.

It appears to me that it is an after-thought. If we accept this all the rest of the Bill means exactly nothing. This is legislation entirely by ministerial order, which should be discouraged. It is undesirable and on principle I oppose it. I say that if the Minister has a type of institution or a set of homes in mind he should say in this subsection that the Minister may, if he so thinks fit, on application by any home grant exemption, and set out the circumstances which would entitle him to grant exemption. It should not be beyond the Minister and his advisers to put into the subsection a few more sentences that would cover the situation which he says he has in mind and at the same time save us from the undesirable form of legislation which is legislation by ministerial order.

I do not want to continue this any longer, but the Senator does not realise that we are dealing with an undefined class of institutions some of which we call homes. Some of these are charitable bodies. Some are mental institutions which in general are public charities. I only ask that if something which would not be within my competence to ascertain in advance should arise I would be able to deal with it without asking the Dáil to amend the Bill again. That is all that is involved. I suggest in view of the rather experimental nature of the Bill that we should have it this way. If the Minister does what Senator Fitzpatrick suggests he would or may do the Dáil can call him to task for it and Senators who are interested in this Bill can certainly have it raised here or elsewhere.

I do not follow the Minister's arguments on certain aspects of this Bill. He tells us that the people who run these institutions are human beings and that they will behave as Christians should behave. Now he tells us that the Minister will always be a perfect Minister and will not do anything out of the way.

I think I said that.

If all Ministers are most desirable individuals we are wasting our time here.

We are wasting a lot of time here.

The Minister, quite unintentionally I am sure, introduced this amendment as if there was nothing in it. I drew his attention to subsection 2 of this section and he told me that it was to get over a case which through exceptional circumstances could not be brought in within exception (a) of Section 1.

If that is what the Minister has in mind and all he has in mind could he not simply add something to the subsection saying that any home which due to exceptional circumstances cannot bring itself within exception (a) of Section 1——

Might I remind the Senator of what I did say? I said that there was a case of a mental institution where the general body of the inmates were paid for and maintained by the State on a capitation rate. It happened that I became aware of the fact that there was in this particular institution at least one person, perhaps more, for whom a trust had been set up the income from which would exceed the capitation rate. Therefore, in this institution this particular person would be maintained for a profit. A home is defined as a place where no person is maintained for private profit. That was the first difficulty. Then thinking it over there are several homes—I will specify the Nazareth Homes—where old people are kept entirely for charity but there may be near relations of some of those people who pay for them or there may be some other source of funds to pay for a particular patient. It is to enable me to deal with that situation that the subsection has been drafted. In the proper administration of it I am afraid the Senator will have to be content to rely on Dáil Éireann doing its duty and bringing the Minister to account if he fails to do his. The Senator suggested that I was rather brusque and brief in explaining the section. The real reason was that I was told you were hoping to adjourn at 6 and I did not want to prolong the debate.

The Minister could get over the difficulty of exception (a) to Section 1 by saying the terms in which at least a percentage—and give a high percentage—of the people are not maintained for private reward.

What percentage would you fix in the case of two persons?

As high as you like. At any rate, having made the case as strongly as I can, I will leave it to the wisdom of the Lower House.

Amendment agreed to.
Amendment No. 10 not moved.
Sections 4 to 8, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for next sitting day after Christmas.

I have to inform the Seanad that, due to my belief that business would have proceeded more rapidly than it did, I ordered Nos. 1, 3, 4 and 2. Now I find myself in a difficulty inasmuch as the Minister for Justice will not be in a position to be here after tea.

An Leas-Chathaoirleach

What does the Senator propose now?

I propose we vary the order unless the Senators are prepared to sit another hour. I suggest we change the order and make it No. 2 next and then No. 5, the National Building Agency Bill. The National Building Agency Bill is not on the Order Paper but it is agreed that we take it. We must leave Nos. 3 and 4 over.

Business suspended at 6.5 p.m. and resumed at 7.15 p.m.

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