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Seanad Éireann debate -
Thursday, 7 Jun 1984

Vol. 104 No. 5

Dentists Bill, 1984: Committee Stage (Resumed).


I move amendment No. 22:

In page 29, subsection (1), line 5, to delete "may" and substitute "shall".

The reason for this amendment is to make this section a much more positive section than it read in the Bill as initiated. We are asking the Minister to concede that the word "shall" is a much more positive word than "may". If the Council in this section then is instructed that it shall, with the consent of the Minister, make a scheme for establishing classes of auxiliary dental workers who shall... it makes the section very positive and makes the necessity for a section to be initiated later by the Minister much less likely. This amendment in doing that will remove any anomalies. The Dental Council might feel that the Minister might want to retain some powers himself at a later stage. All of us accept that the Minister, in discussions we have had with him on this Bill, is trying to make it as good a piece of legislation as has ever come out of this House. I am convinced that if the Minister accepts this amendment this section will be very strong and the likelihood of having to insert another section afterwards will be less likely. For that reason, I propose the amendment.

I might say that amendment No. 23 is similar to No. 22 and Nos. 22 and 23 may be discussed together, but the Senator has done that in any case.

I wish to assure Senator Ferris and Senator Dooge that the amendments are acceptable. Amendment No. 22 will change from permissive to mandatory the Dental Council's function of specifying the type of dental work which is work that auxiliary dental workers may undertake. Amendment No. 23 means that the Council will be obliged to do all the things listed in paragraphs (a) to (e) of subsection (2) in respect of any class of auxiliary dental workers established by it. Therefore, as drafted the subsection allowed the council to decide which of these things it wished to apply in the case of any class.

I thank the Minister for the acceptance of this amendment. It was quite clear from the discussion in this House on Second Stage that it was the desire of the House that the problem in regard to auxiliary dental workers should be tackled. There may have been differences about exactly what the coverage should be, about how the position should be tackled. Faced with the situation that we are faced with in regard to the dental care and dental manpower, in order to achieve the objectives of our community policy in this regard it is essential that something be done. To lay this charge firmly on the shoulders of the Council is the appropriate way to legislate here.

Amendment agreed to.

I move amendment No. 23:

In page 29, subsection (2), line 9, to delete "may" and substitute "shall".

Amendment agreed to.

I move amendment No. 24:

In page 29, subsection (2) (a), line 10, before "qualifications" to insert "training and".

Here we are up against one of these problems when words can have different widths of meaning. It is possible to define "qualifications" in a narrow sense and "qualifications" in the broad sense. If it is defined in the narrow sense then there would be a doubt as to whether "training" was fully contained in "qualified", was explicitly contained. It is of course implicitly contained because nobody is likely to approve a qualification without regard to the training. Since we do not have in the definition section definitions of these terms in fact we may well then find them left to interpretation by the courts. It might well be that the chink would be found here in which some educational body could resist the oversight of the Dental Council in regard to certain aspects of training. This would be undesirable.

I support this amendment. My notes indicate to me that what I would say is that training is vital in this area. Qualifications and training are two separate issues. Training is clearly vital in this difficult profession. It seems that if you do not include the word "training" you are leaving a possible loophole situation. Its inclusion is making for a far more definite section in the Bill. I support it for those reasons.

On the Explanatory Memorandum on the Dentists Bill, 1984, page 3, I would ask the Minister to define auxiliary dental workers. Who are they. Are they dental technicians and other persons serving in the field at the moment? Would the Minister tell me who comes under that term "auxiliary dental worker".

May I deal with the question of training first? I have considered the insertion of this amendment, but the general legal advice, including the advice of the legal adviser of my Department, is that the particular words are not necessary in this regard. I am advised that the right to determine qualifications would automatically include the right to determine that the training leading to those qualifications was satisfactory. It is self-evident that to accept a qualification the council would have to be satisfied that the course of training was considered adequate and fully acceptable to the council, and only then would the qualification be determined by the council. We gave considerable thought to whether the amendment should be inserted or not, and the general thrust of the parliamentary draftsman's approach and legal adviser's approach in the Department was that the insertion of the term "training and qualification" was unnecessary, because the council has full power to withdraw recognition of a qualification. As such the council lays down the type of training to be undertaken and as a consequence of that it deems a person to be qualified. Therefore, the general reaction I have had on considering the amendment was that by and large it would be considered excessive to put it in the Bill and would be deemed to be unnecessary.

I appreciate the Minister and his parliamentary draftsman looking at the narrow legalistic requirement of inserting the words "training and" before "qualification" and that they might deem it to be unnecessary, but we are now talking about a special category of auxiliary dental worker which we are requesting this council specifically by law to set up, and because there are existing auxiliary dental workers of some description practising in this country the council will be inundated with requests from people to confirm that they already have qualifications of some description since they have been practising and it is known that they have been practising — I suppose, unethically practising — in the past. They may consider that because of that longterm service they have been giving they are sufficiently qualified, but it could be the opinion of the council that they may not have been professionally trained to act in this capacity. I would respectfully suggest to the Minister and to his advisers that there is no harm in putting in the word "training" because we feel it is important if we have auxiliary workers whom the council will be asked to recognise and help to train so that they can qualify. If there is no harm in putting in that I would suggest that for the protection of the consumer, who will in the end be the beneficiary of this type of auxiliary dental worker, that dental worker should be properly trained in accordance with the guidelines laid down by the council. By strengthening the council's hand to ensure that there is adequate training before qualification we will assist the council and will make better legislation and will protect the consumer in the end.

I would like to support Senator Ferris in the line of argument that he has taken. This is not legislation in vacuo and it is easy for a parliamentary draftsman to look at it as being such, as not being related to an existing situation. We know that in all these cases of professional qualifications there are great difficulties in regard to what are often known as the grandfather clauses. There was extreme difficulty in the 1928 Act, so much so that there had to be a special committee of this House to examine the cases of individual dentists and their entitlement to registration. Senator Ferris is quite right; there could be considerable difficulty in this regard. It is, of course, right that there should be transitory provisions in a case like this, but it is not right that there should be a loophole whereby people who are inadequately trained could, in fact, claim registration and recognition in this way. I am not saying that we are urging legislation which would indicate that the Dental Council would set up the most modern standards of training and insist that nobody who had not that training could possibly be considered. There must be a transitory provision, but by just leaving it that qualification will include training, of course they will for the future: the future method of gaining a qualification will be set down, but when the Dental Council come to the question of handling those who are at present, some of them legally, some of them perhaps illegally, acting in this particular regard, they will need to possess a modicum of training, whether it was training on the job or not; they will have to satisfy themselves in some way.

Because of this transitory provision I would ask the Minister if he would look again at this amendment. He indicated that, in fact, he had no strong feelings either way on this. I think the feeling in this House would be that unless the draftsman indicates to him that the inclusion of the words "training and qualifications" does positive harm to the operation of the Act, it is safer to put those words in.

Lest the House should get the impression that I am asking when this legislation goes through that the people who are not properly trained or have not A, B and C qualifications should be surveyed and that the people of the nation should be getting a better dental service, that is not what I am talking about. I lived in a house for 30 years where I saw two of the best dentists probably that this nation ever turned out. Both men are dead and buried now, because it was in my early years of marriage. They were two of the best dentists in the country who were serving the people of Clare. I hope the Minister will listen to me. I saw those men being backed up by a dental mechanic. I am not pontificating and asking for persons not fully trained to be allowed to serve in this field. I saw this person back up these two top-class dentists. I only wish we had some dentists today as good as those two men. I saw a dental mechanic back those men up for 25 years. I am asking the Minister are all these persons like that man gone when this legislation is passed? That is all I am asking. Do not think that I am standing up here and asking that people who are not properly trained be allowed to serve. I am as concerned as any other Senator that when this Bill leaves this House every person involved in dentistry is trained and fit to serve the community. This is what I am concerned with, and I feel we are badly served at the moment.

I would again appeal to the Minister on this. I feel that this amendment — indeed I will go further if needs be with it, or anything that makes the section stronger and better and more definite — should be welcomed. The Minister should welcome it and certainly the consumer would welcome it and the dental profession would welcome it. I would say, perhaps, that not alone should we have "training and qualification" but we might even include the word "education" because it is a positive attempt to make this area much stronger and much more positive than it is. That is the effort we are making and that is what the Senators here this morning are endeavouring to do in the best interests of the profession and of the dental consumer.

I appreciate this is a very sensitive matter. I gave my views earlier and I have no desire to leave a vacuum in any way in the Bill on this issue. In the event of the Senators feeling that there is a substantial degree of validity in inserting the term "training" before "qualifications", I am agreeable to do so if it will help the speedy passage of the Bill and if it will help to clarify in the minds of everybody the general import of the section.

I want to thank the Minister. I know he was being advised and that he had consultations and I think that is the way legislation should be handled. I am glad he has listened to the Members of the House who have looked at what we want this section to do. I am grateful to the Minister for his co-operation with us and, indeed, all Members of the House.

Amendment agreed to.
Section 54, as amended, agreed to.

Amendment No. 25. Amendments Nos. 26 and 27 are alternatives to amendment No. 25.

We are content for them all to be discussed together.

Government amendment No. 25:
In page 30, before section 55, to insert a new section as follows:
55.—(1) An auxiliary dental worker shall, in the performance of any dental work which the class of auxiliary dental workers of which he is a member may undertake in accordance with a scheme made by the Council under section 54 of this Act, comply with any conditions specified by the Council under subsection (2) of that section in regard to the performance of such dental work.
(2) Dental work carried out by an auxiliary dental worker in accordance with a scheme made by the Council under section 54 of this Act shall be carried out under the supervision of a registered dentist and any such dental work shall only be carried out after the registered dentist has examined the patient and has indicated to the auxiliary dental worker the course of treatment to be provided for the patient.
(3) The provisions of subsection (2) of this section shall not apply to the fitting, insertion or fixing of artificial teeth for persons of eighteen years or over, or the giving of advice to, or attendance on, such persons for such purposes by an auxiliary dental worker in accordance with a scheme made by the Council under section 54 of this Act: Provided that such work does not include any work on natural teeth or on living tissue.

This amendment proposes deletion of all of the existing section 55 and its replacement by a new section with three subsections. This amendment would be in substitution for amendments Nos. 26 and 27 proposed by Senator Dooge and Senator Ferris. The deletion of the existing subsection (1) was sought by both the Dental Board and the Irish Dental Association. The basis for the provision was a recommendation made in 1979 in the report of the joint working party, representative of the Department of Health, the health boards and the IDA, that the dental therapists, who in Britain extract deciduous or first teeth and do very simple fillings, should be introduced on an experimental basis in the health board service in areas where there is likely to be a continuing shortage of dentists in the public service.

The board and the association maintained that it was unnecessary to provide for this in subsection (1) since the Dental Council would have adequate power under section 54 to determine the type of dental work which any class of auxiliary dental worker may undertake. They also represented that the subsection was unnecessarily restrictive in the light of developments since 1979 in regard to the work being undertaken by auxiliary dental workers in other countries. It could, they finally submitted, inhibit developments here. I considered these arguments carefully and I propose to delete the subsection.

The new subsection (1) will replace amendment No. 26 to the existing subsection (1) proposed by Senator Dooge and Senator Ferris. The general intent of their amendment is accepted and I make that point clear. This is to ensure that auxiliary dental workers comply with any conditions specified by the council under section 54 in regard to the type of dental work they may carry out or the type of patient they may treat. I have again consulted the parliamentary draftsman and I am satisfied that the new subsection (1) proposed in my amendment deals with the matter in a more desirable manner in that it is more comprehensive and more directly related to the relevant paragraph of section 54. I am submitting that it should be accepted in lieu of the amendment proposed by the Senators. That is rather complicated, but that is the best way in which I can sum it up.

Subsection (2) will replace the new subsection (2) proposed in amendment No. 27 by Senator Dooge and Senator Ferris. Nearly all of the new subsection proposed by the Senators is accepted and I would stress that again. This differs from subsection (2) in the Bill by providing that all auxiliary dental workers, and not just those in the health board service, will work under the supervision, instead of the direction, of a dentist and that the requirement of a prior examination by the dentist shall apply in all cases and not just where the council deem it advisable. My amendment differs in not providing, I will stress, for certification by a dentist of satisfactory completion of work done by an auxiliary dental worker. The Irish Dental Association made representations to me to have this provision inserted and the reason given was that it would ensure that accountability rested with a registered dentist and would avoid any clouding of responsibility in a medical or legal situation. I have considered that argument carefully and I am strongly advised that there would be no question of any clouding of responsibility in a medical or legal situation since it is already very clearly established in law that an employer is generally vicariously liable for the acts of his employees and thus a dentist in private practice employing an auxiliary dental worker would be liable in law for the acts of the latter and the amendment proposed would have just no meaning in the situation.

It would be equally pointless, I think, in relation to the health board service since both the dentist and auxiliary worker under his supervision would be employees of the health board who would be liable for the acts of both of them. Apart from the legal aspect, the introduction of post-certification by a registered dentist of the work of an auxiliary dental worker would, in my view, practically negative the benefits of introducing auxiliary dental workers. The principal argument in favour of introducing auxiliary dental workers is unquestionably economic and the normal division of labour in that regard means that the highly-trained and qualified and relatively well-paid dentists can concentrate on the more sophisticated tasks which their profession normally calls for while the less costly auxiliary dental work can be done at a still very critical and important level but a relatively lower level. They are trained to cope with that particular level of work.

Therefore, the requirement that each patient referred by a dentist to an auxiliary dental worker would have to go back to the dentist after treatment by the auxiliarydental worker to have that work checked and a certificate issued to the patient that it had been satisfactorily completed would obviously seriously lessen the general economic benefits of using auxiliary dental workers. Therefore, I would submit that it is also only reasonable to accept that if the auxiliary dental workers are trained to a level considered adequate by the Dental Council to carry out certain work then they are competent to do the work and do it to finality and the need for certification of its satisfactory completion would be rather difficult to justify.

Equally I think there would be a quite impossible situation in private practice, because the requirement would oblige a patient to pay a further fee to a dentist for what I would regard as unnecessary certification. In the health board service it would give rise to a considerable wastage of time.

Finally there is the new subsection (3). A number of issues are being taken simultaneously in this part of our debate on Committee Stage. Subsection (2) provides that auxiliary dental workers must work under the supervision of a registered dentist. However, this provision cannot apply to a class of denturist, if such a class is established, in order to comply with the alternative two of the Restrictive Practices Commission's Report on its 1982 inquiry into the restriction on the supply of dentures to registered dentists. The Commission recommended the introduction of trained denturists who would provide dentures direct to persons of 18 years of age or over, provided work on living tissue was not involved. No question arose in the Commission's Report of denturists being required to work under the supervision of dentists and the Commission did not accept that there was need for prior examination by a dentist. In Denmark, the only EEC country in which denturists may legally operate, neither requirement applies. In order to implement the Government decision in relation to the report of the Restrictive Practices Commission it is necessary, therefore, to exempt the supply of dentures from the provisions of the new subsection (2). The new subsection (3) proposed in my amendment achieves just this.

That is all rather complicated but it does clarify the position. There was a very considerable debate at Government level as to how precisely this matter should be handled and naturally I am implementing that decision. To provide that denturists would have to work exclusively under the supervision of a dentist would promote quite a reaction from bodies who would claim to represent dental technicians. There are a number of such bodies. The important thing is to try to have at long last a framework within which a contentious issue between the dental profession and the denturists, who are inelegantly called dental mechanics, can be resolved.

Friendly with each other in the public interest.

That issue will be put to rest in a rational legislated framework here this morning. Accordingly I commend the amendment to the House.

Section 55 is one of those sections which were the subject of close examination by everybody who has looked at the problem, who looked at the legislation which the Minister brought forward. The first thing I want to say is that I am very grateful to the Minister for the degree to which he has met the points brought forward in our amendments Nos. 26 and 27. As he indicated, he has not accepted 100 per cent of what is in amendments Nos. 26 and 27 but he has certainly gone a very long way towards doing so.

The Minister has indicated that the objective of amendment No. 26 which, in fact, has been taken over by Government amendment No. 25, is to give full effect to subsection (2) and in particular to subsection (2) (b) of section 54 of the Bill. This subsection is concerned with the attachment of conditions to auxiliary dental work in the making of the scheme, which is now a mandatory scheme, by the new dental council. That was the main objective Senator Ferris and I had in the drafting of amendment No. 26. I would ask the Minister on this point if he is satisfied that, with the acceptance of Government amendment No. 25, the Dental Council are not restricted in regard to the nature of these conditions.

If we look at subsection (2) of section 54, in paragraph (b) it says they may determine the nature of the dental work which may be undertaken, and the conditions under which such work may be undertaken. I would like to ask a specific question here. Is the Minister satisfied that one of these conditions could be that certain procedures, which could include post-examination, would have to be carried out in the case of patients of a certain type, patients with a certain medical condition which had been revealed in the prior examination by the dentist. This is one of the reasons why we drafted amendment No. 26 in the way we did. Senators will notice we use the words "type of patient". This does not really refer only to whether we are dealing in the case of denturists with patients over 18 years. There may be conditions in which the fitting of dentures would cease to be routine even if operation on living tissue was not involved. This is our concern. This is why deliberately the phrase "type of patient" is used.

I ask the Minister specifically whether he is satisfied on this point. He may not be able to give me an immediate answer, but would he ensure between now and Report Stage that the type of condition in amendment No. 26 in regard to type of patient — it could be very broad and include a patient with a particular medical condition — whether in fact such a condition would be legal under section 54 (2) (b)? If that is so, then the Minister has substantially met amendment No. 26. To the extent it is not so Senator Ferris and I would still have a problem in this regard.

We move now to amendment No. 27 which is concerned with the examination of the patient and the question of prior examination, and our original amendment No. 27 regarding questions on post examination. Let me say one thing straight away. I agree completely with the Minister that there is no case for post examination on the basis of legal responsibility. I agree with him completely on this point. I agree also with him when he says if, in fact, such post examination was applied to every single case, that would go a large way to offsetting the benefits of this whole operation of establishing auxiliary dental workers.

Once again, I feel there may be cases — I do not know how many, and I do not know how broad they might be — but there might well be cases in which it would be desirable to provide for a post-examination. I would like to ask the Minister specifically whether the Dental Council under section 54 (2) (b) would be able to attach a condition of post examination to a restricted class of work or again to a particular type of patient. The concern is not that of legal responsibility, but of the medical circumstances of the case.

Subject to these two reservations, which in a way are linked, I agree with the Minister that to apply post examination to the whole generality of cases is going too far. There may well be types of work and types of patients in which there should be a restriction and in which the post examination is in the interest of the patient and in the public interest.

In regard to the question of denturists not being treated in the same way as other auxiliary workers, there has been all along a conflict between the recommendations of the working party and recommendations of the report in regard to restrictive practices. The Minister has come down clearly and firmly in taking the point of view that trained denturists are a desirable group to be organised in this country for the fitting of dentures for those over 18 years of age. I notice that he carefully said trained denturists. In fact, this is the key word. This reflects our concern on an earlier section. It is absolutely vital now that the Minister has treated them differently from other auxiliary workers and has removed them from the supervision of registered dentists, that we must have no defect in regard to their training. It must be so adequate that this particular exclusion is fully justified.

I take the points made by Senator Dooge particularly in relation to trained denturists. That is certainly my wish. The House will note that under section 54 and section 56 effectively this will be a joint exercise undertaken by the Dental Council and the Minister for Health of the day, whereby the council shall establish a scheme with the consent of the Minister. The Minister has a reserved power in section 56 where he deems it necessary to exercise a particular role in achieving a particular type of scheme. It is of critical importance that there be extensive joint co-operation and consultations between the profession and my Department in these development, particularly the approval of the schemes in question.

In relation to the point raised by Senator Dooge, namely, a particular type of patient or type of work, my strong view is that in determining the nature of the dental work a member of a class would undertake, it would be within the power of the council to specify particular types of patients and particular forms of control. I was slightly taken aback when I was assured that there are some 300 known classes of illness which one might suffer from in that regard. The council will have a major role in this determination, but equally there will be the obligation to have the consent of the Minister for Health of the day so that there is a mutual interaction in the setting up of schemes.

I am pleased that the House will not press me on the question of post certification. That is a non-runner. Dr. David Barmes, who was quoted several times during this debate, the chief of oral health of the World Health Organisation, has given the opinion that certification of the work of an auxiliary dental worker by a dentist should not be required. That is the professional advice I have received within my Department as well. As far as is practicable, and within the alternatives accepted by the Government arising out of the report of the Restrictive Practices Commission, we have set up within the framework of this Bill a reasonable development which should go a long way towards concluding the issue.

Is section 55 as amended agreed?

We are accepting the Government amendment. It meets our requirements. Our amendments will then fall in view of the Minister's commitment and assurance especially in relation to section 54 and its functions. We are satisfied that the Government amendment meets the spirit of what we wanted in amendments Nos. 26 and 27. We are accepting the new section.

Amendment agreed to.
Amendments Nos. 26 and 27 not moved.
Government amendment No. 28:
In page 30, line 27, after "may," to insert "by order,".

Amendments Nos. 28, 29, 30 and 31 were grouped with amendment No. 7 which was agreed on Committee Stage on 30 May. I accept that it would not be unreasonable to make my powers under the section subject to annulment by either House of the Oireachtas. The intention of the Senator's amendment is accepted by me. Following consultation with the parliamentary draftsman, however, I am satisfied that the amendment is incomplete. I am proposing my amendment in lieu. If my powers are to be exercised by order then it is necessary to amend subsection (1) and I propose to provide for this. I must also be given power to amend or revoke an order which I have made. I would have to have that residual power. Subsection (2) of my amendment provides for this. Subsection (3) is the same as subsection (2) proposed by the Senators.

I am satisfied that amendment No. 30 meets everything that was sought in amendment No. 31. Amendments Nos. 28 and 29 are consequential, including this right of annulment by the Houses of the Oireachtas. We debated this question on Second Stage. It is highly desirable that, in regard to orders of this type, when a Minister is ordering a body, which has been established by statute with a certain degree of authority to do something, it is a good policy. It should be a good settled policy of parliamentary democracy that such acts should be subject to full debate in the Houses of the Oireachtas and should get priority for debate. If necessary, the Houses of the Oireachtas should express their disagreement on such a particular point with the Minister or indeed with the Government. I welcome very much the way in which the Minister has met the points on this particular occasion.

I cannot say I am happy with the amendment. It only marginally improves the position. Certainly this would be a better Bill without this section. Much concern has been expressed about it. Not alone the dental profession, but other professions are looking at what is happening here today in regard to this section, and they are wondering if a precedent will be set for further legislation in the future.

A few moments ago the Minister moved on from section 55 to this section. He made the point that it would ensure that the council would prepare a particular type of scheme. In other words, he seemed to me to be suggesting very clearly that he was waving the big stick over this council. We discussed the composition of this council for quite a long time on section 9. All the bodies referred to — the universities, the Royal College of Surgeons, the dental people themselves and the Medical Council — are extremely concerned, responsible people who have nominated good people to act on the council. I am sure the Minister's nominees will be excellent people, as will be the nominee of the Minister for Education.

If we do not have faith in that council we have nothing. This section is certainly undermining the council. It is a vote of no confidence in the council from the word "go". We would be far better off without it. If they do not perform well and come up to expectations, the Minister might take other action. This section is a big flaw in the legislation which we have threshed out at length. It is clearly bad legislation. It will be a worrying section for the dental profession and other professions in the future. I intend to oppose it.

It is true, as the House knows, that originally the Irish Dental Association sought the deletion of the section. It is also true that subsequently they——

Could I interrupt you for a minute? Could we get the amendments out of the way? Would Senator Fallon agree to amendments Nos. 28, 29 and 30?

I want the section deleted. I am opposing it totally.

Could we agree the amendments and then debate the section?

Amendment agreed to.
Government amendment No. 29:
In page 30, line 31, after "may" to insert ", by order,".
Amendment agreed to.
Government amendment No. 30:
In page 30, between lines 35 and 36, to insert the following subsections:
"(2) The Minister may amend or revoke an order made under this section, including this subsection.
(3) Every order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House of the Oireachtas within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.".
Amendment agreed to.
Amendment No. 31 not moved.
Question proposed: "That section 56, as amended, stand part of the Bill."

On section 56, as amended, I want to make the general point that originally the Irish Dental Association did seek deletion of the section. They were unhappy about it. Subsequently it was accepted that I should have power to direct the council to establish a particular class of auxiliary worker, but that the power should be made subject to annulment by either House of the Oireachtas. My current assumption is that that is acceptable to the profession. I have no reason to believe otherwise. I accepted the amendment, as proposed here. It is considered, and I strongly hold the view, that the Minister of the day should have a residual power in the public interest, so that if absolutely nothing happens and no progress can be made, he can issue a direction.

That direction enables the Minister to direct the council to establish a particular class of auxiliary dental worker for an experimental period also. The experimental period is probably still strongly opposed, but I hold that that is a necessary part of a possible direction which might be issued. It is a useful provision to have and it would be exercised only in the rarest of final disputes with the council. It is necessary that the Minister of the day should have a residual reserved power over the establishment of particular classes of auxiliary dental workers. Otherwise the whole role and thrust of the Bill could be very easily eliminated if a difficult situation arose.

I suppose I would be dishonest if I did not say that section 56 has caused concern to people who are interested in this Bill. Yesterday the Minister referred to heavy lobbying on this Bill. We are very fortunate that all of the lobbying is not self-interested lobbying. I would argue that the Department have failed miserably since 1928 in that only £20 million out of £1 billion goes on dental services. I appreciate that we have used the parliamentary process to the full here, and I compliment the Minister on accepting some amendments.

However, it is entirely appropriate that we should debate, discuss and amend any Bill. This section badly needs amendment to protect the community. Experimental periods in regard to human beings must be capably monitored by the Minister but they should not be readily provided for, and certainly never without the agreement of the Oireachtas. I would appreciate a full explanation of why we need this section. I know the Minister has endeavoured to explain it as fully as possible.

If the council will not discharge their duties, or are not capable, they can be disbanded and the composition of the council can always be changed. Why should we have an experimental period, and what classes are to be experimented with and what patients?

I should like to make a few points concerning sections 54, 55 and 56 of Part VII if I may. Part VII of this Bill is very important, and the sections contained in it have huge financial and service implications, as I indicated yesterday.

I would like the Minister to make an explicit policy statement on these and related matters at this stage and, if not, to indicate how soon he proposes to present solutions to our health boards and the State-funded services. Is the Minister going to give the Southern Health Board more money to employ auxiliaries when they are trained or will they join the dole queue? Will our young dental graduates be able to find jobs in the health boards? It is a fact that at the moment the Minister will not allow more dental surgeons to be recruited for places like Kerry? There are only 220 dentists to deal with thousands of pre-school and national school children.

The Senator is widening the scope of the debate.

I meant to make these points at the beginning.

This is for The Kerryman.

This whole debate has been very democratic and open. I am aware that in some health boards only a limited scheme operates for adults. I would like to make this point despite Senator Honan. It is not about my own constituency.

The Senator is going to take the Tánaiste's seat.

I was in Laois-Offaly recently and I discovered medical cardholders being charged for dentures under the scheme. I would like the Minister to do something about that. Can he do anything to eliminate this charge? Extractions only are being offered. Why do people in other areas have a different scheme? I would like to make the point that salaried consultants and specialist orthodontists can get more than £22 per hour on a capitation basis. Is it not a fact that specialist orthodontists are very highly remunerated and the incomes of even senior consultants pale in comparison? Will the Minister personally establish exactly what the future is for orthodontic care? I think the contribution I made yesterday was a reasonable one. I would like to appeal to the Minister to be as pragmatic as possible in this area and to be even more flexible in his approach.

Is it not a fact that at the moment the Minister is in need of about 200 more health board dentists at the maximum, as well as auxiliaries? If he is not prepared to provide more funds, or to direct the health boards to provide more funds, Part VII of this Bill is more or less irrelevant. Will he not consider dental services a priority? It is time we had a concrete plan explaining the way forward, to borrow a phrase from Senator Honan's party. Again, there is a danger here that all the money could be soaked up by specialists. Creating posts of dental auxiliaries and more health board dentists without funds to employ them is not a very productive exercise in my view. We will have to face reality and this applies specially to the Minister. I was glad yesterday he made reference at the later stage to the points I made on the cost of dental specialists. I believe in the long run the Minister would be better off to employ auxiliaries, as provided for under this section, rather than have expensive specialists at £32 per hour net to the State. I am not talking here about consultants who cost half the price of specialists.

An Leas-Chathaoirleach

Is the Senator coming to the end of his Second Stage speech?

You accused Senator Dooge of having a Committee Stage debate on Second Stage.

An Leas-Chathaoirleach

That is how confused Fine Gael are.

Can we have an explicit policy statement from the Minister at this stage on State-funded dentistry? Perhaps in the very near future a White Paper could be produced. The neglect and the rot has gone on long enough. It is now time for immediate action.

I should like to underline one point made by Senator Deenihan. One of the words used in subsection (1) of section 56 is unfortunate: I refer to the word "experimental". I contemplated putting down an amendment but decided not to but rather to raise the point with the Minister here on Committee Stage. I agree with Senator Deenihan that the use of the word "experimental" in subsection (1) is unfortunate. It connotates some memories of the poor law health system, that in fact a certain type of patient is being experimented with. This is highly undesirable. I ask the Minister would the purpose of the word "experimental" in section 56 not be equally met if we were to say "a limited period"? In fact, the idea of it being a trial, of a judgment being made at the end of the limiting period, is not lost. It seems to me there are echoes here in the word "experimental" that may not help when the Dental Council and the Minister come to formulate their work here. Those who wish to criticise the scheme will be able to say that here we have the position that new people who are not professional dentists are now being introduced in order to experiment on a certain class of patient. I think it is undesirable that this false impression should be given. Even that very danger could be avoided if instead of saying the "experimental period" in this section we said a "limited period."

Regarding the general policy questions raised by Senator Deenihan, I hope that when the new council are established in the relatively near future I will then be in a position at that council meeting to make a general policy statement about the future prospects of the profession itself and of the allocation of State resources to this vital area of the delivery of health care in our community. I think Senator Deenihan would accept that the appropriate place would be at the inaugural meeting of the new council. I will certainly bear in mind the points he has made in that regard in my approach to the establishment of the council and in respect of the very limited number of nominations I will have to make to that council.

Regarding the point raised by Senator Dooge, I have been looking at the section itself and particularly the use of the word "experimental". As originally drafted, and working from memory, that is the word used in the UK and it is also used in the working party report. It is the only section of the Bill as a whole where the word "experimental" appears. I have some qualms about the use of the word. I think the only other possible alternative would be the use of the word "limited" and, subject to the agreement of the House and if the Senator would be prepared to move an amendment to that effect, I would be prepared to accept it at this stage. I have not considered the matter in terms of the parliamentary draftsman but I have checked the Bill and it is the only section where the word appears. Subject to it being considered again, I am quite sure the words "limited period" would fit the Bill appropriately.

An Leas-Chathaoirleach

Did I hear the Minister correctly, that he was going to move an amendment now?

Or on Report Stage.

I am glad the Minister has taken the attitude he has on this unfortunate word. I will put down an amendment on Report Stage which will enable the Minister to have the matter examined.

Question put.
The Committee divided: Tá, 19; Níl, 10.

  • Belton, Luke.
  • Bulbulia, Katharine.
  • Burke, Ulick.
  • Conway, Timmy.
  • Cregan, Denis (Dino).
  • Howard, Michael.
  • Howlin, Brendan.
  • Kelleher, Peter.
  • Lennon,Joseph.
  • Deenihan, Jimmy.
  • Dooge, James C.I.
  • Durcan, Patrick.
  • Ferris, Michael.
  • FitzGerald, Alexis J.G.
  • Higgins, Jim.
  • McMahon, Larry.
  • Magner, Pat.
  • O'Leary, Seán
  • Quealy, Michael A.


  • de Brún, Séamus.
  • Fallon, Seán.
  • Fitzsimons, Jack.
  • Hillery, Brian.
  • Honan, Tras.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Lynch, Michael.
  • Mullooly, Brian.
  • Ryan, William.
Tellers: Tá, Senators Belton and Howlin; Níl, Senators W. Ryan and de Brún.
Question declared carried.
Question proposed: "That section 57 stand part of the Bill."

I would just like to refer on section 57 to a point I raised yesterday on another section regarding the procedure of the Fitness to Practise Committee. I raised the point then about the question of a legal assessor who could advise both sides in regards to rules of procedure. The points I made then might well be taken care of if, in fact, such a legal assessor could be held as coming under the scope of section 57: in other words, section 57 could be interpreted that "assisting the council or its committee" included a post of this particular type. If the Minister is able to confirm before the final passing of this Bill that this is so, my points with regard to that would be fully met.

I hold the view that it should be possible under this section for the council to engage on a consultancy basis a legal adviser to assist it in discharging its functions. Whether it would or should have authority to engage a legal assessor as such is another question, but certainly it would have power to engage legal advice at all levels. I would imagine that the High Court could have a view about the engagement of a legal assessor as being the exercise of a judicial function by the council and that it might be unconstitutional. I hold the view that under sections 56 and 57 it would have authority to engage a legal assessor. Attention has now been drawn to it by Senator Dooge but that point in many respects meets the particular issue raised by the Senator.

Question put and agreed to.
Government amendment No. 32:
In page 30, before section 58, to insert a new section as follows:
58.—The council shall as soon as may be after the end of each year in which it is in office prepare and publish a report of its proceedings under this Act during the preceding year."

This amendment was suggested by Senator Dooge during the debate on Second Stage of the Bill. I am accepting the amendment, that the preparation and publication of an annual report by the council is a reasonable provision.

I am grateful to the Minister for meeting this point.

Amendment agreed to.
Question proposed: "That section 58 stand part of the Bill."

The section talks about the publication of the register. It states that the council is required "to print, publish and place on sale copies of any register maintained by it at intervals of not more than five years and, in every other year, the Council shall print,...a supplement..." It is really a question of wording here. It seems the clear intention is that in every fifth year there shall be a report and in every other year in the sense of the first, second, third and fourth year they shall issue a supplement. But the phrase "every other year" also has the meaning of "every alternative year". I am just raising the point here, whether there is not an ambiguity in this regard, and I am raising the question as to whether the legal meaning here is clear beyond all doubt.

This is a particular provision which exists in the Medical Practitioners Act and I would have to consult with the parliamentary draftsman on the point raised by Senator Dooge. In that regard, on Report Stage, I could reconsider it but as of now it is a straight translation of the section in the other Act.

I would be glad if the Minister would have it looked at. I do not accept the fact that because of it is in the Medical Practitioners Act it has a guarantee of infallibility. The argument of authority was supported to have gone out with medieval theology.

Question put and agreed to.
Sections 59 and 60 agreed to.
Question proposed: "That section 61 stand part of the Bill."

On observation on the question of assignment of the additional functions, the Minister throughout this Bill and on Committee Stage has met the point that it is desirable in a number of instances that decisions of the Minister in regard to the operation of the Dental Council should be subject to annulment by the Houses of the Oireachtas. Having established that, it seems strange that we have in section 61 a simple assignment of extra functions. After all, we have in this Bill, with its many sections, laid out the functions, we have debated at considerable length the nature of these functions, and their exact scope, but we seem to find here in section 61 that functions other than those in the Bill can be assigned from time to time in regard to dental education and training or other matters. Is there any reason why this assignment should not be done by order and if the order under which the assignment was made should not like other orders, be subject to annulment by the Houses of the Oireachtas?

This effectively is a classic catch-all section which invariably appears in legislation. While I appreciate the point made by Senator Dooge in relation to the previous section that one should not argue from mere prior statutory authority, nevertheless we are anxious that this particular section should be inserted, but if it would be of assistance to Senator Dooge and to the House in this regard I could, perhaps, consider a provision subject to consultation with the council which would enable the council to have forewarning and an opportunity of considerable discussion with the Minister of the day. It would be difficult to have an annulment procedure in it, but certainly there should be prior consultation. I would be somewhat dubious about another annulment procedure in relation to functions, but I could see great merit in a consultation procedure being written in subject to prior consultation between the Minister and the council. Then additional functions could be assigned from time to time. It is a useful provision because issues may arise which would not be encompassed within the Bill, both within the profession and within the exigencies of day to day Department of Health operations.

The suggestion the Minister made with regard to consultation with the council is a very distinct improvement but I still would be concerned in regard to the question of the Houses of the Oireachtas. It is a catch-all, but we think it should not only be a catch-all but a tell-all as well. If, in fact, the Minister is going to broaden the functions here, the Oireachtas should be told at the earliest possible opportunity. One way in which the Oireachtas can be told, and the most appropriate way, is that the order under which the assignment is done by order, is laid before both Houses and then may be subject to debate. There is now provision for an annual report by the Dental Council. Of course, if there were any such assignment, it quite obviously would appear in the next annual report which could then be debated by way of motion in either House of the Oireachtas. But this would tend to lead to a situation where such a debate, if the House desired to make any point, might not take place for 15 months after the actual assignment, whereas it would be much more appropriate if the debate took place within the first month.

If the Minister reflects on this point between now and Report Stage, he may well find, and I hope he would find, that it would be more in the tone of this Bill as it will leave this House to make the provision in this particular case as he has elsewhere. After all, the functions of the Dental Council are central to this Bill. To take the Long Title, it is to establish the Dental Council and then to give it certain functions in regard to the practice of dentistry. If we expand the range of functions it seems we are, in fact, legislating. It is legislation that functions other than those within the Bill are now being assigned. I would ask the Minister to consider the point.

I would have no objection within the general framework and spirit of the Bill that the assignment of such functions should be by way of order subject to annulment. I will try to have the appropriate Report Stage amendment drafted in time.

I am very grateful to the Minister for that. It is a distinct improvement, and I would be glad if he would undertake it because in regard to this particular subject his drafting has been better than mine.

Question put and agreed to.
Sections 62 to 64, inclusive, agreed to.
Government amendment No. 33:
In page 32, lines 4 to 8, to delete subsection (3), and substitute the following:
"(3) Nothing in this Act or in the agreement first referred to in subsection (1) of this section shall entitle a person who is registered in the Commonwealth or foreign list of the register maintained by the General Dental Council of the United Kingdom to be registered in the register."
Amendment agreed to.
Section 65, as amended, agreed to.
Question proposed: "That section 66 stand part of the Bill".

I would like to raise again a point that I raised on Second Stage. That is the possible relationship between the Dental Council or a similar body and our newly established joint committees of the Houses of the Oireachtas. This provision here makes it a function of the council to advise the Minister, either at his request or on its own initiative, on all matters relating to the functions of the council. We now have quite a number of joint committees of the two Houses of the Oireachtas who have been examining many aspects of our life in this country and who seek advice and information from many bodies.

It seems to me that in regard to a body like the Dental Council — and I bring it up now in a general sense — it might well be that there should be some link. It may be sufficient to leave it that these committees of the Oireachtas would seek that advice through the Minister and it may well be that if there was good reason for them to seek that advice, this would be the appropriate channel, but I would like to ask the Minister for his comments on this point. Does he think that this new departure in regard to the operation of the Houses of the Oireachtas calls, perhaps not now, for consideration of whether there should be a special relationship in regard to the advisory functions of bodies like the Dental Council?

I would not be averse to such a function being devolved on the council and indeed it is one which I would sympathetically consider in relation to the further assignment of functions done by order rather than making it an intrinsic part of the Bill.

That is a very fair response from the Minister, and it means that as the Dental Council gets into operation and as these committees get further into operation about 12 months or two years from now action might be appropriate.

Question put and agreed to.
Question proposed: "That section 67 stand part of the Bill."

This is the section that creates an offence for the making of a false declaration or misrepresentation for the purpose of obtaining registration. It seems that the section has been drafted in a way which may have the effect of not allowing the purpose of the section to be effected. I refer in particular to subsection (2) which allows a prosecution to be instituted by way of summary summons. It seems that that can only be done if the summons is issued within six months of the committing of the offence. By virtue of the nature of the offence it would appear that the offence as created by section 67 (1) is committed when the false declaration is made. It is not a continuing offence of being registered at a particular time by virtue of misrepresentation or by virtue of a false declaration. As such it would appear to me that if somebody is, for instance, registered by virtue of a false declaration on 1 January and if the matter is not detected until 2 July a six month period will have passed and by virtue of subsection (2) which is the subsection which gives the power to prosecute, a prosecution by way of summons cannot be instituted. For that reason I wonder would the Minister consider on Report Stage introducing an amendment to provide for an additional subsection similar to subsection (4), section 52, which extends the six month period prescribed by the Petty Sessions (Ireland) Act, 1851, to allow the institution of proceedings in a summary manner to be extended for a two-year period? I think if that were done and particularly by virtue of the nature of the offence which this section creates — it is an offence that is not easily detectable —it would be more effective.

The question of the £800 fine was raised yesterday. Why is the £800 level maintained? I accept that there are constitutional reasons why one cannot prosecute summarily and have a fine of an excessive nature. Nevertheless, it is interesting to note that the Minister for Industry, Trade, Commerce and Tourism in the debate in the Dáil on the Copyright Bill agreed to extend the fines for prosecution under section 27 of the 1963 Copyright Act from £800 to £1,000. I think that amendment was accepted by the Minister in the Dáil only a few weeks ago and I cannot see why the same level of fine could not be provided for with regard to offences created under this Bill.

Senator Durcan has, appropriately, brought a particular point to light in relation to section 67. Certainly I did provide in relation to the illegal practice of dentistry in section 52 (4) for the full two year extension period. On Report Stage I will consider whether in regard to section 67, relating to false declaration or misrepresentation for the purposes of obtaining registration, whether in fact the extended period should be given there as well. I think the point has been well made. It may require reference back of the Bill and I will consider the matter on Report Stage. In relation to the £800 fine, this particular Bill has been gestating for about eight years and is major legislation. The general advice I received from the parliamentary draftsman and the Attorney General was in relation to the £800. I will talk to the Minister for Industry, Trade, Commerce and Tourism about his £1,000 and I will review the matter on Report Stage. I am assured that the maximum permissible on summary conviction is £800. I will have that matter checked before Report Stage.

Question put and agreed to.
Section 68 agreed to.

Amendment No. 35 is similar to amendment No. 34. Amendments Nos. 34 and 35 to be discussed together.

I move amendment No. 34:

In page 33, Article 7, line 29, to delete "five" and substitute "seven".

Amendments 34 and 35 to Article 7 of the First Schedule are concerned with the question of what is an appropriate quorum for a meeting of the council. This council are being given very important functions. It seemed to me that in fact the quorum was somewhat low. The membership of the council is 19. It seems to me that the sort of general rule of quorum that it should be at least one third of the membership, which applies in many cases, might well be applied in this case. If you divide 19 by three you get 6? so rather than have six people and a ghost I suggest that we should make the quorum seven.

Amendment No. 35 is concerned with the special quorum in the case where the council are acting in the matter of the suspension of a registered dentist from the register. This is a decision in regard to a person's professional livelihood. It is a most serious decision. As we know, it is a decision which the courts watch with very great care to ensure that all the rights of natural justice are allowed for. If somebody is to be suspended and to be removed from the dental register that should be done by a clear majority of the members of the council. I think it would be inappropriate if a minority of the members of the council could meet and decide such a matter. I would suggest that the special quorum should be ten, a simple majority of the membership.

I am prepared to accept the amendment. It is a reasonable compromise from five to seven in relation to council meetings and then for effectively particular meetings relating to discipline from eight to ten. The Irish Dental Association might have been happier with a higher level of quorum, but by and large all the parties are agreed that the amendments submitted by Senator Dooge and Senator Ferris go most of the way and they are acceptable to me as well.

We hope so.

Amendment agreed to.

I move amendment No. 35:

In page 33, Article 7, line 35, to delete "eight" and substitute "ten".

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 36 to 40, inclusive, may be discussed together.

I move amendment No. 36:

In page 34, Article 11, line 27, to delete "four" and substitute "six".

Amendment No. 36 is concerned with the point of the number of members required to requisition a meeting of the council. Again we feel that that four was rather low and that it might appropriately be replaced by six in Articles 11 and 12.

The particular ratios in the original drafting of the Bill were included because they were based on those which apply in the case of most statutory bodies in the health field. I see merit in having a higher number of members required to requisition a meeting and, accordingly, the amendments proposed by the Seantors, while they do not go all the way as requested by the IDA Irish Dental Association nevertheless go most of the way. They are acceptable to me as well.

Amendment agreed to.

I move amendment No. 37:

In page 34, Article 12 (1), line 31, to delete "four" and substitute "six".

Amendment agreed to.

I move amendment No. 38:

In page 34, Article 12 (1), line 32, to delete "four" and substitute "six"

Amendment agreed to.

I move amendment No. 39:

In page 34, Article 12 (2), line 37, to delete "four" and substitute "six".

Amendment agreed to.

I move amendment No. 40:

In page 34, Article 12 (2), line 38, to delete "four" and substitute "six".

Amendment agreed to.

I move amendment No. 41:

In page 34, Article 13, line 40, to delete "three" and substitute "eight".

Amendment 41 is concerned with the question of the notice required for a meeting of the council. In the Bill as it stands it is "at least three clear days". This seems to be relatively short notice for an important body, the items on the agenda at every meeting could be serious matters. There is a special point here, which was made by the Irish Dental Association, that in the event of a calling of a meeting those practising dentists who are members of the council might find some difficulty in re-arranging their appointments or their professional duties. On the other hand, we do not want to go too far in the other direction, because there may well be a necessity to summon a meeting in order to deal rapidly with some particular important point. We have put forward eight days' notice as a compromise between these two conflicting claims.

I think the argument put forward by Senator Dooge is fair and reasonable. It is self-evident and it does not require comment by me. It is very clearly stated and, accordingly, I propose to accept the amendment.

Amendment agreed to.
Question: "That the First Schedule, as amended, be the First Schedule to the Bill," put and agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.

A Chathaoirligh, you have said that the Bill is reported with amendments. I want to thank the Minister for the number of amendments he has accepted on this particular Stage. He has also undertaken to look at a number of other points. Members of the Seanad may also wish to review this long Committee Stage with a view to preparing amendments for Report Stage. I suggest that we should be realistic and order it for Wednesday, 27 June 1984 in the firm hope that it would be taken then.

I wish to thank you, Sir, for your assistance and the Members. It was a very difficult exercise, with so many amendments to consider. I also wish to thank the Leader of the House and Senator Ferris and the Leader of the Opposition for their co-operation. I also thank the staff of the Department of Health for the outstanding work they have done in the preparation of this Bill right up to Committee Stage. I want to thank the parliamentary draftsman's office, which we have badgered unmercifully in recent months and weeks in relation to this Bill. He has borne the matter with great heroism and has produced amendments which were acceptable to both sides. Of course, I should like to thank the profession. I have rarely known a Bill to go through the Houses of the Oireachtas which has been the subject of so much intensity of representations, consideration, meetings and consultations. However, it was all done in a constructive spirit and has resulted in a much improved Bill on Committee Stage.

Report Stage ordered for Wednesday, 27 June 1984.
Sitting suspended at 12.20 p.m. and resumed at 1.30 p.m.