I should like to thank Senators for their constructive and detailed contributions to the debate on the Bill. I am pleased that, by and large, all speakers have welcomed the Bill although some have indicated that they have reservations about parts of it. It would be naive of us if we did expect that there would be no reservations about a complex Bill such as this. I will briefly deal with some of the technical issues first and then deal with the questions of conscientious objection, the Central applications bureau and the points raised by Senator Robb.
The question of ministerial powers was raised by Senators Fallon and Honan. There was a concern, an unnecessary one, that the Minister of the day proposed to take too many powers on himself under the Bill. This is more related to a certain antipathy to the current Minister than to the Minister of the day. That is understandable for a number of reasons but it is of no importance in framing legislation to stand, hopefully, into the year 2000 and from there on.
Sections 15, 53 and 56 contain standard provisions, purely standard ministerial provisions. They are not exclusive to the Bill. Not since the fifties has any effort been made legislatively in this direction, not since the Nurses Act, 1950. But now when we put conventional current ministerial powers into this legislation it was as if all hell broke loose and that the Minister of the day was assuming extraordinary powers, powers which everybody would have been perfectly happy with in the sixties, seventies and in the mid-eighties. Section 15 is purely a reenactment of section 23 of the Nurses Act, 1950, and section 56 is similar to section 80 (1) of that Act. It goes without saying that before an order is made under sections 15 or 53 any Minister for Health would consult with the board in order to have the board's views. Section 53 is designed to give additional functions to the board, not to the Minister. Indeed, it might be expected that the initiative for the assignment of additional functions would come from the board and that full consultations would take place between the board and the Department before an order is made. Senator Honan was preoccupied about the powers of B. Desmond and so on but I can assure her that her excessive concern does not merit examination.
The question of fees was raised by Senator Fallon. The provision for the board to charge fees is purely to enable it to obtain the funding it will require to develop and expand the range of services it can provide for nurses. The amount of the fees determined initially will require the approval of the National Prices Commission and any increase in the fees will be subject to the consent of the Minister for Health of the day. The purpose of the provision for a retention fee is primarily to enable the board to establish and maintain a live register of nurses. The present register, as many Senators, the Department and every nursing organisation knows, contains the names of nurses who have died, have married and have not been registered under their married name and new address — not that they are obliged to change their name but a number do — and the large number who have gone abroad or otherwise ceased to practise. Therefore, if we are going to have a rational set-up throughout the country we have to charge a retention fee so that people pay on a regular basis.
I am surprised that many nurses who are members of trade unions and who are accustomed to this form of continuation payment find objection to this. Again at the risk of drawing the wrath of people on my head there is nothing uniquely special about professional roles in that framework and there should not, therefore, be exemptions. I should like to stress that, this is of critical importance. For manpower planning and statistical purposes the present register is useless. Therefore, this change will be of major benefit to the profession and to the health services as a whole.
On the question of ancillary nursing personnel, raised by Senators Fallon and Ferris, I should like to point out that section 30 enables the board, if it so decides, to establish a register for ancillary nursing personnel. I made a significant amendment to this section in the Dáil. I deleted the phrase "or shall whenever the Minister so requests", which means that the discretionary power to establish a register is left entirely to the board. I stress, lest there be any misunderstanding, that if ever this power were to be invoked, a register entirely separate from the current register of nurses would be established. That is quite clear-cut from the Bill. That was an amendment made in the Dáil. Contrary to what has been said here about my having made a large number of amendments in the Dáil, the Bill has not been amended that much. By and large, there have been very few amendments, contrary to what a Senator suggested, but that is an amendment of some significance to which I wish to allude in this House.
With regard to the appeal provision referred to by Senator Fallon, which is in section 34 (5) I am satisfied that the appeal provision in the case where a hospital has been refused approval as a training institution by the board is adequate. There is nothing in section 34 (5) to prevent such a hospital from appealing to the board themselves — or, indeed, to the High Court — in addition to appealing to the Minister for Health. I do not feel that the situation would arise as the board have laid down very detailed criteria for training schools. Hospitals seeking approval would be very well aware, well in advance, of the criteria for approval as a training school and would understand very clearly the necessary provisions before making an application for approval.
I am not very often at odds with Senator Robb, but I do not believe in having a Central Applications Bureau for, perhaps, the authentic 80 per cent and an interview system for the balance. I believe that this would give rise to a post-colonial, bizarre system of the beloved aspects of the profession ensuring that their 1985 year 2,000 version of nephews and nieces would enter through the 20 per cent back door. Inevitably I will get myself into trouble over it, but when one is dealing with the professional aspect, it is either all or nothing. If one gives way even on 20 per cent one will find oneself being railroaded into 50 per cent and eventually there will be an erosion back to the nepotism, class structures, inequities and the lack of educational opportunity which existed — and still exist — for the nursing profession. That is what we are trying to change and that is why I am currently such a detested figure in so many training schools. The influence on patients and on the public at large of such hospitals and schools can be and is profound.
However, we will go ahead and see how it will work out. I have no doubt that the Central applications Bureau will work out well. I have no doubt that, in passing it, Seanad Éireann will do one good thing. Looking back at the work done by quite a number of my predecessors, it is obvious that quite a number of them regarded as their priority in delivering the health services, as Ministers holding the Health portfolio, ringing up matrons around the country on behalf of Deputies and Senators asking them to admit Mary so-and-so to their nursing school as a favour. Then when something has to be done in relation to that particular institution, the Minister is naked before the prospects of implementing any kind of health policy. That, unfortunately, has been the situation. I have adamantly refused in the past two-and-a-half years to make such representations and have issued directions within the Department to that effect. Such representations are not made.
The Central Applications Bureau has been singled out as an important element of the new structures for nurse training, education and registration laid down in the Bill. It is to be seen as one element in the context of the totality of nurse training and education from the selection of trainees to their registration and the post-registration, education and training of nurses. The Bill is designed to update the structures in relation to nurse training and registration. Against the background of increasing numbers of applicants for nurse training in the 60 nurse training schools, a rationalisation of the procedures for application and selection for training is an essential part of this updating. Therefore, the CAB will co-ordinate the applications from persons wishing to enter nurse training and it will operate the screening of candidates from the educational and psychological aspects. It will do so in an open, approved and accepted manner.
These are important, fundamental tasks in the selection procedure and will be of major benefit to the nurse training schools which in the last analysis, will have a pattern. They will be able to select their own trainees from the point of view of suitability for individual employments. But the functions of the CAB in relation to the co-ordination of applications will be of benefit to applicants who will have to apply to one single body only, instead of having to apply to several training schools, as is the case at present. It is both heartbreaking and enormously costly for parents and for young men and women to have to go around the country visiting nurse training schools, attending a multitude of interviews at enormous cost hoping for a vacancy.
The CAB will have a screening function. It will determine, inter alia, an applicant's psychological aptitude for nursing, which is of crucial importance. Up to now it has been a quasi-educational and sometimes quite cursory interview having more regard to where the person came from than to his or her capabilities. This function will be of benefit to the training schools, the applicants and, in particular, to the health service. Therefore, I strongly commend the provisions of the Bill regarding this aspect of the legislative proposal.
Senator Durcan suggested that the Fitness to Practise Committee be established under Part V of the Bill and that it should include in its membership persons who are not members of the board. Senator Durcan felt that the committee would be more acceptable to the public and to nurses if its members included non-nurses. This suggestion has not been represented to me up to now by the nursing organisations. I feel that external members would not be desirable for this committee. It is the business of An Bord Altranais to regulate and control nurses — if I may use that phrase, and I use it in its correct, professional way — and to control the practice of nursing at national level. It follows that the board should have the power to adjudicate on the fitness or otherwise of a nurse to practice nursing. It should not fall to outsiders — I use that word for want of a better one — to adjudicate on the fitness of persons who are subject to the control of their own professional representatives.
There are adequate safeguards from the public point of view. There will be two members of the public on the board. Contrary to the party-political pre-occupation of Senator Honan, who said that it would be two Labour Party members, as far as I am concerned those appointed will be appointed on merit and there will be no other criterion. Out of a large board there will be two members to represent the interests of the general public. Either or both of these could be members of the Fitness to Practise Committee. In any event, those members in their capacity as members of the board would have the opportunity to participate in making a decision on how the board should act on a report from the Fitness to Practise Commission.
Senator Deenihan raised the question about the insertion of the word "serious" in section 38 (1) (b). I am entirely reluctant to put that in because — and I think a parliamentary draftsman would agree — it would hardly serve any useful purpose in that any person at the moment, as it should be, may apply to the committee for an inquiry into the fitness of a nurse. That is under the general provisions of the Bill itself and it would be quite difficult, if not impossible, to determine in legislative framework the idea as to what should be or should not be a serious issue. It will be up to the committee to decide the grounds for proceeding with an inquiry. They will judge the seriousness and that will be devolved on them.
Senator Deenihan raised the question that the type of complaint should be spelt out. This again is something we just cannot comprehensively put into legislation. It is the purpose of the Fitness to Practice Committee to decide, at the first available opportunity following the making of an application to them, whether or not there are grounds for proceedings. Therefore the type of complaint will be considered by the Fitness to Practise Committee.
Finally, it was suggested that there should be some legal persons on the Fitness to Practise Committee. The board are empowered to request persons to assist them in the performance of their functions and they can on that basis employ a law agent or a senior counsel from time to time and they can use this power to obtain legal advice. The present board, I understand, have retained a firm of legal advisers, so I think the aspect is generally covered in the Bill in a reasonably effective manner.
Regarding the question of conscientious objection which arises under section 51 (2) of the Bill, a number of Senators, particularly Senators Ferris, Durcan and McGuinness, made detailed observations on this question. Senator Ferris would have liked to have the principle of the right to conscientious objection enshrined in the legislation but he also made the point, which serves as a counterpoint, that we are living in a democracy in which people have the right to opt out of procedures which are directly at variance with their conscience, so, in effect, as a matter of generality, we do not have to put into legislation provisions of this nature.
Senator Durcan did not consider that the board's code adequately covered or actually gave the right to conscientious objection and he wants to see a statutory provision in this regard. Indeed, he mentioned Spanish legislation on abortion, which gives doctors the right to opt out of abortion procedures. A number of other Deputies referred to this area.
Senator McGuinness was satisfied with the provision in relation to section 51 (2) of the Bill and with section 1 (11) of the code for nurses. She indicated that she would oppose the inclusion in the Bill of what she quite correctly called a "no-birth" conscience clause in a situation where — I quote Senator McGuinness —"we are very often talking about the ethics and the conscience of the majority Church and perhaps of a rather right-wing group within the majority Church". Senator McGuinness feared the possibility of circumstances arising which could bring into conflict the rights of potentially conflicting consciences, namely, those of the patient, those of the doctor and those of the nurse and of course, she indicated that in relation to treatment the rights and conscience of the patient, should prevail.
With these points I find myself in general agreement. The Bill reflects the particular view of Senator McGuinness because it is of critical importance in this Bill to point out that there is no general precedent or provision in Irish legislation for the inclusion in an Act of the Oireachtas of a non-specific and general right to conscientious objection. That is something of which we tend to be somewhat ignorant. In the medical or nursing context the potential for damage to persons who are ill from the use of such a legislative statutory provision of conscience could be enormous. A person, for example, as a matter of conscientious objection, could refuse to give a blood transfusion, something on which we would not, I am quite sure, contemplate giving a legislative conscience exemption. Equally, somebody could refuse to give a pain-killing drug or, for example, the attention of a particular clergyman to a particular patient on conscientious grounds. Again, we would not stand over that.
There is specific precedent, however, in health legislation for the inclusion of a conscientious objection clause in very specific instances. The most obvious one, which I and Senators are equally familiar with, relates to the provision of services under the Health (Family Planning) Act. Section 11 of that reads:
Nothing in this Act shall be construed as obliging any person to take part in the provision of a family planning service, the giving of prescriptions or authorisations for the sale, importation into the State, manufacture, advertising or display of contractives.
A very specific exemption in relation to a very specific question is provided on conscientious grounds.
The purpose of this Bill is to establish a broadly based board which will regulate the registration, control and education of nurses. The Bill does not deal with the individual nursing services as such. It does not deal with whether they should or should not be provided for particular aspects of nursing. It does not even consider within what specific circumstances these services as such are being provided and, indeed, by whom. These are matters on which nurses should have and, indeed, expect guidance from An Bord Altranais itself and a specific power devolves on the board under section 51 (2) under a general umbrella of giving advice relating to ethical conduct and behaviour. That, in my strong view, is as far as this Bill can go. I quote the section:
It shall be a function of the board to give guidance to the nursing profession generally on all matters relating to ethical conduct and behaviour.
This is the nursing profession itself, on a self-regulatory basis, giving advice and guidance on this area. Therefore, it would be completely inappropriate for legislation here to introduce what one might call a catch-all conscientious objection clause giving nurses overriding statutory powers in what would be totally undefined circumstances.
This is of considerable importance within the framework of this Bill. For example, the Bill does not deal with the question of abortion. If there was an Abortion Bill before this House, presumably, as is the case of the United Kingdom legislation under the Abortion Act, 1967, there would be a conscientious objection clause as there is in relation to that Act. Presumably, if it were to happen there would be a similar type clause in that regard. I would make the point, even in relation to the British Act, and I quote here from that Act where it is said:
Nothing in . . . . shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical and mental health of a pregnant woman.
Even in that conscientious clause there is a very considerable obligation imposed. We are not dealing with that today. But, since the question of abortion was raised by a number of Senators within that framework, there may well be some confusion. It is important that I should clarify that.
If particular problems arise I am quite certain that the board will be prepared to advise individual nurses. The board will also monitor the effectiveness of the code and they have drawn up their own code for nurses. They will be prepared to revise that code, as necessary, in the light of experience of its application and vis-àvis individual operations. Therefore, for entirely appropriate legislative reasons I have to resist, the consideration of an amendment or change of that nature. I am glad the Seanad has raised the matter so specifically because it affords me an opportunity of clarifying the matter further.
Senator Fitzsimons expressed reservations about the use of proportional representation in relation to the election of some of the members of An Bord Altranais. If the Bill is enacted with reasonable speed we will have the elections fairly soon. I will be drawing up the regulations for the election of members for the first board. I am already on record as saying that I will explore the feasibility of providing that the election be carried out by way of proportional representation. I am doing that at present. I beleive that proportional representation is the most equitable system possible. As Senators know, it is used in the election of Members to Seanad Éireann and the Dáil and indeed in the election of members of the Dental Council. In the nursing context it would give nurses of all categories an opportunity of being represented on the board. Essentially the election will be to secure members for 17 separate seats, in effect 17 single seat constituencies. The proportional representation is not usually used for this type of election. However, there is quite a significant precedent for it, even on the single seat basis. The President of Ireland is elected on a single seat basis. I suppose if it is good for the President in that regard there is no great reason it should not be used here also, and I am in favour of it.
I have received one written communication only from one nurses representative organisation objecting to the proposal to provide for proportional representation. On that basis I have no reason to believe that the majority of nurses would object to proportional representation at present.
As the Bill is now reaching the final stage and the time for drawing up the relevant regulations is imminent I would be very glad to have the views of those nurses representative bodies who may be concerned about this aspect. I can take these objections into account in drawing up the regulations.
Senator Fitzsimons specifically referred to the question of matrons and assistant matrons and the prospect of their being electorally squeezed out on a proportional representation basis. I will certainly bear his views in mind in drawing up the regulations for election of members to the first board. I would be anxious to hear from the organisations because that was not my intention. That is not nor was it ever the intention in terms of the operation of proportional representation. I am very anxious that proportional representation should operate in the general election of the board.
There are two final points I should like to deal with. Senator Honan asked: why exclude the chairman of the board from being a chairman of any of the committees of the boards? To an extent the Senator may have misread the provisions of section 13 which provide that the chairman of every committee established under this section shall be a member of the board. This does not exclude the president of the board. The only exception is that the chairman of the Fitness to Practise Committee shall be a member of the board other than the president or vice-president. That is reasonably fair. We have to prevent a situation arising in which the chairman of the Fitness to Practise Committee would in effect be reporting to himself or to herself. Basically that is the reason for that.
I can assure Senator Robb that within the legislative framework we would both claim to be liberal. I hope we are not that ageing in our liberality. But we still retain the sparkle, the need for change and a bit of imagination. In terms of student representation on the board I would make the broad point that the board is for registration — it is an examinations board as such. It is basically a board dealing in terms of fitness to practise of people who have qualified and who are on a register. I am reasonably convinced on balance. If there is an argument, then I would certainly share a degree of the Senator's argument. I would argue for student nurse representation on the boards of hospitals and on service boards in the health services. Student nurses are generally treated with a degree of patronisation, indeed disdain by some agencies. They are not treated in an adult and cooperative way. It should be remembered that the contribution made by student nurses within the health services is enormous. An Bord Altranais are not a health service body. They are basically a professional registration examining body. In a body where examination procedures are established, where papers are drawn up, and where certificates are decided on student representation does pose some considerable difficulty in that regard, particularly in terms of student representatives deciding on fitness to practise of registered nurses. There could be an anomalous situation there. That is the main reason the change has not been effected.
I want to thank Members of the Seanad for being helpful in relation to this Bill, helpful in highlighting a number of its aspects of which were not debated in Dáil Éireann, although the debate in that House was very extensive and lengthy. It demonstration that the rigorous, second examination of legislation is invaluable. It demonstrates that Members of Seanad Éireann reflecting on this Bill, have made exceptionally valuable and necessary points in relation to its further passage.
