Child Care Bill, 1988: Committee Stage (Resumed).
Debate resumed on amendment No. 80:
In page 27, line 44, to delete "excluding" and in page 28, lines 1 to 11, to delete paragraphs (a) to (e).
—(Senator B. Ryan.)
Cuirim ath-fháilte roimh an tAire. Tá an tír ag feitheamh leis an mBille seo le dóthain ama anois agus ba chóir dúinn críoch a chur leis inniu.
Amendment No. 80 arises from a curious exception in section 56. Let me remind the House that Part VIII of the Bill deals with children's residential centres. I understand from what I have read and what the Minister said at an earlier stage that Part VIII represents a considerable extension of the original intention of this Bill in response to wide cross-party support for the need to regulate children's residential centres. That is to be welcomed in the spirit in which the debate on the Bill has been dealt with, at least in this House.
I am worried that the debate on children's residential centres which took place in the other House focused so much on the desirable prescriptions for registration — I do not want to go over the registration again — but it introduced a requirement to register a process of refusal of registration, process of appeal etc. The whole Part, as it is now, is, in its philosophical intent, most welcome, the problem is that we are into the area of the unreal use of language which characterises legislation in that in section 56 the definition of a children's residential centre is "any home or other institution for the residential care of children in the care of health boards or other children who are not receiving adequate care and protection." That would seem to any reasonable person a perfectly reasonable definition except that it goes on and lists a series of exclusions from (a) to (e), for example "(a) any institution managed by or on behalf of a Minister of the Government or a health board,".
Some of the other exclusions have perhaps some rationale and I appreciate that there are certain institutions managed by the State which perhaps should not come under the definition of a children's residential centre. However, if children are to be taken into care under the provisions of this legislation and go into a residential centre which is run by a health board they should, by law, be entitled to precisely the same protection as children in institutions that are not run by a Minister or the health board. It is important, for instance, to point out that the recent terrifying report produced in Britain dealt with what happened in an institution run by the social services in the area. It was not a private institution. It was not run by anybody else other than the State.
The trouble with Part VIII as it stands is that there is no provision for the Minister to set standards for residential children's centres owned by the State. It is interesting that in the previous Part which dealt with pre-school services there is specific provision in section 54 for the Minister to make regulations about securing "the health, safety and welfare and promoting the development of children who attend pre-school services provided by health boards". I cannot understand why it is right that, on the one hand, we should have regulations which would ensure that the standard of service provided in health board pre-school services would be of an acceptable standard and yet have no equivalent provision under Part VIII. I can understand the difficulty of health boards registering their own residential centres but there ought to be a clear and explicit obligation to maintain the same standards when the services are run by a health board.
My amendment is an attempt to respond to that. In order to avoid wasting time I accept that my amendment is defective and I will not push it. It is by way of a holding operation to invite a response. It registers the need to include residential services run by the State under equivalent provisions to those that apply to services run by the private sector. I accept that it would be impossible to regulate some of the institutions as many of them are hospitals and would need to meet much more stringent standards than those that would be imposed on a children's residential centre. The basic problem seems to be to ensure that we will not have two different standards of care. I do not think that is the intention but the legislation should make clear, as it does with the pre-school services, that two different standards of service will not apply to the private and the public sector.
I support this amendment on the grounds that it is so important in all realms of human activity that State institutions set a headline for the rest of society and that headline must be seen to exist. I am a great believer in requesting all sectors involved in child care, pre-school and after-school services to meet the highest and strictest obligations in the best interests of infants. Consequently, it is doubly important that we match that request to those private institutions with a commitment on the part of the State to have the highest standards. I support the amendment.
I have listened with great care to Senator Brendan Ryan. For a time I wondered if he might be correct but I do not beleive the amendment is necessary. I am breaking the rules now but surely the worries the Senator has are covered by section 37.
I support this amendment. It is invidious to make provision for the registration of certain residential centres for children and then in the same breath to exclude other areas where children are detained, are taken into custody or are in institutional care. That is at the nub of the matter. It is a very welcome development to see the provisions in section 58 on the conditions for registration of children's residential centres and it is most unwelcome then to see the extent of the exclusions that are introduced in paragraphs (a), (b), (c), (d) and (e) of section 56. I am also not happy with the provisions for supervision of pre-school service, because there is no provision for registration.
The Bill would have been much improved if we could also have put a responsibility on the Minister for Education not just to make regulations in the context of securing the health, safety and welfare of children, but also in ensuring that these schools were registered. It is one of the scandals of this country that there is no registration whatsoever for pre-school centres. Anyone can establish a centre and it is not subject to monitoring or regulation.
What has that got to do with amendment No. 80?
The registration should be right across the board. Of course, registration and the terms for registration are specified at primary and second level but instead of having it limited we should extend it. Section 56, specifically excludes areas because they are under the direct control of the Minister, a health board or the terms of the Children Act, 1908. These are invidious exclusions, I would be interested in hearing what the Minister has to say as to why it was decided there should not be specific conditions for registration and criteria set up which would be on a par with what is listed in section 58.
I wish to support the amendment. I believe that Senator Ryan has followed the method he employed the last day, at least to my satisfaction, of unveiling inconsistency, when he places section 56 with section 54 where the Minister already intervenes to regulate homes operated by health boards in the case of the pre-school area. It seems to me that there is a question of consistency here. It is important that there be a level playing field. I am a little concerned that a number of the groups excluded here are among the most vulnerable.
I know Senator Ryan said that it was appropriate in some way to exclude institutions but I am not so sure that is the case. My argument would be that one presumes all institutions for the care of children with acute illness, the mentally handicapped and so on, would already be required to meet the minimum standards laid down in this Bill and go considerably further and because they are already required perhaps under other instruments, or should be required under other instruments, to meet the minimum requirements laid down in this Bill, then that cuts away any reason for excluding them.
I would point out that among the institutions referred to there is a mental institution within the meaning of the Mental Treatment Acts, 1945-1966. Our view of mental illness and of the appropriate methods of treatment of mental illness have changed very radically since 1945, and certainly even since 1966. If there is a discrepancy I assume the discrepancy operates in the way I said and that these institutions already meet the requirements laid down in this Bill. If they do not, then it is high time they did. I would put in an aside here, that we have been waiting for a very long time for a mental health Act to be brought forward in the Oireachtas. Perhaps the Minister might use his good offices to ensure that such a measure does emerge.
Before we concluded the debate on the Bill last week, I explained the background to this part of the Bill and in particular the fact that under existing law there is no requirement on a religious community or other body who propose to establish a residential home for children to seek approval or recognition from a health board or from the Minister for Health. At the special committee of the Dáil there was unanimous agreement that it should not be lawful for any person or body to operate a home for children unless it is registered with the local health board. The Bill was then amended to give effect to the desire of Deputies that a registration system for these homes be set in place.
I would now like to deal with the specific points raised by Senator Ryan in amendment No. 80 and the other contributions about the list of homes and other institutions that will not be subject to the system of registration we are setting up here. Paragraph (a) deals with institutions managed by or on behalf of the Government or a health board. These have been excluded because it would make no sense to have institutions run by the Government or by a health board subject to registration and inspection by a health board, perhaps the same health board. I do not understand how one could register oneself, inspect oneself and verify and vouch for oneself. It would be illogical and impractical.
I already conceded that point.
Senator Ryan certainly did, not alone today but last week. I have made this point on several occasions during the debate particularly in this House and indeed in the other House and on Committee. We cannot take any section of this Bill in isolation, we must look at the overall Bill. Senator Honan mentioned this earlier.
Homes run by health boards will instead be subject to regulations to be made under section 37 (3) and will be liable to inspections by officers of the Minister for Health under section 66. It is important that we note that. Paragraph (b) refers to hospitals and similar institutions. Paragraph (c) refers to centres for mentally and physically handicapped children. These institutions are being excluded from the registration system because it would not make sense to have children's hospitals and centres for handicapped children subject to statutory registration while all other hospitals and centres dealing with handicapped adults are not subject to similar controls. As the House is aware, there are differing views as to whether centres for the handicapped should be subject to this type of State control. I do not think it would be realistic to attempt to resolve this difficult and contentious issue in the context of this Bill particularly at such a late stage in its progress through the Oireachtas.
Paragraph (d) refers to certain mental treatment institutions. Paragraph (e) refers to certain industrial and reformatory schools. These are already subject to statutory control under other legislation and it is not necessary to subject them to a second layer of statutory control under this Bill. I hope this clarifies the reasons for the various exclusions.
I am very grateful to Senator Ryan for the very positive attitude he has adopted in indicating he is prepared to withdraw this amendment. I trust the information that I put before the House puts the matter in context and shows that where the health boards have a specific role they will have that role and where the health boards have another specific role vis-à-vis other caring situations the Department of Health and their inspectorate will be the people to ensure that they, as the subsidiary body, live up to the proper standards we all wish to achieve.
An Leas-Chathaoirleach
Is the amendment being pressed?
I do not think we have arrived at the stage of whether it is being pressed or not. It is not for the first time the Minister and I are perhaps more at one than myself and some of my colleagues on this Bill. I am not arguing with anybody but there is an anomaly, namely, the exclusion. The exclusion is not of a similar kind to the exclusion for the pre-school services. Let me read out what is said about the pre-school services. These are pre-school services run by the health board under section 54, which states:
The Minister may after consultation with the Minister for Education and the Minister for the Environment, make regulations for the purpose of securing the health, safety and welfare and promoting the development of children.'...
That is four things, health, safety, welfare and promoting the development. That is for pre-school services. The regulations the Minister will introduce for the children's residential centres will be even more detailed. Under section 60 the regulations are that the Minister shall for the purpose of ensuring proper standards, adequate and suitable accommodation, food and care for children while being maintained in centres and the proper conduct of centres, make such regulations. Then they are to prescribe requirements as to the maintenance, care and welfare of children while being maintained in the centres to prescribe requirements as to the numbers, qualifications and availability of members of the staff.
There are also to prescribe requirements as to the design, maintenance, repair, cleaning and cleanliness, ventilation, heating and lighting of centres, prescribe requirements as to the accommodation, including the amount of space in bedrooms, washing facilities and sanitary conveniences provided in the centres, prescribe requirements as to the food provided for children while being maintained, etc. Quite rightly, this is enormous and important detail about children's residential centres.
The regulations the Minister has to introduce will, by law, be greater in detail than those to deal with pre-school services. I am not arguing about that. If you go back then to section 37, which Senator Honan quite rightly addressed, you have is, by comparison, an extraordinarily week section. It states:
The Minister shall make regulations with respect to the conduct of homes or other premises provided by health boards under this section and for securing the welfare of children maintained therein.
Can somebody explain to me why we need the detail of section 54 to deal with pre-school services provided by health boards, the even greater detail of section 60 to deal with children's residential centres provided by non-health board agencies and then the vague, almost aspirational generality of section 37 to deal with children's residential centres? That is the nub of the issue.
The nub of the issue is not my amendment. It is the apparent deliberate refusal to go into detail about the standards of centres run by health boards which are children's residential centres. The Minister, so far, has not explained to me why that is, why there should be this vague statement of aspiration in section 37 by contrast with the detail in section 54. Section 37 simply refers to:
... regulations with respect to the conduct of homes and other premises provided by health boards under this section and for securing the welfare of children maintained therein.
It does not even say anything about the Minister making regulations about the physical accommodation, the sleeping arrangements, the quality of heating or of food. Why will children's residential centres provided by health boards not have that detail in the regulations? Why is it not in the law that those things should be contained by the regulations? It sounds — I say this without wanting to get into a confrontational situation — like cutting corners for the health boards.
There is a lot of detail specified in section 60. I cannot understand why the law about health board pre-school services is more explicit and more precise than the law about children's residential centres provided by health boards. I cannot understand why that distinction was made and I invite the Minister to clarify the matter for me.
I am sure I may diverge from Senator Ryan but I agree with him on this. It is all about standards. Perhaps I misunderstood the issue. Senator Ryan indicated he was talking about standards. I believe that is what it is about. I am a little worried because it seems to be parallel to the situation in which local authorities, for example, are exempt from their own planning regulations. The local authority engaging in development, do not have to seek planning permission to engage in such development. I have always felt that was wrong and led to abuse, or could lead to abuse in certain circumstances. I again return to the point that many of the groups here are the most vulnerable groups in our society.
The Minister went on to spell out, for example, what lies behind paragraph (e) which is industrial schools. In this country industrial schools have a history that is by no means unblemished and I certainly would like to be reassured that minimum standards were observed in such institutions. I am interested and heartened by what I think was a certain degree of movement from the Minister with regard to paragraph (c) and (d) because he suggested that perhaps there was a view with regard to the facilities and to the need to regulate facilities for mentally handicapped persons, particularly children and so on but that perhaps this was not the correct place in which to embark on such an exercise.
In case there is any doubt whatever in the House, I have the greatest respect for the people who engage in the care of mentally and physically handicapped children. The Minister mentioned the fact that in preparing this section his attention was drawn to the fact that there were certain religious orders and so on who were apparently excluded from registration under the legislation as it existed and that this part of the legislation, as currently framed, will bring them in. I welcome that but I have to say I am aware of the remarkable and wonderful work that is done by many religious orders in caring for the most profoundly mentally and physically handicapped people in this State, including children. Like all citizens of this country I am grateful to them for this remarkable work. This does not, however, mean that they should not be subject to control and I welcome the fact that they may come in under this legislation. I reiterate it is a question of standards, of ensuring that all such facilities meet the required minimum standards.
An Leas-Chathaoirleach
I would like to remind Senators that this amendment was discussed at length on the previous occasion. We are in difficulty with time and I would ask Senators to be brief.
In fairness, I do not think it was.
I was not here on the last occasion. Unfortunately I was not allowed to be in the House. I am particularly interested in this legislation and I would obviously like to hear what the Minister has to say in this area. This section is of the utmost importance. Senator Ryan is teasing out the whole area of the criteria and the standards in terms of children's residential centres.
The Minister has indicated that the purpose of this section, is to deal with the residential children's centres which were not previously registered. They were the institutions that were under the control of the religious communities. If that is the case, surely the argument is sound that if we are specifying the conditions, the criteria and the standards that have now to be maintained in this area — an area that was previously outside registration because they were under religious control — by the State in any of its centres where children are taken into care they should be of an equal standing? Whether that refers to a certified school which deals with children in a different fashion as distinct from promoting their welfare so to speak, surely, basic standards should be prescribed across the board?
We are talking about standards and rigid regulations to ensure that children are treated in a humane and a sensitive fashion. However they come into the care of an institution, an arm of the Government or of a health board would this not be the opportunity for the Minister to ensure that the standards are maintained at a minimum level across the board? This is the concern that is being expressed here. The Minister asked why should you have a health board registering itself and monitoring itself as that is its function. Implicit in it are the standards, the specified conditions of section 58 and particularly section 60, the regulations in relation to children's residential centres. In order to be registered these are the criteria that must be met. It is not the registration per se that we are interested in; it is the content of the criteria and the standards that make up the requirements to enable registration to take place. It is disappointing that there should be a specific exclusion of other institutions which are equally concerned with the welfare of youngsters even though they have arrived in those institutions through a different route.
First, we must acknowledge that we have rules and regulations vis-à-vis existing centres and anything involving health boards. There are clear regulations and guidelines. Not alone that, we have the system in position that we can impose existing regulations, new regulations, extra regulations or changed regulations quickly with control through the Department of Health on the various health boards.
On the matter of private residential centres, they must get some indication, some advance notice, of the type of standards we expect and the type of regulations we will be considering. This is why section 60 is so detailed and expicit. On the pre-school situation we are taking these in under control for the first time. There has to be a difference. Senators can be absolutely certain we want the State standards to be the highest possible. We can impose them quickly and we want to make sure that the rest come in tandem.
There is no effort to exclude health board institutions or State institutions from these standards. We must acknowledge they have a specific role in particular areas of activity, whether it is the psychiatric area, in a special hospital area, the mentally handicapped or physically handicapped area. We cannot impose standards and regulations through this Bill that would be in conflict with existing roles and that is the reason for their exclusion. There is no ulterior motive in it.
An Leas-Chathaoirleach
Is amendment No. 80 being pressed?
Not quite yet. I do not want to be repetitious but this issue, as we are pursuing it now, is different from last week. The Minister makes a very plausible case, as he has done on many issues in this Bill, and as he knows himself he has persuaded me on at least a few occasions to change my mind. On this one he says, for instance, that there is no need to go into detail about health boards because of the powers the Department of Health have to make things happen quickly whereas section 60 is considerably detailed because of the fact that private agencies are involved. Why does he need to go into more detail about pre-school services run by health boards than about children's residential centres run by health boards? I do not understand why he needs more detail in section 54 then he needs in section 37.
My amendment is simply a vehicle to raise the issue. I am quite certain if health boards are registering their own centres you will have challengers in the courts very quickly from private individuals claiming that they were not getting fair treatment. Why is there a difference between section 54 and section 37 in the detail there? I do not understand that. That seems to raise the question of different standards.
I take what the Minister said that there was no deliberate intention in terms of excluding the institutions there, that there were different standards there than those now being specified. The point we are making is that this would be the opportunity to ensure that the standards would be updated so that you would have a common set of standards for all those taken into care, whether in private or public care. What is the reason for not extending the cover prescribed in section 60 to all the areas listed in paragraphs (a), (b), (c), (d) and (e)? What is the argument for not updating that and thereby amending the requirements that exist in relation, for example, to certified schools at present? This legislation can resolve that.
Section 54 is an enabling section. It allows a health board to run pre-school services if they so wish, or under the direction of the Minister for Health and if there seems to be a need for such services. They do not do it now but this is an enabling section.
The health boards do not run pre-school services. They have a function in the running of pre-school services but they do not run them themselves. If there is a need in a particular area the health board may run pre-school services; this is an enabling section. This is why it is framed differently to that in section 37, where the system is already in position. Overall, we do not want a diminution of standards. We want an improvement of standards, we want standardisation of standards. Senators can be absolutely certain that in any regulations drawn up the same type of regulations will be applicable right across the board irrespective of whether the services are run by a private group, by the health board or by some other body on behalf of the State. There will be a standardisation of regulations and our goal will be to ensure that the regulations and standards are equal right across the board and maintained to strict criteria. We must take into account that in certain circumstances there are other criteria governed by other Acts and by other services where we cannot just say "this is the standard regulation for this service" and ignore the other role or area of service that would be given by that same institution. This is why there must be some difference.
An Leas-Chathaoirleach
Is amendment No. 80 being pressed?
I withdraw it reluctantly. It is the first time I have used that phrase about an amendment because I am not convinced. I accept the principle that we cannot have the health board registering itself. I withdraw the amendment and I will introduce an amendment to section 37 on Report Stage to address the matter with greater precision.
Amendment, by leave, withdrawn.
Government amendment No. 81:
In page 28, line 20, to delete "section 62" and substitute "section 60".
This is a grammatical correction.
Amendment agreed to.
Section 56, as amended, agreed to.
SECTION 57.
Government amendment No. 82:
In page 28, between lines 25 and 26, to insert the following new subsection:
"(3) Any person who contravenes a provision of this section shall be guilty of an offence.".
This is being inserted to place it beyond doubt that any contravention of this section, that is carrying on or having charge of a children's residential centre that is not registered in accordance with this Part, will be an offence punishable under section 61.
Amendment agreed to.
Section 57, as amended, agreed to.
SECTION 58.
Government amendment No. 83:
In page 29, line 12, after "regulations," to insert "or".
This, again, is a technical amendment to correct a drafting error that crept in on Report Stage in the Dáil. The word "or" should appear at the end of this paragraph as it does at the end of the other paragraphs in the subsection.
Amendment agreed to.
Section 58, as amended, agreed to.
Section 59 agreed to.
SECTION 60.
Government amendment No. 84:
In page 32, subsection (1) line 13, to delete "The Minister shall,".
This is a grammatical correction.
Amendment agreed to.
Government amendment No. 85:
In page 32, subsection (1), line 16, to delete "conduct of centres" and substitute "conduct of centres,".
This is a grammatical correction.
I do not want to waste the time of the House but why is it felt necessary to delete the "conduct of centres" rather than simply the word "centres" in order to put in a comma? In other cases they deleted one word to put in a comma but in this case they deleted three. It is the mind of the parliamentary draftsperson that intrigues me because he or she is used so often as a stick to beat the Opposition amendments. If the Minister cannot tell me, I will take delight in his discomfort.
The word "centres" is used twice in the same line and the comma is to put the emphasis on the centres we are talking about.
It is not the comma, it is the three words I do not understand.
Amendment agreed to.
Government amendment No. 86:
In page 32, subsection (3) (a), line 42, to delete "regulations" and substitute "regulations,".
This is a grammatical correction.
Amendment agreed to.
Section 60, as amended, agreed to.
Sections 61 and 62 agreed to.
SECTION 63.
Government amendment No. 87:
In page 34, subsection (3) (b), line 10, after "board" to insert "and".
I will discuss amendment No. 88 with amendment No. 87.
Section 63 provides for the introduction of a pension scheme for the staff of the 40 or so children's residential centres around the country. This has long been sought by the staff concerned and by their trade unions and associations. I am anxious to bring the pension scheme into operation as soon as possible after the Bill is enacted. The section, as now drafted, will serve to delay the introduction of the pension scheme. This is because the existing paragraph (c) provides that the scheme will only apply to centres that are registered under this Part. Obviously it will take some time to set up the new registration procedures and to make the necessary regulations for the purposes of this Part. As the section is now drafted, the pension scheme could not be introduced until all those preparations have been completed. As I said, I am anxious to avoid any delay and I propose the deletion of the existing paragraph (c) to enable this section to be brought into operation in advance of the other provisions of this Part. It will be brought into operation by ministerial order under section 1 (2) as soon as possible after this Bill is enacted.
A significant omission is being introduced by the amendment and that is that the section applies to a residential centre which is registered as a children's residential centre in accordance with this Part. That has been omitted and that would be the only sector where there is registration in the context of the specified criteria, regulations and standards as stated in section 60. Will the Minister be more explicit as to when he expects the section to apply fully to this sector also?
We are being fairly explicit. We are talking about the 40 or so children's residential centres we have taken over in the last number of years. The staff have been seeking this for a long time and when the Bill is passed the Minister will decide the necessary orders as soon as we have everything in position to proceed. We are very committed.
Amendment agreed to.
Government amendment No. 88:
In page 34, subsection (3), lines 11 to 13, to delete paragraphs (c) and (d) and substitute the following new paragraph:
"(c) is specified by the Minister for the purpose of this section.".
Amendment agreed to.
Section 63, as amended, agreed to.
Section 64 agreed to.
SECTION 65.
Question proposed: "That section 65 stand part of the Bill."
For two reasons, first, because I did not want to waste time and, secondly, because I did not get a chance to go through them, I am disappointed all the regulations under this Bill will be in a form which will not require the assent of the Houses of the Oireachtas. Normally in legislation as complex as this, with much of the regulatory material being of enormous significance, the drafters of the legislation identify certain areas which would be more appropriately dealt with by a positive vote of both Houses of the Oireachtas being necessary to introduce them. In all the regulations under this Bill approval of the Houses of the Oireachtas will not be needed. Only a negative vote can prevent them from being implemented which suggests that they are fairly routine regulations. It is clear that many of the regulations in this Bill are not routine and I am disappointed that the distinction was not made.
I agree with Senator Ryan. It would certainly be better if we had the more positive presentation of the regulations before the House so that we could debate them and seek to amend or change them because they are of considerable substance. I refer particularly to section 54 which involves the Ministers for Health, Education and the Environment. There is a great deal of consultation involved in relation to health, safety and welfare. Therefore, many of the regulations could well benefit from a perusal by the House.
We are adhering here to the normal position. Where regulations have to be made which create some change of emphasis or something like that, the Minister or Department involved may have to bring them back to the Houses of the Oireachtas for sanction. We will be positive at all times and it is normal for the Minister to make the regulations. Of course, they will be publicly available if anybody wants to raise any questions on them at any time. We want to proceed with the making of the regulations as quckly as possible to ensure that the Bill can be enacted rapidly.
Question put and agreed to.
Section 66 agreed to.
SECTION 67.
Question proposed: "That section 67 stand part of the Bill."
I believe in a free national health service. Therefore, I want to record my dissent at the idea of charges being imposed for any service proposed by a health board. I will not delay the House with a long argument about it. Most people whose children will need the services provided under this, or who will avail of the services provided under the sections referred to, will be poor. This provision has been inserted because of some obscure individual in the Department of Finance carrying on the crusade of the Department of Finance about eliminating everything that people get without having to pay for it. Therefore, I want to register my objection to the idea of charging people, for instance, for the use of health board-provided child care services or pre-school services.
Likewise, I register my objection to section 67 which makes provision for charges being decided at the discretion of the health board as to when and how they may be imposed. We are talking about a Child Care Bill and there are special provisions in the Constitution where the State has responsibility for the imprescriptible rights of the child as it is stated in the Bill. It is singularly inappropriate that there should be provision for charges, or for the care of children to be made conditional on charges being made by individuals, the parents or This is a most undesirable element in the Bill.
This section enables a health board to impose charges in respect of certain services provided under this Bill. It is not envisaged that charges will be imposed in the vast majority of cases since most children in care and families who avail of child care and family support services come from the lower socio-economic groups. We must take into account the fact that one cannot have a bald solution for every eventuality. There may be wealthy families where there is an estrangement between spouses and so on and where a child may not be aware of a trust fund or a decision taken in its favour that would allow major accumulation of resources. Due to domestic difficulties in that family perhaps the various benefits conferred by the State over the years could be transferred to improve facilities in that home or to further improve State services. It will only apply in certain eventualities, because in the vast majority of cases it would be illogical and impractical to impose any charges.
This may get worse before we finish.
An Leas-Chathaoirleach
I would like to remind Members that the longer we stay on Committee Stage the shorter the time will be for Report Stage.
It was not my fault, neither was it the fault of these benches that the Order of Business took a long time. So far on this Bill I have not blamed this Minister for anything, so he should not invite my wrath. I may well end up blaming him for this because if he is right that the vast majority of the parents of the children who will use the services provided under sections 34 and 54 will not be able to pay, what is the point of imposing a means test on everybody in order to catch 5 per cent of the parents? Unless the health boards have the usual clever trick of using a standardised means test everybody will undergo a means test to catch 5 per cent of parents unless the medical card qualification is the criterion. To suggest that every parent who is not entitled to a medical card would somehow be a fit target for a debt which can be in force in any court of competent jurisdiction as subsection (5) says, is going a long way beyond the tiny minority because any working person on the average male industrial wage will in most cases be well outside the income limit for a medical card. There is a catch in this. If the means test will be as benign as the Minister suggests and apply to such a small minority then it should be there because it will cost more to administer than it will generate in revenue. Otherwise it will be the medical card, in which case it will catch many people, the majority of whom will be relatively badly off. We cannot have it both ways, it is one or the other.
This is my first opportunity of getting to say something on this legislation. I would like to——
That was the Senator's own fault.
Thank you, Senator Honan. It was you, if I remember correctly, who wanted to expel me from the House.
I voted to put the Senator out.
I would have expected the Senator to come into the lobbies on my behalf.
Do not go back to Second Stage.
I will keep my remarks purely to the amendment. We have a free education system and the Programme for Economic and Social Progress on which I congratulated the Minister for Education not so long ago for her contribution to it extending free education to the age of 18 years. It ended at 17 years old until recently. Now there will be a six year cycle in our schools and a free system. Certainly we do not want to go back to the situation in education whereby parents were means tested. It is a basic right. Health is also a basic right for children. We are now extending the area of the service and the promotion of the welfare of children from the age of 16 to 18. It would be proper to synchronise health and education as the basic rights for the development of children and, therefore, we should not have a means test. I do not want to go into the whole question of the administration of it and where the cut-off point would be and so on. The basic constitutional right is that children should have the right to health and education up to the same level.
It is not proposed to have a means test in all cases. This section is only designed to cover three parts of the Bill, sections 3, 4 and 54. Under subsection (2) the Minister shall give any general directions, in other words he could give a direction not to impose a charge——
It has happened and there is no doubt about that. Every case will be taken on its merits. Basically this is to protect children and some spouses where certain people may not fulfil their duties, deny people certain information and so on. When eventually that comes to light all this can be taken into account. It is my belief that in 97 per cent of cases it will not be operable.
Question put and declared carried.
SECTION 68.
Government amendment No. 89:
In page 36, subsection (3), line 3, to delete "body or persons" and substitute "body of persons".
This is to correct a drafting error. The reference should, of course, be to a "body of persons".
Amendment agreed to.
Section 68, as amended, agreed to.
SECTION 69.
Question proposed: "That section 69 stand part of the Bill."
I am aware, as the Minister is of the time constraints but I have written beside section 69 "wow" with an exclamation mark beside it because of the sweeping nature of the provisions of section 69. Section 69 extends the powers of a chief executive officer of a health board to any function in respect to a decision as to whether to provide a service and make facilities available and to any function in respect to a decision about recovering a charge.
This is an extraordinary extension of the powers of the chief executive officer. It deserves at least to be justified vis-àvis the fact that the health board is supposed to be a democratic body. I am fascinated by subsection (d) which states “any function in relation to the payment of a grant or allowance to a voluntary body...” Does that mean that the health board members will have no say in the allocation of grants to bodies? My experience of health boards is that the members tend to be much more responsibe to voluntary organisations than, in some cases, to some senior officials. Most large organisations, not just health boards, have a way of dealing with many senior officials which would not encourage enthusiasm on the part of the laity if they had to deal with them. Any function in relation to the supervision of pre-school services is fair enough but what about sub-paragraph (i) where it states “any other functions as may be prescribed”? Will the Minister tell us the limit of other functions that may be prescribed? Section 69 (1) states “The following functions relating to a health board shall be functions of the chief executive officer ...”, it goes on to list them and at the bottom sub-paragraph (i) states “such other functions as may be prescribed”. Does that mean if the Minister wishes he can make everything in this Bill a function of the chief executive officer, or what is the limit? This again is the classic apparent unwillingness to draft legislation that binds both sides. Essentially this means that anything the Minister may conclude and which, perhaps, needs to be done differently, can be handed over to the chief executive officer without approval from anybody. I find that astonishing. We do not need sub-paragraph (i).
I would like to hear the Minister's views on this point. I have a horror of giving more powers to chief executive officers of health boards. I would like the Minister to explain this further because if some of the elected people of the health boards saw this section I am sure they would also have worries. Will the Minister clear this point for Senator Ryan and some other Members because we sometimes see at first hand the use of the power they already have? I would not like to see chief executive officers get greater power, if this is what the section means, without more people knowing about it.
Senators Ryan and Honan have put their fingers on a very relevant point. The powers of the chief executive have to be clearly specified. It appears from this section that those powers are broad enough to cover everything and that health board members have no role whatsoever. From a sweeping statement such as that contained in section 69 a chief executive officer can virtually decide unilaterally in relation to just about everything in the context of the care of children, where money is to go, supervision, registration and, of course, such other functions; the Minister may prescribe other functions as the case may be. It is an enormous catch-all section which gives free rein to a chief executive officer to more or less do as he or she thinks fit without reference to the health board members.
It may be a catch-all section but it has been a catch-all section for 21 years because it is virtually similar to the same section in the Health Act, 1970. It is not intended that the various functions shall be performed by the chief executive officer personally. By virtue of this section the chief executive officer will be able to avail of his powers under section 16 of the Health Act, 1970, to delegate any function assigned to him to specified officers or classes of officers. The Minister is empowered to give directions to the health boards and to the chief executive officers in this connection.
This section assigns resonsibility for various functions under the Bill to the staff of the health boards through the chief executive officer. That is the position pertaining to local government. Normally the manager carries out the functions as specified in law. Through that enabling device he is able to transfer his powers to the relevant professionals and administrators who work for him. Of course the members of the board will have clear functions to make binding decisions and the chief executive officer as the management head of the board will instruct his staff to carry out those decisions. This is totally in line with the provision in the 1970 Health Act. Otherwise we would have to specify exactly what every professional and administrator in a health board could do. By doing that we might debar them from carrying out certain humane services that would be of vital necessity in the interests of children which would have to be done at very short notice and very quickly. I do not think anybody would like that situation to prevail.
Question put and agreed to.
SECTION 70.
Question proposed: "That section 70 stand part of the Bill."
I could not let the question of money go without some comment.
An Leas-Chathaoirleach
I would ask Senator Ryan to be brief. We have gone way over the time that was allocated for this Bill.
That is because this House took almost an hour to deal with a non-contentious Order of Business. It exceeded the time taken when we had many rows on the Order of Business. I apologise to the Minister for the delay but we cannot let this go through.
I notice that the explanatory memorandum for this Bill, at least the one dated 1988, does not contain the normal explanatory and financial memorandum which was normally published with legislation in recent years. It makes no reference to the financial implications of the Bill. I actually thought it was now obligatory to produce an explanatory and financial memorandum for each item of legislation. Does anybody have any idea how much all this is going to cost?
The necessary resources and personnel for the administration of the legislation has been a concern expressed by professionals in the area both inside and outside this House. There is nothing specific other than a three line reference to whatever may be sanctioned by the Minister for Finance. If we are going to update our child care services then we are talking about having the trained personnel and the facilities to administer the legislation. There may well be recruitment requirements in this area. There are support services for families by implication in the area, there are minimum standards which obviously will require certain resources and finances to ensure that there is an upgrading for the existing residential centres. It seems to be legislation that will require substantial funding and it certainly will require a more formal statement in relation to expenses than what we have here.
I agree with my colleagues in the area of financial considerations. We were dealing with technicalities earlier but I deliberately refrained from contributing to allow us to get to Report Stage, which is important. I want to put on record my party's concern in the area of financial support for this Bill. It was my party's view — and it remains our view — that the entire Programme for Economic and Social Progress, the costings and the budgetary provisions therein, are questionable and events since then indicate our correctness about that. I am concerned that there may not be adequate moneys to enact the Bill and I am concerned that it is not clear that such money will be there. There is nothing explicit about that. The Bill will not work unless there is a major financial injection. I am concerned about the whole organisation of our national finances at the moment. I genuinely doubted the validity of the whole financial projections from the very outset this year and unfortunately I have been proved to be correct.
I would like to allay the fears in relation to section 70 as it is an enabling section. It is an admission that it will cost money to provide the services contained in the Bill, that the State through the Exchequer, will be responsible for the provision of those moneys; there is a further mandatory and legal implication that they shall be paid for out of the Exchequer and that they shall not be dependent on irregular allocations of funding at the discretion of anybody, a Minister, a Department or a health board. The cost of running child care services will come from the Exchequer and will be included in the annual budget. Our commitment was shown this year when in the 1991 budget the Minister for Finance, at our request in anticipation of the Bill being passed, provided for the first time in the history of the State advance funding in the event of the Bill becoming law. A sum of £1 million was allocated, proof positive of our commitment. Section 70 will ensure that the taxpayers' money will be used in the interests of our children.
Question put and agreed to.
SECTION 71
Government amendment No. 90:
In page 37, subsection (7), line 29, to delete "misused" and substitute "inhaled".
This is to correct a drafting error which arose when this section was amended in the Dáil. The word "misused" here is incorrect. The word that should be used is "inhaled" which is in subsection (1), line 3 on page 37.
I have a query in relation to amendment No. 90. The subsection refers to any substance — a member of the Garda Síochána may seize any substance which is in the possession of a child; the amendment deletes "misused" and puts in its place "inhaled". Would it not be more appropriate to have "consumed or inhaled" in that it refers to any substance? Therefore, the two methods of misusing it or using it or by oral consumption or inhalation make it seem as though one of the means whereby the substance will be misused has been omitted here.
We have to take this in context. Subsection (7) is specifically at the request of the Senator's party. I went to great pains in the Dáil to have their proposal accommodated on Report Stage and we put the subsection in at very short notice. It got a good debate and it was felt we would be given the latitude of making sure that it was absolutely watertight. We feel this is what we should do to make sure that it can be operable and capable of being implemented by the Garda Síochána. If you take the whole section you will see that this is a major departure, a major innovation. I thank Deputy Howlin in particular who had tremendous debate on this point. We hope the Seanad will accept our firming of the situation.
Amendment agreed to.
Question proposed: "That section 71, as amended, stand part of the Bill".
On the section, I cannot see the purpose of subsection (2), which deals with a defence for a person under 18 years of age. It reads: "...it shall be a defence for him to prove that at the time he sold, offered or made available the substance he was under the age of eighteen years...". It appears to me — I could be wrong — that what it is actually saying is that if somebody under 18 supplies somebody else with a substance, a solvent, than other in the course of business they are somehow being exempted from the provisions of this. I would not be keen on this.
Because of the importance of this I would like to put on the record of the House the fact that I agree entirely with Senator Ryan in his apprehension.
Subsection (2) means that it would not be an offence for a group of youngsters to pass solvents to one another to sniff. This is achieved by making it a defence for a person to show that that he was under 18 and was not acting in the course of a business. However, if he were acting in the course of a business — for example, as a shop assistant — he would be guilty of an offence. This is to prevent shop assistants, shopkeepers, or staff in general merchant premises from circumventing subsection (1) by having solvents sold by persons under 18 — in other words, they could not employ a person under 18 behind the counter and say "You can sell away to that group over there" and then claim he was under 18. By moving it from that arena to the other arena we have the offence.
What is the thinking behind not making it an offence for kids to pass potentially very dangerous solvents to each other with a view to abusing them? I do not understand the objective of not making it an offence. I would have thought that if young people are passing around solvents to each other with a view to abusing them it is more than desirable that that should be illegal. I am not trying to be contentious. I am not trying to waste time.
Specifically we are here on the Child Care bill and we cannot go into the realms of the criminal law. The second point is that we cannot in law criminalise the offence of passing a substance around, but we can make it an offence for somebody to supply it, to sell it, to make it available. We do not want a situation that a person under 18 behind the counter acting for their master can claim immunity from the law by saying that they are under 18, that they could pass it even though they were getting commercial gain for their master for it.
Perhaps not, but it is the best we could do to tighten it. It was very loose.
Question put and agreed to.
SECTION 72.
Question proposed: "that section 72 stand part of the Bill."
Before we agree section 72, I would like to mention that I have been advised that the reference at line 40 to "area" should be to the functional area of the health board. I propose to bring forward a suitable amendment to deal with this on Report Stage and I wish to notify Seanad Éireann of my intention to do so.
Question put and agreed to.
Sections 73 to 76, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach
We propose to adjourn for three quarters of an hour to enable the amendments to be prepared and circulated.
I am quite happy to have that period reduced.
It is out of our control.
We would be happy to come back at 5.05 p.m.
An Leas-Chathaoirleach
The Order of Business today was that we would adjourn for three quarters of an hour and we cannot deviate from that.
Does that mean we must complete the business by the time allocated?
An Leas-Chathaoirleach
We must complete it by 6 p.m.
Sitting suspended at 4.35 p.m. and resumed at 5.20 p.m.
