Seanad Éireann debate -
Thursday, 1 Jul 1993

Vol. 137 No. 5

Medical Practitioners (Amendment) Bill, 1993: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Health (Mr. Howlin)

The purpose of this Bill, now passed by Dáil Éireann, is simply to amend some provisions in the Medical Practitioners Act, 1978, and the Road Traffic (Amendment) Act, 1978, to ensure that those provisions are placed beyond doubt. The need for this Bill stems from issues which arose in the context of prosecutions for drink driving offences. The issues relate to the form in which the register of medical practitioners was maintained by the Medical Council under the Medical Practitioners Act, 1978, and the certification procedures arising from that. The purpose of the Bill is to give express authority to the Medical Council to keep the general register on computer and also to give express authority to the registrar of the council to issue certificates attesting to matters contained in the register.

The Bill also amends the Road Traffic (Amendment) Act, 1978, to extend the presumption that certain persons are registered medical practitioners to include proceedings where persons are charged with offences of refusing or failing to provide a specimen of blood or urine to a registered general practitioner. At present, that presumption only applies for the purposes of prosecutions under sections 49 or 50 of the Road Traffic Act, 1961. Prosecutions under these sections relate to the offences of driving or being in charge of a mechanically propelled vehicle while under the influence of an intoxicant or where the blood or urine alcohol level exceeds specified maximum limits. The amendments contained in the Bill extend the presumption to all circumstances where a person refuses to co-operate in the giving of a specimen of blood or urine.

Taken as a whole, the Bill seeks to tighten up provisions of both the medical practitioners and road traffic legislation which will assist in road traffic and, indeed, any other legal proceedings.

The reason for bringing forward amending legislation at this stage is to copperfasten the provision in the Medical Practitioners Act relating to the form of the register and to make suitable provision for certification of entries contained in the register. If left unattended to, these have the possibility for endangering the success of prosecutions for drink driving offences under road traffic legislation. I have been advised that this matter should be dealt with urgently in association with the Road Traffic Bill, 1993, which, I understand, is before the Dáil today.

It is worth pointing out that the amendments to the drink driving legislation are repeated in the Road Traffic Bill, 1993, and these amendments will only operate pending the enactment of the road traffic legislation. Members will have an opportunity during the debate on that Bill to raise points of detail on those aspects.

For the purpose of clarity, the two amendments to the Road Traffic Act contained in this Bill are, I am advised by the Attorney General, necessary immediately to put prosecutions beyond doubt but they will be contained in the more comprehensive Road Traffic Bill, 1993, which, if given a Second Reading in the other House, will go to a Special Committee and eventually will come to this House. It was thought inappropriate to wait for that legislation to be enacted lest there be any doubt in relation to the prosecution of those involved in drink driving.

The provisions of the Bill are straightforward. The first part of section 2 gives express authority to the Medical Council to keep the general register of medical practitioners on computer which, in this day and age I suggest, can only be considered non-controversial.

The remainder of the section, section 2 (2A) reintroduces a provision that appeared in somewhat similar form originally in the Medical Practitioners Act, 1927. It provides, among other things, that a certificate from the registrar of the council attesting to an entry in the register shall be evidence of the matters attested to unless the contrary is shown. In other words, it will not be necessary, if a certificate from the Registrar of the Medical Council saying that somebody is registered as a general practitioner is presented, for that general practitioner to present himself in court to swear under oath that he or she is a GP. Apart from any other reason, the certification provision is vital in the context of the register existing, for all practical purposes, in computerised form. It is a standard provision in legislation of this and similar kinds where records, written or computerised, are referred to.

So far as the health professions are concerned, a provision along these lines is included in the Nurses Act and Dentists Act, both of which date from 1985. The Registrar of the Medical Council has been issuing certificates relating to the registration of the doctors since the council commenced operations. These are required for general certification purposes, such as for employers, for purposes of working abroad, for taking higher level examinations and for any number of reasons. In the context of legal proceedings, where the success or failure of a case may depend on the legal status of a certificate issued by the Registrar of the Medical Council, it is clear that there can be no room for equivocation.

Section 3 is a consequential amendment relating to the computerised form of the register. Sections 4 and 5 contain the amendments to the Road Traffic (Amendment) Act, 1978. Section 4 brings the offence in section 17 of that Act into line with the offences in sections 13 and 14. It puts beyond doubt that it is an offence to refuse or fail to comply with a requirement of a registered medical practitioner in relation to the provision of a specimen of urine. Section 5 extends the presumption that persons are registered medical practitioners to prosecutions for refusal offences under the Act.

I am satisfied that this short Bill fundamentally ensures that a number of issues relating to the general register of medical practitioners are placed beyond doubt. I commend the Bill to the House.

Mr. Reynolds

I preface my remarks by saying that I am unfamiliar with the contents of this Bill. I only heard about it last night and was unaware that it was being taken in the House this morning. It is difficult for Members to make genuine comments on the Bill when they have not had time to consider it. I received a copy of the Bill only this morning. It is inappropriate of the Government to rush through such legislation. If legislation is to be effective, Members must have time to put their views and objectives to the Minister.

I do not blame the Minister in this instance, but it is farcical to be asked to come up with ideas and agree or disagree with a Bill in five minutes. The excuse given is that there is outstanding road traffic legislation and if this Bill is not introduced, difficulties may arise in relation to prosecutions. I do not disagree with this legislation. We are in favour of the Road Traffic (Amendment) Bill, 1993, proposed by the Minister for the Environment, Deputy Smith, and this Bill is a consequence of that. However, I object to the way this Bill has been brought before the House. It is difficult to make significant points when one is unsure of the contents of the Bill.

I understand from the Minister's speech that the main provisions of the Bill are straightforward. Section 2 gives express authority to the Medical Council to computerise the general register of medical practitioners. I welcome this; perhaps it could have been done sooner.

Sections 4 and 5 of the Bill put beyond doubt that it is an offence to refuse or fail to comply with requirements of a registered medical practitioner for a specimen of urine. I presume that is the cornerstone of the Bill in the sense that there were loopholes in existing legislation and drivers who had an excess of alcohol in their system have avoided prosecution because they refused to give a urine and blood sample. I presume this Bill will close these loopholes so that people guilty of serious offences will be unable to avoid prosecution. I welcome these proposals.

I support the thrust of the Bill but I strongly object to the way it was brought before the House.

Mr. Farrell

Cuirim fáilte roimh an t-Aire go dtí an Teach agus don Bille.

This is an important Bill because we are aware of the depredation caused by drunk drivers. Dr. Paddy Loftus has stated that 60 per cent of road accidents he attends are drink related. Unfortunately, drunk drivers may avoid prosecution as a result of loopholes in existing legislation and often victims who appear in court receive unfavourable decisions because of our lax laws.

I welcome the Road Traffic (Amendment) Bill, 1993, which will come before the House next week. It is expensive for a doctor to appear in court to swear that he or she is the doctor who took the sample. A certificate provided by the Registrar of the Medical Council and a computer printout will clearly indicate that the name on the certificate is also on the register. That loophole should be closed. We all welcome the tightening up of this law because a motor car can be lethal. It is even more dangerous than a gun, yet, people are allowed to drive with an excess of alcohol in their system.

The son of a business friend of mine was driving a van when he came upon the scene of an accident. The person who caused the accident had driven his car into a fence. A neighbour used his tractor to pull him out. My friend's son drove his van 50 or 60 yards up the road, stood at the traffic lights with his hazard lights on and waved down traffic. A motorist who was very drunk crashed into the tractor while it was pulling out and then into the van. A great deal of damage was done and an ambulance was called. However, the motorist departed the scene of the accident. This incident was the subject of a court case. The motorist took an action against all those who were at the scene of the accident. My friend's son, who played the part of the good Samaritan by trying to block the motorist with his van, was implicated and was held to be partially responsible. The father's insurance increased from £400 to £2,100 as a result of his son's good deed. This happened because we did not have legislation in place to deal with cases where drunken drivers are not held to be liable for accidents.

I welcome all Bills which will tighten up our lax laws. There must be no room for loopholes.

It is sad that some legal personnel seem to be looking for loopholes to prevent the conviction of their clients. I accept that one must do one's best for them. As a valuation officer I am entitled to give the best valuation I can but it would be wrong for me to give an incorrect valuation. Equally it is wrong when members of the legal profession know their clients are in the wrong if they do not say this to them. Instead, they look for loopholes and when they find them innocent people are badly hurt and financially devastated. It must also be remembered that these loopholes result in higher insurance costs. We all complain about these increases and it is time we took a serious look at how insurance claims are compiled, how they are costed and we must look also at the loopholes in our laws.

I welcome this Bill. I am pleased the Minister has brought it to the House because once and for all it will close another loophole that affects medical practitioners.

Dr. Henry

Like the other speakers I too welcome this Bill. Like Senator Farrell I find it extraordinary that members of the legal profession would advise people about these loopholes. Unfortunately, these loopholes are normally used by very rich and influential people who are able to pay for such legal advice. I said privately to the Minister last night that I did not think a fine of £1,000 was high enough and he asked me if I wanted their hands cut off — or something like that. I hope the legal profession will not advise some people that they would be wiser to refuse to give a sample and pay a fine than letting a case proceed, especially if they have had previous convictions. I also hope that section 4 will not provide a loophole in the future.

I would like the Minister to clarify the situation of people in road traffic accidents who ask to be taken to hospital and know they are under the influence of drink. What is the legal position of casualty officers regarding the taking of blood samples? Do they have to be instructed by a member of the Garda Síochána? This seems a very grey area and I do not know if the Minister can clarify this point for me now or if I have to wait for the Road Traffic Bill. Casualty officers realising a person is very intoxicated, would be in a position to take blood samples or to ask for urine samples but if there are no police there to instruct them to do this, what is their position?

Yesterday we spoke of having confidence in our young people. I think many young people are more responsible about drink and driving than many of my own generation are or were, and I wish to put this on the record. I welcome the Bill.

Mr. Magner

Senator Reynolds spoke about trying to discuss a Bill of which one does not have any knowledge or briefing. This is a valid point. On the other hand, there is the dilemma which has just been mentioned. I think the suggestion that a solicitor should advise clients to plead guilty is a little naive. Everybody is entitled to their best shot, it is up to the other side to prove their guilt. Lawyers have jobs to do. A lawyer who sees a loophole would be obliged to exploit that loophole on behalf of his or her client.

I can assure Senator Reynolds that this side of the House was also in the dark because we did not have any great advance knowledge either. There is a case to be made in situations like this for briefing the Leader of the Opposition or the spokespersons. This would not only be a courtesy but would be helpful. Confidentiality could be maintained. This would give spokespersons an opportunity to contribute in a sensible way to proposed legislation.

In relation to the Bill itself, the Minister has an obligation to ensure that people who break the law and are apprehended are not allowed to avoid the penalties by a technical adjustment.

Computers have been in existence for a long time. During the debate on the Criminal Law (Suicide) Bill, 1993, I asked a researcher to show me an example of another absurd law that still remains on the Statute Book. He pointed to the 18th century provision which obliges theatre owners in Dublin, under very severe penalties, to obtain a licence for each production, play or performance; this applies only in the city of Dublin. Since this provision is still on the Statute Book, Les Miserables and Brian Friel's new play are illegal under our present law.

There should be, and I presume there was, a monitoring agency in the Attorney General's Office to look at these nonsensical pieces of legislation that are still in place and also to provide advice in relation to new technology. I thought it would have been automatic that records which we were in the past obliged by law to keep manually would be computerised. This Bill, if I am reading it correctly, provides for such a technical adjustment.

The main point I wish to make in relation to Bills like this is that, while I fully understand why this sort of measure has to be introduced in this way, I believe that if we were occupying seats on the other side of the House we would be making the point the Opposition are making now.

Mr. McGowan

I welcome the Minister to the House and I welcome the Bill despite the short notice we were given. I do not think one can claim it is unfair to Members because, sadly, each of us is very familiar with all the problems associated with this legislation whether under the Road Traffic Act or caused by drunken driving. Unfortunately, these problems are too prevalent today. People, especially public representatives, who are not very familiar with all the aspects of this legislation are leading sheltered lives. I come from a county which has had more than its fair share of accidents due to young people drinking and I welcome this Bill.

I am pleased the Minister has introduced this legislation, but I am sure he will accept that even after the passage of this Bill there will still be loopholes in the law applying to drunk drivers. I see a loophole here. Unfortunately I have been at the scene of a number of accidents and any driver on the road every day could meet this situation. It is very common for someone who comes to the scene of an accident to try to remove the driver from the scene before the gardaí come, to get him to hospital if he is injured and to give him a shot of whiskey. How is it proposed to cover that situation? The Minister is trying to legislate for a very difficult area.

The consequences of this kind of accident are very serious for the innocent people who are injured or killed. Sometimes the breadwinner of the family is killed or injured and creates additional difficulties for those left behind. This is so serious that any attempt to make it more difficult for people to drink and drive is to be warmly welcomed. I hope the Minister will monitor this area very closely and that, eventually, it will be very unattractive to drive while drunk and put innocent people at risk.

I compliment the Minister and I warmly support the Bill.

Mr. Maloney

I welcome the Minister to the Seanad and I commend the Bill to the House. The main provision of the Bill gives express authority to the Medical Council to keep the general register of medical practitioners on computer, which in this day and age can only be considered non-controversial. An Bord Altranais keeps on computer the list of nurses allowed to work in this country; it is unbelievable that the Medical Council, who are not out of date when it comes to organising themselves have fallen behind the times in this regard. If this measure helps ensure that there is no loophole to allow people avoid a conviction for drunk driving it is to be welcomed. Other Members have mentioned that too many people have been killed in road traffic accidents as a result of drunk driving. It is unfortunate that there are loopholes in existing legislation and that people are prepared to use them. It is unfortunate that the legal profession use these loopholes on behalf of their clients.

The Bill also amends the Road Traffic (Amendment) Act, and states that certain persons are registered medical practitioners. Up to now, could anybody claim to be a doctor and qualified to examine a person who had been involved in an accident? The fact that this provision is written into this Bill seems to suggest that there are massive loopholes here. It is good to see this legislation being brought in. It is short, and it is badly needed.

Mr. Belton

I too welcome this legislation. Much effort and progress have been made in latter years on the issue of drink driving and, as in all cases, the more determined the State gets the more determined those working in the legal profession are to upset that balance. Over the years, various members of the legal profession have made their names by finding a loophole in the law without regard to the circumstances or the charge involved. That is how legal people work. I am not saying all of them work in this way, but many of them do.

It is not the Minister's problem but it often occurred to me that the Department of Justice should have their own panel of doctors working within the Department for this purpose. However, it is only by making mistakes that we eventually arrive at the best solution. With that in mind, I glanced through the legislation that is under discussion in the Dáil at present, and I can see that there will be a big tightening up on the issue of people driving under the influence of drink. Now it is not necessary to be drunk in charge of a vehicle to be breaking the law. Even if very small amounts of alcohol are in a person's system he would be in breach of the legislation being discussed at present. In some countries it it not permissible to have consumed any alcohol if one is in charge of a vehicle.

Over the years we have been dismissive and have not taken the issue seriously but in latter years when statistics proved beyone all doubt that action had be be taken on this front, people got really serious about it. This Bill is to close another loophole, and the medical profession needed to have this measure enacted, apart from the effect of this provision on the law relating to drink driving.

Minister for Health (Mr. Howlin)

I thank Senators for their contributions and for their forbearance in relation to the presentation of this short but important legislation. Most Senators have spoken in terms of road traffic legislation rather than medical practitioners legislation. The responsibility for the road traffic legislation rests with my colleague, the Minister for the Environment, and the views expressed by Senators will be conveyed to him. The only way that legislation impacts on my area of responsibility is in relation to the interaction of the code with the medical practitioners.

I was advised by the Attorney General that it was necessary to put beyond doubt the validity of the register kept on computer by the Medical Council and the certification process whereby a certificate signed by the registrar would be acceptable in a court of law. That is the only area where I have a responsibility. It was felt by the Attorney General that I should take the opportunity of this short piece of legislation to bring forward two sections of the Road Traffic Act and have them enacted immediately so that those who were required by a medical practitioner to give a specimen would clearly be in breach of the law if they failed to comply with that request. That was not clearly the case under existing legislation.

I understand the frustration expressed by Senator Reynolds. It is something of which I am aware because I have great respect for this House having served in it for some time. I gave a confidential and comprehensive briefing to the Opposition spokespersons in the other House a week ago, and provided them with a proof copy of the Bill. That briefing was also extended to the Whips, and it was my assumption that briefing would be passed on to the Seanad spokespersons within the parties. I will ensure in the future that any briefings will be given directly.

I was also anxious that there would not be public comment on this Bill in advance of its enactment lest it have implications for cases that were before the courts in the interregnum between its publication and enactment. The Government has also requested this House to pass a motion for earlier signature to seek the President's assent to the legislation should it be passed today.

The Bill is simply to ensure that — and all the Senators who spoke share this objective — nobody who is properly required to give a specimen will have a legal way of not doing that, and that there will be no doubt over the procedure for registration of general practitioners or the certification process. I hope Senators will accept my explanation. The core of the Bill is not the road traffic sections but the registration and certification process, and I have explained that in detail.

Senator Henry raised the matter of persons who are admitted to hospital and the role of casualty officers. I am reluctant to comment on this because again it is more properly in the domain of the Minister for the Environment and will be covered under section 15 of the Road Traffic Bill, 1993, which is currently before the Dáil. The Bill specifically makes it an offence for a person to refuse or fail to provide a specimen, even in hospital, unless the doctor in charge of the patient in the hospital refuses to permit it. It will be up to the clinician in the hospital to say a specimen cannot be taken for medical reasons, otherwise there will be a legal imperative, assuming that section is enacted, to provide such a specimen.

Senator Magner spoke about the process of updating legislation and I strongly favour that. My Department had discussions with the Department of the Environment, because of my slight involvement with the Road Traffic Bill, and I had a Bill before this House last week to amend the family planning Acts. It is difficult for a Senator, picking up a short Bill that seeks to amend extant legislation, to follow the sequence through several Acts sometimes dating back years.

Where possible there should be consolidation Bills brought before these Houses so that the citizen and Members of the Oireachtas can pick up a single Act and see that this is the law as pertains to, for example, family planning, road traffic or the social welfare codes. That is the view of the Cabinet and I hope we can work progressively towards consolidation Bills. They are, however, exceedingly difficult because of the volume of work involved in trawling through the existing Acts to bring them into a single comprehensive piece of legislation. It is something I would like to do and I thank Senator Magner for making that point.

Senator McGowan mentioned other risks of road traffic prosecutions failing. I believe the Senator will find the Road Traffic Bill fairly comprehensive, although I am loath to say that some legal brain will not find a loophole and run a coach and four through it. Any parliamentarian who promises otherwise in respect of any Bill or Act is being foolish. However, a huge amount of work has gone into the Road Traffic Bill, because there were clear deficiencies in the 1978 legislation. I believe that the comprehensive nature of the Bill, and the slow path it will take through both Houses and Special Committee, will ensure that by the end of this year the road traffic legislation will be as watertight as possible.

Senator Maloney spoke about the Medical Council updating its records. I want to correct the false impression that the Medical Council has not computerised all of its records. The register of medical practitioners has been on computer for 13 years. However the existing legislation says, and I quote, "The register shall be in such form as the Council shall specify". Lest somebody go into a court of law and convince a judge that a computer register does not comply with that provision in the Act, I am giving express authority for it to be held on computer. One could argue that it is a belt and braces job; there is no judicial decision striking down a computer register — and the register has been computerised for 13 years — but, lest it become a difficulty, I am ensuring in the Bill before the House that the Medical Council has specific authority to hold the register on computer.

The decision in relation to the certification process is more problematic because there have been judicial decisions in relation to it. It was necessary to present the general practioner in court cases and swear that he was a GP because there was doubt about the validity of a certificate stating that. There have been cases where it was not possible for the GP to appear in court and prosecution authorities have failed, because the GP not being available meant there was doubt about his being a GP. I am putting it beyond a doubt that a certificate from the Registrar of the Medical Council stating that X is a GP will be sufficient evidence, unless somebody can prove otherwise. The burden of proof will be on the defendant to show that the person in question is not a GP, and that is more satisfactory for all concerned.

Most Senators have been complimentary about the Bill. I thank all who spoke for their contribution and forbearance. I hope my explanations have made the provisions in the Bill clear. There are only four provisions, two amending the Medical Practitioners Bill and two amending the Road Traffic Acts. It is straightforward and achieves an objective shared by all Members of the House.

Question put and agreed to.

Agreed to take remaining Stages today.