Amendments Nos. 4, 5 and 7 are related and may be discussed together.
Road Traffic Bill, 1993: Committee Stage (Resumed).
This group of amendments deal with the question of choice of specimen. It is an element of drink driving legislation which has given rise to a series of legal challenges, many of which were based on procedure. With a view to removing known difficulties and the potential for new challenges, the Bill, as initiated, transfers the choice of specimen to the Garda Síochána.
During the passage of the Bill through the Dáil, I pointed out that my primary concern in introducing such changes was to remove the potential for those technical challenges. I have no desire to introduce unnecessary requirements and, accordingly, I decided to look again at this aspect of the Bill to see if it was possible to leave the choice of specimen with the individual concerned, while at the same time eliminating possible loopholes which may be exploited. I have been advised by the Attorney General that such a course of action is feasible, particularly in the light of the Supreme Court judgment delivered before this Bill was published. The amendments are designed to retain the practice under existing law whereby the arrested person is allowed the option to decide whether a specimen of blood or urine is taken.
I am worried about circumstances where a doctor is unwilling to take a specimen on medical grounds. An objection should not be made orally and "states so in writing" should be included in the Bill. In such situations it is important that there is a record of what happened. Who will record the doctor's objection? Will gardaí fill in a form? Will the doctor have to sign anything and will it be a conclusive statement? Could someone object to the fact the doctor said he or she would not take a specimen? I do not like this because it is too vague.
If a case is challenged, it would be better for the common good — for the person to be tested and the doctor — that provision is made for the objection to be in writing. If a certificate was conclusive nobody could argue about it and the casualty officer could not say that the said doctor could not take a blood sample on medical grounds. This is not right. Unless there is some sort of certificate or written evidence, preferably which can be considered conclusive, we will have problems.
With regard to Senator Henry's point, a refusal to give a specimen of blood or urine is sufficient to charge a person with committing an offence. If a person is suffering from a medical problem, the doctor decides on medical grounds whether he wishes to take a blood sample or if the person is unable to provide a urine sample. If the doctor declines to take a sample, the person may be asked to provide a specimen in hospital. If he refuses, is convicted of an offence, is disqualified from driving and loses his job, is the doctor open to a subsequent action for negligence for not having taken a blood sample? On the other hand, what would be the Minister's view if the doctor takes a sample under pressure, because of the way the Act is worded, and causes harm to the patient? This is serious. It is essential that it is written into the Bill whether a doctor in the casualty department of a hospital to which a person was brought is responsible; whether the senior surgeon, who may be on duty elsewhere in the hospital is responsible or whether the Garda Síochána can bring in an outside doctor. This problem must be resolved.
There is support for what the Minister is trying to do. Fine Gael are anxious to ensure that people who go to hospital are not allowed to frustrate the Garda Síochána who are doing their duty when a person is drunk and incapable of driving a motor vehicle. We need to devise a proper procedure as was raised by Senator Henry. This problem may not be resolved tonight but on Report Stage we will be open to co-operate with the Minister on this matter.
The Government amendments are reasonable in their generality but I support Senator Henry and Senator Enright, particularly in relation to section 15, to which amendment No. 7 relates. This amendment differs slightly from amendments Nos. 4 and 5 in that it deals with a person who is admitted to the casualty department of a hospital rather than a person in a Garda station. In those circumstances it is easy to envisage very strong medical grounds as to why a sample might not be taken. In case confusion might arise in such a case, there should be something in writing. There would be several medically trained people there and there may or may not be a garda beside the person who is admitted. Senator Henry is right. This will lead to terrible confusion. Court cases will arise and we will not know with certainty who was responsible and for what. I can see circumstances arising where people who should be convicted in the courts will get away with what appear to be crimes.
This matter was raised in the Dáil debates and in the Second Stage debate in this House. The Irish Hospital Consultants Association expressed concern. We have begun discussions with the Irish Medical Organisation and the IHCA with a view to devising the best administrative arrangements to secure convictions, but also to make sure the changes we are making in the law are operated efficiently to achieve the best possible results. It is not be possible to detail what we will include in the regulations to achieve this because the consultations are ongoing and the people directly involved wish to have the best say as to how this should be achieved.
We are in the course of enacting primary legislation to tackle the problems associated with road accidents. A reduction in the number of such accidents reduces the load on hospitals, and we all subscribe to this aim. This would benefit not only hospitals but potential injured parties. We look for co-operation from hospital consultants to achieve this national goal. So far, this co-operation has been given willingly. I expect to have the discussions between my officials and the consultants concluded in good time before the law is brought into force and everybody is certain of what their role should be.
We are not talking about significant numbers. Since the question arose many years ago, there have been few problems of either individuals refusing to give a specimen or potential situations where doctors refused to co-operate. We are not dealing with the generality of problems but with a minor part of this area. Arising from the discussions which are taking place, we must introduce regulations so that we have the best way of dealing with the potential but minority range of problems.
I think it very unwise to have a situation which does not involve the doctor putting something in writing. Medical defence organisations constantly urge us to put things in writing. This could cause a great deal of trouble. In parts of this Bill the doctor will be designated but in other parts we have not said whether the designated doctor will be the senior house officer in the casualty department, the orthopaedic registrar, the consultant on casualty duty that night or the person to whose ward the patient is admitted. The word "doctor" is not adequate. A patient could trawl around a hospital until they found someone who refused to let them give a blood sample on medical grounds. Could they call in their own general practitioner? We must have something in writing. I do not know if the Irish Hospital Consultants Association or the Irish Medical Organisation would be against this.
This is always a problem in litigation in this country with medico-legal cases involving accidents and so forth. Was it Joe who is now in Saskatchewan who said this happened or was it so and so who is in Tralee or has gone back to Pakistan? It is a serious problem. I will not be pressing my amendment because there is no point but I urge the Minister to look at this before Report Stage and talk to the various medical bodies again. There has to be some provision where the doctor's name is given and something is signed so that his opinion cannot be challenged. This is a serious situation.
We are not anxious to make this a contentious issue; we are trying to be as reasonable as possible. The Minister said he is having consultations with the hospital consultants and senior registrars and he made a point about what will happen before the law is enforced. However, the problem is that the law will be passed by the Dáil and Seanad at that stage and it will be only a matter of time before it is brought into force. It is our duty and solemn obligation when passing a law of this significance to ensure that it is clearly defined.
I support the point made by Senator Henry and I would strongly support the Government's amendment provided that a doctor who is unwilling on medical grounds to permit the taking of a sample is allowed to furnish his reasons for refusing in writing. That is a reasonable request. A doctor can later find himself involved in contentious litigation in which his professional standing may be questioned. The Medical Defence Association will be concerned about this clause because a case may arise three, six or eight months later where the defendant has lost his job, had to move house and so on. I hope the Minister realises the significance of this. If a doctor refuses permission on medical grounds, he should be obliged to furnish his reasons along the lines proposed by Senator Henry.
The Minister has not established to my satisfaction that the hospital consultants would be opposed to Senator Henry's proposal. It would improve the legislation significantly and it is in that light it is being suggested. The Minister, earlier this afternoon, talked about the undesirability of allowing lobby groups to dictate how legislation should be framed. This would appear to be a case in point. It would be undesirable for us to say that hospital consultants should determine what the regulations should be or what the law should be. That is not to say that there should not be consultation; of course there should be and the Minister is right to consult with them.
The Minister also made the point that he hopes, as we all do, that this legislation will result in fewer people being injured and admitted to hospital casualty departments. That reinforces the argument that there should be something in writing because this will not happen daily.
We are all anxious to eliminate bureaucracy from the system. However, this is not a question of introducing bureaucracy but of ensuring that subsequently there is at least some empirical, independent, verifiable evidence to endorse what has been done and to show who the practitioner was. Regulations are not adequate to do this as they involve too much discretion. It is up to us to frame the law to the advantage of society rather than the Minister at his discretion, however good that might be, deciding what the regulations should be.
This is flawed legislation which could possibly get through the UK courts where they have a different court system. However, in the Irish court system where the line of evidence has to be followed step by step, the history of the forerunners to this legislation has been that if there was a gap in the chain of evidence the legislation was flawed and it was levered out of existence. The flaw here is that somebody can say their doctor said they were not to give a specimen. The doctor does not have to be named, it could be any one of a team of doctors, and there is an immediate gap in the chain of evidence which cannot be bridged.
The Minister said at the beginning of this discussion that he would be open to looking at things. Even if he disagrees with the points we are making here, it is true that the amendment tabled by Senator Henry closes this gap. It does not take from what he is trying to achieve. It does not weaken the legislation but clearly strengthens it and bridges an undeniable gap in the chain of evidence because it will have to be proven in the confrontational context of the Irish court system. I urge the Minister to accept Senator Henry's amendment.
My amendment comes later but I spoke on the Government amendments because I think it is so important. The Minister said we want to get hold of those who want to avoid or evade lawful prosecution, with which I totally agree. I see this as a major problem not only for the patient but for the doctor. A designated doctor, especially in smaller areas, could be the general practitioner of the person involved. It is most important that at least he could tell the patient he had to sign a document to say that on medical grounds he did not feel the patient should have blood taken. It makes the giving of permission or refusal to take blood much more important. I commend this legislation but I see this as a problem. I do not think the medical profession will find the giving of written permission or refusal a problem because we are constantly warned by the medical protection organisations to ensure that we have put things in writing.
As has been the case all day, and it has always been my experience of this House, a number of amendments have been taken together, even those which are not directly associated with what we are discussing. It is probably as well that we have rambled into Senator Henry's amendment, No. 9. Amendments Nos. 4, 5 and 7 deal with the Garda/doctor taking the specimen and amendment No. 9 deals with the role of the hospital doctor. It is not, as Senator O'Toole said, that I want to disagree. If the discussions conclude on the basis of a written statement, which is what the consultants desire, my proposals allow for that situation. If the discussions lead to doctors vetoing the taking of specimens without giving any reason, not being challenged on this and presenting none of it in writing, my proposals also allow for that result.
I am not pre-empting the outcome of these consultations and discussions. I take Senator Henry's point that in light of liability and other associated problems, many doctors may prefer the written way because it is the safest. However, that has not clearly emerged in the discussion so far. In fact, the opposite would seem to be the case, in that doctors do not seem to be anxious for a statutory obligation which involves them in a lot of form filling. It will not be consultant doctors but the Garda doctor — and Senator Henry rightly said this could be the practitioner for that individual — who will be taking the specimen. Taking all of those factors into account, I am trying to achieve a result which allows the balance to tilt either way after the conclusion of these discussions. Senator Henry is asking me to confine myself to one conclusion. That may well happen; if it does, that result can be totally facilitated in my proposals. If they are retained in their current state, they could also facilitate a different result, which could be reached by consensus.
What if a defendant in a court case claims the reason he did not give a sample was because he was advised against it after discussing the matter with one of the team of doctors? How is that simple statement to be dealt with at court level? There are two possible outcomes. First, that decision is accepted and that would be the end of the matter. Second, it is not accepted and is challenged as being untrue. There is then a process where it will have to be proven or disproved. It is bringing a cumbersome procedure into the case; whereas if there is written evidence of this medical procedure being approved, that is the end of the matter.
The Minister says in another part of the Bill that the Garda's signature shall be acceptable as evidence. The same thinking is behind this as well. The only reason I can see why the Minister put that in the Bill is to stop someone from going to court, wasting a day to say "Yes, that is my signature. Thank you very much" and going home. I would like to see a similar provision written into that kind of situation so there is incontrovertible evidence if a case is being brought to court. It makes the legislation tidier, more operable and effective. I cannot see why the Minister cannot put a provision like that into the Bill.
Following on from what Senator O'Toole has said, I would be grateful if the Minister could look at this matter again before Report Stage. As Senator Dardis said, lobby groups are lobby groups. The Minister will not have too much difficulty with the various medical organisations. The last sentence contained in amendment No. 9: "such certification of refusal to allow for the taking of a blood sample or a specimen of urine shall be conclusive and shall be evidence of the fact described in it" would avoid having to bring people in to certify their signature. I would have also put this sentence in amendments Nos. 4 and 5, but I did not see them until today.
There is no major rush in the matter. It would take only a week to consult with the two medical bodies. I urge the Minister to look at this matter carefully. I know how casualty departments are run and who is supposed to be taking responsibility. Under this section we are not even clear who the doctor is, and that is dangerous. It is considered highly serious in medical litigation cases in that one must sign everything they do. This will end up causing the same sort of trouble. The Minister did say that there would be few cases. In that event, the medical practitioners cannot then complain about a great increase in bureaucracy.
The Garda doctor will take the specimen and if the person is unwilling, that will be recorded in writing by the garda. Our experience has taught us that the more cumbersome the structure and the more procedures that are put in, the more the likelihood of successful challenges. Having said that, a strong argument has been put up for reviewing this section, which I will do between now and Report Stage. However, that does not give me much time.
I thank the Minister. I have been on the receiving end of this sort of situation: "Who was on in the casualty department that night?". I do not want to see this happening, because having worked in casualty departments, I know how serious are the inferences of drunken driving. The Minister may find the medical profession glad that someone said that they had to decide on it.
I have a procedural difficulty with this section. It has resulted from the grouping of amendments. Before the Minister came into the House, the Cathaoirleach called amendment No.4. The Minister spoke on this amendment. Amendments Nos. 5 and 7, which came under the next section, were taken in conjunction with it. I found myself listening to expert opinion from both the——
The Senator must stay with amendments Nos. 4, 5 and 7.
——medical and the teaching profession.
Senator Howard has been performing so well all day that it is no harm for him to conclude for a while.
I am coming back to a more earthy problem which has arisen.
I hope Senator Howard will not scandalise us.
Do not destroy us all.
It concerns amendment No. 4. As a lay person listening to these contributions, I do not understand what the Minister is trying to achieve with this amendment. Neither did I understand what was in the Bill as it emerged from the Dáil.
Amendment No. 4 deals with the situation in the Garda station, where the person is required to exhale into the apparatus. The garda may "permit a designated doctor to take from the person a specimen of his blood", or "at the option of the person, to provide for the designated doctor a specimen of his urine. The amendment continues:
If the doctor is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing sub-paragraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.
I do not know what the Minister is talking about in this amendment. I do not know what the requirements are or the limits as to the requirements a member of the Garda or of the public can make in a Garda station in this situation and I want it clarified.
This matter can be approached from two angles. The Supreme Court judgment in the case of the Director of Public Prosecutions v. Swan was delivered in May 1993. The judgment confirmed that the obligation in relation to providing a specimen is to permit the doctor to take a specimen of blood, that the person has an option to provide a specimen of urine and if that option is exercised, it relieves the person from the obligation to permit a specimen of blood to be taken. The judgment clarified that if a person declares that he wishes to avail of the option to provide urine but then finds he is unable to do so, the obligation to permit the taking of a specimen of blood is revived. One also has to take account of past challenges and problems which arose where an individual suffering from a medical ailment gave permission for the taking of a specimen on which he is unable to deliver and then informed the doctor that he suffered from an ailment.
I originally gave the Garda doctor the right to specify whether a urine or blood sample would be taken. Having listened to discussion on the Bill and consulted with the Attorney General, I decided to leave it to the individual to decide whether they would give a specimen of blood or urine. Where a person fails to give a specimen which he or she has volunteered, the option to give the other specimen is then revived as per the court judgment. Am I clear?
Almost, but not entirely.
99 per cent?
No, but approaching it.
Senator Howard, very briefly.
For the person in the Garda station, whether we are brief or not can be a matter of considerable importance. This is my difficulty with the section as I read it: a person has two choices, either to give a specimen of blood or a specimen of urine. The doctor may say that because of a medical condition, he is not prepared to take a blood sample. The person then says he is willing to provide a urine sample but for some reason cannot provide it. If the doctor has already stated that, for medical reasons, he is not prepared to take a blood sample, how then can the garda be in a position to require the person to give a blood sample?
I am not sure that the doctor would say in advance of a declaration by the accused that he would not take a particular specimen. The Senator is detailing circumstances in which a doctor says in advance what he——
If the doctor is unwilling on medical grounds to take a blood sample——
Are there medical grounds for saying that?
Is that not what the amendment says?
No, but I am asking if, as far as the Garda doctor is concerned, there would be medical grounds for him to say that?
Does the amendment not state: "If the doctor is unwilling, on medical grounds, to take from the person..."? My intention here is to assist the Minister. My concern is that a situation may arise where the Garda have arrested somebody and taken them to the station. The person under arrest has been given the choice of providing either a blood sample or a urine sample and is prepared to do either or both but the doctor is unwilling, for medical reasons, to take the blood sample. The person is prepared to give the sample but the doctor is not prepared to take it. The person is quite happy to give a urine sample but is unable for a medical reason to give it. The person has attempted to comply with both requirements. How does one deal with that difficulty?
In 100 per cent of cases doctors are willing to co-operate with the State in securing convictions. While I take Senator Howard's point, it will endorse my proposal that the doctor should be in a position to give a written reason as to why, in these extraordinary circumstances, they were unwilling to take the blood sample on medical grounds. It reinforces my view that if it is as extraordinary as that, it would be wiser to have a written record.
In view of some of the comments that were made in the Dáil and in the Seanad on Second Stage I undertook to make a change and give back the right of selection to the individual. There is no question of withdrawing that. Do we all agree on that?
Senator Howard's question arises from a small minority of cases where the Garda Doctor, for his or her own special reasons, will not take a blood sample. Are those the circumstances about which we are talking?
That is right.
Where an arrested person chooses to give a urine sample and is subsequently unable to do so, the option to take a blood sample could be revived only if the doctor was satisfied to do that. The circumstances detailed by Senator Howard arise where the doctor is not satisfied to take a blood sample. The matter then has to go to court on the basis of that stalemate situation and the court will decide on the basis of the available evidence what action should be taken.
Where a garda suspects that an arrested person has been in charge of a car while under the influence of intoxicating drink, refusal to give a sample in itself is an offence from which severe penalties may follow. There are a minority of cases in which this may happen. I appear to have misunderstood Senator Howard initially. He has a point and it leads to a number of difficulties but they can be resolved in court.
The Minister mentioned matters which are recorded in writing by the garda. He also said that the more cumbersome the procedure, the more likely it is that a challenge will arise. I agree with Senator Henry's point that the medical profession have complied with the Road Traffic Acts and all the procedures involving blood and urine samples in a most exemplary manner. I have heard little or no unfavourable comment about doctors not complying with the regulations. They have gone out of their way to be helpful. It is seldom that a doctor is unwilling, on medical grounds, to take a blood sample. It may arise in one case in 10,000. What is required here is that the doctor will be able to record his reasons in writing. The Minister said that he will carefully examine this matter before Report Stage. Opposition Members will table amendments before then.
I will be happy to await what the Minister suggests with regard to the signature. The difficulty in understanding how paragraph (b) operates arises from the language used in the section. To require a person "to permit" is a contradiction in terms as is requiring a person to "opt". It is difficult to follow but I think it is clear what is meant by the provision, although people might argue about the language used.
In regard to two samples being taken is it laid out in the main Act that both measurements are added and then averaged? The average is then reduced by a tolerance level of 6 per cent. That is where the figures come from. I wish to know whether that is in the legislation. In this section, the garda may require a person to give two breath samples and one sample of either blood or urine. In the event of three different measurements, I presume that the two breath measurements are in some way added, averaged and a tolerance level taken from them. How is one type of measurement compared with the other? Does the State run with the best evidence, or the most damning evidence? If one is over the limit and one is below the limit, how is that dealt with? I want to know the practicalities of it. It is not written into the Bill.
In relation to the design of the practices which I described earlier this afternoon, it is not enshrined in the legislation but the custom and development if anything leans against the State.
I still do not know the answer to my question. What happens when there are two breath test results and one result of another test? How is that dealt with?
Earlier the Minister indicated that there will be a trial period. When will the trial period be introduced in relation to breath specimens? At the same time, one of the other options will also have to be adhered to for the first two years. Am I correct in that?
I explained earlier that as far as the evidential breath testing was concerned we would go through an initial two year period, or perhaps longer. It will be long enough to make sure that the taking of representative samples which involve the evidential breath testing as well as blood or urine testing has gone on for a sufficient time to demonstrate conclusively that evidential breath testing is as reliable, accurate and implementable as the traditional system. The breath tests would be taken but in the intervening period, between now and the evidential testing being proven and put into effect, the blood or urine will be the dominant factor in determining the case one way or the other.
What international evidence is there about the correlation between the level of alcohol in the breath and the level in the urine or blood? Is there an established straight line correlation in scientific terms between the breath level and the urine and blood levels? If there is not, we will find ourselves in a serious situation in two years time when the actual breath test will not stand up. The debate for the last half-hour has reminded me of the scientific definition of an Irishman, which is, "a complex mechanism for converting Guinness into urine".
I do not know if I have a satisfactory answer here. Let us be practical about it. We are introducing a new phase to the armoury of legislation that we have in road traffic law which covers a number of items, but primarily the question of dealing with road traffic accidents caused by drink driving. It would make no sense whatsoever, having used a tried and tested system of blood and urine specimens being used as the criteria to determine whether a person was over the limit or not, to change it without being absolutely certain that what was replacing it was equally effective, scientifically, clinically and administratively. We have to go that distance.
In terms of international experience, the system has been in use for a long time, from 1981 to 1989 in the UK, for example. There have been quite a lot of challenges to that system. They appear to be very happy with it at present. We have to go through that phase of experience here so it would be nonsense to battle away as we have been doing in both Houses of the Oireachtas for the last number of months to improve the situation and then take risks with what we want to use to achieve that result. I assure the House that no steps will be taken to depart from the principle of using specimens of blood and urine until we are absolutely happy that it is being replaced by at least an equally satisfactory and reliable way of convicting people who break the law.
Amendment No. 5 has already been discussed with amendment No. 4. I wish to point out a typographical error in amendment No. 5. In subparagraph (b) there should be a comma after the word "urine".
Section 14, subsection (1) reads:
Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place is under the influence of a drug or drugs to such an extent as to be incapable of having proper control of the vehicle, he may require the person to accompany him to a Garda Síochána station.
We know how to measure the presence of alcohol. Is there an established method by which the presence of drugs can also be measured?
I am far from being a specialist in this area but there are no defined limits on the presence of drugs in the same way as for alcohol because there are so many different types of drugs. A test of blood or urine is carried out. That gives a certain amount of information on which it is possible to take decisions but it is not the same as alcohol in that there is no acceptable level below a prescribed limit. There are systems for determining the presence of drugs of whatever kind in either blood or urine.
Is the method of determining the presence of drugs good enough to base a successful prosecution on it?
We are all satisfied that it is quite possible to get successful convictions. They are not regular. They are quite a rare occurrence. It may well be that that situation may change in the future but that is the present position.
Under the circumstances, because of the problems of drugs and having given the matter great thought, I agree with this section. This is a new concept in Irish law. Care should be taken because of the necessity to control drug abuse. It is a new development for a member of the Garda Síochána to request a person to accompany them to a Garda station without being arrested. This is a departure from existing law and I agree with it. A garda can request a person to go into a Garda station, but the person is not obliged to do so and an arrest cannot be made. I agree with this new development because of the drugs problem, but I would not support it in a general situation. It happens in practice, but this is a statutory matter. Am I correct in saying that the garda can request a person to go with them and, if they refuse, a member of the Garda Síochána can arrest them?
That is correct.
This is an important point because it is difficult to prove through breath tests that a person has taken drugs. That is the reason for introducing this section. I am aware of situations where people have been arrested and their general demeanour has suggested that alcohol was taken. However, there was no trace of alcohol in the blood or urine samples. Will there be a different method of analysing a blood sample which has been taken to show drugs? This is new concept and I would like the Minister's guidance.
This section is a reenactment of the 1978 provisions. There is nothing different about it because the same words are used. The way we deal with drugs is not a new phenomenon, but it is always changing. I will answer the Senator from what I learned in the science room at school. An analysis shows exactly what is there and it is not a question of doing it in many different ways. One is looking for the components or for the alcohol level, which is a drug. We are not dealing with new legislation as this is a replica of the provisions of the 1978 Act.
While the analysis will show the chemical composition of the drug, it may not show what the drug is.
That depends on how sophisticated the analysis is.
Of course, but we are not only talking about controlled substances. If an arresting officer considered that someone who was being treated by a prescribed drug was incapable of driving a vehicle, they would be entitled to send them to the Garda station. That is not a satisfactory aspect of the legislation.
The Senator should not be under any illusions, because that has always been the position. We are talking about people who are not capable of taking charge of a mechanically propelled vehicle, even in the circumstances which Senator Dardis outlined. They account for only a small number of cases.
Amendments Nos. 6 and 8 are related and may be discussed together.
I move amendment No. 6:
In page 12, subsection (1), line 35, after "to" to insert", or attends at, a".
This amendment has been tabled so that people cannot avoid or evade lawful prosecution. Admission to hospital means admission to the wards. Many people who are brought into hospital and who may be charged with drunken driving will get no further than the casualty department. Some people use the casualty department as a method of escape because they are not in a position to have blood or urine tests taken. I ask the Minister to accept these amendments which mean people will be in the casualty department of a hospital. I fear that if we just have admission to hospital it may mean that one must be admitted to the wards because anyone who goes into a casualty department is not described as having been admitted to the hospital.
Throughout the afternoon Senator Howard has been prising the door open on this issue, while Senator Enright, who has legal experience, has been making things a little more difficult for me.
The Minister is playing a good match.
I am delighted that after 9.20 p.m. a proposal has been made which helps me to close the door a little further and I have great pleasure in saying that I am happy to accept the amendments.
What is it about Senator Henry which makes the Minister accept her amendments?
I will tell the Senator later.
It is charm.
Amendment No. 8 has already been discussed with amendment No. 6.
I move amendment No. 8:
In page 13, subsection (3), line 20, after "to" to insert", or attendance at, a".
I move amendment No. 9:
In page 13, subsection (3), to delete all words from and including "the person" in line 20 down to the end of the subsection, and substitute the following:
"the doctor under whose care the patient is, refuses in writing, on medical grounds to permit the taking or provision of the specimen concerned. Such certification of refusal to allow for the taking of a blood sample or the provision of a specimen of urine shall be conclusive and shall be evidence of the fact described in it.".
I talked about this issue before and the Minister said he would consider it. It is important to give something in writing. I draw the Minister's attention to the last part of the amendment which states that "such certification of refusal to allow for the taking of a blood sample or the provision of a specimen of urine shall be conclusive and shall be evidence of the fact described in it.". This is to avoid people being called back from Pakistan, Canada or wherever in order to appear in court to verify signatures. This is an important point.
We have not said it is conclusive if a doctor says a blood sample cannot be taken on medical grounds. The designated doctor could say that a person is capable of giving a blood or urine sample. This must be conclusive, otherwise the designated doctor could say he has no idea why the person said the blood sample could not be given. There must be something which the doctor who refuses to allow the sample to be taken can stand over and which the designated doctor must accept unless he or she is the one who is refusing to collect the sample. This is important because it could result in legal problems.
Procedures for operating this section will be developed and agreed with the various interests and, as I have said earlier, discussions have already taken place. The intention is that the hospital doctor will have the right to veto the taking of a specimen, that he can do so verbally, that he will not be required to state reasons and that his decision will not be challenged. It will be the hospital doctor's decision in each case. If the organisations concerned would prefer the procedure to involve a written statement of refusal, then we can develop an administrative procedure along these lines.
I indicated earlier that I was quite happy to look at this general area between now and Report Stage. I suppose that having subconsciously reflected on it since then, I can see problems. There is merit in taking the course that Senator Henry outlined. However, if it should evolve that the consensus is not for a written statement, then the primary legislation prevents that from happening. Therefore, while I am quite prepared to reflect on it, I see a problem in not having enough flexibility if circumstances were to arise in a different way to those outlined by Senator Henry, however genuinely they were presented here. As I said earlier, I undertake to look at that general area again. If it can be phrased in a way that takes account of a different result from those discussions, then perhaps we can have a meeting of minds. At the moment it would appear difficult for us to find an agreement here, but I am not going to pre-empt what I may decide when I have reflected on it.
Senator Henry's amendment is quite specific and refers to:
Such certification of refusal to allow for the taking of a blood sample or the provision of a specimen of urine shall be conclusive and shall be evidence of the fact described in it.
Senator Henry's approach to this is that in the event of a doctor who is unwilling on medical grounds to take a sample, that doctor shall give the evidence in writing and it shall be conclusive. On the other hand, the State's certificates from the medical bureau are conclusive and cannot be contested in any respect. They are now 100 per cent immune from any challenge following a number of Supreme Court decisions. Senator Henry has skilfully outlined the position. If the person later loses his or her driving licence, serious consequences can arise for a doctor if the certificate is not allowed as conclusive proof, or the doctor may have been transferred to another hospital or area and thus may not be in a position to give evidence in a court case. Where a person is charged and convicted and the doctor has not submitted a medical certificate, serious consequences can also arise for the doctor. The Minister himself has admitted how happy he has been to date with the way the medical profession has co-operated with the procedures involved. This amendment, which will arise only on rare occasions, is something that will be to the benefit of the defendant in some cases and certainly to the advantage of the doctor and the State. I strongly advocate that the Minister should accept the amendment.
While the Minister has said that he is prepared to look at Senator Henry's amendment, I fail to understand Senator Enright's evaluation of it. He uses the example of where the doctor refuses to allow the sample to be taken on medical grounds and yet the person is convicted afterwards. I find it hard to understand how that could happen, because there would not be any evidence to convict the person when the sample has not been taken and no refusal is involved. I do not follow the argument there.
Just to clarify the point, the individual concerned might or might not have been in a position to give a sample. Supposing that, being aware of their own medical history, the person declined to give a blood sample and because of that they have already committed an offence. Do you follow me on that?
That is a different argument.
That is why it is so serious, because it would be committing an offence.
I do not have very much to add here. I have no wish, as the day moves on, to listen to myself any more than is absolutely essential for the purposes of answering the questions I am responsible for. I indicated that I would be having a look at this between now and Report Stage. I can see difficulties in making any change, because my proposal keeps the flexibility for the different options which may ultimately be desired by the medical organisations going either orally or by way of a written statement. So far those discussions have tended towards having a situation where the doctor would act verbally. I want to make sure that I provide for that. Nonetheless, strong arguments have been made and I want to see to what extent I can accommodate the House, though the only wisdom I have is that I would find it very difficult to deliver.
I have a few problems with the section and perhaps we can get them cleared up. It is a minor point but the first lines of the section state:
Where, in a public place, an event occurs in relation to a mechanically propelled vehicle...
Is there some reason for using the word "event" as against "an accident"? "An event" seems to be a much broader term than the word "accident". I will leave that and I am sure the Minister will come back to it.
I am also concerned about section 15 (1) (a), which states:
the person was driving or attempting to drive, or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive), the mechanically propelled vehicle...
The first part before the brackets is clear enough, but the phraseology within the brackets appears to be contradictory. I would like to have it clarified.
As the evening is moving on, I would like to make all my points in the one contribution. I am also concerned about the sequence of events when the matter of taking a blood or urine sample from an injured person in hospital arises. As I read section 15, the consent of the doctor only arises in subsection (3) and is preceded by subsection (2), where the matter of the refusal or failure of a person to give a sample first occurs. It is only subsequent to that refusal or failure that the opinion of a doctor would arise in the sequence of events as outlined in the section. I am concerned that a person, by virtue of their condition, might be disorientated and may be suffering from the effects of a crash that would impair their judgment or understanding. They would have given their refusal in a state that would not be one of full consciousness and would, therefore, have committed an offence. The opinion of the doctor as to whether or not the specimen should be taken would not arise until after that refusal had been given.
It has already been said that I would have to be Solomon with all his wisdom, although without his glory, to solve those problems. We do not use the word "accident" because if we did we would have to prove that it was an accident. It is not necessary that there be an accident in order to create the circumstances to which this part of the law would apply.
What could it be if it was not an accident?
We will not go into details and circumstances which are not necessarily accidents and which would warrant these provisions. If the Senator wishes to do so at this stage I must regard him as the patron saint of hopeless cases. I am not in the mood for considering myself to be anything like St. Jude.
The second question was about a "person driving or attempting to drive, or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive), the mechanically propelled vehicle...". That is the exact provision contained in the 1978 Act, as Senator Enright can confirm. These words have withstood the test of time. The explanation of them, in simple language, is that one phrase reinforces the other. It puts the meaning of one part of the sentence into context.
The final question could only be answered by somebody from County Clare whose experience in this area is such as to convince them that there are a number of people who have psychological, psychiatric or other problems of that nature——
Or a Member of the Oireachtas from that constituency.
In such cases nobody could say that they were responsible for their actions.
Even the late Mr. de Valera did not give such an evasive reply.
When Senator Howard, with his inimitable skills, delves into this deep and difficult area and expects a firm reply, I can only conclude that as the electoral system produces successful people to represent a particular lobby his seat is secure well into the next century.
The Minister's reply is the equivalent to what is described in hurling as an "off the ball incident".
The Senator would know all about that in Laois-Offaly.
He never even looked at the ball, not to mind draw on it.
I will not be led down that track at this hour.
Senator Howard pointed out that this section applies to a person who has been taken to hospital for treatment. He said it is obvious that this section refers to an accident, although the word "event" is used. It should read: "Where, in a public place, an accident occurs in relation to a mechanically propelled vehicle". Otherwise it refers to "or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive),". That is an event, although the person is not driving or attempting to drive. We should clarify this. The Minister is introducing many new measures and penalties in this Bill. The penalties involved in this section will apply in the other sections. It is therefore important that we clarify the situation as Senator Howard requested.
The point made earlier regarding a person who fails to provide a specimen and when the doctor is unwilling on medical grounds to take such a specimen should also be clarified.
The Minister was somewhat jocose in his reply. Senator Howard's question is serious. It refers to the use of the phrase "or in charge of with intent to drive or attempt to drive" and the use of the word "event". What event is likely to occur if a person is sitting in a car and not driving it? That is not an event and nobody is likely to end up in hospital if the car is not driven. It is important that this provision be more specific.
I wish to be frank about these matters. Senator Enright is presenting the proposition that this provision is new and that due to the changes being made in the law, it will present a problem. The word "event" has been used since 1961 in a range of offences. It has never been challenged or found wanting. I will not get into a legal debate with Senator Enright. However, what is a hit and run? Somebody might claim it is an accident. I might claim it is something different when somebody takes charge of a vehicle when intoxicated to the extent that he cannot drive. Whether one can call that an accident or an event could be the subject of a long argument. We will not get into such an argument.
This is a tried and trusted word to describe events and it cannot be challenged. The problem with this law has been the number of times it has been successfully challenged on the tiniest irregularities in wording or definitions. This word has stood the test of time and is used for that reason.
I have already discussed subsection (1) (a). The words in brackets reinforce the meaning of the phrase. I treat this matter very seriously. Senator Howard, who is well able to defend himself, and I have battled for a long time in this House. He is totally at ease about putting me in my place and on the rare occasions when I can pull 15 or 16 inches above the ball I delight in doing so.
I accept that many sections of the Road Traffic Acts have on occasion been challenged on serious grounds. I also accept that they have been challenged on the flimsiest grounds. However, the Supreme Court has successfully rejected the challenges. These matters have become streamlined because of the way the Supreme Court handled them and the way legislation has evolved. The Minister, his predecessors and the Department of the Environment have played a major role in making certain that the law we have is a safeguard for road users and pedestrians. I go along with the provision as it relates to the person who is driving but the point I raise relates to the person who is in charge of the vehicle but is not driving or attempting to drive.
It is appropriate that Solomon and St. Jude have been mentioned tonight because the Minister has persisted all day in exuding an aura of sanctity——
For heaven's sake.
Like a bishop.
——in his defence of these measures. I want to return to the point I raised about the sequence of events for a person arriving at hospital following an accident when they are required or requested to provide a blood or urine sample. They may refuse to do so without having full knowledge of the consequence by virtue of their medical condition after the accident. The input of the doctor as to whether the sample can or should be taken has not arisen at that point. The request or the requirement has first to be made and a refusal may issue, which may be the result of the person being confused following the accident. I want the Minister to accept that in this section there is no provision which will take account of the medical condition of the person in an accident which may affect their understanding of the requirement made of them.
I do not share Senator Howard's or Senator Enright's difficulty with this. Let us take the word "event". If I am driving down the road, a bird flies into the windscreen and I have an accident there is an element of chance involved. However, if I am driving down the road and I see someone I do not like and drive for that person and hit them, that is not an accident it is an event — it may be attempted murder but it is an event. The meaning of paragraph (a) is crystal clear although the wording might be a little complicated. It means, on the one hand, a person is driving or, on the other, in the opinion of the policeman, they are attempting to drive. That is all there is to it.
We need to keep the taking of the blood sample in perspective. The amount of blood required for a blood sample is minimal; it is a couple of millilitres obtained by means of a quick injection, a pinprick. A pint is not required. We need to keep this in perspective.
The situation which Senator Howard outlines cover a tiny number of the overall cases. He has not said that but I think he would accept it. He is right when he says that because of the nature of the accident and the consequent effect on the individual, they may not be able to co-operate. We assume that the person, in whatever state of mind following the accident refuses and it is not possible to take the sample. The garda makes a written report of what has taken place and the matter goes to court and the court decides how responsible the person was for the accident in the first instance, whether it is of the opinion that they had taken drink, etc. All that will be put forward in evidence by the prosecution and will be defended by the legal representatives of the defendant and the court will ultimately decide on balance what course is to be taken.
There are no circumstances in which the court will be frustrated. If the samples are given they are analysed and there is a result. If the samples are not given that is reported to the court. In some cases, a refusal in itself is an offence. However, in the case outlined by Senator Howard, I am not so sure because it moves into a grey area and there are many circumstances that would have to be dealt with by the court. It is for the court to decide where, on balance, the blame rests.
Section 15 (1)(b) refers to a person who had consumed an intoxicant. Section 14 refers to the influence of a drug or drugs. Does the word "consumed" take into account the injection or inhalation of a drug?
I cannot give a categoric answer except to say that "consume" is definitely more associated with alcohol as I understand it. I will look at that.
I move amendment No. 10:
In page 13, subsection (1), line 33, after "station" to insert", on the advice of a designated doctor who is of the opinion that the person is under the influence of an intoxicant, drug or drugs,".
I am anxious that if a person is to be detained in a Garda station for eight or nine hours it should only be allowed where a doctor is of the opinion that that person is incapable because of drink or a drug to be detained for that period.
If a person is being arrested under section 49 or 50 of the Principal Act, that is for drunken driving or drunk in charge, will the Minister apply this section to a hit and run accident? Will this apply to section 106 or is he satisfied that it is covered by section 12?
That is adequately covered elsewhere.
I see what the Minister is trying to bring about in this section, that there are people who having given a blood or urine sample can be incapable of driving having been in a Garda station for two or three hours. The person may want to leave the Garda station and go home and the gardaí feel he is not capable of driving home or going home on foot. Where a person is detained in a Garda station for that period of time it should only be done on the opinion of a doctor. Only a doctor should make that decision.
This amendment proposes that the power for a garda to detain an intoxicated driver for up to eight hours can only be exercised on the advice of a designated doctor. This section requires that the arresting garda must be of the opinion that the person being arrested is under the influence of an intoxicant. The thrust of the amendment would transfer the onus of forming the opinion that the person was intoxicated to the designated doctor. I do not feel that this would be welcomed by or acceptable to the medical profession.
For the last hour we have had a discussion about the difficulties experienced by the profession from samples taken in a hospital. Now Senator Enright seeks to extend the role of designated doctors to decide whether someone should be detained. The sole purpose of this section is to allow the arresting garda to detain an intoxicated driver whose release could be a threat to the safety of themselves or others.
I reassure Senators that the section has a number of specific safeguards to protect the rights of the driver so detained. The maximum period of detention is specified as eight hours, special provision is made for minors and the garda will be required to inform a relative or other nominated person of the arrested person's detention and release when the relative arrives. If the Senator considers more carefully he will agree this would be a departure from our present experience in these matters. It would ask the medical profession to be involved in an area in which they would be reluctant to intervene. To the extent that this matter is currently dealt with by the Garda authorities I am sure the safeguards and our proposals for the future would be a more satisfactory way to handle the matter.
The majority of Senators here tonight are from rural areas. The Garda have been commendable in dealing with people who have consumed an excess of alcohol. After the person has been arrested and has given a blood or urine sample, in most instances gardaí either arrange for a taxi for the person or drive him or her home themselves. Their attitude and co-operation in these matters is praiseworthy.
I note and appreciate the safeguards provided by the Minister, which involve informing relatives and imposing age limits. In most instances, perhaps 70 per cent, the people involved will be found guilty following the taking of samples, etc. However, a person may not be guilty and for whatever reason a garda is of the opinion that the person is incapable of driving and detains him or her in the station. Perhaps the garda is unable to contact a relative because they do not have a telephone. A doctor will already have attended at the station and taken a blood or urine sample. If the garda has a doubt about the person's ability to drive the vehicle home, he would be wise to ask the doctor for his opinion as to whether that person is capable of doing so.
I do not wish to put additional pressure on the medical profession and I have listened with care to what was said by Senator Henry, other Senators and the Minister. To detain someone in a station for up to eight hours is a significant matter. At the same time, one knows how dangerous pedestrians walking at night can be if they have consumed an excess of alcohol, so gardaí must be careful before allowing them to leave the station. The opinion of a doctor should be obtained before they should be released.
This provision has significant civil liberties implications which cause concern. It gives wide discretion to the garda involved. As Senator Enright said, the doctor will not be specially summoned for this purpose, he will be summoned to take the samples in any event. His opinion is more expert than the garda's, although that is not to say the garda's opinion is not valid. Wide powers are given to the Garda and it is possible to conceive of circumstances where those powers might be misused.
To compound the matter, section 16 (2) (a) says if the person involved is over 18, the informing of other parties will be done "as soon as it is practicable". When precisely is that? Could it be up to eight hours? Circumstances could be envisaged where the garda decides a person must be detained and then decides it will be eight hours before it is practicable to inform the people who should be informed. In the event of the person not wishing them to be informed that would not happen. Where the person is under 18 there is also an onus to inform others as soon as practicable. This is dangerous from the civil libertarian standpoint.
Drug taking may become more common if we follow European trends and, if so, circumstances can be foreseen where gardaí might be anxious to have the opinion of a member of the medical profession. A person in Garda care may be in such a condition that he or she may need to go to hospital to be detoxified. It might be in the best interest of the garda on duty that he receive the backing of medical opinion.
Another issue arises. Senator Kelly's point is relevant because, while alcohol remains a problem, drugs are causing more difficulties. A period of eight hours has been mentioned but it is almost impossible for a garda to know what effect a drug may have, whereas it is relatively simple to decide what effect alcohol will have because it wears off after a time. It would be prudent to have the opinion of a doctor available.
This amendment does not put more pressure on doctors because they will not have to call a second time. At the earlier stage, the doctor's opinion should be sought by the garda. The decision whether to detain the person can then be made.
A person may initially have volunteered to give a sample. He or she may then wish to leave the Garda station and may not be permitted to do so. I have received considerable correspondence on the point raised by Senator Dardis.
I will not put this matter to a vote if the Minister undertakes to give the matter some thought before Report Stage. I have given the Garda the credit to which they are entitled and I have also men tioned the medical profession. Circumstances vary and sometimes differences can arise between individuals.
I am sorry to interrupt you, Senator Enright, but it is now 10 o'clock.
When is it proposed to sit again?
Tomorrow at 10.30 a.m.