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Seanad Éireann debate -
Tuesday, 14 Dec 2004

Vol. 178 No. 27

Health Bill 2004: Committee Stage.

Section 1 agreed to.

I move amendment No. 1:

In page 10, line 15, after "formed" to insert "by a registered medical practitioner".

This amendment would have the effect of confining the definition of "clinical judgment" in the interpretation section of the Bill to practice by medical practitioners. This would exclude the exercise of clinical judgment by other health professionals such as nurses and a wide range of allied health professionals. That is not the intent of the provision in the Bill. The Bill contains a wider definition, according to which a clinical judgment means "a decision made or an opinion formed in connection with the diagnosis, care or treatment of a patient". That definition is needed for the complaints machinery in Part 9 of the Bill. There is a similar definition in the Ombudsman for Children legislation.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 to 6, inclusive, agreed to.

I move amendment No. 2:

In page 12, before section 7, to insert the following new section:

"7.—Subject to the provisions of this Act and the resources available to the Executive, the primary function of the Executive is to take such steps as are open to it to ensure that each person in the State is facilitated in availing of an individual entitlement to such health services and personal social services as are appropriate to meet the needs of that person.".

It is a bit ironic to be discussing the Health Bill when I have the worst bout of ill health I have had all year. We will struggle on. Amendment No. 2 concerns the establishment and functions of the health services executive. When I spoke on Second Stage of this Bill last week, I referred to a matter that has been the subject of much discussion, namely, the absence in the legislation of references to any approach other than a bureaucratic, administrative one. What is really missing is a mission statement for the executive. The executive is to be a very powerful body with a very powerful board, large budget and remit to run the health services of the country. The latter is a large task to assign to any body. The legislation should reflect a very strong patient-centred ethic. The Minister referred to this in her Second Stage speech last week, but it is notable, given the size of the Bill, that the patient does not feature to any great extent therein.

The argument can be made that this Bill is about administration, management and bureaucracy. Management and administration are very important and have been the subject of many commentaries and reports that have played a large part in the design and formation of this legislation. However, the Labour Party believes a patient-centred mission statement focusing on the delivery of a high-quality health service for all is certainly lacking. The amendment calls for a rights-based approach to health services. This should be the foundation stone for the executive. The amendment states:

"7.—Subject to the provisions of this Act and the resources available to the Executive, the primary function of the Executive is to take such steps as are open to it to ensure that each person in the State is facilitated in availing of an individual entitlement to such health services and personal social services as are appropriate to meet the needs of that person.".

This new section, if included in the legislation, would form an essential backdrop to the work of the new executive and would ensure that its work would be driven by the vision outlined therein. Nobody in the House would disagree with that vision. All would agree on the need to ensure that everybody has the health service to which he or she is entitled and which meets his or her needs at any given time, whether he or she is young or old, chronically ill or simply requiring outpatient treatment, or whether he or she has been referred for a fairly simple procedure by his GP or is suffering from a serious illness such as cancer. The ethic of the health service should be driven by this vision and people should be entitled to "such health services and personal social services as are appropriate to meet their needs".

This is a very important amendment and I hope the Minister of State will give due consideration to it. I have been reading the Official Report of the Dáil from last week and noted that the Minister did not give the legislation much hop in that House. I hope we are not engaging in a useless exercise in the Seanad. We have allocated three hours to this important debate this afternoon and we are taking Report and Final Stages on Thursday. The Dáil is rising on Thursday. Does that mean that no matter what we say here it cannot go back to the Dáil and be taken on board there? We need to know where we stand. Is this a talking shop or a meaningful exercise?

I concur with the previous speaker. Fintan O'Toole points out in an article today in The Irish Times that the word “patient” appeared only once in the original Health Bill. I am not sure how many times it has appeared since then. The Government’s lack of consultation with outside groups which have contacted us lately suggests that this Bill is not as patient-focused as it should be. That is why I ask the Minister of State to accept the amendment.

Senator O'Meara's amendment is important, as is her comment that the Dáil is rising on Thursday and we are dealing with Report Stage then. Are we just involved in a rubber-stamping exercise today and tomorrow? This is particularly important as there is industrial action in progress in the health boards because of what is regarded as the speed with which the Bill is going through the Houses. The amendment asks whether the health of the individual or of the public is being considered. Public health is very important but I thought the philosophy behind this Bill was the health of the individual and that is why there is a complaints section and redress for individuals who complain. The rights of the patient are not mentioned anywhere in the Bill.

Senator O'Meara's amendment centres on this and we should know the Government's views on the rights of individual patients in this Bill, apart from the complaints mechanism. There is no point in having such a mechanism if one has no rights. It is an exercise on paper. The Minister of State should tell us if there is any point in looking at these amendments.

I must disappoint the Senators. Like them, I am in the hands of the Constitution as well but the Dáil is sitting on Thursday afternoon whereas the consideration of this Bill by Seanad Éireann concludes at lunchtime on Thursday.

Will the Minister of State take amendments?

There is what lawyers call a scintilla temporis, a moment in time.

A window of opportunity.

Something could be achieved at that moment. After that it is downhill from my brief perusal of the notes I have before me. I would be pleased to address the points raised by the Senators, for example the question of consultation. The legislation is not being rushed through the Houses without consultation because the Government announced the reform programme 18 months ago and the need and character of this legislation has been well signalled in the intervening period.

This amendment is dressed up in the very fashionable language of a rights-based approach but it addresses the issues of eligibility for health services which this Bill does not purport to address. The only way to give flesh and blood to a rights-based approach in the context of the administration of a service as vast as our health and social services is to define the rights in terms of eligibility. To have a rights-based approach it is necessary to translate and specify what the rights mean in the context of a hospital service, general medical and practitioner services and right of access to drugs and social services. The health legislation already provides for all of that. Not alone are there many sections but there are many regulations spelling out in great detail the eligibility of a patient or individual to a particular service. That is a rights-based approach which has been embedded in our legislation since the 1947 Act.

That approach to eligibility has been a cornerstone of our health legislation but this Bill is not about that. It is about organisation and management reform within the health system. Senators Henry and Browne noted that the word patient is not often mentioned in this legislation but if one took a referendum of patients in Ireland on whether they agreed with the proposition that we should have nine or ten health boards or a unified national administration one would get a very clear answer from patients about what they wanted.

Is the Minister of State sure about that?

That is the conviction of the Government and the basis of the thinking in the Prospectus report. The amendment is very well worded and is "subject to the provisions of the Act and to available resources" but there is a danger that were we to enact legislation in that very general sense at this or any point, decisions on treatment would be made in the courts instead of by health and social care professionals. That is one of the difficulties of a rights-based approach when it is based on a lack of specificity about what are the precise rights. When we adopt that approach we transfer powers from this House, and from Ministers accountable to this House, to the courts.

I note that the Minister of State's boss, the Tánaiste Minister for Health and Children, Deputy Harney, made exactly the same point in the Dáil last week about eligibility. I disagree fundamentally with the Minister of State that our amendment is about eligibility. It is not. It is about entitlement. The earlier health legislation which is rendered obsolete by this new Bill contains entitlement provisions. Section 7(1) of the Bill states: "The object of the Executive is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public." There is no mention of the individual there.

We could engage in an argument which says that the public consists of individuals but this legislation removes what exists, namely an entitlement. It is removing a right that individuals have. The Minister of State is correct to say that people have used it in legal battles. There have been legal battles and the courts have decided how people should be treated. I do not agree with that, although the courts play a major role in medical matters which no doubt causes grave anxiety among doctors in particular, and hospitals and other practitioners.

I do not know if the Minister of State is correct when he says that were we to conduct a referendum the majority of people would vote to abolish the health boards. The Minister of State says "it is the conviction of the Government" and that is certainly the case. This legislation makes clear that it is the Government's conviction that the health boards are inefficient, do not work or deliver what the Government wants them to deliver. That is fine but in bringing forward this legislation and abolishing the health boards a very important layer has also been abolished, namely, accountability to the person in the street, not just the patient but the person who elects councillors who sat on health boards.

This legislation cuts out the community voice of protest about Government decisions on the health service in an area. That is one of its objectives. If there was serious local anxiety about a decision regarding a health service, for example a hospital, the community has had access to the administrative structure which partly drives that decision. The health boards no longer exist, so the community no longer has access. Publicly-elected councillors no longer sit on a body which discusses these issues, so there is no access. The regional forums mentioned in the legislation do not amount to anything more than a talking shop. They cannot do anything. The health service executive, under the clear direction of Minister, will be the board which makes day-to-day decisions about hospitals and services in this country.

It is fashionable to write off the concerns of local people. The current Administration will say these are usually politically motivated campaigns involving people like myself. The Minister of State is nodding. He would agree, considering where he is sitting.

Any Dublin Deputy would agree.

The Minister of State is a Dublin Deputy. Dublin hospitals are affected by the Hanly proposals and will be severely impacted by reforms coming down the track at a ferocious speed.

They have not yet been advanced.

I do not believe they will. We must wait and see. Communities feel strongly about the level of health services available to them. They also quite rightly feel they should have some say and their opinion should be taken into account. This legislation is not about the Hanly report. However, in fairness to Mr. Hanly, he came to a public meeting in Nenagh over a year ago to roll out his proposed reforms. He has not been to any such meetings since. He might have realised it was not a good idea because people turn up and give their opinion. It was a useful forum in order to do so, but will never be available again under this administration.

The notion that a community will be heard on a health issue of major concern to it is gone out the window. How people deal with that is another day's work. This legislation is designed to undermine the voicing of local public opinion. It creates an all-powerful, Government-appointed, ministerial-directed board which simply runs the health service against a backdrop of legislation which will have excluded and deleted the notion of individual patient entitlement.

I agree with people in the street who say they prefer to see what is proposed rather than the health boards which currently exist. The Minister of State was not here on Second Stage, but I voted in favour of the Bill.

I do not want a total denigration of the health boards, because some of them have been responsible for huge initiatives. Senator Feeney said we must get everybody registered with general practitioners as it would remove much chaos from accident and emergency departments. I know from Senator O'Toole that a superior type of person comes from Dingle and Anascaul. The Southern Health Board has registered seriously ill people with chronic conditions with one of seven general practitioners in its area. The board then encouraged the families to do the same. I am sure this could happen around the country. Certain people within the various health boards have started up initiatives to improve the situation. However, I do not think they were given sufficient encouragement by the Department of Health and Children.

I do not agree with Senator O'Meara for a number of reasons. My experience of elected members of the Labour Party, locally and nationally, is that they advocated the abolition of the health boards for as long as I remember.

When was the Senator a member of the Labour Party?

I am speaking of several members, locally and nationally. I have never heard them propose anything other than the abolition of the boards.

The Senator is making it up.

Perhaps Senator O'Meara is out of step. There are many approaches within the Labour Party.

Did a Minister speak against the Government in Nenagh?

I think that was the case.

A few years ago, the Labour Party advocated An Bord Sláinte with no local representation whatsoever.

What is the Senator talking about?

The Labour Party has convenient amnesia.

It is all myth and legend.

It is not true there will be no consultation. The consultative forums will work. When the boards were set up, the very same people——


As I said on Second Stage, all that has changed is the date. The same things were said. The county councils were discontinued as the agents for delivering health services and the boards were established. However, in their 34 years the boards have, in the main, been responsible for the creation and provision of much specialist care in respective regions which would never have been provided otherwise. That is a fact. It is time to look at the situation 34 years later. Several people on the other side of the House, namely, Fine Gael, the Labour Party and other strata of opinion, have advocated the abolition of the boards. It is not true there was no consultation. The chairman of the Midland Health Board met with members and staff of the boards. There is difficulty in terms of coming to grips with change, but we should not fear it. Neither should we be afraid to stand up and say what is good or bad about change. To listen to people on the other side, one would think it was all bad. I do not accept that.

I missed the vote on Second Stage.

The Senator is not the only one.

I would have voted for the Bill, although that does not mean I do not have serious reservations about certain aspects. It has the potential to improve the situation, however improvements are also needed in the Bill. It is a mistake, and will require amending legislation within 18 months. Senator O'Meara made a point about a clear mission statement. That is one way in which the Bill is wrong. We need more specificity. It is not clear how it will carry out its business. That is where the difficulty lies. The combination of issues on the objectives and rules and regulations of the plan do not fit. I do not have a problem with dissolving and replacing the health boards, as I have said many times. However, personnel were not the problem. The health boards were independent republics and there was no line of accountability. The Bill contains a provision requiring the executive to get approval for any capital investment it wishes to make. If that was included in legislation covering the health boards some years ago we would have saved ourselves millions, and would have had proper accountability with regard to spending. That was the problem at the time. I could examine and find issues that were good in every health board. However, I could also find issues which were bad.

Senator O'Meara has a valid point. The health service executive can give overall thrust and direction. There was often no thread of policy running through the health boards because they were like independent republics. We discussed one example in the House within the last year. For example, in terms of child sexual abuse and reports of such abuse, there was not a common response from the health boards. Health boards considered and approached that issue in different ways. Five years ago some boards did not have any process for dealing with it. The advantage of this system is that we can now have a common national policy which can be delivered locally. That is the plus side of it. However, we could have done something like that within the health board structure if we wanted to do so.

The broad model of what is planned in the Bill is good, but it is being rushed through because the Government tied itself into a commencement date of 1 January next. Despite the lovely words of Senator Glynn about members of the Fianna Fáil Party speaking in concert, as a disinterested observer I noted that its members were all over the place on this issue and had different views on it. They were raging about local authority members no longer being allowed to be members of health boards. I hope what the Senator said was right about the broader consultative group.

So do I.

I hope that it does do the business and it is right that it should be in place. I hold the view, and have said so publicly on many occasions, that locally elected people should have a critical involvement in this structure, but it is wrong to say there was unanimity within the Government parties on this issue. That were not and there still is not.

Will the Minister of State agree that because the Government gave a commitment to get this done by this particular date and because of the row about councillors no longer being allowed to be members of health boards, this date suddenly became as important as Christmas Day — it is immovable and we are stuck with it? Consequently, consideration of this legislation is rushed.

We should be supportive of the Tánaiste who is new to this job and responsibility in this area, to ensure that the new structure will work, but we are not doing that. The issues in question have not been addressed. The Government has run in fear of even the term "rights-based". There is an importance in giving people a right, but such a right is based on available resources. That would deal with the Government's arguments on this issue and could encompass the point made by Senator O'Meara.

We will run into difficulty with the establishment of the health service executive in the manner proposed. It will take over from the boards. It will be able to sue and to be sued, as provided in this section, but will it be able to do the business? There is no indication that it will do so. The legislation does not provide for putting any pressure on it.

It is proposed that it will deliver a better service, but how will it do that? We will hand over €10 billion or €11 billion per year to the members of this executive to manage the service. If that was the Minister of State's money or if I was handing it over, I would want a much better receipt than what is given in the Bill. I would want to be sure how such money would be spent. I am not suggesting anything related to fraud or anything like that, but I do not know what efficiencies will be made.

For example, in the case of accident and emergency services, will someone tell the members of the executive that we want to reduce the problems in those services, or will we assume they will address those problems? Why are specific provisions requiring the members of the executive to address those issues not inserted in the Bill? In the Bill we ask them to manage and deliver the health service, but that is currently being done by the health boards. What will be different on the establishment of the executive other than that it will manage the health service? That is the problem with the legislation.

In deference to what the Minister of State said, I agree with him that the Government cannot cover every situation by inserting another line in a Bill. I am not suggesting that can be done, but we need to know what it is that the members of the executive will be required to do. I appreciate that I have to consider the boarder picture, but will the executive provide better arrangements in terms of bed management or accident and emergency services, or is it required to do that? What rules and regulations will govern it? We can deal with this in more detail when we deal with the proposed plan. I have major reservations about the executive, even though I support the Bill as a broad entity.

The major difficulty Fine Gael has with the Bill is that it does not provide for real reform. It does not specify any targets or benchmarking positions, a point Senator O'Toole effectively made at the end of his contribution. This Bill is not sufficiently patient-focused. Can the Minister of State clarify what targets will apply to the members of the executive? Will this Bill give them carte blanche to do whatever they wish?

A major difficulty is the lack of accountability of the executive. Like other quangos that have been established, if a decision is taken that is unpopular, the Minister will wash her hands of it.

Having listened to what has been said, it is like a case of déjà vu. We had a debate on the arguments for and against a rights-based approach in the Disability Bill. At that time the Minister for Justice, Equality and Law Reform, Deputy McDowell, said the same as what the Minister of State, Deputy Brian Lenihan, said about this Bill, namely, that much of the money would be taken up in the courts. The Ministers are right. That is where much of it will go.

It is bad if legislation is overly prescriptive. I see nothing wrong with amending legislation if we do not get it right initially.

I am one of the people to whom Senator O'Toole referred who fought for the right to retain councillors on boards. I believe in the right of local politicians to be on bodies such as this one. The consultative process will work, but we have to give it a chance.

They cannot change anything.

I am glad to hear voices in support of it in its broad sense. I will deal with what the Senator said. Every time I stand in this House I say the same thing to members of Fine Gael. If they are talking about reform and knocking the reform proposed by the Government side, they should kindly bring forward something that is worth our consideration.

We have tabled amendments.

The Senator's party does not do that. The Senator has jumped on the bandwagon of what Senator O'Meara suggested.

The Government guillotined consideration of amendments to the Bill in the Dáil.

We have had all of that discussion again. If the Senator has something constructive——

We have tabled plenty of amendments to the Bill.

——to bring to us, let us hear it, but so he has never brought anything constructive to us.

We have tabled these amendments and Report Stage amendments.

The Senator can talk about reform, sneer and laugh and we can joke and leave here and still be the best of friends. However, if there is something constructive to put forward, let us hear it because to date we have not.

We are on amendment No. 2.

As I outlined in my commentary on the amendment moved by Senator O'Meara, this Bill has nothing to do with eligibility or entitlement under the health legislation. Senator O'Meara made a comment, perhaps it was a stray one, that there was a reduction in rights as a result of this Bill. There is no such reduction in rights. Every entitlement and eligibility that is there for the patient and individual under the health legislation is totally unaffected by this legislation.

This legislation is not addressing issues of eligibility and entitlement. There is a commitment in the health strategy to introduce such legislation and the Department is reviewing the legislation to update and rationalise the entitlement framework. However, that framework is covered by previous legislation and it is not being interfered with by this legislation. This legislation is about management structures, it is not about eligibility and entitlement. I want to make that position clear.

I agree with Senator O'Meara that local communities are concerned, and have every right to be, about the quality of health services in their communities and they have every right to speak out about them. However, we in the Oireachtas have to look at the history and evolution of our health services. The health service executive is a rational response to the fact that the funding for the provision of our health and public social services comes from the central Exchequer.

Prior to the enactment of Health Act in 1970, there was county administration and originally the provision of the health services was funded on the poor law rates that went back to the poor law unions, which I suppose were the original health authorities set up in 1830s and funded exclusively from rates paid by landowners.

There was an evolution after the enactment of the 1898 Act. We had county administration, then county health authorities, again with a significant local contribution. In 1970 it was found that the county framework was too small to plan for the rational evolution of the health and social service. Regional administration was established. There was still an element of local contribution involved. There is no element of local contribution involved nowadays, yet Senator O'Meara argues that local administration should have a decisive role in the administration of these services.

I agree with Senator O'Toole that there is no accountability in that system. There is unaccountability because a board is set up. The boards did much good work and do not want to take from that. The elected representatives on those boards performed their duties with great diligence. We also legislated in the 1970 Act for the direct representation of some of the professional and allied interests on the board. The result of all this was a body that received a lot of money from the Exchequer and a lot of autonomy. There is more control and more democratic accountability under this Bill than there is under the 1970 structure. That is what is at the kernel of this legislation, and we cannot lose sight of that in our discussion.

Senator O'Toole raised the entirely legitimate question of the delivery of services and targets. Under section 10 of this Bill the Minister is given power to do just that and to issue a direction in regard to targets.

That is after the plan is written.

We can return to the issue, but the general directions can be for any purpose relating to this Act or any other enactment or any matter or thing referred to in the Act. The directive power of the Minister is very extensive under section 10. That is as it should be because the Minister is accountable to the Oireachtas. The Oireachtas is exercising the taxing power of raising the funds that fund the service.

I agree with Senator O'Meara that there must be local consultation, and that is also provided for in this legislation. However, the legislation reflects the principle that he who pays the piper calls the tune. That is something those who advocate more local government must address. If they are not prepared to pay for a service at a local level, they are not really entitled to an exclusive say in running it at local level. It is that historical fact of life that has given rise to this legislation, along with the major changes that have taken place in Ireland since 1970.

I agree with all of the Senators who praised the work of the health boards. Many have taken wonderful initiatives. Nobody is taking from that. However, in terms of communications, our country is far more integrated now than it was in 1970 and the speed of communications, the speed of movement between different parts of the country, the technological revolution which has affected medical science as much as any other branch of learning, all point towards the need for a national authority. That is what we are legislating for in this Bill.

I am aware I am revisiting Second Stage but to some extent the discussion so far has tended in that direction and I wanted to reply. It is our strong conviction as a Government that this legislation is very much in the interests of the patient. It is in the interests of the patient that we put an efficient management structure in place.

Senators make the point that local views must be heard and entertained. I do not disagree with that. However, I reject another suggestion, canvassed by Senator O'Meara, that this is part of an agenda to downgrade a particular hospital or to lessen the capacity of a community in any part of Ireland to champion the need for proper services in its hospital. That is not the case. The Bill has nothing to do with that issue. It has to do with providing the best service for the patient. That is the objective, along with getting value for money from the very substantial investment made in health administration. They are very laudable objectives. I do not accept that the Bill is being introduced to in some way affect the rights of persons in local hospitals.

To come back to the central point I made already in this context, he who pays the piper calls the tune. If there are difficulties with the provision of services in local hospitals, it is to do with the allocation of resources. In other cases the difficulties in local hospitals and smaller hospitals have not concerned resources but the recognition of professional qualifications — the observance of professional standards, the maintenance of sufficient numerical levels of staff, and the existence of a sufficient number of patients to justify the provision of a particular service. Those difficulties also exist. However, all these matters can be judged fairly only in the context of who is providing the funds. To interpose a local health board between the fund provider and the service does not add to the debate. Choices must be made in this area and at least the Minister is prepared to come forward and make himself or herself responsible for those choices but needs, given the vast amount of expenditure involved, a technical, well-equipped body to supervise implementation.

I know we have spent a lot of time on these amendments. I thank the Minister for his Second Stage approach. His setting out of where the Government is coming from on this issue has been very useful. It is not news to hear him setting that out. However, he has been clear and open and I commend him on that approach.

We would take a different approach. We live in a democracy and we are entitled to take different approaches. As an aside, like other Senators on this side of the House, I have had representations from Senator Glynn's party colleagues regarding the abolition of the health boards with which they were not happy. I am sure he is aware of that.

I have no difficulty with reform. I accept that times have changed and we must be cognisant of whether the structures we have in place are the most effective for the delivery of the best possible service for people who need it. That must be our ultimate aim. Everybody would agree with that. The question is how we go about it.

The structure the Minister is setting out in this legislation is over-centralised and cuts out any sense of local involvement, consultation, accountability — call it what one will. The Minister may say that the health board structure did not work. As many people have said, health boards delivered excellent services, often on their own initiative and in response to need as they saw it. However, there was inconsistency between health boards on a whole range of issues, including, as Senator O'Toole mentioned, child abuse.

Is it necessary in reforming that structure and creating an integrated service — and as the Minister says, he who pays the piper calls the tune — to completely abolish democratic accountability and create such a centralised structure that people on the ground have nowhere to go, because I do not accept that the regional forums are anything other than talking shops? I am not saying that local councillors will not air what people have to say, but that is all that will happen. They will air what people have to say. It will very likely be reported in the local paper and that is as far as it will go because, ultimately, the board will make decisions at the Minister's direction.

The amendment under discussion is at the core of our fundamental problem with this legislation. The Minister spoke in general and vague terms about the possibility of the Government coming forward with legislation which will have the issue of entitlement at its heart. It sounds vague. It may or may not happen. We know this Government has something of an allergic reaction to anything with a rights-based approach, so I would not hold out much hope on that front.

We have had a very useful discussion on this amendment on the principles and vision of this board and also on the issue of entitlement. I do not intend to take it any further.

Amendment, by leave, withdrawn.

We now come to amendment No. 3 in the name of Senator Ryan. Amendment No. 4 is related. Is it agreed to debate them together? Agreed.

I move amendment No. 3:

In page 12, subsection (4) (b), line 37, after “training” to insert “(which education and training shall, in the case of medical professionals, be provided by postgraduate professional training bodies)”.

The part of the Bill dealing with the objects and functions of the executive with regard to the training and education of students, nurses and other health professionals is interesting, and I am interested to hear Senator Henry's view on it. If I read it correctly, the Bill gives the executive extraordinary power when it states at subsection (4):

The Executive shall manage and shall deliver, or arrange to be delivered on its behalf, health and personal social services in accordance with this Act and shall. . . .

(b) to the extent practicable and necessary. . . facilitate the education and training of—

(i) students training to be registered medical practitioners, nurses or other health professionals, [I take this to mean doctors and nurses] and

(ii) its employees".

The executive will be responsible for the delivery of health services and all else to do with the training and education of nurses and doctors. This is a new way of operating. The amendment seeks to insert the wording, "(which education and training shall, in the case of medical professionals, be provided by postgraduate professional training bodies)", which is the case at present. I am interested to hear the Minister's response.

I am also interested to hear it. The Minister may be aware of the considerable concern among the postgraduate training bodies as to what exactly this means. The board could have significant power over what facilities will be available for training. Professional competence is increasingly important in all parts of the health service, and I am not just talking about medical or nursing students at undergraduate level but also at postgraduate level where we want professional competence maintained. This section seems to allow the board significant power over the training bodies, which have done a good job and worked extraordinarily hard in recent years to make sure that medical professionals received proper training within, for example, hospitals, general practices and the public health service. It appears they will all be subordinate to this board, which has caused considerable concern.

When I found no reference in the Bill to undergraduates, I was flummoxed. Is this related to the area of competence assurance for the professions, as the Department is now talking about funding this?

The issue must revolve around the meaning of the word "facilitate". If I were to take a benign interpretation of this, it would be to the effect that the board would be required to co-operate with the postgraduate institutions which require their students, such as house doctors etc., to have experience at ground level. A situation often arises among all sorts of professional groups, from psychologists to teachers and others, whereby they cannot get the experience they require because others are too busy to make space available to trainees.

If "facilitate" means that facilities will be made available, this is positive. However, if it means encroachment in any way on those who deliver the service at present, it would be appalling and probably in breach of other legislation which goes back many decades. We need clarification on this.

Most Members spoke to the section rather than the amendment. The key word is "facilitate". The executive is obliged to facilitate the education and training of students and the employees of service providers. We are considering the well-established practice of the in-service training in institutions which will be managed by the health service executive of persons training not alone to be doctors but also to be medical and paramedical professionals. That is the intention of this subsection. In a more positive sense, I assure the House that the Minster does not entertain the interpretation that this is any attempt, whether overt, covert or otherwise, to exercise control through the executive over the proper independence and autonomy which the many professional and educational organisations concerned enjoy.

The amendment would have the effect of confining the facilitation referred to in the section to that provided by postgraduate professional training bodies. That would be highly restrictive. It would, for example, curtail opportunities for health professionals to receive training and education in a range of other fields apart from their professional clinical field. The obligation in this regard is to facilitate training of a wide range of staff, including medical professionals. It is an obligation that must be imposed on any health service executive in regard to the health services sector.

I am delighted with the Minister's response. Nobody is better placed to interpret what the services need than the staff delivering them. For example, a training hospital may be short of nurses or doctors. Given that the health service executive will be responsible for the delivery of services in such institutions, it would be up to it, and under legislation it is obliged, to involve itself in the initiative of providing the training for the relevant professionals sought by any relevant institution. All should welcome this, as I do. I welcome the Minister's comments in regard to the established postgraduate training institutions, namely, that they still have a positive and proactive role to play.

There is a serious problem in regard to continuing medical education. Will the board provide funding and will the other postgraduate bodies have to look to the board for funding?

As the Senator is aware, a significant amount has been invested by the Minister and the Department in the development of higher education in recent years, especially on the nursing side. However, funding is always a matter of individual negotiation in the appropriate context. For example, with regard to in-service training, the question of remuneration and funding becomes a matter between the health service executive and its appropriate corporate pup, which manages this particular activity, and the body with which they are dealing.

Therefore, it will be in charge of the funding for postgraduate education.

No, we are at cross purposes. If in-service training is taking place, questions of funding may arise.

The Minister is not clear on this.

In a recent debate on other legislation, the shortages of speech therapists, occupational therapists, psychologists and a range of specialists were highlighted and it was obvious that something needed to be urgently done. Will the new executive have some role in this? For example, despite a recent advertisement in the national media for a radiologist, nobody applied for the position.

It is happening everywhere.

It is. I understand there are only approximately 100 radiologists in the country, with some having come from abroad. The situation is unsatisfactory. In the view of many, it is a necessity to deal urgently with this. They look to the executive to make some inroads into the shortages of speech therapists, occupational therapists, radiologists and other specialists that cause difficulties and annoyance for many.

If we are going to put a new health service executive in place, we must have some indication that it will be in a position to deal with that most unsatisfactory situation.

I think we have given this matter a good airing. I call Senator Feeney.

Will the facility we are discussing deal with protected time for junior doctors and consultants, or teaching hours? Will it cover protected study time for junior doctors? Many of the problems arise because young doctors do not have protected time for study purposes. When they are meant to be studying they are equipped with a bleeper which could go off at any time summoning young doctors back to their posts. Will the provision cover that type of matter because it is very important?

I am glad Senator Feeney raised the issue of protected time. Given that the Department of Health and Children will now be solely in charge of policy, it seems that this service board will have extensive control over postgraduate training, with regard both to finance and time.

The current system is not working.

Public funding of third level institutions is a matter for the Department of Education and Science. I agree with what Senator Daly has said on this subject. I think that has been part of our problem but it is not being addressed directly in this legislation.

It is not being addressed at all.

It is being addressed indirectly. If one has a unified health executive examining the issues, the possibility of devising an integrated approach to this problem is far greater than under the present arrangement with a multiplicity of health authorities. There is no doubt, therefore, that a single authority will identify far more quickly than at present where are the gaps and bottlenecks in professional qualifications, and how they can be addressed.

We are digressing from the section, however. I am not saying that the section gives the executive direct power to deal with that but there is no doubt that its establishment will make the executive an indirect influence in securing that objective.

I am not too sure why amendments Nos. 3 and 4 have been grouped together. While I know they are in the same section, they are different in content. Perhaps I will come to understand it over time. For purposes of clarification, in page 12, subsection (4), line 40, after the word "providers", my amendment No. 4 seeks to insert the following wording: "as provided by the ERHA and health agencies prior to January 1st 2005."

With all due respect to the Minister of State, his replies are unclear. I thought the matter was clear at the beginning but it is becoming more confused. That is the case with regard to the issue of what facilitation means and the points that were raised about the shortage of therapists. I have said before that there is a shortage of doctors. From examining what has happened, we know that the majority of people placed in medical schools in Ireland are women. We also know that the average period those women graduates spend in practice is five to seven years, although I do not have the figures in front of me. In many cases they do not continue. I am only making that as a statement of statistical fact. I am not presenting this in any kind of sexist fashion. We know the numbers who return to medical practice as specialists later. Could the health service executive demand an increased intake into the medical colleges to ensure that in ten years time additional doctors will be available?

Fianna Fáil speakers referred to the lack of therapists but there is currently a shortage of every kind of therapist in this country. In addition, there are all sorts of practices concerning what qualifications are recognised. Twenty years ago, a European directive required the mutual recognition of third level professional qualifications in the EU member states, yet we have got nowhere with it. People who may be fully qualified in certain countries are not recognised as such here. Will the health service executive be able to insist that a new school of pharmacy should be established? I take that as an example because we are aware of the mess we got into previously with the Department of Education and Science arguing with two different third level institutions about where such a school might be situated.

Can the health service executive take initiatives? When the Minister of State answered the question the first time, it seemed he was saying that the executive's involvement would only be to pay whatever aspect of the cost relates to the in-service, in-house, in situ, institutional training of these professionals. As the debate has continued, however, the Minister of State seems to be saying that the executive will have some control or influence over the delivering institutions. What is the situation? Will the executive have an input into the numbers of people who will qualify?

If they do not, we have been wasting a lot of time on the issue. The Minister of State is saying "No" to that point.

This would solve the Minister for Education and Science's problem about points, if more people could get in. In addition, while more women opt to study medicine we do not know if any men are applying. I have been trying everywhere to find that out but I do not think male students are applying to study medicine in the same numbers as women students are. I would be most grateful if the Minister of State could find out that information and let me know.

Senators Daly and O'Toole have raised an important point concerning therapists. This matter was raised some time ago by the Joint Committee on Education and Science. Surely the health service executive will be able to set target figures or even introduce a lesser degree course in some of the regional colleges to help out in the interim. The points system is so high that when those people qualify they can demand jobs in other areas. Something must be done because we are fighting a losing battle. The new health service executive should have some control over this matter. Remedial steps are required to provide such services in the short term.

We have travelled a long way from simply exploring the meaning of the word "facilitate", which was the point of departure for this particular discussion.

The Minister of State led us on that track, with all due respect.

Yes, he did.

Senator Daly led us very far down this path. It highlights a point, which is an important one, that the executive will be engaged in national workforce planning. As a result of that planning exercise, the executive will identify where there are difficulties, including gaps in provision. To answer Senator O'Toole's question, the executive cannot establish a school of pharmacy. These are matters for the Minister for Education and Science, and ultimately for the Government.

It has failed so far.

However, the executive will play an important part as a vital cog in the administrative machine, identifying exactly how many therapists and other disciplines are required, and then seeking the appropriate response from the Government in the context of overall policy.

How stands amendment No. 3?

We have had an extensive discussion on this matter and I hope the Minister of State has answered other Members' questions. On that basis, I will withdraw the amendment while reserving the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 12, subsection (4), line 40, after "providers" to insert the following:

"as provided by the ERHA and health agencies prior to January 1st 2005".

Amendment No. 4 seeks to freeze practices in the context of the Eastern Regional Health Authority. That is a rigid requirement to impose in the legislation. It would unnecessarily curtail the obligations on the executive to deal simply with education as it is frozen today in current or contemporary practice on 1 January 2005.

Amendment, by leave, withdrawn.

Amendments Nos. 5, 35, 44, 45 and 48 form a composite proposal and may be discussed together by agreement.

I move amendment No. 5:

In page 13, between lines 29 and 30, to insert the following new subsection:

"(9) In the performance of its functions the Executive shall co-operate and co-ordinate with the voluntary and community sector where it is involved in activities similar or ancillary to the remit of the Executive.".

This is a self-explanatory amendment. It serves to acknowledge the positive role played by the many groups involved in the voluntary and community sector. It is important that the new health authority should recognise that contribution and take it on board in formulating decisions. The prospects in this regard are not encouraging, however, given that the Government has not consulted widely enough and has rushed the legislation through the Dáil and is attempting to do the same in this House. The voluntary and community groups are annoyed by this approach. It does not augur well for the future.

I support Senator Browne in his amendment and in the sentiments he has expressed. I do not accept there has been widespread consultation in the formulation of this Bill. It only became obvious to a number of groups quite late in the day the extent to which they will now find themselves in an entirely different scenario to that they have previously experienced. Despite all that has been said about the health boards, they did afford the voluntary and community sector a seat at the table.

I spoke on Second Stage about the Government's embracing of the voluntary and community sector through its recognition of the sector as a fundamental pillar in the community in the context of the National Economic and Social Forum and the partnership agreements which have been the cornerstone of our economic prosperity over the past number of years. Therefore, it was surprising to see that this legislation did not afford sufficient recognition to the important role of the voluntary and community sector. This represents a contradiction of the Government's own policy and position in regard to the function of the sector. This is a worrying development and it is unsurprising that we have had approaches from a number of groups which are concerned at the new departure that the Bill represents.

During the Dáil debate on Report Stage, there was extensive discussion about this issue, which focused on the area of disability. There seems to be an attitude enshrined in this legislation that workers in the disability sector, represented by the Disability Federation of Ireland, are seen as service providers. This is the role they will be accorded under the new framework. I am not sure this goes far enough in recognising the role of such workers in the community. They are far more than service providers. I am concerned that the legislation, in its overweening bureaucratic approach, simply sees bodies providing a service and having an almost commercial relationship with the new executive. This neglects the extraordinary role played by such people in our community.

I am sure voluntary and community groups have been in contact with the Minister of State to communicate their disappointment at not being involved in a more formal way in the formulation of the Bill. Senator O'Meara put it well when she observed that workers in this sector are not just service providers. In particular, they are advocates for the various groups with which they deal. There is a perception that they will not be at the table and in a position to continue the advocacy they have undertaken so effectively in the past.

People in the sector were greatly cheered by the praise they were given by the Minister for Finance, Deputy Cowen, at the end of his Budget Statement. This indicated that their worth was recognised. However, they have been disappointed in their hope to make their voices heard through having an input to amendments to the Bill in regard to the important functions of the board and its various sub-committees.

The voluntary and community sector is not ignored in this Bill. Section 7(5)(a) stipulates that in performing its functions, the executive must have regard to, “services provided by voluntary and other bodies that are similar or ancillary to the services the executive is authorised to provide.” I appreciate the point made by Senators that this relates to service provision in its terms. However, the executive must have regard to these services. That specific statutory recognition is important in the legislation.

Section 7(5)(c) requires the executive to have regard to, “the policies and objectives of the Government or any Minister of the Government to the extent that those policies and objectives may affect or relate to the functions of the executive.” In a sense, therefore, the reference to voluntary and other bodies is put ahead of that relating to the policies and objectives of the Government in regard to the performance of the functions of the executive. The health strategy recognises that co-operation between statutory and voluntary providers facilitates a more responsive approach to meeting needs. This is what is envisaged in the legislation. The Government supports and promotes the voluntary and community sector, as evidenced in this provision.

The executive is required to use its resources in the most beneficial, effective and efficient manner. In endeavouring to do this, it will have to consult with all sectors, including the voluntary and community sector, providing services similar to its own, in an attempt to co-ordinate its work with that of other bodies. This will ensure that the best quality service is provided to the public. The Government is committed to this partnership approach in the health strategy. There is no dispute about this.

Senator Browne's amendment No. 35 proposes that the service plan prepared by the executive must, "have regard to the role played by the community and voluntary sector in the development and provision of health services." Again, this proposal is already encompassed in the provisions of section 7(5)(a).

In preparing the service plan and arriving at a plan which outlines the services it plans to deliver, the executive must consider the services provided by other sectors, including the community and voluntary sector. This allows it to take account of the concerns of other sectors and arrive at arrangements with service providers in those sectors. The final service plan will serve to optimise the services the executive can deliver to the public in any one year. I agree with Senator Henry regarding the importance of advocacy. However, advocacy is recognised as a service in itself and can be funded as part of a service plan.

Senator Browne's amendment No. 44 proposes that, in establishing the national health consultative forum, the Minister, "will have regard to the role played by the community and voluntary sector in the development and provision of health services when considering the remit and composition of the Forum". It is inappropriate to oblige the Minister to consider any one sector when appointing members to the forum. I have no doubt the Minister will look carefully at many of the very qualified individuals in the voluntary and community sector when she comes to make her appointments. However, this is not a matter that can be tied down in legislation.

Amendment No. 45 seeks to oblige the executive to consult with, "local communities, the community and voluntary healthcare and personal social services sectorand other groups about health and personal social services". As I have said, the legislation already provides that the executive must have regard to services provided by voluntary and other bodies. Provisions for consultation are included in Part 8 which deals with public representation and user participation. This applies also to amendment No. 48. The issues raised by Senator Browne's amendments are covered in the legislation.

All the Minister of State's references to the legislation point to services provided by the voluntary and community sector. It is clear that the framework set out in the Bill for the relationship between the executive and that sector is purely in the context of services delivered. I have listened carefully to the Minister of State's response and every point has included reference to services provided. This is clearly the relationship the legislation defines between the executive and the voluntary and community sector. In that regard the amendments tabled by Senator Browne are amendments proposed specifically by the Disability Federation of Ireland, as I am sure the Minister of State is aware. They do not in any way interfere with, alter or undermine what the executive sets out to achieve. However, they ensure the unique role of the voluntary and community sector as an equal partner in the health services, not only in the delivery of the health services but in the initiatives taken particularly in representing its own groups. This legislation does not recognise it as an equal partner in that regard as these amendments seek to do. I appeal to the Minister of State to consider them positively.

Consultative machinery is of course established in the legislation. In addition I reiterate the point I have already made. Services in this context often encompass advocacy. The Department funds a number of organisations in respect of their advocacy services. There is circularity in the conversation the Senator and I are having about this subject. Clearly the anxiety of Senators is that the voices of these organisations should be heard. However, in certain cases the Department of Health and Children through the relevant authorities pays for the voice of such organisations to be heard. This legislation is being introduced in the context of that practice. In this context the word "service" has a very wide meaning and is much wider than the provision of a particular service to a particular person.

Amendment put and declared lost.
Question proposed: "That section 7 stand part of the Bill."

Our earlier discussion was focused on this section. This section on the object and functions of the executive and the one dealing with the plan are the two that give me the greatest cause for concern. I do not get comfort from this section as a good receipt for our €10 billion or €11 billion. We need to know more. What is the deal here? Earlier the Minister of State referred to efficient management. Senator Feeney talked about the importance of consultation. Has anyone noticed that three major trade unions have declared war on the executive before it even starts because of lack of consultation?

This is supposed to represent good management. How can I have confidence in this structure if even before it starts it seems to have got things wrong? I am told that the contract, which exists between every GP and his or her local health authority, is not automatically transferable to the new HSE. Every contract will need to be renegotiated. The Minister of State understands contract law better than anyone in the House. As the GPs' existing contracts are not automatically transferable to the HSE a major renegotiation and consultation will be required, which has not even started. We are two weeks away from D-day on this matter. I cannot have confidence in it.

While I will not rehearse the difficulties in appointing a chief executive, that person in the main will be charged with the delivery of the objectives. While I do not blame the Government for the problems that arise in this matter, a chief executive designate should have been appointed before starting this arrangement. The failure to make such an appointment does not instil confidence.

Section 7 is exceptionally vague. Even accepting the point made by the Minister of State that it is not possible to legislate for every issue that might arise, the Bill contains phrases such as the following:

The object of the Executive is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public.

While I agree with all that, what does it mean? What is different about that from what the health boards are supposed to do at the moment? Why will I get better value for money having it written in this legislation than I got when it was written into previous legislation? More pressure should have been applied, but was not.

We should have spelled out what we want here. Reducing the problems with accident and emergency departments, having more efficient bed management and ensuring the availability of the appropriate number of therapists and specialists in various areas should have been set out as clear objectives. While this would not take from what we require, at least I could say that I knew the areas on which we would spend €10 billion or €11 billion each year. If they were not achieved we would know the executive was not delivering. What will change and where we will get better value for our money and a better service? While that may be a somewhat rhetorical question, it is not rhetorical to ask for section 7 to require the executive to deliver those requirements.

It is implied that we will get a better framework for the staff. There is responsibility towards employees. There is the question of having a better health service for patients. However, how will it happen? What will be different? Where will it start? If we had picked one of the health boards and eliminated the others and had asked it to run the whole country rather than one area, the authority would be centralised, which is one of the main objectives of the legislation. However, nothing would be done differently. I see certain improvements in accountability and ministerial influence, which should always have existed. As discussed, other matters are not included. I cannot see us being in a better position after enactment of this legislation.

The Bill will open the doors to private medicine here. That does not reflect any philosophical position, but is a statement of fact as I see it. While the Government may want to do so I do not see this as a recipe for improvement. Does the Bill address new contracts for consultants or the arrangements for medical personnel at all levels? No requirements are made of them to do specific tasks. While we need not tell them how to go about their business, we need to outline the requirements. I would love to require the executive in its plan to produce a set of objectives with a timeline. Section 7 should outline the objectives we want reflected in the plan. As Senator O'Meara said earlier, it is about having a mission statement in another way with clearly defined objectives. The new health service executive should be required to produce a plan outlining what it will do against each objective and a timeline for each against which we can judge its effectiveness. Otherwise how will we measure it?

I know the Minister of State can point to section 10, which provides that the Minister can do this, which is fine. However, why should the legislation not specify it? This is fundamental enabling legislation. It is not housekeeping, scheduling or something we make up from time to time. This is about having a service available and making certain demands.

The point was made earlier about the lack of specialists in certain areas. In my view it would be better to do that. Why is the Department of Education and Science responsible for medical schools? The fact that it is responsible for education is not a good enough reason. Responsibility for those schools and delivery of medical education should be rooted in the health service.

I look forward to the Minister of State's reply but there are so many things missing from the section, which is vague, that it is difficult to have confidence in it as a way of obtaining recompense for the hard-earned €10 billion we have paid out in taxes.

It is worth noting that the health budget, at €11 billion, accounts for almost 25% of all expenditure. It is huge and members of the public need to know that their money is being well spent. There is grave uncertainty about the Government's handling — one could say it is mishandling — of this issue. At present, there is an interim chief executive in place. Section 7(8) states, "the Executive has all powers necessary or expedient for it to perform its functions." In my view, which the Tánaiste does not share, the decision by the person initially appointed to be the chief executive officer not to take up the post indicates that he believed he would not have the necessary powers to allow him to do his job. The Government faces difficulties in that regard.

The Minister of State used the analogy that he who pays the piper calls the tune. When the tune is out of key, who will take responsibility? Will the blame be placed on the CEO who, in turn, will blame someone else or will the Minister or the Government accept responsibility?

The Minister will not accept it.

I doubt whether the Minister will do so.

It is also worth noting that the members of the management team of the HSE seem to come from banking backgrounds. While I accept this could have certain benefits, it is a matter of concern that some of them came from AIB which has not been attracting the right kind of publicity of late.

They can see around corners in that bank.

People have also been linked with the DIRT inquiry. Members of the public are gravely concerned that there is only an interim CEO in place at present and that members of the management team do not come directly from medical backgrounds. This is far too serious an issue for us to mess it up.

I agree with everything Senator O'Toole stated. Enough thought has not been invested in this Bill which is being rushed through. It appears that a time limit is not being imposed in terms of the transition period.

It has already stretched out to six months.

Will the Minister of State indicate the time limit involved? It is important to know where we are going and when the finishing line will be reached.

I support Senator O'Toole. In my opinion the functions of the health service executive are set out in such vague terms in the section in order to give the board, the CEO and the Minister carte blanche. In other words, anything, everything and nothing can be done. As regards our discussion on an earlier amendment, the definitions section does not define what is meant by a “service”. A definition is supplied in respect of what constitutes a service provider but not a service.

An article appeared in The Irish Times last week which stated:

Plans for radical changes in the way health services are run from January 1st have been postponed, and the heads of the State's health boards will continue to manage services for several months, it was confirmed last night.

The confirmation came from the HSE. Will the Minister of State clarify what will be the position from 1 January on foot of the grave uncertainty that exists?

Negotiations are continuing with the various staff representative institutions. Mr. Phil Flynn has been brought in to facilitate these negotiations which are aimed at addressing and resolving the industrial and staff relations with senior management in the existing health services to which Senator O'Toole referred.

That was after the strike had been called. What had been happening for the past——

The Minister of State to continue, without interruption.

Does it inspire confidence? That is the question.

The negotiations are ongoing.

The legislation does not change doctors' existing contracts, it maintains them. I take it the Senator was referring to some other parallel discussion in that context.

One of the contracting parties is gone. The Minister of State is replacing a contracting party.

Yes. The replacement has been done by what lawyers term "novation", whereby a new party stands in the shoes of a previous party. Under the legislation, the health service executive will stand in the shoes of the relevant health board. There is no question about the termination of contracts. That does not arise.

One of the parties is gone. The Minister of State should speak to the House as a lawyer. I am right and he knows that to be the case.

I am surprised that Senator O'Toole, with his knowledge of employment law, is not well aware of the fact that, on occasion, an employer can be replaced by another employer and that employees can continue working for the latter with the same rights they previously enjoyed. That is a well-established feature of the employment law landscape. It is certainly a feature of the landscape being dealt with in this legislation. I refer the Senator to section 63——

There is nothing in that section which relates to normal contract law under which two people have a contract with each other. It merely lists the different Acts.

The section states:

Every contract, agreement or arrangement made between a specified body and any other person and in force immediately before the establishment day——

(a) continues in force on and after that day,

(b) is to be read and have effect as if the name of the Executive were substituted in the contract, agreement or arrangement for that of the specified body ...

Senator O'Toole stated that the party was going to disappear. However, it makes a reappearance under section 63. The issue he raised is, therefore, addressed by the section which provides for the continuation of contracts.

The Senator correctly raised a more fundamental point about how we are going to obtain better value for money, how we are going to get the desired return on our investment and how section 7 is drafted in such a vague way. I admire Senator O'Toole's enthusiasm. I hope he sustains that enthusiasm and interest. Up to now, he has not been a member of a health board and has not, therefore, been in a position to judge of these matters.

The Senator is a consumer.

On the enactment of the legislation, however, he will, in effect, be a member of a health board because the Houses of the Oireachtas will have functions in respect of the health service executive and the Minister. Committees of the Houses will, as appropriate, be able to summon officers to appear before them in order to question them about matters. Senator O'Toole will note that the provisions relating to accountability provide for the service plan and the annual report. The latter must be submitted to the Houses of the Oireachtas.

I accept that section 7, as is common in any statutory provision or in the objects clause of a limited liability company, is drafted in broad terms. However, it is appropriate to have such a provision in this Bill because we must set out, in general terms, what will be the objective of the executive. It is important that these terms should be as general as possible because if they were too specific, the health service executive might exceed or go beyond the scope of its proper powers and functions.

In such circumstances, therefore, the Parliamentary Counsel has provided for wide objectives for the executive in order that it might, in effect, do anything it desires in respect of the services. The section states that the executive is "to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public". Nobody in the House could disagree with that objective. Equally, however, no lawyer could say that objective does not cover a wide range of functions and powers. That is the purpose of section 7, namely, to give the executive maximum power to deal with what it is being established to deal with.

Senator O'Toole raised a fair question — I do not dispute its validity — about accountability, which is provided for in section 7. The section provides for an executive that will prepare and submit corporate plans to the Minister, for publication of the implementation of the plans, for serviced plans, for amendment of plans and for accountability to these Houses.

Question put and agreed to.

Amendments Nos. 6 to 8, inclusive, and 15 and 24 form a composite proposal and will be taken together.

I move amendment No. 6:

In page 13, between lines 34 and 35, to insert the following new subsection:

"(2) Notwithstanding the terms of any agreement under subsection (1), the Executive and the public authority shall, when requested, provide all information to the Minister in order to enable him or her to furnish a full reply to a parliamentary question.”.

This relates more to the other House but makes an important point about getting a reply to a parliamentary question. We may not know much about parliamentary questions officially but I have seen Deputies submit questions to the Minister for Health and Children and receive a standard reply that the question has been referred to the health board that will in turn furnish a reply in the near future. It can take months for a reply to arrive. Invariably, some people have forgotten the initial query.

There is a major problem accessing data in the health boards at the moment. I hope the new health service executive will look at the ICT systems when it takes over because that would speed up answers to parliamentary questions and might avoid disasters such as the granting of medical cards to those over 70, where the Department completely underestimated the impact this would have and the number of people in the country who were eligible. Will the Minister of State give an assurance that when Deputies ask questions, they will get proper and prompt replies? I urge him to do whatever he can in the Department to ensure the health service executive has the IT resources to make the information readily accessible to the people being asked the question. It is in everyone's interests that this amendment be accepted.

The old health boards had five members from each local authority within the health board area who could ask questions of the chief executive officer of the health board. That has been removed by the Minister. This amendment, therefore, should be accepted. A situation similar to that regarding a nursing home last week cannot arise again. People must get answers if they require them and it is only right that provision should be made for parliamentary questions.

This is like when someone asks questions of the National Roads Authority and never gets a reply because the Minister for the Environment, Heritage and Local Government always says it is a matter for the NRA and that he does not have a function in the matter.

We should also look at the accountability of the executive to the Oireachtas through the Oireachtas Committee on Health and Children. It is obvious that the committee does not have the resources necessary to ensure a body spending €11 billion a year is fully accountable. For the Minister of State to suggest that the board will be held accountable in this way is ridiculous. Unless the legislation contains a statutory provision that the committee would be given the resources it needs to ensure the board is held accountable, it is meaningless. That is regrettable because this is so important. One could think of a range of functions of the executive that a health committee would have to examine. It must also examine the role of the Minister. It is unrealistic to suggest that the Oireachtas Committee on Health and Children could hold the executive and its chief executive accountable in the spending of such a large budget.

These are important amendments. I assume Adjournment debates in the Seanad are equated with parliamentary questions. It is extraordinarily difficult to get information. Almost a year ago, I asked the Minister for Health and Children in an Adjournment debate if he could tell me how many people with mental illness or intellectual incapacity for which there was no suitable treatment or institution here were being sent outside the country for treatment. The Minister said he could not tell me but he would ask the health boards to get in touch with me. Despite having sent a reminder after six months, I have had replies from only three of the health boards to date, almost a year later.

I thank Senator Henry for her intervention because it is an object lesson in why we need this legislation. It was necessary to correspond with 11 different health authorities to elicit this information which the Minister, regrettably, has not been able to obtain for the Senator to date.

The amendments reflect a discussion that took place in the other House and the Minister responded in section 79 of the Bill, which empowers the Minister to make regulations, including regulations relating to the supply by the executive of specified documents or information to Members of either House, and correspondence by the executive with those Members on such other matters as the Minister might consider appropriate. It is important to notice that the terms of the section provide for Members of either House of the Oireachtas to receive information. A parliamentary question can only be tabled in the other House and the Minister has tabled an enabling provision which allows the Minister to draw up regulations providing for the supply of information to Members of either House. It is modelled on the section that was adopted at the time of the abolition of the dual mandate for local government.

That was a farce.

It was a shambles.

We are in a different position because we will be dealing with one authority when the legislation is enacted. The amendment was introduced on Report Stage in the Dáil in response to the amendments that have been reproduced today. I cannot see how Senator Browne's amendments will add anything to the Bill.

There is a technical point that parliamentary questions are not a subject for legislation; they are a matter for the other House in its own Standing Orders but I do not see the advantage of imposing a legal requirement on the executive to provide a Minister with information. Of course, the executive must be directly accountable for its decisions and the Government must obtain that information. Section 79 enables the Minister to make those regulations. Section 10 allows the Minister to issue directions to the executive that can include a direction about information. There is sufficient power in the legislation to deal with the Senator's concerns.

What the Minister of State said is still unclear. Can Deputies in the other House put down a parliamentary question and get an answer about specific matters related to the executive or will an NRA-style situation pertain?

That is a matter for the Chair in the other House. It is not for me to judge. I understand that the legislation will not change the practice that exists in the other House. If a question is asked about a matter pertaining to a health board, for example, the information sought is not given by the Minister and the Deputy is referred to the health board instead. This legislation will not make a difference to the parliamentary practice relating to parliamentary questions. At present, if one asks a question about a matter that is exclusively within the province of a health board, the ministerial reply refers one back to the health board. After this Bill has been enacted, the ministerial reply will refer one back to the health service executive. The only change is that the Minister has introduced regulations which allow the executive to provide information to both Houses of the Oireachtas.

It is allowed to provide information to Members of the Oireachtas.

It is much stronger.

The new position is much stronger than the existing position.

I am not sure.

The section of the Bill that allows the CEO of the executive to appear before the Joint Committee on Health and Children is lovely in theory, but the reality is that we will be doing well if we get him or her to make such an appearance twice a year. The Tánaiste has been due to visit the joint committee twice since she was appointed as Minister for Health and Children, but she has cancelled on both occasions, because of a genuine illness and because she had to take the Health Bill 2004 in the Dáil. That proves that it can be difficult to get people to appear before a committee.

The Tánaiste's comments in the Dáil last week do not inspire confidence. On Committee Stage in the Dáil, she accepted a Fine Gael amendment relating to the accountability of the HSE to the Oireachtas, but she overturned that on Report Stage. She was challenged to give certain assurances by the Labour Party on Report Stage in the Dáil last week. The amendment tabled by the Tánaiste gives the CEO of the HSE the option of not attending the committee, but sending somebody else instead. In response, the Tánaiste said that "the CEO will not nominate any old flunkey to come before an Oireachtas committee" and that "we do not have flunkeys working in the health service".

All the flunkeys are in here.

Such comments do not inspire confidence. I will pursue this amendment because this issue is far too serious not to do so.

Having listened to the Minister of State, I assume there will not be any change from the existing practice. Deputies who submit parliamentary questions on health issues are often told in response that the Minister has no involvement in the matter and that it should be taken up with the health board. We know what they get then. There is a fundamental difference between the existing arrangements and the new arrangements. Under the existing arrangements, at least 14 or 15 public representatives sit on the regional health boards.

That is true.

No such avenue will be open to the public under the new arrangements. Deputies, Senators and councillors used to be able to refer people who approached them to members of the health boards who, as public representatives, were not afraid to ask questions. Under the proposed arrangements, however, nobody will know the members of the executive. That will be a substantial change. Senator Browne's amendment is reasonable because the public will demand answers. There is an onus on the Government and the Members of the Oireachtas, as legislators, to put in place a system under which people will be able to get answers. According to the Minister of State's comments this evening, however, no such avenue will be open to those who are looking for answers. Many charades along the lines of the nursing homes charade that was exposed last week, which could cost the taxpayer €100 million, will develop as the years go by. It behoves the Minister of State to accept the amendment, or an amended form thereof, in order to open an avenue to allow the public to get answers.

That avenue is opened, for the reasons I outlined, in section 8 of the Bill, which enables the Minister to provide by regulation for the furnishing of information by the authority directly to Deputies and Senators. The Minister will get additional powers in that respect. The issue of whether the Minister will have to answer the questions he or she is asked will be a matter for the Chair, as it has always been. The Minister will have the power to compel the authority to provide whatever information he or she wants. All of that is provided for in this legislation. The essentials of accountability in the Houses of the Oireachtas are fully protected in the Bill as it stands. The amendments before the House will not add to the legislation.

As far as I can see, amendment No. 6 proposes to amend the wrong section. If Senator Browne had wished to strengthen the rules governing the replies to parliamentary questions, he should have proposed to amend section 79. People want to know about the new arrangements under this section. Will there be agreements between the executive and the public bodies? This section deals with the new arrangements between the executive and the public bodies. For example, what arrangements will be made with harbour authorities? That is something that baffles me. There may be a need to provide information about the agreements and arrangements which will be put in place. Will they involve public expense? I am not sure the amendment will clarify the matter. I would like to know whether what Senator Browne wants to achieve can be achieved under a different section from that he has proposed to amend. His amendment relates to agreements between the health executive and public bodies.

Amendment put.
The Committee divided: Tá, 15; Níl, 28.

  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Henry, Mary.
  • McCarthy, Michael.
  • McDowell, Derek.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • Phelan, John.
  • Terry, Sheila.


  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Lydon, Donal J.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Browne and Cummins; Níl, Senators Minihan and Moylan.
Amendment declared lost.
Section 8 agreed to.
Amendment No. 7 not moved.
Section 9 agreed to.
Amendment No. 8 not moved.
Question proposed: "That section 10 stand part of the Bill."

Will the Minister of State clarify whether the Minister considered that if the health service executive was not dealing effectively with a regional or local issue he or she would have the power to give directions to the executive to deal with it? For example, if the people in my constituency felt that the executive was not dealing effectively with the provision of health services at Ennis hospital——

That is a good example.

——could the Minister direct the executive to take into account the geographic and physical situation in that constituency to make an investment to ensure that services were provided at the hospital?

The service plan must be submitted to the Minister who must agree with the general policies and can give any direction on them.

If the Minister saw a glaring omission in the service plan in that it did not take into account the particular physical or health issues in a constituency such as mine, could the Minister give directions that those factors be taken into account and investment be made in the hospital?

In connection with comments made by Senator O'Toole and the Minister of State's reply, section 10(2) provides that, "the Minister may issue specific written directions to the Executive...[looking for] any information or statistics relating to the performance of the Executive's functions". That should work both ways. The Government should also lead. One of the fundamental flaws in the Bill is that the Government has not set out clear targets.

I do not expect the Minister of State to reply to this because the matter has already been discussed but while the Minister can also request statistics from the executive, there is an onus on the Government to have clear targets on what it would regard as minimum service. For example, I know two ladies in Carlow who will not be able to see a consultant in Beaumont Hospital until next September. They must wait ten months, which is surely unacceptable. I have also encountered a problem lately where the family of a gentleman involved in a serious car crash has been told that he must wait three to six months to get into the National Rehabilitation Centre in Dún Laoghaire. That is also unacceptable.

There is an onus on the Government to set clear targets. Clear targets are at least something for which to aim but if there is nothing for which to aim and the Government blames every problem on the health service executive we fail in our role as parliamentarians.

Senator Browne did not expect me to reply so I will not address those issues here.

The Minister of State may reply if he wishes.

In response to Senator Daly, section 10 enables the Minister to issue a general written direction on any matter of policy and that may relate to the provision of services in a general way in a particular region or locality. I draw the Senator's attention also to section 32 which provides that after approving a service plan the Minister may direct the executive to submit an amended service plan and may specify in the direction the manner in which the plan is to be amended. Those are very specific powers of amendment vested in the Minister which is not qualified by the word "general".

Question put and agreed to.

Amendments Nos. 9 to 14, inclusive, and No. 17 are related and may be discussed together by agreement.

I move amendment No. 9:

In page 15, subsection (1)(a), line 21, after “appointed” to insert “or elected in accordance with regulations made”.

Section 11 refers to the membership and role of the board. This group of amendments refers to several issues in that connection which I will set out. Amendment No. 9 concerns elections, amendment No. 10 proposes that the chief executive officer should not be part of the board, amendment No. 11 proposes "Election of members of the Board shall include election by panels of professional and staff interests". Amendment No. 12 is not mine, amendment No. 13 deals with conflict of interest and amendment No. 14 deals with gender balance.

The legislation does at least refer to gender balance but our amendment goes somewhat further than the vague aspirations contained in the Bill and makes it specific, which is necessary in light of our experience of appointments to State boards.

The Minister of State will agree it is necessary to be specific rather than having a general aspiration if one is to achieve gender balance.

Senator O'Toole referred to the legislation as quite vague with regard to those appointed to the board. There will be 11 members appointed by the Minister in accordance with section 11, among them the chief executive. There is a case to be made for the chief executive not being a member of the board. This pertains in many cases. The role of the board is the creation of policy and the implementation of policy is the role of the chief executive. I would go either way, but it is worth looking into.

I would like the Minister of State to explain the rationale behind the chief executive being a member of the board. He or she will be a very powerful individual, not only controlling the board and budget of €11 billion but also having an extraordinarily demanding role in overseeing administration of health services and all it demands and requires.

The board is an important panel and will play a significant role. We do not know who will be on the board, although we know who is on the interim board. As Senator Browne pointed out, there is quite a banking influence. What is the Minister of State's vision with regard to the function of the board? It will be too late for us to do anything when the board is appointed, but it will give us an indication. However, I ask the Minister of State to be nice to us since it is Christmas. Perhaps he could give us some indication whether the final board will reflect the make up of the interim board or whether it will reflect a different set of interests. One would expect the big interests in the health sector to be represented, for example, consultants, doctors, nurses and health service workers. Will the voluntary and community sector be represented? Will the board be dominated by bankers or economists, people whose bottom line relates to the figures on the page?

Nobody would argue with the importance and necessity of value of money, efficiency in how it is spent and the elimination, as far as possible, of waste in health service spending. I have been raising a fundamental point since the start of this debate at 3 p.m. today. The mission statement has not been set out in this legislation. In its absence, one wonders how the board will see itself functioning. Can the Minister of State say what the board will look like?

The election of board members is not provided for in the legislation. I ask the Minister of State to consider its inclusion. Senator Browne supplied me with an article by Fintan O'Toole which recently appeared in The Irish Times. In it he refers to an earlier document written in advance of the appointment of the health service executive. It states the Department of Health and Children published a consultants’ report on the process of establishing the HSE. The report stated the HSE would have the confidence of the stakeholders, workers, GPs, etc. Clearly that is not the case at this time.

One way to ensure it happens is set out in amendment No. 11 which states "Election of members of the Board shall include election by panels of professional and staff interests". The issue of election of members to the board should not be ruled out at this stage. The process would include whole sectors which would form part of it. Ministers have talked of a consultation process. What better process than a democratic process of electing members to the board? Not all must be elected. That would entail too large a body of work. However, what prevents professional and staff interests electing members? Such a measure could do nothing but good, and would in no way undermine the functioning of the board.

Amendment No. 12 is straightforward. It asks that details of each person's suitability and expertise be laid before each House of the Oireachtas. European Commissioners recently had to endure intense scrutiny. All state appointments in America go before either the House of Representatives or the Senate, and proposed appointees are placed under immense pressure to explain themselves. I am not advocating such measures, but each person should have his or her details placed before the Houses of the Oireachtas so we can scrutinise them.

Unfortunately, the need arises because of the debacle surrounding the Irish Blood Transfusion Board in Cork where there was difficulty regarding political appointments to the board. The end result was that many people resigned, the board broke up and there was chaos. Apart from the anguish of board members, the ordinary public also suffered. This amendment seeks to avoid such a scenario. It is normal for there to be tension on any board. However, we want to avoid a situation whereby people are appointed purely for political reasons without the necessary expertise to be of benefit to the board or the public. Eleven people will be in charge of a budget of €11 billion. That is a lot of money and it is vital those selected carry out their work and make an input that will be of benefit to all.

It is essential to have something which informs us and the general public of the suitability and expertise of those appointed to the board. The medical profession is disappointed there is no specific provision to appoint one or more members of the profession, particularly since the Department of Health and Children made such an issue of getting consultants involved in clinical and general management. The Irish Nurses Organisation is also disappointed because there were specific seats reserved for it on the boards and this is a big change.

Senator O'Meara's amendment regarding gender balance is preferable to everybody doing the best they can. Considering how things are progressing with regard to the HSE, a few people with expertise in human resources might be the most important requirement.

There are a number of amendments and I will deal with each of them. Senator O'Meara invited me to speculate on membership of the board. It is a matter for the Minister under the legislation, but there will be an element of continuity with the interim board. However, the final decision rests with the Minister.

Amendment No. 9 seeks to allow elections to take place for the appointment of members to the board of the executive. The intent of the amendment is that some members of the board could be appointed by means of elections conducted in accordance with regulations drawn up by the Minister. Appointment of members to the board by means of these elections would be an addition to the provision currently in the Bill which allows members to be appointed by the Minister.

As the Tánaiste said in her Second Stage speech, the purpose of this Bill is to provide for the creation of a unified management structure under a management board. It is not intended that the board be representative, as would be the case if the amendment was accepted. The board will comprise competent, experienced persons drawn from a wide range of backgrounds. The representation of the stakeholders in the system can be dealt with through the national consultative forum, local public representatives and the advisory panel.

Amendment No. 10 seeks to delete a provision of the Bill which provides that the chief executive officer shall be an ex officio member of the board. Senator O’Meara asked me to outline why that was the case. The CEO is a cornerstone of the system being set up and will be an Accounting Officer for public accounts purposes before Dáil Éireann. His or her position as a member of the board is a matter of common sense. It would be advantageous to the board, but not to a board which has a Chinese wall between it and its chief executive officer. It brings the board in line with modern corporate governance, practice and principles. The CEO can bring a particular dimension and perspective to the board given his or her familiarity with operational matters and issues arising for the board that will help it in making decisions.

Amendment No. 11 provides that the elections proposed by the previous amendment shall include elections by panels of professional and staff interests. This would be a cumbersome method of appointing the board. I am not satisfied that electing board members on this basis would achieve the range and mix of skills, expertise and competence required for a broadly based board. However, the amendment is useful because it serves to throw into relief what exactly the board will do. Senators asked how the board will operate after the establishment date.

It is important to bear in mind that the HSE board will be a management rather than a representation board. By accepting this amendment there is a risk that the board will be seen as representational or sectoral in its make-up. The Prospectus report addressed this issue of appointments to the board. It concluded that with over 300 grades of staff in health care, it would be impossible to have a representative system based on professions which would be workable. It is also pointed out that professional representatives tend to examine issues from the perspective of their own profession rather than that of the broader community. For that reason it was decided to set up a management board, appointed by the Minister.

Senator Browne moved an amendment proposing the laying of information about the suitability and expertise of an appointee before the Houses of the Oireachtas. I do not consider that appropriate. Under the provisions of section 11(5) the name of the person appointed to the board is published by way of a notice in Iris Oifigiúil and this is sufficient.

The purpose of amendment No. 13, which relates to financial interests, is to disqualify a person, who is perceived as having a conflict of interest by reason of a substantial financial connection with a commercial interest, from membership of the board of the executive. The Bill contains several safeguards to ensure the proper functioning of the executive's board as well as the maintenance of standards of integrity and conduct and the implementation of the code of governance. That is set out in a different part of the Bill. The intent of this amendment is covered by section 25 under which board members and senior management are subject to the Standards of Public Office Act 2001. Section 17 of that Act in particular deals with the issue of conflicts of interest or material conflicts of interest. That is dealt in that Act, the general legislation covering persons in this position in regard to State boards and positions.

Section 25 of this Bill provides that a code of conduct will be drawn up for employees and advisers who will not be covered by the Standards in Public Office Act. This code will be admissible in any proceedings brought before a court or other tribunal. This legislation together with the ethics in public office legislation and the Standards in Public Office Act 2001 plugs any of those ethical gaps.

Amendment No. 14, moved by Senator O'Meara and supported by Senator Henry, sought to designate 40% of the membership of the board, as a minimum, as men and 40%, as a minimum, as women. It is not appropriate to put a numerical number on the gender balance of the board. The provision is the Bill is the standard one in Bills of this nature which obliges the Government to take into account the need to secure equality.

In amendment No. 17 Senator Browne proposes that the Minister should be obliged to notify the Oireachtas Committee on Health and Children of any alteration to the composition of the board made under this section. The Minister is required to insert a notice in Iris Oifigiúil advising of the membership of the board or of any alteration to the board under the provisions of Schedule 2 which deals with the filling of casual vacancies on the board.

It does not deal with their qualifications.

I dealt with that point earlier. It does not deal with their qualifications, although I am happy to read into the record the qualifications of the members of the interim board, if the Senator is interested.

I thank the Minister of State for setting out in so far as he could what the future board will look like. We have a fair idea of that. He said there will be continuity and the new board will consist of quite a number of the current membership of the interim board.

The new board will be a management rather than a representational board. Is the view of the Minister of State and his Department that a board cannot be both? Could a person representing a professional or staff interest not have a background or an ability in management, or is it the view that management people must have a background in banking, economics or business? We are beginning to see what the new board will look like.

In regard to the CEO being an ex officio member of the board, the board is to be the governing body. Is there not a case to be made for the board having a supervisory role in regard to the CEO, or is that not the case? The board does not have a supervisory role in regard to the CEO.

Would it not make sense that the board would sit as a board and that the CEO would report to it, if the board is to carry out that supervisory function to the best possible extent? If, however, the CEO is part of the board, that could dilute or even undermine that possibility. If a function of the board is to supervise the CEO and that is the way it should be, how best does one carry that out? It would be better carried out if the CEO was not a member of the board and the board had its own dynamic and way of doing things.

In regard to the general balance of the board, I am not surprised by what the Minister said about the standard section. We can note what the standard section is producing or not producing. This vague objective is not achieving gender balance to which the Government states it aspires. Provision in this regard needs a more specific section. The amendment speaks for itself.

It is Government policy to secure the maximum number of appointments of persons of different gender.

The chief executive is responsible under section 18 to the board. That is not compromised in any way by making the chief executive a member of the board because he or she will have to be present to report to the board and put it in the picture in regard to any particular matter.

Will the board be able to meet without the CEO?

In general, no, not under this legislation, which is not to say that there may not be legal advice given to the board in certain extreme circumstances where it might be required to do so.

In the event of the CEO being incapacitated for whatever reason, has he or she power to designate his or her authority to another member of the board?

He or she can appoint a deputy.

I will not pursue my amendments, given that Report Stage will be taken on Thursday and I wish to facilitate the debate.

Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.

I move amendment No. 12:

In page 15, subsection (2), line 30, after "functions" to insert ", and the details of each person's suitability and expertise have been laid before each House of the Oireachtas".

Amendment put and declared lost.
Amendment No. 13 not moved.

I move amendment No. 14:

In page 15, lines 39 to 41, to delete subsection (4) and substitute the following new subsection:

"(4) Not less than 40 per cent of members of the Board shall be men and not less than 40 per cent shall be women."

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 11 agreed to.
Amendment No. 15 not moved.
Section 12 agreed to.

I move amendment No. 16:

In page 16, after line 42, to insert the following new subsections:

"(3) A member who does not attend a meeting of the Board shall within three days of non-attendance, submit to the Minister in writing, the reasons for that non-attendance.

(4) A member shall cease to hold office if the Minister is satisfied that due to absence, a member cannot continue to discharge their duty.".

One word that is absent from this section, if the House will excuse the pun, is "absence". The Bill specifies, somewhat vaguely at times, that the Minister may at any time remove any appointed member from office under certain conditions. It does not refer to cases were a member regularly fails to attend board meetings. My amendment provides that a member who cannot attend should notify the Minister within three days of the reason he or she was unable to attend. It also provides that the member shall cease to hold office if the Minister is satisfied that due to absence, the member cannot continue to discharge his or her duty.

I am not sure how often the board will meet. However, there are only 11 people deciding a huge budget. Ideally they should not miss any meetings, although that happens from time to time. They need to be fully up to date and briefed on what is happening. If members are not attending meetings, bad decisions could be made and the public would suffer as a result. The issue of absence of board members should be addressed. I hope the Minister of State will accept this amendment.

I regret I cannot accept the amendment, though I accept the motivation behind it. I do not consider it necessary that a member of the board should be required to inform the Minister of the reasons for his or her non-attendance at a board meeting. The members appointed to the board will be persons who have a responsible attitude to their role. There may be occasions where an unexpected event occurs and a board member will be unable to attend a meeting. I do not believe the member should be required to write a note to the Minister to explain his or her absence. The quorum for a board meeting has been set at five. We consider this to be the minimum number of members necessary to have a meeting.

Subsection (1)(a) of section 13 enables the Minister to remove an appointed member of the board if he or she is of the opinion that the member has become incapable, because of ill health, of satisfactorily fulfilling the role to which he or she was appointed. In addition, section 13(3) stipulates that a member of the board who fails to attend a meeting of the executive for six months ceases to hold office unless the member can satisfy the Minister that the failure to attend was due to illness. These are protections written into the legislation which address in part the concerns raised by Senator Browne.

I do not accept the Minister of State's reply on that issue. The Minister mentioned that the quorum is set at five. If an important decision is voted on by all 11 members present at a meeting and there are six for and five against, it would be hard to stomach but people would accept it. If six members were absent and only five voted on an issue and the outcome was three versus two, there would be public outrage if it was a decision that could have a significant impact in a different part of the country.

The danger is that absenteeism could result in very unusual and improper decisions. If the full board is present the issues will be properly debated and, perhaps, voted on. Although the example I give is an extreme one, it would not be satisfactory if only the bare minimum of the board were to make important decisions. That would be a disaster and would make a mockery of the whole set up.

Regarding absence, the Minister referred to the six-month rule. Can he clarify how many meetings a member would miss in a six-month period?

The board must meet at least 11 times a year. The board also has power to lay down rules and regulations regarding presence and absence. It is normal on any body to have such rules. In all corporate practice there is a fundamental distinction between a person missing a meeting and being absent and a person being excused for non-attendance. I do not believe the amendment reflects that fact.

Regarding the more fundamental point on the quorum, I could postulate contingencies which might appeal to the Senators where they would be very glad that the quorum is fixed at five. For example, if the health service executive was anxious to make further provision for what is already an excellent Caredoc service in Carlow or provide an extension of the services at Nenagh Hospital, and was advised by the chief executive that an urgent decision was required and it was impossible to assemble more than five members of the board to make this decision, I am certain the Senators would welcome the fact that the quorum was fixed at five. A quorum is a basic legal requirement. It is a minimum, not a maximum. It is envisaged that the board will work as a board with the collective wisdom and intelligence of its members. To legislate for a universal attendance at every meeting is not something we as sensible legislators should do.

I accept the Minister of State's point. I do not expect there would be full attendance at every board meeting. For an urgent decision it might not be possible to have everyone in attendance, and an attendance of five would be fine in that case. However, on a vital or very important issue, where a cutback in an area is being announced, it is vital for everyone concerned to have as near to a full board attendance as possible.

In the case of a member being absent who wishes to have his or her vote recorded on an issue, for example, a member who is in hospital, is there any facility for proxy voting?

There is no facility for proxy voting.

A member must be present at all board meetings in order to cast a vote and there is no postal voting.

Amendment put and declared lost.
Section 13 agreed to.
Amendment No. 17 not moved.
Section 14 agreed to.
Amendments Nos. 18 to 21, inclusive, not moved.
Section 15 agreed to.
Sections 16 to 19, inclusive, agreed to.

I move amendment No. 22:

In page 21, line 6, after "1998" to insert "and provision shall be made to ensure that a detailed breakdown of the estimates of expenditure are available for scrutiny by the Committee of Public Accounts of Dáil Éireann".

This amendment relates to the chief executive being the Accounting Officer. The Minister referred to this in the context of an earlier amendment. The amendment is self-explanatory. Its purpose is to ensure that a detailed breakdown of the estimates of expenditure are available for scrutiny by the Committee of Public Accounts. The Minister said already that the CEO is accountable and must come before the committee. However, this amendment is an important clarifying measure and would ensure full transparency and accountability. It would also be a great support not only to members of the Committee of Public Accounts but to all Members of both Houses to have that detail available.

I heard that the Committee of Public Accounts had some difficulty with the Health Bill. I contacted the Comptroller and Auditor General's office on the matter. Is it the case that a Minister cannot be brought before the Committee of Public Accounts but that it can call the Secretary General of a Department?

As Senator Browne indicated, it is the practice to call the Accounting Officer before the relevant committee, not the Minister. In the administration of any Department an Accounting Officer can disagree with a Minister and can refuse to sanction a payment which the Minister requests. That is the nature of the safeguard inserted in our public accounting system so that a Minister of the day can request a particular payment be made or sanction be sought for particular expenditure. The Accounting Officer can simply refuse this and tell the Minister that he or she is accountable to the Committee of Public Accounts in regard to a matter and cannot sanction the expenditure. This is a well established feature of our constitutional system.

The amendment tabled by Senator O'Meara raises the interesting question of the new position of the chief executive as an Accounting Officer. The point is that the health service executive will now have its own Vote in the Estimates volume. The accountability structure for a body with its own Vote is already set out in other legislation beginning with the Comptroller and Auditor General Acts 1866-1998, the annual Appropriation Acts and the rules and procedures of the Committee of Public Accounts.

Section 20 makes the chief executive officer the Accounting Officer for the appropriation accounts for the purposes of the Comptroller and Auditor General legislation. The chief executive officer is, therefore, required to appear before the Committee of Public Accounts in his or her role as Accounting Officer. The title "Accounting Officer" is defined in the Comptroller and Auditor General Act 1993 as the officer referred to in the 1866 legislation to whom the duty of preparing the appropriation accounts of a Department is assigned. Appropriation accounts are accounts for the money voted by the Dáil for the supply of services.

The role of the Accounting Officer is central to the system of accountability for public money. It is part of a long established system dating back to reforms introduced in the United Kingdom in the 19th century. It is designed to ensure an open and transparent system for scrutinising the manner in which funds are used, having regard to the principles of regularity and propriety and, in more recent times, the criterion of value for money.

The key element in the accountability framework is the Committee of Public Accounts. This committee undertakes the scrutiny of public funds and reports to Dáil Éireann. This scrutiny by the committee is based on audits and examinations carried out by the Comptroller and Auditor General. The Accounting Officer is personally responsible for the regularity and propriety of the transactions in the accounts for which he or she is answerable, the control of the assets held by the Department or, in this case, the executive, the economy and efficiency in the use of the resources and the systems, practices and procedures used to evaluate the effectiveness of its operations.

The concentration of responsibility in one individual differs from arrangements in the private commercial sector where responsibility normally rests with the board. The Accounting Officer system is unusual in that while being accountable as Secretary General to the Minister for managing his or her Department and for other duties, the Accounting Officer is personally answerable to the Committee of Public Accounts in regard to regularity, propriety and value for money. The Accounting Officer appears before that committee in his or her own right, not as the representative of the Minister.

In the case of the health service executive, the relationship between a Secretary General and Minister would be replicated by the relationship between a chief executive officer and the board of the executive. While the board can instruct the chief executive officer as to what to do in regard to particular matters of policy, with regard to regularity of financial matters the chief executive officer will have a unique statutory responsibility which will be supervised by the Committee of Public Accounts.

Amendment, by leave, withdrawn.
Section 20 agreed to.

I move amendment No. 23:

In page 21, lines 41 to 44, to delete subsection (9).

The section is extraordinary and unprecedented. Subsection (9) states: "In carrying out duties under this section, the chief executive officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy." This is draconian. Why is it necessary? Why would a chief executive officer be silenced?

I must support the amendment. If the complaint was in the public interest, it would be essential that a medical practitioner under his or her code of ethics would have to object. The subsection strikes me as vaguely ridiculous.

Senators are so used to the civilised nature of the discourse in this Chamber and the fact that controversies over Government policy do not populate their benches-——

Not while the Minister of State is present.

——they sometimes forget there is another House. The subsection is located in a general section dealing with the attendance of the chief executive officer before Oireachtas committees. It is in that context that the subsection is enacted. Senators will notice that subsection (9) begins with the words: "In carrying out duties under this section." It is not an attempt to prohibit or censor the chief executive in any way but to delineate the position of the chief executive officer when he or she appears before an Oireachtas committee.

If one were to accept the amendment and delete the provision, the Oireachtas Joint Committee on Health and Children would be free to ask the chief executive officer about matters of policy and his or her agreement or disagreement with it, and he or she would be obliged to answer. Matters of policy are properly the domain of Ministers and the Government. It would not be appropriate for a representative of the executive to comment on policy matters. To ask a chief executive officer such a question would compromise his or her ability to properly serve the elected Government of the day and would also compromise the ability of the Government to have a working relationship with the chief executive officer, who has a pivotal role under this legislation in the planning and execution of policy in regard to health matters. This type of provision is standard in legislation setting up commercial semi-State bodies.

I thank the Minister for his reply. I understand that the Government of the day would want the kind of relationship with a chief executive officer that meant he or she would not give out or openly disagree with Government policy at an Oireachtas committee. I assume a chief executive officer would not take a job of this nature unless he or she was happy to be in broad agreement with Government policy or, in other words, to carry out his or her duties and functions.

He or she should be happy to carry out the job.

I do not understand why it is necessary to include this draconian subsection. It amounts to censorship.

Perhaps this is why Professor Halligan did not come.

Perhaps it is why Professor Halligan did not want the job.

Amendment put and declared lost.
Amendment No. 24 not moved.
Section 21 agreed to.

I move amendment No. 25:

In page 22, before section 22, but in Part IV of the Bill, to insert the following new section:

22.—(1) Whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, the chief executive officer of the Executive shall give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General that the director general is required by this Act to prepare,

(b) the economy and efficiency of the Executive in the use of its resources,

(c) the systems, procedures and practices employed by the Executive for evaluating the effectiveness of its operations, and

(d) any matter affecting the Executive referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act, 1993, or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) When performing duties under this section, the chief executive officer referred to in subsection (1) shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.”.

In light of the Minister's comprehensive reply on a previous amendment, I withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 22 stand part of the Bill."

Are the superannuation contracts of consultants appointed under Comhairle nan-Ospidéal preserved under this section? Section 63 makes it seem that way but I wish to make sure.

Yes, they are preserved under the relevant section.

Question put and agreed to.
Section 23 agreed to.

As it is now 6 o'clock, I am required to put the following question to the House: "That sections 24 to 80, inclusive, Schedules 1 to 7, inclusive, and the Title are hereby agreed to in Committee, and the Bill is reported to the House without amendment."

Question put.
The Committee divided: Tá, 26; Níl, 16.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Lydon, Donal J.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McDowell, Derek.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • Phelan, John.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Browne and Cummins.
Question declared carried.
Report Stage ordered for Thursday, 16 December 2004.