Health Bill 2004: Report and Final Stages.

Before we commence, I remind Senators that a Senator may speak only once on a Report Stage amendment, except the proposer of the amendment who may reply to the discussion thereon. In addition, on Report Stage each amendment must be seconded.

I move amendment No. 1:

In page 12, between lines 19 and 20, to insert the following:

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.".

I welcome the Minister of State, Deputy Brian Lenihan, back to the House for the continuing saga. What we are at here is effectively a talking exercise because nothing we say can effect any change in the legislation. While it is worthwhile to have the debate in the context of the amendments put forward and to articulate our views for the record, we can have no impact in terms of amending the legislation. This is a pity. The legislation is rushed and the Minister is determined to have it on the Statute Book by 1 January, even though she has admitted that it will not be possible to implement the new structure on that date and that existing senior personnel will remain in place for a time. This is not the way to run a health service.

During debate on Committee Stage last Tuesday I quoted from an article by Fintan O'Toole inThe Irish Times which rightly stated this was no way to start a health revolution and that the Bill represents the most radical overhaul of the governance of our health service since the foundation of the State. In that regard the legislation requires much more time for consideration than we have allowed. It also requires the Tánaiste and her Department to be far more open to the views expressed by the Opposition. We speak on behalf of many groups of service users and providers who have had a seat at the table in the past but who now do not have the same access to the system. These groups play a vital partnership role in the monolith that is the Irish health service. In that regard we are not doing this legislation much service and we are not giving it the consideration it needs. As Senator Henry and others have said, I believe we will need to amend the legislation in the future, which should not be our purpose.

Amendment No. 1 is the same as an amendment I moved on Committee Stage. I resubmitted it as it addresses a fundamental cornerstone of the legislation and encapsulates one of the most serious shortcomings of the Bill, which is the failure to set out a mission statement outlining the direction the new health service executive should take. We probably all have a view on how the executive should run the health service, which is fine. However, there is no mechanism whereby we can make such an input. This means, for example, that we will be unable to do anything if we as legislators consider the executive is taking a point of view we believe not to be in the public interest. While the legislation makes provision for the executive to appear before the Oireachtas Joint Committee on Health and Children, no framework is specified to require it to operate in a particular way, which is the sole prerogative of the Minister. The Minister will direct the executive and it is clear that if it does not do as it is told, it will be gone. The legislation gives the Minister that power for a particular reason.

The health service executive is based on a centralised structure which runs contrary to the ethic of partnership that has underpinned the vision of successive governments in recent years and has allowed the voluntary and community sector, service users and providers, not just in the health area but in a very wide context, to play a role. We have seen how well this works for the country in the context of the National Economic and Social Forum, the partnership agreements, etc. Excluding the notion of partnership from this structure marks a departure from a policy that works and it is a pity for it to be absent. Partnership enhances the work of those framework organisations and has helped ensure things get done well. Its absence is more than a pity and will mean the health service executive will lack something that would enhance its work.

The remarks of the Minister of State on Tuesday on other Committee Stage amendments have made it clear that the kind of board we can expect to see will be very much along the lines of the interim board. It will have a very strong management and, as others have said, banking element. It is not clear whether representative organisations will have a presence; it is totally at the whim of the Minister. It will be interesting to see how it turns out, although as the Minister of State has said, we have a fair idea already.

I hope the Minister of State will not come back to me with the same sterile argument about entitlement and eligibility. My amendment is clear and would set out in the legislation the kind of vision the health service executive should have. We have framed the amendment in a broad and flexible way because we are not in the business of tying the hands of the executive. We want to ensure the individual entitlement to such health services and personal social services as are appropriate to meet individual needs would be enshrined in the legislation, which we consider very important. While we do not suggest the executive will not achieve this, we have no guarantee it will happen in the absence of it being specified in the legislation. In the same way, we have no guarantee that other considerations, such as value for money, will not take priority. While value for money is very important we believe the individual entitlement to health services and personal social services to meet individual needs are of paramount importance.

For more than ten years we have had a debate about rights-based legislation for the disability sector. The debate on how legislation should enshrine a rights-based approach started when Mervyn Taylor was Minister for Equality and Law Reform. Without such legislation, it will not happen. We know that unless we enshrine a rights-based approach in legislation all the pious waffle in the world and the aspirations of Ministers will get us nowhere. The system as established is not rights-based. Although in some contexts it has developed a partnership approach with service users and providers it could easily slip back into the old way of doing things, which is one of my biggest concerns.

Without this kind of mission statement and having this entitlement stated in the legislation, whole sectors, which have struggled for years and have finally begun to be treated as partners, would find that their entitlement to be treated as partners simply does not exist. Without it being specified in the legislation, they cannot ensure it will happen. As I said on Committee Stage, the health service executive will regard them in a semi-commercial sense as being service providers and not being partners in a broader sense in terms of their input and ideas for initiatives, etc. We know the resistance that exists in the system to having a rights-based approach. However, without it we are banging our heads against a brick wall. It would be a move backwards.

I second the amendment. Like Senator O'Meara I am alarmed at the way the Bill is being rushed through the House. Ultimately, it will be of no help to the Government. If mistakes are found after a Bill is taken properly with every section considered, we can all be blamed for not spotting mistakes. In this case less than a quarter of the Bill has been considered.

I am very disappointed with many parts of the Bill that we have been unable to address because of the lack of time. Representatives of the medical profession have made representations to me regarding, for example, the lack of clarity over the functions of the medical officer of health. The Bill does not take cognisance of the fact that this will not be a 24-hours-a-day job, which is very basic.

Considerable concern has been expressed over the complaints system regarding matters that are not solely for the exercise of clinical judgment. It is felt that it would be better to exclude anything that involved clinical judgment from the general complaints system. The systems proposed in the Bill could conflict with the way the Medical Council deals with complaints against the profession. They could also conflict with the advice given by Comhairle in its recently published guide regarding where to complain. It suggests complaints regarding mental health should be made to the mental health commission and complaints about health services should be made to the health boards, which of course, will be transferred to the health service executive. So many of the matters about which people are told to complain will be covered under the Health Bill that it causes me to wonder if they were given any consideration.

The complaints procedure will give rise to a great deal of confusion. It has been suggested that the fact that carers will be able to complain may cause problems. Carers may change or they may not be looking after someone for a long period and may make a complaint. Cohabitees may also make complaints. I have no difficulty with this but how will it tie in with the fact that cohabitees cannot be considered as next of kin by hospitals? Dreadful confusion could arise. This is a common and serious problem. We could have dealt with the confusion that might arise if we had given the Bill proper consideration.

I understand the basis on which the amendment was put forward because eligibility criteria can be changed at any time. For example, the eligibility criteria for medical cards were changed recently. That is fine, except that no one knows how many additional people this change will involve. When eligibility was extended to those over 70 years of age it was estimated that this would affect between 30,000 to 35,000 people. As it turned out, almost 70,000 people were affected.

We are increasing the number of people eligible for medical cards, for visits to their doctors only, in the Bill but we do not know how many this will involve. We do not know, therefore, if adequate primary care facilities will be available for these individuals. They will not have a right to treatment so I presume they will have to join the queue and wait. That is entirely unsatisfactory.

That we did not consider the Bill properly to ensure that we knew what we were talking about in terms of each section and schedule will come back to haunt us. I have great pleasure in seconding the amendment.

I thank Senators O'Meara and Browne for tabling a number of amendments which will enable Seanad Éireann to perform a role in the critical evaluation of this legislation. I appreciate that they did not resort to the common device of resubmitting their entire selection of Committee Stage amendments. We will, therefore, at least be able to examine, perhaps in a somewhat cursory way, the fundamental features of the Bill in detail.

As regards the amendment, I wish to reiterate what I said on Committee Stage regarding eligibility. It is important that Senators should be under no illusions about the fact that we have a rights-based approach in the administration of our health service. Statutory rights have been codified and developed in health legislation over the decades. That legislation confers on patients rights in respect of the general medical service and also with regard to hospital treatment. It is not the case that we do not have a rights-based approach in respect of our health service. We may argue as to the detail and whether a sufficient number of rights exist. In light of the fact that we have a service which encompasses so much provision in financial terms and also in basic terms in respect of the care and treatment of individuals, it is clear that the delineation with precision of rights is important. The latter is covered in the health legislation.

Article 36 of the health strategy recommends that legislation should be introduced to simplify and clarify the eligibility system within the health service. In accordance with this, the Department is reviewing the legislation to update and rationalise the framework for entitlement to health and personal and social services. The type of amendment the Senator is seeking to introduce here would be far more appropriate in terms of amending the legislation to which I refer. That is all I have to say about the merits of the amendment.

As regards the more general issues Senator O'Meara raised, the consultation process on the reform programme has been under way for 18 months. Time does not stand still. The Houses have a responsibility to take action in an area in respect of which there has been a focused public debate. Participation in that debate has been extensive throughout the sector. This is as it should be, particularly in light of the large number of employees in that sector. The Government has taken the view that we must expedite the process.

The Senator referred to the subject of a mission statement. Mission statements are matters for corporate plans, they are not really matters for legislation. This Bill is practical in nature and if it has a mission statement, it is that it seeks to ensure a more efficient and rational management of our health and personal social services. That is a matter which commands substantial public support.

Senator Henry also raised a number of matters and there is one matter on which I wish to provide her with some reassurance. The Senator expressed concern about the position of medical officers on the enactment of the legislation. I draw her attention to Schedule 5.4(3) which makes express provision for the continuation of authority to perform functions of medical officers. It states:

Any function under the Health Acts 1947 to 1953 of a medical officer of health may be performed on and after the establishment day by an appropriately qualified medical practitioner who is an employee of the Executive and is designated in writing by it to perform such function.

Continuity of the work done by medical officers is, therefore, expressly provided for in the legislation.

The Senator is correct that the complaints procedure is new. However, it builds on existing practices and is separate from the professional regulation for which the Medical Council is responsible and which is catered for under the legislation relating to medical practitioners. The complaints procedures included in the Bill are entirely distinct from that statutory procedure with which I am sure — I do not mean this in any derogatory sense — the Senator is familiar. What is being established in the Bill is a codification of practices developed over time by the health boards in respect of the handling of complaints. In my view it is a positive development that we are providing that right, on a statutory basis, to individuals who might be dissatisfied with some element of the——

It seems to be a doubling up of complaints against doctors.

When we come to deal with the relevant part of the Bill we may have time to consider the matter in further detail. All professional persons are aware that they can be subject to complaints at any time. However, it is for the protection of doctors and individuals making complaints that what is dealt with as a matter of practice at present will be placed on a proper statutory footing. This complaints mechanism is entirely distinct from the issue of professional regulation by the Medical Council. Issues of clinical judgment are expressly excluded under the complaints procedure.

On a point of clarification, I am familiar with Schedule 5.4 but the provision therein is not very clear. The Bill states that complaints, if they solely relate to clinical judgment, will be excluded. However, there is a feeling abroad that matters relating in any way to the exercise of clinical judgment should be excluded.

We have probably exhausted the debate on this matter and we know where we stand in respect of it. The Minister of State indicated that issuing a mission statement will be the responsibility of the board. He will be aware, however, that if something is not set down in legislation, there is no guarantee it will happen. He stated that people's rights have been codified in existing health legislation. However, this has not prevented situations arising where individuals have not been able to access the services they require. As a result, groups such as the Disability Federation of Ireland have been obliged to develop a major lobby in order to ensure that the concerns of those they represent are heard.

A great deal of lip service is paid to the work done by the community and voluntary sector. In that context, the Minister of State referred to the Government's position as outlined in the health strategy, etc. In a submission I received, which I am sure the Minister of State has seen, entitled Critique of, and Proposed Amendments to the Health Bill (2004), a joint position paper by The Wheel, the organisation of the voluntary and community sector, and the Disability Federation of Ireland, it is noted that the Government recognised in the White Paper Supporting Voluntary Activity published in 2000 that the community and voluntary sector is an essential and enhancing partner in economic and social development. This legislation, however, does not recognise that partnership. It will be difficult, therefore, for the sector to become involved. The executive would have to be proactive in the area and if it is not in the legislation, why would it bother? The Minister said the executive will be management-driven rather than representational.

We have not reached the point where an individual has an entitlement to the service he or she needs, although we have come far and €11 billion is being spent on the health service. A major problem, however, is the continuing struggle people face to get what they need, particularly families who have a member with a disability. They face an ongoing struggle to secure the services and the assistance they need for a child with a disability, be it physical or intellectual. It cannot be said, therefore, that individual entitlement, as it is set down now, is the same as getting it and I am seriously concerned about this. This should be a cornerstone of the legislation but is missing.

Senator O'Meara dwelled primarily on the mission statement. The mission statement is clear if we look at the Long Title of the Bill — it is to rationalise the management of the legislation. We may err in thinking this Bill is doing more than it can. Fundamentally, we are establishing a single authority known as the health service executive to manage health and personal social services. That is the core issue. Of course, the provision of health and personal social services in Ireland can be the subject of many different views and perspectives but the core issue in this legislation is the establishment of that single authority and the dissolution of a number of bodies which hitherto have managed our health services and their replacement with this single body. That is the great enterprise in the Bill. I appreciate Senators' concern about how this will work out in practice but that is the fundamental decision that has been made by the Government and the legislation seeks to implement that decision.

Amendment put.
The Seanad divided: Tá, 17; Níl, 31.

  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • O’Toole, Joe.
  • Quinn, Feargal.
  • Ryan, Brendan.

Níl

  • Bohan, Eddie.
  • 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.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Ross, Shane.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Henry and O’Meara; Níl, Senators Minihan and Moylan.
Amendment declared lost.

I move amendment No. 2:

In page 22, between lines 14 and 15, to insert the following:

"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.”.

How many times can I speak on Report Stage?

The Senator can speak when proposing his amendment and he can reply at a later stage.

I thought I was allowed to speak just once. The amendment seeks to clarify further the function and role of a person appearing before the Joint Committee on Health and Children. The Bill, as it stands, is quite vague in this regard. The amendment, which clearly states the matters that can be examined by the committee, has been proposed in the interests of full accountability, which should be one of the cornerstones of the Bill. That is one of the difficulties we have. The amendment seeks to ensure that proper questions can be asked and proper answers will be received when representatives of the health service executive attend a meeting of the joint committee. The people in question should be aware of the matters on which they can be questioned and the committee should know what matters it can cover.

I second the amendment. As Senator Browne said, this matter is one of the cornerstones of the legislation. While the amendment's list of issues which will be allowed to be discussed is not full and comprehensive, many important issues, such as accountability, are mentioned therein. The amendment clarifies that the executive will be accountable to the committee and mentions the structures that will be put in place to ensure it is accountable. The Tánaiste spoke about the role of the Joint Committee on Health and Children on Second Stage last week in the Seanad. As Senator Browne said, the legislation is quite vague in this regard, which is not good enough. The issue of accountability is of such importance that it should be dealt with in the Bill more specifically. When one examines previous attempts to ensure accountability over the past ten or 15 years — I refer to tribunals, etc. — one would think we should bend over backwards to get it right.

We should ensure that the legislation is framed in a way that does not place a question mark over the ability of any committee to make a body of this nature accountable. When one considers the size of the health service executive's budget and the level of control it will have over the health service, one understands the importance of accountability. Like Senator Henry, I will not be surprised if we have to revisit this matter because it is one of the fundamental weaknesses of the legislation. That we are not considering the legislation as fully as we should represents, in itself, a major failure in our legislative process. Will the Minister of State consider accepting this amendment, which concerns one of the cornerstones of the legislation?

I support the amendment. The executive will have a staggering budget of €11 billion. Although Senators know there are many developments taking place in the health sector, they constantly ask where the money is going. When I looked at the details we received to date on the mental health services, for example, I could not fully work out where the money allocated to that sector was going. It seems that some of it will be allocated to the national hospitals office and more to the primary, community and continuing care section. There seem to be very few references in the legislation to the person who will be in charge of all the moneys. Some is to be spent here and more is to be spent there. The more accountability we have, the better, because management in some systems is very fragmented. In the mental health services, in which I have been involved for years, nobody seems to be identifying who will be in charge of the various parts of the system.

Under this section, accountability relates to accountability to the Committee of Public Accounts, established for the purpose of examining public accounts. Section 20 states: "The chief executive officer is the accounting officer in relation to the appropriation accounts of the Executive for the purposes of the Comptroller and Auditor General Acts 1866 to 1998." The decision of the Government to so provide is the most fundamental feature of the Bill. Senator Henry rightly pointed to the expenditure on the health and social services, which represents a very substantial portion of the gross domestic product of the State.

The chief executive officer will attend meetings of the Committee of Public Accounts and hold himself or herself responsible for expenditure in this entire area. That represents a very fundamental change in this legislation. The Accounting Officer, rather than the Secretary General of the Department, will be the chief executive officer of the executive. This imposes discipline on the chief executive, which discipline is codified and set out in the Comptroller and Auditor General Acts 1866 to 1998. The Oireachtas, in enacting section 20, will include the chief executive officer into that well-established framework.

While I understand the motivation of Senator Browne, who moved this amendment, and of the other Senators who spoke thereon, my advice from the Attorney General is that it is not legally necessary. Once we include in section 20 the basic provision that the chief executive officer is the Accounting Officer, this will invoke the relevant sections of the Comptroller and Auditor General Acts. The advice we received from the Attorney General is that by designating the chief executive officer as an Accounting Officer, he or she will be obliged to attend a meeting of the Committee of Public Accounts. Given that the discipline of an Accounting Officer is so well established in our administrative practice and that the legal responsibilities are spelt out with great clarity, it is unnecessary and would be confusing to insert a further section in the Bill spelling out his or her duties. The functions of the Accounting Officer of the executive are no different from those of any other Accounting Officer in the public service, therefore, I am not prepared to accept the amendment even though I understand the spirit in which it was moved. I assure Senator Browne that his proposal is accounted for in the other Acts to which I referred.

Amendment put and declared lost.

I move amendment No. 3:

In page 23, between lines 37 and 38, to insert the following:

"(3) On or before 31 January each year, the Executive shall lay before each House of the Oireachtas details of the advisers engaged or consulted during the preceding year along with details of the amount payable to such advisers.".

This amendment arises from a recent announcement by the Minister for Health and Children that her predecessor spent €30 million on 120 reports. This figure is set to rise as the full figures are not yet available. A considerable amount of taxpayers' money was wasted under the previous Minister, as is evident from the fact that many of the reports he commissioned were never seen again after their being issued. It is even the case that reports were produced on reports, which would be comical if it were not so serious.

My amendment seeks that, "On or before 31 January each year, the executive shall lay before each House of the Oireachtas details of the advisers engaged or consulted during the preceding year along with details of the amount payable to such advisers." This is justifiable because the money payable is public money. We recently heard that an adviser to a different Department was being paid €1,200 per day, which is even more than the Taoiseach earns. One cannot blame the public for being uneasy and concerned about this. It is regrettable that the former Minister for Health and Children did not release information on the amounts payable to advisers — it took the new Minster to do so. This amendment is to prevent this from happening in the future.

I second the amendment. The appointment of advisers and money spent on writing or publicising reports are issues that have exercised the media. This in itself is not a sufficient reason for us to get too worked up about them but we should note that the public is naturally concerned about them because the money being spent is taxpayers' money. I have no difficulty with Ministers commissioning reports — this is an important function — but they sometimes do so to excess. Reports are fine as initial components of specific action plans, which in turn result in decisions being made. One would expect that a Minister would consider a matter by way of commissioning a report before drawing up an action plan.

The former Minister seems to have been a past master at producing reports and setting up sub-committees to produce them. While the public is in favour of consultation and notes that it is very important to avail of existing and newly emerging expertise, it must be asked how much is being spent on this process. Amendment No. 3 is useful in this regard. It may be possible to obtain the required information through parliamentary questions and freedom of information requests but, considering the size of the executive's budget and the restrictions on freedom of information imposed by legislation, it is all the more important to accept the amendment.

The amendment is very important. It would be advisable to provide that the Minister must state why advisers are engaged. Frequently, one considers the advice given by external advisers and wonders whether an official in the Department could not have done the job just as well.

As I understand it, Opposition Senators are critical that too many reports were commissioned by the former Minister. It is not so much that he is being found culpable of the engagement of advisers but that he is being found culpable of commissioning reports.

Senator Henry referred to the famous sum of €11 billion, which is to be the expenditure of the Department of Health and Children next year. When that amount of money is being invested it is natural and proper that there should be evaluation, reporting and outside assessment covering different programmes and issues. That constitutes much of the expenditure under the previous Minister in commissioning reports.

That is a different issue.

Senators are not suggesting that there was any impropriety in his engagement of advisers or that those engaged to do this work were other than persons with specific competences in different fields.

How many reports have been acted upon?

This legislation is the result of the Prospectus report which the Minister commissioned. The Department of Health and Children is in a province of its own given the very large amount of expenditure under its control. It is incumbent on the Minister of the day to engage outside research and analysis when he or she is administering programmes of that level of expenditure.

The Minister is politically accountable for the executive and she has indicated her intention to attend meetings of the Oireachtas Joint Committee on Health and Children once a session. Members can question her at these meetings. As the Minister and I have pointed out, the executive will have to make the necessary arrangements to answer the queries of Deputies and Senators under section 79. This information could also be provided in the annual report of the executive. All this information, as Senator O'Meara fairly conceded, can be elicited.

The issue is whether a legal requirement should be imposed on the executive to lay the necessary materials before the Houses of the Oireachtas. That would lead to a cumbersome and bureaucratic system where the executive cannot carry out its functions without first informing the Minister about every detail and obliging the Minister to inform the House. That is the effect of this amendment, therefore, I am not disposed to accept it.

Amendment put and declared lost.

I move amendment No. 4

In page 25, between lines 8 and 9, to insert the following:

"(c) the disclosure is made in the interests of public health,”.

This is an interesting amendment because it deals with a person not contravening section 26(1) by disclosing confidential information in the interests of the public. This would happen only in rare or exceptional circumstances but a person should not be afraid to say something if it is for the common good. That is why we regard it as important to insert this provision in the Bill.

I second this important amendment and thank Senator Browne for moving it. It addresses a serious part of this legislation dealing with the unauthorised disclosure of confidential information. While one can understand and appreciate that the board should be able to discuss its business in a confidential manner and conduct it knowing that it does so with the cloak of confidentiality, there is the issue of the disclosure of information in the context of public health.

This raises the wider issue of whistleblowing, which has been raised several times but which this Administration has never satisfactorily approached. I do not expect that it will do so. When one looks at the size of the job given to the board and the range of issues it would be obliged to handle, the question of the unauthorised disclosure of confidential information is very important. I am also concerned about the broad nature of the meaning of the term "confidential information". Section 26(3)(a) defines it as “information that is expressed by the Executive to be confidential either as regards particular information or as regards information of a particular class or description”, and section 26(3)(b) adds, “proposals of a commercial nature or tenders submitted to the Executive by any person”. That is fine because it is well covered by the Freedom of Information Act.

However, the definition of the term "confidential information" seems to be so broad as to mean anything. Once the executive marks a document confidential nobody will ever see it. That is not good for accountability or for the underpinning of the whole notion of transparency and accountability for which we have provided in much legislation and which only yesterday we considered in the context of the Garda Síochána Bill. I am concerned about the broad definition of the term "confidential information" in this section and I have a major concern that it will happen that information that needs to be in the public domain will never be there as a result. In this regard the amendment is useful and important.

If an employee of the executive is a member of the medical profession and is not in a position to disclose confidential information if it is to the benefit of patient care he or she is in a very serious position regarding medical ethics. I am pleased that Senator Feeney, who is a distinguished former member of the Medical Council, is present. The Minister of State will recall that the clinical autonomy of consultants is recognised within the common contract and that the Medical Council's guide to ethical conduct and behaviour in the sixth edition, 2004, recognises in paragraph 4.12 that "Doctors have an obligation to point out deficiencies to the appropriate authorities and should not yield to pressures for cost savings if it means acting against the interests of patients". The guide also states in paragraph 1.3 that "Medical care must not be used as a tool of the State, to be granted or withheld or altered in character under political pressure. Doctors require independence from such pressures in order to carry out their duties." Doctors would be duty bound to disclose any deficiencies or problems that existed even if they had come across them in their capacity as employees of the executive. This has been mentioned to me as a very serious problem. I hope that Senator Browne's modest amendment could be accepted.

A balance must be struck in this area. I agree that this is not an easy subject. The provision in the Bill is the same as the provision which applies to other State organisations when they are established. There is nothing unusual in the provision. It is standard and applies to the boards of semi-State organisations. Given that the object of the executive is to promote and protect the health and welfare of the public, the executive, in defining what constitutes confidential information, has an obligation to ensure that the operation of the section does not conflict with the health and welfare of the public.

It does not say that.

That is clear from the legislation. The fundamental objective of the elusive mission statement that Senator O'Meara sought is to promote and protect the health and welfare of the public. That is a fundamental requirement for the executive. There is a balance to be achieved here because the executive must have the capacity to protect confidential information. That is only confidential if the executive so classifies it and it can only do so within the overall framework established by the legislation. It would correctly be a matter for the executive to decide when it was and was not in the public interest to disclose information. To dilute the section in the way that Senator Browne suggests would erode the capacity of the executive to discharge its functions. The executive is surely entitled to the same protection on confidential information as any other State organisation.

Senator Henry raised the consultants' contract. That governs the consultants' relationship with their employers. The advocacy role of the consultant as described in the contract on behalf of patients is exercised in the first instance in the context of discussions with the employer on resources and activity levels. That is an internal process within the health service executive. The section does not preclude representative organisations and health professionals as members of those organisations from raising relevant patient care issues in public. Nor does it raise any objection or obstacle on that.

The provisions of section 26 apply only to information which is expressed by the executive to be confidential. The executive will operate in an open and transparent manner and the provisions of the freedom of information legislation will continue to apply to it. The Tánaiste has noted the concerns expressed about the possible operation of this section and she intends, given those concerns, to discuss the operation of section 26 with the executive to ensure it is not applied in a manner that affects doctors and other health professionals discharging their ethical obligations. The Tánaiste accepts that the section must be worked in that context.

On the one hand, we must strike a balance. The executive, like any other, given authority, must have the capacity to protect itself and make a judgment on confidential information that must be protected. Senators must realise that, on occasion, confidentiality of information is essential in the public interest and for the protection of public health. On the other hand, the Tánaiste has noted concerns expressed about this section and will raise with the executive the issue of how the ethical requirements and obligations of doctors and other health professionals might be safeguarded.

Amendment put and declared lost.

Amendments Nos. 5 and 8 are related and may be discussed together by agreement.

I move amendment No. 5:

In page 25, between lines 19 and 20, to insert the following:

"(4) The Freedom of Information Act 1997 shall apply to the Board with effect from the establishment day.".

We have come very neatly to this section on freedom of information. The Minister of State has already referred to freedom of information in the context of the previous amendment. Amendments Nos. 5 and 8 are essentially designed to ensure that the Freedom of Information Act 1997 applies to the greatest possible extent to the workings of the board of the health service executive rather than what is contained in the legislation. We do not know when the Freedom of Information Act 1997 will be applied to the operations of the board of the health service executive. It is not stated anywhere and perhaps the Minister might clarify that matter.

Regarding amendment No. 8, I draw the attention of the House to section 30, which appears in the first 10 lines of page 28; the amendment is to delete lines 1 to 10. Essentially, the section creates such an exemption from the Freedom of Information Act 1997 applying to a substantial body of work of the board that it simply goes too far. It creates a situation whereby the Freedom of Information Act 1997 will not apply to records containing the corporate plan, an amendment to the plan not approved by the Minister, a preliminary or other draft of all or part of the contents of a corporate plan, and an amendment to one or any unamended version approved after being amended in accordance with the direction of the Minister.

Under those ten lines, that entire area will not be covered by the Freedom of Information Act 1997. The specified period is five years, beginning on the date of the creation of the record. We have seen how the Freedom of Information Act 1997 has been emasculated. To a large extent we should not be surprised to see that kind of provision in the legislation, since the Government is absolutely determined that "freedom of information" should mean nothing in the context of the workings of public bodies such as this. No one will be able to get at one of the cornerstones of information regarding the board, namely, the corporate plan.

I do not support the wide dissemination or availability of early versions of corporate plans so that they might be read inThe Sunday Tribune or appear in any other media outlet. That serves no one. However, what damage would it do to have a public discussion about early drafts of such a plan? What would be so wrong with that? I remember the debate on the original Freedom of Information Act 1997 because I worked with the then Minister of State, Eithne Fitzgerald, at the time on protecting the process of consultation and preparing plans. In that case legislation and Cabinet memoranda were specifically protected, even under the original legislation.

However, here one is talking about the corporate plan of the health service executive, a body with a budget of €11 billion. What would be the harm of early versions being available for discussion? What would be so bad about that? What would be wrong with having public debate on the plan? There would be nothing wrong with that. In many cases, people would not be particularly interested. Why is it necessary to shroud it in secrecy? That creates exclusivity around the board's work rather than openness and transparency. It undermines the concepts of openness and transparency which do not seem to be part of the ethic of the Department regarding the work of the board. It will certainly not be part of the ethic of the board itself.

I second the amendment.

It is a good idea that the Minister accepts these amendments, since it is always better to rely on the facts rather than rumours, which are always far worse. I accept the reasoning behind Senator O'Meara's amendment. It is not necessary to go through all the stages of each plan, but generally it is preferable to have people discussing the facts rather than rumours.

Everyone in the House knows that if this measure goes ahead, we will still see reports in the newspapers. Unfortunately, they will be based on leaks that we will not be able to verify. This Government knows a great deal about leaks — perhaps more than some others. It is common sense to make drafts subject to the Freedom of Information Act 1997 so that they are public knowledge. Otherwise, one will see the information in the newspaper and no one will be able to comment on it since we will not know whether it is true. To save everyone time and effort, and to save the Minister having his spin doctors put a different spin on leaks, it might be in everyone's interest for him to accept this amendment.

I will deal with the two amendments in turn. The first seeks to apply the Freedom of Information Act 1997 to the board with effect from the establishment date. On the advice of the Attorney General, the amendment should not be accepted, since it applies to the board rather than to the executive and would create substantial legal difficulties. However, I am glad that the amendment has been tabled, since it gives me the opportunity to clarify the position regarding the Act.

Section 65(4) provides that all records of the bodies dissolved under this legislation should be transferred to the executive. Paragraph (10) of Schedule 5 provides that the Freedom of Information Act 1997 applies to records held by the executive that were created by any of the bodies incorporated into the executive before its establishment. The amendment to the Freedom of Information Act 1997 is in Part 7 of Schedule 7 to this Bill. It ensures that the Act will apply to the executive unequivocally.

From day one?

The Senator has anticipated me. The Minister's intention is to commence those provisions from the date of establishment.

Regarding the other amendment, which is perhaps more interesting, I must disappoint Senators by confessing that I do not share their unbridled enthusiasm for the Freedom of Information Act 1997. In my view, the preparation and analysis of written material is very important to good decision making. If we insist on extending freedom of information legislation to the preparatory discussions of decision-making bodies, we will damage their decision-making capacity. The rumour, reporting and spin that Senators so deplore will become more important in decision making. If one cannot have candid written analysis of decisions beforehand and if every note is written with a view to future publication, inevitably things will be said rather than written down. That is not a good way of arriving at decisions, which is why we have inserted section 30, which is modelled on section 5(3) of the Public Service Management Act 1997. It is designed to protect the deliberative process under which a corporate plan will be drafted to enable the executive to fully explore all the issues involved. This is a necessary protection because it allows the executive to fully explore all the issues and weigh up the different priorities in terms of health service delivery before it finalises its corporate plan. I agree with Senators that the corporate plan is a fundamental document relating to a large sum of money. The executive should be allowed to have a protected internal discussion on and written record of those issues. Were we to accept the amendment, those preparing the various memoranda for the executive would be aware of the fact that their arguments would be subject to public scrutiny, analysis and debate soon after their publication. As night follows day, that would inevitably colour the candour and openness with which opinions were expressed in such memoranda.

I am a great admirer of the freedom of information legislation and do not want to be taken as part of a nefarious conspiracy by the Government to undermine it because I am not. It is useful information and in general our Administration has suffered down the years from an obsessive culture of secrecy. In regard to making decisions, we have to give the public service space to formulate its arguments in a candid way and put them before the persons responsible for making decisions. That is why I am not accepting the amendment.

I thank the Minister of State for his response to amendments Nos. 5 and 8. I will withdraw amendment No. 5 based on his clarification of that issue. However, the Minister of State's response to amendment No. 8 is hilarious. I accept it is his personal view that what is proposed would damage the process and that every written document cannot be floating in the public domain. However, the Minister of State might take this issue up with some of his Government colleagues because some Ministers are past masters at releasing early drafts of proposals. We know that happens. All we need do is read theIrish Independent on a Monday morning to note that Ministers float proposals. There is one rule for the board but there will be another one for the Minister.

If what the Minister of State said is his personal view, I accept that, but it is not my view. I do not take the view that it would damage the process in any way to publicly discuss early drafts of proposals. How could it? How could it colour decision making? Is the Minister not capable of making a decision based on the merits of an argument put by the public service? What would be wrong with having a view from another body on the draft of a corporate plan, the views of members of the public in that regard or letters in the letters page of newspapers responding to it? How in heaven's name would that damage the process?

I have a very high opinion of public servants and civil servants. I have worked in a Department and have seen decision making at senior level. I have never seen anybody being influenced by a headline in a newspaper. We can reply on our Civil Service and public service in that regard. However, by inserting what is almost a gagging subsection in this section — we talked about other paragraphs on Tuesday evening which will also have a gagging effect on the CEO — we create a culture of secrecy of which the Minister of State said he is not in favour. We have had an overweening culture of secrecy here. We are not over it yet, in fact, we seem to be desperate to cling to it.

I do not accept for one second that a situation whereby one could have access to early drafts of a corporate plan will make a difference. However, the Minister of State will be aware that by creating a shroud of secrecy around this issue, journalists will wonder — I know this from having been a journalist — why the Government wants to keep it secret, what was in the early draft and if there is any way they can get their hands on it. If the draft is in the public domain, it will not be of any consequence. That is how many journalists would think. If they have access to such a draft, it is of no great consequence. However, if they do not, that is when they want to get access to it.

Failure to make such information available leaves matters open to manipulation. If one learns about part of such a draft and does not get the full context, to which Senator Henry referred, that can be damaging because one can give the impression that a decision was made on a particular basis when it was not. Then the board does not have the option of putting such information into the public domain. The board does not have the option of saying that is not what its members were thinking, if somebody leaks information into the public domain in a twisted, misinterpreted or misunderstood way. These things happen, but there is no way back. There is nothing to be gained from that subsection and leaving it in the legislation could potentially cause damage.

Is the amendment being pressed?

I will not press amendment No. 5 but I will press amendment No. 8.

Amendment, by leave, withdrawn.

Amendment No. 6 is consequential on amendment No. 7 and they may be discussed together by agreement.

I move amendment No. 6:

In page 27, line 40, to delete "and".

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 27, between lines 40 and 41, to insert the following:

"(b) in a form which details the activities which are occurring and any proposed changes which are likely to arise in each local agency and each local hospital, and ”.

This amendment relates to progress reports on the implementation of the approved corporate plan. We want to include another subsection which will cover any proposed changes likely to arise in each local agency and local hospital. This is where such a plan would have a real impact on local areas. It is vital such a provision be included and a progress report issued on those areas so that we would know exactly what is happening on the local scene.

I second the amendment.

Under section 37 the annual report will set out how the corporate plan is being implemented and how the service will be implemented. The form of the report will be determined by the Minister. The level of detail proposed is not necessary in this section. The Minister is given power under the legislation to prescribe what information should be inserted in the annual report. Clearly, the corporate plan will contain the key objectives of the executive for a three year period and the reports on its implementation will be based around the progress on achieving those objectives. The information proposed to be included in this amendment would not therefore be relevant. The level of information required by this proposal is far too detailed for a progress report. It is a matter best left with the executive and the Minister.

Amendment put and declared lost.

I move amendment No. 8:

In page 28, to delete lines 1 to 10.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 29; Níl, 17.

  • Bohan, Eddie.
  • Brennan, Michael.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • Ross, Shane.
  • Ryan, Brendan.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Henry and O’Meara.
Question declared carried.
Amendment declared lost.

I move amendment No. 9:

In page 28, between lines 28 and 29, to insert the following:

"(c) contain an accurate assessment of the assets held by the Executive, details of the number of employees, and shall be laid before each House of the Oireachtas within 90 days of its establishment,”.

This amendment deals with the preparation of a service plan which will be submitted to the Minister. It concerns the number of employees in the health service executive, which has proven to be a matter of grave concern in the past. We have seen a significant increase in the number of staff employed in the health services. However, the rate of increase of administrative staff as against that of consultants, doctors and nurses is varied.

Rightly or wrongly, the perception is that there are too many bureaucratic systems in place which are resulting in a poor service. It may be a simplistic perception but the public would prefer to see more medical than administrative staff. I am sure that many administrative staff are doing a fantastic job and I have heard that there are administrative shortages in some areas. However, I have also heard from people within the health service who say there is overstaffing in the administrative area. The key is not only to have staff in place but also to appoint and deploy them properly. Ultimately, it is all about providing a service to the public.

In recent years, the Government has failed to ensure a proper staffing system within the health service. That is why we are in the current mess. Almost 100,000 people are working in the health service and I acknowledge the positive role they play but the Government also has a role in allocating the necessary staff numbers. We can all recount stories about shortages of occupational therapists or speech and language therapists, while other appointments may have been surplus to requirements. That is what this amendment is about. It would provide a clearer idea of the numbers of employees and assets, which we do not currently have.

The previous Minister for Health and Children was asked about the number of employees in the health service and he could not provide an answer, which was incredible. I presume they were all being paid. There was some problem with giving a specific answer to that question.

I second the amendment. As I am conscious of the lack of time, I will not go over the ground covered by Senator Browne. I am worried about Part 5 of the Bill. According to section 22(3), the Public Service Management (Recruitment and Appointments) Act 2004 does not apply to staff recruited in the first three months following the establishment of the health service executive. Therefore, the chief executive, who is a Government appointee, can appoint any number of staff and anyone he or she likes in the first three months.

This amendment concerns one of the deficiencies caused by the fact that we are rushing this legislation through the House. It is happening without the establishment of the health information and quality authority. So much information remains unknown and so much data is lacking, particularly for the board of the health service executive with regard to drawing up the corporate plan and planning for the future, which is the big job we have given it to do. As I said on Second Stage, it is a case of putting the cart before the horse. This amendment goes a small but important way towards meeting some of the information deficiencies. I ask the Minister of State to accept it.

I am glad to say that section 31 deals with this issue. The service plan must be prepared in the formal manner as directed by the Minister. It must contain estimates of the number of employees of the executive for the period and the services to which the plan relates. Therefore, this information about employees will be provided in the service plan, which is the appropriate place for it. Those plans are laid before the Houses of the Oireachtas.

The amendment seeks to go further in establishing an obligation on the executive to furnish this information to the Houses of the Oireachtas within 90 days of its establishment. However, the general requirement in section 31 meets the broad thrust of what Senator Browne's amendment requires.

Senator Paddy Burke raised the issue of the three-month period, which is a transitional matter. For the first three months of next year the executive will be free to recruit, as the Senator stated. We would not have non-consultant hospital doctors or nurses recruited at all if we did not have the proviso that for the first three months of next year, the Public Service Management (Recruitment and Appointments) Act 2004 will not apply to the executive. That is a purely finite arrangement, however. As and from March 2005, the Act to which the Senator referred will apply to the health service executive. It would not be possible to recruit nurses and non-consultant hospital doctors in the first three months of next year under that legislation.

It will be open to abuse.

The Minister of State, without interruption.

I assure Senators that it is not the intention to do that.

Of course not.

I have just given Senators the reason for this transitional measure.

The matter of numbers in the health service was canvassed more widely by Senator Browne, although I do not think he was referring to an utterance of mine. It may have been that of another Minister.

I think it was two years ago.

There is a record number of people working in the health services, which reflects the fact that a record level of activity is taking place. For example, the number of day procedures in hospitals is at an all-time high. As we draw the debate on this Bill to a conclusion, it is worth placing on the record of the House the fact that the country's health services do a fabulous job. There are some very good and highly-motivated people in the health sector. Substantial public resources have been invested in the health service and, although there will always be problems because it is a difficult area, the legislation has provided a good framework for the future.

Amendment put and declared lost.

Amendments Nos. 10 and 11 are related and may be discussed together by agreement.

I move amendment No. 10:

In page 30, line 41, after "Finance" to insert ", such figure having been laid before each House of the Oireachtas".

This amendment relates to obtaining the Minister's permission for major capital expenditure. It also concerns overspending when a capital project may exceed its original budget. The amendment seeks not alone to lay that decision before the Houses of the Oireachtas but also to specify the actual sum of money involved because that is not included under the terms of the legislation.

I second the amendment.

The amendment seeks to have laid before the Houses of the Oireachtas the figure above which capital projects must specifically be sanctioned by the Minister. It is more practicable and appropriate that this information should be included in the annual report and the financial statements of the executive. I do not regard this as something that should be a confidential matter. I see no difficulty with the Department or the executive providing information on the figure specified by the Minister whenever requested to do so.

Amendment No. 11 seeks to have laid before the Houses of the Oireachtas details of each capital project where the spending on it exceeds the level above which capital projects must specifically be sanctioned by the Minister. Such information is more appropriate to be included in the annual report and the financial statements of the executive. If the executive did breach the figure set by the Minister, it would then become a matter for the Comptroller and Auditor General to highlight in his report on the income and expenditure accounts and the appropriation accounts, to the Committee of Public Accounts which would deal with the matter.

Is the amendment being pressed?

As it is 1 p.m., I am required to put the following question: "That amendment No. 10 is hereby negatived, that the Bill is hereby received for final consideration, and that the Bill is hereby passed."

Question put.
The Seanad divided: Tá, 29; Níl, 18.

  • Bohan, Eddie.
  • Brennan, Michael.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • Ross, Shane.
  • Ryan, Brendan.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Cummins and O’Meara.
Question declared carried.