Health and Social Care Professionals Bill 2004: Report and Final Stages.

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

Amendments Nos. 1, 9 and 36 are cognate and will be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 9, line 3, to delete "chiropodist" and substitute "podiatrist".

I welcome the Minister of State at the Department of Health and Children, Deputy Seán Power, to the House to discuss this important Bill. The reason I want the word "podiatrist" substituted for "chiropodist" is that the professionals referred to in the Bill are required to have degrees in podiatry, not in chiropody. My understand is that "podiatrist" is the word considered to be more explicit. Apparently, chiropody has more to do with both the hands and the feet than podiatry. Podiatry therefore becomes a more important issue in the medical field, as the correct word to use. I would be grateful if the Minister of State would accept these amendments, just from the point of view of clarity and in terms of modern usage of the words. It is no more complicated than that.

I second the amendment.

The amendments tabled by Senators Henry and Quinn reflect the current debate within the relevant profession on the most appropriate title. The title "chiropodist" is used in the Bill because that reflects the current more common title by which the profession is known to the public in this country. I appreciate that it is different in other countries.

However, I am aware of the discussion within the profession on the title and the different views held by various groups within the profession. As Senators will recall, on Committee Stage of the Bill my Department undertook to contact the four professional bodies representing chiropodists in Ireland to ascertain their formal views as to which word, "chiropodist" or "podiatrist", should be used as the primary title in the legislation. Two of the professional bodies expressed a preference for "podiatrist", while two wanted to retain "chiropodist" as the primary title.

One of the bodies which wishes to retain the title "chiropodist" claims it represents over 70% of chiropodists and podiatrists in Ireland. The Department's position is to encourage all stakeholders involved to develop an agreed solution to the issue of protection of title, and this is the best way forward. The Department has therefore asked the four professional bodies to revert to an agreed position as to which word should be used as a primary title. The outcome of this request is still awaited.

I hope the Senator will appreciate that in the circumstances I do not propose to accept these amendments.

I regret this very much because I do not believe that the 70% of chiropodists, represented by the body mentioned by the Minister of State, are those with university qualifications in podiatry. As the Minister of State knows, we are enthusiastic supporters of the Bologna process, which tries to ensure reciprocity of degrees across Europe. Some 40 countries now subscribe to this and Ireland was one of the earliest signatories. From the viewpoint of transparency and accuracy, it would be much better to use the internationally known name. "Chiropody" may be more commonly used in Ireland at the moment but the degrees we are looking for are in podiatry. In fact the Minister of State is taking advice from people who, while no doubt worthy, are not those who will be among the wave of people looking after foot care in Ireland in the future.

As the Minister of State knows, with the rise of diabetes, this is becoming more and more important. I regret very much he has not taken these very simple amendments on board because the Bologna process is one of the most excellent processes we have been involved in for many years. I wish that had been the framework, rather than consulting with people who will not be determining the future of this discipline in Ireland.

Question put: "That the word proposed to be deleted stand."
The Seanad divided: Tá, 26; Níl, 12.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Hayes, Maurice.
  • Henry, Mary.
  • O’Toole, Joe.
  • Ryan, Brendan.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Browne and Henry.
Question declared carried.
Amendment declared lost.

Amendment No. 32 is consequential on amendment No. 2 and they will be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 9, to delete line 9 and substitute the following:

"(g) physiotherapist or physical therapist”.

I am not sure amendment No. 32 is consequential as the amendments are variations on the same thing. Senator Browne's amendment is a more precise expression of what I intended to achieve with amendment No. 2. We have been intensively lobbied since Committee Stage by the college which provides training in what is described as physical therapy. I have no way of adjudicating on the matter, but I am considerably unhappy with terms being used, for whatever reason, that to an inattentive observer sound like the same thing. If we attempt to regulate physiotherapy and leave something called physical therapy unregulated, we are in grave danger of confusing people.

We have ample evidence that poorly used language causes confusion and it is unforgivable in legislation. It is impossible to believe that two separate professions of physiotherapy and physical therapy can operate jointly without great public confusion. The objective of my amendment was to state that the occupations of physiotherapist and physical therapist should be defined as meaning the same and should be regulated according to the regulations in this Bill as amended. However, I believe that is better expressed in Senator Browne's amendment.

I moved the amendment because I wish to hear the Minister of State's reply. I will then consider my position.

I second the amendment. Like Senator Ryan, I feel Senator Browne's amendment is more precise and that it would be the better amendment for us to accept.

I return to the Bologna process. What consultation has the Minister had with the officials of the Department of Education and Science about that process and its implications on this Bill? The situation is serious. The document that issued from the meeting of Ministers in Prague on 19 May 2001 describes further actions following on the six objectives of the Bologna process.

Is this relevant to the amendment?

It is very relevant because it is to do with comparability of degrees and the fact that confusion can be caused if we are not careful in the matter. This is the problem here because one qualification involves a university degree whereas the other does not appear to be linked to any third level institution in this country.

On the adoption of a system of easily readable and comparable degrees, the document states:

Ministers strongly encouraged universities and other higher education institutions to take full advantage of existing national legislation and European tools aimed at facilitating academic and professional recognition of course units, degrees and other awards, so that citizens can effectively use their qualifications, competencies and skills throughout the European higher education area.

It is clear that this is not just so that they can move between educational institutions but in order that their employability will be the same. If we allow any confusion in this area, the situation will be serious.

The document went on to state with regard to the promotion of mobility that people should be able to move between different educational institutions and become involved in employment because their degrees are considered comparable. Will the Minister of State in his reply state what involvement he has had with the Department of Education and Science with regard to the Bologna process and the fact that we have done our utmost to ensure there is comparability of qualifications? We want a situation where this is achieved.

I cannot see the situation being helped by the sort of fuzziness being introduced in this Bill. Both professions are highly paid, but they have different entry standards. The physiotherapy degree is one of the most difficult to gain admittance to in our universities, but the entry requirements to get into physical therapy here are much lower. I suggest we make a clear distinction between the two professions. I am not implying there is anything wrong with physical therapists, but they should have a section of their own. The words "physical therapist" should apply only to those with the qualifications of physiotherapist to avoid confusion until we have a situation where we have a special section for physical therapists as qualifying in this country.

I support Senator Henry. On Second Stage we had a wide-ranging debate on this issue when we all put our views to the Minister of State at the Department of Heath and Children, Deputy Tim O'Malley, who was here that day. Some 94 countries refer to physiotherapists as physical therapists, including in Northern Ireland. These Northern Ireland physical therapists come south and continue to operate as physical therapists. They probably do not refer to themselves as physiotherapists.

There is a danger the public will be confused. While no harm may be done, confusion leaves the gate open for a less safe practice to be introduced. As Senator Henry said, different standards of education are required for entry into both disciplines but it is important that the term "physical therapist" should be preserved and only used by physiotherapists. I spoke to a physiotherapist who stated her colleagues would welcome an opportunity to work hand in hand with physical therapists. Physiotherapists fail to see a reason they should not work together and, in some cases, they work alongside each other.

However, this issue must be examined. The term "physical therapist" should be reserved only for the use of physiotherapists so that these professionals can be known as physiotherapists/physical therapists. I sat on the Medical Council for five years. If the council approved herbalists as medical practitioners, there would be major consternation because anybody examining the medical register would not know whether a person was a medical practitioner or a herbalist. This will come back to haunt us and provision should be made to differentiate between both disciplines.

While I do not wish to oppose Senator Ryan's amendment, it fails to reflect my thinking. However, Senator Feeney's comments closely reflect my view. Confusion is being allowed to reign and we will pay the price. What we are doing is completely wrong. As Senator Feeney correctly pointed out, physiotherapists are referred to in some countries as physical therapists. Both terms are used in Ireland to describe different disciplines, hence the difficulty.

The legislation is concerned with regulation and quality. That cannot be diluted in any scenario. I agree very much with Senator Henry that the qualification of physiotherapist is precious and we should hold it in the highest regard and make sure it is protected in legislation. On the other hand, physical therapists do a different job. I asked that physical therapists should be regulated, perhaps under a different title, but I was informed there was no way this would be accepted. We are inheriting a problem and creating a greater one.

When a patient makes an appointment, he or she needs to know precisely the qualifications of person with whom he or she makes the appointment. There have been problems in recent times with alternative practitioners. Those problems arose because of a lack of understanding about the practitioners patients were attending. This does not mirror the physical therapist issue because that would imply physical therapists are in some way dangerous. I have the height of respect for physical therapists as they fulfil an important function and, as Senator Henry said, there is no reason they cannot work in a complementary fashion with physiotherapists. We need to distinguish between both disciplines and we need to establish that they should be regulated.

I examined all the literature and submissions I received on this legislation from various groups. We should regulate physiotherapy using the current qualification standard. The Minister should then avail of the provision in the legislation which allows him or her to define other groups and those who are engaged as physical therapists could be renamed within that group. I called the representatives of physical therapists to find out whether they could come up with a name but nobody could come up with one with which I was satisfied because physical therapist is a global term for physiotherapists and that needs to be protected.

Amendment No. 32 provides that one can only use the titles of physiotherapists and physical therapists if one has achieved the appropriate qualification, which in Ireland is a degree in physiotherapy. That is not provided for in the legislation. A gate is being left open, which is unfair to physiotherapists. They are worried not because they are anti-physical therapists, but because they want to protect what they have built up. Reputation is hugely important to medical professionals given that it provides the basis on which patients attend their clinics.

Both titles are interchangeable around the world and Senator Browne proposes that they should be protected at a particular level. The legislation should outline the function of physiotherapists, the entry requirements and academic qualifications and the way in which they will be regulated. Anybody, therefore, who wants to call himself or herself a physical therapists must get over the same bar. In other words, the title does not matter as long as patients know what they are doing and how they achieved their qualifications. A difficulty will be created by not doing so and it will come back to haunt us.

If the Minister of State is not of a mind to accept our thinking, we will have to come back to the House to address the difficulty in time. Nobody will win. Hassle will be created between different physical therapists and physiotherapists and confusion will be created for Irish physiotherapists who travel abroad. More thought needs to go into this. The issue will build up and the arguments about what we must do in this regard are highly persuasive. Will the Minister of State at least concede the merit of the argument on this issue?

I support Senator O'Toole's contribution. He is correct that we inherited a problem and that we may create a greater problem. The major difficulty is that physical therapists are considered the equivalent of physiotherapists in a number of countries. Physical therapists first achieved qualifications in Ireland 14 years ago. The purpose of the legislation is to protect the patient so that if one calls a physical therapist, one will be treated by a physical therapist and likewise with physiotherapists. The Bill also protects those who provide these services. That is why amendment No. 32 has been tabled. I was not aware of the term "physical therapist" until the Bill was introduced. Physical therapists are involved with many intercounty Gaelic football teams. For example, the Kildare football team probably has a physical therapist, even though the players might do better with a psychologist to help them win an All-Ireland title. That is a different day's discussion.

That statement is by a man from Carlow.

After our great win in Offaly lately, we can talk loudly.

One swallow does not make a summer.

Degree status was only awarded to physiotherapy programmes in the late 1980s while physical therapists can now undertake masters degree programmes. We do not want to disadvantage either of the two existing professions of physiotherapists and physical therapists. We should not introduce legislation that would do that but allow the two to coexist and recognise that they provide similar but distinct services drawing on different expertise. That is the purpose of my amendment, and I hope that the Minister accepts it. If he does not, he will create an awful mess for himself and the Department. Now is the time to act, before the legislation reaches the Dáil.

We debated this matter at length on Committee Stage and the Minister of State, Deputy Tim O'Malley, gave a clear commitment that he would speak to the two groups involved and try to produce a suitable form of words. That is what we seek at this point. I hope that the Minister of State will be able to accept my amendment, which has been tabled in good faith.

I thank the Senators for their contributions. We can agree on one thing, that it is confusing.

As debated on Committee Stage, the proposed amendments have significant implications for an important general principle underlying the design of the regulatory system set out in the Bill. The Department has been advised by the Office of the Parliamentary Counsel that there is scope for only one primary title to be designated under section 4, and variants of that primary title will be prescribed under the procedure outlined in section 94(3). A resolution of the issue surrounding the protection of the title "physical therapist" is therefore not appropriate in the context of the primary legislation but would be dealt with by means of regulations made under section 94(3) in future.

As requested by the House on Committee Stage, the Department has met representatives of both the Irish Society of Chartered Physiotherapists and the Irish Association of Physical Therapists to encourage the two organisations to develop an agreed solution to the issue of protection of title that takes account of the complex legal, competition and public interest issues involved.

Additional information has been sought from the Irish Association of Physical Therapists on some of the statements made in the position paper that it submitted and that information is awaited. That will be useful in adding to our knowledge of the work and training of physical therapists. I wish to clarify a comment made on Committee Stage by my colleague, the Minister of State, Deputy Tim O'Malley, regarding the current employment of physical therapists. The Minister of State was referring to the employment of physical therapists in the wider health sector rather than by health boards; physical therapists are not employed by the Health Service Executive.

As I said, the provision of information by the Irish Association of Physical Therapists that the Department has requested will add to our knowledge and I reiterate that it will continue to seek an agreed resolution to a process of engagement and focused consultation in partnership with the professional bodies concerned. We have made our request for information from the Irish Association of Physical Therapists, but we have not yet received it. It is not clear what are the criteria for qualification as a physical therapist.

That is right. It is one of the problems.

The course is accredited, but there are many question marks over the body, and until those are addressed, there will be confusion. If physical therapists as a group are to be regulated under the Bill, they would have to meet the same criteria as the other professions, and currently they do not do so. It is therefore impossible to regulate them under the Bill as it stands and with the information that we currently have. I am thus unable to accept the Senator's amendments.

If I were rewriting my speech, I would be quite happy to take the Minister of State's script, since he made the case that there is a profession called "physical therapy" and admits that the Department of Health and Children does not understand it. He says that five or six months after Committee Stage, it has not replied to requests from his Department for further information. It has a title that, in many other countries, means the same as "physiotherapy" and is, at the very least, capable of being confused with it, yet he proposes not to regulate it.

I must be careful here. If a profession is left unregulated it saves it a great deal of money. There is confusion in the public mind and, in addition, the profession or group is not subject to the same degree of quality assurance as physiotherapists. I will not say a bad word about the profession of physical therapy. However, if it was requested to supply information by the Department of Health and Children six months ago and have not yet done so, that raises a question mark about the quality of the professional body in question. During that time, it found time to lobby every Member of this House intensively about the profession, yet it did not find the time to answer questions posed by the responsible Department. This raises questions that public well-being demands should be answered.

The solution, of course, to reassure the public and perhaps focus the minds of those responsible for physical therapy, would be to accept Senator Browne's amendment rather than my own, which would state that the definition of both "physical therapy" and "physiotherapy" should essentially be that which currently applies to the latter. Those who are physical therapists should be allowed to focus on the fact that they have left the Government and politicians confused about the precise details of their profession.

Senator Henry regularly raises an extremely important matter in this debate that seems to have gone over the head of the Minister of State, since he has not mentioned it, namely, the Bologna process of standardising qualifications across the entire European Union. Although it is legal, we cannot in practical terms go off at a tangent that defies usage in other countries. That is the second argument for standardisation. The solution is to accept Senator Browne's amendment and invite the independent representative body for physical therapists, if there is one, to clarify its position and attempt to find an agreed solution, which might, as Senator O'Toole said, involve physical therapy, with a name not liable to be confused with physiotherapy, being recognised as a separate profession and protected as such. However, I remain unconvinced by the arguments of the Minister of State and the physical therapists. The solution is to accept that they are so similar in title internationally as to be identical.

On a point of information, the Minister of State did not answer my question and say whether the Department of Health and Children had discussed the Bologna process with the Department of Education and Science when it was introducing this legislation.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 9, line 17, after "subsection (1),” to insert “and in particular shall, within the period of 12 months from the passing of this Act, so designate the profession of counsellor or therapist,”.

The biggest and potentially most dangerous unregulated profession in the area of social and health care of which I am aware consists of the myriad counsellors and therapists of various kinds. Both formally and informally, the Minister said that the problem was that none of those groups of counsellors and therapists could agree on a common set of qualifications. That there are people in this country with a six-month diploma who can put up a plaque saying that they are psychotherapists or counsellors and, perhaps with no more than one manual at their disposal, probe into people's conscious and subconscious and explore their emotions makes this profoundly dangerous territory. That they do not prescribe pills does not make it any less dangerous. It can create dependency and do harm. It can upset people by making their emotional conditions worse. We are not regulating this area because those practising in this field cannot agree. Amendment No. 3 recommends that within 12 months of the passing of this legislation, the profession of counsellor or therapist should be designated, either by agreement of the representatives of the various practitioners or by a definition that is imposed by the State. Such designation is necessary to protect vulnerable people from what I consider to be nothing less than manipulation in some instances.

I second the amendment. I am glad Senator Glynn is present because he has a great deal of experience in the psychiatric area. He understands that the damage done to people who are treated by unregulated practitioners is often not just physical. Serious emotional and psychological damage can also be done in such circumstances. That the various groups, many of which have contacted Senators, cannot reach agreement about the qualifications which should be designated does not mean that the Department of Health and Children should not take the initiative in this regard. It should decide which qualifications will be accepted. Other qualifications can be added as the Department sees fit.

As we made clear on Committee Stage, the provision of counselling and psychotherapy services in the public health service has increased in recent years, in line with the significant growth in the provision of such services in the private sector. At the request of the Department of Health and Children, the former group of health board CEOs formed a working group to examine the role of psychotherapy in the health service and assess future requirements. The working group's report, which will contain advice about how to make progress in respect of many issues, including the development of psychotherapy and counselling services on a national basis, is being finalised by the Health Service Executive. When the report has been completed, an action plan will need to put in place if we are to make progress with our consideration of the role of psychotherapy and counselling in the health service. The action plan will have to include a further exploration of issues relating to the development of an appropriate model of service.

The outcome of the work being proposed by the HSE will form an integral part of the formal process that will be required under this Bill. That process will involve determining whether statutory registration is warranted and appropriate in line with section 4, which relates to the designation of further professions. It is not appropriate, in that context, to specify at this stage that certain professions should be under the aegis of the proposed health and social care professionals council. Similarly, it would not be not appropriate to specify in the Bill the timeframe for the inclusion of such professions. Therefore, I do not propose to accept amendment No. 3.

I have never been speechless in my life, but I am heading in that direction. One sometimes receives answers which tempt one to become speechless. The list of professions in section 4 includes psychologists. There are good reasons for clearly defining in law the qualifications which should be required if one wishes to be registered as a psychologist. Such reasons relate to public well-being, public health and quality assurance, for example. We allow "quacks"— I use the term advisedly — to put up plates throughout the country, on which they claim to be that which they are not. I should put on the record that my wife is a psychiatrist. I assure those who may suggest that I am defending the profession that I am not doing so.

Those who undergo proper training to become counsellors and therapists should not be gazumped by people who have completed a six-month night diploma. I am horrified by the number of people doing night, part-time and correspondence courses in counselling or various forms of therapy. I am sure some of them become very good counsellors and therapists, but they and the public are entitled to know that a basic standard of qualification is in place. The standard should be regulated by an impartial regulatory body so that one can reasonably expect that people who call themselves counsellors and therapists know what they are doing. If they do not know what they are doing, they will do harm. Thousands of vulnerable people in this country will be open to manipulative exploitation if we have to wait for the HSE, which is swamped with work as it stands, to make a proposal that might lead to some action. It is a great pity the Minister of State will not accept this amendment.

Amendment put and declared lost.

As amendments Nos. 4 and 5 are related, they may be discussed together by agreement.

I move amendment No. 4:

In page 12, line 21, to delete "not".

It is foolish to dictate that "a registrant is not eligible to be appointed chairperson", as a registrant may transpire to be the best person for the job. We are always ruling people out of jobs. In this instance, we are deciding that a registrant may not be considered for the role of chairperson. I have proposed this amendment because it may be the case that a registrant is the best person for the job.

I second the amendment.

I am not sure why the Labour Party's amendment No. 5 has been grouped with amendment No. 4, but it is not a critical matter. Section 9(4) states that "the Minister may consult with any organisations that he or she considers appropriate" when he or she is appointing a chairperson or an ordinary person under this Bill. The mind boggles at the suggestion that the Minister could make such appointments without consulting anybody. Amendment No. 5 proposes to amend section 9(4) to ensure that the Minister "shall" consult any organisations which he or she considers appropriate.

I am always intrigued by the capacity of the Office of the Chief Parliamentary Counsel to include in legislation multiple layers of discretion to ensure a Minister is not compelled to do anything. The phrase "he or she considers appropriate" gives the Minister substantial discretion to reduce or increase the number of organisations he or she consults. Not only does the Bill provide that the Minister does not have to consult a large number of organisations, but it also provides that he or she "may" consult them, rather than "shall" consult them. Therefore, the Minister can make appointments in the manner outlined in section 9(4) without consulting anybody, if he or she wishes to do so. I do not like to tie the hands of Ministers too tightly, but surely the Minister in this instance should be obliged to engage in some consultation.

As Senators may be aware, the Department of Health and Children engaged in a process of consultation with the relevant professional bodies in 2000. The document that was agreed on foot of that process, which sets out how the system of statutory registration should operate, forms the basis of the legislative proposals under discussion. It recommends that the chairperson of the health and social care professionals council should be independent.

I wish to speak about amendment No. 4. It is not considered appropriate that the chairperson of the council should be a registered practitioner, as the amendment would facilitate, because the independence of the chairperson is considered essential to the council's effective operation. If the chairperson were a registered practitioner, he or she could be perceived as representing the interests of a particular profession to a greater extent than the interests of other professions. The chairperson will be entitled to vote on issues at a meeting and will have a casting vote when a vote is tied. If the chairperson is a member of a particular profession, it could be construed that the profession has an unfair advantage over the other professions which will have just one vote.

I would now like to speak about amendment No. 5. The Bill, as currently drafted, provides that when the Minister appoints the members of the health and social care professionals council, he or she will consult a wide range of organisations, as he or she considers appropriate. As I mentioned on Committee Stage, this section of the Bill would be overly prescriptive if the word "may" were to be replaced by the word "shall".

On this basis I consider it more appropriate to leave this section as it stands because this subsection of the Bill provides for the Minister to consult with any organisation considered appropriate. Therefore, I do not propose to accept the Senator's amendments.

I never suggested putting forward a registrant with a spine like a begonia. I think it is a pity to rule out people in this way. One might find just the right person for the job and he or she could be ruled out because of this stipulation.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 13, line 1, to delete "may" and substitute "shall".

Question put: "That the word proposed to be deleted stand."
The Seanad divided: Tá, 27; Níl, 15.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

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

As amendment No. 6 is consequential on amendment No. 7, these amendments may be discussed together by agreement.

Government amendment No. 6:
In page 18, line 27 after "may", to insert ", subject tosubsections (3) to (5),”.

In keeping with the emphasis placed by Senators during Committee Stage on transparency and appropriate competition, these amendments are designed to strengthen and augment existing provisions in the Bill with regard to the way in which the council carries out its functions. Amendment No. 6 is technical in nature and is required because of amendment No. 7.

Amendment No. 7 deals with the publication of rules and draft rules by the council. Providing for the publication of rules by the council in draft form represents a further step in ensuring its openness and transparency. This proposed amendment, which is based on the amendment tabled by Senator Browne on Committee Stage, provides that before making a rule the council must publish the draft rule and invite comments from the general public. This should ensure that members of the public, professional bodies and other interested parties will have an opportunity to contribute to the content of rules made by the council. In addition, this amendment provides that as soon as possible after a rule is made the council must publish it in the manner it considers appropriate. This provision is intended to enhance the openness and transparency of the council. I hope Senators will support these amendments.

Amendment agreed to.
Government amendment No. 7:
In page 19, between lines 9 and 10, to insert the following:
"(3) The Council shall ensure that—
(a) a draft of any rule that is proposes to make is published in such manner as the Council may determine, and
(b) with the draft is published an invitation to members of the public, any organisation and any other body to comment on the draft before a date specified by the Council in the invitation.
(4) After considering any comments received before the date specified in the invitation, the Council may—
(a) make the rule in the form of the draft as published or with such changes as the Council may determine, or
(b) decide not to make the rule.
(5)Subsections (3) and (4) apply also in relation to a proposed amendment or revocation of a rule.
(6) The Council shall ensure that as soon as practicable after a rule is made it is published in such manner as the Council may determine.".
Amendment agreed to.

Amendments Nos. 8, 20 and 28 are related and may be discussed together by agreement.

Government amendment No. 8:
In page 19, between lines 22 and 23, to insert the following:
"(3) In making appointments undersubsection (2) to a committee, the Council shall have regard to the necessity of including as members of the committee an appropriate number of persons representative of the interest of the general public.”.

As outlined in the debate on an amendment tabled by Senator Browne on Committee Stage, it is accepted that the public interest should be specifically identified as a distinct constituent of the committee of the council including disciplinary committees. These amendments therefore propose that the council and registration boards should have regard to the requirement for appropriate representation of the public interest when establishing committees, including disciplinary committees. However, rather than be overly prescriptive it is more appropriate that the council should have the power to exercise discretion on the size of the committee as different issues would call for different sized committees. I appreciate the thinking behind Senator Browne's amendment and the amendments I have put forward meet his general concerns. Senators may wish to note that a typographical error exists in amendment No. 20, and therefore I am making a verbal amendment to correct this error by inserting the word "under" between "appointments" and "subsection".

Amendment agreed to.
Amendment No. 9 not moved.

I move amendment No. 10:

In page 20, line 38 to delete "fostering" and substitute "assuring".

As I said when tabling a similar amendment on Committee Stage, we must do more than foster high standards. Registration boards must ensure high standards. The word "fostering" does not place a sufficient onus on them to do so.

I second the amendment. Senator Henry makes a valid point. Standards should be achieved, not aspired to. Quality assurance involves being as good as the standard that is set. It cannot be merely fostered. People must be assured that standards are met.

In instances where complaints are made against a registered practitioner it is a matter for the council to establish a disciplinary committee to investigate the complaint. The role of each registration board in the disciplinary process is, following the completion of a fitness to practice hearing, to recommend a sanction to be imposed on a registered practitioner. A registration board has therefore no role in assuring high standards of professional conduct. As set out in section 27(3), its function in this regard include giving guidance to registrants concerning ethical conduct and giving guidance and support to registrants concerning the practice of the designated professional. This will be achieved primarily through the formation of by-laws governing codes of professional conduct and ethics. The Bill is intended to protect the public but if, for instance, a person decided against making a complaint they cannot be guaranteed full protection. The word "fostering" is the appropriate word. I am not in a position to accept the Senator's amendment.

I do not accept the Minister for State's explanation. This section refers to the object, function and powers of the registration boards. It is stated that the objective is to protect the public, which should require more than fostering high standards of professional conduct and professional education, training and competence among the registrants. That is insufficient assurance for the general public.

Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 11:

In page 22, lines 22 and 23, to delete "who are engaged in the practice of the designated profession" and substitute "who hold the qualification as indicated inSchedule 3 of the relevant profession”.

The wording as it stands is too loose. It implies that no professional qualifications might be required. It is not specified that a person must possess professional qualifications. That is the reason for my amendment. The Minister for State is saying through this wording that it is sufficient to be engaged in practice but professional qualifications should be necessary. It means I could in the morning begin to practise as a councillor, chiropodist, podiatrist or other profession. If this legislation is allowed to go forward, nothing could be done about my lack of qualifications.

I second the amendment.

Schedule 3 sets out the qualifications required by existing practitioners to enter their professions. I appreciate the general purpose of the Senators in amendment No. 11 but restricting the membership outlined in Schedule 3 would have the effect of excluding all those practitioners. Restricting the members of the first registration board of each profession to those who hold the qualifications listed in Schedule 3 would be inappropriate as this would exclude all those practitioners who have been in competent practice for some time and who would gain registration through the grandparenting arrangements but would not hold a qualification listed in Schedule 3. Restricting the members of the first registration board of each profession to those who hold the qualifications listed in Schedule 3 would also exclude those practitioners holding a letter of validation under the process set out in the EU directives on the recognition of professional qualifications. I have no doubt, however, that in appointing members to the first registration boards the Minister will endeavour to ensure that such members are appropriately qualified and competent to perform the functions expected of them as members of a registration board and, therefore, I do not propose to accept the Senators' amendment.

Amendment, by leave, withdrawn.

I move amendment No. 12:

In page 22, line 28, after "profession" to insert "or where there is no such institution in the State, a person engaged in the education and training of persons with respect to the practice of the designated profession in another Member State of the European Union".

It is important that the Minister examine this amendment because there is no training institution in this country in respect of some of the professions already described in the Bill, for example, podiatrists. I had hoped we could include such an amendment in the Bill because it is very important to have someone who is involved in education on these boards. If we do not have such a person from an institution in the State, and this goes back to the Bologna process, we should get someone from another European country who has the necessary training to assist us until we have institutions as are required.

I second the amendment, which makes eminent sense.

It is not considered appropriate that a member of a registration board under the aegis of the health and social care professionals council should be based outside the State. I am conscious that, in more general terms, expertise from abroad may sometimes be helpful. If the expertise of an education representative from outside the State is considered necessary, such a person could be invited to sit in a committee of a registration board in accordance with section 32 or under section 12, which provides that the council can make and carry out arrangements with any person or body to assist it, a registration board or a committee of the council in performing their functions or exercising their powers under the Act.

On the school of podiatry, we have been making much progress in that regard. We have had a number of meetings with the HEA, the HSE and the Department of Education and Science and we hope that position will be rectified in the near future. I am not in a position to accept the Senator's amendment.

I am very disappointed because it would appear it is better to have no representation from education than to have someone from a country which is aspiring to have the same academic qualifications in that discipline. Again, I go back to the Bologna process and ask if the Department of Education and Science was consulted about this legislation because it has a major bearing on it. We are concerned, as the Minister of State is aware, about mobility of labour and these are the sort of issues that are important. Where will we be if we are told that because we do not have someone from an educational institution on a board, that will not be considered as adequate under the Bologna process?

Amendment, by leave, withdrawn.

Amendment No. 13 is a Government amendment, which is consequential on amendment No. 19. Amendments Nos. 14 to 18, inclusive, are related to amendment No. 19. Is it agreed to discuss amendments Nos. 13 to 19, inclusive, together? Agreed.

Government amendment No. 13:
In page 23, line 22 after "may", to insert ", subject tosection 32,”.

These Government amendments are intended to meet the purpose of the amendments put forward by Senator Browne and Senator Hayes and also to build on the Committee Stage discussion. As the Senators may recall, during the Committee Stage debate my Department undertook to meet with the Competition Authority to discuss the most appropriate means of making provision in the Bill that draft by-laws relating to the code of professional conduct and ethics be competition proofed by the Competition Authority in advance of becoming binding on registrants.

Amendment No. 19 proposes a new section dealing with publication and other requirements relating to draft and other by-laws. This proposed amendment, which was drafted with the assistance of the Competition Authority, provides that before making a by-law a registration board must publish the draft by-law and invite comments from the general public. This will ensure that members of the public, professional bodies and other interested parties will have an opportunity to contribute to the content of by-laws made by a registration board. After the date for receipt of comments and the passing of a draft by-law of the registration board, the proposed amendment provides that a registration board must consider any comments received and may amend the draft by-law if considered appropriate.

If the by-law relates to the adoption or revision of a code of professional conduct or ethics, the registration board is then obliged to submit the draft of the by-law to the Competition Authority for its opinion as to whether any provision of the draft by-law would be likely to result in competition being prevented, restricted or distorted.

A registration board will set down a timeframe within which the Competition Authority should submit its opinion. If, within the timeframe set down, a registration board receives an opinion from the Competition Authority that competition is likely to be prevented, restricted or distorted if the by-law were made, the board can either accept that opinion and change the by-law accordingly before submitting to the council for approval or otherwise submit the draft by-law unchanged to the council with its written reasons as to why it has not taken the opinion of the Competition Authority into account. It would clearly not be appropriate to oblige a registration board to amend a draft by-law in light of the opinion of the Competition Authority. In each case it is appropriate to give a registration board discretion to balance the public interest with competition considerations as necessary.

In addition, this amendment provides for a second step in the development of by-laws of a registration board as soon as possible after a by-law is made. The amendment obliges a registration board to publish it in the manner it considers appropriate. This provision is intended to enhance the openness and transparency of the boards.

I should add that amendments Nos. 13 and 15 to 18, inclusive, are technical drafting amendments. Amendment No. 13 is intended to reinforce the publication and other requirements imposed upon a registration board under amendment No. 19. This meets the purpose the Senators have in mind and I do not propose, therefore, to accept amendment No. 14.

I welcome the Government amendment. To be fair to the Minister of State, Deputy Tim O'Malley, he did say on Committee Stage that he would bring forward an amendment. He has brought forward a comprehensive amendment and, as a result, I do not intend to move amendment No. 14. The purpose of my amendment was to ensure that the professions would not become closed shops, as some have, and that this Bill would not over-regulate and lead to a reduction of competition, which would be to the disadvantage of everyone concerned.

I have no problems with the amendments as drafted. I am glad, however, that the registration board or the council may ignore the Competition Authority if they see fit because some of the more daft utterances from the Competition Authority from time to time would make one very nervous. It believes competition would give us a better health service and appears to be oblivious to the fact that the most competitive health service market in the world is also the most expensive and the least effective in terms of life expectancy and mortality, namely, the United States. The Competition Authority is an important body and it serves a purpose but I would not like it to have a veto over issues to do with ethics, quality of care and so on, which, given its belief in its own internal wisdom, it would be liable to do. I welcome the amendments as drafted.

Amendment agreed to.
Amendment No. 14 not moved.
Government amendment No. 15:
In page 24, lines 12 and 13, to delete "or a proposed amendment of a bye-law under either paragraph".
Amendment agreed to.
Government amendment No. 16:
In page 24, line 14, to delete "or amendment".
Amendment agreed to.
Government amendment No. 17:
In page 24, lines 15 and 16, to delete "or amendment".
Amendment agreed to.
Government amendment No. 18:
In page 24, between lines 18 and 19, to insert the following:
"(6)Subsection (5) applies also in relation to a proposed amendment or revocation of a bye-law under paragraph (c) or (h) of subsection (1).”.
Amendment agreed to.
Government amendment No. 19:
In page 24, between lines 20 and 21, to insert the following:
32.—(1) A registration board shall ensure that—
(a) a draft of any bye-law that it proposes to make is, before the draft is submitted to the Council for approval, published in such manner as the board may determine, and
(b) with the draft is published an invitation to the public, any organisation and any other body to comment on the draft before a date specified by the board in the invitation.
(2) After considering any comments received before the date specified in the invitation, the registration board may—
(a) subject to subsections (3) to (5), submit to the Council for approval the draft bye-law either in the form in which it was published or with such changes as the board may determine, or
(b) decide not to proceed further with the draft bye-law.
(3) If a draft bye-law that a registration board proposes to submit to the Council undersubsection (2)(a) relates to the adoption or revision of a code of professional conduct and ethics, the board shall—
(a) before submitting the draft bye-law to the Council, submit it to the Competition Authority for its opinion as to whether any provision of the draft bye-law would, if the bye-law were made, be likely to result in competition being prevented, restricted or distorted, and
(b) request that the opinion be given in writing to the board before the date specified in the request.
(4) If, before the date specified in the request, the registration board receives from the Competition Authority a written opinion that a provision of the draft bye-law would, if the bye-law were made, be likely to result in competition being prevented, restricted or distorted, the board shall—
(a) take that opinion into account and change the draft bye-law accordingly before submitting it to the Council for approval, or
(b) without making any changes to the draft bye-law, submit it to the Council for approval and supply the Council with a copy of the Authority’s opinion together with the board’s written reasons for not taking the opinion into account.
(5)Subsections (2) to (4) apply also in relation to a proposed amendment or revocation of a bye-law.
(6) A registration board shall ensure that as soon as practicable after a bye-law of the board is made the bye-law is published in such manner as the board may determine.".
Amendment agreed to.
Government amendment No. 20:
In page 24, between lines 29 and 30, to insert the following:
"(3) In making appointments undersubsection (2) to a committee, a registration board shall have regard to the necessity of including as members of the committee an appropriate number of persons representative of the interest of the general public.”.
Amendment agreed to.

Amendments Nos. 22 and 23 are alternatives to amendment No. 21 and cannot be moved if it is accepted. The amendments may be discussed together, by agreement.

Government amendment No. 21:
In page 30, to delete lines 23 and 24 and substitute the following:
"(b) publish, by electronic means or otherwise, its register at intervals of not more than 12 months from the date of the establishment of the register or the last publication of the register.”.

The maintenance of a comprehensive, accurate and up-to-date register of practitioners which is accessible to the general public is crucial to the effective discharge of the role of each registration board. Amendment No. 21 takes account of the proposals by Senators McCarthy and Henry on Committee Stage that the Bill should provide for access to the register on the Internet and for its publication on an annual basis. The amendment also address the proposals set out in Report Stage amendments which Senators have tabled.

Amendment No. 21 is broad in providing that the register can be published by electronic or other means. It will be open to a registration board to publish its register on the Internet and not to restrict it to this medium alone. In addition, by providing that a registration board must publish its register at intervals not greater than 12 months, the amendment ensures a register must be published at least once a year and can, if appropriate, be published at a shorter interval. I do not, therefore, propose to accept amendments Nos. 22 and 23.

Amendment No. 21 deals with the proposals set out in my amendment. I could barely believe the provisions set out in the original Bill whereby a register could be published at the times and in the manner a registration board considered appropriate. The most important point with a professional register is to ensure that those who should be off it are taken off it while those who should be on it are included. Members of the public can then find out who is on the register. The only appropriate approach is to publish the register every 12 months at the latest.

While I broadly welcome the amendment, I quibble with the wording "published by electronic means or otherwise". The Internet is an additional method of publication rather than a substitute. A board should be required to maintain and publish a printed register also. My amendment seeks to include the wording "on the Internet and otherwise". The Internet is not a substitute for books, newspapers or printed registers. This is a quibble and I welcome the provision to ensure annual publication at least. Publication could take place more often, however, especially if an electronic register is maintained, which it would require little effort to keep up to date.

Amendment agreed to.
Amendments Nos. 22 and 23 not moved.

Amendments Nos. 24 to 27, inclusive, are related and may be discussed together, by agreement.

Government amendment No. 24:
In page 33, line 26, to delete "The members of each committee shall be appointed" and substitute "Each committee is to consist of the chairperson and such other members of the committee as are appointed".

These Government amendments are of a technical, drafting nature. On foot of the debate on an amendment tabled by Senator Browne on Committee Stage, it is accepted that the public interest should be identified as a distinct constituent of a committee of the council, including disciplinary committees. While I understand fully the thinking behind the Senators' amendments, I consider amendments Nos. 8 and 28, which amend section 23 on committees of council and section 50 on disciplinary committees, respectively, deal with the issues raised.

Amendment No. 8 proposes that in making appointments to a committee under subsection (2), the council shall have regard to the need to include an appropriate number of persons representative of the interests of the general public. Amendment No. 28 proposes that in page 33, line 33, after "registrants" to insert ", at least one of whom shall be representative of the interest of the general public". I do not, therefore, propose to accept amendments Nos. 25 and 27.

I thank the Minister of State for accepting the concept informing the Fine Gael amendment moved on Committee Stage which sought to serve the public interest. The danger is that if a clear majority of committee members are registrants, it might be difficult to ensure fair decisions are made. I welcome the Government amendment.

Senator O'Toole spoke on Committee Stage of the exclusion of politicians from appointments to boards. Such disgraceful provisions are made in every Bill. One would think it was a crime to be a politician.

Criminals, bankrupts and politicians are excluded.

The exclusion should be challenged. I would love to see someone take a court action under equality legislation. If a Senator, Deputy or local authority member wishes to be a member of a board to which he or she has a contribution to make, he or she should be allowed to be appointed. Public representatives should not be disbarred because they are Members of the Oireachtas. While it is not an issue to discuss further today, it is one worth bearing in mind for later. I am not sure what group of people has an agenda which is against politicians, but I feel more and more that it is considered a crime to be one. If a person is willing to bring experience as an individual and public representative to bear in a committee, he or she should be allowed to do so. The Minister of State should consider the exclusion in the Bill of politicians from any committee or board.

I support Senator Browne's comments. There are many bodies from which I am legally excluded, some of which have to do with education and for some of which I am qualified to be a member, due to my membership of the Oireachtas. It seems to be fine to appoint the public relations adviser of the Minister for Transport to the Higher Education Authority but not to appoint a Member of the Oireachtas who is otherwise qualified. I do not speak about the general principle as it relates to the Health Service Executive, but to the suggestion that an elected representative in the Oireachtas of university graduates who happens to be, as was often the case in the past, an eminent academic, should be excluded from a body in an area in which he or she has considerable expertise. It is not only offensive, but daft.

Amendment agreed to.
Amendment No. 25 not moved.
Government amendment No. 26:
In page 33, line 32, to delete "and at least" and substitute ". At least".
Amendment agreed to.
Amendment No. 27 not moved.
Government amendment No. 28:
In page 33, line 33 after "registrants", to insert ", at least one of whom shall be representative of the interest of the general public".
Amendment agreed to.

As amendment No. 30 is an alternative to amendment No. 29, it cannot be moved if amendment No. 29 is agreed to. The amendments may be discussed together, by agreement.

Government amendment No. 29:
In page 37, to delete lines 33 to 35 and substitute the following:
"(3) A hearing before a health committee shall be held otherwise than in public, unless—
(a) the registrant or the complainant requests that all or part of the hearing be held in public, and
(b) the committee is satisfied that it would be appropriate in the circumstances to hold the hearing or part of the hearing in public.”.

Amendment No. 29 arises on foot of an amendment proposed by Senator Browne on Committee Stage. He has had a significant influence on the Bill. As indicated during the debate on the proposed amendment, it is accepted that as it is proposed in the case of an inquiry carried out before a professional conduct committee, it is appropriate that there would be some checks and balances on a registrant's right to reverse the general principles set out in the Bill, particularly where sensitive personal matters relating to a complaint may be the subject of examination. It was indicated that the content of Senator Browne's proposed amendment was acceptable, subject to drafting changes required by the Parliamentary Counsel. This amendment now incorporates those drafting changes and takes account of the content of the amendment now proposed by Senator Browne and Senator Brian Hayes.

Senators will note that the Government amendment also provides for the complainant to request that all, or part, of a hearing be held in public. This is considered to be in line with fair practice. The committee must be satisfied as to the appropriateness of holding the hearing, or part of it, in public. I do not propose to accept amendment No. 30.

I thank the Minister for accepting the main thrust of our amendment. I will withdraw amendment No. 30 in light of Government amendment No. 29. This is a most awkward issue on which we have to achieve a balance between the complainant's right to privacy because he or she might not want his or her medical history divulged in public, and the right of the person complained against to have due process.

This amendment arose from a comment made by Senator Henry on Second Stage so I am afraid I cannot take all the credit for it. A person making a complaint should not be put off by the threat of having a hearing in public with the consequent airing of private medical history. A balancing act is required which will respect that. I welcome the Government amendment which I hope will ensure people get fair play.

As Senator Browne said, this addresses the concern I expressed on Second Stage. Sometimes complainants do not realise how much information will come out in public. They have to be given the opportunity to have their complaint brought forward in private. People should not be put off by the fact that there may be publicity. I welcome the Government amendment.

Amendment agreed to.
Amendment No. 30 not moved.

I move amendment No. 31:

In page 38, lines 40 and 41, to delete all words from "a video" in line 40, down to and including "transmission" in line 41 and substitute "or any other mode of transmission, provided that where cross-examination is sought by a party to the inquiry, the mode of transmission must permit of such cross-examination".

We could argue all day about the precise wording but our concern here is that under section 58, a committee of inquiry has all the powers, rights and privileges that are vested in the court. Nobody would disagree with that. A committee of inquiry may receive evidence given, including by means of a live video link, a video recording, a sound recording or any other mode of transmission. The problem with a video recording is that one cannot cross-examine because, by definition, it is something that has already taken place. The same is true of a sound recording. Our amendment suggests that where cross-examination is sought by a party to the inquiry the mode of transmission must permit such cross-examination.

As I suggested to the Minister, the assertion that people would have the rights and privileges of a witness in a court case means that if one does not comply with that, people will resort to the High Court to vindicate their right to cross-examination. As it stands, the Bill does not guarantee that right.

I second the amendment. I am sure Senator Ryan is right, in that it would be challenged and that we would all end up in the High Court with this.

I understand the importance of cross-examination where appropriate and the need to ensure that this facility is available where necessary. Section 57(4)(c) provides that at a hearing before a committee of inquiry into a registrar’s fitness to practice there shall be a full right to cross-examine witnesses.

Section 58(4) expands on this provision by enabling a committee of inquiry to receive evidence given orally, by affidavit, or as otherwise allowed, including by means of a live video link, a video recording, a sound recording or any other mode of transmission. However, it is important to note that a committee may only receive evidence in these ways subject to any rules enforced under section 22 and to the necessity of observing fair procedures. The proposed amendment relates to paragraph (c).

It is important to note that paragraph (c) only comes into operation if rules are made under section 22 which authorises the council to make rules specifying the form in which, and the means by which, evidence of submissions may be received by committees of inquiry. The rules may also specify the conditions subject to which evidence of submissions may be received by means of a live video link, a video recording etc. Therefore, the means by which a committee of inquiry may receive evidence given orally, by affidavit, or as otherwise allowed, including by means of a live video link, a video recording, a sound recording or any other mode of transmission, is subject to the conditions set out in the rules as well as the necessity of observing fair procedures.

Moreover, the paragraph must be read in the context of the Act as a whole, including section 57(4)(c), which provides that there shall be a full right to cross-examine witnesses. Although non-live videos do not allow for immediate cross-examination, evidence given by this means may be sufficient in certain circumstances. It would be in those circumstances that a video recording would be used, not in circumstances that require cross-examination of a witness. In some cases there would not be any requirement for cross-examination with regard to video or sound recording evidence.

My Department sought the view of the Office of the Attorney General in this regard and the advice is reflected here. It is therefore not proposed to accept the Senator's amendment.

Given the number of legislative measures the Supreme Court has thrown out after the advice of the Attorney General that they were constitutional, I would not get too carried away with that if I were the Minister. It is an extraordinarily roundabout way of doing something very simple. An affidavit is something which the courts have defined in a very precise way so as to ensure that what is in an affidavit is what somebody said. One is walking in to all manner of dangerous territory if one starts getting involved with video and sound recordings. I do not believe one can give a guarantee of integrity to a video or sound recording of the kind that is given in an affidavit. That is why the amendment provides that "any other mode of transmission" should include the ability to cross-examine. If a sound or video link is not live, it gives rise to all kinds of issues.

I cannot see the point of video or sound recordings unless they involve technical judgments, in which case they are better off written down. Our amendment satisfactorily encompasses what is in the Government proposal but leaves open the possibility of cross-examination. As it has been clear since we commenced this debate that it was the Government's intention not to accept any amendment, I do not propose to pursue this matter further.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 32:

In page 47, between lines 16 and 17, to insert the following:

"(6) (a) In this Act, the title ‘physical therapist’ shall be deemed equivalent to the title ‘physiotherapist’ and its use restricted exclusively to those professionals who are registered as physiotherapists.

(b) Anyone contravening paragraph (a) is guilty of an offence.”

Amendment put.
The Seanad divided: Tá, 13; Níl, 25.

  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McHugh, Joe.
  • Phelan, John.
  • Ross, Shane.
  • Ryan, Brendan.
  • Terry, Sheila.

Níl

  • Brady, Cyprian.
  • Brennan, Michael.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Phelan, Kieran.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Browne and Henry; Níl, Senators Minihan and Moylan.
Amendment declared lost.

Amendment No. 33 is a Government amendment. It was also tabled by Senator Browne.

Amendment No. 33 was tabled by Senator Quinn and myself.

My apologies. Amendment No. 33 is a Government amendment, which was also tabled by Senator Quinn and Senator Henry. Amendment No. 34 is consequential on amendment No. 33, therefore, amendments Nos. 33 and 34 will be discussed together, by agreement.

Government amendment No. 33:
In page 47, lines 42, to delete "€2,500" and substitute "€3,000".

Joy will be unconfined when Senator Quinn discovers that this amendment has been accepted. However, of all the amendments that we tabled, which were of great importance to the Bill, this was probably the one about which we were least concerned. However, we must be grateful for small mercies as that is all we have been getting in this debate.

This amendment arose on Committee Stage, when concern was expressed that the size of the fine for a person guilty of an offence under section 79 was too small. As was indicated at the time of the Committee Stage debate, an increase in the size of the fine was accepted in principle, subject to further discussions with the office of the Attorney General. Those discussions have taken place and I am pleased to accept amendment No. 33. However, the Government does not accept the related amendment tabled by Senators Browne and Hayes, which attempts to ensure that the fine is increased in line with inflation. This is a broader policy issue that is more appropriate for consideration by the Office of the Attorney General. If this approach is adopted, it should be adopted across all legislation and not just for this Bill. Therefore, the Government does not accept amendment No. 34.

I welcome amendment No. 33. I am not surprised by the Minister's response to amendment No. 34 and I appreciate that it would have wide-ranging implications for all legislation. However, it is something that should be examined. One can take the example of the current legislation regulating the sale and use of fireworks. The maximum fine for a person in possession of fireworks is €5, which proves how outdated legislation can become, though admittedly that is an extreme case.

It would make sense when framing legislation to index-link fines. This would enable more reasonable penalties to be imposed on those who break the law. I appreciate why the Minister of State cannot agree to that for this Bill, but it is an issue he should take up with the Attorney General and the Government. All legislation should include a provision that monetary fines will increase with inflation to avoid becoming obsolete and irrelevant.

I take on board what the Senator has said and I will bring the matter to the attention of the Attorney General.

Amendment agreed to.
Amendment No. 34 not moved.

I move amendment No. 35:

In page 50, line 35, after "profession" to insert "for a minimum period of three years full-time practice".

I am aware of the difficulties in dealing with existing practitioners. Grandfather or grandmother clauses are extremely important because we do not wish to see people who, because of the form of training they underwent in the past, are ruled out of practising in their profession. However, the Bill is rather loose in stating that an individual can be registered if he or she has been engaged in the practice of a profession at any time during a period of five years, ending on a relevant date. An individual should be engaged in his or her profession for a substantial amount of time in the previous five years, not just the occasional weekend, which section 90 could be construed as meaning. It is essential to have a minimum period and I have proposed three years, full-time, but I am not rigid on this. However, we need a better description than that contained in the Bill at present.

I second the amendment. It makes perfectly reasonable sense. The wording "at any time during the period of 5 years ending on the relevant date," is incredibly loose.

I could write the Minister of State's response. It will be to the effect that the Government has no desire to make the Bill excessively prescriptive, etc. The truth is that there ought to be some evidence that people are competent professionals who have been working in the area for a reasonable period of time, such as Senator Henry. It matters not to me whether it is two or three years, but it ought to be a reasonable period of continuous time. If people have practised only for a short period, say, five years ago, it is not reassuring for the public that they may not be up to speed with developments.

This amendment refers to section 90, which provides for the registration of existing practitioners. Applicants must either hold the relevant qualification under Schedule 3 or completed an assessment of successful competency set by the registration board in accordance with any guidelines issued by the council. In addition, each registration board will have to satisfy itself that each practitioner applying for registration under section 90 is a fit and proper person to engage in the practice of that profession and it is appropriate to give a registration board discretion in this regard. It would not be appropriate to restrict eligibility to those who have been in full-time practice for a minimum period of three years in the five years ending on the date the register for a particular profession opens. Once a practitioner is registered with a registration board, he or she will be subject to the fitness to practise procedures set out in Part 6. The Health and Social Care Professionals Council will be able to ensure the competence of a registered practitioner through the making of by-laws, etc. If a person is not registered with the council, it will have no role in ensuring that practitioner's competence. It is, therefore, not proposed to accept the Senator's amendment.

Amendment, by leave, withdrawn.

I move amendment No. 36:

In page 61, line 5, in the second column, to delete "Chiropodists" and substitute "Podiatrists".

I second the amendment.

Amendment put and declared lost.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I am sorry that many of the amendments we tabled were not accepted. I am particularly concerned about the Bologna process. I went to Trinity College and got the relevant documents. Before this Bill goes into the Dáil someone needs to look at it very carefully as regards the Bologna process and to consult with both the Department of Education and Science and the universities as well as the other institutes of higher education involved with these professions. Parts of this Bill will be in conflict with the Bologna process, which Ireland has so strongly supported. No Department is totally independent in so far as the legislation it enacts does not affect any other. I respectfully request that someone looks at the legislation from that perspective before it goes into the Lower House.

I thank the Minister and his officials on behalf of myself and my colleagues. This is an interesting Bill. I did not know about words such as "podiatrist" and "physical therapist" before it was introduced. I am somewhat wiser now. I am not so sure that I know all the answers, but I am clearer in my own mind about certain issues.

I thank the Minister of State and his colleague, the Minister of State at the Department of Health and Children, Deputy Tim O'Malley, for accepting the Fine Gael amendments on Committee Stage and for bringing them forward on Report Stage. That is the way politics should be, and it justifies our existence in the House. I have one main problem with the Bill, however, namely, the definition of "physical therapist" and the awarding of title. This is going to be a problem area.

The Minister of State said that he has been awaiting word from the physical therapists for the last six months. During one of the divisions I made a telephone call to ascertain the position. There appears to be some confusion. As far as they are concerned they received a letter from the Department, with seven points for clarification. They replied to the Department seeking clarification and they are awaiting word from the education body concerned as well. The education body had advised that their position was safe and they had a right to use the title. They have requested meetings with the Minister of State's Department. Perhaps he might investigate that situation again, to see what is happening. It would be amazing if the physical therapists, who came across to me as being members of a very professional body, which is effective in terms of lobbying, would allow six months to elapse without anything being done. Perhaps the Minister of State might indicate whether they have sought meetings with the Department, acknowledged receipt of the letter and the role played by the educational body.

I thank the Minister of State and the officials. It is a pity that, in a variation of a trend that has developed here, many matters were not accepted on the basis of arguments which were not persuasive. I firmly and vigorously support what Senator Henry said about the Bologna process. It is, perhaps, the central guiding principle for future recognition of third level qualifications. If we were to set off in an opposite direction because the Department of Health and Children had not properly worked out how these proposals fit in to the structure of the process, it would be a terrible setback for Irish third level education in general, probably one we would have to re-visit later, at great cost.

While I understand from the Minister of State that his Bill was a product of consensus among the professions that are listed here, the fact that some of them cannot agree among themselves should not mean that we cannot regulate them, particularly where there is perceived public need to have standards in place. The Minister of State at this stage ought to vigorously inform a number of other professions, psychotherapy and counselling included, that if they cannot come up with an agreed position, we will provide them with one.

I strongly support the Bill. It is long overdue. Coming from a profession, I am aware as are most Members, that it is imperative to protect members of different professions. That is why this Bill is so important. It is also important that other groups may be taken on board since this is enabling legislation. That is very significant.

I had discussions with the physical therapists. They want to be a stand alone profession. It is important to appreciate what has been sought by the Department. I take on board what Senator Browne said about clarification being sought. I believe that in time the merits of this legislation will be borne out. The timing of the Bill is good. It has received great attention from all sides of the House. All the contributors gave it serious consideration, not just on Report Stage, but also on Committee and Second Stages. It is one of the most important Bills to come before the Seanad since I became a Member. I look forward to the Bill's enactment.

It is outrageous that people may put up plaques claiming to be something they are not. There is the horrendous situation pertaining to the Killaloe clinic and with people practising alternative medicine. That is a matter for another day and something in which I have an abiding interest on behalf of the public. This is really a consumer issue that exists due to a legislative void. I exhort all sides of the House to ensure that corrective action is taken sooner rather than later.

I thank Members for their contributions and officials from the Department for their assistance with this Bill. There was widespread consultation with the different groups before the Bill was drafted, so we achieved consensus on a number of issues. There is still a certain misunderstanding from some quarters. Regarding the matter raised by Senator Browne, I did not say that we were waiting for a response for six months. To the best of my knowledge, a meeting with the group to which the Senator refers took place in March. Following the meeting, a letter was issued by the Department to the group, seeking clarification on a number of issues. We are still awaiting a response to that letter. If the position is any different, I will inform the Senator.

Members made a number of suggestions at different Stages of the Bill and we have taken some of them on board and incorporated them with the amendments made today. If groups are prepared to suggest other changes that will improve the legislation on this area, we will be happy to take them on board.

Question put and agreed to.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.