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Seanad Éireann debate -
Thursday, 20 Dec 2007

Vol. 188 No. 6

Health (Miscellaneous Provisions) Bill 2007: Committee and Remaining Stages.

I welcome the Minister of State, Deputy Brendan Smith, to the House.

SECTION 1.

I move amendment No. 1:

In page 3, between lines 16 and 17, to insert the following subsections:

"(2) This Act, other than the provisions referred to in subsection (3), shall come into operation on its passing.

(3) Schedule 1, insofar as it inserts Article 4A in the St. James’s Hospital Board (Establishment) Order 1971 and in the Beaumont Hospital Board (Establishment) Order 1977, shall come into operation on such date as may be specified by Order made by the Minister, provided that a draft of such Order is approved by both Houses of the Oireachtas by resolution.”.

I support this amendment. The Minister dealt with this in the Dáil and stated she was not in a position to make an order, which would require further legislation. Will the Minister of State clarify when it is intended to bring in such legislation so that the Minister can make an order on these issues? What is the impact of her not being able to make an order currently, arising from the position she finds herself in as a result of the Attorney General's advice?

My points on this section will highlight the request of the Opposition that the advice of the Attorney General be published. In the absence of its publication, the Government is asking the Opposition, as Senators have noted, to accept on trust what is required. For good legislation, we need the detail of why the Attorney General is at this point indicating this legislation is needed.

We have also been told that the boards of St. James's and Beaumont hospitals do not believe this is necessary, despite it being the advice of the Attorney General and the counsel he has received. The boards of the hospitals have indicated they do not need the legislation.

Arising from this, will the Minister of State clarify the wording of "sale" and "lease"? When I raised this yesterday, the Minister indicated this was the first question she herself had when she became aware of the issue. My colleague, Senator Bacik, shares my concern, and Senator Feeney addressed the matter also. On reading, to any lay eye it looks like sale could be implicit and it is passing over significant authority to those who would develop private hospitals on the land of St. James's and Beaumont hospitals.

It looks ambiguous to say the least. Although it may be legalese, I am nervous of the way it is written and the words used. It implies a potential to sell the land. When co-location was spoken of, it was always stated that there was no intention to sell the land.

Will the Minister of State give some more detail on why the wording is acceptable? When the Minister has the authority to introduce a statutory instrument, will she be able to address the matter at that point and go into more detail? We know she is not in a position at the moment to make an order regarding anything referred to in the Bill, which in a way freezes her authority on these issues until she introduces legislation. At what stage of preparation is the legislation she intends to introduce? When does she intend to introduce it? What will it cover?

Fine Gael believes that the Government should have introduced one Bill putting the agencies on a statutory footing, which we accept needs to be done. However, we would also have liked to have seen the advice. We do not believe this Bill should have addressed the issues regarding the Health Service Executive or the other aspects of co-location, which does not help in terms of getting Opposition support for the Tallaght strategy the Minister seeks on health. The Dáil had a major debate on the co-location aspects, which I will address later.

I appreciate the work that officials from the Department of Health and Children put into complex legislation such as this. This is not a reflection on that work but on the political decision to introduce the three sections into the Bill rather than just following strictly the advice of the Attorney General which we understand only dealt with putting the agencies on a statutory footing. We do not know that for sure as the Minister was not definitive on the matter. It would appear, however, that the advice of the Attorney General referred only to the necessity to put the agencies on a statutory footing. Those are the points I have to make in support of Senator Prendergast's amendment.

I thank Senators Prendergast and Fitzgerald for their contributions. The intention of the amendment is to delay the commencement of the provision inserted in respect of the establishment orders for St. James's Hospital and Beaumont Hospital which is designed to put beyond doubt their capacity to enter into co-location arrangements. As the Minister, Deputy Harney, pointed out on Second Stage last night, the co-location initiative has been Government policy since July 2005. It is not a new policy or one the Government is trying to introduce by stealth. It has been the subject of debate in this House and in the Dáil on a number of occasions. It was one of the central planks of Government health policy that was put before the electorate at the general election some months ago.

The principle underlying the co-location initiative is simply to free up capacity for public patients and ease the pressure on waiting lists in accident and emergency departments. The initiative is founded on the principle that all patients ordinarily resident in our State should continue to have access to public hospitals. However, access to public hospitals should be based exclusively on need. Possession of private health insurance should influence neither timeliness of access or treatment regime. Co-location will help to bring about more equitable access to public hospitals and will redress the current imbalance in favour of private patients. Co-location will free up approximately 1,000 beds for public patients through the transfer of private patients to the new co-located hospitals. Co-location is the quickest and least expensive means of providing this additional capacity for public patients. There will be no direct capital cost to the State and the revenue costs will be minimal as the beds in question are already fully staffed and funded.

The boards of St. James's Hospital and Beaumont Hospital and their medical staff were not forced into co-location. On the contrary, both hospitals were developing plans for private hospitals on their respective sites before the co-location initiative was developed. The two hospitals are anxious to pursue the co-location initiative and I understand the advice they have received from their lawyers is that they already have the legal capacity to do so. However, the view of the Attorney General is that the case is arguable. These provisions have been included so that there would be no doubt as to the legal basis of the arrangements in the two hospitals. I do not see any benefit in delaying the introduction of the provisions.

The Minister, Deputy Harney, has consistently made the point that when the Bill is passed, no further orders can be made in respect of these bodies. The Attorney General has advised clearly, and his advice is privileged and cannot be released. Ministers and their Departments must abide by the advice of the Attorney General, the Government's legal adviser.

As has been stated on a number of previous occasions in this House, in the Dáil and in other public fora, the land and public hospital sites to be used in the development of co-located hospitals will be leased to the private partners. The public procurement process has proceeded on that basis and the private partners are well aware there is no question of the land being sold to them. The land for the co-located hospital at Beaumont is owned by the hospital board whereas the land at St. James's is owned by the Health Service Executive and is leased to the hospital board.

The phrase "disposal of land" in Article 4A(2)(b) was the subject of detailed discussions between officials of the Department of Health and Children and the Parliamentary Counsel. The advice of that office is that the language used in Article 4A is the appropriate formula regarding dealings in land. The land for co-located hospitals will be leased and Article 4A is designed to permit this and no more. Therefore, I do not propose to accept the amendment.

I welcome the Minister of State to the House. I am very disappointed because everybody keeps saying "no" to me on this issue, and it is Christmas. Regarding co-location, which represents a major policy shift to privatisation, what consideration has been given to the manpower implications for nursing, midwifery and other health professions arising from the building of co-located hospitals, primarily performing elective work, which therefore will be very attractive places to work? What measures will be introduced to ensure the remaining acute public hospitals can retain the necessary skilled nursing, midwifery and allied health professional workforce? In the absence of the necessary legislation, how will standards in these new hospitals be audited and maintained in a public and transparent fashion? These are genuine manpower questions which I would like the Minister of State to consider.

I welcome the Minister of State to the House. He has had a busy few weeks on the child care issue and this is other difficult legislation. I wish to make a number of points on co-location. It would appear to be an extraordinary Irish solution to an Irish problem in the health care system. I fundamentally disagree with what the Minister of State has said and the Minister's policy on co-location. The Minister is adamant that co-location deals with the issue of private beds in public hospitals. I strongly believe that the solution to that problem is not the building of co-located private hospitals. It is a fundamental error of approach by the Government, driven by Progressive Democrats ideology, which does not sit that comfortably with aspects of Fianna Fáil policy despite that party's support for it.

While we clearly need more public beds, despite what the Minister of State has said about it having been discussed a number of times in the House, there was never a detailed policy discussion on the move to co-location as the solution to the problem of private beds in public hospitals. The Irish health care crisis can be seen in the major unmet demand for health care. It manifests itself in different areas, including waiting lists for acute care, and a bed occupancy rate of 100% when the optimal is 85%. This has major implications for treating MRSA in terms of isolation beds and units for people with that illness, and the treatment of this disease is one of the greatest scandals of our time. Having recently met the lobby group that works to highlight the issues of MRSA and while it has not really hit the headlines, what is happening to individual patients in hospitals is a scandal. We have failed to tackle the issue at a national level and have not set sufficiently high targets for dealing with MRSA. It is an issue to which the House should return.

The crisis also manifests itself in accident and emergency units with people left on trolleys or hard chairs for long periods. Bed block is a term I do not like. The answer to all these issues does not lie in co-location and moving to the privatised model behind it. Some hospital groups support co-location. I am sure the Minister and her officials have considered this matter. Information is available about some of those groups which have broken regulatory practice in the United States and have had fines imposed on them totalling millions of dollars. Are there issues about those hospital groups being given such a key role?

I put this out as part of an agenda which should be examined. I am seeking reassurance that the Department of Health and Children and the Minister have examined this aspect of the issue. It may be that the regulatory system in the United States is so strong that it is inevitable health providers may get into trouble and it may not be as it seems. I want to name it and ask that the Department come back with a response on this issue of co-location at some time in the future.

An expert from Australia made the point that co-location was put in place in Australia over a period of ten years whereas we are planning to introduce it in Ireland over five years. The timeframe is an issue when so many other private hospitals are already in receipt of tax breaks to build private hospitals on greenfield sites. As the VHI has stated, it is doubtful whether as many private hospitals will be required in such a short period of time. In Australia many small, independent private hospitals were forced to close because there was not enough demand for private services. One co-located private hospital also shut down because it was not profitable.

I support what Senator Prendergast said about the questions which have not been examined by the Minister and the Department. There is a soundbite and a mantra about co-location. However Senator Prendergast has raised the issue of the impact of co-location on medical training of front line staff such as nurses, midwives, doctors, registrars and senior registrars and how training will be affected by the existence of a two-hospitals system. Many of those working in the front line have serious concerns about the impact of co-location, not just on training but also on the funding for public hospitals. The financing of public hospitals may be affected by the changes implied by co-location. We need to have more information from the Minister about the funding of public hospitals following co-location.

Where are those involved in serious accidents and those with long-term illnesses cared for? Is it in a private hospital or is it in the public health service? If an elderly parent has a long-term illness, such as Parkinson's or Alzheimer's, where do they end up being treated? If somebody is involved in a serious road traffic accident, he or she is brought to the accident and emergency department of a public hospital. The public hospital service caters for these long-term conditions and emergencies. There is a real danger that cherry-picking of work will happen when co-location is in place. Our public hospitals will require significant funding as a result but instead money will be directed into these private hospitals. I have no problem with private hospitals and private health care if that is what people choose to pay for through health insurance or if private companies choose to develop it. What I do not want to see is the blood drained out of our public health system in the interests of a model of co-location. This concern is shared by many experts in the field and by many commentators. If we are going to move to co-location, the very least I would expect in both this and the other House is a detailed debate providing answers to these questions and not a hasty announcement made in 2005 and pushed through as a policy before the general election.

This Bill raises these issues, although the Minister has stated this Bill is not being introduced as a result of the issues associated with St. James's and Beaumont hospitals.

These are just some of my concerns. Co-location will have very serious implications for the development and funding of our public health service and for the way in which it is perceived by the patients. Not all the proposed sites for co-location may proceed but these issues which I have raised are of concern to people worried about the future direction of our health service. This Bill provides us with an opportunity to comment on this issue in this House in some ways for the first time. It is not too late for further debate and time should be provided in both Houses for detailed discussion on some of the issues outlined and which arise as a result of the Minister proposing this legislation concerning St. James's and Beaumont hospitals.

Unlike my two colleagues, the cap does fit very comfortably on my head regarding co-location and most of my Fianna Fáil colleagues would be quite happy about co-location. Most of those who have used the public health service refer to the excellence of the service. They will always say it was top-class and that they could not have asked for anything better. However, there is always a "but" and this is usually a reference to the difficulty in accessing the service. I believe the Minister, Deputy Harney and the Minister of State, Deputy Smith when they refer to 20% of the beds being taken up by consultants' private patients. A total of 33% of elective surgery is composed of private patients. As the Minister stated in the House yesterday, she is of the opinion that this is too much and it is too much for the public patient to have to put up with this.

I believe the Minister when she says she is including St. James's and Beaumont hospitals in this legislation which, as the Minister of State has outlined, is to put the issue beyond doubt and to ensure it is copper-fastened in order that there will not be problems down the road. This is a means of ruling out everything. The Government is obliged to be guided by the advice of the Attorney General.

I do not have a medical background but I would have thought the training of medical staff would still be uniform and they are still trained in the same way as before. The number of students studying medicine is increasing, from 340 up to nearly 700. Any student with a total of 480 points in the leaving certificate will be assessed for medicine. This will greatly improve the system because not all those with 600 points are ideal candidates for the study of medicine, nursing, pharmacy or physiotherapy. I agree with Senator Fitzgerald that a further debate is required to tease out these issues and I suggest it could be the subject of statements in the House when the climate is calmer.

I will group the relevant queries raised by Senators Prendergast, Fitzgerald and Feeney. This amendment is intended to delay the initiative which was launched in 2005. There has been considerable debate, in particular leading up to the general election in May. St. James's and Beaumont hospitals are both anxious to move forward on co-location projects as quickly as possible.

Senator Prendergast specifically raised the issue of staffing. The project agreement between the Health Service Executive and the private provider requires that the private facility at each hospital should be capable of treating all the private patients currently in the relevant public hospitals. The specific minimum requirements which co-located hospitals must provide include the ability to admit private patients directly from public hospital accident and emergency departments, primary care centres and general practitioners, on a 24-seven basis; research and development programmes; joint clinical governance between the public hospital and the co-located facility; performance management requirements and documented service level agreements; and shared information and records management.

The essential idea underlining the co-location initiative was that private patients could be "migrated" from public hospitals to private facilities. This would free up capacity for public patients and ease the pressure on waiting lists and on accident and emergency departments.

It is important to emphasise the initiative was founded on the principle that all patients ordinarily resident in the State should continue to have access to public hospitals. Access should be based on need and the possession of private health insurance should neither influence timeliness of access nor treatment regime. I presume all in this House agree with that aspiration.

Co-location is seen as the quickest and least expensive means of providing significant additional capacity for public patients. No capital outlay is required as the beds are already in place, having been funded by the Exchequer. In addition, the beds are already staffed and all the back-up services and facilities required to support them are in place. A target of transferring 1,000 private beds to the private sector over a period of five years was and is seen as attainable. It was accepted that there would be loss of income from private insurers, estimated at €100 million, but this was seen as a small price to pay in order to free up 1,000 beds for public patients. Furthermore, it was anticipated that this loss of income would be mitigated in part through a new income stream from the private hospitals.

Senator Fitzgerald raised an issue in regard to the cost to the Exchequer. The Minister, Deputy Harney, responded in some detail to the Fine Gael leader, Deputy Kenny, recently. She stated:

There will be no direct capital cost to the State arising from the co-location initiative. There will be a loss of private health insurance income to the hospitals from private health insurers. This is estimated at €79 million in respect of the six sites where the co-location initiative is most advanced, as follows; Waterford Regional Hospital, €11 million, Cork University Hospital, €18 million, Sligo General Hospital, €8 million, Limerick Regional Hospital, €17 million, St. James's Hospital, €14 million, and Beaumont Hospital, €11 million. I consider that this is a small price to pay in order to free up 1,000 beds for public patients where the running cost of over €300 million is already being met by the State. The loss of income will be mitigated, in part, through income from the lease of the land and a potential share of profits from the co-located facility.

It is anticipated that the private developers will avail of the scheme of capital allowances under the Finance Acts. The level of tax relief depends on the financing arrangements for each hospital and it is not possible at this stage to provide a breakdown of potential capital allowances by hospital site. However, it should be noted that not all costs are eligible for tax relief under the scheme. The Government's consideration of the initiative assumed a capital cost of €1 million per bed. It is anticipated that for each €1 million in allowed capital expenditure, most relief will be claimed at the 41% income tax rate plus any allowable PRSI-related relief, spread over seven years, and not taking account of tax buoyancy effects. This is still less than the capital cost to the State of building and commissioning an additional 1,000 new beds for public patients.

That information was conveyed to Deputy Kenny by way of written reply to a parliamentary question. As far as ideology is concerned, my only ideological position, or that of my party or the party of the Minister, Deputy Harney, is to provide the best possible level of care to people who need hospital and medical and health services. This is about building additional capacity into the system in the best and least expensive way to the State to expedite the provision of new beds and facilities. I share strongly the view that people's access to treatment should not be determined by their health insurance. Co-location is an innovative approach to ensure that 1,000 beds are freed up for public patients in the fastest way possible.

I accept what the Minister of State said but if need were the determining factor the Government would have ensured more public beds were available. What we need is public beds, not beds in a co-located hospital. If the idea was to respond to the need for access for all in an equitable way, surely the way to have done it would have been to fulfil the promise regarding new hospital beds that was given in 2002.

The other method by which the Government has dealt with this matter is by means of the National Treatment Purchase Fund. This was originally launched as an emergency measure but more funding was added this year and in excess of 75,000 people have been treated to date. One cannot decry the reduction in waiting times for public patients but this comes at a huge cost to the taxpayer and may compound the two-tier system. The reason I say this is that it creates an incentive to treat patients on that list, as opposed to elsewhere. The HSE has already admitted that 35% of patients treated under the NTPF are treated by the same hospitals where they were awaiting treatment as public patients. This is a further demonstration of how the taxpayer is supporting private health care. The co-location proposal does not offer a solution to this problem but it can exacerbate it.

The health care system in the United States relies on the free market mechanism but it does not meet the principle of social solidarity, outlined by the Minister of State. People are not treated on the basis of need but on their ability to pay. Recent surveys in the official journals of the Canadian Medical Association and the American Medical Association have shown that treatment in private hospitals is more costly and that they have a higher morbidity rate.

The recent documentary from Michael Moore, "Sicko", highlighted the problems stemming from private hospital ownership, which included not offering patients necessary surgery because they were not financially viable. This reinforces the European view that we used to have in Ireland that public health is best served by hospitals remaining in public and not-for-profit ownership. Evidence has also emerged from an analysis of co-located hospitals that even within co-located hospitals, one can have a two-tier system.

I support Senator Feeney. We need far more discussion. I would like to see a paper from the Department of Health and Children on co-location which addresses all of these issues and which provides details of the impact co-location will have financially and in the longer term on the public health system in Ireland.

Senator Fitzgerald made the point for me in the sense that she agrees we need extra beds for public patients. This initiative is designed to make 1,000 extra beds available for public patients. Under the programme for Government we are committed to providing an additional 1,500 public acute hospital beds. The co-location initiative aims to deliver 1,000 of these beds for public patients through the development of private hospitals on public sites. The intention is to transfer private activity to those hospitals, thereby freeing up capacity for public patients. The balance of approximately 500 public acute hospital beds are at various stages of planning under the Health Service Executive's capital plan.

I am pleased Senator Fitzgerald referred to the National Treatment Purchase Fund. I met a gentleman last Saturday evening coming out of the chapel from mass who through ill health has had to derive his total income for many years from an invalidity pension. That man needed a hip or knee replacement operation and under the National Treatment Purchase Fund he was admitted to a private hospital facility in Galway. He told me that he was treated like the President in hospital. I replied to my good friend, Padraig, that it is the way he deserved to be treated and that is what we want to see in our hospital system, namely, everybody getting the best possible treatment when they need it with ease of access, not depending on their ability to pay private health insurance.

It is a shame he did not have access to that kind of care in our public hospital system. That is ideally what we would like to see.

That is what we are trying to achieve. Senator Fitzgerald makes my point. That is what we want to achieve.

I do not make the Minister of State's point. The Government is undermining the public hospital system by the approach it is taking.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 to 7, inclusive, agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

This section deals with the establishment order for the national paediatric hospital development board. In the case of this hospital, some of the best commentators in Irish health care have stated that the process used to make this decision, the way that it was handled and the way the decision was made, has been one of the least credible that they have seen in Irish public policy. Many parents, from the west of the city, from the south-west and from Kildare, who currently use Tallaght and Crumlin hospitals are extremely concerned at the access to the centre city site at the Mater and do not think it is a suitable location.

As the Minister of State will be aware, the position of Fine Gael has been to provide two hospitals to deal with the transport difficulties and the questions of access. I raised here previously the question of the golden hour and the access of parents and children where children are at risk of death. The question of access to a centre city site is an enormous one. Professor Drumm, when I raised this with him at the Joint Committee on Health and Children, stated that the transport issues would be dealt with by the time the site was ready for general use. However, it is hard to see the transport issues being dealt with effectively because parents with sick children will not use the Luas or buses, but will use cars, taxis and ambulances. I have serious reservations.

I understand the principle behind centres of excellence as it applies to children. I note that the board of Crumlin children's hospital recently talked about taking legal advice on the siting of the hospital. I also note the ongoing funding and development of the Crumlin site, which I find hard to understand if the intention of the Government is to close it down.

I would also make the point that the suggestion is that the fairly new Tallaght children's hospital, which is only ten years old, will be closed down completely as an inpatient facility. Originally, we were told we would be left with an accident and emergency department in Tallaght Hospital that would open for eight hours a day. I asked the Minister, Deputy Harney, about this and she told me that it would be open for extra hours, but I would make a plea that if there is to be an urgent care facility in Tallaght, it should be a 24-hour facility because that is what parents have access to at present. I understand the intention of the Government is not to provide inpatient beds, but I would ask the Minister to address this issue of adequate urgent care facilities.

The decision-making on the Mater site has been based to a large degree — I have looked at all the reports — on patterns of health care in American cities. I totally understand the need for centres of excellence for children's care, but the question of secondary care has not been considered adequately in the decision-making on the Mater site. We are doing away with secondary care facilities for children around the city and they will not be fully and effectively replaced on the Mater site.

Sometimes when we speak of the national children's hospital we forget that it is not a hospital for Dublin, Kildare and Wicklow, but a national children's hospital. People from as far away as where I live in the north west in Sligo, and those a further 150 miles north on the Inisowen Peninsula, will come down to it. Once we start coming into Dublin, we do not mind whether we are on the northside or southside. It is all the same to us.

Sometimes the debate gets bogged down because everything is centred in Dublin. We do not have a difficulty with that, but people in Dublin should remember that it is for wider use. It will be an all-island hospital, or a 26 county hospital at present, which people in the north west, the south east and the south west will access. It is as easy to go to the Mater Hospital as it would be to go to Tallaght. I thought I heard the Minister state yesterday that it was her understanding that the people in Tallaght Hospital were on board now on the issue of the location of the new hospital.

As I have stated previously in the House, we are giving out an impression. There are people outside of Ireland waiting to come back to take up posts when they become available in the national children's hospital and we need to move on over the issue of location.

This section simply deals with the funding of the hospital's development board. As all of us will be aware, a decision on the siting of the new national paediatric hospital has been made on expert advice which has been dealt with in detail in both of these Houses. The new hospital will contain tertiary facilities.

I do not want to mislead the House or Senator Fitzgerald, but to my recollection the Minister, Deputy Harney, recently outlined the level and type of services that will be continued at Tallaght Hospital. Coming from the south of Ulster as I do, if the people in Cavan-Monaghan were to choose a site in Dublin for a national children's hospital we would choose the one at the Mater Hospital or one on the northside of the city because it provides the easiest access from our point of view. It must be borne in mind, as Senator Feeney stated, that the new national paediatric hospital is a national hospital to treat children from all over the country, and I am sure that will include those from the North and the South as well.

Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

I have indicated opposition to sections 10 to 21, inclusive. This section deals with the changes to the Medical Practitioners Act 2007. Clearly, these points have arisen as a result of hasty legislation last year in the form of that Act. Why else would we be revisiting the matter within a year? It was hasty legislation. There were problems that have now emerged in terms of its implementation.

It highlights what happens when we do what we are doing here today and what happened in the Dáil yesterday in the case of complex legislation. Senator Alex White made a point here yesterday with which I very much agree, that it is not necessarily about giving extra time in the House to debate it but about having time for the Opposition to hear the views of the people, such as, for example, the Medical Council or other interested parties, whom it affects.

If we, as a Legislature and as a democracy, were functioning properly, that is what we would be doing. We would not be taking all Stages together, one day after the other. We would have time to reflect on this, to see the legal advice and to link with the people who are being affected. All that has been denied to us. There have been no committee discussions.

I also register my party's opposition to this section and the other sections that deal with the Medical Practitioners Act 2007 on the principle that this should not be umbrella legislation covering three separate strands.

As somebody who sat on the Medical Council for five years representing the public interest the Bill, as I stated on Second Stage, is 30 years in gestation. When I joined the Medical Council in 1999, people were clamouring for a new Bill. The then Act was so antiquated it was severely restrictive. The amending Bill was not rushed through the House. There was plenty of discussion. I remember that the most worrying part for the Opposition parties was proposal regarding a lay majority and they spoke forcibly against it.

This section is a technical part of this Bill to allow for a safe transition of powers from the old council to a new council, which is a worthy matter. If this was taken out, it would delay the entire process of transition. One must bear in mind that the present council has agreed to remain in place for a couple of months but if this does not go through, the current members could stay in place indefinitely and that would not be good for the medical profession or for the public interest, which, we must bear in mind also, the Medical Practitioners Act 2007 was set up to protect.

These proposed changes to the Bill are not appropriate given that we are acting on advice given by the Attorney General's office. The advice is that some technical amendments are required to strengthen the transitional provisions of the Act which will allow for the nomination and election processes provided for in the Act regarding a new Medical Council to take place as early as possible in the New Year, following which the other provisions in the Act will take effect on a phased basis. I am anxious there should be an orderly hand-over from the outgoing Medical Council to the new one and that there should be an orderly phased implementation of the Act in general.

Having carefully considered the advice of the Office of the Attorney General, I propose that immediate corrective action is taken at this time by way of primary legislation because of the importance of the Act for both the medical profession and the protection of the public. It is very much in the public interest that the necessary amendments are made as a matter of urgency. The proposed amendments are not appropriate given I am acting on advice given by the Attorney General of the need to strengthen the transitional provisions of the Act and to allow for the implementation of the Act on a phased basis. It is especially important that the nomination and election processes under the Act get under way as quickly as possible in 2008.

I understand legal advice is given to the Government in confidence, but that does not mean it cannot be available. The Government can still make its own decision. This seems relatively straightforward. The precedent that exists that advice given from the Attorney General should not be made available should be revisited. I call on the Government to consider that. In the interest of good legislation, in the interest of support for this sort of legislation and where it is appropriate to pass on the advice of the Attorney General, why does the Government not make the decision to make it available to the Opposition?

The Attorney General's advice to a Government is always privileged and that has been the position on advice from the Government's legal adviser to the Government.

Question put and agreed to.
Sections 11 to 21, inclusive, agreed to.
SCHEDULE 1.

Amendments Nos. 2 and 3 and 8 to 18, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 10, column (2), to delete lines 6 and 7.

One of the issues which has emerged as a key concern to all sides of the House is the relationship between the Health Service Executive and the Department of Health and Children. That relationship has undergone a fundamental change following legislation a couple of years ago. This was illustrated clearly when the information emerged at the Joint Oireachtas Committee on Health and Children that women were being called back for rechecks. The Minister and her officials were in the dark about it, as were some senior members of the HSE. We had representatives of the HSE on the one hand and representatives of the Minister and her Department on the other, but there had been no exchange of information between them at that critical time on a matter which was of particular concern to the women concerned. Those women had not been told, the Minister did not know they were being recalled, her senior officials did not know and the senior officials in the HSE did not know. If that situation does not raise questions about accountability and responsibility, I do not know what does.

What happens in the Bill is that the HSE is substituted for the role of the Minister. I am sure the Minister of State will address the reason this is seen as necessary in the context of the legislation. I understand that, but it raises the issues of the role of the Minister, accountability, the question of who is in charge of health policy and who is accountable for its delivery. What impact has the change in legislation had on decision making in recent years? What is the impact when a budget is removed from within the Department? What do senior Department officials think of this and do they think it is effective? In their view, what impact has the fact the budget has been taken away from the Department had on the delivery of health care services? I look forward to the book being written on the shifts in authority, responsibility and decision making that have emerged in recent years and their impact on the front line of health services and on responsibility for how the service is failing patients.

This group of amendments has been put forward because of the deep unease in both the Dáil and Seanad about the structure of those relationships, the changes in them and the need to examine the impact they have had. That, allied with the lack of reorganisation in the HSE and the fact the Taoiseach intervened on the day before the legislation was due to take effect and guaranteed there would not be any redundancies or that no effort would be made to deal with the duplication of staff or to look at the management structures, led to the retention of many ineffective management structures within the HSE, as acknowledged by Professor Drumm and others.

These amendments address that issue. It may be a peripheral issue in this legislation, but there is a substitution of the Minister's role with the HSE, with all that implies. I look forward to hearing what the Minister of State has to say on the issue. I understand it is deemed necessary in the context of the changes being made.

Schedule 1 provides for the amendment of particular functions of certain corporate bodies. The establishment audit for the corporate bodies established under the 1961 Act provides that certain powers, functions and activities relevant to the bodies are to be carried out by the Minister, or in other instances are exercisable by the bodies themselves, subject to ministerial approval or with the consent of the Minister and the consent of the Minister for Finance. However, certain of the 19 bodies in operation, namely, St. James, Beaumont, St. Luke's, Leopardstown Park, the Dublin Dental Hospital, the National Haemophilia Council, the Drug Treatment Centre board and the National Paediatric Hospital development board are now funded, or will be, by the Health Service Executive.

Consistent with the health service reform programme and the provisions of the Health Act 2004, it is proposed to amend the establishment orders of these bodies to reflect that they are accountable to the HSE for the performance of their operational functions and responsibilities. The functions being transferred from the Minister to the HSE are those relating to the submission by these bodies of estimates of income and expenditure for the forthcoming year, provision of operation and management information and so forth. Other responsibilities will be retained by the Minister, for example, appointing members and receiving and laying accounts before the Houses of the Oireachtas. In other matters, such as recruitment and pay, it is proposed that the bodies determine these with the approval of the executive and the consent of the Minister and the Minister for Finance.

These provisions reflect the current practice where the HSE deals with operational matters of these bodies and areas such as pay and numbers are determined in accordance with national policy. If I were to accept these amendments, that would create by means of primary legislation a direct managerial relationship between the Minister and the Department and these bodies. These bodies have not been funded directly by the Department since 2000 when the Eastern Regional Health Authority was established to take over the direct management of health services in the old Eastern Health Board area. The Health Service Executive took over this role and funds these bodies in accordance with the Health Act 2004. To accept these amendments would undermine one of the central principles of the health service reform programme and the provisions of the 2004 Act. I therefore do not propose to accept the amendments.

If the amendments were accepted, it would enshrine in law a direct managerial relationship between the bodies and the Minister, thus bypassing the Health Service Executive. This would not provide for proper accountability of governance because the HSE funds these bodies.

I wish to comment on the general relationship between the HSE and the Department. The Department of Health and Children has responsibility for policy formation and for providing the Minister and Ministers of State with advice. The HSE has responsibility for the implementation of policy.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.

Amendment No. 4 is in the name of Senator Fitzgerald. Amendment No. 5 is a technical alternative to the same part of the Bill as amendment No. 4, amendment No. 6 is related and amendment No. 7 is a technical alternative to the same part of the Bill as amendment No. 6. We will discuss amendments Nos. 4 to 7, inclusive, together. Is that agreed? Agreed.

I move amendment No. 4:

In page 11, column (1) and column (2), to delete lines 3 to 56, to delete page 12 and in page 13, column (1) and column (2), to delete lines 3 to 30.

Will the Minister of State address the issue I raise in amendment No. 4 in respect of Schedule 1? The Schedule states:

An agreement to which paragraph (1) applies may include provision for—

(a) the construction of buildings and facilities on land vested in the Board for the purpose of the provision of services referred to in that paragraph,

(b) the disposal of land or an interest in land by the Board or the Health Service Executive for the purposes of—

(i) the said construction, and

(ii) the provision of those services by the private undertaking,

and

(c) the management and running of the hospital to which the agreement applies by the private undertaking in accordance with such standards, and such requirements as respects the monitoring and enforcement of compliance with the agreement, as may be specified in the agreement.

Will the Minister of State explain the meaning of the term "disposal of land or an interest in land"? Does this refer to the sale of land?

I wish to comment on the absence of legislation relating to the Health Information and Quality Authority, HIQA, particularly that of a sort which would allow it to inspect unfettered and on an unannounced basis all private health care facilities — acute, non-acute and community-based. The absence of such a right of inspection is questionable, especially when moneys are being given to facilities by means of nursing home subventions through the National Treatment Purchase Fund or via tax breaks.

The Government appears to be planning to introduce the fair deal legislation which will make individuals liable to pay surcharges, possibly on their homes, up to a maximum of 15%. I am concerned that licensing regulation requirements relating or applicable to private facilities do not exist.

As already indicated, the purpose of these provisions is to put beyond any doubt the capacity of St. James's and Beaumont hospitals to enter into co-location arrangements. During the period 2003 to 2004, the Department of Health and Children came under considerable pressure from the former Mid-Western Health Board to sanction the development of a private hospital on the grounds of Limerick Regional Hospital. The Department also became aware that the boards of Beaumont and St. James's hospitals in Dublin were preparing proposals for the development of private hospitals on their sites. The Department arrived at the view that there was a need for a comprehensive and consistent approach to the assessment of any proposals for private developments on public hospital sites. Prospectus was engaged by the Department in the autumn of 2004 to advise on a framework which would encourage private investment in the acute sector and promote and protect the public interest.

Around the same time, the Department was becoming increasingly concerned at the extent to which the level of private practice in public hospitals was exceeding the ratio of 80:20 agreed with the medical organisations. Approximately 2,500 beds in public hospitals, representing 20% of the total, are designated for use by private patients. The level of private elective admissions, namely, those that are planned rather than emergency admissions, was, and still is, running at approximately 35% of the total, however. This has an impact on the ability of public patients to access public hospitals and it contributes to waiting lists for public patients and problems in accident and emergency departments.

A combination of factors had led to a position where private patients were receiving priority access to public hospitals at the expense of public patients. At the same time, the Exchequer and the State were spending considerable sums on sending public patients to private hospitals via the National Treatment Purchase Fund. This situation called for innovative thinking and out of it the co-location initiative emerged.

Co-location is seen by the Government as the quickest and least expensive means of providing significant additional capacity for public patients. No capital outlay is required because the beds, having been funded by the Exchequer, are in place. In addition, the beds are staffed and the back-up services and facilities required to support them are in place. A target of transferring 1,000 private beds to the private sector over a period of five years was seen as attainable. The Government accepted that there would be a loss of income from private insurers but this was seen as a small price to pay to free up 1,000 patients for public patients. The Government endorsed the co-location initiative in July 2005. A policy directive was issued to the HSE on 14 July 2005 mandating it to implement the initiative.

I may have omitted to deal with a particular point made by Senator Fitzgerald earlier. It was stated previously in the House that the land on public hospital sites to be used for the development of co-located hospitals will be leased to the private partners. The public procurement process has proceeded on that basis and the private partners are well aware that there is no question of the land being sold to them. The land for the co-located hospital at Beaumont is owned by the hospital board, whereas that at St. James's is owned by the HSE and is leased to the hospital board.

The phrase "disposal of land" in Article 4A(2)(b) was the subject of detailed discussions between officials of the Department of Health and Children and the Parliamentary Counsel. The advice of the Office of the Parliamentary Counsel is that the language used in Article 4A is the appropriate formula in respect of dealings in land. I reiterate that the land for co-located hospitals will be leased and Article 4A is designed to permit this and no more.

Senator Prendergast inquired about the functions of the Health Information and Quality Authority, HIQA. The authority's functions and remit are being extended and rolled out. As a former nurse, I am sure the Senator will appreciate that the establishment of the HIQA is an important element in the reconfiguration of the delivery of health services and in ensuring standards reach the requisite level.

I had the opportunity to meet Tracey Cooper, the new chief executive of HIQA, and some of her senior colleagues. In my opinion, they have the capacity and the determination to do an excellent job and deal with all matters coming under their remit. They will be provided with the resources. Everyone has a genuine interest in ensuring all patients, regardless of the sector of health system in which they find themselves, are given the highest standard of treatment at all times. The HIQA has the power to investigate services provided by the HSE or on its behalf, either by private sector or voluntary sector interests. The office of the chief inspector of social services, which is part of the HIQA, will inspect private and public nursing homes. At present, only private nursing homes are inspected by the HSE.

I welcome the Minister of State's reply. I worked in the health service for 23 years. If Senator Feeney was ever obliged to travel in the back of an ambulance with a child who was very ill, she would hope that arrival at the hospital would not be delayed by a traffic snarl-up because seconds can be vital. Reference is often made to the golden hour. On occasion, it can be a golden minute. Some needy little individuals might often require a high level of care and attention.

There may be a case to be made for having two accessible centres of excellence, one in the north and the other in the south, but that neither should be located in Dublin. I do not intend to take away from people in Dublin or their needs. In places of high population density where the expertise is available, it is preferable to centralise services. In the context of the outcomes achieved at the National Children's Hospital, I have nothing but the highest regard for my colleagues and for Ministers and Ministers of State, such as Deputy Brendan Smith, who have ensured an excellent service has been provided down through the years.

There are many positive aspects to this legislation. However, it was distasteful to include provisions relating to co-location in it. As a former health care professional, I appreciate the need to rush through the legislation but I do not see the need to deal with co-location at this point.

In reply to my query regarding the disposal of land, the Minister of State indicated that detailed discussions took place between the Parliamentary Counsel and the Department. This suggests some questions needed to be asked in respect of the language used. I wish to put down a marker that, regardless of the advice received by the Minister of State, to me the phrase "the disposal of land" refers to the sale of land. If I was presented with the detailed legal advice, I might be convinced that the position is otherwise.

I am concerned that private consortia will be able to buy what used to be public land on public hospital sites. That is what it looks like to me. While I bow to the legal information available to the Minister of State, I have not seen it.

I would like to respond to the Minister of State's comments about the value of co-location. The Department of Health and Children has emphasised in its guidelines that accident and emergency departments will not be a feature of co-located hospitals. Significant investment and re-organisation are needed in our hospitals' accident and emergency units. Waiting times are unacceptable, as we know, although there have been some improvements. The facilities available in such units often are sub-standard. The co-location plan will have a minimum impact on this aspect of the accident and emergency crisis in hospitals.

The crisis could be alleviated if we placed an increased emphasis on primary care services, especially services offered outside office hours. The Health Service Executive has made some progress on this issue in north Dublin, but it needs to be addressed throughout the country. Most primary care in Ireland is provided privately, which does not improve access to services in the hospital sector, mainly because the VHI does not cover primary care. Progress could be achieved in this area if we were to award tax breaks to clinics and physicians which offer a 24-hour service. This would encourage primary care providers to make such a service available, thereby reducing the pressure on accident and emergency units. The problems in such units constitute one of the big crises in the hospital service. Co-location will not offer a response or a solution to this difficulty.

It should be pointed out also, in the context of the debate on the section of the Bill relating to co-location, that the profitability of the co-located private hospitals will depend on the attitude of the VHI which is the main provider of private health insurance in this country. Professor Drumm, who is the chief executive of the Health Service Executive, has said that private hospitals will be billed for all patients who are sent to public hospitals for part of their treatment. It seems clear that he is against co-location but refuses to comment on it beyond an operational perspective.

The VHI recently refused to cover services provided at a new private hospital in Galway, resulting in the hospital running at a loss. If it refuses to reimburse all new private hospitals, such as the co-located hospitals we are discussing, to the extent they require, they will obviously start to encounter significant funding problems. If the VHI agrees to reimburse private hospitals to the extent demanded by them, its costs will increase which will lead, in turn, to higher premiums. It is inevitable that the policy of co-location will lead to higher premiums. The 50% or more of the population who have private health insurance will not thank the Government when their premiums increase as a result of co-location. I do not doubt that premiums will get more expensive, which will mean people will have to spend more money on health insurance and less money in other areas of the economy. It will price some people out of the health insurance market, which will put an increased strain on public services and intensify pressure on a system that is already overloaded.

Private hospitals obviously are aware of the pitfalls ahead. The Bon Secours group recently pulled out of the consortium that won the contract to build a private co-located hospital in Waterford. The policy of co-location is ill thought-out. There has not been a proper examination of its potential effects on the public health system. I regret that it will undermine that system. Senators on the Government side have argued that it will increase bed numbers — I do not doubt they are genuine — but I maintain that it is ill thought-out and ideologically driven. It shows a lack of commitment to the public health service. The co-location policy is couched in terms of the provision of 1,000 extra beds, but it will privatise and Americanise our system. It demonstrates the willingness of the Government to move closer to Boston than to Berlin. I do not believe it reflects the wishes of the people of Ireland. The impact of co-location will be felt for generations to come. It sends out a message that will undermine the public health system. I have tabled these amendments to address the points I have highlighted.

Senator Fitzgerald asked about the clear legal advice that was made available to officials from the Department of Health and Children on foot of their discussions with their counterparts in the Office of the Chief Parliamentary Counsel. The proposed new Article 4A has been designed to allow public land to be leased, and no more, for the development of co-located hospitals. There will be an accident and emergency unit in the public hospital. The co-located hospital elsewhere on the campus will be required to take patients from that unit 24 hours a day, seven days a week. Detailed consideration has been given to co-location. It will complement, rather than undermine, the public system.

This has nothing to do with ideology. The only ideology is to get extra beds into the system to facilitate access for public patients. I cannot understand why people do not agree with such a policy. As Senators said earlier, access to hospital beds should be based on medical need. The clear advice we have received on the issue of the disposal of land, to which Senator Fitzgerald referred, is that land for co-located hospitals will be leased. I omitted to mention earlier, in response to Senator Prendergast, that the Commission on Patient Safety and Quality Assurance has been established to make recommendations on a licensing system for public and private health facilities. I am sure the Senator will welcome that development, just as I do.

Amendment, by leave, withdrawn.
Amendments Nos. 5 to 18, inclusive, not moved.
Question proposed: "That Schedule 1 be Schedule 1 to the Bill."

I would like to reiterate some of the points I made earlier about the three matters being dealt with in this legislation. I refer to the changes being made to the roles of the Minister and the HSE, the amendments being made to the Medical Practitioners Act 2007 and the strengthening of the legal basis of various bodies which, according to the Office of the Attorney General, do not have a satisfactory legal basis at present. Fine Gael is concerned about the manner in which three separate issues are being handled together. If it is necessary to regularise the legal basis of certain bodies, we support in principle measures aimed at doing so. We are not satisfied about the way this Bill has been brought to the House, the timeframe that has been set for the consideration of the legislation and the manner in which three separate matters are being dealt with in a combined Bill.

The Bill before the House will ensure there is no doubt about the legal capacity of Beaumont Hospital and St. James's Hospital to enter into co-location agreements. Some hospitals did not have a real choice on co-location because they were finding it difficult to get money for public beds. The money that is being extended to them to develop co-location was not made available to them when they wanted to fund public beds. I question the extent to which some hospitals — not all of them — have genuinely had a free choice in this instance. That underlying question should be up for discussion.

I hope the Department of Health and Children will re-examine the policy of co-location and realise it will undermine the provision of public health care services and widen the gap between the two tiers of our health system. Many things can be done to improve the health care system, but co-location is not one of them. The Minister of State, Deputy Smith, has emphasised today that co-location will create more beds within the system. The Minister, Deputy Harney, has also made that point on many occasions. We do not know, however, who will staff the beds and who will pay to use them. As I said earlier, the co-location programme will not solve the problems in accident and emergency departments or address the lack of tertiary beds and home services which leads to bed blockers.

I am conscious that cutbacks are being made at present. We cannot get home care packages to help people who are in the National Rehabilitation Hospital in Dún Laoghaire, for example. Parents and other family members are willing to help such people, but home care packages are not available to facilitate that. I raised this issue in the committee. It is a serious problem at the moment.

I understand the wish to provide beds at a faster pace, but the long-term effects of the proposal have not been considered. Alternative solutions have been neglected as a result. Possible solutions to the problems in the health care system include the building of new hospitals by private companies which could then be leased by the State; a requirement for universal public health insurance, a system which works well in other countries and would eliminate the two-tier system; and the placement of non-acute services in the grounds of public hospitals, which would reduce the problem of what is termed "bed blockers". There are many other alternatives to the co-location policy which could have been considered. This decision was taken quickly and without consideration of its long-term impact.

Senator Fitzgerald mentioned staffing. As stated by the Minister in previous debates, the project agreement between the HSE and the private provider requires that the private facility in each hospital will be capable of treating all private patients that are currently in the associated public hospital. The specific minimum requirements for the co-located hospitals include the ability to admit private patients directly from public hospital accident and emergency departments, primary care centres and GPs on a 24-hour, seven-day basis; the establishment of joint research and development programmes, clinical governance, performance management requirements and documented service level agreements; and the sharing of information and records management.

It has been suggested that the hospitals are not supportive of the co-location proposal. In fact, the boards of both St. James's and Beaumont hospitals have indicated they want to participate in the initiative. I reiterate that we want to increase bed capacity within our health system. This method is the least demanding on the Exchequer and is the quickest and most expeditious way to ensure we get the required additional capacity in the health system. This will be for the good of public patients.

Question put and agreed to.
Schedule 2 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question, "That the Bill do now pass", put and declared carried.
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