Adjournment Matters.

Dental Services.

I wish to raise the need for the Minister for Health and Children to address the issue of the Competition Act 2002 in relation to Irish dental practitioners. The Minister of State will undoubtedly be aware of this problem. I have spoken to many dentists who are extremely concerned about the possible collapse of the State's dentistry scheme for medical card holders. The case seems to be getting more and more acute. Even today the Irish Dental Association has issued a statement indicating there is a danger that this scheme will collapse. Dentists throughout the country are fed up with the way it operates.

It is sometimes difficult to make a case for professional people, particularly when the defence is the Competition Authority and the Competition Act. Professional people who practise an art like dentistry cannot be expected to operate at a loss. They certainly cannot be expected to operate a system which it is patently obvious is not working. The real problem here is the refusal of the HSE to engage in conversations with the dentists. This is typical of the HSE and has resonances of its battle with the pharmacists when it was almost impossible to get the HSE to even negotiate prices with dentists, pharmacists and so on.

The first and single most important demand I make to the Minister of State is that the Department of Health and Children and the HSE should engage in discussion with the Irish Dental Association before this becomes a crisis. The Minister of State will know there is a dispute about the figures, namely, about how many dentists have withdrawn from this scheme. It is certainly conceded by the Department and by the Minister for Health and Children that at least 200 have already withdrawn from it. If 200 out of 1,400 dentists have withdrawn, that is approximately 15%, and many others are threatening to withdraw from it.

One of the extraordinary aspects of this scheme is that, although the Department of Health and Children states that the numbers joining it are beginning to make up for the numbers leaving it, the Department refuses to reveal the figures. I do not believe the figures being issued by the Department of Health and Children or by the HSE. The HSE is again bullying a group of professionals, there is a bit of eye-balling going on, and the opinion of the Attorney General has been sought.

One of the odd aspects of this battle between the Irish Dental Association and the Department is that they both got legal opinions which suit them. One can always get a legal opinion which suits one. That is one of the problems here. The legal opinion, whether it is that of the Attorney General or anybody else, is not worth much because somebody else could get another legal opinion which would counter that and then one would be back to square one. I gather there is a call for and an expectation that the new Attorney General — the last legal opinion came from the previous Attorney General — will deliver a new opinion on the matter. I do not know whether it will be the same as the current one, but a new and fresh look will taken of the Act. There is a clause in section 4(5) of the Competition Act, which allowed the IMO to opt out of an opinion which stated it was anti-competitive to discuss issues of price with professionals, and as a result negotiations were entered into in that case. I do not understand — the Minister of State might be able to enlighten me on this — why this letter cannot be also applied to the dentists.

The first concern must be the patient. I know that the sort of iniquitous propaganda which can arise when one puts forward a case for people who are earning money from the medical schemes — they have to earn a living — is that they are exploiting the schemes, and they can do. Regardless of the propaganda, it is important that the patients are paramount in regard to this cost, not the State nor the bullies in the HSE. It is also fair that dentists should make some sort of a living out of the medical scheme, not vast sums, but they should not be expected at any stage to operate at a loss. We should not ask them to do that.

I ask the Minister of State to respond to the points I made. I also ask him, in passing, to comment on the fact that dentists are unhappy, as are patients, with the budget provision under which some allowances for tax relief for orthodontic and other treatments were reduced by 50%. That may or may not be correct and it may not be fair, but it appears that dentists and their patients are suffering. Patients are not getting their teeth repaired, cleaned or treated in the way they should because of the lack of such tax relief. The other downside of this measure is that dental tourism is increasing. That is not something we want to see happen.

I ask the Minister of State to reply to this matter and to bear in mind one aspect, namely, the effect on patients. Patients are suffering and the Irish Dental Association and Irish dentists are being ignored, or the Government and the HSE are refusing to talk to them. Why have the talks not started and can we have an assurance they will start immediately?

I am taking this Adjournment matter on behalf of the Minister for Health and Children, Deputy Harney.

As the Senator will know, and it is important to point out, responsibility for the Competition Act rests with the Tánaiste and Minister for Enterprise, Trade and Employment. That Department is currently engaged in a review of the Competition Act and has been having consultations with various interested parties in that regard.

In so far as the Department of Health and Children is concerned, the question of the Competition Act as it applies to dentists arose, as the Senator said, in the context of a review of the dental treatment services scheme or the DTSS. The DTSS provides for a range of dental services for adult medical card holders from participating dentists holding contracts with the Health Service Executive.

During the course of the review, based on legal advice made available to the HSE, an issue arose in regard to the negotiation of fees with the Irish Dental Association. Section 4 of the Competition Act 2002 prohibits and makes void all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State.

This reflects the provisions of EC Treaty Article 81, which contains a similar prohibition in regard to agreements, decisions and concerted practices which may affect trade between member states. The HSE was advised that the coming together of the DTSS contractors under the auspices of the IDA to negotiate fees would constitute a breach of the Act. The IDA was advised of the legal situation and in January 2007 discussions on the fee aspects of the review were put on hold.

In general there is nothing to prevent the State, as a purchaser of services, from consulting representatives of professional organisations on the fees for those services. The key requirement in all cases is that the State must have the final say in setting the price it will pay for the services concerned. As the Senator said, a similar issue has arisen regarding the role of the Irish Medical Organisation in negotiating fees for general practitioners involved in the GMS and other medical schemes. Having considered the matter, the Government is satisfied that the scope of the engagement by general practitioners in the delivery of primary health care for the overall efficacy of the public health system makes a more direct form of engagement with the representatives of general practitioners both necessary and desirable in order to protect public health. Accordingly, it is the intention to pursue appropriate amendments to section 4 of the Competition Act to enable the IMO to represent its members in negotiations with the HSE and the Department of Health and Children in respect of the services provided to the public health service. The legal provision to be made will be subject to and consistent with EU competition rules.

This initiative has arisen regarding the IMO. The Minister for Health and Children has not concluded that there is a case for adopting a similar approach to other professional representative bodies, including the Irish Dental Association. Any such case would need to be examined in light of the objective of ensuring a high level of public health protection and associated public interest considerations and the scope to adopt such an approach in a manner consistent with EU competition law. The Minister for Health and Children has agreed to meet the Irish Dental Association next week and this matter will be on the agenda. I hope that at that meeting some progress can be made on this issue and some of the other items the Senator mentioned. If the Minister is coming face to face with the association I hope some progress will be made at that level.

Will the Minister of State give me an assurance that the Minister for Health and Children will enter that meeting, to which he referred, next week with an open mind on allowing dentists the same facility and adopting a similar approach to the Competition Act as was given to the IMO?

I cannot give the Senator that assurance. From the reply——

I am only looking for an open mind. Is the Minister of State saying the Minister for Health and Children has a closed mind?

Judging from the reply it seems that as of now she has a particular——

She has a particular view. However, views can be changed if a good case is made by the other side. However, the ball is in the Irish Dental Association's court. As I said, the Minister has not concluded that there is a case for adopting a similar approach to other professional representative bodies, including the Irish Dental Association. Any such case would need to be examined in light of the objective of ensuring a high level of public health protection. Maybe it is an invitation, letting it know that the ball is in its court, so to speak.

To be persuaded.

Maybe it is an invitation for the Irish Dental Association to make its case strongly. I understand the logic of the Senator's question. It has an opportunity to put its case face to face next week. However, it would need to put its case strongly and well. I would not say she has a closed mind, but she has formed a particular view up to now and she will need to be persuaded if she is to change her view.

No doubt the Minister of State will convey to the Minister the persuasiveness of my argument.