Nurses and Midwives Bill 2010: Committee Stage

I welcome the Minister to the House.

Sections 1 to 4, inclusive, agreed to.
SECTION 5

Amendments Nos. 1, 2, 5, 6, 9 to 11, inclusive, 13, 14, 17, 20, 21 and 24 are related and will be discussed together.

Government amendment No. 1:
In page 11, line 3, to delete "for Finance" and substitute "for Public Expenditure and Reform".

These are technical amendments. They propose to replace the term "Minister for Finance" with the term "Minister for Public Expenditure and Reform" as these functions have been transferred from the Minister for Finance to the Minister for Public Expenditure and Reform under the recent Ministers and Secretaries (Amendment) Act 2011 and the finance transfer of departmental administration and ministerial functions order SI 418/2011.

I welcome the Minister of State. I understand the procedure in regard to the new title of "Public Expenditure and Reform". In the event of a change in the future it may have been better to use the phrase "Finance and/or". It is a matter for the Minister of State and her officials. Ministries change and can be and are abolished. In ten years time the Department of Public Expenditure and Reform could be abolished.

The current title is put into the Bill in order that if there are any amendments in the future any amending legislation — I am open to correction — will incorporate the amendment. The current title is the appropriate wording that should be included. These are technical amendments and should be approved.

Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6
Government amendment No. 2:
In page 11, subsection (2)(b), lines 26 and 27, to delete “for Finance” and substitute “for Public Expenditure and Reform”.
Amendment agreed to.
Section 6, as amended, agreed to.
Sections 7 to 12, inclusive, agreed to.
SECTION 13

Amendments Nos. 3 and 4 are related and will be discussed together.

Government amendment No. 3:
In page 17, subsection (2), lines 6 to 10, to delete paragraph (i) and substitute the following:
"(i) the register of nurses and midwives and the candidate register, and the divisions of those registers, including the setting of criteria relating to—
(i) appropriate qualifications, education and training, and relevant competencies of nurses or midwives registered or to be registered,
(ii) the possession of sufficient knowledge of the language or languages necessary to practise as a nurse or midwife in the State,
(iii) any requirement for relevant post registration experience or clinical experience of nurses or midwives, or
(iv) any other matter where, in the opinion of the Board, the setting of criteria relating to that matter is necessary or desirable for the protection of the public, in relation to the assessment of applications for registration in any of those registers or divisions and for annotations of those registrations,".

These amendments are for clarification as to what the board may include in regard to criteria in rules.

Amendment No. 3 clarifies what criteria can be used for assessing applications for registration. It provides that criteria can include: qualifications, education and training; relevant competencies for registration; possession of sufficient knowledge of language or languages necessary to practise as a nurse or midwife in the State; requirements for relevant post registration experience or clinical experience; and any other matters in regard to the setting of criteria that is necessary or desirable for the protection of the public. It is important that this is clarified, in particular in regard to language proficiency.

Amendment No. 4 sets out proposed amendments in section 13(2)(l) and (m), which provide for the setting of criteria for the purpose of education and training and those who have not practised for a time. The amendment clarifies that the criteria relate to: persons seeking admission to education and training programmes; bodies which may deliver education and training programmes; bodies which may deliver education and training; and any other matters in regard to the setting of criteria which is necessary for the protection of the public. The amendment also sets out the power of the board to set criteria and conditions for persons wishing to return to practise nursing or midwifery after not having practised for a period which the board will specify in rules.

The criteria or conditions will include: the education and training of those persons; possession of sufficient knowledge of language or languages necessary to practise as a nurse or midwife in the State; the manner of verifying that the person possesses the relevant competencies; and any other matters in regard to the setting of criteria that is necessary or desirable for the protection of the public.

Amendment agreed to.
Government amendment No. 4:
In page 17, subsection (2), lines 17 to 21, to delete paragraphs (l) and (m) and substitute the following:
"(l) the setting of criteria for the purposes of education and training, including the setting of criteria relating to—
(i) persons seeking admission to education and training programmes,
(ii) bodies which may deliver education and training programmes, or
(iii) any other matter where, in the opinion of the Board, the setting of criteria relating to that matter is necessary or desirable for the protection of the public,
(m) the setting of criteria or conditions for persons who wish to practise nursing or midwifery after having not practised for a period specified in the rules, including the setting of criteria or conditions relating to—
(i) the education and training of those persons,
(ii) the possession of sufficient knowledge of the language or languages necessary to practise as a nurse or midwife in the State,
(iii) the manner of verifying that those persons possess the relevant competencies, or
(iv) any other matter where, in the opinion of the Board, the setting of criteria relating to that matter is necessary or desirable for the protection of the public,".
Amendment agreed to.
Government amendment No. 5:
In page 18, subsection (4)(c)(iii), line 4, to delete “for Finance” and substitute “for Public Expenditure and Reform”.
Amendment agreed to.
Government amendment No. 6:
In page 18, subsection (6), line 16, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 to 16, inclusive, agreed to.
SECTION 17

Amendments Nos. 7 and 8 are related and will be discussed together.

Government amendment No. 7:
In page 20, subsection (1), line 41, to delete "or permitted".

These are technical amendments. The term "or permitted" which is being deleted in subsection (1) was included in the original Bill as published to ensure that information could be disclosed in regard to the Ethics in Public Office Act 1995. The Office of the Parliamentary Counsel recently advised the Department that this should be amended to remove the words "or permitted" and insert a new subsection to make explicit reference to the relevant section in the Ethics in Public Office Act 1995. I urge Senators to support the amendments.

Amendment agreed to.
Government amendment No. 8:
In page 21, between lines 20 and 21, to insert the following subsection:
"(4) Nothing in subsection (1) shall prevent the disclosure of information by a person in the circumstances referred to in section 35(2) of the Ethics in Public Office Act 1995.".
Amendment agreed to.
Section 17, as amended, agreed to.
Section 18 to 21, inclusive, agreed to.
SECTION 22
Question proposed: "That section 22 stand part of the Bill."

We raised the issue of excluding members of the European Parliament and the Houses of the Oireachtas from being on the board, which is generally acceptable, with the Miister for Health, but members of local authorities are also excluded. If a midwife or nurse has been recommended and he or she is a member of a local authority he or she would not be allowed to sit on the board according to the Bill. The Minister gave an undertaking in this House that he would amend the Bill and ensure it would not prohibit members of local authorities from being members of the board. This type of approach has been taken by previous Governments. The Civil Service seems to be focused on ensuring that when a person becomes a member of a local authority he or she is not a qualified or proper person to serve on the board. It is grossly unfair. Such persons would not have a right to be on boards. We are talking about fully qualified nurses or midwives who are appointed to a board and who subsequently seek election to their local authority. Such persons, by virtue of their being elected to serve the people of their area, as the Minister of State did in the past, are prohibited from serving on these boards. The Minister, Deputy Reilly, gave a specific commitment in this regard. The same officials who are in attendance today were in the Chamber on that occasion. The Minister clearly indicated that the relevant change would be made to the Bill, but I do not see any such amendment. Therefore, I will oppose this section unless the Minister of State offers a commitment that the amendment will be made on Report Stage.

Senator Leyden is correct that the Minister made reference to an amendment in the Dáil which would remove the provision relating to the exclusion of local authority members from sitting on these boards. I join the Senator in seeking clarification in that regard. While his recollection is more definite than mine, reference was certainly made to such a provision.

I am pleased to clarify that a member of a local authority may be a member of the board. This matter was dealt with, on foot of the commitment given by the Minister, by way of Report Stage in the Dáil.

The Bill before us today is marked "As passed by Dáil Éireann". I have not received any supplementary document setting out amendments made in the Dáil. This needs to be clarified. I am working on the basis that this document includes the amendments made in Dáil Éireann.

That is the document before the House.

It does not include the amendments made by the Dáil.

I collected my copy of the amended Bill from the Bills Office this morning. As such, I presumed it was the most up to date and accurate version of the legislation. However, what Senator Leyden is saying is correct. The relevant provision, subsection 22(5)(c), on page 27, states that a member of a local authority is specifically excluded from sitting on a board.

While the Minister of State is checking the document, I will take the opportunity to voice my opposition to the exclusion of Members of the Seanad from membership of the board, under subsection 22(5)(a). This issue was raised in the context of our debate on the legislation introducing the Injuries Board. A former Senator, Joe O’Toole, was appointed vice chairman of that board by the former Minister for Health, Mary Harney. There is no reason that a Member of this House would not be suitable to serve on such boards. A qualified nurse or midwife who becomes a Member of Seanad Éireann should not be precluded from membership under this legislation. It is impractical and unfair.

We have a very well qualified MEP, Ms Phil Prendergast, who is an excellent midwife. In case of membership of the European Parliament, the exclusion contained in subsection 22(5) seems reasonable. Likewise, exclusion of Members of the Dáil is acceptable because the demands of that role are different to those of a Senator. Senators, on the other hand, could fit very easily into this board and their service would be of great benefit to this House and to the Oireachtas. Nevertheless, I am prepared to accept the exclusion of Oireachtas Members. However, I will call for a vote on this section unless there is a satisfactory response from the Minister of State in regard to the exclusion of local authority members.

I disagree with Senator Leyden's suggestion that Members of the Seanad should be entitled to sit on a board. The logic I follow in this instance is the same as that which applied in respect of the removal of the dual mandate. The same principle arises in this case. However, I join the Senator in seeking clarification on the exclusion of local authority members.

I apologise for the confusion on this matter. I was not party to the earlier debate and am only now catching up with it. There was discussion on whether employees of the board could be members of a local authority. I accept Senator Leyden's point in regard to members of the board. I see no difficulty in that respect other than procedural difficulties, in that we do not want any further delays. If the Senator will bear with me, we will check with the Office of the Chief Parliamentary Counsel whether it is possible to delete the line in question. I accept there was a commitment given in this regard.

The Minister, Deputy Reilly, specifically stated that this provision was amended in the Dáil. However, the document I have, which I assumed was the most up-to-date version, does not include that amendment. It is not a particularly contentious matter but it has been raised before. The former Minister for State, John Curran, agreed that councillors could be members of a board in the context of the provisions of the Charities Act 2009. I hope all Departments, in framing legislation, will abandon what is a grossly unfair exclusion of those who serve people well in their local communities. As I said, I will oppose the section in the absence of an amendment on Report Stage.

In order to obtain clarification on this issue, it would be helpful to adjourn for five minutes.

Sitting suspended at 12.35 p.m. and resumed at 12.40 p.m.

We resume our debate on the Nurses and Midwives Bill 2010, Committee Stage, section 22. I call the Minister of State to explain the position in regard to section 22.

I apologise to the House for the confusion caused. I accept the points made by Senator Leyden. It is the intention of Government to table an amendment to provide for elimination of the exclusion of members of local authorities from membership of the board. I ask Members to bear with me. I intend to shortly table a Government amendment on Report Stage.

I thank the Minister of State for being proactive in this regard. I was in a similar position to her in the past. I commend the Minister of State for using her delegated power to take appropriate action on legislation having listened to debate in this House. I know of particular Ministers of State who are reluctant to make changes.

Including members of the previous Government.

Yes. When I was a Minister I listened to debates in this House. I know that as Minister, acting on behalf of Government in this House, one can take appropriate action in response to issues which are not earth shattering. That is a fact. I commend the Minister on State for the manner in which she approached this issue. I also thank the House for suspending for a few minutes in order that the issue could be resolved.

Yes, subject to the Minister of State tabling an amendment on Report Stage.

Question put and agreed to.
Sections 23 and 24 agreed.
SECTION 25
Government amendment No. 9:
In page 30, line 34, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26
Government amendment No. 10:
In page 30, subsection (1), lines 35 and 36, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Section 26, as amended, agreed to.
Section 27 agreed to.
SECTION 28
Government amendment No. 11:
In page 33, subsection (2), line 9, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Government amendment No. 12:
In page 34, between lines 3 and 4, to insert the following subsection:
"(7) If the chief executive officer is absent or the position of chief executive officer is vacant, the functions of the chief executive officer under this section may be performed by an employee of the Board designated by the Board.".

Amendment No. 12 amends section 28 by the inclusion of a new subsection (7) to provide for circumstances where the CEO is absent or the position of CEO is vacant. In such cases the board can designate an employee to perform the functions of the CEO. I hope Senators will support this amendment.

Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29
Government amendment No. 13:
In page 34, subsection (1), line 9, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Government amendment No. 14:
In page 34, subsection (2), line 14, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30

Amendments Nos. 15 and 16 are cognate and may be discussed together. Is that agreed? Agreed.

I move amendment No. 15:

In page 34, subsection (1)(a), line 35, to delete “65 years,” and substitute “68 years,”.

I welcome the Minister of State to the House. This was discussed previously with the Minister and he said he was not ageist. I do not know whether it has been amended anywhere else. The reason for choosing 68 years is that this is the outer limit for retirement in the EU-IMF-ECB agreement. My colleague, Senator Crown, is against retirement in principle but I will not push it that far. If it is Government policy to raise the retirement age, then I am seeking to have it included in the Bill. Like Senators Gilroy and Leyden earlier, I think we had the broad agreement of the Minister when he said he was not ageist. We put forward our views for consideration by the Minister of State but we seemed to have an element of agreement when it was before the House previously.

I second the amendment. I support Senator Barrett's proposal. I thought at first that this was a Government amendment until I saw the name of the proposer. It would seem to be a policy of the Government. I respectfully suggest that this amendment be considered although I appreciate there is a time constraint on this Bill. The argument has been very well made by Senator Barrett. If the Minister has the power to extend the age of retirement to 68 years where a case is made, it would be a reasonable decision. I know there is a move in this direction by Departments and it will become the norm in the future. I would not wish to put this amendment to a vote and I ask for the Minister of State's views.

While I support the principle of Senator Barrett's amendment, I suggest it should be reviewed at some stage in the future, not necessarily in this House. I think there should be consideration of the age of retirement of judges. I understand that judges are sitting beyond the age of 65 although I am open to correction in that matter.

Why should a different set of rules apply when important decisions are being taken on a daily basis in the courts? I suggest there should be an overall review of the age of retirement although not necessarily in this legislation.

On amendments Nos. 15 and 16, it is important to draw a distinction between people who are employed pre-2004 and post-2004. The requirement to retire at the age 65 relates to employees appointed before 1 April 2004. This is a condition of the superannuation scheme to which these employees belong. However, there is no upper age limit for retirement for employees of the board who are appointed on or after April 2004. This is in line with the Public Service Superannuation (Miscellaneous Provisions) Act 2004. Subsection (3) provides that the Minister for Health may, by order, increase the age limit upwards from 65 years in exceptional circumstances. This means that the Minister for Health can raise the age of retirement. I consider this will give the maximum flexibility regarding retirement age and I urge Members to accept the provision in the Bill as it stands.

Opinions differ among Members as to the age of retirement. As Senator Barrett said, at least one Member is opposed in principle to a retirement age being set. My concern is the issue of choice. I do not see that this amendment would compel a person to work until he or she was 68 although this is what might happen if there were to be changes in Government policy. If a person wishes to continue to work up to the age of 68, then this amendment will provide an opportunity to do so. The logic of this amendment is that a person should not be forced to retire at the age of 65. In my view, this amendment is a reasonable request from the proposer that the age be extended to 68 years in order that a person who wishes to continue to work until the age of 68 years will have that choice.

On a point of clarification, I am not opposed to retirement and I anticipate my own retirement enthusiastically when the appropriate time comes. However, I am opposed to mandatory age-based retirement which makes no sense, either medically, economically or socially. The current arbitrary retirement age of 65 was decided upon in a jurisdiction — Germany in 1870 — where at the time the average age of death at that time was about 48 years of age and where the average person who lived as far as 65 years lived an average of one to two years longer than that. People are living vastly longer and are vastly healthier. As my colleague, Senator Cullinane has said, the option of retirement should be maintained as a worker's right. However, I do not agree with a mandate for people who are productive, who are working and contributing to society and paying tax, who do not want to stop work, who are in the whole of their health and who, at a time of unprecedented economic crisis, at a time when a terrible demographic shift is occurring as regards the ratio of workers to dependants, are being told they must become dependants. This is insane and irrational.

I extend my good wishes to the Minister of State. The President and two of her Cabinet colleagues, if they worked in the health service, would be well retired at this stage and two others of her Cabinet colleagues will, if this Oireachtas runs its natural course, reach retirement age during the term of the current Oireachtas. This underlines how completely insane it is and to arbitrarily fix an age of retirement for people who have been appointed before and after 2004 makes no sense. I may be speaking out of turn but there is a need for legislation to abolish the principle of mandatory age-based retirement across the public service.

I ask the Minister for State for clarification on this point. Is it correct to say that the requirement to retire at the age of 65 is laid down in the Public Service Superannuation (Miscellaneous Provisions) Act 2004? Is it also correct to say that an appointment to this board would constitute an entirely new contract of employment which would avoid the possibility of the application of the 2004 Act?

As some Senators have said, this is part of a wider debate which is probably required and which is not specific to a particular piece of legislation. I agree with Senators that 75 is probably the new 65 at this stage because for a number of reasons, not least our health service, people are living longer and this is wonderful. We need to rethink our treatment of the different phases in life. Many people currently work well into their late 60s and even into their 70s. In the future I predict that many people will work into their 70s and even beyond. This is an important debate. Our view of ageing and the different phases of life need to change accordingly.

However, in respect of this Bill, people who were employed previously by An Bord Altranais and who change over to the new board retain their existing rights under the previous arrangements, meaning that those employed before 2005 are in a superannuation scheme which is based on a retirement at 65 years. Their pension becomes payable from the age of 65 years. Since 2004, however, under new arrangements, there is no age limit.

A person can work until the age of 66, 68 or beyond. There is no limit for people, post 2004. It is important to point that out.

There is also provision contained for particular circumstances, for example, where a person employed pre-2004 whose particular skills are required or where there are certain circumstances in which it would be in the public interest that the person should remain in his or her job. The Minister can make an order to cater for those circumstances on an exceptional basis. However, for those employed since 2004 there is no upper age limit.

Is Senator Barrett pressing the amendment?

No. However, the Minister for Justice and Equality, Deputy Shatter, introduced legislation concerning the Taxing Master which contained a proposal to reduce the relevant retirement age from 70 to 65. The Minister accepted the view of the House and retained 70 as the age.

This still seems draconian although I accept what the Minister of State stated. Subject to the section, an employee of the board, including the chief executive, shall cease to be an employee on attaining the age of 65 years. As Senators Crown and Cullinane noted, this seems draconian and appears to contradict what the Government had agreed internationally, namely, there was a need in Ireland to raise the retirement age. This was supported very strongly on medical grounds by Senator Crown. As we negotiate such international agreements and consider these matters, my concern is that ageist elements still exist that would care to see a person out of a job on attaining the age of 65 years.

I am very pleased we had the discussion. It is always a pleasure to meet this Minister of State on that basis but my concern remains. Why are there people in the public service who still think along these lines? Perhaps more radical or revolutionary thinking will take place the next time round. On that basis, however, I will not call for a vote or delay the House. We have made our point and it has been noted.

Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
Section 30 agreed to.
Sections 31 to 33, inclusive, agreed to.
SECTION 34
Government amendment No. 17:
In page 36, subsection (2), line 4, to delete "for Finance" and substitute "for Public Expenditure and Reform".
Amendment agreed to.
Section 34, as amended, agreed to.
SECTION 35

Amendments Nos. 18 and 19 are related and alternative to each other and may be discussed together.

I move amendment No. 18:

In page 36, lines 29 to 32, to delete subsection (1) and substitute the following:

"35.—(1) The Board may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform and subject to the conditions, if any, which are imposed by the Ministers, or in accordance with the directions, if any, given by the Ministers, borrow money for capital purposes.".

My amendment introduces a role for the Minister for Public Expenditure and Reform, as was done on several occasions by the Minister of State, Deputy Shortall. We are ad idem as far as that is concerned.

As to the amendment's other content, we were worried about allowing a body to borrow for current purposes, in particular given the current state of finances. We deleted that reference and the amendment seeks that a body should balance its books and not run up a current budget deficit. If a body borrows for capital purposes that should be subject to the conditions imposed by the two Ministers who are now involved in national finances. We had in mind there should be proper appraisals and a proper cost benefit analysis, a matter we discussed in the House yesterday with the Minister, Deputy Howlin. The purpose of the amendment is to protect the public finances, certainly those for current expenditure. An organisation should stay within budget and not borrow for current purposes. Capital projects should enjoy the support of and meet the criteria set by the Ministers for Finance and Public Expenditure and Reform.

I thank Senator Barrett for drawing attention to the fact that an amendment was required in order to include the Minister for Public Expenditure and Reform. The Government amendment addresses that point.

We do not accept that the right to borrow would be restricted to capital reasons and there are a number of reasons for that. For example, it may be necessary at some stage for the board to borrow for current expenditure. A pertinent example would be if there were a large number of fitness to practise cases in any single year. As drafted, the provision is a standard financial one. It is important to bear in mind the board is a self-funding body. Any borrowing undertaken must be serviced from its own moneys. In those kinds of circumstances, therefore, the board would require the flexibility to be able to borrow for current expenditure.

Amendment No. 19 includes the consent of the Minister for Public Expenditure and Reform, to which the Senator drew our attention. That is a very clear safeguard in regard to the practice of the board, namely, that it would be required to secure the permission or consent of both Ministers in the event of needing to borrow.

I hope the Senator will accept we have met him halfway on this issue. There are good grounds, however, for retaining the right for the board to borrow in those rare circumstances where it would need to do so for exceptional current purposes.

I withdraw the amendment, on that basis. The only other thought that occurred to me was that this is rather like the conditions that are stipulated by Brussels today for other countries. People who borrow in the future will face much greater surveillance. I would put strict controls on the capital side and be draconian, not allowing borrowing on the current expenditure side. However, I appreciate the points made by the Minister of State.

We are moving towards an era where, to escape from bond markets, people within public finances are becoming almost Victorian, balancing books so they do not have to engage in borrowing.

Amendment, by leave, withdrawn.
Government amendment No. 19:
In page 36, subsection (1), lines 29 and 30, to delete "for Finance" and substitute the following:
"for Finance and the Minister for Public Expenditure and Reform".
Amendment agreed to.
Section 35, as amended, agreed to.
Section 36 agreed to.
SECTION 37
Government amendment No. 20:
In page 37, subsection (2)(a), line 1, to delete “for Finance” and substitute “for Public Expenditure and Reform”.
Amendment agreed to.
Government amendment No. 21:
In page 37, subsection (2)(b), line 6, to delete “for Finance” and substitute “for Public Expenditure and Reform”.
Amendment agreed to.
Section 37, as amended, agreed to.
Sections 38 and 39 agreed to.
SECTION 40

I move amendment No. 22:

In page 38, subsection (1)(a), lines 10 and 11, to delete all words from and including “who” in line 10 down to and including “rules” in line 11.

I welcome the Minister of State to the House. She was not in the House during the debate on Second Stage of this Bill when I let the Minister for Health know that my party had some concerns about indemnity. We tabled this amendment which seeks, on page 38, subsection (1)(a), lines 10 and 11, to delete the phrase “who maintains adequate clinical indemnity insurance in accordance with the rules”.

Section 40 is the most contentious and problematic section of the Bill. My colleague in the Dáil, Deputy Caoimhghín Ó Caoláin, tabled a similar amendment which was voted down by the Government. We urge the Minister of State to reconsider this because if she does not, we will be forced to put the matter to a vote and we will vote against the Bill, which is unfortunate. I agree with much that is contained in the Bill and supported changes to section 8 in regard to criteria and rules. We support most of the content of the Bill but we have an issue about indemnity. The problem with this section of the Bill, as it stands, is that it could severely curtail the ability of women to access midwife-led childbirth. I want to make it clear that we are keen to ensure childbirth is safe. We accept it is essential that those who provide care and assistance to women during childbirth are properly qualified and registered and are accountable.We also accept that indemnity is necessary and vital and we have argued in favour of it. We have also argued that it should not be a statutory requirement, as it is in this Bill. It would be better to make indemnity a requirement of service level agreements such as the current memorandum of understanding that governs the services provided by self-employedmidwives.

In our view and in the view of many midwives and some organisations that advocate for midwives, section 41, as drafted, could pave the way for the criminalisation of autonomous midwifery practice. It provides for the imposition of terms of imprisonment of up to ten years for midwives who break the extremely restrictive rules that underpin indemnity. It has been noted that the threat of such penalties has not been imposed on doctors, for whom insurance is not legally compellable. It does not serve the public interest to make midwifery indemnity a statutory requirement. Section 41, as drafted, would enable the insurer — the State, in this case — to dictate the terms and conditions of childbirth for maternity service users. This is because of what has been described by the community midwives association as the "inflexible" conditions attaching to this insurance. One of the organisations that advocates on behalf of midwives is arguing that this Bill could ensure that inflexible conditions are attached to this insurance, which is unobtainable after a mother has turned 40 and once obtained is capable of lapsing at any moment during labour. The section, as drafted, restricts self-employed midwives from accepting various categories of mothers as clients. It further obliges self-employed midwives to abandon their clients in mid-labour if they exhibit some change in their condition that is prohibited by the terms and conditions of their indemnity. Some Senators on the other side of the House are shaking their heads, but what I have said is an absolute fact.

If they want to dispute facts, they can have that discussion with me.

Making indemnity a statutory requirement threatens women's safety in childbirth. Section 41, as drafted, obliges a mother whose midwife's insurance has just lapsed to choose one of two alternatives — to give birth at home without professional attendants, or to face unwanted medical treatment in a hospital. Women who do not fit the indemnity criteria are already opting to give birth at home without professional attendants. As I said on Second Stage when we flagged the problems we have with this, the community midwives organisation has lobbied all Senators and Deputies on this matter. My colleague, Deputy Ó Caoláin, has tabled a similar motion in the Dáil. We have genuine concerns. We accept that midwifery has to be practised to the highest standard. We have no difficulty with the principle of indemnity. The way it is being presented in the Bill is a cause of concern, as is the way it will work out. For those reasons, we will not support the Bill if our amendment is not accepted.

As far as I know, this Bill was published by the last Government. If I am to be consistent, I will not support this amendment. This is the area of highest risk. There has to be proper indemnity cover. It is far too risky to allow anyone not to have that cover. That is why efforts are being made to maintain this provision in the Bill. Individuals can make claims when things go wrong, which can happen. It is a safeguard for the midwives as well. I do not see any reason to change this section of the Bill.

I agree with Senator Leyden on this matter. As a member of the legal profession, I do not agree with the amendment. A big issue can arise if one has a home delivery but it does not work out, unfortunately, and one is admitted to hospital. The hospital will have insurance cover, but the midwife might not have cover. If litigation ensues in such circumstances, there will be a big legal argument at the outset about where responsibility lies and where the procedure went wrong. In the first five or ten days of such a legal case, questions will be asked about whether there is insurance cover. That is why it is essential that professional indemnity cover is extended to everyone involved in this area. That is why I do not support this amendment. The Minister, like the previous Minister, is right in this regard. I will not support this amendment.

I would be slow to support this amendment. When we discussed this Bill on Second Stage a few weeks ago, Senators mentioned that there has been confusion and concern among the professional bodies and representative organisations. The Minister clarified the matter at that time. We cannot tolerate or accept anyone who does not work within best international practice, or who works without indemnity. This is what section 40 aims to achieve. Section 41 covers circumstances in which a deterioration in the health status of a woman in labour requires the midwife to stop working. If the health of a woman in childbirth deteriorates, the midwife moves from a birthing situation to a first aid situation. That is clearly covered under section 41. If one considers this matter in the context of section 40 alone, one can see where concern can arise. However, one needs to consider the whole Bill and the rules which will describe the conditions attaching to the framework of indemnity offered by the State in this area. The whole approach addresses the concerns that have been raised. The representative bodies have moved to accept this.

Senator Cullinane has played a useful role in drawing attention to this problem, which was also discussed on Second Stage. At the end of 2010, some €786 million in clinical claims were outstanding. Anything we can do to improve safety in this area is absolutely crucial. We have had great success in reducing the number of road accident fatalities from over 600 some years ago to between 170 and 180 this year. That required a great deal of effort. Senator Cullinane has drawn our attention to the risks involved. A report drawn up by the State Claims Agency has set out the substantial costs associated with this area. As the Minister said the last day, it is not just a matter of money. We should bear in mind the pain, suffering and injuries in this regard. We need to address this serious problem. I disagree with my colleague. I think more qualifications and protections are needed. The huge level of claims is a problem facing the health service in general. It is useful to discuss it here. I had not heard any previous reference to the danger to the health service of such a massive number of claims.

My party is in favour of increasing safety. I do not want anybody to be confused about our amendment. We are in favour of increasing the welfare and safety of patients, including people who are giving birth. We are talking about the potential risks we see. Those risks have been highlighted by organisations that advocate on behalf on midwives. Our argument is that making indemnity a statutory requirement could present risks. That is the problem. I have given examples of the difficulties we see. I will give some more examples. Section 41, as drafted, prohibits attendance by uninsured midwives, even in cases of sudden or urgent necessity.

At a time when we are closing a number of accident and emergency wards and maternity units across the country, it does not make sense to prohibit emergency care by retired midwives, for example. According to our interpretation of the Bill, that is exactly what will happen. Section 41, as drafted, significantly narrows the terms and conditions in which midwifery can be practised. We believe the existing memorandum of understanding is anti-competitive because it significantly restricts the client base of self-employed midwives. This, in turn, restricts women's access to the services of such midwives. Self-employed midwives are, and seek to be, insured. They all want to be insured. Other people in the sector agree with the community midwives that safeguarding mothers against uninsured practitioners is easily achieved within a birth community that is relatively small and tight-knit. The effect of section 40 of the Bill, as drafted, would be to deny women choice in maternity care. In our view, this is not in the public interest. Hospital maternity services are at risk all over Ireland. Plans are advanced to close some of the countries maternity units. Community services must be developed to take the place of those services and the Bill as it stands restricts that possibility.

An issue also arises concerning women who live in non-urban areas who have childbirth needs that must be addressed. Some face journeys of two hours in labour to access inpatient care, often ending with a medical induction or an elective caesarian. In effectively stifling midwives' rights to offer services in the community, section 40, as drafted, denies women the right to access community care from midwives.

One of the problems is that self-employed midwives have been unable to access insurance in the private market in recent years. The only indemnity currently available to them comes from the State, and that is based on a narrow Health Service Executive home birth service. Section 40 as drafted prevents midwives from providing various services in the community such as post-natal care. Post-natal care levels in Ireland are among the lowest in Europe. Section 40, unless amended, will deny large numbers of women the freedom to give birth at home and could lead to a rise in the number of unattended births. Mothers who do not fit the State's terms and conditions are already opting to give birth at home unattended. That is happening. No mother should have to give birth at home without professional assistance. Section 40, as drafted, locks in an insurance package based on a HSE contract that ensures that indemnity can lapse from moment to moment depending on the progress of a woman's labour.

We have many concerns about this Bill and I ask the Minister to take on board those concerns in good faith. Senator Gilroy said that some of those concerns were raised on Second Stage and claimed that they are dealt with in section 41. I do not believe they are, neither does the organisation which advocates on behalf of midwives. We have real concerns.

I will listen to what the Minister has to say but if she does not accept our amendment because of all the risks I have outlined we have no choice but to vote against this section because we have real concerns in terms of what is coming down the tracks, so to speak, for many local and regional hospitals. Many of those maternity units have been downgraded, and some of them closed, across the country. We all want the highest standards and to make sure that women are protected but there are inherent risks in what we are doing here that could limit the possibility of some women giving birth at home, which is their choice. That is our difficulty with the Bill and unless the amendment is accepted we will not be in a position to support the Bill.

In amendment No. 22 Senator Cullinane proposes to remove the provision that a registered midwife must have adequate clinical indemnity insurance to attend a woman in childbirth for reward. There is clearly a need to ensure that midwives have adequate insurance lest a case of negligence is taken. As court cases in regard to birth where negligence is proven often result in very high damages being awarded this is an important issue to which we must give careful consideration. Unless there is that kind of assurance in regard to safety there is the potential for adding to the distress of parents if a case of negligence was proven and the midwife involved was not insured.

If we were here discussing a Bill to provide for a higher level of regulation in respect of the nursing and midwifery profession and we did not include these provisions on ensuring high standards in regard to safety issues, Senator Cullinane would be criticising the Government for not doing so, and he would be right to do that. If we are, as we are in this case, regulating for high professional standards in the nursing and midwifery profession it is essential that we insist on a situation whereby people working in this area have full indemnity in regard to potential cases that would be taken.

Senator Cullinane referred to the fact that medical practitioners are not required to have legal indemnity. That is the case but it is wrong that that position has been allowed to continue for so long. That is the reason the Government has given a clear commitment to address this issue. Legislation is being prepared and we are hopeful it will be ready for debate early in the new year. It is an area where there is a gap in terms of safety of medical services and we are currently working on that.

To facilitate self-employed midwives obtaining insurance an arrangement has been put in place to allow self-employed community midwives access the State's clinical indemnity scheme via the HSE. A self-employed community midwife who signs up to the memorandum of understanding, MOU, with the HSE and abides by its terms is covered by the State's clinical indemnity scheme. The MOU is constructed on the basis of appropriate forms of governance, clinical supervision, clinical care pathways, performance management and audit frameworks being in place, in other words, best practice in regard to home deliveries. Part of the MOU outlines conditions and factors which indicate increased risk. Home births are suitable for low risk, healthy women. There is a need to ensure that where the State is providing clinical indemnity a midwife adheres to the standards set by the HSE.

I would like to inform Senators that a national steering committee on home birth has been established by the HSE to review the implications of the MOU between the HSE and self-employed community midwives on the provision of a safe, evidence-based home birth service for low-risk, healthy women. The committee consists of representatives from a wide range of stakeholders including a representative of self-employed community midwives and patient groups. The Department of Health is also represented on the committee. The inclusive nature of this committee will undoubtedly facilitate discussion on the key areas of concern and inform future guidelines and developments. On that basis I appeal to Senator Cullinane to consider withdrawing the amendment because the State cannot possibly support that.

Is the amendment being pressed?

My amendment is designed to reduce the risk posed by the current arrangements. We believe these HSE terms and conditions are operated in such a way as to prevent midwives exercising their clinical judgment and what we see as their duty of care to mothers and babies. For example, self-employed midwives who feel ethically bound to continue to assist a home birth mother whose labour does not conform to insurance rules now face jail under this Bill. That is a recipe for unsafe care.

We must examine the facts in this regard because awards against midwives in the community have been few and far between. In the past 30 years, payouts in respect of self-employed midwives have amounted to less than €250,000 in total. By criminalising midwives who practise outside the State's onerous terms and conditions section 40, as drafted, denies women the right to opt for a gynaecological service that is low tech and drug free. That is a right that has been recognised and accepted by the European Court of Human Rights. Section 40 even prevents midwives offering services such as breast-feeding advice in the community which amounts to cutting women off from their services. Community midwives' clients' breast-feeding rates are among the highest in the European Union while national rates are among the lowest. Midwifery-based care leads to better health outcomes for mother and baby and greater client satisfaction it also reduces costs and making midwives the main care givers in the majority of births could save millions of euro.

I have repeated the reasons we are opposed to this section. The Minister should not presume what any individual may or may not say in any circumstance or in the context of any Bill. I have put on the record our view that there must be indemnity, support and an increased duty of care for the patient, the child and the midwife but I repeat that making indemnity a statutory requirement is the problem. I mentioned the service level agreements which we believe is a better way to proceed rather than the statutory requirement.

I assume the Minister and the Government have made up their minds that they are not accepting the amendment and on that basis I will press it and call for a vote.

I want to make it clear that I support the principle of choice in regard to childbirth. However, home births can only take place in safe circumstances and it would be extremely remiss of the State to preside over a situation where we did not insist on having that indemnity. I presume the Senator supports the State playing that role and insisting that practising midwives are adequately covered. This provision provides the safeguard.

I refer to the risks——

The Minister of State to continue, without interruption.

It is either a legal requirement or it is not. The State would be remiss in not insisting on provision of indemnity as a legal requirement. The women who want to have home births, who want to have community midwives assisting them in those births need to be given assurances as to the quality of care being provided and, in the unlikely event that something goes wrong, that there will be adequate cover. We cannot preside over a situation where those kinds of safeguards are not in place.

The second point is that up to 2008, cover was provided by the INMO but this cover was withdrawn in 2008. The HSE is setting out standards of safety requiring practitioners to have clinical indemnity and providing a scheme of indemnity with certain conditions. If we were to do otherwise, it would mean giving open-ended cover. The HSE developed this scheme in order to facilitate community midwives in doing their very important work and to ensure safeguards were in place but this is not an open-ended scheme and it has to set down conditions. The assessment of the level of risk is clearly an important element of the scheme.

Community midwives are not required to avail of the State scheme; they are free to arrange their own clinical indemnity. However, in a high-risk or a potentially high-risk situation, they would find it exceptionally difficult to achieve that indemnity cover if it were possible at all. The HSE is acting with all reasonableness in this situation and also responsibly. It has to set down conditions under which a view is taken as to what constitutes safe circumstances and what circumstances pose too great a risk for the mother and the child concerned.

Senator Cullinane referred to the work done by community midwives such as encouraging higher levels of breast-feeding and I agree this is very important work which is highly valued. I wish to be clear that the question of indemnity only arises for the actual birth and it does not apply to any other services involved either before or after birth. I hope the Senator would accept our bona fides in this regard. We want to ensure highest standards and the safest possible circumstances for women who choose to have home births. We support that right of choice but we must also be reasonable and responsible in terms of identifying potential risk. This is the Government approach and I hope the Senator might reconsider.

Question put: "That the words proposed to be deleted stand."

Will the Senators claiming a division, please, rise?

Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly rose.

As fewer than five Members have risen, I declare the question carried and the amendment defeated. In accordance with Standing Order 60, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Question declared carried.
Amendment declared lost.
Progress reported, Committee to sit again.