I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion thereon. On Report Stage, each amendment must be seconded. Amendment No. 1, in the names of Senators Barrett and Crown, arises out of Committee proceedings.
Health Service Executive (Governance) Bill 2012: Report and Final Stages
I move amendment No. 1:
In page 3, between lines 20 and 21, to insert the following:
"2.—The Health Service Executive shall cease to exist no later than October 10, 2015.".
This amendment, in my name and that of Senator Crown, puts a date on the sunset of the Health Service Executive. The date is three years from when the Minister first appeared in the House to address this legislation. We share his objective of not having a HSE in three years. A sunset clause is needed because quangos tend to assume another life. There is so-called mission creep as quangos invent other tasks for themselves to do. Some of the quangos that have been listed for culling seem to get stronger. In this regard, one should consider the Higher Education Authority and Health Insurance Authority.
We share the Minister's wish to see the HSE abolished within three years. Our amendment uses the date mentioned by the Minister previously in the Seanad. We are offering him the chance to cement this as part of his general plan not to have the HSE and to have competing health insurance companies in operation.
I second the amendment. I agree completely with the sentiments expressed by Senator Barrett. The HSE is a failed experiment. The notion of having a single, nationally commanded and controlled managerialist bureaucracy micro-managing every aspect of our hospitals and other parts of health system has failed. We need to hasten the model's extinction. Many people, on hearing this argument, will think that the only alternative is to have a rigid, Darwinian, laissez-faire, winner-takes-all health system based on the survival of the fittest and not on social solidarity. This is not the case, as the Minister knows.
We all believe health care should be delivered according to the principle of social solidarity, with the better off subsidising the health care of the less well off. It should also be based on the principle of access based on need and not on the ability to pay. What often gets lost in the fog of debate is the fact that there are other ways to this nirvana. Not all of them involve going through a Byzantine, unitary national bureaucracy. If one considers the ranking of OECD countries' access to health care, one will note that those countries ranked in the top ten follow the alternative model, one which is based on insurance. When people use the word insurance, they become terrified because they believe it is a question of only-for-profit insurance companies. We believe the principle should involve a mixture with some for-profit insurance companies and some not-for-profit social insurance companies of the type that exists in many countries, such as Canada, Germany and Israel. In truth, this is the type that exists in this country in the form of the VHI.
In seeking to impose the deadline, we are aware that the Minister will be an axe-wielding huntsman looking for appropriate bureaucratic targets to decapitate on the way to achieving our ultimate insurance-based feast. However, he is surrounded by turkeys who will try to delay Christmas. We are just trying to sharpen the Minister's blade.
I compliment my colleague and friend Senator Crown on his gloriously mixed metaphor. It was a remarkable stylistic achievement but we all agree with the Senator. He has such an impish sense of fun, which I believe is also shared by the Minister.
This amendment seems to be in concert with the Minister's ambition. Sunset clauses are not unknown in legislation. They serve a useful purpose in sharpening the focus of those involved. Where it is the clear intention of the Government to wind down the HSE, nothing concentrates the mind better than a death sentence. This is basically what pertains in this instance. The HSE has not worked and has been a great disappointment. I am sure there are staff within it who have worked very hard but there has been far too much managerial fat. We will all be very happy to see a clear limit placed on the organisation's existence.
The period of three years offers plenty of time for the organisation to be wound down efficiently. It is not a question of rushed business; it should be possible to accomplish the task within three years. As Senators Crown and Barrett have said, the proposed clause is properly known as a sunset clause. However, the sun is very likely to be sinking on the Government in three years, inevitably because of the deadline for parliamentary elections. It is likely that the Government may survive three years but it cannot survive much longer, simply because of the constitutional arrangements made for the holding of elections. This should also concentrate the mind because the sunset of the Government will occur at the same time as the sunset of the HSE. If the Government wants to get the job done, it should note there is no guarantee that it will be returned. It may not be.
Seanad Éireann wishes to be helpful to the Minister in achieving his objective by imposing a clear limit of another three years. I am very happy to support the amendment. It is noteworthy that the proposer and seconder of the amendment are a distinguished academic economist who understands the running of bodies such as the HSE very clearly and well and who has spoken incisively on them, both before and after joining this House, and one of our most distinguished medical practitioners and campaigners. Therefore, the amendment is not some kind of light little soufflé that was manufactured on this side of the House for the purpose of throwing a pie of some kind in the Minister’s face. I am trying to keep my metaphors unmixed. The proposal is constructive and I am happy to support it. I will not have the opportunity to reply to what the Minister says but I am quite sure the task of replying will be left in the capable hands of those who proposed the amendment.
I welcome the Minister to the House to deal with this important reforming Bill. I thank my colleagues for the very constructive manner in which they have dealt with this debate and for their amendment. I have a problem with the amendment in that the inclusion of dates and deadlines can sometimes delay action because those concerned may feel they do not need to move until the date specified.
We could bring forward the deadline.
Discretion should be left with the Minister. With regard to the issue of reform, we are dealing with the largest employer in the country. Over 100,000 people are employed. Making the required changes will take time and will not occur overnight. Many of the changes need to be expedited. The Minister needs discretion in dealing with this reform. The Bill, as drafted, gives him that discretion so I cannot support the amendment on this occasion, unfortunately.
I thank the Senators for supporting the Bill and reform programme. I appreciate the sentiment behind the desire to include a sunset clause, including a specific date. However, it would tie my hands in a way that would not be conducive to accelerating reform. I have consulted advisers in the Department on this matter and the best advice given is that the amendment would cause me more problems than it would solve. I hope the Senators will accept that and understand why I do not intend to accept the amendment.
We sought to help the Minister but when we have been told in reply that we are not being very helpful, we should not persist with our attempt. I thank Senator Colm Burke and the Minister. This was a suggestion. The Minister has an enormous task and if this is not helpful, it should not obstruct him or consideration of it further delay the House. With the consent of the House, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 2 is in the name of Senator MacSharry, other Fianna Fáil Senators and Senators Barrett and Crown arising out of Committee proceedings.
I move amendment No. 2:
In page 6, to delete lines 31 to 34.
I welcome the Minister to the House and again thank him for making himself available to the House as opposed to sending one of his junior colleagues. We are very appreciative of that.
As on Committee Stage, our difficulty with the section is that one cannot get the job unless one has had the job. That is flawed. It does not add to what the Minister is trying to do. That is not to impugn the qualifications or potential of the incumbent in a similar position in the outgoing organisation. There are capabilities to get that job but it is wrong that an essential prerequisite is that one has had a similar job previously. To draw on the poetic theme referred to in the debate this morning as opposed to the nautical theme referred to during the debate on Committee Stage, that is what led to my using the metaphor of the Titanic. If the Titanic has been called the Olympic, would it have stayed afloat? The answer to that is "No". I believe the Minister knows the point I am making from the debate on the section on Committee Stage.
I call Senator Norris. Is the Senator seconding the amendment?
If Senator MacSharry would like me to do so, I would be very happy to second it.
I would.
I am astonished about this. The section states: "A person may not be appointed as an appointed director unless he or she is a person who is an employee of the Executive holding the grade of national director in the Executive." There could not be a clearer example of what used to be called, with great scorn, "jobs for the boys" or "jobs for the boys and girls". In other words, we are simply retaining the people who are already there. I am not sure that in every instance we can repose great confidence in them. We have had this problem with the banks. We pussy-footed around the place in a rather silly way, we took up all their debts, we more or less exonerated them and then we allowed them to stay in office - the people who really did not work.
I wonder if this provision is constitutional. It excludes everybody except people who were there already. It is not just a nonsense, it is grossly offensive. It is also totally undemocratic. I wonder is there some reason for this provision. Was some form of an agreement made? Was some kind of pressure brought to bear by a group within the HSE in order that they should be placed in a situation where they could not be dislodged by new blood? Surely to God what we need is new blood. I do not mean that we exclude everybody but this provision states that a person cannot be appointed unless they have been there already - plus ça change, plus c'est la même chose - at least it is not in Latin.
I am very happy to second the amendment but I am astonished that such a clause should exist in Irish legislation. I regard it as completely wrong. It is possible that I have missed something that the Minister may be able to make me aware of but I am very much inclined to doubt it.
I spoke on the immigration and asylum legislation when a previous Government was in office and there was an attempt to allow a senor executive, about whom very serious questions had been raised, to continue in office. I had never seen such a measure in a Bill before and I attacked the then Fianna Fáil Administration over it on a question of principle. I believe that principle continues to operate here. I will be very sad if this clause survives this debate in Seanad Éireann. I hope it does not.
Perhaps I could introduce a culinary metaphor and say that Senator Norris may have over-egged the pudding on this one. I share the concern he expressed in speaking on the amendment or rather I would share the concern if this was to be a permanent arrangement. This legislation provides for a transitory arrangement to ensure that we can move on with the reform of the health service, if I understand it correctly.
So it is a deal?
No. The intention behind the proposal is that this would allow the people who are currently in the job to get on with doing the job and expedite the reform within the service, as opposed to having to go through the entire public process of advertising which could delay the process by 12 months or more. The Minister might confirm if I am correct in my analysis.
Yes. Senator Gilroy put it as good as I could put it myself but I can add to that. This is a very temporary arrangement to move to an integrated-----
A temporary little arrangement - I remember that phase.
Yes. It is a temporary one. It is a transition phase on the way to moving to an integrated care agency ultimately and thus the abolition of the HSE.
In regard to the Senator's concern, which is very reasonable, there are two things to be said. This is a directorate of the HSE and it has to be formed from members of the HSE but there is nothing to stop me appointing new national directors from outside the executive and bringing in new blood that way. I can assure him that there is no question of us trying to maintain what is there. It is the very antithesis of what I am about. I want to change the status quo in favour of the patient. I want a new directorate that will oversee the transition to the new universal health insurance that we all wish to see, where everyone in this country can be treated equally and will have fair and timely access to heath care regardless of their income or means. They will be treated on the basis of need. If people want to have cordon bleu cooking and five star hotel accommodation, they can pay a higher insurance premium for that but it will not get them their colonoscopy one minute before the next person who has the standard insurance.
I hear the Senator's concern but he slightly misunderstands what we are about. This is a temporary arrangement that I do not see lasting much beyond 2015 or 2016. I certainly do not see it lasting longer than 2016. I envisage the new integrated agency will come into place in 2015 and this board will then no longer be in place. It is a directorate to oversee the transition phase. It is not limited in essence to people within the HSE because we can bring in people from outside the executive. As Senator Gilroy said, this is providing for expediting the change as quickly as possible. If we were to go through a formal advertising process, it would take anywhere between six months and a year and we do not have that time. I want to see the changes brought in quickly. We have seen huge change occur within the health service already in the past 18 months in the way services are being delivered by consultants on the ground, notwithstanding our difficulties with one of the consultant organisations in the Labour Court. I want to see this expedited. I cannot accept the amendment. I understand precisely why it was tabled but I hope I have explained why I do not wish to accept it.
Is the amendment being pressed?
I am afraid I must press it.
Senator Barrett wants to speak before the vote on the amendment.
I apologise Senator. I did not see the Senator indicating he wanted to speak.
Senator Barrett is too modest.
The amendment seeks to untie the Minister's hands. The wording of the provision need not be as stated in the section, namely: "A person may not be appointed as an appointed director unless he or she is a person who is an employee of the Executive holding the grade of national director in the Executive." Are there people in private hospitals or people in private insurance companies, to which the Minister referred, who could help him in this task? I appreciate Senator Gilroy's point that the provision is for the short term but it will create difficulties outside the executive when people learn that we had to do it this way because the process would take too long if we advertised the posts and so on.
People might resent it as a sunset clause.
The Minister would gain in accepting the amendment by not confining this to people who are in the executive and recruiting the people he needs to perform this urgent task.
Work is being undertaken to prepare the necessary detailed job specifications for the planned director posts. Final decisions have not been made regarding recruitment and appointment issues and the terms and conditions of these positions will be in accordance with Government policy and will be subject to the approval of the Minister for Public Expenditure and Reform. However, on top of that, contrary to the statement of the good Senator Norris, this is in keeping with issue around the sunset clause. This is to expedite the appointment of the directorate and the transition period to get us to universal health insurance when the HSE will be no more. Having to spend between six months and a year advertising for the directorate was something on which we made a decision quite a way back in the Department on the advice of the previous Secretary General and the current Secretary General. It is not a case of jobs for the boys and girls. This is intended to put the directorate together quickly and move on with the reforms we need to put in place to bring in universal health insurance.
Is the amendment being pressed?
It is.
I must put the question: "That the words proposed to be deleted stand." Those in favour say "Tá".
The Chair should not instruct Members what to do. They should be left floating because that is a way we could defeat them. The Chair's intervention was improper.
Can I just explain? I acknowledge these words can sound somewhat ambiguous. In effect, the proposal is that the words it is proposed to delete stand, in other words, that there is no change. Therefore, the Government Members vote "Tá".
My apologies.
It is up to them to make up their own minds. Direction from the Chair is not helpful. I speak as someone who managed to defeat a Government on precisely this point. There was confusion and it was helpful.
The question is lost.
Vótáil.
Question put:
The Seanad divided: Tá, 31; Níl, 16.
Tá
- Bacik, Ivana.
- Bradford, Paul.
- Brennan, Terry.
- Burke, Colm.
- Clune, Deirdre.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- D'Arcy, Jim.
- Gilroy, John.
- Harte, Jimmy.
- Hayden, Aideen.
- Healy Eames, Fidelma.
- Heffernan, James.
- Henry, Imelda.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- Moloney, Marie.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Donnell, Marie-Louise.
- O'Keeffe, Susan.
- O'Neill, Pat.
- Sheahan, Tom.
- Whelan, John.
Níl
- Barrett, Sean D.
- Byrne, Thomas.
- Crown, John.
- Cullinane, David.
- Daly, Mark.
- Leyden, Terry.
- MacSharry, Marc.
- Mooney, Paschal.
- Mullen, Rónán.
- Norris, David.
- Ó Murchú, Labhrás.
- O'Sullivan, Ned.
- Power, Averil.
- Walsh, Jim.
- Wilson, Diarmuid.
- Zappone, Katherine.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.
Question declared carried.
Amendment declared lost.
I move amendment No. 3:
In page 6, between lines 39 and 40, to insert the following:
“(5) The post of Director for Mental Health shall be a publicly advertised position, subject to strict criteria.”.
This is a similar thread to the amendment on Committee Stage, which the Minister recalls. The essence of the Bill, which is supported by all Members, is that the Minister will have more hands-on control and the Government will have a more direct input into its workings. The new section 16E(2) as inserted by section 7 of the Bill states: "Subject to subsection (4), a person appointed as Director General shall be recruited in accordance with the Public Service Management (Recruitment and Appointments) Act 2004." We propose to delete the lines "subject to subsection (4)".
No. That relates to amendment No. 4. The Senator is speaking to amendment No. 3.
On a point of order, Senator MacSharry spoke to amendment No. 4. We are dealing with amendment No. 3.
We are dealing with amendment No. 3. I thank Senator Gilroy for his intervention.
I got slightly confused. It is not the first time it happened and it will not be the last. We propose to insert the words "The post of Director for Mental Health shall be a publicly advertised position, subject to strict criteria." The Mental Health Reform Group is concerned that the Bill limits the recruitment of a new director to the HSE to those who already hold the position of national director, a point on which we touched earlier. It is vital that we get the person with the appropriate expertise for the job. That is not to say that somebody within the current set-up might not have that expertise and sail through a recruitment process, but in the public interest and having regard to the credibility of what the Minister is trying to do, which we are all behind, we believe the position must be publicly advertised, subject to strict criteria. I apologise for discussing the other amendment earlier.
I second the amendment. It is a very important issue and it should be supported.
I would like to strongly support this amendment and it is for that reason I added my name to it. First, this is a question of openness, transparency and accountability, of that there is no doubt. I remember when the Competition Authority legislation was going through this House under the direction of a previous Minister, who subsequently curiously became Minister for Health, the then Deputy Mary Harney, one element that was absent from it was a competition for the post of director. There was no provision for the advertising of the position. I understand from recollection that I managed, by amendment, to get that rectified.
It is very important that we pay respect to the whole area of mental health. This area has been sadly neglected in the past. We have a strategy to improve this situation. We cannot treat the post of director for mental health in any kind of offhand way. This is a post where we need the best and we get the best by publicly advertising the position and allowing somebody to achieve that position on the basis of the strict criteria mentioned by Senator MacSharry.
I assume the Minister will plead the time argument again but I do not accept the argument that was made in response to the previous amendment because, as I clearly pointed out, the Minister will be out of time anyway and so it becomes completely academic. By the end of three years the Minister will be out of time - the previous amendment was well argued. I do not accept the validity of the argument that what was proposed would put shackles on the Minister - far from it. It sought to simply ensure that the deed got done and the same principle applies to this amendment.
The post of director of mental health is a crucial one, particularly with the levels of depression, the incidence of suicide and the condition of facilities for people who are mentally unwell in this country. It would be very regrettable if we did not take this appointment with the utmost seriousness and do everything we can to ensure that this post is filled by the most appropriate person. Everybody would agree that the most appropriate way of filling it is by a proper publicly advertised search. I strongly support this amendment. I feel very strongly about this issue. A previous Government made a mistake at the heart of the Competition Bill and this House rectified that. I hope that again today this House will rectify what I think is an error. I do not believe it is malign or done in bad faith but I genuinely believe it is a serious flaw in the Bill.
I call Senator James Gilroy.
I thought the Acting Chairman might have been referring to my cousin.
My apologies, Senator.
Nobody inside or outside the House would disagree with the sentiments in the amendment requiring that the post of a director of mental health be established. It is vital that we do so but Senator Norris has recognised that the logic that pertained to the previous amendment pertains to this one.
The same lack of logic applies to it.
I think what the Senator said was that the same logic pertains to the previous amendment as pertains to this one. While he does not accept the logic, it is the same logic.
It is not logical.
I would again refer to the transitionary nature of this legislation. It might be reflected upon that if we were to go through a full process of recruiting a director of mental health services, in line with what is proposed in the amendment, the exact nature of the new organisation we are establishing has not become fully clear yet. If we were to appoint somebody on a full-time basis to a transitionary position, we would be making an error. That is not to say we do not agree that mental health services need to be given the very highest priority.
Surely it is at the most critical stage when it is in transition.
I support what Senator Gilroy said. The amendment is well intentioned As explained earlier by Senator Gilroy and the Minister, we are setting up a transitionary structure and to go through the process of advertising every position that will have to be filled would take too long and would slow down the whole process. When an entity is being restructured, the Minister has to have a fair degree of discretion in trying to get on with the job of bringing about reform.
Section 7, providing for the amendment of the principal Act, states: "An appointed director shall hold office as a member of the Directorate on such terms and conditions as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine." It is not only the Minister for Health who is involved in this, the Minister for Public Expenditure and Reform is also involved. The Minister must have discretion at this crucial time because we have to introduce a good deal of reform. Inserting this amendment in the legislation would only delay that process. I will not be supporting the amendment.
As I outlined previously in tandem with the proposed new governance structure, new administrative structures will be put in place within the HSE to reflect the need for a greater operational management focus on the delivery of key services and greater transparency about funding service delivery and accountability. Planned new national director posts include a director of mental health services for the first time, and these planned posts are not a legislative matter and are separate from the Bill. Given the overall structure of the Bill and its purpose, which is to abolish the board of the HSE, I hope Senators will appreciate that it will not be possible to accept this amendment which relates to an administrative and not a legal issue.
I emphasise the importance of mental health and the importance the Government places on it, hence a planned new director of mental health services who will be a national director and be on the directorate of seven people. That speaks for itself in terms of the importance we place on mental health. To mix up what is an administrative matter with a legislative matter would be wrong. I do not propose to accept the amendment. I hope the Senator can understand that.
Only Senator MacSharry has a right to respond.
It is unfortunate this amendment cannot be taken on board. Failure to do so affects the credibility of the Bill and what it seeks to achieve. What it seeks to achieve is positive, and failure to accept this amendment weakens that and the credibility of the Bill, and it is wrong. The argument has been put forward that this is a temporary arrangement. The Minister said that the new agency will come into place in 2015 or 2016. Senator Norris highlighted the fact that God knows who will be Minister for Health or what Government will be in place then. I do not consider that to be a temporary period. That is the length of a political career for some people-----
It tends to be temporary.
-----as opposed to a temporary arrangement.
I would hate to think that a person who set out to employ someone in a public sector agency tomorrow would decide to pick whosoever he or she wished for the first three years and to have a look at the market thereafter. This does not represent good governance and seriously dents the legislation's credibility. These particular issues with the staffing, the directors and so on, are the thread between many of the amendments. They seriously affect the credibility of what without them would have been good but which with such issues is extremely weak. Therefore, I again must press the amendment.
Amendment put and declared lost.
Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 9, line 15, to delete “Subject to subsection (4),”.
The amendment proposes that subsection (4) should not apply to the appointment of the first director general. Obviously, my party disagrees with this and believes that under no circumstances should it apply to the first director general. Indeed, to my knowledge, the first director general will be a person who was hand-picked for the particular role anyway, without going through a recruitment process. I again make crystal clear this is not to impugn the qualifications or abilities of the person in question. However, regardless of how good the Minister knows that person to be or how good on paper the credentials may appear, a recruitment process is laid down in the Statute Book that must be followed but it is not. Consequently, he already has been in place as the Minister's interim figure and from henceforth, one will have this temporary little arrangement, which will last for up to three years or for God knows how long thereafter, depending presumably on who is in government. This again weakens what the legislation is trying to achieve. The Minister could usefully have considered this issue in more detail. Is the issue that there were cost implications arising from a recruitment process? Is this the reason there has been a reluctance to take the transparent route and put it out to tender? Alternatively, is there a fear that someone better might be found than currently is in place? Certainly, there appear to be 400,000 people looking for jobs in the present market and I am sure we did not simply happen to have the five or six directors already on the books. This provision weakens the Bill and I intend to press this amendment
I second this amendment in the strongest possible terms. The Government proposes to hand-pick an individual and I must note this debate is not about the individual person but about the principle itself. He could be the saviour of the health service for all one knows. However, the point is one will not know that unless there is an open recruitment process. In its programme for Government, the Administration proposed that all such appointments would be made through an open public process but that is not proposed in this case. Tosach maith leath na hoibre and while a good start is half the job, the Minister has not made a good start in this regard. He has gone completely against the programme for Government. The people are crying out for more open and transparent Government but are not getting it from Fine Gael and the Labour Party. It is all talk and no action. While claims are made that this or that is being reformed, there is no action. It is going back to the old ways against which the public voted in the February 2011 election. The Minister will respond by stating we are lucky to have this individual. Perhaps we will be and I hope so, but that is the Minister's opinion. In the case of all the people appointed over the years, I am sure the Ministers concerned thought the country was lucky to have them. However, that is not the point, which is that these appointments are supposed to be taken out of the political process. Such appointments are supposed to be made in a transparent manner but that has not been done in this case. A time will come, within the next few months, when Members will scrutinise the programme for Government to ascertain what is or is not being done. On the question of openness and transparency, the Government will receive a big fail mark and this is just one example of it.
Section 16E provides for the appointment of a director general under subsection (4). While the first director general will be appointed by the Minister, subsequent directors general will be appointed by the Minister following a recruitment process under the Public Service Management (Recruitment and Appointments) Act 2004. I note that subsection (4) is not unique. There are precedents in legislation to provide that the first person who is appointed to an office may be appointed by a Minister, as envisaged under subsection (4). These include legislative provisions for the charities regulatory authority, the Residential Institutions Statutory Fund Board, the qualifications and quality assurance authority of Ireland and the National Tourism Development Authority. In my view, the use of this provision is the most practical way to advance the new directorate arrangements.
In response to Senator Byrne, who claims there has been no action, there has been a lot of action. There has been an 85% reduction in the number of people who wait a year for an inpatient procedure. There has been a 91% reduction in the number of people who wait nine months or longer. There has been an 18% reduction in those who wait three months or longer for an inpatient procedure. The number of people who are obliged to endure long trolley waits is more than 16,000 smaller than was the case last year. A stroke programme has been put in place which is saving one life a week, as well as pre-empting the need for three others to end up in long-term care per week. A transitional care programme is being rolled out, which affords people who are older and frail a much better service in so far as they will be admitted to a specialist ward where their medical problems will be dealt with and they can commence their rehabilitation immediately. If this will take longer than three or four days, they can move to a transitional facility in which it can continue for up to ten weeks. Moreover, if it becomes apparent early on that they will need long-term care, such care will be available in a transitional setting until they find a place of their choice. Consequently, I must completely reject the contention that nothing has been done. More has been done within the past 18 months than was done in the previous ten years.
On openness and transparency.
I will not accept this amendment because I wish to expedite the health reform process and to do that I must act fast. Mr. Tony O'Brien has my full confidence, both in his current role as deputy chief executive officer of the Health Service Executive and as director general-designate of the new structure.
I do not doubt the Minister's confidence in him and I do not doubt but that he would sail through a recruitment process. However, members should have no fear of a recruitment process because they certainly will not do any worse then have him. I am sure he is doing a good job in the eyes of the Minister. My colleague, Senator Byrne, was speaking specifically on transparency and openness in that area and his point did not pertain to the Minister's mantra on all that has been achieved. There is no need for me to go into the cost overruns and all the other things that have been well covered in the media in recent times. However, specifically on this issue, I will repeat a point rightly made to the Minister by some of the Independent Senators previously. While Fianna Fáil will support this Bill, it seeks to have it improved in the public interest. I do not believe the public interest is served by stating the Minister's man is a good man in whom the Minister has every confidence and that the Minister has appointed him deputy chief executive officer in the interim before making him the new director general. I am obliged to note that were a Fianna Fáil Minister sitting in the ministerial chair and were Deputy Reilly sitting over here, he would be apoplectic with demands and questions as to how Fianna Fáil could preside over the appointment of someone, regardless of their qualifications.
How can Senator MacSharry know that?
They did.
I hope the Minister can provide many examples and precedents for what he is doing now.
It could be the highest medically qualified or management consultant in the world.
Senator MacSharry, without interruption.
As regards precedents for a scenario, if such a precedent exists, it is wrong and is a matter that should be visited at the first legislative opportunity afforded to each line Minister. This is because there is in place a recruitment process and there is a scenario that must be followed. This provision shows blatant disregard for that and it is being used as an excuse to state this is how it must be done because one wants things done quickly and it is the right thing to do. Mr. Joe O'Toole, a former Senator of many years standing, always used to make the point that rushed legislation is bad legislation. Interim scenarios and proposals like this are wrong. Moreover, as I believe the Minister also knows this, there must be some other reason to prevent the adoption of due process in this regard.
There must be another reason for not allowing these people through the recruitment process quickly. It could be done to give the public confidence and cover all of the bases in terms of what the Minister is trying to achieve and what we on this side of the House are anxious to support. We will press the amendment.
Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 26; Níl, 15.
Tá
- Bacik, Ivana.
- Bradford, Paul.
- Brennan, Terry.
- Burke, Colm.
- Clune, Deirdre.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- D'Arcy, Jim.
- Gilroy, John.
- Hayden, Aideen.
- Heffernan, James.
- Henry, Imelda.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Keeffe, Susan.
- O'Neill, Pat.
- Whelan, John.
Níl
- Barrett, Sean D.
- Byrne, Thomas.
- Crown, John.
- Cullinane, David.
- Leyden, Terry.
- MacSharry, Marc.
- Mooney, Paschal.
- Norris, David.
- Ó Murchú, Labhrás.
- O'Brien, Darragh.
- Power, Averil.
- van Turnhout, Jillian.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Paschal Mooney and Diarmuid Wilson.
Question declared carried.
Amendment declared lost.
I welcome back the Minister. Amendment No. 5 has already been discussed with amendment No. 4.
I move amendment No. 5:
In page 9, to delete lines 25 and 26.
I second the amendment.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 6:
In page 10, line 17, after "opinion," to insert the following:
"such opinion being corroborated by independent written medical advice,".
I second the amendment.
The proposal is that the words "such opinion being corroborated by independent written medical advice," be inserted. I am a little concerned as the proposal does not make any provision, for example, if a person refuses to turn up to get independent medical advice. The legislation would not provide for any requirement for the person to turn up and the Minister could therefore be caught in a dilemma where a person could not be removed because of the proposed clause. On those grounds we could not support the amendment, as it would leave the Minister in a legal limbo, causing difficulty for a Minister in removing a person even if there are valid grounds. I do not support the amendment.
The amendment seems to do something that is implicit within the section under discussion. That is supported by any number of existing employment law provisions. To accept the amendment would be unnecessary, as its intent is implicit in the section.
Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 13, line 15, after "reasons" to insert ", including risk assessment thereof,".
This amendment relates to the discussion we had the last day on the rather strange application of the sub judice rule, which we all accept. The section indicates the director general is not required to give an answer to any Oireachtas committee on any matter relating to the administration of the executive that is or is likely to be the subject of proceedings before a court or tribunal of the State. We believe the term "likely to be" is weak and this amendment asks that there should be some risk assessment of the likelihood. We cannot have somebody refusing to answer questions with an excuse that it could be the subject of some proceedings. We should know where the advice comes from and the risk assessment process used. It is a technique widely used in Government bodies.
Amendment No. 8 deals with what happens elsewhere in the Oireachtas where a Member feels there was a misleading response or a refusal to answer. The Ceann Comhairle would intervene and I gather the current holder of the post sometimes does this to the assistance of Deputies, contacting Departments and indicating that a question should be answered in a more complete way.
These amendments were put down before the recent incident where a person walked out of a committee. They would protect Parliament against a defence from a person pleading an inability to answer a question because it might be the subject of proceedings elsewhere. In such a case the person should indicate the advice and risk assessment. It should be possible for a member of a committee to ask the Ceann Comhairle, rather than a court, to help in such matters. The Ceann Comhairle seems to have effectively taken on this role with regard to answers given during Question Time in the Dáil. Public servants should answer questions that are asked by an Oireachtas committee or by Members.
We seek to protect Parliament against almost a shrug of the shoulder and individuals saying there might be a case and, therefore, they will not answer questions. That is significant in a Parliament and we seek to include those two protections so that Parliament finds out what is going on, including, as we on this side of the House have said, support for what the Minister is trying to reform. Involving Parliament and parliamentarians is better than individuals saying they will not answer questions because they might be the subject of proceedings. These are two ways to allow that to happen. If the risk assessment shows there is a very strong chance something will appear in court or, if the Ceann Comhairle has formed the same view, the individual refusing to answer the questions has that degree of protection.
I second Senator Barrett's amendment. In an organisation whose central flaw is generally recognised as having deliberately or inadvertently created a barrier between those who run the health service and those who are elected to oversee the public purse and public services, it does not seem to make sense to allow any additional barriers during what one hopes will be the short term of the remainder of this organisation and to give it additional protections against answerability. In the absence of the amendment, it seems to me that this is the case.
I support these amendments and think there is no reason not to accept them. It is vital the public has confidence that when those holding key positions appear before Oireachtas committees, there is not a refuge which can be mischievously used. It is not that that would be the case but Senators mentioned the recent appearance at the Committee of Public Accounts, which was clearly unacceptable. While this clause is different and there may be very clear reasons something cannot be discussed, it is important they are clearly stated. The risk assessment suggested by Senators Crown and Barrett is important and, for that reason, we support the amendments.
I certainly understand the logic of this amendment, for which I have some sympathy. However, I am a bit concerned about the generality of the provision and about adding something so general into this legislation which might well apply to as many pieces of legislation we can think of. Perhaps there are other ways to achieve the objective of this amendment. The Minister might do this by ministerial order, directive or otherwise as opposed to inserting it in the Bill. I fear that if we insert it into this legislation, there is no reason a debate would not open up on why we could not insert it into other legislation.
In regard to amendment No. 7, Senators will know that the provisions in the Bill are based on many precedents in other legislation. While I am aware that Senators are not happy with these precedents, I am conscious of the need for this type of provision. The provisions are not intended as a means to allow a person appearing before an Oireachtas committee to evade questions but, on the contrary, are intended to avoid any difficulties with a potential court case. I have looked at the provisions as a whole and I point out that under subsection (3), the director general must give reasons in writing where he or she believes a matter is likely to be the subject of proceedings before a court or a tribunal. This seems to give an Oireachtas committee a clear picture as to why the director general has taken a view that a matter is likely to be the subject of proceedings. If the issues arise when the director general is actually before the committee, I would expect the director general to give the reasons to the committee at that point. This is a legal standard across virtually all Departments.
I am worried about the precedents. The Minister mentioned some of the earlier ones in tourism and quality assurance. That worries me because I think the precedents in both of those were bad, but that is probably not a topic for conversation now. Subsection (8) provides that one can go to the High Court or that the Chairman of the Oireachtas committee, acting on behalf of the committee, can withdraw the request. We discussed this on Committee Stage but I do not know what "likely to lead to" means. It is a get-out clause for the Sir Humphreys of this world to say they are not answering something. There is no assessment of whether the Ceann Comhairle agrees or whether there is a risk assessment stating there is a 10% or a 90% chance there is likely to be a case.
Over the lifetime of this Government, we are steadily finding that reforms of public service are not taking place. These get-out clauses, even if they have precedents, are undesirable for a country which is facing our problems and which is effectively in receivership from the troika. Some of those cosy customs must be questioned and I will question the get out-clause where individuals can say they will not answer a question in case it is likely to lead to litigation. It is time for individuals using that defence to stump up some proof and tell us what it is or convince the Ceann Comhairle, which one has to do in the case of answers in the Dáil. Is not answering questions acceptable behaviour given the dire straits the country is in?
Amendment put and declared lost.
I move amendment No. 8:
In page 13, line 21, after "matter" to insert "and referred the matter to the Ceann Comhairle".
I second the amendment.
Amendment put and declared lost.
Government amendment No. 9:
In page 17, line 18, to delete "practice" and substitute "conduct".
This is a drafting amendment to replace the term "codes of practice" with "codes of conduct". Codes of conduct is the expression used in the original section in the Health Act 2004 and I ask Senators to accept this amendment.
It is just gas. We are reforming the health service and we have a Bill which is a carbon copy of what was there before. One word is different in the Minister's Bill and he has decided to go back to the way it was before. Just in case we might change anything, we had better keep the exact wording. This emphasises the point that this is a sham. There is no reality to what is going on here. It is promises to the public but the reality of change does not exist and it is so obvious with an amendment like this and the reasons for it.
I do not know what to make of that last contribution. The term "codes of conduct" is the accepted term. If we want to change the meaning of "codes of conduct", we can do that at Senator Byrne's request. The attack on the Minister is just unfair and is meaningless.
I agree with my colleague, Senator Gilroy. Courts have given interpretations to the words "conduct" and "practice". They have two different interpretations. The Minister's amendment is being put forward because we have interpretations. The reason this amendment is being tabled is to ensure there is no misinterpretation in court proceedings at a future date or in any kind of hearing in regard to this aspect of the legislation. The amendment should be supported.
Is Senator Byrne opposing the amendment?
I am opposing it to make the point that changes-----
Codes of practice are more appropriate to health professionals and this is covered in other legislation. Codes of conduct better capture the object of the Health Act 2007, as amended, which is a code for employees that sets out the procedures to be used in specific ethical situations.
Amendment agreed to.
Government amendment No. 10:
In page 19, to delete lines 5 to 12 and substitute the following:
"(d) contain estimates of the number of employees of service providers under section 38 engaged in the provision of such services and which relate to the period of the service plan and the services to which it relates,".
This is a technical amendment to clarify that all relevant employees of the service providers for the HSE are included in the HSE service plan. I ask, therefore, that Senators accept it.
Is there scope for rationalisation of all these organisations? They all do tremendous work but there are many of them and it is an inefficient way to run the health service. I acknowledge this is the way it has built up over many years and we will take the flak for that. Many of them are charities. They do outstanding work and run their own separate fund raisers. There seems to be a great deal of doubling up and I wonder whether this could be addressed in the kindest way in reforming the health service, while acknowledging the origins of these organisations, their purpose and where they are coming from. The reality is most of them are part and parcel of the national health service.
I accept what the Senator said. We are all trying to rationalise services but that is a slightly separate issue from the amendment. Service providers are agencies that provide services on behalf of the HSE under section 8 of the Health Act 2004. Under the Bill, the HSE must include estimates of employees of service providers in the service plan and this technical amendment is to ensure the inclusion of all relevant employees involved in the provision of services and not just front-line staff. All relevant employees, for example, include payroll, ICT and secretarial support but I take on board what the Senator said. I am particularly concerned that we do not sign service level agreements with organisations that do not provide us the full details of the range of people they pay and their salaries, functions and grades. Failure to co-operate will lead to problems for those organisations and I am, therefore, giving them fair warning.
Amendment agreed to.
Amendments Nos. 11 and 12 are related and may be discussed together by agreement.
I move amendment No. 11:
In page 19, line 14, after “Minister,” to insert the following:
"including performance targets set by the Minister,".
It is vitally important that targets are set by the Minister and included in the service plan. That is reasonable and it would give people something to aim for. Sometimes targets are not reached but it is important to have a route to try to meaningfully achieve them.
The section states they should "accord with the wishes of the Minister". The outcome of public servants delivering legislation on the basis of Government policy should not be to loosely resemble the will of the Government. The legislation should comply with the Minister's priorities and Government policy. This wording is too loose and we are back to the Sir Humphrey safety valve. We have excellent people who are well able to perform to targets and comply with the wishes and instructions of the Government of the day and the policy as laid down.
I second the amendment.
I have a great deal of sympathy for the amendments. Are they, however, too specific having regard to the transitional nature of the legislation? I would welcome the Minister's view on that.
I can help the Senators. I indicated on Committee Stage that I would give further consideration to these amendments, which relate to how the HSE service plan deals with priorities and performance targets set by the Minister. Amendment No. 11 provides that performance targets should be included with any other information the Minister specifies should be contained in the service plan and amendment No. 12 is concerned with the service plan complying with any priorities set by him or her, which is fair enough. However, in considering them, we must examine how the Bill addresses the issues raised. In preparing the plan, the HSE must have regard to the performance targets and priorities specified by the Minister under section 31(5) while section 31(4) sets out the information that must be contained in the service plan, including under paragraph (e) any information specified by the Minister. In addition, section 31(9) allows the Minister to direct the HSE to amend the service plan if the plan has been prepared without sufficient regard to priorities and performance targets.
Section 37 of the Health Act 2004 also provides that the annual report of the HSE must include a report on the implementation of the service plan. The executive is expected to take proper account of priorities set by the Minister in delivering its services. The concerns of the Senators are, therefore, dealt with in other ways under the legislation. I do not propose to accept the amendments.
Amendment put and declared lost.
Amendment No. 12 not moved.
Government amendment No. 13:
In page 21, line 46, after "accordance" to insert "with".
This is a minor technical amendment that I ask Senators to accept.
Amendment agreed to.
I move amendment No. 14:
In page 22, line 35, to delete “Directorate” and substitute the following:
"Irish Auditing and Accounting Supervisory Authority".
This relates to the important function of the Accounting Officer and the audit committee and it is recognised as having been a problem on many occasions in the past. It is why Ms Niamh Brennan, professor of accounting in UCD, was asked to examine this a number of years ago. My colleague and friend, Senator Colm Burke, has raised his concern several times about people without qualifications being in charge of audit and accounting functions. The amendment we tabled on Committee Stage provided that members of professional accounting bodies should be members of the audit committee but it was rejected by the Minster because he felt other qualifications were needed. Protection against this problem is still needed and that is why I have asked that the Irish Auditing and Accounting Supervisory Authority, IAASA, should at least vet people's qualifications in order that we do not rely on the opinion of the directorate which we have heard repeatedly is a collection of insiders anyway. Any attempt we have made to prise that open has been resisted. The IAASA is the regulatory body for auditing and accounting and the Minister should seek its opinion to establish whether people are qualified to carry out auditing and accounting of books with tens of billions of euro on them in recognition of the fact that this has been a problem in the past.
I second the amendment.
I appreciate the sentiment behind the amendment. The Senator wishes to be assured that members of the audit committee are suitably qualified to carry out their duties to a high standard. While it makes sense that the HSE audit committee includes people who have an auditing or accountancy background, there is merit in bringing other valuable experience and qualifications to the table such as those of business and other relevant groups. I am keen for that reason not to overly restrict the membership. The net effect of the amendment would be that another body would decide which people had the skills to act as members of the HSE audit committee. This is not an appropriate approach and it should be a matter for the directorate to exercise sound judgment in appointing a balance of suitably qualified members to the committee.
We have two reports, the Ogden report and one by PA Consulting, which I hope to publish shortly and bring to Cabinet. Ogden has highlighted the issues and difficulties within the HSE relating to financial matters and PA Consulting confirmed them and made recommendations, which we are putting in place. This relates to having a sufficient number of people with the necessary financial qualifications to be in charge of the budgets that pertain in the HSE. I hope the Senator will understand that I cannot accept the amendment.
We regularly get the wrong headlines, to the effect that the HSE is €450 million or €750 million over budget, yet the Minister turns down an amendment that would try to address the problem. There are serious budgetary problems. I have sided with the Minister when he has been unfairly criticised but every time we have made a suggestion to help him with these reforms, we have received a closed response. He could provide for no fewer than four people who, in the opinion in the directorate, have the relevant skills. These people are heavily enmeshed and embedded in red ink and we are being asked to endorse them but I will not do so. The Minister has serious financial problems and I have offered him a helpful solution. I offered him a helpful solution the last day but the red ink in the health service shows no sign of going away.
I do not object to some members being advised by, or coming from, this group. Perhaps rather than accepting the amendment, I can consider it when the Bill is going through the Dáil and come up with a modified wording that will allow the august committee to which the Senator alluded, the Irish Auditing and Accounting Supervisory Authority, IAASA, to have a number of members on the auditing committee. However, I will be careful about this because I do not want to insult those who do a good auditing job. Budgets over run at a much lower level than at auditing committee level and, therefore, I hope the Senator will find that acceptable.
I thank the Minister for that suggestion. I look forward to seeing how this develops in the other House. I will place the amendment in the capable hands of the Minister.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 26, between lines 37 and 38, to insert the following:
“23.—Any officer/employee of the Executive shall be tax resident in Ireland for the duration of his or her employment by the Executive.”.
My colleague, Senator Thomas Byrne, who had to leave, spoke on this amendment the last day. It is important that any advisers or consultants the Minister is seeking shall be tax resident on the island of Ireland. The amendment refers to Ireland but I do not want to exclude the many workers in the HSE who may live in Northern Ireland. The Minister could apply the same goodwill he applied to the amendment proposed by Senator Barrett and I can withdraw it.
I second the amendment and seek clarification. When the amendment refers to Ireland, we want to be sure it means the island of Ireland. People living in Down and Armagh work for the HSE across the Border. The wording of the amendment concerns us but I would be happy if we get clarification from the proposer. I am also conscious that when we talk about Ireland in legislative terms, we must include the Republic of Ireland and the North of Ireland separately. I do not have a difficulty with the logic of the amendment.
I seek further clarification on the amendment. I am not sure of the meaning of tax resident in Ireland. It seems that tax is collected by the Revenue Commissioners of the Republic of Ireland. Does the motion also purport to allow Her Majesty's Government to collect the tax if the person resides in Northern Ireland? There is ambiguity in the amendment.
My concern is where the HSE employs a company, which may be tax resident in Ireland. Does the amendment confuse the matter where the worker, while employed by the company, may not be resident for tax purposes in Ireland? It could cause complications.
I remind Senators that the amendment concerns HSE employees, not other persons. Insisting that HSE employees are tax resident in the State would more than likely fall foul of EU and discriminatory legislation rules.
I will set out the likely tax treatment in regard to income arising from individuals engaged by the HSE who are not resident in the State. Notwithstanding any of the provisions of the Tax Acts, the income would be chargeable to tax by virtue of section 19 of the Taxes Consolidation Act 1997, as an annuity, pension or stipend payable out of the public revenue of the State. This charge is unfettered by considerations of residency of the individual or where the duties are performed. Where the individual is tax resident in a country with which the State has a tax treaty, income will generally remain taxable in the state where duties are performed. I can only assume that, in the vast majority of cases, HSE employees perform their duties in this State. Where the individual is tax resident in a country with which Ireland does not have a tax treaty, the income is taxable in this State. Some individuals employed by the HSE may have non-HSE income and the taxation of such income is provided for in the Taxes Consolidation Act. I will not accept the amendment.
Amendment put and declared lost.
Bill, as amended, received for final consideration and passed.
Sitting suspended at 1.50 p.m. and resumed at 4.30 p.m.