This meeting has been convened to consider the Regulated Professions (Health and Social Care) (Amendment) Bill 2019. The purpose of the Bill is to amend the five health regulatory Acts, namely, the Dentists Act 1985, the Health and Social Care Professionals Act 2005, the Pharmacy Act 2007, the Medical Practitioners Act 2007 and the Nurses and Midwives Act 2011 and to give further effect to the EU directive on the recognition of professional qualifications. I welcome the Minister of State at the Department of Health, with special responsibility for mental health and older people, Deputy Jim Daly, and his officials to this morning's meeting.
Regulated Professions (Health and Social Care) (Amendment) Bill 2019: Committee Stage
It is agreed, but I wish to ask a procedural question. I wish to discuss one issue that is not contained in an individual section. Could I ask your advice, Chairman, on when is the time to discuss that with the Minister of State?
If Deputy Donnelly broadly outlines where he wants to come in, we will allow him to contribute when it is appropriate.
Thank you, Chairman. I acknowledge the Minister of State, Deputy Daly's decision not to run again. The next Dáil will be one good person down, if he were to be re-elected. I know it can be very difficult but I acknowledge that the Minister of State is a fine parliamentarian and has done an exemplary job. He has done himself, his family, his party and his constituents very proud in his work. He will be missed. I also note that he looks about ten years younger than the last time I saw him. The weight of the world is coming off him. I wish to acknowledge his fine work over many years here in Parliament.
We can get into it whenever the Minister of State wants, but perhaps he and his officials would like a bit of time to prepare for it. My question is on the Brexit-proofing of the legislation and what may happen. The Bill deals with the recognition of qualifications within an EU framework and Brexit will potentially cause all sorts of problems. The Minister of State could indicate when is the right moment to discuss it.
I will find an opportune time to do that.
I would like to get the Minister of State's thoughts on whether the Bill is Brexit-proofed. We have a lot of excellent healthcare professionals here who have been trained in the UK. They may be Irish citizens who have trained and have come back or they may be UK citizens but they hold UK qualifications recognised here, or in some cases perhaps not recognised here. Post Brexit, what is the thinking on their status here? It is probably not within the remit of this Bill, but if it is relevant, if there is any reciprocity with the UK in any of this, does it have any impact on healthcare professionals registered or qualified here who are working in the UK?
I will come back to the issue.
We will be discussing Brexit in particular again at 11 a.m. when we will have officials available.
I will say a few words on it before I complete the discussion of the Bill today.
Amendments Nos. 1, 22, 24 to 26, inclusive, and 28 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 1:
In page 10, between lines 11 and 12, to insert the following:
"(2) Section 65 of the Health and Social Care Professionals Act 2005 is repealed.".
Thank you Chairman for your welcome. I also thank Deputy Donnelly for his nice welcoming comments, which are very much appreciated. I will come back to his question on Brexit at the first opportunity. The amendments will bring CORU's, the multi-profession health regulator, fitness to practise process into line with those operated by the other health regulators. The Medical Council, the Nursing and Midwifery Board of Ireland, NMBI, the Pharmaceutical Society of Ireland, PSI, and the Dental Council operate a two-stage fitness to practise sanction process wherein the fitness to practise committee may recommend a sanction to the council with the council making the ultimate decision as to the sanction. CORU is an exception, as its legislation currently requires that the council also seeks recommendation from a profession's registration board before determining what sanction should be applied. The council is not required to accept this recommendation. This additional step generates a significant cost and administrative burden on the regulator and has been subject to criticism by the President of the High Court. The additional step also creates an additional financial and emotional burden on the registrant during what is typically an extremely challenging period in his or her life. The amendments will remove the requirement for the council to refer all sanction recommendations by the fitness to practise committee to the registration boards. It should be noted that a representative of each of the designated professions sits on CORU's council.
I also wish to signal that a further amendment will be required on Report Stage to delete the recommendation making it a function of the registration boards contained in section 27 of the Act.
Amendments Nos. 2 and 3 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 14, line 9, to delete “or”.
Section 8 inserts a number of new sections into the Dentists Act 1985, which relate to recognition of qualifications for entry to the register and registration. The Bill's draft section 26B sets out the means by which the Dental Council can recognise the qualifications for registration. Section 26B.(1)(d), to which these amendments relate, concerns the recognition of qualifications which are neither an Irish qualification nor one automatically recognised under the professional qualifications directive. In the event of a no-deal Brexit - a matter Deputy Donnelly was concerned about - this will apply to UK qualifications. Section 27 of the Dentists Act is being repealed and the Bill's proposed text in section 26B.(1)(d) replicates the text from section 27(2)(d) of that Act. However, on review, it was considered that the text could be made clearer. The amendment to the Bill makes it clear that the Dental Council may approve courses of training and exams already undertaken to allow for registration, as well as specifying exams set by the Dental Council which applicants must take and pass to show equivalence in order to achieve registration. This makes clear the legal base for any mutual recognition agreement which the Dental Council might make with a third country. That is relevant to Deputy Donnelly's query. The new text replicates text being inserted into the Medical Practitioners Act 2007, by virtue of section 83 of the Bill.
I wish to ask about amendment No. 3 where it states: "has a qualification in dentistry from a state other than the State and has passed an examination specified in rules made for the purposes of this paragraph". In medicine, concerns have been consistently raised with me suggesting that the examination bar the State has set for doctors is not adequate and that in some cases we are taking in doctors who, maybe through no fault of their own, simply are not trained to the level that our doctors are required to be trained to. I have no idea if that is the case in dentistry. This amendment goes to the heart of the check, so if we are taking in dentists from other states, my understanding is that if they are from within the EU their qualifications are simply recognised.
Are checks done on dentists from other EU member states or do we simply accept that they are fully qualified? In the case of non-EU dentists, or EU dentists in the event that we do not automatically recognise their qualifications, what safeguards are in place to ensure the bar is adequately set and dentists from other states are subject to the same level of rigour and training that we demand of Irish-trained dentists?
Deputy Donnelly asked whether the recognition of qualifications differs in respect of dentists from EU member states and those from outside the EU. There is, as standard, recognition of qualifications among EU member states. This means all qualifications obtained in the EU are automatically recognised in all EU countries.
Are dentists from other EU countries asked to pass any additional examinations or must they do oral examinations? Is there any additional testing or is it simply assumed that they are the equivalent of a dentist graduating from a dentistry school in Ireland?
While there may be a test of language skills, it is accepted across the EU that a standard is met in all EU countries and they all adhere to the same standards. There is an acceptance and recognition of qualifications among EU countries, other than language requirements which will apply in some countries. In the case of dentists from outside the EU, the Medical Council will have to satisfy itself that any applicant from outside the EU is appropriately qualified. That may be done by a process of examination or research into the person's background. There is no automatic acceptance of qualifications obtained outside the EU. The Medical Council has responsibility in this regard.
We accept medical graduates from what appears to be a random group of countries, including those from one African country, one Asian country and the other EU member states. It is the EU countries plus a handful of other countries. Do the same rules apply in dentistry or is it the case that dentists from outside the EU must pass the Medical Council tests?
My understanding is that there are a number of agreements in place for dentistry. For example, there is an agreement with Canada which has a particularly large supply of dentists. Dentists from other countries would undergo a check or take an examination to ensure that standards are the same as ours.
I thank the Minister.
I have dealt with a number of cases of professionals in health and associated areas. Different standards seem to apply at times. Let me give an example. A number of doctors have been appointed to positions for which they were not qualified and we only found out about it afterwards. Whatever system is in place, it is not working. The system in place in veterinary medicine works extremely well because everything is blocked and nothing gets through, not even the smallest technical detail. Qualifications make no difference because everyone has to sit the exams again when they come here. I know that is a restrictive practice and I know the reason for it. We need to be a little more alert in the area of human health too. We must apply the highest European standards. I do not agree with the notion that we should test everybody again and have a separate test, as we have in the medicines area, but we need a very rigorous application of the rules. Without that, we will undermine the quality and standard of the health services, whichever branch it is.
I move amendment No. 3:
In page 14, to delete lines 10 to 12 and substitute the following:
“(d) has a qualification in dentistry from a state other than the State and has passed an examination specified in rules made for the purposes of this paragraph, or
(e) has a qualification in dentistry from a state other than the State and is exempted from paragraph (d) by virtue of falling within a ground, specified in rules made for the purposes of this paragraph, for such exemption.”.
There are four amendments in the name of the Minister. Amendments Nos. 4 to 11, inclusive, 14, 15, 17, 18, 33, 34, 37, 38, 44, 46, 50, 51 and 53 are related and may be discussed together.
I move amendment No. 4:
In page 21, line 5, after “person” to insert “as”.
With the exception of amendment No. 18 in this group, which corrects a typographical error in section 25 of the Health and Social Care Professionals Act 2005, the rest of these amendments correct typographical or minor drafting errors in the Bill. These amendments should address all of the errors, but in the event that more are discovered or consequential amendments are required as a result of Committee Stage amendments, it may be necessary to introduce further correcting amendments on Report Stage.
This section provides that a failure to make a declaration will be treated in the same manner as practitioners prohibited or restricted from providing care. Did the Minister consider any less onerous penalties for failure to make a declaration? This seems unduly heavy on the registrant.
Is the Deputy referring to the onus on the registrant to make a declaration?
To which specific section is she referring?
I do not have a reference in my notes but it falls under section 12. In our dialogue with representative bodies they brought to our attention that it appeared onerous and harsh to treat those who fail to make a declaration in the same way as those who have been prohibited-----
That is a substantial query on the nature of the Bill. These amendments are correcting typographical errors.
I appreciate that. I am speaking on the section as opposed to the amendments.
If the Deputy is agreeable, I will address that point later. If we move through the procedural side, we can then discuss any substantive issues the Deputy wishes to raise.
I have a similar question on section 15. The group of amendments includes the only amendment to section 15. Can I ask the question now or should I wait until we reach section 15?
I ask the Deputy to wait.
Amendments Nos. 5 to 7, inclusive, were discussed with amendment No. 4.
I move amendment No. 5:
In page 22, line 6, to delete “or her address” and substitute “address as”.
I move amendment No. 6:
In page 22, lines 8 and 9, to delete “or her”.
I move amendment No.7:
In page 22, line 17, to delete “or her”.
Amendment No. 8 has already been discussed with amendment No. 4.
I move amendment No. 8:
In page 22, lines 28 and 29, to delete “or her ”.
I move amendment No. 9:
In page 23, line 40, after “decision” to insert “to the Court of Appeal”.
The new right for healthcare professionals to appeal minor sanctions is very welcome.
It was certainly a peculiar situation when a person could have a finding made against him or her with no recourse to appeal so that is welcome. I am concerned that section 15 sets the High Court as the place for the person to go, including, I believe, for quite minor sanctions. The High Court is very intimidating for many people, including myself. It can be vastly expensive. The idea that a healthcare professional who may have a legitimate grievance about a sanction against himself or herself would have to go to the High Court seems over the top. Certainly healthcare professionals have raised the issue. I know some of their representative bodies have raised the fact that various healthcare professionals would have to engage solicitors and barristers. In respect of the workings of the courts, the High Court obviously deals with numerous issues and can have quite serious backlogs. I wonder whether the High Court is the right place to go, first, as a reasonable path for somebody appealing what could be a very minor sanction and, second, for the courts in terms of the severity of some of the matters with which they deal. Is that the right thing for the courts to do? My focus, though, is on healthcare professionals. I raised this issue on Second Stage and hoped there might be a Government amendment to that effect. Could the Minister of State explain why such a high bar is being set for an appeal against what could be quite a minor sanction when minor sanctions in other areas, for example, driving or drug offences can be dealt with in lower courts?
I do not know if I am unique in this Dáil but I think I am unique in this room in that I would have dealt with the outworkings of this legislation. Appealing to the High Court is really onerous in terms of the time it takes and the stress it causes. Let us not lose sight of the fact that it also costs the State a fortune. I have been in the High Court on an appeal when I was given leave to represent a member. He or she turns up with a full team. It is a very expensive process for the State. The High Court is there as an option but sometimes it is the only avenue for relatively minor matters. Number one, it is extremely intimidating and number two, it costs a significant amount of money. The healthcare professional is paying his or her retention fee so the organisation that receives that fee can spend a significant amount of money taking that healthcare professional and his or her colleagues to the High Court, not for serious matters - everybody appreciates that - but for relatively minor matters. It seems a bit heavy. It is very intimidating and time is also a factor because the courts probably have more onerous things with which to deal. The healthcare professional has that hanging over him or her the entire time. We are dealing with processes that with the best will in the world can take years. The process has a significant impact on people's lives. Nobody goes into these professions to have to deal with the legal profession and it is something that can hang over him or her. Even where the appeal is successful, one is still talking about a lot of time, effort, energy and money being expended in the intervening time.
I thank the Deputies, who made very reasonable points. It is not the sanction but the finding that is appealed. Reference was made a number of times to a minor sanction but it is the finding, which is on a person's professional conduct and fitness to practise, which is very serious, that is appealed. A finding can impugn a person's professional good name. That brings up the level of seriousness notwithstanding the Deputy's concerns about the person's ability to access the High Court and the cost. I am not diminishing those issues but I want to give a bit of context. This is why the High Court is included.
There are two sides to the argument about costs. This is about trying to find a balance between the patient and the registrant, protecting the integrity of the healthcare system and the delivery of services to the patient and ensuring his or her rights are there and that the strictest and toughest standards are met at all levels. If someone does go to the High Court, the costs will be awarded to the employer in some cases. If someone has been wronged by his or her employer, one would expect the costs to be awarded. I cannot prejudge what will happen or what an outcome will be. Unions take a lot of these cases. The main thrust of what I am trying to say is that it is essentially the finding that is being challenged, which is never minor. There is no such thing as a minor finding when it involves fitness to practise and impugning someone's character and professional reputation as opposed to the sanction. The focus is not on the sanction.
I am in two minds on this. I have to admit that I have been in the High Court on numerous occasions for my various sins over the years, although not in a personal way. If a professional issue has been raised against a practitioner, it is a serious matter. We need to be very careful about what we do. I am not sure whether the High Court should be the court of first instance. It may be possible to have the matter dealt with in a lower court such as the Circuit Court with the option of referring it to the High Court for both sides. It can be intimidating but based on my experience, I have found the judges at High Court level to be very cautious in the way they deliver judgments and very careful about ensuring that the rights of the individual are observed at all times - perhaps to a greater extent than one would find in some of the lower courts. I have been in all of them as well.
My understanding is that a decision of the Medical Council has the status of the High Court and the High Court is the only court to which an individual can make an appeal.
It goes back to a person's good name as a professional practitioner, which is integral to anybody. To protect that, it is deemed appropriate that an office such as the High Court would be the appropriate office when a person's good name has been challenged by his or her employer. It is essentially still focusing on the registrant and keeping him or her in mind but that right is a very significant one. I acknowledge the learnedness of the speakers opposite who have quite an experience of the courts system of which I was not aware so well done to them.
One has to try one's hand at everything.
Can we put the question?
Why is a lower court not considered suitable? Was this looked at? We have probably all dealt with cases where healthcare professionals have had their lives destroyed by the HSE. I have dealt with more than one case where it was done intentionally, vindictively and wrongly. I have seen good people who had done nothing wrong, some of whom were what we would now class as whistleblowers, destroyed by management within the HSE. I have seen how they have had to leave work and I have seen them leave the country. I have seen people sitting in the High Court wondering whether the judge was going to award them costs because if the judge did not, they would lose their house. Telling anyone that he or she has to go to the High Court to clear a minor sanction is an extraordinarily onerous thing to do. It can cost the person his or her mental or physical health, reputation or house and it can destroy him or her financially. Making it the first place somebody can go to is setting an exceptionally high bar. If it is a major decision, such as a decision that a medical practitioner is unfit to practise, the High Court might be the only place he or she can go. My understanding of the legislation is that this is for minor sanctions. If a person's entire professional reputation is up for grabs and has received a decision that he or she is not fit to practise then maybe the High Court is the place to go. As Deputy Durkan said, the judges in the High Court are very skilled and experienced.
My question is on minor sanctions because the reality is that for nurses, doctors and dentists, some of them will have the wrong decision made, even with the best will in the world, because bad information will be used in some instances. I have seen cases, as most members probably have, where the HSE has intentionally moved to destroy good people for vindictive, petty and bad reasons. If the only safeguard these people have is the High Court, they are stuffed. It is not reasonable for someone to have to go to the High Court and put everything on the line, including their family home potentially, over a minor sanction.
Were other less onerous mechanisms looked at for minor sanctions? If they were not looked at, will the Minister of State give an undertaking to the committee that before this comes back for Report Stage, maybe we can have an informal meeting with him, or with the Minister, Deputy Harris, the officials and the committee members? Could the Minister of State come back and assure us he has looked at everything else and ideally come up with a better solution? It is not reasonable because we all know what will happen. When wrong decisions are made, as they are made sometimes with the best will in the world and the best motivations, what will happen is there is no way people will go to the High Court and risk their family home with everything that is involved in taking a High Court action against the State, because, as Deputy Durkan said, the State uses it as a tool. A medical professional walks in with whatever solicitor and barrister he or she can afford but the State does not. The State walks in with an army of lawyers. It is not a fair fight. Why does this happen for minor sanctions? Has every other option been exhausted? If it has not been exhausted, can we please look at this before this legislation comes back for Report Stage?
I understand that when the Medical Council of Ireland sits, it sits with the power of the High Court and I can see why it has to be a like for like arrangement. The Minister of State has heard the concerns that have been raised if there is to be an informal meeting, which would be helpful. I would suggest that we ask someone to come in who has been through that experience, either from the representative bodies or the legal profession, who might be able to speak to how it happens. It is a long and drawn-out process and I am not a legal expert but I have been through this process on more occasions than I would have liked. I am talking about practical, hands-on experience but I am not somebody who will take us through the legalities of it. The Minister of State can hear the concerns we have. It is daunting and the State brings a big team. I remember standing in the foyer of the court and my poor members were looking at me because the other side all came in a big bus and it seemed like there were millions of them. It is extremely expensive and it is really intimidating for the person taking the action, bearing in mind this person has already been through the wringer and been through the harsh process and then at the end they are facing into this. If we are to organise a meeting, which I would support because it would be useful, we should bring in someone who has a bit of practical experience who might be able to speak to us about that.
I assure members there is no problem if they want any clarity between now and Report Stage. Of course the officials would be happy to sit down and discuss this. There are a lot of precedents that inform these kind of decisions, namely the existing judicial system in Ireland. If one is caught for a misdemeanour or an offence under the Road Traffic Act, 1961, he or she goes to the District Court. If it is something more serious on a higher level, one goes to the Circuit Court and if it is of a high standing the High Court is appropriate. This is following those legal precedents that are there.
I have to comment on Deputy Donnelly's repeated use of the term "minor sanction". It is not a sanction. The sanction cannot be appealed. The finding can be appealed. The High Court will not say that dismissing a claimant for three months was wrong and that he or she should have only got two months. It will not do that. It will just say that such a case was an impugnment of his or her professional conduct or character, and that is the most serious impugnment any of use can have on our fitness to practise on a daily basis. It is recognising the seriousness of the finding that dictates the seriousness of a case, where it should be and the most appropriate forum in which to deal with it. It is not to make it difficult for the registrant to access justice. They can always go in their individual rights to any court on the day but there is an accepted legal journey that people take, depending on the viciousness of the wrong that is done to them. Of course I accept there are costs involved but costs are awarded in accordance with the legal system and all of that. This is not designed to make it difficult for the registrant to access justice. I assure members this is just in recognition and respect of the existing judicial norms in the State. If the Deputies opposite would like a further briefing to get further clarity on this, there is no problem there and we will arrange that for them.
I am not looking for further clarity. I am looking for a better answer. I accept the Minister of State's point. It is a semantic point and I know the Minister of State is not trying to play with words. When I say "minor sanction" I am talking about a minor finding, because there can be a finding where the Medical Council of Ireland says a person has committed gross misconduct and has been negligent to the point that he or she is believed to have endangered the lives of his or her patients. That is the kind of finding one might take to the High Court. Every single finding below that may not have had due attention paid to it for a particular period. This person may have failed to follow a World Health Organization, WHO, protocol before going into an operating theatre, that had no effect on a patient although they should have followed the protocol. There are myriad such scenarios and some are fairly minor findings. The other thing this legislation does is state that every single finding against a healthcare professional will have to be made public. This is serious because for anyone running a practice, people will be able to look up findings made against them. That transparency is welcome but it puts an awful lot of weight on the findings; when a member of the public is looking at a dentist, a doctor or whatever service, they may just see that a person has had two or three findings made against him or her by the Medical Council of Ireland and decide not to go near him or her, whereas in fact those findings may be pretty minor.
This is very serious for the medical professional. It is very serious for a GP, for example. The Minister of State said in his response that the medical practitioner can go to any court. He or she cannot; he or she can go to the High Court. That is the point of this. The only place he or she can go under section 15 of the Bill is the Court of Appeal or the High Court. That is it. I am not looking for a briefing to get clarity on why that is the case. I do not accept the argument that this is the existing judicial norm. The existing norm is that we have four or five layers of courts, depending on where the Court of Appeal is put. Broadly, the severity of the situation warrants a higher court. That is not the case here, however. There is only one court and it is the second highest court in the land, which is not accessible to most people. I am not looking for more clarity. I am asking why other solutions were not looked at, such as an independent appeal board linked to the Medical Council of Ireland. How about a non-judicial appeal first? That could have been looked at and I do not see why that could not happen. I am sure there are myriad other non-judicial or quasi-judicial solutions that could have been looked at. Perhaps if the Medical Council of Ireland finds against someone and there is a professional non-judicial appeal board that also upholds the Medical Council of Ireland's finding, then the Circuit Court and the District Court simply are not equipped to deal with findings against a person's name and there is simply no choice. This is binary. The Medical Council of Ireland finds that one did not follow the correct WHO protocols, and while no patients were put at risk, protocols should have been followed. The only option is to go to the High Court in that instance. I am not asking for clarity on the decision made. I do not wish to speak for anyone else on the committee but this does not feel appropriate.
Will the Minister of State undertake to find a better solution between now and Report Stage? That is the briefing I would like rather than having this explained in more detail.
Is it the case that it is to go to the High Court because it is a question of like for like and because one cannot appeal to a lower court and so it must be one to the other? Okay, that was getting lost in the discussion. By necessity, it must be to a forum such as the High Court or something of a similar level but it does not necessarily have to be the High Court. We are talking about particular situations and some are much more serious than others. It is not fair that they would be treated the same or that they would all have to go to the High Court so there should be some sort of stopping-off point. I appreciate that it cannot be to a lower court since it must be like for like, that is fair, but there must be something else. It is really frightening for those who have to do this. We might come back and discuss that based on what we have just discussed here. I am sure the Minister of State understands our point.
We aspire to keep the highest standards and we must do that in all professions. Some differ, however. We live in a changing world. False allegations can be made and false evidence used to back them up. Modern technology makes that possible. We need to weigh that possibility against the need to achieve the highest possible standards while giving the individual at the eye of the storm his or her constitutional rights and entitlements. That is a serious issue. If someone is banished into the darkness for a sin. There can be serious professional consequences. Different professions deal differently with these things. Some allow things to wither on the vine, where an issue may be ongoing for years and the professional involved has no future. They are afraid about the extent to which they may have to involve themselves in the cost of going to higher courts and so on. This is an issue on which we must keep a close eye and if possible make a provision whereby the individuals rights are not ignored.
This could be dealt with better in a less formal forum. I will try to deal with some of the issues. To answer Deputy Donnelly's question on whether other options were considered, which I may not have answered earlier, the answer is that they were. There is no question about that. There is existing legislation in place which this amends. We must keep mind of existing legislation and that is where I raise the matter of precedents.
I do not want to trivialise this and I would not like these words to be misconstrued but there can be an impression that we are treating a parking ticket in the same way as a drink driving offence. A threshold already exists to access the Medical Council; this is about fitness to practise. I am not trying to trivialise this matter, I am trying to be helpful. However, someone arrested for a parking ticket, say, or something at that level, cannot access the Medical Council fitness-to-practise tribunal. There is a threshold that must be reached before a case can be entertained. One of the Deputies referred to vexatious cases and even social media and so on but that will not launch into a fitness-to-practise investigation. This is about recognising the seriousness of that accusation that a practitioner is not fit to practise for whatever reason. In line with that, the High Court is the appropriate forum.
The legislation introduces an appeals process for practitioners and registrants which was not there before. That is the motivation behind the legislation. The High Court will be informed of all decisions on fitness to practise once the legislation comes into effect. That notification will be automatic. It will review them and their sanctions which is a further safeguard.
I take on board the frustrations of members regarding the accessibility of the High Court and its capacity to intimidate for registrants but we must balance that with the seriousness of the issue at stake. We must respect existing legislation and due process. A more informal conversation on the matter might be helpful for members and I would be happy to arrange that. That is not a bid to not answer their questions but it might be more straightforward if we discussed this across the table, if members were happy to do so. If they wish to continue the discussion here, I will answer any further questions as best I can.
I move amendment No. 10:
In page 24, lines 4 and 5, to delete "or her".
I move amendment No. 11:
In page 24, line 12, to delete "or her".
I move amendment No. 12:
In page 25, to delete lines 15 to 30.
I will illustrate this with an example. Some years ago, I represented a nurse who had been struggling with addiction. During the period of her addiction, she was guilty of poor professional performance but thereafter she had worked very hard and, with the support of her family, she got her life completely back together. She had two years working seriously hard at recovery and returned to work in a healthcare setting, but not to nursing. She had put everything behind her but then had to go through the fitness-to-practise hearing. It is something that could have been kept out of the public domain, and giving the fitness-to-practise committee leeway to do that was really important there where the case could be made that that was not who that person is now and their life is different now. This woman had made vast changes in her life. All that publication, indeed mandatory publication as outlined here, would have achieved would be to bring her back to where she was.
The purpose of the amendment is to open a dialogue but also to remove the compulsory element in order that it should not be mandatory and that they be allowed to exercise a high level of discretion, especially in minor incidents. We should also be mindful of the time it often takes to go to committee, with so much evidence to be gathered, that people can get back on track in the intervening time. In that case, and in others, I felt that publication served no purpose. It did not serve the public interest, it only undermined that woman and to bring her back to a place she had worked very hard to get out of. Where there is a public interest, I fully respect that it be done. That used to be the case.
In cases where discretion can be applied it should be. This is the purpose of this amendment.
I thank Deputy O'Reilly and call the Minister of State to speak.
We will deal with the issue of compulsory publication or otherwise in a separate section. The Bill provides, in any event, that regulators will have the discretion to publish, or not, information they receive about health professionals sanctioned in other jurisdictions. This includes notification to the HSE and an employer, where known. This is particularly important given the free movement of workers across the EU arising from the professional qualifications directive and the increased mobility of health professionals globally. While we must support professional mobility, we must equally protect the public from practitioners whose competence, behaviour or conduct has been found to be deficient in other jurisdictions. In this instance, the Deputy's amendment would remove the regulator's ability to make such notifications about dentists who have been sanctioned in another jurisdiction. Acceptance of this amendment would treat dentists differently from practitioners governed by the other four health regulatory Acts.
For these reasons, I cannot support the amendment. It would speak specifically for dentists and would exclude the others. We will be dealing with the whole issue of publication with one of the upcoming amendments, specifically the publication element.
Has the Minister of State had dialogue with the representative body in this regard?
Yes, there have been discussions with representatives and it is due to come up and will be probably more appropriate in the future. In other words, when we progress further in this meeting we will be dealing specifically with that issue and I can address it then, if that is okay with the Deputy.
That is fair enough.
Is the amendment being pressed?
I withdraw this amendment and I may re-table it.
Amendments Nos. 13, 27, 31, 32, 42 and 52 are related and will be discussed together.
I move amendment No. 13.
In page 26, line 37, to delete “subsection.”.” and substitute the following:
(3) The Council shall not publish anything under this section which is inconsistent with a decision (if any) of the High Court arising from the performance of a function under section 39(3) or (4), 40(3) or (4), 41(5) or (9), or 42(3) or (4).”.”.
The Freedom of Information Acts, FoIAs, currently-provide information on non-minor sanctions is made known to the Minister, to the HSE and to employers, where they are known to the regulator. The Bill provides for two key changes.
It removes the requirement to notify the Minister. While it is important that the HSE and employers receive information about sanctions against their employees, it is not necessary for the Minister to receive this information, particularly as the Acts provide for no function associated with receipt of it.
On the other hand patients need to know that they are in safe hands when they entrust their health to a doctor or to another healthcare professional. The public needs to have confidence in the role of the regulator to address deficiencies in competence, behaviour or standards, through a transparent system of mandatory publication of sanctions. Accordingly, the Bill also provides that information on all sanctions will be made known to the HSE, to employers and to the public, where they are known. This is an important patient safety measure, widely supported on Second Stage, which will ensure that information relating to sanctions imposed on registered health professionals is placed in the public domain. Accordingly, the Bill provides that all disciplinary sanctions imposed by the five health regulators will be published, once confirmed by the High Court. While I understand concerns raised that the publication of all sanctions may negatively affect registrants, this must be balanced against the public's right to important information about the fitness of a health professional to provide them with safe healthcare.
However, I have considered the concerns raised by stakeholders outside of this forum, and in balancing these concerns with the public interest, I have decided to amend the Bill to provide for mandatory publication of all sanctions, unless publication is inconsistent with a decision of the High Court.
Deputies will be aware that when holding confirmation of sanction hearings, the High Court, in specific circumstances, can order reporting restrictions or can hold hearings in camera. These amendments will provide for those circumstances, where it is shown to the court's satisfaction that there are compelling reasons against publication, for example, when dealing with vulnerable registrants. I trust that this approach, which is supported by the regulators, will address the Deputy's concerns on amendments Nos. 36, 59, 117 and 160.
I have already outlined the reasons I will be opposing this as I am deeply concerned. It is not that anything should be kept from the public, where it is in the public interest, but it has to be absolutely balanced with the impact that publication has on a person's life. One must consider, with the best will in the fastest process in the world, that these things still take a long time. By the time it comes to publication, one is dealing with issues that have happened previously. We need to insert the maximum compassion and balance that with the public interest.
As the Deputy has outlined what I mentioned already, there is scope here now, as a result of the concerns she has raised, to leave it to the discretion of the High Court. It is only at that stage that a decision to publish can happen in any event. At that stage there is a facility for the High Court to say, yes, I agree or accept that there are extraneous, extraordinary or unusual circumstances that this information should not be published. These are my words and not-----
I appreciate that but in my experience, that discretion is seldom, if ever, exercised. We must be very careful and we must absolutely protect the public interest where it is in the public interest to publish. Erring on the side of:"we will publish unless there is" is a necessary discretion. If I am hearing the Minister of State correctly, the appeal would be the event that the regulatory body, or the fitness to practise committee, decided to publish, and the appeal would then be to the High Court to request that it would not be published. Am I incorrect in that understanding?
All decisions have to be notified to the High Court, in any event. It is only at that stage that publication can happen. There is an opportunity at that stage for an appeal to be made not to publish.
Again, one is back at the High Court, with one small individual versus a massive team.
What we have to decide is who will decide whether it is to be published or not. Who would the Deputy propose should make the decision whether it be published or not?
The regulatory body could decide if it was in the public interest to make a recommendation on that basis. The purpose of this exercise is to tease it out, and if I am reading incorrectly, I am perfectly willing to be corrected on that. The way that it is published is that there will always be publication unless there is a substantial reason not to, whereas it might be weighted the other way around.
I say this on the basis that it takes such a long time and is very onerous for people. If one is talking to some person who is going through this process, it feels like it is never going to be over and it never leaves them. I know that dealing with these people, where I was in the happy position of being able to go home after meeting them or after one of the sessions. It is not my life, but it is every single day for them and it never goes away, no matter what they are doing. Even in the back of their minds, when they think they know, all that they can think about is that, no matter what happens, they still have another hurdle to go through and it can still come back at them. I am not saying we should not protect the public interest and that we should not publish where there is good reason to do so. The emphasis should be and should start from the point that there will not be publication unless it is in the public interest to so do, in which case there will be publication. This is a difference of emphasis.
The difficulty we face here collectively is putting that into legislation, and how we would word this particular option of not publishing, unless it is in the public interest. When one legislates, as the Deputy is aware, there is no room for doubt. What we are talking about is extraordinary, special circumstances where there are legitimate reasons not to publish. All of us accept that they exist, which is the point that the Deputy is trying to make and has succeeded in bringing to our attention and having recognised here. There are exceptional circumstances that exist where publication is not in the best interest. We would maintain that they are rare, are not the norm and are the exception, but they exist. The question then arises where we can put it into legislation here that one does not publish unless one is absolutely sure it is right, or whatever, but that is restricting the whole objective of this, which is to give patients, as well, the right to know if somebody has a history.
We have to try to balance the right of the patient to know and the right of the registrant to have his or her particular circumstances taken into account. How do we do that? How do we strike that balance and who makes the judgment call?
Deputy O'Reilly spoke about the regulator and argued that he or she could make the case. Of course, the regulator, as I understand it, can make a case to the High Court ahead of publication as things stand currently. The regulator can say that he or she understands the case very well and believes it would not be in the interest of patients to publish but ultimately the determination must be made by somebody. The registrant may not have to make the case to the High Court. The regulator could say that having dealt with this, he or she would not be recommending publication and that happens. The crucial point is who makes the final determination and we must accept, in a democracy, that the courts are the overall superseding authority when it comes to making determinations.
As things currently stand, is it the case for all regulators that a minor censure or admonishment, rather than a striking off, is automatically notified to the High Court?
Not at the moment but once the Bill is enacted, that will be the case.
That is my point. At the end of hearing, one goes back for a confirmatory hearing. One is sent the result, if I recall correctly. I only have experience with one regulator and the system has changed somewhat. My recollection is that one gets a result, goes back in for the confirmation and then one makes the case in situations where the issue is minor. One does not go to the High Court with that because it does not need the approval of the court. One goes in, brings a witness along and says that the person has got his or her life back together or that this was one minor incident that happened four years ago and the person’s record has been exemplary since then and so forth. One can make the case directly to people who are in the same profession and argue that the public interest will not be served by publishing the finding. Now, however, that step is removed. I am not referring here to cases where the issues are serious and the person has been struck off. I am talking about cases that merit censure or admonishment because they are minor, although they may not seem minor to the person affected. Under this legislation, such cases will now be funnelled automatically into the High Court and it is then up to the High Court to decide on publication. Surely, at the lower level, where one is sitting in a room with a committee, one should be able to give reasons as to why it is not in the public interest to publish. Once it goes to the High Court, one is in a somewhat adversarial process which is expensive. It becomes quite intimidatory and scary and the process will take time. It never gets to be over for the person. I do not understand why in the case of lesser incidents, one would still have to go to the High Court. That seems like a big change and one that is not necessarily in the public interest. I do not believe it is in the public interest to always have these cases published, although I do fully accept that there are cases where it is in the public interest to publish. The change proposed here is a big one. It adds an extra layer for people and it is quite-----
The Deputy must remember the point I made earlier about the threshold for a fitness to practise committee to sit and investigate. We are not in the territory of minor incidents here. This is somebody’s fitness to practise being questioned and that cannot happen or be entertained by the Medical Council unless the case is deemed by the council to be serious. To go back to my analogy of parking tickets and drink driving, parking tickets will not enter this process because they will not get through the first stage. This is as much about the registrant’s right because his or her fitness to practise is being challenged.
I wish I had the Minister of State's confidence that inappropriate issues will not get through the net. They will and they do. It is not fault of any one person but it happens. The potential exists within this legislation to wreck a person’s life. I have serious concerns about this.
Again, what is the objective of these provisions? It is to protect the public on one hand and to protect the registrant on the other. We are trying to balance their rights. Essentially, what this legislation is all about is building confidence in the function of regulators. The right to publish is essential in order to have an open, transparent, fully accessible, accountable and credible system of regulation. If one comes at it from the other side and says that there is no right to publish then one is taking away the element of transparency which is essential in underpinning faith in the system of regulation.
Yes but for admonishment or censure, this is new; it is a new departure. Such cases do not currently go to the High Court but they will when this legislation is enacted. There are three sets of people involved in this, namely the regulators, the general public and the registrants. The rights and entitlements of all must be balanced and I do not believe this legislation is being fair to one set of people. I do not want to labour the point but-----
I absolutely respect the Deputy's background and front-line experience in this area. I am listening intently to the points she is making and am doing my best to explain my perspective on this. We can unpick this bit by bit if we take a sectoral or silo-like approach but if one stands back and looks at the system in its entirety, taking into account the threshold for a fitness to practise inquiry, one sees that the fitness to practise findings and the sanction have to be fed to the High Court anyway. They also have to be approved by the High Court before there is any talk of publication. It has reached that stage anyway, having been through three or four steps. We cannot look at this in isolation, from the original misdemeanour to the point of publication. All the necessary steps will be taken and I am sure that all of us, collectively, want to ensure that regulators have a full range of powers but are also open to scrutiny and publishing is part of that.
I accept that not everything runs like clockwork and Deputy O’Reilly has brought that insight to this legislation. She has pointed out that there are circumstances where it is legitimately in the interests of a person not to have the findings published. We have recognised that in this legislation by affording the High Court the right to determine that it would not be published. That can be done through the regulator at the time of the investigation.
Is amendment No.13 agreed?
No, it is not agreed.
I move amendment No. 14:
In page 26, line 40, to delete “or her”.
I move amendment No. 15:
In page 27, line 27, to delete “the” and substitute “this”.
Amendments Nos.16, 29, 45 and 54 are related and will be discussed together.
I move amendment No.16:
In page 30, line 17, after “post” to insert “or electronically”.
Regulators are increasingly switching to electronic or Internet-based registration systems. The provisions for notifications in the Bill require prepaid post. These amendments are designed to give regulators the option to issue notifications about registration by e-mail or other electronic means.
These amendments are designed to give the regulators the option to issue notifications about registration by email or other electronic means. This will provide a degree of future proofing and ensure that efficient and cost-effective registration systems can be introduced. The amendments are required in the legislation relating to the functions of the Medical Council, the Nursing and Midwifery Board of Ireland, CORU and the Dental Council of Ireland. It is not necessary to amend the Pharmacy Act. The Department is consulting with the regulators about notification of other events outside of registration, and it is possible that I will seek to introduce further amendments in that regard on Report Stage.
Amendment No. 17 was discussed with amendment No. 4.
I move amendment No. 17:
In page 31, line 12, to delete "2016" to substitute "2016)".
Amendment No. 18 was discussed with amendment No. 4.
I move amendment No. 18:
In page 31, between lines 29 and 30, to insert the following:
"Amendment of section 10 of Act of 2005
25. Section 10 of the Act of 2005 is amended, in subsection (1), by the substitution of "otherwise" for "othereise".".
Amendments Nos. 19 and 20 are related and may be discussed together.
I move amendment No. 19:
In page 31, between lines 29 and 30, to insert the following:
"Amendment of section 31 of Act of 2005
26. Section 31 of the Act of 2005 is amended, in subsection (1)(fa)(i), by the substitution of the following clause for clause (II):
"(II) was awarded both a Bachelor of Science in Applied Health Science by the Institute of Physical Therapy and Applied Science Dublin and a Diploma in Physical Therapy by that Institute,".".
These proposed new sections amend sections 31 and 38(2F) of the Health and Social Care Professionals Act 2005. Section 38 sets out the circumstances under which a registration board should grant registration. Section 38(2F), which was inserted by means of an amendment to the Act in 2017, relates specifically to the Physiotherapists Registration Board and allows persons who graduated from the Institute of Physical Therapy and Applied Science after 1 January 2013 to register with the board up to 31 December 2019. The amendment will remove the obligation that the specific qualifications referred to must have been awarded after 1 January 2013. This is to enable a small number of qualified professionals who returned to the State after practising in another jurisdiction and had spent several years out of practice to register with the board. The amendment will extend the time allowed for such applicants to make an application under this section of the 2005 Act by two years to 31 December 2021.
The amendment to section 31 of the 2005 Act is a consequential amendment and provides for the deletion of the reference to the date of 1 January 2013.
This raises the issue of non-specialists being accepted onto specialist registers. It is referred to in several times in the Bill, including in section 86, and I will address the totality of the issue. There is a serious issue in this county with non-specialists working in specialist posts. In layperson's language, non-consultants are working as consultants. In some cases, they do not have the requisite qualifications and training, and patients have absolutely no idea that the person they are seeing is not a consultant. We have discussed this issue before in the committee. My fear is that if it is found in the future that there was negligence by any of these people, there could be serious consequences for patients, in the first instance, and for the State. Anybody who is going in to see a consultant, having waited two or three years for an appointment, needs to know whether that person is, in fact, a consultant.
This issue has been raised several times since I became a member of the committee and the numbers are increasing. I have submitted various parliamentary questions on the matter and, if I recall correctly, the latest figure was 168 non-consultants in consultant posts. I am concerned that this Bill provides more ways for doctors who are not qualified specialists to be put on the specialist registers. Rather than coming back to the issue as we discuss each relevant section, will the Minister of State agree to discuss it in totality at this point? It may be the case that this provision has been carefully thought through. He referred to a two-year timeframe in this instance, while another section refers to a one-year timeframe for a different group of doctors. Will he outline precisely which types of doctors who are not specialists could end up on a specialist register?
Amendments Nos. 39 and 40 deal specifically with the issue the Deputy has raised. Amendments Nos. 19 and 20 deal only with CORU, which is the body that regulates physiotherapists. The later amendments deal specifically with consultants and the specialist register. Is the Deputy agreeable to waiting until we reach those amendments?
Yes, that is fine. I thank the Minister of State.
I move amendment No. 20:
In page 31, between lines 29 and 30, to insert the following:
"Amendment of section 38 of Act of 2005
27. Section 38 of the Act of 2005 is amended—
(a) in subsection (1), by the substitution of the following paragraph for paragraph (ca):
"(ca) where the board has made a bye-law under subparagraph (i) or (ii) of section 31(1)(fa) in respect of persons who hold an approved qualification within the meaning of section 38),satisfies the board,if the bye-law applies to him or her, that he or she has met the criteria and fulfilled the conditions specified in that bye-law,”,
(b) by the substitution of the following subsection for subsection (2F):
2(2F) The Physiotherapists Registration Board shall grant registration to a person who—
(a) applies on or after the date on which section 6(b) of the Health and Social Care Professionals (Amendment) Act 2017 comes into operation and not later than 31 December 2021, to the Physiotherapists Registration Board for registration,
(b) meets the requirements of paragraphs (a), (c), (d) and (e) of subsection (1),
(c) where the Physiotherapists Registration Board has made a bye-law under section 31(1)(fa)(i) in respect of persons who were awarded both a Bachelor of Science in Applied Health Science by the Institute of Physical Therapy and Applied Science Dublin and a Diploma in Physical Therapy by that Institute, satisfies that Board, if the bye-law applies to him or her, that he or she has met the criteria and fulfilled the conditions specified in that bye-law, and (d) was awarded both a Bachelor of Science in Applied Health Science by the Institute of Physical Therapy and Applied Science Dublin and a Diploma in Physical Therapy by that Institute.".".
I move amendment No. 21:
In page 31, between lines 29 and 30, to insert the following:
"Amendment of section 40 of Act of 2005
28. Section 40 of the Act of 2005 is amended by the insertion of the following subsections after subsection (2):
"(3) Subsection (4) applies where a registration board has—
(a) removed from its register the name of a registrant pursuant to a direction under subsection (1), or
(b) restored the name of a person to its register pursuant to subsection (2).
(4) The Council shall, as soon as practicable after the removal or restoration concerned—
(a) notify the Health Service Executive,
(b)notify the employer of the registrant or person, as the case may be, the subject of the removal or restoration if the employer's name is known to the Council,
(c) notify such other persons as the Council thinks fit, and
(d) advise the public,
of the removal or restoration (in particular, the name of the registrant or person and the date on which the removal or restoration took effect).".".
Amendment No. 22 was discussed with amendment No. 1.
I move amendment No. 22:
In page 34, between lines 30 and 31, to insert the following:
"Amendment of section 50 of Act of 2005
29. Section 50 of the Act of 2005 is amended, in the definition of "disciplinary sanction", by the substitution of "section 66(1)" for "section 65(1)".".
Amendments Nos. 23, 30, 35 and 47 are related and may be discussed together.
I move amendment No. 23:
In page 34, between lines 30 and 31, to insert the following:
"Amendment of section 50 of Act of 2005
29. Section 50 of the Act of 2005 is amended by the substitution of the following for the definition of "poor professional performance":
" 'poor professional performance', in relation to a registrant of a designated profession, means a serious error or failure of the registrant to meet the standards of competence that may reasonably be expected of registrants practising that profession;".".
The proposed amendment would introduce the word "serious" to the definition of poor professional performance in the Medical Practitioners Act, the Nurses and Midwives Act, the Pharmacy Act and the Health and Social Care Professionals Act. This definition was considered at length by the High Court and the Supreme Court following a judicial review instigated by Professor Martin Corbally regarding a finding against him by the Medical Council of poor professional performance. The Supreme Court decision confirmed emphatically that a threshold of seriousness exists for all cases involving poor professional performance. The court clarified that this threshold is provided for in the definition of poor professional performance in the Medical Practitioners Act 2007 and is followed in the other health professional regulatory Acts. I am satisfied that the judgment leaves no doubt as to the interpretation of "poor professional performance" and that there is no doubt among the regulators who apply the threshold in arriving at their decisions.
I accept that amending the definition as suggested by the Deputy might appear to do no harm, but my preference is not to risk introducing unintended consequences to something that has been the subject of detailed court examination and on which there is now a substantial body of case law. I, therefore, do not support the amendment.
As the Minister of State noted, this issue arises out of the Corbally judgment. I do not accept, as he has suggested, that the judgment is incorporated into this legislation. The court unanimously dismissed the Medical Council's appeal against the High Court's quashing of a council decision that Professor Corbally should receive an admonishment for a once-off error. The court found that the a threshold of seriousness, which is what I am seeking to introduce in this amendment, must be met. It further found that it was neither fair nor just that somebody like Professor Corbally should be subject to a public inquiry with the attendant extensive publicity, some of which lacked fairness and moderation. The purpose of our amendment is to incorporate that ruling into the Bill, but I would be happy to support a similar Government amendment. Our objective is to legislate across all the primary Acts to incorporate the Corbally judgment into the definitions of poor professional performance.
This issue has been raised with me by a number of people and I am sure it has been raised with other members of the committee.
I have no objection to the Deputy’s amendment in principle and what she is trying to achieve. I agree with her wholeheartedly and support the amendment, but it is not necessary because what it seeks to achieve is already inherent in the Bill. I want to assure her that I share her ambition and that it is part and parcel of what we are doing in this provision. The Bill provides for the Supreme Court's decision in the Corbally case that where poor professional performance is identified, a level of seriousness automatically attaches to it. The matter is serious by nature such that there is no need to include the word “serious”. I understand from where the Deputy is coming and agree wholeheartedly with what she is trying to achieve, but the amendment is not necessary. As legislators, in putting forward words that will be interpreted by the courts we need to take appropriate care in the words we use and the wording that is necessary to state the intention of the legislators at the time of legislating. My understanding is it is not necessary to include the word “serious” following the Supreme Court's decision that the term “poor professional performance” indicates a level of seriousness.
Will the Minister of State agree that the ramifications of the Supreme Court's judgment need to be incorporated into primary legislation? We cannot leave it to case law to determine this matter or to set a precedent. There is a salutary lesson for me in what is going on in another jurisdiction in leaving things to precedent. It is important that the judgment in the Corbally case be legislated for. I do not believe that has yet been done in primary legislation. It was a landmark judgment and recognised as such by members of the medical and legal professions. I do not understand why it has not been incorporated into primary legislation.
The regulator’s interpretation of the threshold is what matters. My understanding is the regulators understand the seriousness of poor professional performance. We could argue all day every day over the need for the inclusion of the word “serious”, but I argue that we will not be relying on case law. What matters is the interpretation of the regulators who will be applying it and their understanding of it. I know that they are not in any doubt about the interpretation following the Supreme Court's judgment. The Deputy is a legislator and entitled to her very strong view on the interpretation, but I do not propose to argue the matter further.
We are in agreement on the intention but not the wording.
I am confident that it is not necessary to include the word “serious”. The Deputy will have a further opportunity on Report Stage to raise the issue, if she still feels uncomfortable with the provision, as drafted.
I move amendment No. 24:
In page 35, lines 38 and 39, to delete all words from and including “Section” in line 38 down to and including line 39 and substitute the following:
"Section 53 of the Act of 2005 is amended—
(a) in subsection (1B), by the deletion of paragraph (b), and
(b) by the insertion of the following subsection after subsection (5):".
I move amendment No. 25:
In page 36, between lines 4 and 5, to insert the following:
“Steps to be taken by Council after receiving report
31. The Act of 2005 is amended by the substitution of the following section for section 64:
“64. On receiving the report of a committee of inquiry concerning a complaint against a registrant, the Council shall do one of the following:
(a) if the committee finds that no allegation made by the complainant is substantiated, dismiss the complaint;
(b) if the committee finds that any allegation made by the complainant against the registrant is substantiated, perform its functions under section 66 in relation to the complaint as soon as practicable.".".
I move amendment No. 26:
In page 36, between lines 4 and 5, to insert the following:
“Direction by Council to impose disciplinary sanction
32. The Act of 2005 is amended by the substitution of the following section for section 66:
“66. (1) Subject to section 53(1A), if a committee of inquiry finds that an allegation made by a complainant against a registrant is substantiated, the Council shall, after considering the committee’s report, direct the board to impose on the registrant, as specified in the direction, one or more than one of the following disciplinary sanctions:
(a) an admonishment or a censure;
(b) the attachment of conditions to his or her registration, including restrictions on the practice of the designated profession by the registrant;
(c) the suspension of his or her registration for a specified period;
(d) the cancellation of his or her registration;
(e) a prohibition from applying for a specified period for restoration to the register.
(2) However, the Council may not direct a registration board to cancel the registration of a registrant on the grounds of a conviction for an offence referred to in section 52(1)(g) unless—
(a) in the Council’s opinion, the nature of the offence or the circumstances in which it was committed ought to disqualify the registrant from practising the designated profession, or
(b) a conviction for such offence would render a person ineligible for registration as a registrant of the designated profession.
(3) On giving a direction to a registration board to impose on a registrant a disciplinary sanction referred to in subsection (1)(b), (c) or (e), the Council shall specify in the direction—
(a) in the case of a disciplinary sanction referred to in subsection (1)(b), the nature of the conditions to be attached to his or her registration,
(b) in the case of a disciplinary sanction referred to in subsection (1)(c), the period of suspension of his or her registration, and
(c) in the case of a disciplinary sanction referred to in subsection (1)(e), the period for which he or she is prohibited from applying for restoration to the register.".".
I move amendment No. 27:
In page 37, to delete lines 35 to 38 and substitute the following:
"(a) by renumbering the existing section as subsection (1),
(b) in subsection (1)—
(i) by the substitution of “shall (if satisfied that, in the case of an action referred to in paragraph (i), it is in the public interest to do so)” for “may, if satisfied that is it in the public interest to do so,", and
(ii) in paragraph (i), by the substitution of "Health Service Executive" for "Minister",and
(c) by the insertion of the following subsection after subsection (1):
"(2) The Council shall not publish anything under this section which is inconsistent with a decision (if any) of the Court arising from the performance of a function under section 69 or 70.".".
I oppose section 36 for the reasons already outlined in dealing with amendment No. 12. We have had a discussion on the effectiveness and impact of publication. The Minister of State is aware of my concerns about the need to balance the rights of the regulator with those of the general public and the registrant. There are three actors in any scenario. The current system provides for an appeal at regulator level in regard to publication, but it is being removed and admonished censure will now automatically always be a matter for the High Court. For all of the reasons I have outlined, I do not think this is necessary. That is not to suggest I do not value and welcome any provision that strengthens the public interest element of the legislation, but what is proposed is unnecessary and unduly harsh on the registrant.
I move amendment No. 28:
In page 37, after line 38, to insert the following:
“Amendment of section 78 of Act of 2005
37. Section 78 of the Act of 2005 is amended by the deletion of paragraph (d).".
I move amendment No. 29:
In page 38, line 23, after "post" to insert "or electronically".
I move amendment No. 30:
In page 49, between lines 32 and 33, to insert the following:
"Amendment of section 33 of Act of 2007
49. Section 33 of the Act of 2007 is amended by the substitution of the following for the definition of "poor professional performance":
" 'poor professional performance', in relation to a registered pharmacist, means a serious error or failure of the registered pharmacist to meet the standards of competence that may be reasonably expected of a registered pharmacist;".".
I have outlined the reasons for the amendment and I will not go into them again. The Minister of State and his officials have heard my arguments.
I move amendment No. 31:
In page 54, line 4, to delete "following subsection" and substitute "following subsections".
I move amendment No. 32:
In page 54, to delete line 11 and substitute the following:
(3) The Council shall not publish anything under this section which is inconsistent with a decision (if any) of the High Court arising from the performance of a function under section 51 or 52.".".
Deputy O'Reilly opposes section 59.
For the reasons I have already outlined, and I will not go through them again, I oppose section 59.
I move amendment No. 33:
In page 54, line 22, to delete "section 7(1)(e)(ii);" and substitute "section 7(1)(e)(ii).".
I move amendment No. 34:
In page 55, line 33, to delete "the" and substitute "this".
I move amendment No. 35:
In page 59, between lines 34 and 35, to insert the following:
"(viii) by the substitution of the following definition for the definition of "poor professional performance":
" 'poor professional performance', in relation to a medical practitioner, means a serious error or failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner;",".
We have discussed this amendment in some detail. In the absence of an argument that convinces me the Minister of State will legislate in primary legislation for the Corbally judgment I will re-table the amendment on Report Stage.
I move amendment No. 36:
In page 78, line 28, to delete "The Council" and substitute "Without prejudice to the generality of section 56B, the Council".
This is consequential on amendment No. 41. The Bill provides for the establishment of a register of adapters by the Medical Council. This is a register of doctors who are required to undergo a period of supervised practice and-or academic training that allows an applicant with neutral recognition rights under the professional qualification directive to reach the standard required for registration on the register of medical practitioners. These amendments address an oversight in the Bill and will ensure that doctors on the register of adapters are subject to Parts 7, 8 and 9 of the Medical Practitioners Act. These parts relate to complaints and the imposition of sanctions. These amendments will ensure the full provision of the complaints process will apply to medical practitioners on the register of adapters in the same way as they do to persons on the register of interns and medical practitioners.
The proposed text necessitates the removal of section 95 of the Bill, which relates solely to interns, with replacement by this new text, which relates to interns and adapters.
I move amendment No. 37:
In page 83, line 15, to delete "of registration".
I move amendment No. 38:
In page 84, line 8, to delete "from a State" and substitute "from a state".
Amendments Nos. 39 and 40 are related and will be discussed together.
I move amendment No. 39:
In page 86, line 31, to delete "The Council" and substitute the following:
"(1) The Council".
I want to alert Deputies to the fact this is the amendment we were referring to earlier. In 2008, the HSE introduced a requirement that consultants be registered on the specialist division of the Medical Council register. Consultants appointed prior to 2008 under the standard recruitment arrangements in place for the filling of consultant posts at the time did not have to be registered in this division. The Medical Practitioners Act 2007 included a provision allowing a five-year period for which the council could grant registration to any medical practitioner who, being able to be registered in the general division, satisfied the council he or she had obtained sufficient training and experience such as he or she should be registered as a specialist on that list.
A small number of consultants appointed prior to 2008 did not avail themselves of this provision. They are unable to apply for registration on the specialist division because they do not have the specified qualifications for specialist registration. This relates to a small number, between 30 and 40, of consultants.
The amendment would enable the Medical Council to register in the specialist division a medical practitioner registered in the general division who satisfies the council he or she has obtained sufficient training and expertise such that he or she should be registered as a specialist. This window of registration will be available for one year from the commencement of the relevant section of the Bill.
The amendment also provides that within this timeframe, and for the purposes of the above provision, the Medical Council will work with specialist training bodies to assist medical practitioners registered in the general division to achieve the necessary standard for registration in the specialist division.
I will not repeat what I said earlier. This is a serious issue. Will the Minister of State repeat, if he would not mind, the sentence in which he stated what the doctors involved do not have?
They do not have the specified qualifications for specialist registration.
If they do not have the specified qualifications, why would we give them the opportunity to register as consultants? That is a concern. Why are those who do not have the specified qualifications not told to get them and not supported in doing so? When they get them, they can go through the same procedure as everybody else. Why are we creating an exception for this group?
They were correctly appointed as consultants, but they missed the window to register at the time. That is the qualification. As I said, they have the necessary experience and training. There is a difficulty which, to be fair, is more than technical. They have to satisfy the Medical Council, but it is important to appreciate that these consultants are properly qualified. They hold their consultant posts having met the criteria that applied to them when they were advertised and filled. They acquired their posts having been deemed to be eligible to compete for them when their applications were assessed. They did not acquire their posts through contracts of indefinite duration. The provision has also been framed so as to ensure the council will be satisfied that the consultant concerned has the necessary training and experience to merit inclusion in the specialist division. Does that answer the Deputy’s question?
No. I am more confused now. The Minister of State said they did not have the specified qualifications, but he then said they did have the specified qualifications, training and experience. Which is it?
It is complicated. I know that is the Deputy’s sense of it also. I have heard him speak on the issue many times. The specialist register requires an additional layer of qualifications. It requires certain qualifications for people to be allowed to work as consultants. They include certain training and experience. The people concerned need to work with the Medical Council to have this additional layer of qualifications. They are qualified to work as consultants, but they need additional qualifications to be included in the specialist register. This provision gives them the opportunity to obtain the additional qualifications. It is about the difference between the qualifications of and the training and experience of people in the field. This provision will allow them to work with the Medical Council to achieve the higher level of qualifications required for inclusion in the specialist register. It does not give anyone a shortcut or pass. I was going to say a hospital pass. It does not give anyone a break; it just allows them to reach the higher level set. They have the qualifications; this provisin will just ensure their training and experience are recognised.
This is about the difference between qualifications and experience and training. Recognition of experiential learning is covered by the Act that deals with qualifications and quality. Is the Minister of State saying the cohort of people who will be captured by this provision comprises those who are eligible for admission to the register not by virtue of their experience but by virtue of their qualifications and who did not apply for admission at the time? Will the Medical Council have a role in reviewing their experiential learning, or other forms of training undertaken in the course of their duties, with a view to deeming it to be the equivalent of a qualification? The issue is whether a person is not only capable but also qualified. The Minister of State is seeking to change whether a person can be admitted to the specialist register. I have a particular interest in this issue which I have raised on countless occasions.
The Minister of State is saying the people concerned will not practice as a consultant by virtue of their legal entitlement to a contract of indefinite duration. I might be reading this incorrectly, but I believe such persons could do so. There is nothing to prohibit it. Currently, a person can work and be paid as a consultant without the necessary qualifications for admission to the specialist register. If the amendment is accepted, could a person amass sufficient experiential learning, on-the-job training, and experience, some of which could be obtained under a contract of indefinite duration because it is not specified that it cannot be, to allow him or her to be admitted to the register? I do not see how this excludes someone who is acting and being paid as a consultant and now entitled to a permanent position by virtue of a contract of indefinite duration, but I may be missing it. How is a person who is on a consultant’s wage under a contract of indefinite duration, rather than by virtue of his or her qualifications, excluded from admission to the specialist register?
By way of background, the specialist register was established in 2008. As I said, this cohort includes 30 or 40 consultants. This provision does not reduce standards in any way, shape or form, nor does it make it easier for anybody, but there was a cohort of consultants who did not qualify for inclusion in the specialist register during that period. They were not eligible or missed the window to apply for inclusion in the specialist register.
Why were they not eligible?
I am sorry to cut across, but this is relevant. The understanding at the start was that they just did not apply, although they could have done so, but the Minister of State is now saying they were not eligible. Can we have clarity as to which it is because it matters?
I apologise for not being coherent and clear enough. I understand the importance of the issue and I am trying to understand it. There was a five-year window for consultants who were in place, qualified and had received appropriate training and experience to be included in the specialist register. There is no question about their qualifications, but they did not avail of the opportunity in the five-year period. It is not that they were not eligible but just that they did not avail of the opportunity to do so within the five-year period. With this provision, we are seeking to open the window again. The specialist register was introduced under the Medical Practitioners Act 2007 and there was a five-year window for registration. Some 30 to 40 consultants who are in post did not avail of that opportunity. They have continued in post and are still not on the specialist register. This provision allows them an opportunity to apply for inclusion in the register. It does not reduce the requirements they have to meet, which is the Deputies’ concern. It does not diminish in any way, shape or form the requirement to have the necessary training, experience and qualifications. It gives them an opportunity to apply for inclusion in the specialist register. We are reopening the window which legislation previously opened for a five-year period, of which opportunity these consultants did not avail.
It seems reasonable if that is all that is involved, but it runs contrary to my understanding of what was said initially.
I heard initially that this group does not have the requisite qualifications. I can support the explanation the Minister of State has given just now, namely that they did not bother, they forgot or were too busy saving lives. Had they applied in that five-year window, they would have got onto the specialist register like everybody else. They did not do so and now we are trying to clean that up, for good reason. If that is the rationale, I can support it. However, what I heard was that they are not on the register because they do not have the requisite qualifications. Was that just incorrect?
That was not correct. I appreciate that the previous contribution I made was more helpful than some of my previous contributions. The reason there was a five-year window was that we might have required applicants to have an additional layer of qualifications to be on the specialist register. The five-year window allowed for that. The people involved were perfectly qualified, trained and experienced but to get on the specialist register, they may have needed to complete a course or to add another layer. I am not a medical expert so I do not know what is involved but they may have needed an additional layer. They may have needed to undergo additional training, as is the case in many areas, in terms of continuous professional development because standards are being raised all the time. They may have been eligible at the time but the goalposts have changed now and they are no longer eligible. In that context, they may need to fill that gap.
Will the same bar be applied to this 30 or 40 who are left as was applied during the five-year period?
I think the bar has risen since then. I would imagine that it is now higher, if they are applying today. We are just opening the window to allow them to apply because they missed the previous window-----
The bar will not be lower.
It will certainly not be lower.
Okay, I am fine with that.
I do not think we are referring here to people who could not be bothered; we are talking about people who were on maternity leave, on sick leave or who were not in a position to do it at the time. They were given the five years to get whatever qualifications were required to move themselves over but they did not do that in the time provided. Is the Minister of State certain that we are only talking about that group of between 30 and 40 people? It seems a little broader and appears to include people who are not in that group. We are talking here about people who could have but who did not, for various reasons including maternity leave, sick leave or study abroad, apply to be included on the specialist register. It is limited to that group and there is nobody who would fall outside of the scope of that group who could benefit from this. Is that correct? I am happy to take the Minister of State's word on that but my reading of it is that it is sufficiently open-ended to benefit people who are not in that small group of 30 to 40 people. We are talking about people who, between 2008 and 2013, would have had the opportunity to go on the specialist register but did not do so. My reading of this is that people who are not in that tight little group could benefit from it and could get themselves onto the specialist register. If that is the case, I cannot support it but if the Minister of State is confident that this is ring-fenced and only applies to that very tight group, then I will support it.
There is no suggestion that we are legislating for 30 or 40 individuals but this change will have an impact on 30 to 40 people who are in place and doing the job. A larger cohort of consultants who may be acting up are not on the specialist register but this does not facilitate them in moving up. This is designed around the 30 or 40 people who have the necessary experience, training and qualifications but who, for bureaucratic or other reasons, did not get on the specialist register at the time but who were perfectly entitled to be on it. They may have to work with the Medical Council on some level but provided they do that, they are perfectly entitled to be on the register. The Medical Council will continue to uphold standards. This legislation will not diminish in any way the standard of consultants in this country. This is just about addressing anomalies. We all know that anomalies can occur when legislation is enacted. Legislative changes can impact negatively on one cohort and positively on another. This is a fairness measure that is designed to give people the same right to access the specialist register as their colleagues with whom they have been working.
I fully appreciate that and agree that it is fair. It balances things out. However, I am concerned about people who were not in that scenario back then but are now by virtue of experience. Given the nature of healthcare delivery and the recruitment crisis in the health service, people who would not be eligible to be on the specialist register are now acting as consultants. Would they not be able to claim, under this section, an entitlement to be on the specialist register by virtue of their experiential learning, training and so forth, which do not necessarily amount to a qualification? Could they not do what the group of 30 to 40 practitioners can do, which is to go to the Medical Council and ask for recognition for their work? These people are acting as consultants. All of their experience since taking up their acting post is relevant. Whether they have a contract of indefinite duration or not is irrelevant; they are still acting. Are they not entitled to the benefit of this legislation? Would it be deemed unfair if this Bill goes through as is? Would such people not consider it unfair that they could not benefit from this legislation? Could they not go to the Medical Council under this provision? That is my primary concern.
I must reiterate, categorically, that we are not changing the standards in any way, shape or form. We are not changing the standard that is required in to be admitted onto the specialist register. All we are doing is making provision for a cohort of people who have achieved that standard but who, for a bureaucratic reason rather than a standard, training or experience deficit, were unable to get onto the register. Previous legislation put a five-year time limit in place and they were locked out because they did not get on the register within that period. This provision will give them the opportunity to get on the register but they will still have to attain the same standards and so forth. There is no question that anything we are doing today will lower standards or allow others to get in through the window now. There is certainty about that.
I understand the concerns of the Members opposite and am quite happy to get them a better and more extensive briefing on this particular aspect of the Bill-----
I was going to ask for that.
I will get that circulated so that Members can have a better understanding of it between now and Report Stage. I do not want anybody to have a concern around this and I certainly want to assure anyone following this debate that there is absolutely no change to the standards required of healthcare professionals under this legislation.
Could the explanatory note outline how the small group is included while the other group to whom I referred - the contracts of indefinite duration group, for want of a better term - is specifically and explicitly excluded? If the note could take that form, it would be very helpful.
I am happy to do that.
I seek clarification from the Minister of State. Is it the case that once the first anniversary of the commencement of this section passes, a medical practitioner cannot get on the specialist register unless he or she has the specialist qualifications by examination or assessment by his or her professional body? Will it be the case that after that date a practitioner cannot get onto the specialist register and, therefore, cannot be appointed as a consultant or can an individual still be appointed as a consultant without being on the specialist register?
The answer to the first question on the specialist register is "Yes".
Regarding the second question on the appointment of consultants, I do not know whether that practice will be changed by this provision. I am not certain about that. I know that there was a judgment in the courts recently related to that. I will get that clarified for the Chairman as part of the aforementioned briefing. That would involve the existing legislation as well so it will have to be reviewed. This amendment would not change it but I will have to look at the other legislation to give the committee the overall picture and answer the Chairman's question on the future for people acting as consultants but not on the specialist register.
I move amendment 40:
In page 86, to delete line 34 and substitute the following:
(2) The Council may, until the 1st anniversary of the commencement of section 86 of the Regulated Professions (Health and Social Care) (Amendment) Act 2019, register in the Specialist Division a medical practitioner who, being able to be registered in the General Division, satisfies the Council that the practitioner has obtained sufficient training and experience such that the practitioner should be registered as a specialist.
(3) For the purposes of subsection (2), the Council shall, until the 1st anniversary referred to in that subsection, work with the bodies approved under section 89(3)(a) to assist medical practitioners registered in the General Division to achieve the necessary standard for registration in the Specialist Division.”.”.
Is the amendment agreed?
It is agreed, subject to the clarifications we have been promised.
I remind members that there will be a meeting of the joint committee later at which we will be discussing Brexit. Are members happy to continue examining this legislation? There are 14 amendments remaining.
Is the next session at noon?
It is at 11 a.m. Shall we proceed?
The Minister of State must hurry up.
We will get nine or ten done anyway.
I assure the Deputies that I am happy to oblige.
Amendment No. 41 has already been discussed with amendment No. 36. I remind members that acceptance of this amendment involves the deletion of section 95 of the Bill.
I move amendment No. 41:
In page 94, between lines 13 and 14, to insert the following:
“Application of Parts 7, 8 and 9 to interns and adapters
95. The Act of 2007 is amended by the insertion of the following section after section 56A:
“56B. In this Part and in Parts 8 and 9, and notwithstanding the definition of ‘registered medical practitioner’ in section 2—
(a) a reference to a registered medical practitioner shall be construed as including a reference to an intern and an adapter, and
(b) a reference to the register shall be construed as including a reference to the register of interns and the register of adapters,
and the provision of this Part and of Parts 8 and 9 shall, with all necessary modifications, be construed accordingly.”.”.
The IMO expressed concerns about section 103. It questioned whether it made sense for proceedings to be held in camera until adverse findings were made, at which point the whole thing would be made public. I am of two minds about this because we want as much transparency as possible. The IMO's concern is that for practitioners against whom vexatious or well-intentioned but unsubstantiated allegations are made, the proceedings themselves could cause them damage. When no findings are made against that practitioner, the damage potentially remains because of the public nature of the hearings. I am also cognisant of the fact that court cases are held in public, regardless of the findings, except in exceptional circumstances, for children, or in family law, where they are held in camera. I would like to hear the Minister of State's views on the IMO's concerns.
One of the basic principles underpinning the justice system is that justice should not only be done but should be seen to be done. We can debate that principle in this forum or any other, but that is the accepted principle on which this section was based. There are concerns, which the justice system has addressed by making exceptions in childcare cases and so on. No amendment has been proposed to this section to which I can speak. Under the existing Medical Practitioners Act, cases are held in public. We do not propose to change that. It is the norm. This section proposes to grant the fitness to practise committee the power to order certain information regarding a hearing not to be published. It introduces a degree of latitude to the pre-existing legislation and allows for situations where the fitness to practise committee can decide whether such information is in the public interest. I hope that addresses the Deputy's concern.
It does. I thank the Minister of State.
I move amendment No. 42:
In page 106, to delete lines 8 to 18 and substitute the following:
“(a) by renumbering the existing section as subsection (1),
(b) in subsection (1)—
(i) by the substitution of “(if satisfied that, in the case of a measure referred to in paragraph (a)(ii), it is in the public interest to do so)” for “, if satisfied that it is in the public interest to do so”, and
(ii) by the substitution of the following paragraph for paragraph (b):
“(b) if satisfied that it is in the public interest to do so, publish a transcript of all or any part of the proceedings of the Fitness to Practise Committee at an inquiry or publish all or any part of a report referred to in section 69(1) of the Fitness to Practise Committee (and, in either case, whether with or without any information which would enable all, or any one or more than one, of the parties to the proceedings concerned to be identified).”,
(c) by the insertion of the following subsection after subsection (1):
“(2) The Council shall not publish anything under this section which is inconsistent with a decision (if any) of the Court arising from the performance of a function under section 75 or 76.”.”.
I oppose this section for the same reasons as previously discussed, which relate to the publication of proceedings.
I move amendment No. 43:
In page 107, between lines 12 and 13, to insert the following:
“Amendment of section 91 of Act of 2007
120. Section 91 of the Act of 2007 is amended by the substitution of the following subsection for subsection (7):
“(7) Where, arising from the performance of its duty under subsection (1), the Council considers that a medical practitioner registered in the General Division, the Specialist Division, the Trainee Specialist Division or the Supervised Division has been given every reasonable opportunity by the Council to improve the practitioner’s professional performance but whose professional competence is found by the Council to continue to be below the standards of competence that can reasonably be expected for continued registration in the General Division, the Specialist Division, the Trainee Specialist Division or the Supervised Division, as the case may be, then the Council may make a complaint.”.”.
Doctors are obliged to maintain their professional competence by following the requirements set by the Medical Council and enrolling in professional competence schemes. Section 91 of the Medical Practitioners Act places a duty on the Medical Council to satisfy itself as to the ongoing maintenance of doctors' professional competence. Section 91(7) of the Act provides the council with the explicit power to make a complaint to the Preliminary Proceedings Committee where a doctor in a specialist division or trainee specialist division fails to meet the standard of competence that can be expected of them, despite being given an opportunity to do so. The proposed amendment extends this power to include doctors registered on two other registers, namely the general division and the supervised division. This amendment would ensure that the Medical Council's powers of complaint in relation to professional competence apply to all relevant categories of doctors, which would enhance patient safety.
I move amendment No. 44:
In page 108, line 24, to delete “the” and substitute “this”.
I move amendment No. 45:
In page 111, line 21, after “post” to insert “or electronically”.
I move Amendment No. 46:
In page 111, line 37, to delete “condition” and substitute “conditions”.
Amendment No. 47 has already been discussed with amendment No. 23. Is Deputy O'Reilly pressing the amendment?
I move amendment No. 47:
In page 112, between lines 1 and 2, to insert the following:
“(iv) by the substitution of the following definition for the definition of “poor professional performance”:
“ ‘poor professional performance’, in relation to a nurse or midwife, means a serious error or failure by the nurse or midwife to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of a registered nurse or registered midwife, as the case may be, carrying out similar work;”,”.
I do not recall discussing this previously.
It was discussed with amendment No. 23.
I have a note on section 47.
What does it relate to?
It relates to a fitness to practise committee making a finding against a nurse if there is no nurse or midwife on the committee.
That pertains to amendment No. 49.
Is the Deputy pressing amendment No. 47?
Amendments Nos. 48 and 49 are related and may be discussed together. If amendment No. 48 is agreed, amendment No. 49 cannot be moved. Amendment No. 49 is a physical alternative to amendment No. 48.
I move amendment No. 48:
In page 114, to delete lines 24 to 33 and substitute the following:
“ “(11A) Paragraph (a) of subsection (11) shall not apply to the Fitness to Practise Committee except in relation to the Committee’s inquiry into a complaint the hearing of which under section 63 has commenced before the date of coming into operation of section 129 of the Regulated Professions (Health and Social Care) (Amendment) Act 2019.”,”.
Currently, both a nurse and a midwife are required to sit in on a preliminary proceedings committee, PPC, and the fitness to practise committee of the NMBI. This has caused operational problems for the regulator and, in some cases, has lengthened the time it takes for an inquiry to conclude. This section removes this requirement. Since the Bill was published, concerns were raised that the section, as drafted, might have unintended consequences for the composition of committees. Specific concerns were that neither a nurse nor a midwife might be required to sit on a committee and that a nurse might not sit on a committee inquiring into a nurse or a midwife for a midwife. Following further consideration and discussion with the regulator and the OPC, it is agreed that these concerns would be addressed by the removal of paragraph (11A)(a) in subsection (c) of section 129 and this amendment has been drafted accordingly.
When applied to the Bill and the existing Act, the net effect of the amendment is that there will be no change to the PPC and there will continue to be at least one nurse and one midwife on a preliminary proceedings committee and any subcommittee. There will be a change to the fitness to practise committee for inquiries and, beginning after the section comes into effect, there will be at least one nurse or one midwife on a fitness to practise committee or subcommittee and, where a nurse is being inquired into, a nurse must be on the committee and likewise for a midwife.
This amendment also introduces another key feature, which will assist the NMBI to process complaints more quickly. The Bill, as drafted, provides that the new streamlined committee structures will apply only to inquiries into complaints made after this section comes into effect. However, the amendment provides that the new provisions relating to fitness to practise composition will apply to complaints currently being examined but which have not yet reached the fitness to practise hearing stage, which is when a midwife or nurse would be included, as well as to the complaints made after the section has come into effect. These hearings are held towards the end of the inquiry and this amendment will, therefore, allow a large batch of complaints currently at the early or middle stages of investigation to be heard by the streamlined committee structure. Concluding these hearings as quickly as possible is in the interest of both the registrant and the complainant.
My concern is that a nurse will be adjudicating on a case involving a midwife and vice versa. Is the Minister of State saying that will not happen?
Yes. This amendment addresses the Deputy's concerns. We accepted that the Deputy had a very fair point.
I move amendment No 50:
In page 116, line 9, to delete “and 53,” and substitute “and 53”.
I move amendment No. 51:
In page 123, line 12, to delete “for section” and substitute “for “section”.
The section proposes to amend section 72, which requires that sanctions of advice, admonishment or censure are confirmed by a court. Currently that is not the case. In the context of a particular circumstance which has been brought to my attention, there is a facility for registrants to seek that hearings take place other than in public and this can be granted by the fitness to practise committee. When it is granted it predominantly involves cases where there is a relevant medical disability. My opposition arises from the fact that, if it has to go to court and there is misconduct arising from a disability - most probably a mental health issue - this will form part of the admonishment or censure and it will be read out in open court. A person may take a compassionate view of professional misconduct or poor professional practice and, at the moment, the fitness to practise committee can use its discretion to hold back information from the public out of concern for a person's mental health, but this facility will be abolished by virtue of the admonishment containing elements of the disability, which will then be confirmed by the court and go on the public record. The Nurses and Midwives Act 2011 currently allows discretion but this section will change that and my information is that this change may have unintended consequences.
We envisage the court having discretion to hold a hearing in camera, as opposed to in public, in cases where it has a concern. We discussed a direction earlier regarding publication.
How likely does the Minister think this is likely to happen? I am not a legal person but my understanding is that the vast majority of court decisions are published. The unintended consequences of this would be very serious, albeit for a small number of people.
I cannot second guess what the courts will do. There are situations in which the regulator can ask for a case to be heard in camera. The fitness to practise committee can ask the court and we anticipate that the courts would adjudicate fairly on such a request, balancing, as they would, the public interest with the person's interest.
However, it is the regulator who would apply on the person's behalf and would ask the courts to do it in camera if the person had a concern.
I ask the Minister of State to put himself in the shoes of that individual while he or she waits for the High Court to sit and make that adjudication. That person, if he or she already has a disability that may have been material to the misconduct, will have that added stress and pressure on top of him or her while that person waits to see if the High Court is going to publish. The facility that exists at present means it does not go any further than the committee and does not have to go to the court. I believe the confirmatory nature of having to go to the court is unduly burdensome. We have had this discussion and I am conscious that we have another session, so I am not going to labour the point. However, I want to record that I am opposed to section 155.
I move amendment No. 52:
In page 133, to delete lines 8 to 16 and substitute the following:
“(a) by renumbering the existing section as subsection (1),
(b) in subsection (1)—
(i) by the substitution of “(if satisfied that, in the case of a measure referred to in paragraph (a)(ii), it is in the public interest to do so)” for “, if satisfied that it is in the public interest to do so”, and
(ii) by the substitution of the following paragraph for paragraph (b):
“(b) if satisfied that it is in the public interest to do so, publish a transcript of all or any part of the proceedings of the Fitness to Practise Committee at an inquiry or publish all or any part of a report referred to in section 67(1) of the Fitness to Practise Committee (and, in either case, whether with or without any information which would enable all, or any one or more than one, of the parties to the proceedings concerned to be identified).”,
(c) by the insertion of the following subsection after subsection (1):
“(2) The Board shall not publish anything under this section which is inconsistent with a decision (if any) of the Court arising from the performance of a function under section 73 or 74.”.”.
I have outlined my reasons for opposing this section I do not propose to go over them again. However, I am opposing section 160.
I move amendment No. 53:
In page 134, line 21, to delete “the” and substitute “this”.
I move amendment No. 54:
In page 136, line 18, after “post” to insert “or electronically”.
I move amendment No. 55:
In page 136, between lines 28 and 29, to insert the following:
“Amendment of Health Act 2004
168. The Health Act 2004 is amended—
(a) in section 2, in subsection (1), by the insertion of the following definition:
“ ‘Regulations of 2017’ means the European Union (Recognition of Professional Qualifications) Regulations 2017 (S.I. No. 8 of 2017);”,
(b) by the insertion of the following section after section 10B:
“Designation of Executive as competent authority under Directive 2005/36/EC for certain regulated health professions
10C. (1) (a) In this section—
‘Directive’ has the same meaning as in Regulation 3 of the Regulations of 2017;
‘regulated health profession (HSE)’ means a regulated profession relating to health or social care (other than an excluded regulated health profession) from amongst whose members the Executive recruits or appoints its employees or a class of its employees in their capacity as such members;
‘excluded regulated health profession’ means a regulated profession relating to health or social care which is regulated by—
(i) the Dentists Act 1985,
(ii) the Health and Social Care Professionals Act 2005,
(iii) the Pharmacy Act 2007,
(iv) the Medical Practitioners Act 2007,
(v) the Nurses and Midwives Act 2011, or
(vi) the Pre-Hospital Emergency Care Council (Establishment) Order 2000 (S.I. No. 109 of 2000).
(b) A word or expression that is used in this section and is also used in the Directive shall have in this section the same meaning as it has in the Directive.
(2) The Minister may, by order, designate the Executive as the competent authority in the State for the purposes of the Directive in relation to a regulated health profession (HSE) specified in the order.”.”.
The professional qualifications directive requires each member state to designate a competent authority for professions regulated for the purposes of the directive. The amendment gives the Minister for Health the power to designate the HSE as the competent authority to compare the equivalence of non-Irish qualifications to the qualifications of certain health professions which are not regulated on a statutory basis but which are regulated for the purposes of the EU professional qualifications directive. The Minister is currently the competent authority for these professions. The amendment being moved allows the Minister, by order, to designate the HSE as a competent authority for those professions for which it sets the qualifications required for the pursuit of that profession in the publicly funded health sector and which will not be subject to statutory regulation by CORU. The professions which currently come within the scope of the directive are those of audiologist and environmental health officer.
I want to flag that the Minister may wish to make a further amendment on Report Stage. The Bill provides that the regulator shall advise its equivalent body in another jurisdiction where the regulator has reason to believe that the practitioner is registered as soon as practicable after it has applied a sanction. The Minister may put down an amendment to specifically provide that a regulator may similarly advise its equivalent body in another jurisdiction of the immediate suspension of a registrant prior to or during an inquiry where the regulator has reason to believe that the practitioner is registered. The Minister may put forward an amendment in this regard on Report Stage.