Health Bill 2004: Committee Stage.

SECTION 1.

Amendments Nos. 1, 8, 150 and 154 are cognate and related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 9, lines 32 to 34, to delete subsection (2) and substitute the following:

"(2) This Act shall be included in the collective citation ‘the Health Acts 1947 to 2004', and this Act and those Acts shall be construed together as one.".

It has been difficult to prepare amendments for this Bill because of time constraints. My advice is that because there was already an Act in 2004 this amendment needs to be made as well as the other amendments.

I have consulted the Parliamentary Counsel in regard to these amendments which are technical. They concern the collective citation and construction of the Health Acts. He has advised that the references — Health Acts 1947 to 2004 — in the citation are correct. The reference in Schedules 1 and 3 provide the definition of health and personal social services and the transfer of functions for the executive, respectively. Both deal with the position prevailing before the dissolution of the health boards and other bodies and the establishment of the executive and the taking over by the executive of their functions. The reference is, therefore, correct. The suggestion is that the collective citation is not correct but the advice of the Parliamentary Counsel is that it is correct.

I accept that.

I intend to accept some amendments from both Opposition parties and also to refer some matters for further advice before Report Stage. In regard to the matters raised by Deputy McManus on the financial implications, I am more than willing to discuss them with the Bills Office if that is helpful. I respect the fact that members took the trouble to table amendments. The first of those amendments is amendment No. 114.

Did the Minister say "from both Opposition parties"?

Sorry, from Opposition parties.

Is the Green Party——

I am having the Deputy's amendments reviewed to see if I can accept any of them.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.

I move amendment No. 2:

In page 10, subsection (1), to delete lines 13 and 14 and substitute the following:

"‘chief executive officer' means the person holding the position of chief executive officer or interim chief executive officer of the Executive;".

This is a technical amendment to allow for the appointment of an interim chairman. Obviously everybody is aware of the background. I have asked the current acting CEO to act as interim CEO until a CEO is appointed. That means Mr. Kelly cannot stay on as chairman and act as CEO. A different chairman will be appointed. I have asked that the board, at its meeting on 9 December, agree among themselves a name to be recommended to me to act as chairman while Mr. Kelly performs the duties of acting CEO. The purpose of this amendment is to allow us have an interim chairman.

This is a good example of the problems that arise when one tries to ramrod a Bill through the House. We have an amendment from the Tánaiste to a Bill that has only just been published, dealing with a central issue. If, for example, this amendment was not accepted, it would mean that the person taking on the job of chief executive officer would have no authority whatsoever and that there would be no accounting officer for the Health Service Executive. Even though it was known that the CEO who was proposed was not taking up his post, we find, by way of the amendment being tabled, there is a provision for a deputy CEO who has to be taken from employees in the Health Service Executive. That would exclude Mr. Kevin Kelly or anybody on the board because they are not employees. There is a difference between an interim CEO and a deputy CEO. It is worrying that this amendment would be tabled at this stage and that it was not thought out beforehand.

In regard to the deputy CEO and the interim chief executive officer, what will happen in future if there is a complex difficulty? Does the deputy take over or does the Minister appoint an interim CEO, because it is not just for the situation that has arisen?

This amendment will have wider implications than for the current situation. It could arise at any time in the event of a person resigning or passing away. It will be a matter for the board, not the Minister, to appoint a deputy CEO.

That is my point. If a board appoints a deputy CEO and there is a problem with the chief executive officer, what will happen? Will the Minister appoint an interim CEO with all the powers of a CEO or will the deputy chief executive officer, who has been appointed in a totally different way, take charge? Normally one would expect a deputy CEO to deputise when the CEO is not present. What happens in that case?

The first CEO of this body will be appointed by the Minister on the advice of the Health Service Executive; thereafter it will be a matter for the Health Service Executive to appoint a CEO and a deputy CEO. They will assume all the executive responsibility in respect of the delivery of the health services. It will not be a matter for the Minister of the day to decide who should be either an acting CEO or a deputy CEO. It will be a matter for the HSE board. The Minister's role is that of appointing the HSE board, which will be accountable to the Minister. The HSE board will thereafter make all other appointments. The Minister will have just the initial role of the appointment.

The Minister began by stating this was not just about the current situation. It now appears that she is saying it is purely to deal with the current situation where there is no CEO, and she has not appointed an interim CEO. If that is the case, why is it not spelt out in the amendment? Otherwise there will be confusion in the future. This is not just a Bill for now, it is a Bill for always. There will be the position of interim CEO and deputy CEO. The amendment does not make clear who appoints the interim CEO. Is the Minister saying the interim CEO will no longer exist after the CEO is appointed? If so, surely it should be stated in the Bill, otherwise a Minister in the future may decide he or she would like the idea of appointing an interim CEO.

We are appointing an interim chairman. Amendment No. 41 deals with the issue raised by the Deputy.

I did not have a chance to read the amendments. The Minister must explain what is involved and treat us a bit like children. Perhaps she will explain who currently appoints the interim CEO.

The Minister.

If that is the precedent, presumably it will apply in the future.

There is currently an interimCEO who will become the statutory CEO from1 January until such time as the board appoints an acting CEO.

Is the Minister saying that the person who is now an interim CEO will become the CEO of the HSE?

No. I have made it clear that he will be an acting CEO until the board is in a position to find a CEO. It will go through another public recruitment process.

We now have a new term. There is an acting CEO, which does not appear in the Bill, and there is an interim CEO and deputy CEO. If the amendment is accepted, the interim CEO will be established in law for as long as the Act survives. The idea of an interim CEO will now be encapsulated in law. Who appoints the interim CEO in the future if the need arises, and how does it relate to the deputy CEO? I am sorry if the Minister dealt with this in the amendment, but we did not have a chance to read the amendments. I went into the Bills Office an hour ago where a sealed box full of amendments was found. There is an interim CEO and a deputy CEO. It is clear who the deputy CEO is but it is not clear who appoints the interim CEO and whether a Minister would have the power to appoint one in future, as appears to be the case.

No, they will not.

Why is it not specified?

It is specified in amendmentNo. 41.

Perhaps we will come back to the issue.

Ms Manus

We cannot pass one section if we are not clear about its implications. I am sorry if it will slow down matters.

What is the Deputy worried about? Is she worried that the Minister should not do this or that the provision should not be included at the moment or that we will leave a lacuna? Is the Deputy worried that the Minister will have this power?

I worry that the Bill is confusing. We did not have time to reflect on it and scrutinise it properly, which is what the reform deserves. I do not want to engage in a practice that will not produce a good Bill. It appears there will be a position of interim CEO, not a chairman, bound into the legislation. Either it is an interim post until 1 January or it is a position that will exist into the future. I do not have a problem with the Minister appointing an interim CEO, even though we have different views on the matter. The Minister should have a hands-on approach but I am concerned that there is a deputy CEO, who presumably will fill in for the CEO. There is now an acting CEO, who came out of nowhere, and an interim CEO.

What we are doing is abolishing all the health boards and creating a single unified administrative system for health care delivery. We are taking all the measures that were put in place in the late 1960s and early 1970s to set up the current health board system, and the 2002 Act, which set up the ERHA, and bringing them all together in a new administrative system. We have made that clear for 18 months. It was not just plucked out of the air. It came after a long process of discussion and consultation, involving many experts and people who work in the health care system. It was embraced by the Government 18 months ago.

We only got the amendments an hour ago.

Most of the ministerial amendments are consequential on giving the new CEO of the Health Service Executive the accounting officer role. The Government made that decision in order not to cause confusion between the Department of Health and Children's role and the current role of the HSE. It is different from the health board structure, because even though we set up a health board structure, accountability for delivery still lay with the Department of Health and Children. The Minister appoints the interim CEO pending the appointment of a permanent CEO by the HSE.

Where is that mentioned in the Bill?

Amendments Nos. 40 and 44 make that clear.

Perhaps the Minister has clarified the matter in her statement. Is a definition of "interim chief executive officer" contained in the Bill? It appears that an interim chief executive can also be the chief executive officer. It is confusing because the Minister is in a hurry, which I understand. Given my seven and half years experience in the House, we always return to rushed legislation. We always say we made a slight mistake because the legislation was rushed. I have seen mistakes in some of my amendments because they were rushed, whereby something I did not intend has been included — I will explain this later.

We are dealing with the Bill on the same day as the budget, and there is Private Members' time, which is most unsatisfactory. Unfortunately, this has become a hallmark of the current Administration. It is bad practice from a public and political point of view. While it has certain consequences for the Opposition, in the long term we will all suffer as a result of rushed legislation.

I acknowledged in the House that in an ideal world this should not happen. However, everyone is geared up for a 1 January start. We do not want to lose the momentum of the health reforms simply because we have not been able to get the legislation through. Deputy McManus may laugh, but this is being done to improve the delivery of health care for patients, which is why it is urgent. I will read amendment No. 44, which is very clear.

It is very clear, which is the information I was seeking. That explains the position, with which I agree.

The matter has been resolved. Is the amendment agreed?

Is there a definition of the"interim chief executive officer"?

Does the Minister think there is no need for one?

The word "interim" is self-explanatory. Why should there be a need for a definition?

There is a definition in terms of what the CEO does. An interim CEO is merely——

A chief executive officer can also be an interim chief executive officer. That is the point.

We have cleared up that issue.

Amendment agreed to.

We now come to amendment No. 3. Amendments Nos. 113 and 126 are both cognate and related while amendment No. 127 is related. Amendments Nos. 3, 113, 126 and 127 may be discussed together. Is that agreed? Agreed.

I move amendment No. 3:

In page 10, subsection (1), line 15, after "formed" to insert "by a registered medical practitioner".

This amendment is straightforward. It is just a question of ensuring the decision would be formed by a registered medical practitioner because registered medical practitioners are subject to the Medical Council. The amendment would simply define who was subject to this legislation and who would be subject to other legislation. It should be clear to whom we are referring when we say some persons are not covered.

Some of my amendments are included in this group and I tabled them for the same reasons as Deputy Twomey. There is no clarity, unless these amendments are accepted. It is important to recognise there are safeguards and that we are dealing with important issues. The idea that an artificial deadline of 1 January overrides all other concerns is not sustainable, particularly when what we are debating in these amendments is the issue of medical practitioners.

Amendment No. 3 is not solely about medical practitioners but nurses and other health care professionals. If I were to accept it, I would be restricting the definition of "clinical judgment" solely to medical practitioners and I would not be happy to do so. There is a wide range of health professionals who make clinical judgments, not just medical practitioners as defined by Deputy Twomey.

I accept that. What about section 52 which refers to a matter solely related to the exercise of clinical judgment by a person acting on behalf of either the executive or a service provider to which my amendment No. 127 refers. Amendment No. 127 reads: "In page 41, subsection (1)(b), line 14, after “person” to insert “who is subject to the Medical Council or an equivalent professional body”.

Section 52(1)(b) states: “A matter relating solely to the exercise of clinical judgment by a person acting on behalf of either the Executive or a service provider”. I want to ensure it is done by persons covered by the Medical Council or another professional body.

I am advised by the parliamentary counsel that the term "clinical judgment" is defined in section 2 as a "decision made or opinion formed in connection with the diagnosis, care or treatment of a patient". The addition of a reference to professional regulatory bodies would make an unnecessary distinction between professions which have mechanisms in place and are subject to registration and those not subject to such mechanisms for whom such mechanisms have not been introduced.

Amendment No. 126 which concerns complaints proposes the deletion of the word"solely". In other words, a whole range of complaints would be excluded. Clinical judgment can affect subsequent behaviour when somebody is discharged, what home help is available following discharge and when a person is admitted. If complaints were to be limited by deleting the word "solely", one would restrict rather than expand the range of issues on which one could make complaints. I am sure this is not the intention of the amendment.

Its purpose is to cover everything, even a person complaining about how hospital services are run.

Exactly.

Does the complaints procedure cover clinical complaints where a complaint is made against a specific medical practitioner?

That would be dealt with by the appropriate regulatory body. If it is related to fitness to practice, there is other legislation in place to deal with the matter. The procedure cannot cover a number of areas. For example, it cannot cover an issue that is the subject of a legal process, that relates solely to clinical judgment or terms of employment. Those three categories are excluded.

Can it cover neglect by a clinician? For example, I raised an issue recently in the Dáil regarding the failure of a clinician to read a report from another hospital forwarded to him when a patient was transferred. Does the complaints procedure cover the failure of a clinician to read such a report?

That would fall into the category of malpractice or medical negligence and be a matter for the Medical Council in regard to which we are drafting legislation. Last week I had a long meeting with the members of the current council about the forthcoming legislation. I know the point the Deputy is making and think I know the case to which he is referring but it surrounds fitness to practice and medical negligence which do not come within the sphere of complaints of this kind.

I have a difficulty with complaints against clinicians regularly made by the public. There is a movement in certain areas not to deal with them and say it is a clinical decision and that they will not discuss such issues. This leads to much frustration. I do not see why a clinician should not be questioned in the same way as an administrator.

If it is for something other than the pure clinical piece, they are subject to the complaints procedure.

The Minister will be aware of the case to which I have referred——

——where there was a failure to read a report. Is the Minister saying the failure to read such a report cannot be raised under the complaints procedure?

It could if it is purely to do with the report. This is a report from one doctor to another——

——which does not relate to the clinical decision in respect of what might happen on foot of it.

Obviously, it determined the clinical decision which would have been different if the report had been read.

The intention is that everything, apart from the pure clinical decision, is covered by this provision. People can argue both ways. Perhaps the clinician in question would but in my view it would be an administrative error and, therefore, would be covered.

In some health boards the approach increasingly is that the questioning of a clinician is out of bounds. I know of cases where people are suicidal and their families query the situation. They are informed that the issue will not be discussed with anybody except the patient and subsequently we will have go to the funeral.

I do not believe that is acceptable.

It is not but I have had several such experiences. I had hoped the complaints procedure would allow for a facility where such families could discuss the situation with the clinician if concerned. Clinicians refuse to do this on the basis of confidentiality. As late as last weekend very senior people in the psychiatry profession said saving a life was more important than confidentiality but some clinicians refuse to get involved.

This is a new procedure. The users of health services will have a complaints mechanism which many have sought for years. A complaint that falls into the category of administrative error, which is what the Deputy is suggesting, will be covered by this new procedure but, ultimately, it can all be appealed to the ombudsman. Difficulties arise and we have got to be fair in terms of the law on medical negligence and malpractice. That is the reason we are looking at some of these issues in the context of the new legislation governing the Medical Council. It is like the defamation laws which apply to the media. If somebody makes an apology or admits he or she was wrong, it can trigger a host of legal responses that will place him or her in a more difficult position. The same applies on the medical side. We want a mechanism that will satisfy the needs of the majority of users in terms of making complaints and obtaining responses to them. It is not a question of making a complaint; there also must be a response to such a complaint. That is why there is an onus each year to publish details of complaints. There are later amendments on this area. We have sought to strike a reasonable balance and to remove those matters that are the responsibility of clinical judgment with which we are not competent to deal in the context of this legislation.

Frustration is experienced by people in this area. When one makes representations concerning a complaint of a clinical nature, sometimes the response one gets is a closed door, so to speak. Some people say that making such representations is not the role of a politician, but I disagree. I know of people who are in deep crisis due to the condition of family members whose inquiries have met with a refusal to discuss the matter. My interpretation of what the Minister said is that the person in question will be advised to approach the body that will deal with this area. However, that body is far removed from that person, when all that is being sought in such circumstances is for a mother and father to be able to have a discussion about their 18 year old child who is about to kill themselves.

That is perfectly acceptable. In most circumstances I believe that takes place.

Mostly it does not.

In many circumstances, it does take place.

In some health board areas it does, but in other areas some clinicians refuse point blank to discuss such a situation with the family concerned, regardless of the circumstances. I have several examples of such cases which I can outline to the Minister. I am sure she can appreciate what I am saying. I have factual examples of people being discharged from hospital who were suicidal, and when such discharge was queried by the families of the people concerned, they were told it was a clinical decision and that it was none of their business.

It varies from case to case, perhaps from one individual consultant or practitioner to another or even from one area to another. A good feature of this legislation is that we will have a unified system and uniformity across a host of areas in this context.

The specific issue the Deputy mentioned may well be one that is suitable for consideration under new legislation relating to the Medical Council that is under preparation. Perhaps the Deputy and I could engage in discussion on that issue. However, I cannot introduce in this Bill an administrative complaints procedure for matters around clinical judgment.

The Minister is saying that if a family wants to query a matter regarding a patient, they will have to go to the Medical Council which involves a very long procedure.

No, I am not suggesting that they go to the Medical Council. What I am saying is that in the context of the new Bill perhaps I will examine some of the issues the Deputy has raised.

In such circumstances, most people want to make a telephone call, or want a public representative to do so on their behalf, to the clinician to obtain information, help, advice and assistance. On doing so, if they are blocked, the Minister is saying that because they are told that the decision is a clinical one, they should go to the Medical Council which involves a three month procedure.

No, I am not saying that. New legislation dealing with registration, complaints, fitness to practise, malpractice and the size of the council, is coming down the tracks fairly soon. A host of issues will be dealt with in such specialised legislation that will be introduced next year and on which we have been engaging with the Medical Council. It is probably appropriate that I would examine the specific complaint the Deputy has made in the context of such legislation. He has made a reasonable point and I would like to examine how we can address it.

I would like such complaints to be dealt with at local level and on a face-to-face and humane basis between clinicians and the families of patients, patients and any other person the families or patients want to involve. I have been called to meetings of the Mid-Western Health Board regarding people who are suicidal and have been told that my representations on their behalf were inappropriate when I was trying to save their lives.

The Tánaiste has made the offer that she will talk to the Deputy in advance of the introduction of the proposed legislation.

My experience of dealing with such people, from a public representative perspective and from a family perspective, is different from that of the Deputy. However, it has not been in the field of psychiatry. Perhaps such responses are confined to that area or may involve other areas, and I would like to examine that. The Deputy has made a reasonable case.

I wish to confirm that my experience is in the area of psychiatry not general practice.

Perhaps an amendment could be made to the effect that complaints made under this legislation could be redirected to the appropriate authority. In other words, that the person in an authority who receives such a complaint would be responsible for redirecting it to the appropriate authority.

That is what is supposed to happen. This is a question of not only making a complaint, it is about resolving the basis on which such a complaint has been made, namely, the cause of the complaint, to the satisfaction of the complainant. If that does not happen, the complainant can proceed to raise his or her complaint with the Ombudsman. However, this matter involves a local level of complaint at the point of service delivery. If a person has had a bad experience for whatever reason, he or she can make a complaint and have it properly investigated and if the person is not satisfied with the investigation, he or she can bring the matter further.

Rather than advising a person that such a complaint is not covered under the legislation, it would be preferable if the person who received the complaint took it upon himself or herself to redirect it to the appropriate authority.

We are excluding solely complaints around clinical judgment.

Such a complaint could be redirected. Rather than replying to the complainant that his or her complaint is not covered under this legislation, the complainant could be advised that the complaint has been referred to the appropriate authority. There should be a mechanism for doing that.

I will reflect on that specific point before Report Stage.

I support Deputy Twomey's proposal. The Tánaiste might advise us on this matter on Report Stage. It is important that we deal with it again on Report Stage.

It is reasonable that I should take advice on this matter.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 10, subsection (1), line 33, after "by" to insert "or on behalf".

This amendment relates to health and personal social services, a definition of services provided by a specified body under existing legislation. My read of the definition is that it may not cover the complexity of the health service. The Tánaiste has made the point many times that it is a complex service. One of the central essential components of the health service is the voluntary sector and organisations in that sector that provide services. It is regrettable that there is no reference to this important pillar of the health service. Unfortunately, I received submissions from The Wheel and Disability Federation of Ireland on this area too late and regret that I could not table the amendments they requested, as I was not allowed to do so because the timeframe was far too tight.

However, I want to raise the matter of organisations that provide services and will do so into the future which may not be specified under current legislation. The minor change I propose would at least deal with that point. I hope that at some point the Tánaiste will consider the fact that the voluntary sector has been written out of the picture in this Bill, a matter to which we will have to return. In this amendment, I am simply trying to introduce clarity to the section to ensure that services provided on behalf of specified bodies are included in the legislation.

I think the Deputy makes a reasonable case. I will take advice on this and return to it on Report Stage.

Is the amendment being withdrawn?

Yes, on the basis that the Minister will deal with this matter on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 7, 28, 29 and 164 are related to amendment No. 5 and they may be taken together by agreement.

I move amendment No. 5:

In page 10, subsection (1), to delete lines 40 to 42.

Amendments Nos. 5 and 7 are technical, arising as a consequence of the deletion of the references to a medical officer of health in section 12. The references to a medical officer of health in section 12 are proposed to be deleted in amendments Nos. 28 and 29, as that is being dealt with in the transitional amendment No. 164.

Regarding amendment No. 164, the legal advice available suggests that this amendment is necessary to ensure the functions of medical officers remain in the Health Acts 1947 to 1953 and can continue to be performed by an appropriately qualified medical practitioner who is an employee of the executive and who has been specifically designated by the executive to perform these functions.

The Health Acts 1947 and 1953 set out specific statutory functions relating to the duties of a chief medical officer and a medical officer for health. This amendment is necessary to transfer these functions to the executive on establishment day. The amendment specifically provides that the duties can only be carried out by an appropriately qualified practitioner.

The Tánaiste says the Bill should not have surprised us because, she maintains, the contents were well known over the last 18 months. I dispute that contention. We did not know the content of the Bill, we did not see the heads of the Bill and we did not have a briefing on it. The Bill arrived unseen and, without a chance to examine it closely, we are being asked to remove large chunks of it again because the Tánaiste did not get her act together.

What on earth is this about? A Bill is produced without proper scrutiny. A flaw has already been found by the Minister and her team and we are now being asked to remove something which we have not had a proper chance to scrutinise. This is crazy. The Minister arrived to the committee and gave a little lecture about why it is so urgent. I do not accept that argument. It is wrong. We took this Bill in good faith and worked late into the night to try to figure out what is being proposed. We tried to do our job. I have no complaint about doing my job but we arrived at this meeting and the first thing on the agenda is that the Minister intends to remove chunks from the Bill and introduce something else. If the Minister for Health and Children believes this is the way to deliver good legislation, what would her view be if she was on this side of the House watching what is being done?

I am not challenging the issue because, clearly, it is the advice of her Department and it relates to medical officers. However, this is unacceptable. It is hard to proceed with this type of scrutiny when we find that chunks have been removed from a Bill which was not allocated a proper timeframe for debate in the first place.

We will not make much progress if we continue to make the same point. With regard to the overall argument Deputy McManus is making and has made previously in the House, I have had the privilege of being involved with a great deal of legislation in different areas. It is traditional, even with legislation that has been published for months, that many amendments are made even at the last minute. This time last year I brought the Personal Injuries Assessment Board legislation through the Houses. We published the heads of the Bill, consulted widely on it and the Bill had a long gestation period but there were still many ministerial amendments.

That is acceptable.

I have already told Deputy McManus that it is my intention, as Minister for Health and Children, to publish the heads of all Bills to give the Opposition an opportunity to study them and to revert to me about them. With regard to the Deputy's complaint that there was no briefing, I understood the Secretary General of my Department briefed the Deputy on the Bill. If that is not correct, I apologise. However, I spoke to him about briefing the Deputy and I understood that he had.

I asked to meet the Secretary General of the Department as a Member of the Dáil. I went to the Department and spoke about many things——

The Deputy said she did not get a briefing.

I spoke about many things.

The Deputy got a briefing.

I did not get the briefing. If I had wanted a briefing, it would have been a matter of a formal arrangement with the Opposition spokespersons. I spoke to the Secretary General about many things and I was glad the Minister agreed that I could do so. However, that was not a briefing on a Bill I had not seen. I had not even seen the heads of the Bill.

The Deputy had seen the heads; I had given them to her on the Tuesday.

The Minister gave me a draft with the caveat that I was not to take it as being the final Bill.

That was the Bill cleared by the Cabinet. The Deputy saw as much as any member of the Government, including myself.

We will move on. That issue is cleared up.

Amendment agreed to.

I move amendment No. 6:

In page 11, subsection (1), between lines 3 and 4, to insert the following:

"‘personal social services'—

(a) means services for persons with special needs because of old age or physical or mental disability, for children and young persons in need of special care and protection and for the families and carers of those persons, and

(b) includes residential care, day care centres, support services provided by social workers, services provided so as to assist persons to remain living in the community and services for persons with learning disabilities, persons with mental health needs, persons with problems of substance misuse, persons affected by HIV or AIDS, families needing help to bring up their children, children and young persons with mental health needs or emotional or behavioural problems, children and young persons with disabilities, children at risk of abuse or neglect and children and young persons at risk of, or involved in, criminal behaviour;”.

This issue was raised with my legal adviser and I referred to it on Second Stage. It is an important point and relates to personal social services. The amendment is my best shot at trying to define what is currently perceived to be personal social services.

It is important to define what personal social services mean. They are clearly no longer simply the services that have been previously defined in legislation, such as inpatient care, outpatient care, dental services and certain services that are provided for but do not cover the full gamut of services available at present. There is, for example, the issue surrounding social workers. There is a provision in the Child Care Act relating to the role of social workers but not in other legislation. Another example is respite care. That does not appear to have a statutory basis. I could be wrong but that is the best advice I have been given.

There is a statutory basis for the provision by health boards of some services, for example, home nursing, home help, employment training and technical aids for disabled adults. However, other services do not appear to fit within the statutory framework.

With regard to social workers, the position appears to be that on the abolition of public assistance provided by local authorities and the introduction of supplementary welfare in the 1970s, the remaining public assistance officers were transferred to health boards. However, the health boards in general and these transferred officers in particular, apart from dispensing supplementary welfare, were not given a specific social welfare brief. It would be odd if there were no statutory basis for the employment of social workers or the provision of services by them outside the context of child care under the Child Care Act.

The other question relates to physiotherapy, occupational therapy and chiropody. Are these outpatient services under the 1970 Act, which includes institutional services other than inpatient services provided at or by persons attached to a hospital or home and institutional services provided at a laboratory, clinic, health centre or similar premises? Where does respite care fit in? Is it deemed to be a form of home help for which there is statutory authority? Is the health board justified in providing or funding a day centre that provides activities such as recreational sport or leisure facilities outside a strict employment training context or technical aids for disabled children? Neither appears to fall under section 38 of the 1970 Act.

In the amendment I have tried to define the myriad social services that are provided. It does not mean there is an inherent entitlement to these services but simply states that these are the services the Health Service Executive can provide to community care areas and so forth. It provides the delivery of such services with a statutory basis.

By their nature, definitions include or exclude. Schedule One includes all the definitions from the relevant legislation. I am aware of the point Deputy McManus is making but if we take this road it will be restrictive rather than expansionary. Services for asylum seekers, refuge services, Traveller health services and civil registrations, for example, will be provided but they are not included in the definition.

I do not wish to take a nit-picking approach but we could be too specific and rigid and there are services which the HSE might well be providing a year from now that we cannot envisage today. Nobody in a committee such as this 20 years ago would have envisaged the provision of psychosexual counselling, substance abuse services, HIV services. Things change extremely fast in the medical area and if we are restrictive in the definitions of what can or cannot be provided by way of services, we are bound to exclude some matters.

With regard to eligibility for services, new legislation is being prepared which is a consolidation of current legislation. Eligibility and entitlement issues will be dealt with in that legislation which will be brought forward as quickly as possible. Because of the advice available to me, I am not in a position to accept this amendment which would be unnecessarily restrictive, notwithstanding the well intentioned perspective behind it which I understand. In fact, when I first saw it, I was tempted to accept it but when I received the advice about all the matters that would be excluded, I took a different approach.

This is an important issue in respect of which I find a lack of logic at the heart of what the Minister is saying. Certain services which are described in law will stand and be transferred by way of the Bill. On Second Stage I cited the case of a disabled person who would be entitled to an assessment as to whether health board services under the Rats and Mice (Destruction) Act 1919 were required to meet the needs occasioned by his or her disability. However, that same person will not be assessed as to whether he or she needs a speech therapist but, if so, there will not be a statutory basis for it.

I understand everything moves on but we are basing this definition on a totally outmoded set of services. This cannot be justified. I will be happy if the Minister wishes to add to the amendment as long as it reaches the point I am making. However, the services provided by health boards are not limitless. They are more complex than they were, which complexity should be recognised in statute, otherwise we will be producing legislation that will literally be out of date. When these requirements for health boards were made, I am sure they were different from those of 50 or 100 years before. We must move on and allow services which have developed over time to be placed on a statutory basis. In ten years' time we will have to amend the Bill to add other services. That makes sense.

To have up-to-date and appropriate legislation we should not be dealing with the Rats and Mice (Destruction) Act 1919 in the belief it will cover everything. We should be examining what is being provided, including the provision for refugees. I am sorry I did not include them in the amendment. That is a fair point; they have to be defined by health boards, otherwise they will not receive money to provide for them. It is a list.

That is correct; the list is included in the Schedule. If the Deputy looks at all the matters covered, there are 35 different parts, including refugees and domestic violence. The last element is all-encompassing; in other words, anything else that might arise. The health boards provide everything from crèches to facilities for the homeless. They provide a range of facilities that some would say are more appropriate to a welfare Ministry such as the Department of Social and Family Affairs. They do this for good reasons: because there are localised problems and we want to keep the all-encompassing approach without being too rigid.

The definitions cover 34 pieces of legislation while No. 35 is all-encompassing dealing as it does with anything else that might be prescribed from time to time as issues arise. I think that is a fair response to what the Deputy is seeking. By its nature, the definition the Deputy is suggesting would be rigid and inflexible. As she said, it would require amending legislation. If we were to insert a definition for everything covered in these pieces of legislation, it would be a legal nightmare to draft it. That is the advice available to me. While the intention behind the Deputy's amendment is correct, there would be legal complexities in seeking to do it in the manner suggested.

It is possible to frame such an amendment that would allow for a certain degree of flexibility and additional capacity, while still describing the current provision. As I want to pursue this matter on Report Stage, I will withdraw the amendment now and reintroduce it.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 11, subsection (1), to delete lines 21 to 23.

Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 to 5, inclusive, agreed to.
Amendment No. 8 not moved.
Section 6 agreed to.
NEW SECTION.

I move amendment No. 9:

In page 12, before section 7, to insert the following new section:

"7.—Subject to the provisions of this Act and the resources available to the Executive, the primary function of the Executive is to take such steps as are open to it to ensure that each person in the State is facilitated in availing of an individual entitlement to such health services and personal social services as are appropriate to meet the needs of that person.".

I have tabled this amendment because I am concerned about the nature and tenor of the Bill which is totally concerned with administrative and bureaucratic change. Even sections of the old Health Acts provided for entitlement, yet there is nothing right about this Bill. Even though we are now living in a very different world, it seems the Bill is out of date and does not acknowledge this change to ensure people are provided with health care. The amendment is not unreasonable; it would not allow for the provision of extra resources. In that sense, it would not create any difficulties. It would simply establish a principle.

The Disability Federation had hoped to have the following wording inserted: "that, in the performance of its functions, the Health Service Executive shall co-operate and co-ordinate with the voluntary and community sector where it is involved in activities similar or ancillary to the remit of the executive". The Minister should acknowledge the point that many promises have been made by the Government about partnership and inclusion. Papers have been published by the voluntary sector but I will not refer to all of them as I do not wish to delay proceedings on Committee Stage. It is interesting to read the Government's position on the voluntary sector, yet there is no commitment in the Bill to any kind of relationship, new or otherwise.

My fundamental point concerns the purpose of the legislation. I find it a little disturbing when I hear the Chairman, albeit sincerely and genuinely, repeating the point that the Health Service Executive will be concerned with providing patient care and improving the working conditions of staff. That is fine and nobody would argue otherwise. However, it is like mom's apple pie. Everybody wants to see these principles being met and these goals being achieved but there is no clear connection between these aspirations, the Bill and what is happening at an administrative level. Therefore, inserting a mission statement of this type does meet the need without creating difficulties. It also sets the requirement on the executive as to what it is all about. It may seem obvious but, unfortunately, because of the nature of this legislation, it needs to be put forward as an amendment and I hope the Minister will accept it in that spirit.

A couple of issues have been mentioned. This is purely about putting in place a new administrative management system for the health service, so I will not pretend it is about anything else. We are doing that so we can improve patient care and not for the sake of it. As we are all aware, changing administrative arrangements, particularly in an area as large as health where we employ 120,000 people nationally, is a major task, so one would not go down that road unless it was going to lead to clearer lines of responsibility, greater efficiency and effectiveness and so on.

Under section 6(5) the Health Service Executive is required, in performing its functions, to have regard to services provided by voluntary and other bodies which are similar or ancillary to the services the executive is authorised to provide.

As I said earlier, eligibility and entitlement will be dealt with in different legislation and it is an important area. I accept Deputy McManus is seeking to bring in a rights based approach, subject to resources. I welcome the words "subject to resources" because everything must be subject to resources. If we go down that road, it will not be the doctors who decide whether one needs a particular procedure, it will be the courts. Many things will be fought in court because while everyone is entitled to a hospital bed subject to whatever statutory charges are in place from time to time, everyone is not entitled to a heart transplant, a liver transplant or to particular procedures. If we adopt a rights based approach, I am advised it would effectively mean somebody could argue in court that instead of getting a by-pass, he or she should have got a transplant or whatever. It is not a route we can take for obvious reasons and it is not desirable that we remove autonomy from clinical independence to legal independence, as it were. That is exactly what would happen.

If we were to provide for a rights based approach here, a patient who was not happy with a clinical outcome or decision and who sought another clinical decision but was still not satisfied, could argue in court and effectively a judge would decide rather than a doctor. I accept the judge would take medical advice but it is not a route that would be wise.

However, the eligibility issue the Deputy mentioned will be dealt with in other legislation which will cover eligibility entitlement issues subject to resources.

God forbid anybody would go to court to win his or her rights. That is a horrific prospect but that is not the issue here because it is very carefully framed. It states "subject to the provisions of this Act and the resources available to the executive". What is being proposed is a common-sense but important statement for the purpose of this change and this Health Service Executive and it is a pity the Minister for Health and Children is going off on a tangent talking about the law making clinical judgments. That is not what this is about. If it was, I would have framed it in a different way. I would have talked about a rights based approach and would have ensured the amendment was worded in such a way to give people those rights. I think the Minister knows that as well.

When I looked at the subsection to which the Minister referred, all it said about the voluntary sector was that in performing its functions, the executive shall have regard to services provided by voluntary and other bodies which are similar or ancillary to the services the executive is authorised to provide. That must be the most mealy-mouthed reference to the voluntary sector I have come across for a long time. The White Paper supporting voluntary activity for which the Government is responsible, supports and about which it keeps making speeches states that it sees the community and voluntary sectors as essential partners in economic and social development, that an active community and voluntary sector contributes to a democratic pluralist society providing opportunities for development and so on. By its fruits, shall it be known.

This is about the relationship between statutory authorities and the voluntary sector which has built up over many years. It may be flawed but it has tremendous good in it and has been meeting the needs of thousands if not millions of people who are dependent on these services. The voluntary sector is hugely important and is an essential part of service delivery. Simply saying the HSE shall have regard to it sounds very small-minded. I regret I cannot pursue this but I presume I may be able to return on Report Stage with an amendment. Will the Minister consider my amendment because I will resubmit it on Report Stage if she does not accept it now? Will she look at the issue raised by the community and voluntary sector?

In regard to the voluntary sector, all but two of the hospitals in this city are voluntary hospitals. When preparing this legislation, some people suggested we get rid of the voluntary concept but I disagreed. The voluntary sector is enormous within the health care system throughout the country. What we are asking the executive to do is not to reinvent the wheel or provide services which are provided appropriately by the voluntary sector but to have regard to what is happening in the huge voluntary sector and to support it. In addition to providing services, the HSE must promote public health. It has a huge promotional and preventative role as well as a service role, so it has many functions. The Deputy's amendment is headed "rights based approach to health care services" and if we include that provision, these issues will, inevitably, be fought out in a legal framework, not a medical one which is not a good thing from anyone's perspective.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 are related and may be taken together. Is that agreed? Agreed.

I move amendment No. 10:

In page 13, subsection (4)(b), line 3, after “training” to insert the following:

"(which education and training shall, in the case of medical professionals, be provided by postgraduate professional training bodies)".

This is simply a technical amendment about facilitating the education and training of employees of service providers. The HSE will deal with everything in the health service. Obviously, some people working in the health service are trained in particular ways and to particular standards and have professional requirements which are different to others. I ask the Minister to accept the amendment to insert the words "which education and training shall, in the case of medical professionals, be provided by postgraduate professional training bodies" because it is an important issue, particularly relating to professionals.

I am well disposed to accepting the concept of the amendment. However, I do not want to confine training simply to the professional bodies. Although I do not know how fast, we are moving to what is broadly called "the paper free hospital", so there will be considerable technology training for all professionals. This amendment refers to training only by the professional bodies which in the case of a doctor relates to clinical issues. I am prepared to look at the concept behind Deputy McManus's amendment in regard to education, training and ongoing development before Report Stage.

I do not understand the problem with the amendment.

The advice is that it would confine training and further education to that provided by postgraduate professional training bodies. For example, in the technology area, it would not provide the opportunity for those who have technology expertise to come in and do training. I agree with what the Deputy proposes, but I want to have an opportunity——

It is only about medical professionals and medical training.

It refers to all training and has wider implications. I launched a project in Tallaght Hospital two weeks ago where there has been a good training project on the paper free environment and where at a patient's bedside, the doctor can order a laboratory test, X-ray or whatever and is not required to write up reports. It goes straight to the laboratory. That requires much training but it is not done by the professional bodies, for example, the IMO, but by other professionals. I accept the spirit of what the Deputy is saying.

A number of groups have expressed anxiety as to how this legislation will affect training. I realise the Irish Medical Organisation has been in contact with the Tánaiste and believe the Irish Nurses Organisation is anxious as regards the training of nurses. Within the administrative levels of the health boards training is ongoing but concern has been expressed within this group of workers too as to how changes may be implemented under the new administration. As the Minister pointed out, this issue just needs to be cleared up. That is why the amendment I tabled referred to the change provided for. I realise allowances are also to be made for changes in technology which will necessitate different training in the future for health service workers. However, much is happening as regards training across the entire health service, not just among doctors, nurses and other professions but also within the administrative levels. Such workers are unsure as regards the provision of training after the HSE has been formally established. That is the thrust of my amendment in this regard.

I will be happy to look at the suggestions made and introduce suitable amendments on Report Stage.

Will the Tánaiste elaborate on the idea of the paperless hospital? The idea of the paperless office has been tried for years but what has happened is that the amount of paper has increased enormously. However, if it can succeed, I am all for it.

I do not envisage it will be done between now and 2007, or anywhere near it. I am told that much less paper will be used in the future and that there will be much more technology. Even the the GP and the consultant may well interact in a much more technology-friendly way which clearly would be more satisfactory from the patient's viewpoint. That is the direction in which we are heading. However, the health service requires a major investment in technology to even reach the preliminary stage.

So does the Dáil.

I used to operate from a different office in Kildare Street. Now that I am working from here I have discovered we do not even have broadband, unfortunately.

Will it mean special IT arrangements for patients stuck in ambulances outside Tallaght Hospital because they cannot even get a trolley?

Why are we picking on Tallaght?

It is the Deputy's bailiwick, for which I have to speak up. They cannot even get a trolley or a chair.

Is this related to the group set up by the Department under the chairmanship of Mr. Lennon which is looking into IT facilities within the health service?

I am not familiar with the gentleman mentioned. What is the Deputy asking?

Is there a specific group within the Department looking at the use of IT in hospitals and the health boards which are all using different software?

I am sure there is such a group but I am not familiar with it. I know the HSE has appointed a member of senior management who will be responsible for IT which is good from everyone's perspective.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

We now come to amendment No. 12 is in the name of Deputy Twomey. Amendments Nos. 12 and 13 are cognate. Amendments Nos. 14, 19, 34 to 37, inclusive, 46 to 48, inclusive, 50, 51, 56, 61, 69, 71, 72, 83, 96 to 99, inclusive, and 139 are related. Amendments Nos. 67, 70 and 73 are cognate. Amendments Nos. 12 to 14, inclusive,——

This is very wrong. The Chairman cannot allow this. The amendments relate to different matters.

We are jumping to a different section.

It is just wrong and cannot be done.

The position is that we got this list morning. This is the advice from the Bills Office.

We are going from section 7 to sections 10, 14 and 22. We are covering four or five sections. Unless we go at a snail's pace——

I do not want to be heavy-handed. If members want to talk through each of the sections, I have no difficulty with this.

I do not mind amendments being grouped if they are to the same section.

If they are discussed section by section, that is all right. However, it is not acceptable to jump from section to section.

I move amendment No. 12:

In page 13, subsection (4)(c), line 5, after “Minister” to insert “or Dáil Committee on Health and Children”.

I have no difficulty with amendments Nos. 12 to 15, inclusive, being discussed together as they are related.

Is that agreed? Agreed.

The amendments have been tabled to ensure there would be accountability to the Dáil which is ultimately responsible as regards the health service. Under the health board system accountability has been removed from the professional bodies, county councillors and voluntary groups. It is now vested in the Houses of the Oireachtas and the Ombudsman. The purpose of these proposals is to make it crystal clear that anything to do with the Health Service Executive would be made known, either to the Joint Committee on Health and Children or in replies by the Minister to questions tabled by Deputies as regards the HSE in the Dáil.

I am well disposed to the concept behind a number of these amendments as regards parliamentary accountability. In the first instance the CEO will be the person accountable. He or she must report to the Committee of Public Accounts for how the moneys given by the Oireachtas are spent. In addition, the HSE will have a parliamentary division. How it will deal with parliamentary queries is being looked at. Many of the amendments would put the onus on the Minister if a direction was given to the HSE. However, it is reasonable that this should be made known to the Oireachtas or an Oireachtas committee. I suggest we come back to this issue on Report Stage.

Many of the matters mentioned in the amendments are dealt with under section 42. In other words, there will be an onus on the board in terms of its annual report. As I know Deputies want to go beyond this, I am happy to examine how this may be done, either by way of primary legislation or statutory instrument as there are many issues we might not envisage. It is also desirable that the CEO of the HSE or other management personnel should come before the relevant Oireachtas committee and that accountability is not the preserve of the Committee of Public Accounts on an annual basis. There should be an opportunity for representatives of the HSE to come before committees of the Oireachtas to engage with parliamentarians. I am well disposed to making this possible.

During Second Stage I wanted to make it clear that we did not want to see the HSE taking the same direction as the National Roads Authority which can come before the Committee of Public Accounts and which may be requested to appear before the Joint Committee on Transport. However, the Tánaiste must realise that it can take a long time — a month or two — before someone can appear before a committee. We need something clear-cut, not just a unit within the HSE which will decide what it will or will not give parliamentarians. It is paramount that any information requested is given to Deputies as clearly and concisely as possible.

Much of what the Minister has to say about accountability to the Dáil amounts to a fudge because the HSE can avoid coming before committees or postpone such encounters. The sheet of questions which the Tánaiste will answer tomorrow afternoon could be reduced significantly if the HSE is established in the way proposed. My amendments would make matters absolutely clear as regards what would be the responsibilities of the Minister and Oireachtas committees as well as each Deputy to the constituency he or she represents. Nothing in the primary legislation makes this clear. When it comes to the crunch next year, we may be denied much information. I want to ensure we would have access to the HSE in the same way we have access to information from the health boards at present.

I fully support Deputy Twomey. Major difficulties in terms of accountability have not been addressed and, unless that happens, we are headed for a period of secrecy regarding the health service.

When the legislation was published, many organisations involved in the health service felt marginalised and sidelined because there was no time for consultation. Their feeling of exclusion from the process in which we are engaged is understandable. That will be amplified unless practical measures are inserted in the legislation. Deputy Twomey has provided for many of them, although there could be difficulties to which I will refer later. If, for example, a parliamentary division is provided within the HSE, will it have a statutory basis? The remainder of the executive's divisions and responsibilities are provided for and there should be a statutory basis for the parliamentary division.

The first annual report will not be required of the HSE until April 2006. Annual reports are nice and they look lovely. However, they always paint a good but not necessarily true picture because they are published with the advantage of hindsight. There will be difficulties with the flow of information not only to public representatives and the Tánaiste should take this issue on board because it is not only about us. When the health boards were in operation, they had to produce information that was accessible to the public. For example, a report was provided by the board and the media could attend board meetings. The media have been extremely important in providing oversight on the health service along with public representatives. That will be no more but it is important to understand the way the system worked until now. A statutory instrument will be introduced but we cannot debate it and, therefore, we will not know what it contains nor will we have an opportunity to scrutinise its contents.

When the Minister of State responded on this issue on Second Stage, he may have had his tongue slightly in his cheek when he stated nothing would change and Members would receive replies to parliamentary questions, as is the case currently. Parliamentary questions directly relevant to health boards are referred to them and then disappear for months. If we are lucky, we receive something back. However, they go totally outside the framework of the parliamentary questions system. It is not as if the current system is satisfactory. However, under the legislation it will become more unsatisfactory because the HSE is taking on a giant role compared with the Department.

As Deputy Twomey stated, we will be dependent on a system that has produced the National Roads Authority, which is accountable to nobody except the Minister, similar to the HSE. An Bord Pleanála, for example, meets in secret and is also accountable only to the Minister. It is the last bastion of Stalinism in this country because one cannot get answers and it is not accountable. It is easy to see the HSE under pressure because it will close its doors and will be in a difficult position.

My only caveat about these amendments is that from the outset, I have expressed my concern with the notion that this committee should have the major oversight role. That will put an onus on the committee. If that should be the committee's role, it will have to change significantly. Time will have to be found for us to carry out that role and work. The HSE will meet in secret and it will not be required to provide information to the committee on service plans, reports and so on. Unless these amendments are made, there will be a serious democratic deficit.

My amendments in this group relate to later sections but I refer to the issue of accountability. If the Bill is passed without amendment, the notion of accountability will go out the window. The committee will have the right to ask the chief executive officer of the HSE to appear but the major question is whether the chairperson or the committee will have the independence of mind to do so because it is not mandatory. The Minister could lean on the committee not to do so. I do not cast aspersions on anyone but that is the political reality. It could transpire that nobody will appear before a committee. No mandatory provision has been made and that is poor form. My amendment was in addition to the requirement to come before an Oireachtas joint committee, but that is up to the committees, which is wrong. There must be accountability.

The corporate plan can be amended by the Minister and laid before the House but we cannot have an input into it. There is, again, a lack of accountability. The Minister can approve or reject the plan but we have no say in that. Similarly, we cannot debate the progress reports and, therefore, Oireachtas Members will be out of the picture completely. As I stated 18 months ago when the legislation was mooted, certain questions would be off limits. The democratic input is diminished in the legislation and the Tánaiste has not tabled amendments to address that problem. This is the major problem with the legislation, which we have tried to address through our amendments. The Tánaiste stated she would be amenable to certain amendments. Does that mean she will examine amendments relating to accountability because this is the crux of the problem regarding the legislation?

More quangos are being set up in the State and they are being given more power. People then say politicians do not have much power but the Government parties are giving more power away. They have stripped powers from local authorities and they are stripping powers from the Parliament. The buck stops with the Tánaiste. We are in the minority but we must put forward sensible suggestions. She can choose to ignore them but if she does, accountability will be a thing of the past in the area of health reform.

I support my colleagues. I did not agree with the abolition of the health boards. I was a health board member for seven years and we held the chief executive officer accountable on a monthly basis regarding what was happening within the board. If accountability is not maintained in a similar manner, there will be dissatisfaction among people accessing the service at the coalface because they will not get responses to their concerns. There may be a crisis in the health service but if people cannot get responses to their concerns at various levels, there will be a great deal of dissatisfaction about the delivery of the health services.

Six years ago, when I was a member of the health board, I raised an issue about attention deficit disorder. I was informed at a meeting that there was no such issue, that it was as a result of bad parenting. I continued to raise the issue at a number of meetings which groups attended. The local health board subsequently changed its mind, produced a report on it which identified the problem and it put services in place. This facility will not now be available, which is an example of what I am talking about. If someone has a complaint, can it be resolved quickly at local level, or when one contacts the service providers, whether the hospital, consultant, orthodontist or whatever, will they say that one should write to the health executive, and people will be left languishing and waiting for a reply for months?

It is important to consider Deputy Twomey's amendment because I am not confident that people will attend the committee if required to do so. Last March, we requested the then Minister for Health and Children to come to this committee before the summer to debate three issues, but we are still waiting for this to happen. Perhaps the current Minister will come on the first anniversary of that request. I appreciate that she must familiarise herself with her brief, but she was a member of the Government during the period to which I refer. It is frustrating and we hope the Minister will come here to debate these issues. If the Minister, who is politically accountable, does not come here, can we expect the chief executive officer of the health service to come in, particularly if it is not legislated for as suggested by Deputy Twomey? I am not trying to make a political point. I am expressing a genuine concern in this regard.

There was much criticism of health boards and many people suggested that politicians should not be members of these boards. This is fine if health boards are replaced by a better system. I am not sure the level of accountability here is a better system than what operated in the past. Any amendments that would result in the level of accountability that existed on a monthly basis should be considered. Very often between 15 and 20 items had to be discussed regarding the delivery of health services in the Mid-Western Health Board area. Where will this information be disseminated in future? If it is disseminated in this committee, it will be done by a very small proportion of the 166 Oireachtas Members. It may be fine for those who are members of the committee, but it will not be satisfactory for Members of the Oireachtas who are not members of the committee and who will not be in a position to attend committee meetings. It may be fine in theory but, in practice, the close relationship between Oireachtas Members and local government members in respect of what is happening within the health service on a daily, weekly, monthly or developmental basis will slip and the health services will resemble the National Roads Authority.

I have great sympathy for the points of view expressed for a whole host of reasons. However, there is a misnomer about the health boards. The 1996 Act moved many of the functions and powers of the health boards to the Executive. Health boards had much less power last year than they had in 1995 and 1996.

That does not make it right.

It was done for a reason. I was not party to the decision because I was a member of the Opposition. The same happened in respect of local authorities. Sometimes when powers are given to groups of politicians, they are not exercised. In 1994, when power was given to local authorities to issue taxi plates, Dublin City Corporation issued nothing, which caused major problems. Power can be used but it can also be abused.

I am sympathetic to the points of view raised. The current situation is very unsatisfactory. Since moving to the Department of Health and Children a number of weeks ago, I am conscious of the huge volume of parliamentary questions to which the reply is that it is a matter for the health board to which the Deputy's query is being referred. I want to change that process.

I recall tabling two similar questions, one of which was answered by the Minister and one was sent to the health board. I can show the Minister copies of these letters.

From the points of view of Deputies, the Minister and the Minister's staff, much time is wasted on this process simply because Deputies cannot obtain information. When I first came to this House in the early 1980s, the largest volume of parliamentary questions were to the Department of Social Welfare. There were hundreds of questions each day about when people would receive their benefit. The Department modernised, introduced new technology and within a couple of years Deputies did not have to table questions. They could ring the Department and get the information. I want to see that happen here because the current process is unsatisfactory. I also intend coming before the committee. I was due to come before it but unfortunately I had a bad flu. I discussed with the Chairman the idea of coming before the committee at least once per term and, I hope, more often if required. I am more than open to that because there are many issues on which we could have a good engagement with each other.

I would like to come back with a number of amendments on Report Stage, taking on board what has been said in regard to accountability. It should be possible for the board to publish its minutes, which is not unreasonable. It should be possible that if a Minister gives a direction to the board, that should be made known to the Oireachtas and the relevant parliamentary committee. It should be possible that within reason — we need to think about this — if this committee, its successor or a committee of this kind, wants to invite in the CEO, the chairman of the HSE or a particular manager to talk about community services or hospitals, they should be required to do so. I am more than open to taking on board much of what I heard opposite. We do not want bureaucracy for the sake of it, but we want accountability. We want the HSE to be seen in every sense to be acting differently from the current regime for a whole host of reasons. As a unified system, this should be easier.

Many of the questions I received from Deputies over the last couple of weeks related to a lack of uniformity throughout the country. This is inevitable if there is discretion in the case of medical cards, for example, where the CEO of the health board can examine particular hardship cases. This is interpreted differently by different people, which is natural. If one gives discretion to 11 different people, one will get seven or eight different interpretations of the process. For a host of reasons, there will be greater clarity, uniformity and consistency, which will be good from the point of view of the public. I am open to the suggestion of the CEO, other senior officers and the Minister having to report to the committee, including directions being given on a change in board membership and so on. On the parliamentary questions issue, the HSE should move to a system similar to that which the Department of Social Welfare adopted almost 20 years ago. I hope to come back with amendments in this regard on Report Stage.

I welcome what the Minister said and I look forward to her amendments on Report Stage. It is important, however, to make a couple of points. First, 27 amendments have been bunched together here. These cover a range of issues, including reports to the committee, other committees, the presence of the CEO and what the CEO can say. Because they have some tenuous connection with the Select Committee on Health and Children they have all been bunched together. This is not a good omen. I ask the Chairman to raise this with the Bills Office. If the committee is to take on a substantial role in overseeing the health service, this is a bad way to begin that process. The implication of bunching these amendments together is "Sure, this is only the Oireachtas committee and we will just get it over with quickly".

If there is a better feed of information, that should be translated into the Bill in some way. The parliamentary question is not simply concerned with people being entitled to a medical card.

I know that.

It is concerned with significant information which, if that mechanism is not used, is withheld from the public. For example, even with the best effort in the world, it took a freedom of information request to get accurate information from the Department regarding the additional beds announced by the Minster and her predecessor. When the Minister was asked if some of these beds were trolleys and couches she replied in the House — I presume through inexperience — that they were all beds. It took a journalist using the Freedom of Information Act to get the true picture and to find that the definition of a hospital bed within the Department of Health and Children includes trolleys, couches and so on. This is simply an example——

The 600 beds were beds.

——of how difficult it is to get information of public interest that enables us to do our job and to have some small influence on making the health service better, which is what we want. It is difficult now to get information, even with the facility of a parliamentary question. If we are to have a parliamentary division in the Health Service Executive it should be established by statute and bound by a requirement to provide information within a reasonable time. That would make an enormous difference to the accountability of the executive.

It would also satisfy Deputy Neville's objection that not all Members are on this committee. Deputy Gormley has had to leave this meeting because his party has put down a motion for Private Members' time this evening. Members of this committee have difficulty always being present and other Deputies and Senators who are not members of the committee would like to be present. The parliamentary division should be defined in law and a reasonable timeframe specified for providing information. It should not simply be about who gets a medical card but about what is happening in the health service, whether money is being spent wisely and, most important, whether patients' needs are being met. That would make a vast improvement to the Bill.

I welcome what the Minister has said. Accountability is important. Since taking office, the Minister has been very innovative and open. The fact that she said what she did some moments ago is very welcome. The Minister's suggestion that senior officers of the HSE would be available to be questioned by this committee is a good one and I urge her to follow it through.

Some members have made the point that this is a very small committee, and that is true, but any Member of the Oireachtas is entitled to sit in at any meeting of the committee. Is that not correct?

That is not practical. The point has been made that some members of the committee have had to leave this meeting.

A Member of the Oireachtas may not vote at this committee but he or she may certainly attend.

Amendments Nos. 12 and 13, which I have proposed, would not be difficult to implement. I accept that amendment No. 14 may be so, and I am happy to discuss it again on Report Stage, but I see no difficulty in making the change to section 7 now. There does not appear to be anything major binding on the HSE in this regard.

Absolutely.

Amendments Nos. 12 and 13 could be accepted now. There is no need to discuss them again on Report Stage.

I have not received advice on these amendments but I will accept them now. I take seriously what Deputies are saying on these issues. Their suggestions are sensible and practical, and I will accept these amendments.

I withdraw amendment No. 14 so that the Minister can also consider the practicalities of accepting that amendment. I accept that some projects undertaken by the HSE might need discussion. However, I see no reason in principle that these cannot also be laid before the committee. Such projects might include the emergency helicopter project involving two jurisdictions. I do not see why many of these projects could not be laid before the Dáil health committee.

Amendments Nos. 12 and 13 would require the HSE to provide advice for the committee as well as the Minister. I will accept the amendments in a spirit of good will. If there is a problem I will deal with it on Report Stage. They seem reasonable to me but when a lawyer gets his head around legislation it can be found to mean something different from what we think it means.

Amendment agreed to.

I move amendment No. 13:

In page 13, subsection (4)(c), line 6, after “Minister” to insert “or Dáil Committee on Health and Children”.

Amendment agreed to.
Amendment No. 14 not moved.

I move amendment No. 15:

In page 13, between lines 32 and 33, to insert the following subsection:

"(9) In the performance of its functions the Executive shall co-operate and co-ordinate with the voluntary and community sector where it is involved in activities similar or ancillary to the remit of the Executive.".

The purpose of this amendment is to ensure that the HSE works with voluntary bodies which currently work with the health boards. Deputy McManus has touched on what I wished to say on this matter. I will withdraw this amendment on the understanding that the matter will be dealt with on Report Stage.

Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
SECTION 8.

Amendments Nos. 16 to 18, inclusive, and 31 and 49 are related and may be discussed together. Is that agreed? Agreed.

: I move amendment No. 16:

In page 13, between lines 37 and 38, to insert the following subsection:

"(2) Notwithstanding the terms of any agreement undersubsection (1), the Executive and the public authority shall, when requested, provide all information to the Minister in order to enable him or her to furnish a full reply to a Parliamentary Question.”.

This amendment would require the Minister to give a full reply to a parliamentary question. When we discussed section 7 we called for the HSE to be responsible to a Dáil committee. These amendments call for the executive to be obliged to furnish information for a ministerial reply to a parliamentary question. I have made allowance for subsection 8(1), which allows for information to be withheld from a Deputy where it relates to matters coming before the courts or a tribunal of inquiry. Apart from such circumstances, this amendment makes clear that the executive is fully responsible to Dáil Éireann and that Members are entitled to full answers to parliamentary questions. It follows from my previous amendment.

I will come back to this entire general area. However, the term "full reply" is subjective. I am sure many Deputies would argue that they do not always receive full replies to questions. Once we put things like this into law we get into difficulties. Nevertheless, I will come back to this issue of parliamentary accountability.

What is wrong with giving a full reply?

I said the term "full reply" is subjective.

It can be made as detailed as possible.

A one line answer could be a full reply while a ten page answer might not be. The shorter ones are usually more detailed.

If the Minister undertakes to return to this question I will withdraw the amendment.

I will. I understand the point being made.

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.

I move amendment No. 17:

In page 14, between lines 37 and 38, to insert the following subsection:

"(4) Notwithstanding the assignment and delegation of duties and functions under this section, the local authority, the Executive, and any employees concerned shall, when requested, provide all information to the Minister in order to enable him or her to furnish a full reply to a Parliamentary Question.".

This amendment applies to local authorities or other organisations to which the HSC has delegated duties. It is important Members are entitled to clear information in response to parliamentary questions. The issue arises in the context that, previously, there were 263 people on the boards of the ERHA and health boards, the source of information for public representatives for the past 30 years and that has been done away with. No matter what is said about the consultative fora being set up, the only statutory group that can obtain information from the health services will be Members of the Oireachtas. I would like it to be clarified that Members can obtain information from local authorities or any other organisation to which the HSC delegates functions. Section 8 applies to the Executive.

The Deputy's point is covered by what I said earlier. I will review the issue of parliamentary responses and hope to introduce something meaningful on Report Stage.

Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.

I move amendment No. 18:

In page 15, subsection (5), line 16, after "Act", to insert the following:

", including a direction to provide information to the Minister necessary to enable him or her to furnish a full response to a Parliamentary Question".

The Executive must, under this Act, comply with a direction given to it by the Minister. I am seeking that such information also be available to Members of the Oireachtas, if requested. However, I will withdraw the amendment at this point.

Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Question proposed: "That section 10 stand part of the Bill."

A number of issues such as parliamentary questions and ministerial directions are covered by this section. I am concerned we are disregarding these issues on the basis that the Minister will come back on Report Stage with amendments to cover them.

In fairness, one could not argue they are not related to what we are now discussing. In other words, Deputies may not introduce new issues on Report Stage. The issues now being discussed cover parliamentary accountability, directions by the Minister and publication of minutes.

Publication of ministerial directions.

The Minister referred to the Department of Social and Affairs in the context of accountability. I agree Members find communications at that Department to be very satisfactory. However, my experience of the Mid-Western Health Board has been anything but satisfactory in that, in terms of personal representations rather than general representations, a line is taken that is not one's business if one makes personal representations on behalf of people who do not have the wherewithal to deal with a very complex system. Issuing Members with replies asking them not to make representations on where a particular person is on a waiting list is not helpful to the person who cannot access the system. That has been my experience of the Mid-Western Health Board in the past few years, a matter which I raised with the Minister during the Second Stage debate. I will not go into detail on the matter as it is already on the record and would waste time now. We should try to avoid situations where those on high dictate to others on the ground and refuse to accept the representations of intermediaries, be they public representations local or national or any other body — hopefully not their lawyers — on behalf of those who do not have the experience or confidence to deal with a complex and often authoritative system.

One has to distinguish between two categories of queries. Basic information relates to a person asking a public representative, Deputy or Senator, to inquire as to his or her position on a waiting list and so on. It is reasonable that such a Deputy or Senator be dealt with in a reasonable manner and provided with the information requested. Obviously, I would distinguish between broad information, clinical judgment or private information relating to an individual's circumstances. I would like to see a situation where the HSC, as a matter of routine, will have a division which will supply information to Deputies or Senators making inquiries on behalf of patients in the context of where they may be on a waiting list or when they might expect treatment.

Such information is being refused.

I know. We want to move to a situation, as I outlined earlier, such as obtained 20 years ago in relation to social welfare queries. Technology has a part to play in the giving of information. To be fair to the health system, it has not had a modern technology-based administrative approach as it has not received the required investment. We must move to a situation where information of the type required by Deputies can be obtained quickly by telephone or by e-mail rather than through the tabling of a parliamentary question.

Question put and agreed to.
SECTION 11.

Amendment No. 24 is an alternative to amendment No. 23. Amendments Nos. 20 to 27, inclusive, may be taken together by agreement.

I move amendment No. 20:

In page 15, subsection (1)(a), line 20, to delete “including” and substitute “consisting of”.

I have a difficulty with the Chairman's statement that the amendments are related. Amendment No. 20 has nothing to do with the subsequent amendments. I am being pedantic; they are not related and should not be taken together. The matter is a small one, a legalism and it is pedantic, but to ensure the provision is grammatically accurate the word "including" should be substituted with the words "consisting of".

Can the Deputy repeat that?

The provision as drafted states that the board consists of 11 members which include the chairperson and ten ordinary members. The words "consisting of" is the correct grammatical term. The word "include" implies there are more people and that one and ten do not make 11. I know it is pedantic but it is correct.

I know the point the Deputy is making in terms of the English language. The law and the English language are sometimes not compatible. I will seek the Parliamentary Counsel's advice for Report Stage.

I will re-enter the issue on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 15, subsection (1)(a), line 21, to delete “appointed” and substitute “elected in accordance with regulations made”.

This amendment is clumsily drawn up and I apologise for that. My intention is that there should be elected members on the board, not that they should all be elected. The amendment is not properly worded. It is important the board include people drawn on a democratic basis from within the service. A drawback of the particular arrangement now proposed is that it is solely ministerial appointees who will operate and have responsibility for €11 billion funding. I am sure private individuals are worthy people but it would be helpful if some of them had the mandate of constituency groups within the health service. This is one of the great deficiencies of the board. I presume the Minister will turn down this because of her view on these matters. If we are not to have the increasing conflict that seems to be building up in the health service, the issue must be addressed. People feel the idea of partnership has been thrown out the window and that the only way to be heard is through a conflict rather than through partnership,

The Deputy is obviously able to look into my heart and anticipate my response correctly. The board is not going to be representational in any sense. It will be a board of competent, experienced people, including some experts drawn from a wide range of individuals. My predecessor, not I, was involved in the appointment of the current board, but it is a terrific board in terms of the balance within it, both from a gender perspective — three out of 11 may not be fantastic, but they are three powerful women — and in terms of the range of expertise.

I do not think elections always produce the wrong people, but they do not always produce the right people. Elections, by their nature, produce representational individuals. The number of health care agencies we have for a population of 4 million is an industry in itself. With the abolition of the health boards and the rationalisation of the plethora of agencies set up in this area we are seeking to put a new management structure in place. Clearly, at advisory panel level there will be a role for the different stakeholders in the health care system.

This morning I met the partnership forum which, I understand, has been in existence for five years. There are some wonderful initiatives between employees at different levels in the health care system to have a more innovative approach to working practices etc. There is a huge role for those who work in the health care area to be involved in advisory panels or other expert areas, but not to be elected directly onto the board. We cannot have some people elected and others appointed. That is not a good principle in this situation. Therefore, I cannot accept the amendment.

I will return to this issue on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 22:

In page 15, subsection (1), lines 23 and 24, to delete paragraph (b).

This amendment proposes to delete paragraph (b) which states that the person who holds the position of CEO is by virtue of that position a member of the board. My amendment puts forward the proposal that the CEO should not be a member of the board. This would be a better way of managing the system. There seems to be an argument that with regard to State boards in general there should be a separation between the role of the board and the CEO. There is a danger that the board will be compromised if the CEO is on the board.

I see no problem with my proposal. It is good management practice and I ask the Minister to take it on board. It would mean a clear separation between the two. It is also a better way of ensuring what will be a major role of the board, namely, to make sure the CEO is carrying out his or her duty. I do not understand the argument for having the CEO on the board in any case.

There has been a global debate on this issue. It goes way beyond this organisation and Ireland. It is generally accepted that it is good governance and good corporate practice to have the CEO as a member of the board. It is accepted as bad governance to have an executive chair, in other words to have the two roles in one person. The argument for both can be made, but I think it is not good practice to have the CEO outside the door when the board is having its meetings. Nor is it good for the CEO to be brought in on a different basis to everybody else. For example, to have anex officio membership of the board on a different basis to everybody else is not good practice. I accept it can be argued both ways.

If any conflict of interest arises, for example, if the board wanted to discuss matters to do with the CEO or if conflicts of interest arise with regard to any other board member, they would have to exclude themselves. Other than that situation, it is good corporate governance to have the CEO as a full member of the board. From a practical commonsense perspective this would lead to more effective management rather than for the CEO to be completely distinct from the board. Rather than having a kind of us and them view between the CEO and the board, it is better for the HSE if the person charged with running the organisation operationally on a day to day basis has the same status on the board as other board members who are there on a voluntary part-time basis and are clearly not in a working arrangement situation.

The Minister's stating of her opinion is obviously the case or otherwise it would not be this way in the legislation. However, this is not sufficient justification. There is no question of keeping the CEO out of the boardroom. The idea is that the CEO would not have the same role as a board member. That role would be separate and would be accountable to the board. If there was any conflict of interest, the board would be automatically protected by the fact that this person would be anex officio rather than a full member of the board.

The situation is interesting. Currently we have no CEO. The Minister thought she had a CEO, but she does not. She has an interim CEO who was the chairman but will no longer be chairman because he has the view that there is a difficulty in being both. There is an issue. It may never arise as a problem, but it could. The dual role of a CEO as board member could be a problem. It would be much better to define the roles separately and have the board as a management board and the CEO acting in anex officio capacity. I do not see this as a problem. It is a safeguard which is a better way of creating the new structure than the one proposed.

One can argue this both ways. With regard to the interim CEO who is the current chairman, the issue is not that a person could not do both. In my view it would be wrong for somebody to do both. I do not agree with the principle of executive chairmen and believe they should be distinct, different individuals. However, on balance it is better to have the CEO at the board on the same basis as all the other members around the table. This has been common practice in most legislation over the past number of years and across a host of State bodies. It used to be different, where we either had executive chairs where the chairman and the chief executive were the same person — thankfully we are moving away from that as it is not a good model as is accepted generally — or theex officio model. In most situations across different areas of Government activity, and across different Governments going back ten years, we have made the CEO a member of the board. On balance it is probably in the best interest of the organisation that this would be the case, rather than that he or she be at a lesser or lower level. There are merits to both sides of the argument.

On a point of information, is there an amendment to the Bill to ensure the CEO does not become chairman?

Yes, it is in the Bill. If the chairman is indisposed for any reason, the board must appoint somebody other than the CEO to be its chair. It is in the section dealing with quorum and procedures on page 57 which states:

(1) The quorum for a meeting of the board is 5.

(2) The chairperson is to preside at all meetings of the board at which he or she is present.

(3) If the chairperson is absent from a meeting, or if that office is vacant, the members present at the meeting shall choose one of themselves, other than the chief executive officer, to preside.

That is welcome. If the chairman is being replaced, does the Minister appoint the chairman?

Yes, the Minister appoints the board of the HSE.

Does the board not elect a chairman?

Under the current proposal the Minister appoints the chairperson. Responsibility for appointment of the chairperson rests with the Minister. An interim arrangement applies at present and notwithstanding the power I felt it was better if the board members recommended somebody to me for formal appointment during the interim period.

I appreciate that point but a chairman will be there for a certain period. I am not really interested in how the Minister will operate this because I trust her. What I am interested in is how future Ministers will do it.

If Fianna Fáil gets its hands on it.

That is an appalling comment.

Slow down.

I appreciate the point made by the Deputy.

Who will appoint the chairman in the future?

The Minister of the day. There are very good reasons that should be the case. The role of chairman is much more time-consuming than the role of other board members, particularly in an organisation such as this. The Minister of the day would have to be satisfied because the Minister has political accountability. The Minister would need to be confident the chairperson has both the time and the skills set and determination to do the job. It may well be that a Minister of the day would put certain people on the board because of their perspective or expertise or to give balance but may well take the view that the person——

Or political affiliation.

——In fairness to my predecessor the vast majority of the people on the current board——

They are all from Cork.

Their political affiliation is unknown. They are not from Cork; one is from Cork.

That is an interesting answer. The vast majority, but not all. I am not interested in what the Minister's predecessor did and, I am not too worried about what this Minister will do because I trust her. What concerns me is what may happen with people who are now unknown who will become very powerful in the future, both on the board and in the Minister's position. I want to ensure that this legislation provides safeguards on those issues.

The Minister appointed a chairman, her CEO went missing and she has now appointed her chairman as CEO.

He is not missing——

He never came. We called out for Bonnie Prince Charlie and he never came. The Minister appointed her chairman as CEO. Has the Minister a safeguard in place to ensure that a future Minister does not appoint the CEO as chairman?

The legislation provides that the CEO cannot be the chairperson.

Even if appointed by the Minister?

No, he cannot.

Is the Minister sure of that?

The legislation prohibits the CEO. It is as I read it out.

That is only if the chairman is indisposed. I mean as an arrangement that a Minister decides.

That is a good point. We will look at that. I am advised that the CEO can never act as chairman of the meeting.

No. He can only not act if the chairman is indisposed and the board wish to select a chair. Where in the Bill does it state that the Minister cannot appoint the CEO as chairman? That is what I want to know.

It may be section 11. We live in a democracy. Governments are elected and Ministers have responsibilities. They can make some decisions and if people do not like them, they can boot them out or they can vote them down in the Oireachtas. Discretion is there to be used. I refer the Deputy to section 11(1):

The Executive is to have a Board consisting of—

(a) 11 members (including the chairperson and ten ordinary members) appointed by the Minister in accordance with this section, and

(b) the person holding the position of chief executive officer who, by virtue of that position is a member of the Board.

We have discussed the constitution of the board. The chairperson comes from the 11 members of the board. In other words, the chairperson comes from section 11(1)(a). The board becomes 12 by virtue of the CEO.

Is the Minister satisfied that provides her with legal protection?

I am not a legal expert but I think it is clear that 11(1)(a) defines the chairperson and section 11(1)(b) defines the CEO and brings the board to 12 in number.

It does not say they cannot be the same people. I apologise for being so tight on this point.

The word "and" is used, not the word "or". In other words the board has 11 members, including the chairperson.

I will have another look at the section.

It could be interpreted as that the chief executive could be subsequently appointed from the board.

Then he would cease to be one of the 11 and he could not be the chairperson because the chairperson has to come from section 11(1)(a). The CEO has to be appointed subject to the public sector recruitment procedures. It is not a case of coming in and firing the existing person and deciding——

That is not what concerns me. I am concerned about——

The Deputy is concerned that the CEO should become the chairman.

It happened in the FAI.

I will make sure the matter is clarified. I think it is very clear reading the Bill that the chairperson comes from section 11(1)(a).

I will return the amendment on Report Stage.

Amendment, by leave, withdrawn.
Sitting suspended at 12.57 p.m. and resumed at 2 p.m.

I move amendment No. 23:

In page 15, lines 25 to 30, to delete subsection (2) and substitute the following:

"(2) Election of members of the Board shall include election by panels of professional and staff interests.".

I will need to withdraw the amendment as the Minister has refused to even acknowledge an important role for elected members exists. I plan on tabling a similar amendment on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 24 not moved.

I move amendment No. 25:

In page 15, subsection (2), line 30, after "functions" to insert the following:

", and

(b) the details of each person’s suitability and expertise have been laid before each House of the Oireachtas”.

We had a brief outline of what each of the members of the interim health service executive did. The HSE will be akin to an all-Ireland version of the ERHA, where the expertise of each to the ten members was available to some degree. We should have a biography of each of the board members placed before the House so that we can understand why such people are chosen as being suitable to manage a health budget of €11 billion.

I support the amendment, which may not go far enough in terms of what we are capable of doing if we are given statutory powers to interview candidates for these positions. Political affiliation should be included when it comes to defining these individuals. While I would need to check the record to see the exact words used, I noted that the Minister this morning made a rather startling comment about the vast majority of board members not being there on merit and some may have had political connections to get on the board. We will have to see what the "blacks" contain in that regard.

My understanding is slightly different. I believe the Tánaiste stated that all were there on merit and that some may have had political affiliation.

She said the vast majority were picked on their ability to do the job.

It was a very informative if rather unexpected comment.

Life is full of surprises.

While the Deputy can make jokes about this sort of matter, we all know what happens. When a system is open to corruption and patronage it will become a system of corruption and patronage. While I do not attack any political party, that is human nature. It is important that patronage is removed from the system. Fianna Fáil, which has been in power for longer than any other party, has developed all sorts of habits as a consequence. I understand that the chairman of the board is paid a salary of €100,000. I do not know the level of expenses given to the members of the board. I would be interested to know whether an allowance is given to members of the board or if they do it for love. Given that the proper checks and balances have not been put in place, I cannot agree with the proposal to transfer responsibility for the health service, on which billions of euro are spent, to 11 private individuals. We should be given details about the individuals in question. Why does the Minister, who is not accountable to anybody or anything other then her own conscience or ideology, think they should be the subject of the most significant appointment that can be made in the health service?

After this Bill has been enacted, the people in question will no longer be seen as private individuals because they will have been appointed to public offices under the legislation, which states that they should have, in the Minister's opinion, "sufficient experience and expertise relating to matters connected with the Executive's functions to enable them to make a substantial contribution to the performance of those functions". A statutory requirement is being imposed on the membership of the board. The committee is familiar with the constitutional requirement on Members of the Seanad, who must have knowledge and practical experience of a particular vocation before they can contest a panel election. It is unusual for the Oireachtas, in any legislation, to prescribe a qualification for membership of a board, but that is being done in this instance. It is not being left simply as a matter of ministerial discretion. The Minister has to form an opinion that the person being appointed has the "sufficient experience and expertise" to which I have referred.

As a corollary of that legal obligation, the Minister has to be in a position to stand over his or her decision about a particular appointment. I do not agree that adding a requirement that the Minister should furnish details of each person's suitability and expertise would be of benefit. I presume the Minister would have to draw up regulations specifying the form ofcurriculum vitae to be submitted to the House in the case of each member of the board. When a Minister engages in the public act of appointing a person to a public position, the people of this State, in which a free press operates, will be in a good position to scrutinise the appointment. There is no need to put in place an unnecessary legal requirement, such as sending a copy of the person’s curriculum vitae to the Oireachtas Library.

Why not?

Why not?

There is a budget of €11 billion. The Minister of State was not present this morning when members of the committee raised issues relating to accountability and parliamentary questions with the Minister. The 260 people, including county councillors and representatives of professional interests and voluntary bodies, who were responsible for these matters will not be in charge of the HSE and the health service in general. Why should Members of the Oireachtas not be given details of the 12 apostles who will be running the service? I am not asking for much when I request that the Minister give the Houses details of her reasons for choosing certain people to run the health service. The Minister of State's argument about regulations is crackers because there will not be any need for regulations. It will not be a big deal to lay the details in question before the Oireachtas.

Section 11(1)(a) states that 12 members of the board of the executive will be “appointed by the Minister in accordance with this section”. Newspapers have reported in recent weeks that certain people have already been appointed to the executive. Two of the people in question are said to be from the Southern Health Board area.

They have been appointed as directors.

They have been appointed to the executive as directors. When will a list of the directors who have already been appointed by the Minister be furnished? It is outrageous, as the legislation is being considered and amendments are being proposed, that we do not know who the executive's directors will be. It is a serious matter. The biggest problem I have with this Bill is that it seems to provide that Members of the Oireachtas will not be told anything. I would like to know what the position is in that regard.

I will be happy to furnish Deputy Sherlock with a full list of the names of those who have been appointed to the interim executive so far. I cannot do so at the moment but I am willing to do it as quickly as possible. I have arranged for my officers to facilitate that. I was briefed on the Minister's comments this morning. I am aware that she gave the committee an undertaking to revisit the accountability provisions on Report Stage. She is willing to examine what can be done to strengthen the accountability provisions on Report Stage. I have addressed the specific issue that arises from amendment No. 25 — the proposal that the Minister be required to furnish details of the qualifications of an individual who is being appointed to the board of the HSE. I have argued that the Minister will be obliged to consider such qualifications before she forms an opinion on any possible appointment. It is clear that it will be possible to question her on the matter subsequently. I respectfully suggest that making a file available would not add a great deal to that.

Will the members of the interim board comprise the board of the new HSE? Will there be any changes in the membership of the board? What financial reward will be given to the members of the board? Deputy Twomey's amendment seeks to place in the public arena, rather than keeping secret, the information that will be available to the Minister when she makes her decision. This exact difficulty keeps arising in respect of this administrative change. Is it the case that the only people who will be barred from sitting on the board of the executive will be those who have been democratically elected?

That is a standard provision in all——

The sin we commit is that we are democratically elected by the people and answerable to them. All public representatives, from the most lowly town councillors to MEPs, will be prohibited from sitting on the board of the HSE, but other individuals will be appointed privately on the approval of the Minister without explanation or justification. That is how corruption begins. There will be a problem of accountability if the Minister of State is unable to accept Deputy Twomey's reasonable amendment. The Minister promised this morning that she will introduce amendments in this regard on Report Stage. Members of the committee have to work on the basis of trust, but I do not trust a system that cannot provide for making information of this nature public. The Minister of State should appreciate that I have a difficulty with his rejection of this amendment.

We know the Minister of State will supply the names of the directors, who will be based in Dublin. Will individuals be in charge of various departments at local level in the Southern Health Board area, in which I live? I am familiar with various sections of the Health Act 1970, which has been abolished. The new HSE will have complete control of decisions on eligibility, for example. Will somebody be appointed at local level to assume that responsibility? Will we be given information about those responsible?

The interim executive has made clear that an officer will have full authority within the community care area.

What about eligibility for hospital services, such as inpatient services and long-stay care for elderly people?

The executive will lay down guidelines and establish a standardised framework for such entitlements.

They are just guidelines. We are talking about care. I am referring to an Act, with sections of which I am familiar due to my involvement at local level. Statutory provisions outlined in the Health Act 1970 are now gone and the Minister of State is talking about guidelines instead. We are very ill prepared on this entire matter.

It is completely rushed.

Absolutely.

This is on-the-hoof legislation and the worst example of anad hoc approach. The more we go through the Bill, the more deficiencies we see. That is not to say we have had much time to go through it anyway. I am sure that the longer we examine the legislation, the more deficiencies we will discover. After it is passed, we all come crying back to the House wondering what we were thinking.

We are introducing an enabling measure to provide for the unified administration of our health, personal and social services. Clearly, the relevant guidelines, regulations, directives and statutory powers will be drawn up under the enabling legislation as was the case with the 1970 Act to which Deputy Sherlock referred. The Health Act 1970 constituted enabling legislation. As the Deputy is well aware, many regulations were adopted under it.

It took two years.

I am talking about the statutory provisions set out in the Health Act 1970. There is a difference between statutory provisions and simple guidelines.

The eligibility provisions of the 1970 Act are not being repealed in this legislation.

There is no reference to that in the documentation.

Some of my questions have not been answered.

We have moved away from the amendment. It is possible, even likely, but not certain, that the Minister will reappoint the members of the interim executive to the full executive. The Minister will have to make a separate statutory determination on that matter when it falls to her to make the appointments. On the assumption that the Oireachtas enacts the legislation, the Minister will have a responsibility under the legislation to make the appointments and will have to do so in accordance with the directions of the Oireachtas under section 11.

Section 11 provides that the Minister shall appoint persons who in her opinion have the necessary experience and expertise on matters connected with the executive's functions. She will have to be satisfied of that before she appoints anyone under section 11. Assuming the Minister forms a view, the appointments will be made.

At issue is whether the Minister should be additionally required to submit details of the expertise of appointees.

It sounds very simple.

It is a matter on which the Minister can answer to the House in reply to parliamentary questions submitted to her Department. There is a statutory requirement on the Minister to take the factors in question into account before she makes the appointment in the first place.

There is no statutory requirement for the Minister even to provide the names of the persons to the House.

She will have to announce their names in public.

We will not depend on the media for information.

It is a complete oversight again. The Government probably intended to make the provision, but it has not been inserted.

We are not trying to catch the Government out.

If Deputies are anxious that the fact of the appointments be made known to the extensive readership ofIris Oifigiúil, I am willing to examine the matter on Report Stage.

What about the suitability and expertise of appointees?

Provision is already written into the legislation as I have explained a number of times. These are matters the Minister must be satisfied about before an appointment can be made.

What allowances will appointees get?

I do not have the details with me of what allowances are proposed.

Do any of your advisors know?

I have checked that already.

The Minister of State is saying we do not know the names, allowances, suitability or expertise of the appointees, nor will we, but as long as the Minister does, it is fine.

The Deputy knows the names. If the Deputy wishesIris Oifigiúil to be notified of the names, we can certainly consider the matter on Report Stage. I undertake to do so.

That is not good enough.

That is how to make a fact public, thereby addressing the Deputy's complaint.

All the amendment requires is to move one step forward and provide the information to the Houses of the Oireachtas. The legislation will change things dramatically. We are asking that the information conduit is connected to the Houses of the Oireachtas. As there are only 166 Deputies and 60 Senators, why should we not be provided with as much information on the executive as possible? It is not a big deal. I am simply asking that we be told why appointees are deemed good enough to do the job and what expertise they have. I am not asking the Minister to declare their interests or holdings of stocks and shares, I am simply asking to be told why they are good enough to operate an €11 billion health service for the people. One would think I was asking for their bank account details.

Is it the third secret of Fatima?

Deputy Twomey is a Member of the Dáil and Deputy McManus has made the political charge that the appointments are in some sense secret. They are not.

They are secret appointments.

I have indicated to the Deputy that I am quite happy to have the publication of the appointments in Iris Oifigiúil considered. The Deputy has raised the purely technical matter that the Act does not prescribe publicity for the appointments. That is the case in many Acts providing for the appointment of individuals. We will consider the matter.

On Deputy Twomey's issue, the 166 Deputies in the Dáil are responsible for electing the Government. The Minister for Health and Children, appointed under Part 3, is a member of that Government and we are giving her the power to make the appointments. As a Member of the Dáil, Deputy Twomey is free to question the Minister on that. We do not need to go further.

This is how one treats mushrooms. What will the chairman's salary be next year when the appointment is to the full rather than the interim executive?

We do not have salary details. Section 16 of the Bill deals with remuneration.

If the chairman is the same in the legislation as the interim chairman, which appears to be the case from the information we received this morning, he ought to get the same salary.

The Minister determines the remuneration and expenses payable with the consent of the Minister for Finance. The usual statutory provisions apply.

I will have to raise the matter again. The matter is dependent on some of the other sections we considered earlier this morning. I will withdraw the amendment until Report Stage.

Is the Minister of State under instruction not to accept any amendments?

I have had no discussions on the substance of the amendments with the Tánaiste. I will consider matters on the basis of their merits.

Amendment, by leave, withdrawn.

I move amendment No. 26:

In page 15, subsection (3), between lines 32 and 33, to insert the following:

"(a) a person who by reason of a substantial financial connection with a commercial interest is likely to be perceived as having a conflict of interest in relation to his or her membership generally of the Board,”.

I hope this amendment receives a better hearing than Deputy Twomey's. I move the amendment on foot of my concern about what must be the most important of Government appointments. At issue is a health service in which current spending is €11 billion per annum and which is subject to the activity of vested interests. When a Minister speaks about vested interests in this context, he or she tends to have the medical profession in mind. There are many other vested interests, however, in the context of the health service.

What concerns me is that there are commercial interests which can make significant sums from the service. An example is the pharmaceutical industry. It is important to put in place safeguards to protect the health service from undue influence by an unaccountable member of the board who will attend meetings which will not be held in public or subject to a system of scrutiny and who may have particular interests and perspectives. The only people barred from membership of the board, apart from the obvious categories such as criminals and so forth, are democratically elected representatives who can be replaced by the electorate. The people cannot replace members of the board who will have considerable power.

While we criticise civil servants from time to time, at least they do not have conflicts of interest and have always done their work professionally as public servants. We can be proud of the record of the Civil Service. The legislation proposes to contract out management of the health service to private individuals who are so private that their suitability for their positions will be kept secret. Given the real risks that could arise as a result of a Minister inadvertently or deliberately making inappropriate appointments, this amendment must be accepted.

I support the amendment. If we are to create a quango, it should at least be accountable. It makes eminent sense that members of the board should not have any conflicts of interest. Deputy McManus's point regarding the pharmaceutical industry is relevant because the sector stands to make significant profits by exerting influence. We could go even further than the amendment by providing for measures to determine the extent to which members of the board are lobbied. Does a conflict of interest arise when a person is lobbied? Should we provide for complete exclusion of any sort of lobbying? I favour such an approach because the board's role is to make independent decisions.

The amendment raises again the need to scrutinise the legislation in detail. As we go through the Bill, new thoughts occur to me about its implications. We are transferring significant power from the interim body to the new body. We do not know who the members of the board will be, what are their backgrounds and interests and who is lobbying them. That is the problem. It is only as we go through the legislation that I begin to see its implications. We could make a start by accepting the amendment.

I have considerable sympathy for this amendment and the spirit which inspired it. While I do not want to start on a contentious note, when I hear Deputies speak about the enormous powers this body will have, I must remind them that it is no greater than those that each of the health boards had within their functional area and I never heard a similar discussion about them. In any event, as regards the merits of this proposal——

The health boards were democratically elected.

I agree with Deputy McManus that the issue before us in section 11, which the amendment proposes to amend, is important. However, it is addressed by section 24 which provides that:

(1) In performing functions under this or any other enactment as—

(a) a member of the Board or a committee of the Board,

(b) the chief executive officer or any other employee of the Executive,

(c) a person engaged by the Executive as an adviser, or

(d) an employee of a person referred to in paragraph (c),

a person shall maintain proper standards of integrity, conduct and concern for the public interest.

The third subsection empowers the executive to issue codes of conduct for the guidance of persons other than themselves. The members of the board or its committee are still bound by the fundamental obligation in section 25(1) to maintain proper standards of integrity, conduct and concern for the public interest.

In addition, board members will be made subject to the Standards in Public Office Act 2001. The Act affects the designation of the board by the Minister for Finance under the legislation before us. Section 17 of the Standards in Public Office Act spells out in great detail the position as regards persons holding any position in a public body who have actual knowledge of a material interest or of a connected person of such persons who has a material interest in a matter which is before the directors. In such circumstances, the persons must furnish statements in writing of those facts and cannot perform a function unless there are compelling reasons requiring them to do so. The standard ethical template which applies to all State bodies will apply to the board under the standards in public office legislation.

I give a Government undertaking that the Minister for Finance will draw up the necessary regulation. If Deputies wish to revisit the issue, they can do so in the context of section 25 which is the fundamental provision in the legislation providing for standards of integrity. I do not disagree with the motivation for the amendment but the matter is provided for already in the legislation.

The position outlined by the Minister of State is not the same as what I am proposing, namely, that "a person who by reason of a substantial financial connection with a commercial interest is likely to be perceived as having a conflict of interest." The Minister of State said a person shall maintain proper standards of integrity, conduct and concern for the public interest. Interpretation of this requirement is purely subjective. My amendment is not concerned with circumstances in which persons deliberately use their positions of power to rob or embezzle. If, for example, the board includes a managing director of a pharmaceutical company — as it happens, the interim board included a retired managing director of a pharmaceutical firm — a person of that stature may believe that it would be in the public interest that the quantity of pharmaceutical products taken by patients should double. Ireland currently has a low level of medication consumption. While he or she may believe such a development to be in the public good, it would also be in the interests of his or her company. This creates a conflict as his or her judgment may not necessarily be the judgment of other people as regards what is the common good, yet he or she will hold an extremely powerful positionvis-à-vis his or her ability to exert influence to ensure that the amount of pharmaceutical products is increased. Such an increase would suit him or her and, as far as he or she is concerned, also suit patients even though that may not necessarily be the case. We do not know who are the people in question and whether they are suitable because we are not told. We have a code of conduct which is internal and nobody checks whether members of the board comply with it. Accountability is absent.

The Tánaiste and Minister for Health and Children, Deputy Harney, and the Minister of State, Deputy Brian Lenihan, show a frustrating and disturbing degree of defensiveness. If they are being as open as they claim, I cannot understand the reason they did not accept Deputy Twomey's amendment and are refusing to accept mine. What on earth is stopping the Minister of State from doing so? If he is so confident about what he is doing, why can he not accept these amendments. He is so defensive, it makes me wonder whether he is convinced of the merits of the project.

The Government appears to be trying to shut down debate, rush the legislation through the Houses as quickly as possible and hand over its responsibilities to a chairman with a background in the banking sector with no chief executive officer or proper management arrangements in place. Would a private investor with €11 billion of hard earned money to invest hand it over to a company with an unnamed, untried board of directors, no CEO in place and no track record in managing anything? That is what the Minister of State is asking us to believe without accepting any proposals to provide for protections in areas of concern to us.

No, we are talking about an important, fundamental protection. There is common ground between the Deputy and me on that issue at least. The Deputy stated that protection was inadequate because the expression, "to maintain proper standards of integrity, conduct and concern in the public interest", was too general in its scope.

It is a subjective expression. My interpretation of integrity may not be the same as that of the Minister of State.

That may be the case. However, that particular expression in the legislation is only the headline requirement, which is then fleshed out in the details of section 25. As I outlined to the committee, detailed codes which are admissible in a court of law are prescribed for those under the board to spell out in great detail how exactly that general ethical requirement is translated into specific circumstances.

I made it quite clear that the Standards in Public Office Act 2001 will apply to the board, and the Minister for Finance will make the necessary regulation applying it thereto. Section 17 of the Standards in Public Office Act 2001 states with legal particularity what Deputy McManus states in general terms in her amendment. There is no difference of substance between the amendments.

I want to address a much wider issue that Deputy McManus raised in a very fair manner, namely, the question of a person who has a particular professional or vocational involvement in the health sector being a member of the board.

"Commercial" is the term I used, not "professional". I am talking about commercial interests and money.

Persons who were remunerated could serve on the health boards under the 1970 Act and did so. Medical professionals, for example, could be appointed——

I am not talking about professionals. I am talking about commercial interests. Why is the Minister of State going down a side alley?

Professionals are remunerated by way of fee.

We are talking about the pharmaceutical industry specifically and people with an interest therein.

I will not single out one vested interest in the context of the health service, which is what the Deputies opposite are doing. That persons have particular interests does not preclude them from appointment in general terms. However, they are subject to detailed ethical requirements, which have been legislated for by the Oireachtas and which apply to all public offices in all public bodies. They, in turn, have the power to prescribe detailed codes for those who work under them. That is what the Act envisages. We can revisit section 25 and I am open to persuasion on amendments by the Opposition that seek to improve on the ethical framework set out in that section.

The particular formulation advanced by Deputy McManus does not add to what is already provided for in our legislation. Her amendment states, "a person who by reason of a substantial financial connection with a commercial interest is likely to be perceived as having a conflict of interest in relation to his or her membership generally of the Board". That is not the language that the Oireachtas has chosen to define "conflict of interest" in other legislation regulating public bodies. I fail to see why the Deputy's formula should be imported here when there is a very well-established formula to deal with the matter in the Standards in Public Office Act.

The Minister of State is making some things clear. Although the people in the public service who do the work of the new executive may not change greatly after 1 January, the accountability board, as we used to know it, is changing dramatically. Its complement has reduced from 263 to 12. Rather than comprising professional representatives and elected public representatives, as was the case, it has only 12 members who are simply appointed by the Minister. To expect the highest ethical standards from the 12 people appointed is not at all dramatic. Their being subject to the Standards in Public Office Act merely involves their listing their assets and directorships. We should ensure that there is no conflict of interest.

The Minister of State is well aware that, when the Hanly report was drawn up, there was little comment made on major changes to some hospitals, probably because many of the authors of the report had an interest in those hospitals. Perhaps they did not want to get into conflict with their own colleagues. To say that this could not happen among 12 people, in a small country, is questionable. Most of the 12 members will know each other very well and will be closely connected to each other.

To say they could not be influenced by their previous business experiences is nonsensical. Of course they could be influenced. We have seen it happen in AIB, which has recently appeared before the Committee on Finance and the Public Service in respect of many practices that are not very ethical. As the Minister of State knows, at least two or three members of that organisation are involved with the HSE. When we ask for protections for the taxpayer in respect of the €11 billion to be invested in the health service of 4 million Irish people, we are not doing so without due precedent.

Before appointees to the board take up their positions, there should be a declaration of interests and we should be made aware of their form. The Health Bill stipulates that "a person shall maintain proper standards of integrity, conduct and concern for the public interest". Most people would seek to behave in a proper way and would aspire to these general standards. However, I do not know if this stipulation is sufficient.

I have to trust the Minister for Health and Children regarding her promise to address the issue of greater accountability on Report Stage, but I will not get my hopes up. We are wondering why the legislation is being rushed. It seems that we are handing over responsibility to the Health Service Executive while failing to ensure that its members are accountable. They have the responsibility but are not accountable, yet the Minister has less responsibility and is less accountable.

The members of the executive will provide convenient cover coming up to the next general election and the Minister will not have to take the rap for the continuing crisis. That may be a cynical analysis of what is taking place but it is the only conclusion to which I can come if the Minister does not honour her promise regarding greater accountability. It has not even been promised that the members of the executive will be asked to come before an Oireachtas committee. The legislation provides no certainty in this regard. It should be mandatory that they be questioned by a committee of the Oireachtas.

I know the Minister of State is really taking seriously the points made by the Deputies. Will the all-powerful 12-member executive take over the responsibility of Comhairle na nOspidéal? Does the Minister of State know that comhairle's responsibilities are fairly wide-ranging? Is it the case that the new executive will take over the responsibilities of comhairle as well as those of the health boards?

The Deputy is correct. Comhairle na nOspidéal will be subsumed into the new executive.

All the responsibilities of comhairle, with which we are familiar, as well as those of the abolished health boards, will rest with the 12-member executive.

The new executive will have to consult the colleges on certain matters, as comhairle does at present.

In the Cork area, from which I come, there are public private hospitals. There are two in the city of Cork. What authority will this great executive have over the public private hospitals?

The executive will be in the same position as a health board at present.

Which is?

It can purchase services at that location.

I know the Minister of State is a really down-to-earth man. Is he talking about privatisation of the health services?

Goodness gracious, no. The Minister of the day is in the same position in respect of the executive as he or she was in respect of the health boards, with the one vital difference that the Minister will now appoint the executive. It is not being constituted by a process of indirect nomination from those other creatures of the public will, namely, the local authorities.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 15, lines 39 to 41, to delete subsection (4) and substitute the following:

"(4) Not less than 40 per cent of members of the Board shall be men and not less than 40 per cent shall be women.".

I have tabled this amendment because I understand it is Government policy that 40% of boards shall be men and not less than 40% shall be women. Before the last election, I listened with great interest to the then Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, who expounded on this great principle at length to the National Women's Council of Ireland. Most people took it at face value that this was actually Government policy. If that is the case, this amendment is tabled in line with Government policy since the Bill, as drafted, is not.

The provision in the Bill is that the Minister shall, to the extent practicable, endeavour to ensure that there is an equitable balance between men and women in the composition of the board. I know the Minister will be most anxious to ensure that the balance is equitable. This is the standard formula that has been used in legislation on this matter in recent times and the Minister sees no reason to depart from it.

This Bill is not about the Minister. That is not a reasonable or intelligent reply. This Bill is not about an individual; it is about changing the law with which we must all comply. Therefore, it does not matter what the Minister does — good luck to her and I am glad that she has a benign attitude towards women — but it is irrelevant. What is at issue here is a commitment about equality that has been given many times. However, the Bill does not provide for equality; it provides for lip-service, face-saving and a commitment that is meaningless.

If we cannot reach a 40:40 ratio, it would be better if we were told what the minimum ratio will be. However, to state that the Minister shall, to the extent practicable, endeavour to ensure that there is equitable balance between men and women in the composition of the board does not really mean anything. At present, just three of the 12 member board are women. One Minister might think that is more than equitable and that we should not have any women on the board because they are a nuisance, or another Minister might feel that is way off the mark. It should not be up to individual Ministers to determine this issue and yet that is exactly what this provision will allow. It will be up to any Minister to determine equity without any safeguards in place to ensure equity or some approach of equality.

Equality is 50:50 but I do not even believe we should have that ratio. However, unless we have clear-cut commitments to good policy, we will not make the progress we should make. It is not as if the Government disagrees with me; it is the Government that set this target. Therefore, why is the Minister of State now stating that neither he nor the senior Minister will accept Government policy in the form of this amendment?

This is a sensible amendment that should be supported. A Green Party colleague from Finland informed me recently that a quota system is in place that has transformed the landscape and made an enormous difference in that country. Leaving this matter to the Minister's discretion will not necessarily bring about the required change. I do not see anything wrong with this amendment and I hope the Minister of State will support it, although he probably will not.

I indicated already that the Tánaiste saw no reason to depart from the general statutory formula used, namely, that the Minister shall, to the extent practicable, endeavour to ensure there is an equitable balance. Equity connotes a concept of equality and a Minister would be very ill-advised to think it would be equitable not to appoint any female, as suggested by Deputy McManus. Clearly, a Minister on the grounds of equity is obliged to appoint at least some females, if not an exact mathematical parity under this legislation.

Why should there be a Government policy on this issue at all? Let us be honest about it and appoint a token woman along with 11 men, which will get the Minister off the hook by demonstrating that the board is not all male. Members are aware that this circumstance occurs frequently. One would hope that a woman Minister for Health and Children would do the brave thing. I know it is difficult but it is certainly not impossible. The fact that the limit is only 40% gives room for manoeuvre.

There are three female appointees on the existing interim executive, namely, Professor Anne Scott, Professor Niamh Brennan and Dr. Maureen Gaffney, none of whom one would refer to as tokens. I am sure the Minister will have regard to a wide range of characteristics in making her appointments. The legal requirement is clear cut; there must be equity in the appointments. I cannot put that any more clearly.

First, no one has said these are token women, as the Minister of State knows, and it is dishonest of him to suggest it. The demarcation the Minister of State has made is interesting. He says that on the one hand we have Government policy, but this is legislation which means the Government can say anything it likes as long as it does not actually introduce legislation to comply with the policy. That is exactly the criticism the voluntary sector has about this Bill. There are all sorts of commitments to partnership with the voluntary sector but real partnership is not put into legislation because that means it must actually be realised. Gender balance is not put into legislation because if it is, it will actually happen, which the Government does not want.

The gender balance put into the legislation is an equitable balance between men and women. The word "balance" is used, not "exclusion". That is clear in the legislation. It envisages a balance on the board.

That is a subjective view. Will the Minister of State define it in the Bill?

It will not fall to be determined by me. The word "balance", I would have thought, means that one cannot exclude one or the other.

So one is what we are talking about.

One gender or the other. It is an equitable balance between men and women. I note that the plural form has been chosen by the draftsperson.

Since the Government proposes to use this term "equitable balance" in the Bill, will the Minister of State define what it means?

An equitable balance between men and women has to mean an element of balance that is equitable between them, which means that regard has to be had to both groups in making an appointment.

Does the Minister of State believe the 40% arrangement is an equitable balance?

I am not sure one can translate it into a numerical formula. What the Deputy endeavours to do with this amendment is to insert a numerical formula into the legislation. Were we to do that, the hands of the Minister would be tied. We might find, for example, that the eight persons who are uniquely qualified to improve our health service were all females and we would then be precluded under the Deputy's amendment from appointing one of them.

It would be in compliance with Government policy.

Government policy has to be adapted to events and circumstances.

Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.

I move amendment No. 28:

In page 16, subsection (1), lines 3 and 4, to delete ", other than those assigned to a medical officer of health".

Amendment agreed to.

I move amendment No. 29:

In page 16, subsection (2), lines 6 and 7, to delete ", other than those assigned to a medical officer of health".

Amendment agreed to.

I move amendment No. 30:

In page 16, between lines 10 and 11, to insert the following subsection:

"(4) The Board shall inform the Minister of any matter that it considers requires the Minister's attention.".

Given the accounting officer's responsibilities, there is always the possibility of a conflict between the board and the chief executive officer. In such circumstances, the chief executive officer has the option of seeking written directions from the board and notifying the Comptroller and Auditor General. This is an important aspect of the checks and balances that will operate within the executive. I propose that if such circumstances arise, the board will be under an obligation to inform the Minister about the matter.

The Minister of State says that the board shall inform the Minister of any matter that it considers requires the Minister's attention. Will the Oireachtas ever know what the board thinks on these matters? How will we know if the board considers a matter to require urgent attention from the Minister?

The Minister has made clear that she is accountable to the Dáil on such matters.

How will we know? It will not be made public.

If Deputies ask the question, they will get the information.

Even that is not clear. If we happened to ask the right question, would we get a response?

Does the Deputy want that looked at in the same way?

Of course I do. If something requires the Minister's attention, it must be a serious matter.

At present under the Bill, as amended, there is a reporting mechanism for a direction from the Minister to the board. The Deputy is advocating a reporting mechanism for a matter where the board informs the Minister of an issue the board wishes to raise.

How will we ever know about this matter? Is there a mechanism to inform us about things like this?

We are willing to look at a publicity requirement for any such direction before Report Stage.

I welcome the Minister of State's response. It is interesting that he cites a potential conflict between the CEO and the board as the reason for this amendment. That is not in the legislation so it is not clear that there is a guarantee that should such a conflict arise, it would automatically go to the Minister. The board could decide that certain matters that show it in a bad light will not go to the Minister. The reason the Minister of State has given is not in the Bill.

The wording is more general than the reason I gave. As a matter of principle, the circumstances I outlined would be obvious circumstances where the board would report to the Minister having given a written directive to the chief executive. There could be other circumstances where the board is so minded so the wording is more liberal in that sense.

There could, however, be circumstances where such a conflict arose and the board decided it did not want to tell the Minister. Earlier I said that the CEO should not be a member of the board. The Tánaiste explained that the best international management practice was to have the CEO as a member of the board. This is an example where it would be better to separate the two. The CEO as a member of the board could end up in conflict between his role as a board member and his role as accounting officer. This is further proof that the roles should be separate.

The issue the Deputy has raised must be examined. If the chief executive is the accounting officer, we must look at the compatibility of that relationship with board membership.

Amendment agreed to.

I move amendment No. 31:

In page 16, between lines 10 and 11, to insert the following subsection:

"(4) A medical officer of health shall, when requested, provide all information to the Minister in order to enable him or her to furnish a full reply to a Parliamentary Question.".

Before the Government amendments were inserted, the duties of a medical officer were separate from those of the HSE. I tabled this amendment so that if there is a parliamentary question to be answered by the medical officer, we can ensure the medical officer answers it. Questions might be related to SARS or similar matters.

Will the Minister of State withdraw the Bill at this Stage?

The Minister of State should read it now that it has been published.

The Tánaiste proposes that issues related to the quality of service should extend to the service that the executive will provide to Oireachtas Members in responding to queries and providing information about the management and delivery of health and personal social services whether at national, regional or local level. There will be an effective system of rapid responses to inquiries from public representatives and the public within the new unitary system and, therefore, it is unnecessary for the Minister to have a hotline to a medical officer. The Minister will be prepared to look at the issue in the context of the accountability undertaking.

I cannot wait for Report Stage, it will be fantastic.

I hope the ventriloquist will do the talking then,

Is the medical officer being taken on board so the Department of Health and Children will be accountable to the Oireachtas?

The amendment provides for the medical officer who will, when requested, provide all information to the Minister to enable him or her to furnish a full reply to a parliamentary question. The Deputy's amendment provides that "A medical officer of health shall when requested, provide all information to the Minister in order to enable him or her to furnish a full reply to a Parliamentary Question". The Minister will reply to parliamentary questions in accordance with the rules of the House. The legislation defines in general terms the relationship of the medical officer of health with the Minister or the Department, and whether the medical officer of health will be required to provide that information turns on the construction of the legislation generally. The Minister may not be obliged to answer the particular parliamentary question. In a sense the Deputy's amendment is second guessing the entire legislation.

We have been trying to do that all day. In some respects the medical officer should be accountable to the Minister for Health and Children because a medical officer could have responsibility for an outbreak of influenza or pneumonia or anything that might happen in the public health arena. The fact that the medical officer of health is accountable to the Oireachtas is fundamental to the role of the Minister for Health and Children.

The health service executive will have to establish procedures for furnishing information to the public and to Deputies. If the Minister is obliged to answer a parliamentary question the Minister will be able to obtain the information.

That refers to our earlier discussion about how much information we can get after the health service executive is established. The earlier legislation excluded the health officers, before the Minister of State tabled his amendments. I want to ensure that if a major public health issue arises we will not be denied an answer on the grounds that it is the remit of the medical officer.

There is no question of information being denied in that way.

I will withdraw the amendment but may bring it back on Report Stage, depending on the Minister's response on the earlier sections.

Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
SECTION 13.

: I move amendment No. 32:

In page 16, subsection (2)(c), line 32, to delete “indictable offence” and substitute“offence on indictment”.

This might be an easy one for the Minister of State to deal with as it is in his home territory. I raise this on legal advice because an "indictable offence" may be a relatively minor offence, for example, a football player on the pitch throwing a punch which should not happen but should not exclude somebody from the board. A change of this nature would be more fair. We had a long discussion with the Minister of State on the Opticians Bill about the fact that if one had ever been bankrupt one could never be a registered optician which seems crazy and penal. In this instance it is quite extreme to say that if one is convicted of an "indictable offence" rather than an "offence on indictment" one would be excluded and I wonder would it be correct. The Minister of State's opinion on this would be worth hearing, given his legal training.

Under section 13, as drafted, the conviction of an appointed member of the board to the executive on an indictable offence would lead to the member concerned automatically ceasing to hold office as a member of the board. This proposed amendment involves the deletion of "indictable offence" and the substitution of the expression of "offence on indictment". As Deputy McManus correctly states, that is a much narrower concept than "indictable offence" because many offences are summarily proceeded with but are still indictable in their conduct. The amendment would have the effect of limiting the range of offences to those who are actually tried on indictment, that is, more serious offences and excludes indictable offences which were tried summarily.

It is important that the highest standards apply and are seen to apply to members of the board. The formula adopted in the legislation has a legislative consistency in that the Irish Sports Council Act 1999 has a similar wording at section 13(3)(c) as is found in section 13(2)(c) of this Bill and the legislation is based on that. The fact that an offence is triable summarily does not necessarily mean that the conduct which gave rise to the offence is minimal in character. Often in legislation the accused is given the option of summary trial rather than trial on indictment on the basis that the powers invested in the District Court to punish the offender in the event of a conviction are lesser than those to which the offender will be exposed were he or she tried in the Circuit Court. It is not necessarily the case because an indictable offence is triable summarily and is therefore within the phrase used in the legislation an “indictable offence” that it is a lesser or minor offence. It can be quite a serious matter.

I accept the Minister of State's view on this but is it not possible to distinguish the minor offence from the more serious one? People in the health service are hardly likely to be having it out on the football pitch.

One never knows.

I am not pressing this amendment very hard but——

I will ask the parliamentary counsel to look at it before the next stage and see has an alternative formula been used in other legislation.

That is great. If it cannot be done, very well. I will withdraw the amendment and the parliamentary counsel can consider it before Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 33:

In page 16, between lines 40 and 41, to insert the following subsections:

"(3) A member who does not attend a meeting of the Board shall within three days of non-attendance, submit to the Minister in writing, the reasons for that non-attendance.

(4) A member shall cease to hold office if the Minister is satisfied that due to absence, a member cannot continue to discharge their duty.".

This chiefly concerns the board of the health service executive. The Bill states:

A member who does not, for a consecutive period of 6 months attend a meeting of the Board ceases at the end of that period to hold office unless the member demonstrates to the Minister's satisfaction that failure to attend was due to illness.

In view of the importance of the board, if a member misses any meeting he or she should furnish the reason for that to the Minister for Health and Children. The legislation should be much tougher on those who do not attend board meetings. There are only 12 members making major decisions and while there is a quorum, if two or three regularly fail to appear they should furnish a reason to the Minister. That is quite important.

There is agreement on that point.

As a matter of corporate governance, those matters are generally left to the internal regulation of the body. In the second schedule to the Bill there are detailed provisions concerning the regulation of the board including the seal of the executive, the term of office, resignations, casual vacancies, the meetings, quorums and procedures.

Section 13(1) states:

The Minister may at any time remove an appointed member from office if—

(a) in the Minister’s opinion, the member has become incapable through ill-health of performing the functions of the office,

(b) in the Minister’s opinion, the member has committed stated misbehaviour,

(c) the member’s removal from office appears to the Minister to be necessary for the Board to perform its functions in an effective manner,

Persistent absence from the board might fall under any of those rubrics but clearly clause (c) which allows and empowers the Minister to remove a member from office where it “appears to the Minister to be necessary for the board to perform its functions in an effective manner” would apply to the case of a member who has been persistently absent from meetings of the board.

It is a matter for the board to provide for its own internal governance in such matters as minutes and records of attendance, and so on. These are details that as a matter of legislative practice are left to a board to determine. The Minister would not have much confidence in a board that did not have any regulations about a matter of this type or that did not provide for a careful record to be kept of the attendance at meetings of the board. It is open to the board to prescribe that excuses should be given for non-attendance and the board can do that under this legislation. It is not a matter for which the legislation generally regulates.

Perhaps it should. That might apply to many boards, for example one could comment on the Aer Rianta board as it is now disbanded. Does the line Minister responsible for Aer Rianta know how many times the board met and if every member turned up, or what members were missing and what was going on? There is no direct line of governance although the Minister of State says the rules and regulations exist. Does the line Minister responsible for Aer Rianta know how often its board met, the members who attended those meetings and the items discussed? There is no direct line of governance, although the Minister of State claims regulations do exist. It is possible that only a certain quorum of the board may turn up every month to discuss health services. What is wrong with the Minister being informed of the meetings? If it means changing the rules of governance for semi-State or statutory organisations, then they should be changed. Part of the problem may be that we are letting things happen when we do not know what is going on?

Is that why they got gold watches?

What about the winnings?

Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.

I move amendment No. 34:

In page 17, between lines 32 and 33, to insert the following subsection:

"(6) The Minister shall, in writing, at the earliest opportunity, and by attendance if requested, notify the Dáil Committee on Health and Children of any alteration to the composition of the Board under this section.".

This comes back to the previous point of accountability to the Dáil. We have examined the accountability to the Dáil of the board and the chief executive officer, how information will be relayed to the Houses of the Oireachtas about what is happening on the board and the role of parliamentary questions. Amendment Nos. 34 to 37, inclusive, are related. They relate to committees that will be set up under the Health Service Executive to examine certain aspects of the health service. As much detail as possible about the make-up and role of these committees and the results of the investigations in which they partake, must be placed before the Oireachtas, if not the committee on health and children. It boils down to the accountability of the Health Service Executive. Once the executive is established, we do not want to see committees sprouting left, right and centre and the executive becoming an amalgamated form of the health boards. We do not want committees set up for every sort of investigation that comes into the Health Service Executive's mind. This would not be real reform of the health service, just the creation of mini quangos within the larger organisation. We can watch for such developments only if we know what is happening within the Health Service Executive. This will happen only if the questions on accountability and transparency are addressed in the legislation.

These are valuable and far-seeing amendments. Inevitably, the board will establish committees and much work will be done by them. However, it is important that we know their format and arrangements and have full information about them. The Minister of State, Deputy Brian Lenihan, will have experience from his time on the Opposition benches of the great difficulty in getting a clear picture of what is happening. That is the nature of being in Opposition. However, when an Opposition Member asks those who presumably know what is going on in the health service, it often turns out they do not know what is going on either. That lack of clarity is a very pervasive problem.

The Bill is an attempt to streamline and bring clarity to the services. For all we know, it may work, but it is important there is a constant flow of information to give it its best chance. Rather than saying the Tánaiste will examine this, the Minister of State should accept these amendments on the basis that further legal advice can be taken on them later. These amendments should be accepted at least with that caveat because they are important and helpful, not just to Members, but to the public good.

I indicated earlier that I was sympathetic to examining whether the appointment of the boards could be notified in some public manner. The normal way to do so is throughIris Oifigiúil rather than notification to a parliamentary committee. The function of the committee is to consider Estimates and legislation and not to receive information about public appointments.

The Minister of State is wrong. From day one, we were told the role of the Oireachtas Committee on Health and Children would be central to this change. It is not just about policy and examining Estimates. Maybe the Minister of State was not informed of this but members of the committee have been on a number of occasions.

I have told the House this myself. It is in the questioning of the members of the executive that this committee will have its key and central role.

That is not the impression we got.

I not alone have been an Opposition Member but also a Government one without holding ministerial office. That is not that different.

We know.

As to my knowledge as a Minister of State, I do not want to trespass on the committee's time on that subject.

Deputy Twomey has made a serious point in that we are dealing with a large amount of public expenditure and a vast range of bodies and agencies. His anxiety, I understand, is that a degree of transparency and intelligibility would exist for all Members in obtaining information from the executive. I understand the Tánaiste and Minister for Health and Children will bring forward proposals on Report Stage in that context.

Does that mean the Minister of State is accepting the amendments?

It means I am not accepting the amendments.

We will put it to a vote because we have been waiting all morning for one.

Amendment put and declared lost.
Section 14 agreed to.
Progress reported; Committee to sit again.
The select committee adjourned at 3.35 p.m. until 9.30 a.m. on Thursday, 2 December 2004.