Health Bill 2004: Committee Stage (Resumed).

I welcome the Tánaiste and her officials. The time proposed for this meeting is 9.30 a.m. to 1 p.m. and from 5 p.m. to the end of business. There will be a break from 11 a.m. to 11.20 a.m. Is that agreed? Agreed. Deputy Neville will move amendments on the part of Deputy Twomey. Is that agreed? Agreed.

SECTION 15.

I move amendment No. 35:

In page 17, subsection (1), line 36, after "committee" to insert the following:

", and as soon as practicable thereafter, the details of the composition of any such committees shall be laid before each House of the Oireachtas".

That amendment was discussed with amendment No. 12.

It involves the details of the composition of committees, laid before the Houses of the Oireachtas. It is self-explanatory and obvious. I am sure the Tánaiste will look at it again in that light and will accept it.

This goes back to what we discussed in a number of other sections and what the Tánaiste said she will bring forward on Report Stage. Perhaps she will accept some of these amendments. She indicated she might seek legal advice on them.

I intend to seek legal advice but I do not want to put the Health Service Executive in a straitjacket, unable to appoint or stand down a committee. The annual report will deal with a lot of the specifics regarding committees. I gave a commitment yesterday to return to many of the accountability issues, including the attendance of the CEO of the Health Service Executive at meetings of Oireachtas committees on Health and Children, and I will keep that commitment.

It is not just a matter of getting the annual report but of knowing about something before it happens rather than reading about it afterwards in the report. The first annual report may not be published until May 2006 and we would like to follow what is going on as it happens.

With regard to committees, it may well be that a senior executive in the HSE needs a group of three or four people to advise on something new that emerges. That group might exist only for a couple of weeks. It is not necessary to place a huge bureaucratic requirement on a body which we want to operate the health service and I do not want to put the HSE into a bureaucratic straitjacket. I recognise, however, that there are accountability issues with which I intend to deal in light of yesterday's discussion. Perhaps we will discuss these matters further when Deputies see my amendments on Report Stage.

Yesterday when the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, was here, the Opposition expressed its concern that the HSE could, in effect, become the "12 apostles" running the health service. Underneath would be a multitude of mini-quangos comprising committees which, essentially, will be no different from what we are trying to get rid of, namely, too much bureaucracy. There is a need to monitor what is happening so that we do not discover in the middle of 2005 that 80 committees have been established by the HSE to examine different aspects of health service activity.

A corporate plan, which the committee will probably consider later, will deal with issues as to how the HSE organises itself internally as opposed to a plan targeting the provision of services to patients and users. The corporate plan will show over a three-year period how the HSE intends to organise its internal affairs. The whole intention is to reduce bureaucracy within the health services, which most people believe to be excessive, because of the 11 different boards that have been in operation, taking the three boards under the ERHA into account. That is the intention of this unified service, to reduce bureaucracy, increase the level of front-line activity and have a much more transparent and open system of accountability.

It is important that this matter is clarified. I understand that only two hours are being allocated for Report Stage. An enormous number of these amendments relate to accountability. The Minister today clarified somewhat her position as regards accountability, which makes me even more concerned. Yesterday the presumption was that the Minister would respond to all the concerns raised. Now it seems to be different. The Minister may have all the intentions she wants, but it does not mean they will be delivered upon. Fine intentions are set out as regards the HSE and they are repeated many times, but that is no guarantee they will be delivered. We are concerned not about what will be in the corporate plan, which will be an admirable statement about intent, and by April 2006 there will possibly be a report as to what happened. In the interim there needs to be oversight. That is what we are talking about. We are not adding to bureaucracy or creating problems, we are looking for a role and for that oversight to be recognised now. That is what this is about, purely and simply.

The Minister set out all sorts of matters within a short period of time as regards this legislation. There was to be a chief executive officer. There was an implication that the CEOs of health boards would not have a role after 1 January. On those issues alone there have been major changes. There is no CEO, the chairman is now the interim CEO and the CEOs of health boards will remain in place for another six months, even though they do not have authority. Matters change and we want to have a role to ensure that these changes are for the better. That is what this is all about. There is a real danger that the Minister will end up with more bureaucracy. We need to know whether this will become a reality, because we as a committee represent the public good, as does the Minister.

It is probably fair to withdraw the amendment if the Minister is committed to fulfilling the spirit of it.

Amendment, by leave, withdrawn.
Amendments Nos. 36 and 37 not moved.

I move amendment No. 38:

In page 18, subsection (7), line 10, after "section" to insert "other than as provided for undersubsection (8)”.

Amendment Nos. 38 and 39 are related. Even though the Minister has made it clear in responding to an amendment tabled by Deputy McManus that there will be no election of representatives of voluntary or community groups directly to the HSE, these amendments seek to provide an opportunity for such groups to have some input into how the health services are organised. Many of the disability and voluntary groups the committee deals with on a regular basis have expressed the fear that they may be left out of the decision making loop under the new health service arrangement. They are seeking some way other than as a consultative forum through which they will have the opportunity to have an input. When the board is being set up, perhaps the Minister will appoint somebody with detailed inside knowledge of these concerns, in addition to dealing with the financial and administrative issues that have been the main concern of health boards up to now.

I dealt with this issue yesterday when I said that section 15, as drafted, requires the Health Service Executive, when performing its functions, to have regard to the ancillary services provided by the voluntary sector and other bodies. We want to give flexibility so that the process of delivering services is optimised, whether in the voluntary or alternative sectors. Among the requirements on the executive, under section 15, is that it must use its resources "in the most beneficial, effective and efficient manner". Flexibility is very important. We do not want to put this body into a bureaucratic straitjacket where it virtually cannot move without referring to A, B or C. It has been given the power to use the most beneficial, effective and efficient way to provide services for patients. I believe that is the appropriate flexibility that is needed in 2004. Among the issues of concern in the health service is the rigidity and inflexibility that exists. Most people who work in the health service argue that it is far too inflexible and rigid. In the context of moving to a new administrative and management system, which is what this is about, we need to ensure we do not carry forward the rigidity that is causing some of the problems at the moment.

I apologise for not being able to attend for the full length of the meeting yesterday. Reading this Bill, so much of it appears to be based on accountability and checks and balances, and there is little room for representation. Here is an opportunity which the Minister could take as regards the objectives of the executive in the performance of its functions, namely, to have regard to services provided by voluntary and other bodies that are similar and ancillary to the services the executive is authorised to provide. There has to be a balance. While health boards were over-represented before in these respects, there is now complete under-representation and a major democratic deficit as a result. This Bill is perhaps an opportunity to bring back the baby that was thrown out with the bath water. I ask the Minister to consider these amendments.

Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
Section 15 agreed to.
Section 16 agreed to.
SECTION 17.

Amendment No. 40 is in the name of the Tánaiste. Amendments Nos. 41 to 44, inclusive, are related and amendment No. 42 is an alternative to amendment No. 41. Amendments Nos. 40 to 44, inclusive, will be taken together. Is that agreed? Agreed.

I move amendment No. 40:

In page 18, subsection (1), line 34, to delete "subsection (3)” and substitute “subsections (3) and (4)”.

These amendments are to address a number of technical drafting issues and to allow the board to appoint an interim chief executive officer, pending the appointment of the first CEO. Amendment No. 40 is a technical one to provide that the appointment of the CEO is subject to both subsection (3), which addresses the situation surrounding the appointment of the first chief executive, and subsection (4), which deals with the terms and conditions of office of the CEO. Amendment No. 41 provides for deletion of the reference in subsection (1) to the appointment of the CEO, pursuant to a recommendation of the chief executive of the Public Appointments Service, and replaces it with the provision that the CEO shall be recruited under the Public Service Management (Recruitment and Appointments) Act 2004. Amendment No. 44 makes provision for the appointment of the first CEO. It provides that the Minister shall appoint the first CEO on the recommendation of the board and that pending that appointment, the Minister may appoint an interim CEO on the recommendation of the board.

Was this process used for the appointment of the putative CEO who never arrived?

Which process?

The process regarding public service management.

It was not a statutory body at that point.

Does that mean we must go back to the start to get a new CEO? Is there any possibility of going back to the second choice?

I do not know whether there was a second choice. There were obviously a number of applicants and it may be that one of them will get the position, but there will be a whole new recruitment process. The job will be advertised in the next few days and head-hunting consultants have been appointed to assist in the recruitment process. It will probably take a few months before there is a successful outcome to that process. The terms have to be approved by the Minister for Health and Children and the Minister for Finance. If we are to be realistic, the appointment will be made next Easter, if not beyond that. It takes a long time for someone to agree to take the job, as such a person has to disengage from previous employment. We are talking about a minimum of three months and that may be over-optimistic.

There must be concerns that the CEO is not in place. Why is the establishment date being forced through on 1 January, when we do not even have a CEO? It would surely have been wiser to postpone the establishment date and wait until the thing was done properly.

I do not accept that. I have appointed an interim CEO, who will take up the position on 1 January. The management team is in place and the team under the management is currently being recruited. It will be important that the uncertainty surrounding where and how people will work is brought to a conclusion as early as possible. If we put this on hold then one thing is certain. It will be after next summer before the resolution occurs of the uncertainty of the past 18 months since the Government outlined its programme of reform in this area. We cannot wait that long. It is not dependent on one person. We have an excellent board, an acting CEO and a management team of nine competent, experienced people in place. There will clearly be transitional arrangements, but this is the biggest change management process ever undertaken in Ireland, in the public or private sector. A process as large as this will have transitional issues and that is why the current CEOs of the health boards have been asked to continue to perform their duties until the summer of 2005. Until we get started on a statutory basis, many of the issues cannot be resolved. The HSE needs the authority and the statutory backing to be able to get on with the job.

I accept that we are taking this legislation through with unusual speed and I regret that very much. I removed all aspects of this legislation that relate to the proposed health information and quality authority in order to reduce the likelihood of making an error. We will bring it in by way of a different Bill, as it is new for us to have information and quality assurance in our health system. That board has not yet been appointed. The chairman was appointed by my predecessor on a non-statutory basis. I have had a meeting with him and will put an interim board in place to deal with all of the logistical issues. Before the legislation is enacted, it is important that all of the logistical issues around the new body can be teased out. I intend to publish the heads of that Bill and allow the Opposition and others to make an input before we proceed to the final Bill. I hope to have that by February or March of next year.

We are carrying out this administrative reform because we believe it will serve patients better. We would never set out to bring bodies together and abolish existing organisations unless we genuinely believed we were going to provide a better health service. That is why it is important that the new body is up and running from the start of next year.

Nobody is arguing about good intentions. The reality is that we now have a CEO who is effectively not qualified for the job. We have health board CEOs who will still be in place after 1 January, yet will have no authority. They are not being kept on in order to do their duties. They are no longer CEOs of health boards after 1 January, so they are simply filling a gap. Would the Minister invest €11 billion in an operation that had no CEO, that had a management team with no track record and had difficulties in its industrial relations, without giving proper time to ensure that the system is properly organised from the start with a CEO in charge? When the CEO is appointed, he or she could come in and start to change things. He or she can start to destabilise what is in place, because he or she does not agree with it and may feel the wrong judgments have been made. It is very risky and it does not seem to make much sense for the State to invest €11 billion simply because of some kind of unknown momentum. I am not aware of this momentum and I do not understand what it means in this context.

The Minister stated that she regrets the unseemly haste in which we are dealing with this legislation. She has to accept that because of that haste, errors will inevitably be made. It seems to me that the more we reflect on this legislation, the more there is a likelihood of making a mistake. Is the rate of pay for the interim CEO the same as that of the CEO?

First, it is not correct to state that the interim CEO is not qualified for the job. Mr. Kelly was the group financial controller of the largest bank in the country. He was the liquidator in PMPA and he was the managing partner of a large firm of global accountants in Ireland. He has enormous business experience dealing with sums of money far in excess of the €10 billion that will be next year's budget for the HSE.

Is he medically qualified?

Who said the CEO had to be a medic? Professor Halligan happened to be a medic.

It would help.

Not necessarily. We want someone who can manage a €10 billion budget.

He is not qualified because he has not gone through the process of appointment. He has not been assessed properly. The Minister can say these things but it does not make any difference.

That is very unfair on the individual as he has given a great amount of time in the past year to this task. His track record in managing large operations is second to none. He is not available for the job and is not interested in it. He does not even want any further remuneration for being the interim CEO, over and above what he is getting as acting chairman for a three year period. I am grateful to him for agreeing to take on this position from 1 January. The management team that has been appointed has much experience in the management of health service delivery.

We must face facts. What we are doing is bringing the unsatisfactory health board structure together in a single unified service appropriate for a population of 4 million. It is crazy that in 2004 there were 11 boards with 273 members and an enormous bureaucracy to deliver health care to 4 million people. It was a business model that had long passed its sell-by date. We are putting in place a different administrative management framework for the health services for the next number of years.

This is urgent because people want change to happen quickly and it will not happen until this body is up and running. Many decisions will be delayed until the HSE goes live on a statutory basis and I do not want further delays. The regional health authority was established in 1997-98 after the outgoing Government had agreed to do this and the incoming Government proceeded with it. The process of debating that legislation received much time in the Oireachtas. However, with hindsight most people would say — I mean no offence to the individuals involved — that it was not the right thing to do and that at that time we should have brought in a system like that contained in this Bill because in Dublin we ended up with an Eastern Regional Health Authority with three boards under it. To take a long time to discuss legislation does not necessarily mean one will always get it right.

There may well be a need to change some aspects of the Bill. When I deal with the health information and quality assurance Bill, matters may come to light and, hopefully, I will be honest enough to say we ought to have acted in one or another way and that we will reconsider the matter. That is the process by which legislation should constantly be reviewed. In our current legislative system, Bills get passed and bodies stay in being for too long, sometimes when they have long passed their sell-by dates.

As I stated to the Medical Council last week, in my last role as Minister for Enterprise, Trade and Employment I set up a statutory committee to advise the Minister on changes to company law, which is an ongoing, never-ending process. Rather than simply being put in place for six months, the committee is established on a statutory basis to continually advise the Minister for Enterprise, Trade and Employment in regard to changes in company law. Perhaps something similar is needed on the health side and last week I had a good discussion with the Medical Council on regulatory issues concerning the profession. We need to think outside the box and think of new ways to bring in appropriate legislation.

I reiterate that I intend to come back on this next week. While I was not aware of the time agreed for Report Stage, I am available to take Report Stage next week, for as long as it takes. I have rearranged my diary to do this because the Bill is important and a priority. I intend to come back and, through the Bill, to strengthen accountability to the Oireachtas because while Parliament is too often ignored, it is supreme.

Amendment agreed to.

I move amendment No. 41:

In page 18, subsection (1), lines 35 and 36, to delete ", pursuant to a recommendation of the chief executive of the Public Appointments Service,".

Amendment agreed to.

I move amendment No. 42:

In page 18, subsection (1), line 36, after "Service" to insert "being a person who is accountable to the Houses of the Oireachtas".

I have closely followed developments in regard to the health strategy, the Prospectus report and the Brennan report since their publication. I agree that significant reform is needed in the administration of the health care system. The Minister referred to the 273 county councillors and professional representatives who were accountable for and ran the health services up to this point. However, as the Minister knows, the Bill will mean that accountability moves to the Oireachtas. Some 20 to 25 amendments refer either to parliamentary questions, the Houses of the Oireachtas or some form of accountability to the Houses. I hope the Minister takes this on board because it is vital.

We all agree with the Minister in regard to the reforms as we have all studied the three major reports. However, at the same time, a major organisation which is unaccountable can quickly do a great disservice to those it is supposed to serve if it feels it can get away with shoddy work practices and no accountability. For this reason, we will push this issue at all times.

I am glad the Minister stated she will be available for Report Stage because I hope we will properly tease out these matters. However, we all agree with the spirit of the measures being taken in the Bill. The accountability and transparency with which it deals is vital for the health services, as is having a system that will work for 4 million people.

Amendment, by leave, withdrawn

I move amendment No. 43:

In page 18, subsection (1), line 36, after "person" to insert "recruited under the Public Service Management (Recruitment and Appointments) Act 2004".

Amendment agreed to.

I move amendment No. 44:

In page 19, lines 2 to 4, to delete subsection (3) and substitute the following:

"(3) The Minister shall, on the recommendation of the Board, appoint a person to be the first chief executive officer of the Executive.

(4) Pending the appointment of the first chief executive officer, the Minister may, on the recommendation of the Board, appoint a person to be the interim chief executive officer.".

Amendment agreed to.
Section 17, as amended, agreed to.
Sections 18 and 19 agreed to.
SECTION 20.

I move amendment No. 45:

In page 20, line 41, after "1998" to insert the following:

"and provision shall be made to ensure that a detailed breakdown of the estimates of expenditure are available for scrutiny by the Committee of Public Accounts of Dáil Éireann".

In addition to the issue of accountability, this is the most crucial aspect of the Bill given that the Accounting Officer is the chief executive officer. This is a major change from the current position in which the Minister and the Department of Health and Children take direct responsibility for expenditure. At the risk of repeating ourselves on the issue of oversight and accountability, the amendment seeks to ensure that the scrutiny process we have all been a part of over many years, in which the Estimates process is public, allows for Opposition members and Government backbenchers to consider what is planned for the year, raise and comment on issues and carry out their work.

While it is not clear, I presume the Estimates process will be done away with in effect and become emasculated under this new arrangement. Therefore, I propose we have a detailed funding breakdown. The danger is that a block grant will be made and it will not be possible to tease out what happens within that grant because it will be directed to the HSE, which will make its decisions in secret, with nobody knowing what it is at. We will be told after the event but will never be part of the process unless provisions for this are made in the Bill. The provision "that a detailed breakdown of the estimates of expenditure are available for scrutiny by the Committee of Public Accounts" would mean that such scrutiny would be in place. This is an important element in ensuring the work of the Parliament is part of resolving clearly existing issues in regard to bureaucracy and administration. Without that work being carried out, there is a danger we could end up in a worse situation than when we had 11 health boards.

I do not understand the point. There will be no change to the Estimates process. The Minister for Finance, Deputy Cowen, stated in his budget speech yesterday that he wants to reconsider the budgetary process because most would acknowledge that the Estimates and budgetary processes are not satisfactory. However, there will be no change in regard to the role of the Oireachtas or the Committee on Health and Children in the Estimates process. The Estimates process at present includes that the Minister comes before the committee — I am due to come before the committee in the coming weeks — for perhaps one and a half hours, which is not satisfactory.

Many of my amendments to the Bill are based around the accountability issue. From now on, the chief executive officer will be the Accounting Officer for the Vote. Therefore, when the Oireachtas votes the sum of money, which will be approximately €10 billion next year, to the HSE, the chief executive officer will be accountable for it and there will be no confusion as between the role of the HSE and the role of the Department of Health and Children. Those charged with responsibility for operating and delivering services must accept the accountability that goes with it. With regard to that Vote, service plans must be produced and approved by the Minister. The Minister and the Department make policy, set targets, agree financial resources, negotiate them with the Department of Finance and so on.

The person who is given the resources must accept accountability. Much thought has been given to this issue. It was originally intended that accountability might remain with the Secretary General of the Department of Health and Children. This necessitates separate layers of bureaucracy whereby those responsible for the delivery of services are not accountable. That is not a good model and does not deliver accountability. One cannot operate satisfactorily if one does not carry the can for how money is spent. This is the change effected in the Bill. It provides a strengthened and more accountable role for the HSE relative to the position of the health boards.

This is the appropriate model for the future. It avoids the confusion that has arisen as to what is the respective responsibility of the health boards and the Department of Health and Children. The strengthened form of accountability provided in the Bill, which is the most powerful accountability that can be given under law, is appropriate for a person with responsibility for a budget of €10 billion. The Garda Commissioner has such accountability in regard to the Vote for the Garda Síochána as do the Revenue Commissioners regarding their Vote. Most people agree that is appropriate.

That is all very well if one is a Minister because the HSE and its chief executive officer are answerable to the Minister.

The Minister is answerable to the Dáil and that will not change.

It changes fundamentally. For example, members of the HSE may come before Oireachtas committees but are not answerable to committee members. They are only answerable to the Minister. Moreover, the argument could be put that they would be going beyond their brief in being accountable to committee members. The Tánaiste is saying that it will be left to the HSE to manage the health service. I respect her view but do not agree that such a system will necessarily provide efficiency and, more importantly, better care for patients.

The Tánaiste has the ideological view that removing responsibility for the health service from the Civil Service and from public accountability will somehow improve the situation. If I were looking for a model as to how to run the health service, I would not look to what is perceived as a well-run business such as AIB, for example. There are some commercial businesses that do not do a good job of providing services. It does not follow that a business is better merely because it is commercial. There is a simplistic view that the health service will operate more efficiently if it is based on a commercial model, but that is not the case. Patients who are very sick are completely powerless and vulnerable. It is our task to serve their needs.

Why will the Minister not accept this amendment? Scrutiny can be written into the legislation to ensure procedures are followed correctly. I do not see the difficulty.

I draw the Tánaiste's attention to an issue relating to accountability. This morning, a bank refused to pay the staff of the Mid-Western Health Board. I appreciate this does not come under the Bill but is the Tánaiste aware——

I cannot allow Deputy Neville to continue. This issue is not relevant to the legislation.

I am taking the opportunity to raise the matter——

The Deputy has acknowledged this issue does not arise in the context of the Bill. I must facilitate progression of the debate.

It is an important issue for the staff of the Mid-Western Health Board.

I do not wish to cut the discussion short but I must move on from this issue. I call Deputy Gormley.

I appreciate that.

What bank is involved in this matter?

It is AIB.

Deputy Gormley should be allowed to speak.

I support Deputy McManus's amendment. The Tánaiste has assured us repeatedly on Committee Stage of her interest in accountability and her desire to improve the legislation in this regard. This amendment, which deals with financial accountability, makes eminent sense and goes a long way to achieve that objective. It is one of several we hope the Tánaiste will accept. Like Deputy McManus, I do not see why it should not be accepted.

I reject the inference that the HSE is adopting what Deputy McManus calls the "AIB culture".

I did not use that term.

The Deputy did use it.

I did not.

Deputy McManus implied that what is being put in place——

That is different.

——is a system akin to that of AIB. This has nothing to do with AIB or any other private company. It is not a question of a management buy-out. Under the current model, accountability is confused and decisions are taken by the health boards that nobody seems to know about, including the recruitment of staff beyond quota and so on. This does not constitute an appropriate system of accountability. Accountability must be clear.

There is no change in terms of how the Estimates will be handled. Deputy McManus seems to be confused that there will be some change in this regard. The role of this committee in regard to Estimates will be no different next year or the year after. There is only one change. Instead of the Secretary General of the Department of Health and Children going before the Committee of Public Accounts to account for the money spent by the health boards, it will be the chief executive officer of the organisation that spends the money who will go before the committee.

This is appropriate and represents progress. It links responsibility with accountability and does not lead to confusion through the existence of an extra layer of bureaucracy. The Minister for Health and Children is politically responsible for the entire system. There is no change in that remit. The budget of €10 billion will not be sent off to some independent runaway horse for which nobody will be accountable. We are laying down clear lines between the policy role of the Department of Health and Children, which is to advise the Minister, set standards and targets, deal with legislation and negotiate the Estimates, and the role of those operationally responsible for the provision of services. Good practice requires that this approach be taken.

The Brennan report considered this issue and was strong on accountability. I accept this report included the contention that the health system should be like IDA Ireland. There is some ambiguity in the report. Many of those who examined health reform believe, above all else, that there must be clear lines of accountability and that those responsible for spending money should be accountable to the Oireachtas through the Committee of Public Accounts. It will be a good step forward in the administration of health services to implement that change. We have made that change at Government and many of the amendments I have tabled are consequential on that. I accept it was a change made in recent weeks and was not covered in the Bill as originally presented. The change was made only after consideration and deliberation as to what represented best practice in terms of changing the culture and improving the lines of accountability and responsibility so that all concerned are clear as to their respective roles.

That is all I am looking for in this amendment.

The amendment is unnecessary. That is what will happen.

Why will the Minister not accept the amendment in that case?

It is unnecessary. Provisions should not be written into law merely for the sake of it.

I shall withdraw the amendment with a view to reintroducing it on Report Stage.

Amendment, by leave, withdrawn.
Section 20 agreed to.
SECTION 21.

: I move amendment No. 46:

In page 20, subsection (1), lines 42 to 44, to delete all words from and including "shall," in line 42 down to and including "Executive." in line 44 and substitute the following:

"shall come before the Joint Oireachtas Committee on Health and Children to discuss any matters raised by the committee on a bi-annual basis on dates decided on by the committee.".

As I explained yesterday, the gremlins seem to have got into the Bills Office. This amendment was intended as an addition to the existing section rather than a replacement. The purpose of the amendment is to guarantee the opportunity for the committee to interview the chief executive officer of the HSE on a bi-annual basis. According to the existing section, the Oireachtas Joint Committee on Health and Children can request the chief executive officer to appear before it, and she or he shall have to do so. Perhaps I am being overly-protective.

This is ridiculous. The Deputy is suggesting that even if the committee does not want the chief executive officer to come before it, he should do so anyway.

I am not saying that. I have listened to some of the Progressive Democrats Deputies on this committee, and they protect the Tánaiste.

Where are they? I do not need anybody to protect me.

They are not here today.

It is my job to protect them.

Deputy O'Malley has done a great job on the Tánaiste's behalf.

If the Tánaiste was to pressure the committee not to request the chief executive officer to come before it, she or he would not come. I would like to have it stated, in some mandatory manner, that the committee has an opportunity to interview the chief executive officer twice a year. It is obviously not phrased as I wish in the amendments. I must resubmit it on Report Stage as an addition to the section, not a replacement. I would like various Oireachtas committees to have the opportunity to make a written request for the chief executive officer to come before them. The chief executive officer must come before the Oireachtas Joint Committee on Health and Children at least twice a year. It is no reflection on the Chair. However, if a majority does not want it to happen, it will not. That is the problem.

Is the amendment being pressed?

I included an amendment on the matter also, although I was a bit late. I proposed the chief executive officer should come before the committee on a quarterly basis. As the Tánaiste mentioned, the Department of Health and Children has a policy of fewer cooks spoiling the broth. I agree with the policy, but there must be accountability. The fear is that the Health Service Executive will be another quango such as the National Roads Authority. The Tánaiste will need a large complaints department. The situation has gone full circle from gross over-representation to complete under-representation and democratic deficit, so this is an important factor. It has been difficult to get Ministers for Health and Children to come before the committee. Promises have been made and broken. I realise Ministers are busy.

(Interruptions).

I must go on my own experience, and other members will back me up. We have had great difficulty in getting Ministers to come before the committee.

That was before, but the situation changes every term.

There will be a different Minister in two years' time.

If it was stated in legislation, we would not need to depend on the Minister. I am not blaming the Tánaiste because she is new to this role. However, she is a busy person and has difficulty in coming before the committee. We had the same problem with the previous Minister so I must presume it will happen again. That is why it is important this amendment is included, and I intend to resubmit it on Report Stage. The chief executive officer should come before the Oireachtas Joint Committee on Health and Children on a quarterly basis.

I am looking for clarification on a matter. According to section 21, "the chief executive officer shall, at the written request of an Oireachtas Committee, attend before it to give an account of the general administration of the Executive." That means the committee can request the chief executive officer to come before it at any time, even if it was every week. Am I right in that assumption?

The problem is the Government parties have a majority on the committee. If their members decide not to call the chief executive officer, that is it.

One cannot predict what members will do.

There is Government and there is Parliament. We have rights as well.

Section 21 states that the chief executive officer shall give "an account of the general administration of the Executive." We must be sure we can raise matters which are relevant and pertinent.

There is a slight difference. The section refers to an account of the general administration of the executive. However, we should be entitled to raise questions we wish on any issue.

That is my point exactly.

I am sure when the caring alliance gets into power, its Minister will attend the committee every week, whether it is Deputy Twomey, Deputy McManus or Deputy Neville. Perhaps it will be a rotating Ministry, or a Deputy from the Green Party.

I admire the Tánaiste's courage in taking on the health portfolio.

If the committee is asleep, it does not issue the invitation. It is crazy to write it into the legislation. I will return with amendments relating to the issue of accountability with regard to the Oireachtas committee and the parliamentary affairs division of the Health Service Executive. I hope members of the committee will be happy when they see them.

I am sure we will.

Amendment, by leave, withdrawn.

I move amendment No. 47:

In page 21, subsection (2), lines 3 and 4, to delete "has been or may at a future time" and substitute "is likely to".

This is a matter that needs to be changed. It refers to what the chief executive officer can do, without accountability, about matters which may have been or may be the subject of proceedings before a court or tribunal in the State. That is far too broad. Any matter might go to court. A very cautious chief executive could come before the committee and say nothing. There is no reason they should not talk about material that has been involved in a court proceeding or tribunal and been disposed of. I suggest substituting "has been or may at a future time" with "is likely to".

I agree with the amendment and will accept it.

Amendment agreed to.

I confirm that I will resubmit amendment No. 46 on Report Stage.

I move amendment No. 48:

In page 21, lines 33 to 36, to delete subsection (9).

The section states: "In carrying out duties in this section, the chief executive officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

: That is the killer line.

That makes a joke of the issue. Either the Minister trusts the Health Service Executive and the chief executive officer to do their job and work professionally or she does not. If she does not, she is gagging the chief executive officer to ensure nothing leaks out that may in any way be critical of the Government. It is astonishing that she would put this type of gag in place. The Tánaiste is bigger than that. However, it is in the Bill. No professional judgment can be expressed by a chief executive officer on issues that may be hugely pertinent. Questions possibly posed by this committee cannot be answered because the chief executive officer is gagged. That is overkill. No CEO worth his or her salt would be stupid about how they relate to this committee or the Government. However, this implies they would be stupid. The Tánaiste is curtailing freedom of expression in an extraordinary manner. She should back off on this issue and have some common sense.

The Tánaiste spoke of a bureaucratic straitjacket. This is a straitjacket and a gag. Her party professes to be liberal, but there is nothing liberal about this measure. This would mean free speech would be gone down the drain. The ability to express an opinion which may be contrary to that of the Tánaiste would be gone and if, as a committee, we were to conduct proper interviews with the CEO, inevitably we would want the CEO to comment on matters which may lead to him or her making a statement that may contradict Government policy, but so be it. If we are to conduct our business properly as a committee — this goes back to the point I made to Deputy Devins — it appears that at every stage accountability is being diminished. Section 21(9) sets the tone for the chief executive officer and lets him or her know he or she had better tow the line and know where the Minister is coming from. On the one hand the Minister wants to give that person freedom, while on the other hand she wants to curtail that freedom.

I support the amendment. Anything related to what happens in the health service may, at some future date, be the subject of proceedings before a court or tribunal. That the chief executive is not allowed express an opinion which would be viewed as contrary to what the Government is doing, or even the merits or objectives of such a policy, is a catch-all gag. If I wasProfessor Halligan, I certainly would not accept the job if it contained such a clause. I ask the Tánaiste to consider changing that clause if she wants a person of the calibre needed to do the job. The individual who applied for the job did not accept it. That is one reason I would not want that job because my head would be on the block. Even in the Minister's interest, the Eastern Regional Health Authority was used as a gag between the people and the Minister but it did not work. History is repeating itself. I ask the Tánaiste to be very careful and to take note of what is being said here.

Did Professor Halligan read the legislation before he decided to refuse the post?

I have a slightly different take from other members of the committee on this issue. In amendment No. 51 I have listed four different issues of accountability to the Dáil committee in the event that the chairman was to come before us. However, I included the provision that he should not question or express an opinion on the merits of any policy of the Government. When civil servants and public servants come before a committee of the House they have that caveat where they do not have to express an opinion that may contradict Government policy — in some respects, that is to protect the individual from taking on board what we should technically call the dirty work of Government. They should be allowed to come before the committee to answer all questions in detail and to comment on what they are doing and how they are working on Government policy. Sometimes the legislation exists to protect the civil servant or the public servant involved.

The other aspects dealing with the economy, efficiency and the exact usage of resources and how the system impacts on the practices in place are the responsibility of the CEO who should point out what is being done. We can infer from that what is happening within the Health Service Executive without putting an individual in a difficult position. We have seen this happen here on numerous occasions when senior civil servants have come before a committee of the House. Sometimes it can be frustrating to watch them as they play the party line as they are not in a position to comment on Government policy. The provision exists to protect them from having to take the blame on behalf of Government.

Rather than focus on that section we should look at the issue of accountability and exactly what would be expected of a CEO when he or she comes before a committee. My amendment No. 51 covers most of the requirements while at the same time protecting the individuals concerned or some other members of the board or one of the directors. They should not be forced into a position where they might have to contradict Government policy but at the same time they should come before the committee and should be able to answer every question put to them. For example, the higher civil servants and Mr. Phil Flynn, who came before the Oireachtas Joint Committee on Finance and the Public Service on the issue of decentralisation were able to answer questions which should be answered by a Government Minister. Perhaps other members of the committee disagree with me but that is my view.

I agree with the view expressed by Deputy Twomey. This is a standard provision which goes back many years, but because it is standard that does not mean it has to be kept. If it is not worthwhile it should go. The Government is responsible for policy. Under our democratic system that is the way it is and that is the way it should be. The Health Service Executive will be responsible for the operation of the policy in so far as it affects patients and users of its service. Therefore, the responsibility of the CEO is to deal with the accountability issues around how the money is spent and how the services are provided, but not to question the policy that the democratically elected Government has decided is the appropriate health care policy.

We have an honourable tradition in Ireland where public servants serve Minister after Minister of different political hues, and do so fairly and professionally, and give advice. They may advise for or against but even where a decision is made with which they may not agree, they defend it honourably and support it professionally. That is the culture here, in the United Kingdom and in many other countries. If we were to change this provision, the CEO would be an independent operator, almost an alternative Minister for Health and Children, and that would not be appropriate.

Deputy Twomey made a valid point. Not only does this provision define the role but it gives certain protections to the person in question. Even if a person has a particular problem with the policy, he or she is required to implement it. That person may not agree with it but his or her professional job is to implement it. They are public servants and their job is to implement the policy of the Government of the day in so far as the delivery of health care is concerned. It would be foolish to put them in a position where they have to answer questions on policy before a committee of this kind when they have no role in policy making. A role is being given to the Health Service Executive in a different aspect of the Bill that where asked to give policy advice to the Minister it can do so, but only when asked. It is not a policy body but no doubt there will be aspects of policy on which it will have useful opinions and where a Minister of the day may want its opinion, but that has to be at the Minister's discretion because the policy advisers will be the officials in the Department of Health and Children. This body is purely an operational body to manage and deliver health services. The provision in this Bill has been included in several Acts in the past and it is appropriate that it is included.

If I were Professor Halligan, rightly or wrongly, I would not have accepted the post with that gag.

He operates under that regime in a different jurisdiction. In the United Kingdom the head of the NHS is also the Secretary General of the Department of Health and Children. That person is not free to come forward and give the merits or otherwise of Government policy for obvious reasons.

The health boards will be abolished and their chief executive officers will no longer be answerable to those elected boards. We, like the Tánaiste, are elected Members. We are members of this committee because of our interest in health, our representation of views and so on. If the chief executive officers of health boards are not in a position to express views to this committee on how something could be done differently, we will never rectify that democratic deficit unless the Minister accepts all the later amendments to restore some democracy or representation to the system. The system would score ten out of ten for accountability and an A grade for its auditing systems, but it has a gross deficit in terms of representation. What is proposed would provide an opportunity for elected members to have a real input into tossing about ideas on policy to decide if there is a better way forward.

The Tánaiste indicated that Professor Halligan had read the legislation.

The legislation had not been published at that time, but I think he was familiar with the draft form of it. It was referred to the HSE. Therefore, through that process he was aware of the broad parameters of the legislation.

In the Tánaiste's view, was he satisfied with the legislation?

I do not believe any aspect of the legislation was the reason he did not proceed to take up the appointment.

The Minister is satisfied with that.

Is the amendment withdrawn?

Yes, pending consideration of the matter on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 49:

In page 21, between lines 36 and 37, to insert the following subsection:

"(10) The chief executive officer 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.".

I wish to press the point as members have done yesterday and today that we are seeking maximum accountability from the CEO of the HSE, the board of the HSE, the local authorities, the statutory bodies and from the Minister and the Department of Health and Children. All the amendments proposing that information be made available by way of parliamentary question and to this committee are simply to press to ensure there is accountability. As the Tánaiste pointed out, the county councillors and professional representatives who used to sit on the health boards no longer do so. Obtaining such information is where accountability of the service will be ensured. This is another amendment to ensure that the CEO of the executive will be accountable by providing information in response to parliamentary questions.

Amendment, by leave, withdrawn.

Amendment No. 50 was discussed with amendment No. 12.

We agreed that the earlier grouping of amendments was far too big and that we would deal with the amendments section by section.

We have already discussed this and I am trying to move forward.

We did not. We agreed that we could not discuss all the amendments because the grouping was far too big and that we would deal with the amendments section by section. Deputy Twomey proposed we deal with the amendments section by section and that was agreed.

We agreed that we would deal with the amendments section by section.

I am trying to do that, but we discussed this amendment with amendment No. 46 which was withdrawn.

I have not discussed this amendment.

I will allow the amendment to be moved, but I am trying to move forward.

I know exactly what the Chairman is doing. I know he has a difficult job, but this is an important Bill. We agreed that we would not group the amendments in the way proposed.

I do not take from that, but I thought we had given this matter a fair airing.

No, we have not.

I concede that if the Deputy wishes to move the amendment, she may do so.

It is a case of sackcloth and ashes.

No, I thought we had given it a fair airing.

No, we had agreed a different arrangement.

I move amendment No. 50:

In page 21, subsection (10)(a), line 40, to delete “Committee of Public Accounts,”.

I wish to make a brief point on this amendment and I will not labour it. The amendment relates to the process of the CEO coming before an Oireachtas committee. The CEO will be required to do so, and if the CEO does not, he or she will be subject to High Court proceedings. Nobody has a problem with the manner in which that is proposed. The problem I have with the section is that the Oireachtas committee, as defined, excludes certain committees, such as the Committee on Members' Interests which is fair enough, but I do not understand why it excludes the Committee of Public Accounts. It should not exclude it.

The reason it is excluded is that the CEO is required to come before the Committee of Public Accounts as the Accounting Officer under different legislation. Therefore, it is unnecessary to include it.

It is to protect that provision.

It is not to exclude it from this process.

I will withdraw the amendment.

Amendment, by leave, withdrawn.

Is section 21 agreed to?

My amendment No. 51 should also come under this section. It should be included before Part 5. It follows on from what we were talking about. In it I lay out more clearly for what the CEO should be answerable when he or she comes before an Oireachtas committee.

I am advised by the Bills Office that amendment proposes the insertion of a new section and that it should come under section 22.

Section 21, as amended, agreed to.
NEW SECTION.

I move amendment No. 51:

In page 21, before section 22, but in Part 4, in insert the following new section:

22.—(1) Whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriate accounts and reports of the Comptroller and Auditor General, the chief executive officer of the Executive shall give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General that the director general is required by this Act to prepare,

(b) the economy and efficiency of the Executive in the use of its resources,

(c) the systems, procedures and practices employed by the Executive for evaluating the effectiveness of its operations, and

(d) any matter affecting the Executive referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993, or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) When performing duties under this section, the chief executive officer referred to insubsection (1) shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.”.

Has the Tánaiste any comment to make on the amendment?

Many of the provisions the Deputy proposes in it can be required by the Minister under section 41. However, in regard to this general area, as the Deputy is aware, I said yesterday that I will return to this on Report Stage and I might be able to do more in this regard, perhaps, by way of regulations. The intention is that there will be a parliamentary division in HSE, that the CEO or senior officers can come before this committee and so on and that any directives issued by the Minister to the HSE will be laid before the Oireachtas or the committee. All of that is important in the interests of ensuring accountability, transparency and good governance from a parliamentary scrutiny perspective.

Amendment, by leave, withdrawn.
SECTION 22.

Amendments Nos. 53 and 54 are related to amendment No. 52 and they may be discussed together by agreement.

I move amendment No. 52:

In page 22, subsection (1), line 3, to delete "and(3)” and substitute “to (5)*”.

These amendments allow the executive to appoint staff for a period of up to three months or a shorter period if the Minister so determines pending its obtaining a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004. It is necessary that the executive is able to continue to recruit professionals and other needed staff, for example, non-consultant hospital doctors, immediately it is established so that there is no risk of an adverse effect on services during the transition period as a result of ongoing staff turnover.

Amendments Nos. 52 and 53 are technical to subsection (1) to provide for the transitional arrangements. Amendment No. 54 provides that all employees will be recruited under the provisions of the Public Service Management (Recruitment and Appointments ) Act 2004, but that requirement does not apply for recruitment for the first three months.

Amendment agreed to.

I move amendment No. 53:

In page 22, subsection (1), line 4 and 5, to delete "recruited under the Public Service Management (Recruitment and Appointments) Act 2004".

Amendment agreed to.

I move amendment No. 54:

In page 22, between lines 6 and 7, to insert the following subsections:

"(2) Employees appointed under this section shall be recruited in accordance with the Public Service Management (Recruitment and Appointments) Act 2004.

(3)Subsection (2) does not apply to employees appointed under this section during the period of 3 months beginning with the establishment day or during such shorter period as the Minister may specify.”.

Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.

I move amendment No. 55:

In page 22, lines 44 to 47, to delete subsection (6) and substitute the following:

"(6) Each scheme must include provision for appeals from a decision relating to a superannuation benefit under the scheme.".

This is also a technical amendment. It requires the executive to put in place a superannuation scheme for its employees.

Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24.

Amendment No. 56 was discussed with amendment No. 12.

Did we discuss it with that amendment?

I do not believe we covered the matter of the laying before the House of details of the advisers engaged or consulted during the preceding year, with details of the amount payable to such advisers.

The Deputy can proceed.

I move amendment No. 56:

In page 23, between lines 14 and 15, to insert the following subsection:

"(3) On or before 31 January each year, the Executive shall lay before each House of the Oireachtas details of the advisers engaged or consulted during the preceding year along with details of the amount payable to such advisers.".

This seeks details on the advisers engaged by the HSE in the preceding year, with details of the amount payable to such advisers. That information would not necessarily be available in the annual accounts. The information would be lumped together. We are seeking separate information at the end of the year on the number of advisers employed, the amount payable to them and what they did. This information should be clear.

I support the amendment. Some 120 reports were produced under the former Minister, Deputy Martin, and they cost millions. One could have bought helicopter emergency medical services many times for that amount. It is in the public interest to know these things. It is a laudable amendment.

The Minister will be able to require that certain matters be included in the annual report and Deputies will be able to put down parliamentary questions on these matters. I am not certain it is appropriate to primary legislation.

With regard to the reports commissioned by my predecessor, it is never a good idea for somebody to engage in major reform of something as large as the health services without adequate consideration and expert advice. The best advice does not come cheap. I strongly defend the actions of my predecessor in commissioning expert advice on various aspects of health care. Perhaps in the past we made decisions without getting adequate advice.

A total of 120 reports is a bit much. I agree with reports, but 120 was a little excessive.

We all agree that advice should be taken by Departments from time to time. All we ask is that the cost of such advice be made clear.

We will specify that.

Amendment, by leave, withdrawn.
Section 24 agreed to.
SECTION 25.

I move amendment No. 57:

In page 23, subsection (3)(b), line 34, before “employees” where it firstly occurs to insert the following:

"subject to agreement with trade unions or staff associations and to any code of conduct promulgated under legislation relating to medical or health care professionals,".

This amendment is to ensure there is agreement. Obviously, we are discussing professionals working in the health area. There must be a guarantee of agreement on this if it is to work. I ask that the amendment be accepted.

No. Obviously, good practice would require consultation. However, the idea that there would have to be agreement is undesirable. The board of the HSE will be responsible for how the body operates. There is an onus on it to ensure there are codes of practice from an early stage but to put an onus on it to have these agreed at every level with every employee is undesirable and could result in long delays before codes could be agreed.

It is reasonable that those who recruit and employ a person should be able to put in place codes of practice that are appropriate for the organisation with regard to issues of integrity and so forth. I am not saying that agreement would not be forthcoming or that there should not be consultation. Of course, there would be consultation. I expect this organisation, with its new manager for human resources, to have the best practices in place from a human resource perspective. There are 120,000 people working in the delivery of health care and many of them are working in a disparate fashion. Some work as home helps in a single home environment while others work in a group or team. It is appropriate that there are codes of practice to govern how these employees perform their duties and the onus is on the executive to put them in place.

I expect the executive would, as a good employer, have appropriate consultation processes, as all good employers have. One need not specify that in legislation. However, making it a legal requirement that the code could only be put in place when there is agreement is too rigid and inflexible.

It is possible, presumably, to change the contracts of employment as a consequence of this legislation.

Under sections 62 and 63, the terms and conditions of somebody's employment cannot be altered. They can only be altered with their agreement because they are in a contractual situation.

Amendment, by leave, withdrawn.
Section 25 agreed to.

We will adjourn now for 20 minutes.

: It is good practice to give everybody a break.

Sitting suspended at 10.55 a.m. and resumed at 11.20 a.m.
SECTION 26.

Amendments Nos. 58, 59 and 59a are related and may be discussed together by agreement.

I move amendment No. 58:

In page 24, subsection (2), between lines 32 and 33, to insert the following:

"(a) the disclosure is in the interests of patient care and is made in accordance with professional ethical standards,”.

This issue has been one of concern to the Irish Medical Organisation which has contacted us about it. I imagine the amendment will be acceptable to the Minister. I cannot imagine that she would have a problem with it so I am asking her to accept it.

No, I am not in a position to accept the amendments. In the interests of public health there are huge requirements on the executive to disclose information, but who makes the decision that it might be in the interests of patient care? Is it suggested that every single employee who works in the health services could decide it was in the interests of patient care to put something into the public domain? That would be a rather subjective decision. An organisation, like any other public body, must operate on the basis of certain requirements. There is an onus on people who work in health care in particular to preserve confidentiality and privacy, subject to certain restrictions that are outlined in section 26. Unfortunately, therefore, in the context of this section I am not in a position to accept the proposed amendments.

My amendment No. 59 follows from what Deputy McManus said. It is important because it applies to the whistleblower theory that has been referred to in the Dáil on a few occasions. It may not be done for personal reasons but if something was happening within the public service — we are looking at the Health Service Executive here — that could be to the detriment of public health, and an employee of the HSE or one of the bodies established under its remit disclosed this information, he or she should be covered by the legislation if it can be shown that such disclosure is in the public interest. This is another important part of overall public service responsibility. There has been some talk of a whistleblowers Bill going through the Dáil.

The Deputy can whistle before he sees that.

That is what the amendment refers to and it should not be dismissed lightly. We should be clear where we are going with this matter.

My amendment No. 59a refers to disclosures in the interest of patient care. It is obvious to a blind person that if somebody knows something is going on, he or she should be able to disclose it in the interest of patient care. Clinical autonomy is recognised in the common contract of consultants. It is also recognised in the guidelines of the Medical Council that if something is in the interests of patient care and that something is being bulldozed through for reasons of economy, there is an obligation to speak out. I have tabled this amendment because the matter is extremely important. Rather than glossing over it, the Tánaiste should give serious consideration to it.

I have been thinking about instances that have occurred that depended on whistleblowers but there is no protection for whistleblowers at the moment. That is why the Labour Party proposed the legislation, which in effect has been stalled by the Government. If one takes the example of Dr. Neary, it took over 20 years for that information — that such barbaric practices were being carried out on women — to become known to the authorities. It was disclosed because two young midwives had the courage to go outside their normal duties and blow the whistle. The law is very clear in this regard and, whichever amendment is accepted, it does not matter because the information a person is disclosing could be tested in law as to whether it is in the interests of patient care and public health. That is the test before anything is done and if that is not complied with the person ought to be found guilty.

There is an issue around reporting in a system that is hierarchical. People have a lot of power and can dampen down or prevent information from coming out that is in the interests of the public good. It would be regrettable if the Minister did not assess these amendments in the spirit in which they are being presented, and come back with a provision on Report Stage. There must be something there for individual conscience allowing for ethical professional conduct. Surely that is central to ensuring patients do not suffer.

On a point of information, section 4.12 of the Medical Council's Guide to Ethical Conduct and Behaviour, the sixth edition of 2004, recognises that doctors have an obligation to point out deficiencies to appropriate authorities and should not yield to pressures for cost saving if it means acting against the interests of patients. I do not think the Minister can ignore that and the clinical autonomy recognised in the consultant's common contract.

Nothing here supersedes that. The Deputy must remember we are putting an administrative management system in place. The executive has an overriding responsibility to promote public health and has recruited a medical adviser with responsibility in this area. Surely we cannot suggest that the 120,000 people who work in the delivery of health care should be free to put something into the public domain if they believe it is in the interests of the patient or public health.

Last week I had a long meeting with the Medical Council on the upcoming legislation governing medical practitioners and I am very sympathetic to the view expressed by Deputy McManus in regard to the Neary-type case, for example. We will substantially strengthen the law in this area. In spring of next year, I will introduce the Health Information and Quality Authority Bill in which the issue of information and quality assurance will be dealt with. As I said, I will give Deputies the heads of that Bill. In the context of the operation of the HSE, we could not have a situation where, effectively, anyone who works in the system could decide it was in the interests of the patient or the public that something was put into the public domain. I do not think anybody would see that as a good practice.

This is not about a bank or any other type of business, it is about people and real lives, about the potential for things to happen, as in the Neary case.

I said I will deal with that issue in the strengthened legislation I will bring in on medical practitioners. It will relate not only to the Neary case, but to who can practice and where they can practice. A parliamentary question has been tabled on this matter today. It will also relate to bringing matters to the attention of the appropriate authorities and putting them in the public domain. For example, there will be provision for inquiries to have a public element so they are not conducted behind closed doors. We will bring in strengthened legislation in this area. As I said in the case of the Health Information and Quality Authority Bill, I would be more than happy to give the heads of the Bill to Opposition spokespersons but I do not believe it is appropriate in the context of a Bill to establish a new management and administrative system to deal with issues of patient——

This body will replace the health boards and will look after many people, so surely there must be some such provision in this Bill. It is very important.

Who does the Deputy think should put things in the public domain? The amendment states "any professionals working in health care". There are 120,000 professionals working in the delivery of health care and——

There must be a provision.

——they are not all doctors, nurses or physiotherapists.

They should have the option to do this under the legislation. Naturally, they will know they are breaking the code of conduct. However, somebody could make a legitimate complaint in the public domain. He or she would then be subject to the code of conduct. If he or she broke the code of conduct as there was no public interest involved, he or she could be disciplined. Under this legislation, even if somebody exposed a legitimate and an important issue in regard to public health, he or she could be disciplined under the code of conduct as it exists. For example, if somebody believes something is wrong and is ignored by or is told by senior management to keep it to himself or herself but decides it is too serious and goes public with it, he or she could be disciplined.

People who work in the health service are, in the main, required to work on a confidential basis. Various legislation is coming forward to regulate professions. A Bill before the Seanad covers 12 professions. There is the upcoming nurses Bill and the medical practitioners legislation. There will be legislation in which issues on the giving of information, patient confidentiality and so on will be dealt with. That is the appropriate place in which to deal with them.

The Deputy cannot seriously suggest that by virtue of the fact that somebody is one of the 70,000 to 80,000 employed by the Health Service Executive, he or she can decide it is in the interests of patient care or public health to release something into the public domain. I do not believe that would be desirable or good practice.

It is a different issue from whistleblowing. I share the view that somebody who brings a matter to the attention of the authorities should not be disciplined, fired or otherwise as a result. Perhaps in the context of the Health Information and Quality Authority Bill, we will deal with that issue, as I did in other legislation which I introduced in a different role. The way to deal with the whistleblowing element is in the context of legislation of that kind and not in this legislation.

The health strategy put the patient at the centre. There has been lots of lip service but this is an opportunity where there could be more than lip service. What if it is proven to be superfluous? At least one is ensuring protection for the patient.

I do not see it as protection for the patient. If somebody brings a patient dinner in hospital, knows what is wrong with the patient and believes it is in somebody's interest to put it in the public domain, I do not think that is good. The issue of what doctors, nurses and other professionals bring into the public domain will be dealt with in the context of other legislation. Perhaps we will deal with the giving of information in more precise terms in the Health Information and Quality Authority Bill.

I am concerned there is such a blanket refusal to deal with this issue. The medical practitioners Bill will deal with medical practitioners and the Information and Quality Authority Bill will deal with a specific area. This is piecemeal. If, on the one hand, the executive is set up without the issues of information and quality being addressed, it will be done on anad hoc basis. The whole idea behind the reform was that these issues were interdependent. An executive is being set up but the chief executive officer will be gagged. Anybody working in the health service who has serious concerns about public or patient care will be muzzled. Even if somebody were to break ranks and speak out under our proposals, he or she would be governed by a requirement that it had to be in the interests of public health or patient care. That would be tested in a court if necessary and he or she would know that.

We are not talking about a scandal-free service. There was the abuse in child care institutions which went on for years. There was the issue of Dr. Neary and the scandal of contaminated blood in the blood bank. Surely those scandals should have taught us that it is better to err on the side of openness than to simply carry on with old practices and say we will do something in the next Bill or the one after that. It is like waiting for the bus.

Whether one is talking about the Neary case or what happened in some of the institutions, those cases were all failures of the regulatory process or the inspection process to police what was going on. The reason there are so many inquiries across a host of activities, mainly relating to the past, thankfully, in some cases the distant past, is that the regulatory authorities did not have the appropriate powers. There was the crazy situation where if the Central Bank knew about something, it could not tell the Revenue Commissioners. There was crazy legislation in this area, but thankfully we have strengthened the law substantially in many respects. Further strengthening is required in the medical area to ensure appropriate staff are available for such purposes as the inspection of nursing homes and other residential facilities, for example. This is the appropriate place to do it.

It cannot be argued that by virtue of being an employee of the HSE, one is not required to carry out one's duties in a confidential manner. An organisation cannot be run if, in theory, all 80,000 employees can at any time, on the basis of a subjective perception, contact a journalist, Deputy or anybody else and offer a patient's details. This is not a desirable or professional arrangement. The freedom of information legislation and other measures guarantee the availability of information in the public domain. The chief means by which professional malpractice can be detected is through the appropriate regulation. This is the approach we intend to take.

However, regulation existed in the cases we have mentioned. People knew what was happening but were afraid to speak out.

That is true.

This is the kernel of the issue. The fear staff experience in acknowledging that something is wrong and must be addressed is the difficulty. I regret that the Minister is disregarding the concerns of people in such situations.

I am not doing so.

That is what the Minister is saying. People in those situations are being told that they cannot speak out even if it is their heart-felt opinion that there is a serious public health issue or an issue regarding patient care.

There is an onus on the HSE to make decisions in regard to public health and it will avail of professional expertise to assist in those decisions. A medical expert has already been appointed in this area as part of the team of people announced last week. That is a different situation from one where everybody is allowed the right to speak out as they so desire. All employees in the State sector are required to work on the basis of confidentiality. Significant protections are in place, however, to allow employees who feel that incorrect actions or procedures are taking place to bring such to the attention of the authorities.

The Minister should try to make that case to the patients of Dr. Michael Neary.

That was a different era. Such issues will be dealt with in the Bill regulating the medical profession.

That legislation will not provide protection for whistle blowers. The Medical Practitioners (Amendment) Act 2002 deals with doctors. It does not deal with a staff member who——

The nurses Bill will deal with nurses. The Health and Social Care Professionals Bill 2004, which is currently before the Seanad, deals with at least 12 professionals. Others can be added to the list by way of regulation. This is the appropriate method of dealing with the various health and social care professionals who work in the health services area.

That legislation has yet to make its way through the Dáil. As it stands, if those two midwives were to make a complaint about another situation such as that of Dr. Neary after 1 January 2005, they could be suspended.

That is not correct. It is not a question of making complaints. The issue is the transfer of information into the public domain. That employees are required to work on the basis of confidentiality does not mean they are required to cover up wrong-doing. That is a completely different scenario. If any such wrong-doing is covered up, the HSE is responsible. For example, if a public health issue is not given into the public domain, the executive must take responsibility for that failure.

The problem, as the Minister observed, is that the definition of wrong-doing is subjective.

In the case mentioned, the midwives' claims of misconduct were denied by Dr. Neary who insisted that his actions were correct. This is the problem. There must be some facility for whistle-blowing. Perceptions of wrong-doing may well be subjective, as the Minister observed, but there must be protection for employees in this regard. Any possible instance of wrong-doing will produce disagreement as to whether the behaviour in question was incorrect. There any many examples of such controversies, including the issue of organ retention. The Minister cannot ignore this and dismiss the arguments of Opposition Members. We have made a legitimate point.

I acknowledge respectfully that the Minister, or any Minister for Health and Children, wants to do what is best. However, the role of the Minister for Health and Children is a very political one because that is the nature of the adversarial system in which we operate. It is important that doctors operate independently and that they and other health service employees can avail of a process that allows them to speak out.

The Medical Council's guide to ethical conduct and behaviour states:

It is recognised that medical care must not be used as a tool of the State to be granted or withheld, or altered in character, under political pressure. Doctors require independence from such pressure in order to carry out their duties.

In this context, the legislation puts more pressure on the Minister for Health and Children, who will now call every shot. This concern is not directed personally at the Tánaiste. In the future, however, another Minister might try to do something in a political way. There is an onus to incorporate this amendment into the legislation to ensure that doctors can operate independently and speak out when such is required. There must be a facility that allows them to do so without fear of penalty.

The Minister for Health and Children has overall responsibility for the operation of the health service. There cannot be a situation where a health services employee can decide, in his or her view of the interests of a patient, to contact a journalist, Deputy or some other person with the details and circumstances of that patient's condition and treatment. This is an undesirable scenario for a host of reasons.

We are aware of the recent sad case of the patient with variant CJD. When the departmental medical officer informed me of this case, my first action was to establish whether there was a public health dimension. A meeting was held with the departmental expert group, chaired by Professor Wall, which established that there was no public health dimension. The young patient's family was under considerable pressure and wanted the confidentiality of the case respected. In such a case, a hospital employee with no relevant expertise may decide it is in the interests of the patient concerned, some other patient, or the general public that the case be brought into the public domain. It is for the professionals to make these types of decisions, not any person involved in the medical care of the patient or an administrative worker who can access the relevant documentation. This is not a good idea.

Regulation must be strengthened. It is not acceptable that what happened in the Dr. Neary case could continue for so long undetected. I suspect that even if a journalist had been tipped off and received the medical view, he or she would have accepted that nothing was amiss. That was the culture under which most of us operated, whereby a doctor's opinion was accepted without question. We must move away from that situation and we will be dealing with this and many other issues in the context of the upcoming legislation.

There must be a public dimension to the inquiry process. It is not satisfactory or transparent that such investigation is done entirely behind closed doors. I had a useful discussion with the Medical Council on this issue and am confident we will get strong legislation in this area and also with regard to nurses and other medical professionals. This is the correct way to deal with the issue of the "giving of information" in the patients' interest. The Minister for Health and Children and the chief medical officer of the Department have significant responsibility in terms of bringing public health issues into the public domain. They are the experts charged with that function.

The Minister for Health and Children occupies a political role and is bound by the party line.

The medical officer of this board is not political.

But he cannot say anything.

There is an overriding duty on the board to promote public health.

: The chief medical officer cannot criticise. He is not allowed to say anything at all. The Tánaiste stated the disclosure facility cannot be provided because too many people are employed by the health service. Would she qualify that by reference to professionals?

What is a professional? The chef in the kitchen is a professional.

Is he a medical professional?

What is a medical professional?

For example, nurses, paramedics, doctors——

Ambulance drivers.

They are also professionals.

I do not try to be smart. I approached Committee Stage with the intention of accepting reasonable amendments and my approach has been reasonable and fair. However, I cannot write something into the legislation that could have unintended consequences, which would be the effect of the amendment. I appeal to the Deputies to avail of the information and quality assurance legislation, which relates to the provision of information and ensuring the highest standards apply in the delivery of health services, to pursue this issue. That would be appropriate legislation, as would other regulatory legislation relating to the different professions, not this management administrative legislation.

Will the Tánaiste be available later to take part in the debate on Part 9, which relates to sections 49 to 59, inclusive, and the complaints procedure under the legislation? If so, I will withdraw my amendment.

There is a culture within hospitals whereby staff do not raises issues of concern with their superiors because it would be seen as unacceptable conduct to do so even where they are extremely worried. Nurses, in particular, have expressed that concern. Approximately six months ago, I was contacted by a member of staff in a psychiatric unit who expressed extreme concern about decisions being made whereby patients who sought a second opinion from another psychiatrist were immediately recommended for long-term care by their current psychiatrist. I sought permission to raise that issue but the person was so concerned about being identified that my hands were tied and I could do nothing. Maximum care should be provided and staff should be encouraged to raise concerns. However, the culture within the health system is not to do so and it is a threat to one's future within the health service at clinical level.

Amendment, by leave, withdrawn.
Amendments Nos. 59 and 59a not moved.

Amendments Nos. 75 and 76 are related to amendment No. 60 with amendment No. 76 being an alternative to amendment No. 75. All may be discussed together by agreement.

I move amendment No. 60:

In page 24, after line 44, to insert the following subsection:

"(4) The Freedom of Information Act 1997 shall apply to the Board with effect from the establishment day.".

Given the discussion we had on the previous amendment, I imagine the Tánaiste will accept the amendment. While there is a reference in the Schedule to the Freedom of Information Act 1997, it is important that, rather than doing anything by regulation which inevitably will be delayed, the legislation should clarify that from day one this project will be open to scrutiny under the Act.

I am well disposed to the Deputy's comments and I will table an amendment on Report Stage relating to freedom of information.

I am delighted but what is the problem with my amendment?

The amendment applies to the board and not the executive, according to the Attorney General's office.

That is fair enough.

Amendment, by leave, withdrawn.
Section 26 agreed to.
Section 27 agreed to.
SECTION 28.

I move amendment No. 61:

In page 25, subsection (1)(a), line 35, after “section 32” to insert “and laid before the Houses of the Oireachtas”.

This is another of the more than 25 amendments I have tabled in this regard and, hopefully, it will be given due consideration by the Tánaiste before Report Stage.

I hope to table an amendment on this issue.

Amendment, by leave, withdrawn.

I move amendment No. 62:

In page 25, subsection (1), between lines 38 and 39, to insert the following:

"‘capital plan' means any plan the purpose of which is to acquire a fixed asset or to significantly extend the life of an existing fixed asset;".

I propose a number of amendments to the section. The Bill was drafted on the basis which currently exists in respect of health boards and this would have required the Minister to make a determination to the executive. With the establishment of a certain Vote, the Dáil is responsible for sanctioning funding for the executive through the Estimates. The Minister cannot override or interfere in a decision, which is the responsibility of the Dáil, and references to the Minister making a determination must be deleted. Consequently, amendments must be made. The amendments delete definitions that would have been required under the old structure.

I could not follow that. Will the Tánaiste explain that again?

This relates to the accountability issue. Once the Dáil settles the Estimates, the Minister will not make a determination subsequently, which is the current arrangement. In other words, the Dáil will set the overall context of the Estimates and the Minister can subsequently make a determination between the health boards. He or she will not do so if the amendment is made. It relates to the accountability of the chief executive officer. The Minister's powers relate to amending the service plan and so on. Once the Dáil has made a decision on where the money is to be allocated following the Estimates process, it is not open to the Minister to make a decision subsequently, unless a Supplementary Estimate is introduced.

Will the Minister have power to move money around?

Yes, through the service plans. Three weeks after the Estimate is settled, the executive will be required to come forward with a service plan. The Minister will be able to specify what should be in the plan and can accept or reject it. His or her power centres on the plan rather than the Estimates process. The supreme authority is with the Oireachtas through the Accounting Officer.

If a budgetary shortfall in the system during the year becomes critical and the Minister does not agree with the decision of the chief executive officer and the executive on how to deal with it and prefers that they should use moneys allocated for other services, can they say "no"?

The Minister has broad powers to give directions to the executive.

Is the Tánaiste saying the Minister will not have broad powers in regard to budgetary decisions?

The Minister can direct the executive to amend its service plans.

Why has the amendment been tabled?

The amendment is required under the Comptroller and Auditor General's Act.

Does it have any meaning? If the Minister can override the HSE on the question of——

I cannot override it on the basis of a telephone conversation.

The HSE may decide that because there is a crisis in one area, it will, for example, remove it from community care and wipe out all kinds of community care services.

It would have to come back to the Minister with the revised service plan.

If the Minister does not agree with it, the HSE could say it is in charge of the money, therefore, the Minister will have to provide extra money.

Any changes to the service plan must be approved by the Minister. This is where the Minister's powers lie in the whole handling of the service plan, including its amendment and so on.

If there is a dispute it can say that if the Minister wants her way she will have to provide extra money.

No. Initially the service plan must be approved. If the HSE wishes to change the service plan, it must propose an amendment. If more money is required, there must be a Supplementary Estimate, which will go through a similar process to the current process.

Is the Minister saying that the detail in the service plan must be fairly accurate?

There is a tight timeframe because currently the service plan process can go on forever. It could be the middle of the year and half the money is gone before one knows how it will be spent.

The service plan will be fairly detailed in the beginning.

Yes, very detailed.

It also means that if any Deputy raises questions as to why the hospital in Tuam, for example, is not provided or I do not get the 19 beds in County Wexford, it will be the responsibility of the HSE.

I assure the Deputy that if the 19 beds, or whatever number of beds, or the hospital are not provided, it is not the HSE that will take the rap, it is the Minister. If the Minister has not provided the money for X, Y and Z, there is no question of saying the HSE is supposed to do the impossible with the money provided. We are simply trying to make it fulfil the accountability role and make the procedures fit in with that on legal advice.

Amendment agreed to.

I move amendment No. 63:

In page 25, subsection (1), to delete lines 39 and 40.

Amendment agreed to.

I move amendment No. 64:

In page 25, subsection (1), to delete line 43.

Amendment agreed to.

I move amendment No. 65:

In page 26, subsection (1), to delete lines 1 and 2.

Amendment agreed to.

I move amendment No. 66:

In page 26, subsection (1), to delete lines 3 to 5.

Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29.

I move amendment No. 67:

In page 26, subsection (1), line 11, to delete "Minister" and substitute "Dáil".

I asked on Second Stage that the Dáil should be given an opportunity to discuss and amend the corporate plan, and that it would not be a matter for the Minister to approve it and subsequently lay it before the House. It is a question of what role does the Dáil play in the process or is it simply a matter of the Minister liaising with the chief executive, and the whole thing remaining in that sphere, or will the Minister democratise it and broaden it out? I do not understand what good it will do if the Minister lays the corporate plan before the Houses of the Oireachtas which has had no input into it. There are two political philosophies at play here whereby the majority takes all, or does the Minister believe in Parliament having an input into the plan? The corporate plan lays down policy, therefore, Deputies elected to the House, and not just the Minister, should have an input into the plan.

The Oireachtas has been given a very central power, namely, the power to hold the Executive to account.

Through the discussion we had earlier, first, in that the CEO is the Accounting Officer, responsible to the Oireachtas for how the money spent, second, through asking parliamentary questions and, third, through amendments I will table to strengthen the requirement of the CEO or senior management to come before the appropriate Oireachtas committee. However, we cannot have a situation where the corporate plan of a body, in this case a public body, would have to be approved by a committee of the Oireachtas.

By the Dáil itself.

That is not acceptable. One can approve the Vote and where the money is spent, but how an organisation organises itself and what strategies it pursues are matters of policy and matters for the Minister to approve, not matters in which the Oireachtas should be involved.

It goes back to our definition.

Should the HSE have eight managers, not six or nine managers? These are all logistical issues to do with the implementation of the policy.

It goes back to the old argument. We referred earlier to people being elected democratically to health boards, a practice which is to be abolished.

Health boards have virtually no power. The reserve powers of members were diluted substantially in 1996.

Some 166 Deputies are elected by the people who can vote us out if they wish. We, as elected representatives, should have some input into the corporate plan, or will this body remove more and more power from this House? The Government, which has a majority, has an input into the plan and more than likely will approve it. However, all of us should have an input into it and we should be able to amend the plan. It is so obvious, but clearly it is not obvious to the Minister. The Minister said that Members can table parliamentary questions, but I would like to specify the areas on which we can ask parliamentary questions. I believe we will see more and more letters coming back from the Ceann Comhairle stating that he is ruling the question out of order because it is a matter for the health executive. It should be enshrined in the legislation that what we can now discuss is not ruled out of order, so that if the legislation is passed we are not limited as we proceed.

I welcome the fact that the Minister has confirmed she will strengthen the accountability rules. However, a democratic input is lacking and the function of the House is becoming redundant. We can sit here and make observations about matters but our input is very limited. It is a matter for the Tánaiste in this case, and the Minister for Health and Children in the future, liaising with this person, coming up with a plan, subsequently laying it before the House and that is the end of it. We will have no more to say on it.

Dr. Cowley

There is a democratic vacuum. Prior to this there were the health boards, CEOs and the plans were put before the elected members. However, there were problems in that the plan could not be agreed if the members did not agree with it. The Minister often had to make a decision, but at least a democratic process was in place. While I was one of the first Deputies to call for the abolition of the health boards, we have thrown out the baby with the bath water. The democratic baby has disappeared and that baby needs to be brought back. The vacuum needs to be filled.

While the Government has a majority, the Minister for Health and Children has taken responsibility for everything. Surely she should share the responsibility in a democratic way. Why is she afraid of democracy? It is about the Minister taking on the responsibility herself, which is not right. We are all elected to do a job and things will be happening throughout the country into which Members of the Dáil will have no proper input. The Government has a majority and, ultimately, it will vote with the Minister for Health and Children. It is important that the Dáil has the opportunity to serve democracy in a meaningful way and take the heat off the Minister. I urge her to consider this amendment again.

I am serving democracy, not bureaucracy. That is why I do not wish to impose huge bureaucratic conditions on the new body.

The Oireachtas will have more power under this legislation than under the current regime as the health boards are not accountable to it. Members of the health boards lost many of their powers in 1996 to the executives of the boards. The same applied to members of local authorities. There is the appearance of democracy because local authority members sit on health boards but the reality is different. The Bill will strengthen the power of the Oireachtas to hold the CEO of the Health Service Executive to account. It will require the CEO to come before this committee. I will bring forward amendments to strengthen this requirement. The Bill will require the HSE to have a parliamentary division and to respond within a reasonable timeframe to queries from Members of the Oireachtas. I will bring forward amendments to this effect. These powers are much stronger than those applying. I am giving power to the Oireachtas, not taking it away.

We must be pragmatic and sensible. We cannot have a situation where a body cannot move without this committee gathering six or seven months hence to approve its corporate plan. There are logistical issues which should be agreed, subject to ministerial approval regarding resources and so on.

It is a question of balancing pragmatism with——

Idealism.

It is not just idealism; it is democracy. I hope the Minister will bring forward her amendments to enable us to see what she is proposing in order that we can hold the people concerned to account. I hope we can be absolutely guaranteed that they will come before this committee.

Is the Minister guaranteeing that there will be no cutting back on the questions we can ask in the House? Is she saying that will definitely be the case?

Of course but ultimately it will be for the Ceann Comhairle to decide. Within the past 24 hours someone gave me an example where the same thing had been asked in two questions and one had been ruled in and the other out. I cannot be responsible for this.

When I came into the Oireachtas in the early 1980s, the largest volume of parliamentary questions was to the Minister for Social Welfare. As a result of changes in technology and internal practices in that Department over a couple of years, Deputies do not need to submit half as many questions to the Minister because they have direct access to replies electronically or by telephone. I would like to see the HSE operate on the same basis. That is why a parliamentary affairs division would greatly assist the work of Oireachtas Members in getting information quickly, not only when the Dáil is sitting. Members of the Oireachtas should have 12 monthly access to a division which would respond to queries within a reasonable timeframe.

I welcome that.

I share Deputy Gormley's concern. The Tánaiste remarked that staffing would be the business of the HSE, not the Dáil. Everything to do with this executive is the business of the people. I am concerned that, as the Tánaiste said, the Ceann Comhairle will rule on questions. Will the information we request be kept from us, just as information on the National Roads Authority is not available to us? Will the Minister tell us she has no function in the matter? There is a real fear that the HSE will be like all the other quangos and that information on it will not be available. In Northern Ireland, for example, there are quangos in many areas. That is a real fear. The Tánaiste has not convinced me that the situation will be different from what Deputy Gormley or I have said.

Instead of Deputy Gormley having to wait for a long time to find out when a constituent will get a certain service, I hope he will get the information much more quickly under the new regime. It will take a couple of months to put this system in place. The present situation is very unsatisfactory. When a parliamentary question is submitted to the Minister for Health and Children, the Minister replies that the query must be referred to the health board. Two thirds of the questions to the Minister for Health and Children receive that answer. God only knows what happens to them after this. They take months to be answered. That will not be the position under the new regime because it is not acceptable that either patients or Members of the Oireachtas should be treated in this way.

What will happen when we ask about waiting lists or the accident and emergency service? Will the Minister answer the question?

Questions about waiting lists will be answered by the Minister. I have ultimate responsibility and none of this will change. Deputies should not think I am plotting in order that next year they will not be able to ask the Minister any questions. That will not happen.

I appreciate what the Minister is saying. However, it is important to differentiate between questions asked on behalf of a person who is having difficulty accessing services and other questions. It is wonderful when questions in the first category receive a speedy response and the person receives the service. The other issues are separate and different. They refer to whether the HSE is living up to its promise or getting itself into difficulties. I am looking at the Minister's amendments regarding capital expenditure and indebtedness. Three major sections are being removed from the Bill which I would have thought were important in terms of accountability. I am not certain the message has got through to the Minister with regard to assessing progress or otherwise in respect of this total change in management.

The Minister may say health board members have not had significant power since 1996 but the system was transparent. That is the difference. No one is saying it should have been retained in the way it had developed. Nevertheless, there was a transparency which is now lost. That is the issue which concerns us as much as looking after our constituents. The parliamentary division will be fine and I hope it will lead to better service. However, the comparison with the Department of Social Welfare is invidious.

It is agreed on all sides of the House that the remarkable transformation in the Department of Social Welfare in the early 1980s led to a change in the practice of responding to queries from Members of the Oireachtas.

It was not remarkable but I would not overdo it. Obviously, the Minister has not tried to get a lone parent's allowance for anyone recently. There are still problems in that Department. Does Dr. Devins agree with me?

I make no comment.

Amendment, by leave, withdrawn.

I move amendment No. 68:

In page 26, subsection (4), line 34, after "Executive" to insert the following:

"and the role played by the community and voluntary sector in the development and provision of health services".

I am anxious to know if the Tánaiste will take into account the role played by the community and voluntary sector in the development and provision of health services. I withdraw the amendment but hope to discuss the matter on Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 69 and 70 not moved.
Section 29 agreed to.
SECTION 30.

I move amendment No. 71:

In page 27, lines 7 to 20, to delete subsections (1) and (2).

I tabled the amendment in the hope we would have an opportunity to debate the matter in the House. It is clear we will not have such an opportunity and on that basis, I will withdrawn the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 72:

In page 27, subsection (2), line 19, to delete "or" and substitute "and".

There is no reason the information should not be available on the Internet. Also, not everybody has access to the Internet.

It is a reasonable amendment to which I will come back on Report Stage.

Why does the Minister not just say "yes". What could possibly be wrong with that?

I must make sure the legal language is correct. I am accompanied by cautious, professional experts.

Amendment, by leave, withdrawn.
Amendment No. 73 not moved.

I move amendment No. 74:

In page 27, subsection (3), between lines 23 and 24, to insert the following:

"(b) in a form which details the activities which are occurring and any proposed changes which are likely to arise in each local agency and each local hospital, and”.

As the health boards and services are being amalgamated it might be difficult for us to make a comparison at the end of the first year in terms of how things have improved. The legislation deals with implementation of the progress reports and improved corporate plan. Perhaps we could be given a breakdown of such reports in terms of how each local area or hospital has been affected in order to make comparisons with previous years. It is important individual Members are able to monitor progress in their areas. This could be done by providing, in the first year or so, concise breakdowns of what is happening in each area

I will consider that matter in terms of how the Minister prescribes what should be included. I will come back to the matter on Report Stage. I presume the Deputy is referring to the period from 2005 to early 2006. I will reflect on the Deputy's comments on the matter.

Amendment, by leave, withdrawn.

I move amendment No. 75:

In page 27, lines 26 to 35, to delete subsection (4).

I am seeking the deletion of subsection (4) which deals with access to information. I understand that maintenance of this provision will mean nothing will be published on draft plans for five years. What do we have to hide? Why cannot this information be available in the public arena?

This provision again raises the culture of secrecy endemic in the health system, a culture which has led to many of the problems now being experienced. The Minister says that is all in the past. If we continue in this way, we will again encounter cover-ups and malpractice being brushed under the carpet. It is important there is some form of transparency here. The trend throughout this legislation has been to keep things down and out of sight. This particular provision is completely unacceptable. I have always praised the previous rainbow coalition Government on its introduction of freedom of information. However, since this Administration came into office some seven and a half years ago, that has been unravelling, something which I find unacceptable.

This is a sea change from what went on before in terms of transparency of health boards, discussions on draft plans and the CEO's report. That this matter is not to be discussed by the Dáil but will be decided by the Minister is not acceptable. Surely the Freedom of Information Acts should apply if there is to be any semblance of transparency. I urge the Minister to look again at this issue.

We are seeking to provide protection for what is broadly called the deliberative process. I am a great fan of freedom of information and of the giving of information. However, there has been a huge change in the culture of public servants since the introduction of the freedom of information legislation. There is no doubt but that less is now written down. Questions are being asked as to whether we are making decisions based on the best possible advice if restricted notes are being written. Every good thing has its downsides. There are downsides and upsides to this.

We want to ensure the deliberative process, in the context of matters being considered and various options being put forward, is protected otherwise the unsatisfactory situation will arise whereby decisions will be made without matters having been fully considered or discussed only in an oral context. I am prepared to accept the next amendment in Deputy McManus's name in relation to the Freedom of Information Acts but it would not be good practice to agree to this one.

I find our lack of confidence in this area odd. Everybody, particularly those in the health service, understands that this is about choosing priorities and ensuring money is wisely spent. There is nothing wrong with that. That is how it is and everybody understands that. A Government sets its priorities, puts in place a management structure to implement them and decisions have to be made accordingly. There is no reason that process should not be transparent. What is wrong with that? Either one has confidence in what one is doing——

Is the Deputy suggesting that every meeting of the HSC should be held in public?

That would be a great idea.

The Deputy knows that bodies cannot operate like that.

It would be a great idea.

We might look at how that would operate when the Labour Party holds its meetings in public. We must be realistic.

I do believe HSC meetings should be held in public.

Does the Deputy seriously believe HSC meetings should be held in public?

I do not because very little would be discussed at public meetings.

Amendment, by leave, withdrawn.

I move amendment No. 76:

In page 27, subsection (4), line 27, to delete "to" where it firstly occurs and substitute "and".

Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31.

I move: "That section 31 be deleted."

I propose the deletion of section 31. The deletion also arises from the appointment of the chief executive officer as an Accounting Officer. Section 31 was drafted on the basis that the Minister would be making an annual determination. Instead, the Executive will have its own Vote for which the Dáil will sanction funds. Based on legal advice from the Office of the Attorney General, this provision is incompatible with the Vote structure we are putting in place and must, therefore, be deleted. The deletion of this section also gives rise to a number of consequential amendments.

This is a major proposal which, if accepted, would remove various provisions the result of which will be that the Minister loses all the powers specified. Will the Minister lose all those powers?

It will be done by the Secretary General acting on behalf of the Minister.

What the Minister is basically saying is that when the budget is published next year it will just mention the HSE and a figure.

In terms of the Oireachtas the procedure will be the same. In the summer of next year we will have discussions with the HSE and will negotiate, as we do currently, with the Department of Finance, the Estimates for the subsequent year which will have to be approved by the Oireachtas and discussed at this committee. Then the money goes to the HSE. The Minister's role in that is to produce the service plan which must be produced 21 days later. In advance of getting the money the Minister will discuss with the HSE its plans for the following year.

In terms of the formality or legal process, the service plan must be produce within 21 days and it can be approved or amended. With regard to how the money is spent afterwards, responsibility and accountability for it rests with the chief executive officer who will be accountable to the Oireachtas. It is very like the way the Garda Síochána, the Courts Service, the Revenue and other bodies operate.

The subsequent amendments are consequential on that. They are essentially technical, legal amendments in terms of their input from the parliamentary or ministerial perspective. They do not have huge consequences.

They are significant, have some consequences and are, therefore, worth examining. The Estimates are broken down with regard to grant and aid. Will that breakdown appear in future Estimates?

Currently under the Bill the service plan is not available to us or published. I presume the Minister will ensure it is. Also, one of the later sections of the Bill is related to this section and concerns indebtedness of the HSE. I am unclear about who will have a watching brief to ensure both the Minister and the executive do not get the system into difficulty with regard to indebtedness. The Minister has lost her power by withdrawing these provisions.

To be honest, currently the power is dubious and many health boards have got themselves into difficult situations.

That is the point.

We are removing that. The chief executive officer will be responsible for the spending of the money. We will deal later with the issue of borrowing by the executive and how that could happen etc. However, the executive must live within its budget.

I know and so did the health boards. However, we all know what happened.

There is a much stronger legal requirement here than there was with the health boards because the line of accountability is clearer.

The Minister is removing many of the powers from the Bill now as a consequence of the decision——

I am not. The Minister still has the same powers.

Why are they being taken out so?

The difference relates to who is the accountable officer for the purpose of signing on the expenditure. Currently the Minister has overall responsibility and the health boards spend the money. The health boards submit service plans, but it can be up to the middle of the year before they are agreed. Therefore half or three quarters of the money can be spent before a service plan is finally agreed, which is a very unsatisfactory situation. The people spending that money are not accountable to the Oireachtas but to the Secretary General of the Department of Health and Children. The current line of accountability is confused and unsatisfactory. Under this legislation the chief executive officer of the Health Service Executive, which is spending the moneys on behalf of the taxpayers, will be accountable. On the advice of the Attorney General, many of these provisions are necessary to ensure computability with the accounting regime.

One provision that the Minister is removing allows the executive to borrow money only with the prior consent of the Minister, given with the concurrence of the Minister for Finance.

The Minister is removing that from the Bill, but perhaps I am getting ahead of myself here.

Yes, we will deal with that issue later.

All right.

It is important that we get access to the corporate and service plans early rather than a year and a half later when the first report is published. We should know, almost as it is happening, what is going on in the HSE. That is vital.

At present the situation is that the Minister negotiates the Estimates with the Department, the Dáil approves the Estimates which then get divided out by the Department to all the various health boards which then come up with service plans which, apparently, can take months. The person held accountable for this is the Secretary General of the Department of Health and Children.

I believe that when we give out the money we should agree the service plan and where the money is to be spent and that the person spending it should be accountable and answerable to the Oireachtas for it. This is a much clearer and more transparent line of accountability. It is a system under which it is easier to hold the person to account than the current regime. I accept that with so many health boards and so much administration we could not have had a regime like this in the past when, if we exclude the ERHA, we effectively had 11 people with these kinds of powers. It is much clearer when we have one person over one body whose sole function is to deliver the services, be operationally independent and be accountable to the Oireachtas for whatever moneys are given.

This line of responsibility is clear and I believe it will work. The departmental role is one of advice and policy and negotiation of the Estimates, etc. Ultimately, the Minister holds the HSE to account and has the power to fire it if it is not doing its job.

From our reading of the reports forming the basis of the HSE, we have more or less understood that this is the Minister's proposal. Many of our amendments seek to ensure that we can get access to information so that we know what is happening.

Question put and agreed to.
SECTION 32.

I move amendment No. 77:

In page 28, subsection (1), lines 21 and 22, to delete "after receiving a net non-capital expenditure determination".

It is quite confusing. Yesterday we agreed we would not bunch many amendments together, but now we are doing so.

Amendment No. 77 was discussed with amendment No. 30. If the Deputy has any difficulty with that perhaps she would elaborate.

Is this all tied in with the role of the Accounting Officer?

Yes. In the new accounting regime, the Vote will have to include any additional income that the executive will receive such as hospital charges, income from road traffic accident cases, disposal of land, car park charges, canteen receipts etc., in order that there will be a clearer indication of the resources being used. Currently this does not happen as it is done by way of appropriations-in-aid, which is not clearly spelled out. There is always a sum of money for it, but it is not clear what it is.

Amendment agreed to.

I move amendment No. 78:

In page 28, subsection (1)(a), lines 24 and 25, to delete “to which the determination relates” and substitute “as may be determined by the Minister”.

Amendment agreed to.

I move amendment No. 79:

In page 28, subsection (2)(a), lines 29 and 30, to delete “Executive receives the net non-capital expenditure determination” and substitute “publication by the Government of the Estimates for Supply Services for that financial year”.

Amendment agreed to.

Amendment No. 80 has been discussed with amendment No. 30.

I move amendment No. 80:

In page 28, subsection (2)(b), lines 31 and 32, to delete “longer period (not exceeding 42 days after the receipt of that determination)” and substitute “other period”.

I am concerned about this amendment. The phrase "other period" could mean anything. I am not clear about this but it seems the Minister is allowing an open-ended arrangement, even though the thrust of her argument has been to pin people down and have clear lines of responsibility. The limit specified in the Bill, not exceeding 42 days, is being removed by the Minister and substituted with the words "other period". I read this as being open-ended.

I am advised that should the Book of Estimates not be published by the beginning of December and the budgetary timeframe change for whatever reason, in that extraordinary circumstance——

Then the Bill should state that. If that is the problem, it would be better to spell it out because otherwise it will be open-ended. Will the Minister look at the provision again and reword it to ensure it will be clear?

The legislation specifies the period which I think is reasonable. It is 21 days for the service plan. The Bill states:

For the purpose of this section, the specified period is—

(a) 21 days after the Executive receives the net non-capital expenditure determination, or

(b) such longer period (not exceeding 42 days after the receipt of that determination) as the Minister may allow.

If it has to do with the Estimates, a period is specified.

That is the only circumstance. I accept the Deputy's point and will look at it before Report Stage. She is asking me to include a reference to the Estimates.

Will the Minister come back with an amendment?

Amendment agreed to.

I move amendment No. 81:

In page 28, subsection (3), between lines 37 and 38, to insert the following:

"(b) indicate any capital plans proposed by the Executive,”.

The same argument applies to this series of amendments. One is consequential on the other.

Amendment agreed to.

Amendment No. 82 has been discussed with amendment No. 30.

I move amendment No. 82:

In page 28, subsection (3)(b), line 38, to delete “income, expenditure and”.

A service plan must be formally prepared in accordance with directions issued by the Minister. Why is the Minister proposing, therefore, to delete the words "income" and "expenditure" in subsection (3)(b)?

Because it relates to the Accounting Officer. This will be determined when we give it the Vote. In other words, if we had gone for the old income related system, the appropriations-in-aid related issues would not have been clear at Estimates stage. That will now be part of the package. In other words, when the Dáil votes through the Estimate, it will provide for its income and expenditure.

Why can it not be included in the service plan about which the Minister is talking?

That is correct.

The Minister is preparing a service plan which will contain the Estimates on income, expenditure and number of employees. As everybody is happy with this, why is the Minister changing it?

The Minister is required to approve the service plan. The Minister does not have the power to do this after the Oireachtas has decided what the income and expenditure will be. The Oireachtas will do this prior to the submission of the service plan. When the Oireachtas deals with the Estimate, it will deal with the HSE's expenditure and income. The Minister will not be free thereafter to approve its income and expenditure. The Minister will approve the service plan in terms of where the money will be spent.

It does not mean it will be different but that it will be included in the service plan.

The Minister has to approve the service plan. The Minister cannot be left with a power which he or she does not have. The Oireachtas will exercise that power. The service plan will come after the Estimates of income and expenditure have been determined and agreed by the Dáil. The plan will deal with the services to be provided.

It is not contradictory. It is not stating it will change what is contained in the Estimates.

The legal advice of the Attorney General is that the Minister cannot approve income and expenditure subsequent to a Dáil vote.

The Minister is not doing that. The Minister is approving a service plan which contains the Estimates of income and expenditure as well as all the other material. If it is the same——

This states it contains the Estimates of income and expenditure.

That is what we are talking about.

The Estimates of income and expenditure will already have been settled. To a large extent, many of the issues to do with the Accounting Officer are legal. Essentially, what the Attorney General says is the level of income and expenditure will be determined at that point. The service plan will include the services to be provided. The Minister can alter and must ultimately approve the plan. Next year the sum will be €10 billion. Some 21 days later the HSE cannot come back with estimates because the matter will have been determined and the Minister will have no role thereafter.

We tend to use the word "estimate" even though everything has been agreed. We use it right through the year. I would have thought information on income and expenditure should be contained in the service plan, particularly if is to be published. It seems odd to remove essential information. I am not saying it should be changed by the Minister but that it should be included in the service plan. I ask the Minister to look at this. The word "estimates" need not be used. I would not have a problem with this.

We may do something on the matter. I ask to be excused, Chairman. There is a photocall for party leaders on the plinth to do with the drink driving campaign. The Minister of State, Deputy Brian Lenihan, will take my place.

Let us call a spade a spade. I cannot take in that explanation because it seems logical that this information on income, expenditure and number of employees should be contained in the Estimates. I cannot rationalise the explanation I have been given as to why it should not be included.

Amendment agreed to.

I move amendment No. 83:

In page 28, subsection (3), between lines 40 and 41, to insert the following:

"(c) contain an accurate assessment of the assets held by the Executive, details of the number of employees, and shall be laid before each House of the Oireachtas within 90 days of its establishment,”.

This is a straightforward amendment which I do not believe should cause great difficulty. It seeks to provide for an accurate assessment of all the assets held by the executive and details of the number of employees to be laid before the Oireachtas within 90 days of the establishment of the HSE. This has nothing to do with the service plan which will be determined every year and laid before the Houses of the Oireachtas, depending on the date of the budget but usually within 42 days of that date. The amendment seeks to have listed all the assets held by the executive and its number of employees when established. This will probably be one of the easier tasks for the board and should be relatively straightforward to achieve. If we had time and patience, it could be addressed by way of a parliamentary question. I presume the board will have all this information.

The amendment seeks to oblige the executive to provide an accurate assessment of assets and employee numbers to be laid before the Houses of the Oireachtas within 90 days of its establishment date. The Tánaiste does not accept this amendment because that type of information would more appropriately be included in an annual report and the financial statements which will be prepared by the executive. An accurate estimation of assets and employees represents a report on a state of affairs that is accomplished, not something that can be determined in the service plan which envisages the future of the executive over a period of time.

Does the Minister of State not believe one of the first requirements in establishing a body such as the HSE is to know the numbers of both assets and employees? This information should not be supplied more than one year later. I would have thought it would be a fairly standard procedure for a corporate body such as the HSE to at least know how many were employed. This body will administer the assets of the health service which include human resources. Contrary to what the Minister of State said, it does not make sense that a list of resources for which the HSE will be responsible could not be produced within 90 days.

I do not dissent from the general proposition outlined by the Deputy that it is important for us to have such information at our disposal. However, this is not the place in the Bill to specify the matter as this section deals with the service plan which, as the Tánaiste stated and as we all know, outlines the priorities to be set and activities to be carried out within the limitation of the funds allocated to the executive in a particular year. It is a forward-looking document. The Deputy seeks to insert a laudable principle in an inappropriate place. With respect to him, his amendment looks backwards in that he seeks a report.

I am looking for a starting point for the HSE on 1 January 2005.

The Deputy seeks an accurate assessment of the assets held by the executive and details of the number of employees.

I seek such details within 90 days.

That is a report, not a service plan. As the Deputy seeks to insert a reference to a report in the Bill, my reply was not nonsensical. I have rightly stated this is a matter to be included in the report of the executive. It is not suitable for the service plan.

Will the Minister of State advise me of the appropriate section for such a provision?

Section 41 deals accounts and materials of that type.

Can I move my amendment to that section?

It would be open to the Deputy to do so and we would consider it in that context. However, it is not an appropriate provision in the context of a service plan. For example, a service plan may envisage the expansion of a particular activity.

I will accept that. If the Minister of State believes this amendment would be more appropriate to section 41 to allow the HSE to get a detailed list of the assets and the number of employees within 90 days of its establishment, I would be quite happy to retable it to that section.

We can look at it when we consider section 41.

Amendment, by leave, withdrawn.

I move amendment No. 84:

In page 28, subsection (3)(d), line 43, after “10,” to insert “and”.

Amendment agreed to.

I move amendment No. 85:

In page 28, subsection (3), lines 44 and 45, to delete paragraph (e).

Amendment agreed to.

I move amendment No. 86

In page 29, subsection (3)(f), line 1, to delete “be consistent” and substitute “accord”.

Section 32(3)(f) uses the term “be consistent” but later in the section the word “accord” is used. It would be preferable to use “accord” in both.

I accept the point.

Amendment agreed to.

I move amendment No. 87:

In page 29, subsection (3), between lines 2 and 3, to insert the following:

"(g) have regard to the role played by the community and voluntary sector in the development and provision of health services.”.

A service plan prepared in the form and manner in accordance with any directions issued by the Minister should take into account the huge role played by the voluntary sector.

I support the amendment. If the service plan does not take into account the role played by the community and voluntary sector, what is it about?

The proposed amendment requires that the corporate service plan have regard to the role played by the community and voluntary sector. The Tánaiste considers this is already encompassed by the provisions of section 7. Section 7(5) states:

In performing its functions, the Executive shall have regard to—

(a) services provided by voluntary and other bodies that are similar or ancillary to the services the Executive is authorised to provide . . .

Amendment, by leave, withdrawn.

I move amendment No. 88:

In page 29, subsection (4), lines 6 and 7, to delete paragraph (b) and substitute the following:

"(b) any direction issued by the Minister under section 10(1).”.

This amendment proposes to replace a provision included in section 32 which provided that the executive, when drawing up its service plan, would be required to have regard to the Minister's priorities. It is entirely correct in a democratic society for the Minister of the day to set priorities and set out the policy within which the executive must operate. As section 31 must be repealed to facilitate giving the executive its own Vote, I propose to replace this subsection with a provision that in drawing up its service plan the executive must have regard to any directions that may be made by the Minister under section 10.

Amendment agreed to.

I move amendment No. 89:

In page 29, subsection (9), lines 32 to 34, to delete paragraph (b).

Amendment agreed to.
Section 32, as amended, agreed to.
Sitting suspended at 1 p.m. and resumed at 5.05 p.m.