Health Bill 2004: Committee Stage (Resumed).

SECTION 33.

I move amendment No. 90:

In page 30, lines 1 to 9, to delete subsection (1) and substitute the following:

"33.—(1) After approving a service plan, the Minister may direct the Executive to submit an amended service plan and may specify in the direction the manner in which the plan is to be amended.".

This amendment provides for the amendment of a service plan. If the Minister or the executive demands that a service plan be amended, the executive will be obliged to submit an amended plan to the Minister. The provisions governing the submission of a service plan in section 32 will apply if the Minister directs that a plan be changed. If the executive wishes to amend a service plan, it can commit the plan to the Minister. If he or she does not issue a directive concerning the amendment, the executive can assume the amendment has been accepted. That will avoid any unnecessary delays in making essential amendments to plans. Section 33 needs to be amended because it allows the Minister to amend the determination of the executive. In future, the executive will receive additional funds only if they have been approved by the Oireachtas by means of a Supplementary Estimate.

I do not think there is a problem in that regard. If further amendments are proposed by the Minister on Report Stage to improve the Bill's accountability provisions, a reference to an amended service plan will have to be included with the existing references.

Amendment agreed to.

I move amendment No. 91:

In page 30, subsection (2), line 11, to delete "subsection (1)(b)” and substitute “subsection (1)”.

This technical amendment arises from the amendment to section 33(1). The reference to paragraph (b) of section 33(1) is now superfluous.

Amendment agreed to.

I move amendment No. 92:

In page 30, subsection (3), lines 14 to 18, to delete all words from and including "but" in line 14 down to and including "period" in line 18.

Section 33(3) is being deleted because the executive will have its own Vote and will, therefore, be governed by this legislation, the Comptroller and Auditor General Acts 1866 to 1998 and the rules governing the operation of such Votes.

Amendment agreed to.

I move amendment No. 93:

In page 30, subsection (4), line 19, to delete "an amended service plan" and substitute "a service plan amended undersubsection (3)”.

This is another technical amendment which will change the wording of section 33(4) in order that it is consistent with the amended section 33(3).

Amendment agreed to.

I move amendment No. 94:

In page 30, between lines 33 and 34, to insert the following subsection:

"(8) A service plan or an amended service plan shall be published by the Board as soon as may be after it is adopted.".

The case has been made that the publication of the service plan is crucial. If the Minister will make her own proposal, as I understand she will, I will withdraw the amendment until Report Stage.

I accept that and will bring forward a proposal.

Amendment, by leave, withdrawn.
Section 33, as amended, agreed to.
NEW SECTION.

I move amendment No. 95:

In page 30, before section 34, to insert the following new section:

"34.—The Executive shall manage health and personal social services indicated in an approved service plan so as to ensure that the services are delivered in accordance with the plan.".

On the advice of the Office of the Attorney General, I propose to amend section 34 in respect of the Accounting Officer. The reference to "non-capital expenditure" in section 34(1) shall be deleted. Arising from the establishment of a Vote for the executive, it will be governed by the rules on Vote expenditure. The first charge provision introduced in the Health (Amendment) Act 1996 is therefore inappropriate. The chief executive officer will be personally responsible to the Committee of Public Accounts for ensuring the executive manages its funding within the constraints of the Vote. The executive will not be permitted to have an excess on the Vote and if there is a surplus of funds, they will have to be surrendered to the Exchequer.

What exactly will happen if there is indebtedness or cost overruns by the executive?

In that instance, it would be in breach of the law. It could not do so. I presume it would be a matter for the Comptroller and Auditor General, to whom the executive will, for this purpose, be accountable.

If the HSE tells the Minister it has a problem with indebtedness, can she provide it with a Supplementary Estimate?

Yes but only if voted by the Oireachtas.

Amendment agreed to.
Section 34 deleted.
SECTION 35.

I move: "That section 35 be deleted."

Question put and agreed to.
SECTION 36.

I move: "That section 36 be deleted."

Question put and agreed to.
SECTION 37.

I move: "That section 37 be deleted."

Question put and agreed to.
SECTION 38.

I move amendment No. 96:

In page 32, line 22, after "to time" to insert ", such figure having been laid before each House of the Oireachtas".

Permission must be given to the HSE by the Minister to undertake any capital project, the cost of which exceeds a certain value. My amendment seeks to provide that the sums involved be made public to the Houses of the Oireachtas or the select committee, whichever is more appropriate.

The reports on the various projects will probably include details of funding. I will examine the matter for the Deputy before Report Stage. The figure which cannot be exceeded without permission is approximately €20 million. It will all be included in the service plan.

Amendment, by leave, withdrawn.
Amendment No. 97 not moved.
Section 38 agreed to.
SECTION 39.
Amendment No. 98 not moved.

I move: "That section 39 be deleted."

I propose to delete section 39 which is based on section 9 of the Health (Amendment) Act 1996 which obliges the chief executive officer of a health board or health authority to inform the Minister where a board intends to adopt a course of action which would lead to a breach of its expenditure limits. As the chief executive officer will be the Accounting Officer, it is not appropriate to apply a provision of this nature to him or her. He or she will be governed by previously discussed provisions according to which the executive may not be in breach of its budget.

Question put and agreed to.
SECTION 40.

I move amendment No. 99:

In page 34, subsection (4), line 2, after "shall" to insert the following:

", within 90 days of the establishment of the Executive lay the code before the Houses of the Oireachtas and shall".

My amendment seeks to provide for the publication of the executive's code of governance and its laying before the Houses of the Oireachtas.

We will deal with the question of what shall be made available to the Oireachtas in the context of our consideration of the issue of accountability.

Amendment, by leave, withdrawn.
Section 40 agreed to.
SECTION 41.

I move amendment No. 100:

In page 34, subsection (1), lines 7 to 9, to delete "all proper and usual accounts of all money received or expended by the Executive including an income and expenditure account and" and substitute "income and expenditure accounts and a".

I propose to make three amendments to section 41 which deals with the accounts of the executive. The section makes provisions in respect of the income and expenditure accounts of the executive. The appropriation accounts which must be prepared by the chief executive officer shall be submitted to the Comptroller and Auditor General under the Exchequer and Auditor Department Act 1866. There will be a dual accounting system as it will be necessary for the executive to produce a set of income and expenditure accounts to enable it to measure its outcomes against expenditure and to allow the Minister to evaluate the operation of the executive. It would be difficult to do so with only an appropriations account.

Section 6 of the Comptroller and Auditor General Act governs the submission and audit of accounts by health boards and is to be applied to the income and expenditure accounts of the executive. The Act sets out in detail the basis on which accounts must be submitted for the purposes of the Comptroller and Auditor General auditing them. In addition, I propose an amendment, the effect of which shall be to provide that the income and expenditure accounts shall be submitted to the Minister at the same time as they are submitted to the Comptroller and Auditor General. My Department has consulted informally with the Office of the Comptroller and Auditor General on matters of a technical nature relating to some of the issues arising from the establishment of a Vote for the executive. I may have to introduce further amendments on Report Stage on foot of these consultations.

I am not familiar with the financial role of the Comptroller and Auditor General. Will it be the case that at the end of the year the HSE will give a final statement of account to the Comptroller and Auditor General? Will the statement be published?

Will it be done within a reasonable timeframe?

The statement of account must be submitted before April in the subsequent calendar year.

Is it also published before the following April?

Yes. It is published by the Comptroller and Auditor General.

It is like an auditor's report.

Amendment agreed to.

I move amendment No. 101:

In page 34, lines 12 to 19, to delete subsection (2) and substitute the following:

"(2) Section 6 of the Comptroller and Auditor General (Amendment) Act 1993 applies, with the necessary modifications, in respect of accounts kept in accordance withsubsection (1).”.

Amendment agreed to.

I move amendment No. 102:

In page 34, lines 20 and 21, to delete subsection (3) and substitute the following:

"(3) A copy of the accounts submitted to the Comptroller and Auditor General in accordance with section 6 of the Comptroller and Auditor General (Amendment) Act 1993 shall be submitted by the Executive to the Minister at the same time as the accounts are submitted to the Comptroller and Auditor General.".

Who audits the Comptroller and Auditor General?

Who audits the Ombudsman? Somebody suggested to me in my last Department that we needed a second Competition Authority to really provide competition.

Amendment agreed to.

I move amendment No. 103:

In page 34, lines 20 and 21, to delete subsection (3).

Are provisions being made which relate to the problem we discussed earlier of a delay, for any reason, in submitting the budget?

We discussed amendment No. 103 with amendment No. 30.

Yes. Are we making a provision to address delays in the submission of the budget?

Amendment, by leave, withdrawn.
Section 41, as amended, agreed to.
SECTION 42.

I move amendment No. 104:

In page 34, subsection (2), between lines 25 and 26, to insert the following:

"(a) a report on legal actions and property transactions, including details of the present portfolio as provided for in section 6(2),”.

The purpose of the amendment is to require a report to be made providing a detailed presentation on any deals, contracts or property sales and purchases undertaken by the Health Service Executive during the year.

The auditing of transactions will be done by the Comptroller and Auditor General to determine whether value for money was obtained and all appropriate procedures were followed. We want the annual report to be inclusive and comprehensive as regards the activities of the Health Service Executive. One of the issues we need to examine in the context of the greater use of assets in the State's control is how we can make them work to raise funds for patients where they are not required for health related purposes. It is important that this be done in public rather than private. At present there are many discrepancies in this area.

The most effective way to deal with matters of this nature which could be of minor or major significance is in the context of the annual report and perhaps the questioning of the chief executive officer at meetings. We want to deal with accountability issues and the giving of information and ministerial directives in the context of the report. We will consider these later today or tomorrow and revert to the committee next week.

Incidentally, the meeting scheduled for next Thursday, on which I understand the Deputies' parties were consulted, was to give all of us, including Opposition spokespersons, more time. It would have been unrealistic to have amendments drafted and ready for Tuesday. I thank the parties for their co-operation in agreeing to take Report Stage on Thursday, rather than Tuesday.

With regard to the issue of property transactions, we must learn from recent experience. I am not sure how that will be done in this new structure. The Minister of State at the Department of Health and Children, Deputy Tim O'Malley, announced there would be a massive sale of lands attached to psychiatric hospitals. The Minister has also stated she will sell off lands attached to hospitals. As elected representatives, we have an interest in what happens in our areas. It is frustrating for public representatives and the communities directly affected when they have no way of knowing what will happen to lands of direct importance to local communities. This is particularly the case when health boards indicate that they know nothing about the issue.

I will give a brief example of Newcastle Hospital, a psychiatric hospital in County Wicklow. The hospital was supposed to receive a new nursing unit under a public private partnership which never materialised. It has an important land bank in a rapidly growing village and the local community wants to have an input into the future of these lands which are zoned for community and hospital use. The zoning is recognised in the planning Acts as having importance to the local community. The Health Service Executive will be able to sell land without engaging in consultations or inviting views on the sale. Local communities will not be involved in planning what should be disposed of or retained for use in a county or health board area. This is worrying because while the current position is not satisfactory, it appears it will get much worse. At least, we can knock on the door of the local health board and nag someone but that will not be possible under the legislation.

Dr. Devins took the Chair.

One of the powers the Minister will have is to give directions on the sale of assets and property and how such matters should be conducted. We should give consideration to this matter. One of the issues which arises in the context of properties in the health area is that many of them are owned by private institutions and voluntary bodies. A significant amount of the land bank is held by such bodies.

With few exceptions, we have said the proceeds of any lands disposed of will be used for health care. Deputies may be aware that I intend to bring a memorandum to Government shortly — it is not exactly private — to build a new central mental hospital. This must be done on the basis of a Government decision. We need modern facilities in many respects and must use whatever land we can where we can. Obviously, we will not sell land which will be needed in the future. It would not make sense to sell land now and buy it back in five years as it is extraordinarily expensive, particularly in urban areas. Where we can use the proceeds from the sale of land or other buildings for a health purpose, we should do so.

It is the intention to give a directive to the HSE which will be public. I intend to return with amendments on the issue of directive powers to ensure they are not secret but public, or at least laid before the Oireachtas. That is probably the most effective way to deal with the disposal of assets.

The Minister is effectively indicating that local communities will have no input regarding publicly owned lands. The process will be concerned with getting the best price for land to reinvest in the health service, regardless of other factors. It is worrying that the priority will be to get the highest price. Hospitals are often located in prominent, central positions in local communities.

Local authorities are responsible for zoning lands. If land is owned for community purposes, the owner would have to engage in consultations with community interests before he or she could switch them to alternative uses. We cannot have the position that before the HSE disposes of or acquires property it must constantly engage in a consultative process.

Why not? Prior to the disposal of land, opinions could be sought and a consultation period arranged. There is nothing wrong with that.

The Deputy is assuming that the properties in question are all worth vast amounts. Properties are acquired and disposed of every day. Criticism was voiced two weeks ago that one of the health boards was still acquiring properties. This is done with great frequency. The health service spends €10 billion and has 120,000 staff.

I have an ambition to move the Department of Health and Children out of Hawkins House because of its condition but whether I succeed remains to be seen. One cannot engage in consultative processes on everything one does. That is not an effective approach. All the local authorities will be represented in the regional fora, at which they will have an opportunity to raise issues of this nature.

I am aware of available properties, including, for instance, a home for the aged in Ballinrobe. The property used to be a welfare home but is now a community nursing unit. Many sites have been lying idle for years. The provision of a report on property transactions would be useful. It would also be useful if an audit were done and a list provided detailing exactly what was in the ownership of the health boards because we do not know what properties under health board ownership are lying fallow. My local health board bought land which is lying idle. It would be in the interests of the committee to find out the position on properties supposedly the subject of development. Land bought in the taxpayer's name is lying idle. An audit should be carried out to determine the properties available. We should receive a progress report on property lying idle and an explanation of the reason.

I agree with the Deputy. It is my intention, after the HSE has been established, to ask it to do an audit of the properties we have. We need an assessment to determine whether and when such properties will be used. Various people have different perspectives on what is or is not available. The Department does not have all the relevant information, although it is available in some health boards. Perhaps some health boards have not done an audit of what properties are available or what is the state of play regarding its properties. I intend to ask the HSE to do such an audit.

The State has often been good at acquiring land and, in some cases, erecting buildings on it because it gives a perception of activity. However, many years later the buildings are lying idle. During the years many advance factories were built but never occupied or at least only partially occupied. However, we have now moved away from believing bricks and mortar are a sign of activity. This also holds true for the health sector. We are investing money where it is really needed on a priority and regional basis. Money must be spread around the regions.

I am saddened by the physical condition of some of the places in which elderly people are living. Essentially, it is a question of the standard of care and the atmosphere in the community but the physical environment is also important. Conditions deemed appropriate 40 or 50 years ago are no longer so considered. We intend to, and must, proceed in an orderly fashion on a priority basis. A unified system would make this much easier.

When the Minister was out on the plinth for a photoshoot, we covered amendment No. 83 in my name. It is not too detailed and would require that, when the HSE is established, a full list of its assets and employees be laid before the Oireachtas within 90 days.

I do not know whether 90 days would be realistic, especially if there was to be a property audit. For example, the Government once asked one of the semi-State bodies to do an audit which took approximately two years to complete. I am not suggesting we should adopt such a timeframe but it is a good idea to know at an early stage how many employees we have, whether they are working in administration, management, nursing or community care, and roughly what properties and assets we have. I do not know how quickly this can be achieved but I intend to raise the matter with the executive.

Amendment, by leave, withdrawn.

I move amendment No. 105:

In page 35, subsection (4), line 6, after "report" to insert ", in any event, such a date being not later than 21 May".

This amendment relates to earlier discussions on the consequences of the budget being announced on a later date than usual. The Opposition does not want the annual report of the executive to be delayed for any reason. The legislation specifies a date at the end of April. The amendment seeks that a date 21 days from the end of April, namely 21 May, be designated as the latest date on which the annual report could be published.

An accurate date is specified in the Bill. The Minister is to receive the annual report on 30 April and it is to be published 21 days later.

There is a subsection which states any delay——

Yes, because clearly the report would have to have regard to——

It would be delayed further.

It is only in the circumstances specified. I said earlier to Deputy McManus that I would commit to spelling out the timeframe in more detail.

Very good.

Amendment, by leave, withdrawn.
Section 42 agreed to.
Amendments Nos. 106 and 107 not moved.
Section 43 agreed to.
NEW SECTION.

I move amendment No. 108:

In page 36, before section 44, to insert the following new section:

"44.—(1) The Executive may, subject to any directions given by the Minister undersection 10 and on such terms and conditions as it sees fit to impose, give assistance to any person or body that provides or proposes to provide a service similar or ancillary to a service that the Executive may provide.

(2) Assistance may be provided under this section in any of the following ways:

(a) by contributing to the expenses incurred by the person or body;

(b) by permitting the use by the person or body of premises maintained by the Executive and, where requisite, executing alterations and repairs to and supplying furniture and fittings for such premises;

(c) by providing premises (with all requisite furniture and fittings) for use by the person or body.

(3) Assistance may be provided to a person under this section whether or not the person is a service provider.".

This amendment seeks to replace section 65 of the Health Act 1953, as amended by section 19 of the Health (Amendment) Act 1996. These Acts are being repealed in the revised Schedule 4 to the Bill. Section 65 was the basis on which voluntary groups were funded for services that were similar or ancillary to the services provided by health boards. These groups can range from large bodies providing a service for the disabled to very small groups providing a local service such as home helps, meals on wheels services and friends of the disabled groups. It would not be appropriate for most of these groups to be funded in accordance with an arrangement under section 43. I propose, therefore, through this amendment, to enable the executive to fund and support these groups in a range of flexible ways. They are currently funded under what are commonly known as "section 65 grants".

I am sure the Minister will join me in paying tribute to all the voluntary groups which provide such excellent support for the health service and communities. Section 65 has been their lifeline, as was only right. If one were to try to replace all their voluntary efforts, one could not do so. The same applies to group water schemes. Much voluntary work is being done in both rural and inner-city areas. Funding certainly needs to be continued for voluntary groups.

Amendment agreed to.
Section 44 agreed to.
SECTION 45.

Amendments Nos. 109 and 110, in the names of Deputies McManus and Twomey, have been ruled out of order.

I appreciate they have been ruled out of order but the Minister indicated that she would be willing to discuss their content. It is interesting that the Bill is so weak in this area. It states, "the Minister may convene a National Health Consultative Forum". I proposed such a forum some years ago. It is a good concept but very vague.

Did the Minister agree to discuss this matter?

She did. When we spoke about this originally, she said she had——

I have no problem discussing it.

If the Minister does not agree to discuss the amendments, I will have to rule them out of order.

I am not trying to trap the Minister.

I am so agreeable that I probably did agree to discuss them.

The Minister "may" discuss them.

That is the point. The use of the word "may" in the Bill is so vague. All we know is that the expenses will be paid by the Oireachtas. It is important for the Minister to indicate what she has in mind.

The section in question is such that we will have a national consultative forum, regional fora and panels in 32 community care areas. I would be happy to bet that the cost of all these committees and fora, coupled with the cost of having county councillors in regional fora, will be greater than that associated with the provision under which public representatives were members of 11 health boards. There will be more rather than fewer such bodies. This must be questioned. Although the amendments have been ruled out of order, it would be interesting for the Minister to indicate whether this is for real and will cost us money or will not happen for a long time.

I asked the Minister of State, Deputy Lenihan, about the salary of the chairman of the HSE, which I understand is €100,000. It might be of value to know the allowances members of the executive will receive.

The standard provision applies. If memory serves me correctly, it amounts to approximately €12,136, or approximately £10,000. This applies to virtually all non-commercial State bodies such as the IDA, Enterprise Ireland and FÁS. The chairman is getting €100,000 for each of three years because of the great workload involved in establishing the organisation. Thereafter, the chairman will receive the normal salary, which is approximately €15,000 or €20,000.

That is fine.

It will not be any more than that as it is a non-executive board.

What about the question I raised about the——

Let me consider it. We will establish these bodies. I am asking my officials why the word "may" is used rather than "shall". I suppose there may be a time in the future when others may decide it is not necessary. I will reflect on the matter for Report Stage. It is my intention that we will appoint one and I have made speeches assuring people to that effect. The matter will be subject to legal advice.

It would be reassuring if the Minister changed that.

Amendments Nos. 109 and 110 not moved.

I am advised that amendments Nos. 111 and 111a are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 111:

In page 36, subsection (2)(b), line 24, after “nominated” to insert “which shall include representation of medical professional interests and other staff interests”.

This issue was raised by the Irish Medical Organisation. Obviously, medical professionals had a role in the old health board system, as did nurses, but we could not explore that issue in the time. Nevertheless, it is important that the principle of representation is raised in this regard.

Is the Deputy referring to the health forum?

The idea is to have all the stakeholders involved. I do not wish to specify some and not others. I will give an assurance that before the forum is established, I will return before the committee and discuss the nature of it. We want this to be as broadly based and representative as possible. If we start specifying some professions and not others, we will run into difficulties.

Amendment, by leave, withdrawn.

I move amendment No. 111a:

In page 36, subsection (2), line 26, to delete "Forum" and substitute the following:

"Forum, and shall ensure adequate representation of medical practitioners working in the health services.".

I propose this amendment because there should be representation on the forum for medical practitioners at least because they are working in the service and have an insight into its needs. The Health Act refers to representation for medical practitioners and the formation of panels and so on. Therefore, it would be remiss of the Minister not to include medical practitioners and others.

I will give the Deputy an undertaking that I will return to the committee with a draft order before I finalise it, or I will certainly circulate it for consultation. The one thing we want to ensure is that the consultative forum is consultative and includes, within reason, all the relevant stakeholders.

Amendment, by leave, withdrawn.

I move amendment No. 112:

In page 36, between lines 28 and 29, to insert the following subsection:

"(4) The Minister will have regard to the role played by the community and voluntary sector in the development and provision of health services when considering the remit and composition of the Forum.".

This amendment is very similar to amendments Nos. 111 and 111a, except that I have expanded it to include the role played by the community and voluntary sector in the development and provision of health services being considered in the remit of the composition of the forum. Since the Tánaiste has made a commitment to return before the committee, I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 45 agreed to.
SECTION 46.

I move amendment No. 113:

In page 36, subsection (2)(a), line 40, to delete “solely”.

This issue relates to a request by the IMO that complaints about clinical judgment are dealt with by the Medical Council. It was concerned that the use of the word "solely" could cause some overlap and interference with Medical Council functions.

This prohibits complaints that relate solely to clinical judgment. I would have assumed that would meet the requirements of the Medical Council as it is the body which deals with fitness to practise and malpractice issues. The complaints procedure here is not intended to deal with what we referred to yesterday as "clinical judgment" issues. If we were to delete the word "solely" we would actually be——

I had certain problems with this issue too and I could not get my head around it because the process was happening so quickly; we did not have time to examine the implications of the IMO's comments. May I suggest that the Tánaiste ask her officials to check with the IMO?

I have not personally seen the IMO submissions. However, we will examine the issue. I do not think the IMO should be concerned because we are trying to ensure that fitness to practise and regulatory issues rest with the body which is given the responsibility on a self-regulation basis. From my meeting with it last week, I assume the Medical Council would be happy with that. I will examine the IMO's submission and revert to the committee. It is concerned that a body could be established which would start dealing with clinical judgment issues, which clearly would be inappropriate.

The definition of "clinical judgment" in the Bill is very open. It means a decision made or an opinion formed in connection with the diagnosis, care or treatment of the patient.

If the Minister would agree to check it out——

It is the same argument as that on the complaints issue. It is about what the regional "fora" can and cannot discuss.

I will withdraw the amendment on the understanding that the issue is being checked out.

Amendment, by leave, withdrawn.
Section 46 agreed to.
SECTION 47.

Amendments Nos. 114 to 116 are out of order.

The Minister has clearly indicated that the consultative forum will go ahead, not just that it "may" go ahead. Will the other panels go ahead, or is it that case that the power will be there should it ever be needed to be taken up?

We do not want to be too prescriptive but the idea is that they will go ahead. Subsection (47) states that the executive may take such steps as it considers appropriate to consult with local communities and other groups about health and personal social services.

I do not see that the executive would have any particular interest in doing this.

I do not agree. My own sense of the way we want it and the way it will be is that this body will go on to create good relationships at a political level, including with the Opposition, as well as with the stakeholders and the employees. Although there are understandable issues of concern and anxieties about the changed process in regard to the giving of information, the consultation process is important to an executive which wants to create a whole new culture and image for itself.

If that is the case, why not use the word "shall"? As it stands, the Bill only requires it to take such steps as it considers appropriate. The word "may" simply means——

When one starts using words with legal consequences which can be subsequently fought out in court, one puts a huge onus on the bodies. We must provide some flexibility, discretion and autonomy to a body which will have such an important role to play, rather than make constant legal requirements of it which will make it a very bureaucratic, cumbersome and red-tape bound organisation.

I want to make the point that what is stated in the Bill is that the board "may" take such steps as it considers appropriate. I propose that it should state that the board "shall" take such steps as it considers appropriate. No one could go to court and say the board did not take steps, even though it considered them appropriate.

If we substitute "shall" for "may" and leave "as it considers appropriate"——

No. What I am saying is that it "shall take such steps as it considers appropriate".

Once we leave in "as it considers appropriate", I do not have a problem with using the word "shall". I will come back to that on Report Stage. I misunderstood. I thought the Deputy felt that "as it considers appropriate" should not be there.

We will deal with the issue on Report Stage as the amendments are out of order.

Amendments Nos. 114 to 116, inclusive, not moved.

I move amendment No. 117:

In page 38, subsection (2), between lines 22 and 23, to insert the following:

"(e) the community and voluntary healthcare and social services sector.”.

This could be considered under section 47(2)(d), which states, “such other persons as the executive may consider appropriate,” but we should highlight the community and voluntary healthcare and social services sector and give them a separate section because they will be included in any forum that is established locally by the Minister. They should be recognised beyond the generic phrase in section 47(2)(d).

They will probably fall into the service provider category.

That is not always the case. Sometimes they are advocacy groups that might have as much of a role to play as service providers.

They do not provide a service but I will reflect on it.

Amendment, by leave, withdrawn.
Section 47 agreed to.
Section 48 agreed to.
SECTION 49.

Amendment No. 119 is an alternative to amendment No. 118 and they will be taken together.

I move amendment No. 118:

In page 39, lines 21 to 24, to delete all words from and including "done" where it secondly occurs in line 21 down to and including "Executive" in line 24 and substitute the following:

"done—

(a) by the Executive, or

(b) by a service provider in connection with the provision of—

(i) a health or personal social service that is the subject of an arrangement under section 43, or

(ii) a service in respect of which assistance is given under section 44".

Amendment No. 118 provides for an expansion of the definition of "action" for the purpose of this part of the Bill as it applies to the services of the service provider on behalf of the executive. The amended definition ensures that the complaints procedures apply to services provided under an arrangement between the executive and a service provider, and any action of a service provider related to the provision of services under the new section 44.

I do not see the connection between the two. Amendment No. 119 includes failure to provide such a service. At the moment, a person can only complain about a service. If he does not receive a service, he cannot complain. What happens if people can have their corns looked after in every other part of the country but the service is not provided to people in Portarlington and they feel aggrieved?

They will not be able to walk anywhere to get the problem sorted out.

This provides a facility whereby those who avail of services can make a complaint unrelated to the poor quality of a service or a bad experience. Many people have sought that and it is good practice from a learning point of view because we learn from the customers, the patients in this case, and there is feedback to correct matters. If someone is on a waiting list and unable to get a service, that would be a cause for complaint.

No, it would not. It is not possible to complain about a failure to provide a service because it is not included.

Any complaint that could be made to the Ombudsman can be made under this system.

That does not satisfy the objective of my amendment because I do not know the full extent of what a person can go to the Ombudsman about.

Taking a fictitious town, it is not possible to complain that a person cannot get cardiac surgery in "Marymore". There must be some realism. The Deputies opposite are good advocates for those things that are not happening. If someone has been on a waiting list for a long time, there are many ways in which dissatisfaction can be brought to the attention of those who have responsibility.

Should we be raising this in the Dáil?

Deputies raise it every day. We have just had an hour and a quarter of it.

That is ridiculous. At the moment, people can go to their health board and get a health board member to deal with it.

The health board member cannot deal with it if there is no service.

If someone is promised a service and it does not materialise, such as a home help or chiropody, he cannot complain, although if he gets bad service, he can complain.

If there is a statutory right to a particular service, a person can complain to the Ombudsman and to the executive. That would apply in the case of a hospital bed.

Within the current wording, can the failure to provide a service be grounds for complaint?

If there is a statutory right, such as to a hospital bed or to a particular treatment, and a person is not getting it, he or she has a right to complain to the Ombudsman under the current regime and both to the executive and the Ombudsman under this regime.

Is the Tánaiste certain of that?

Where there is a statutory right to a treatment or service and a person does not get it, he or she has a right to make a complaint. He or she does not, however, have the right to make a complaint about something to which he does not have a statutory right. We dealt with this yesterday when discussing particular services. People have a right to access to medical care but they do not have a right to specific medical care such as heart or liver transplants.

A complaints procedure of this kind is a huge improvement on the previous position. It will be a good experience for both the providers and patients because it is not just about complaining. The complaints must be documented in the annual report and solutions must be found to them. That is the purpose of the mechanism.

Amendment agreed to.
Amendment No. 119 not moved.

I move amendment No. 120:

In page 39, line 30, after "person" to insert "who is not an officer or employee of the Executive or of a service provider".

I urge the Tánaiste to look at this. Her thrust in the Bill is to remove the structure of the current system and use it to establish a new form of authority. If that is her thinking, she should also apply it to the complaints system. If an officer or an employee of the executive or the service provider is the complaints officer, there is a real danger that person will not be able to function independently. We have all experienced an officer who tries to protect the image of an authority and prevent complaints being fully processed. It is a difficult position to be in when a person is an employee. If he wants to get on within the authority, he will not rock the boat. The role of a complaints officer, however, is to do that. There should be strict demarcation where the complaints officer should be able to act independently. Otherwise, the chances of promotion could be dependent on how well he protects the organisation he is supposed to be investigating.

We are not establishing a health ombudsman and we are not interfering with the role of the current Ombudsman or the Ombudsman for Children, which are independent stand-alone complaints mechanisms. There are complaint mechanisms in many sectors, including the welfare system, and there has never been any suggestion that complaints are not dealt with adequately. The idea is to appoint a complaints officer, probably at assistant principal grade, and it would be his or her responsibility to deal with the complaint. It would be that person's responsibility to handle the complaint and, furthermore, as the annual report must contain reference to the complaints, there is a mechanism for assessing the nature and level of complaints and the overall response to them. That is appropriate in all the circumstances and does not interfere with the higher authority, the overall independent appeal mechanism of the Ombudsman or the Ombudsman for Children. They are independent statutory offices.

People recently suggested that we should consider an ombudsman for the elderly or other specific issues, and in time Governments will decide to do that or to have a totally independent health ombudsman. These are expensive operations and if we have a system in place that can deal satisfactorily with most complaints, that is the way to proceed, with the safety valve that everybody can go ultimately to the Ombudsman or the Ombudsman for Children.

We have had the very bad experience of the Garda Complaints Board, which creates utter frustration.

That concerns professional issues and the new legislation changes it. We are bringing in a new regulatory regime for health care professionals on fitness to practise issues, and amending the regulations that apply to doctors. We did not have an appropriate mechanism for the Garda Síochána and the one in place was very unsatisfactory, as the Deputy said. That is why it is being changed. This is on a different level.

From time to time when I have tried to make complaints I have had great difficulty getting an adequate response. I support the idea of a complaints procedure and apparatus. The best way, however, for it to work is to create some kind of independence. I am not talking about a health ombudsman, although I agree with that concept. This is to ensure that the complaints officer is not directly employed by the service provider or the executive and so tied in that it makes it very difficult to pursue complaints vigorously. It will not work as well or as effectively, and it would be better to do it right. If the Minister is going to set this up she should get it right. Otherwise it will become an object of derision. People will dismiss it as part of the system.

It is a major step forward and we should see what happens. In time we may opt for a health ombudsman because the choice is between an internal mechanism or a stand-alone independent one, with all that entails.

It is a great pity.

Amendment, by leave, withdrawn.

I am advised that amendments Nos. 121 and 123 are cognate and No. 125 is related. The amendments may be discussed together by agreement.

I move amendment No. 121:

In page 39, lines 39 and 40, to delete "administrative".

I will not press the amendments in this group on the basis of what the Minister said earlier but will resubmit them on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 122:

In page 40, between lines 2 and 3, to insert the following:

"(c) and for the avoidance of doubt includes an objection or grievance or any form of complaint about all matters, save for those which are under the ambit of the Medical Council or any other body established under the Health and Social Care Professionals Act 2004;”.

This concerns the type of complaints that can be made to the health service executive. The intention is to confine these to administrative complaints but as the Minister said we cannot be so rigid about what the procedure can cover. This amendment covers any clinical decisions but allows for not limiting these to what the Minister considers to be administrative complaints.

As I understand it, the Deputy is saying that this covers everything other than issues that come under the remit of regulatory bodies. I am trying to think of an example of what is excluded by what we suggest but would be included under the Deputy's suggestion.

It is just to avoid doubt. This subsection could cover everything except professional regulatory bodies.

Am I right in saying that the Deputy is suggesting that everything of a clinical or diagnostic nature is excluded?

Yes, because they are within the remit of the Medical Council.

Our system includes everything else and it connects with the Ombudsman and the Ombudsman for Children. I am not certain there is any necessity to introduce the Deputy's proposal.

My proposal makes everything crystal clear and leaves no question of doubt for anybody wishing to make a complaint.

That will all be made very clear. We must consider mechanisms such as information campaigns to make people aware of their right to make a complaint.

Amendment No. 121 dealt with references in the Bill to "administrative", which could be interpreted as boxing in complaints, whereas my amendment focuses on what is outside the clinical remit. It includes everything else; that is the difference between what I am saying and what the Minister is saying.

It cannot include the standard of hygiene, the cleanliness of the hospital, the food the person received — all of those matters can be the subject of complaint in addition to administrative issues. The Ombudsman gives a very wide interpretation to the cover given by the complaints mechanism and this legislation deals with all the Ombudsman's functions. It is effectively everything except clinical or diagnosis-related issues. I am not sure the patient could complain if he or she dislikes somebody.

If the patient could, the events in Cavan General Hospital might have been considered here sooner than they were. Section 49 defines a complaint as something "it is claimed, does not accord with fair and sound administrative practice".

We are both speaking about the same thing. Everything is covered except the clinical judgment issue. The legislation is in line with similar provisions in the Ombudsman's Act and under the remit of the Ombudsman for Children.

Amendment No. 121 referred to taking out the word "administrative" in section 49(a) under the definition of “complaint” at the very end of page 39.

The legislation must comply with the Ombudsman's Act for this purpose if there is to be a right to go to the Ombudsman as well. I would like to receive further advice on this. I am advised that the Ombudsman takes a very broad view of the powers of that office. Similar powers are being put into this legislation for the internal complaints mechanism.

Amendment, by leave, withdrawn.
Section 49, as amended, agreed to.
Amendment No. 123 not moved.
Section 50 agreed to.
SECTION 51.

I move amendment No. 124:

In page 41, subsection (2)(b), lines 4 and 5, to delete “on which he or she becomes aware of it” and substitute “of knowledge, within the meaning of the Statute of Limitations (Amendment) Act 1991 (as amended)”.

This is a definition of the point when somebody became aware of his or her complaint.

This was probably drafted by a lawyer, not that there is anything wrong with that because it is a Bill but the advice of the Attorney General's office is that such a change would create potential problems, including making complaints more difficult to pursue and even require the use of lawyers. We should avoid that if we can.

Amendment, by leave, withdrawn.
Amendment No. 125 not moved.
Section 51 agreed to.
Amendments Nos. 126 to 128, inclusive, not moved.
Section 52 agreed to.
Section 53 agreed to.
SECTION 54.

Amendments Nos. 129, 132 and 136 are related and may be discussed together.

I move amendment No. 129:

In page 42, between lines 32 and 33, to insert the following subsection:

"(3) A list of all complaints received shall be published annually, unless otherwise directed by the complainant.".

This amendment seeks to have complaints made against the Health Service Executive published to enable us to review them. I want to see all complaints, those received, investigated and upheld, published. When discussing this yesterday, concerns were expressed about limitations on complaints, that recommendations could be made that were not in line with the service plan. The complaint could be a genuine one but because the complaints officer may make a recommendation that goes against the service plan, the complaint may be rejected. It may not be realised it was rejected for a genuine reason. With this provision, the complaint would still be published and members of the public could see why the complaint was rejected.

Yesterday I said that section 59(1) deals with the general powers available to the Minister and what should be included in the annual report. I agree that the nature of complaints should be included, if not as part of the report, possibly in an annex to it. We will have to find the best way of doing so logistically. Each individual complaint is a different matter as some may be of a confidential nature and the complainant may not wish to be identified. The public will be concerned about the nature of the complaints and how they are addressed. It is important that these are specified so there must be a monitoring mechanism.

Yesterday we said exceptions could be made if a complainant did not wish his complaint included.

If, for example, 90% of complainants were not satisfied that their complaints had been dealt with adequately, we would need to know that. The same would be true if the reverse was the case. Complaints must be taken seriously and it is not just a system for the sake of it. It is my intention, by way of the powers available to me in the Bill, to specify the form that the complaint should take on an annual basis, either in or attached to the report. That is the only way we can monitor it. The Health Service Executive will always want to know how complaints are dealt with, their volume and nature. It will be an early alarm bell when otherwise it may take a long time to come to light.

I will withdraw the amendment for Report Stage. Once the Tánaiste reads the amendment, its intention will become clear.

Amendment, by leave, withdrawn.
Section 54 agreed to.
SECTION 55.

I have been advised that amendment No. 130 is out of order as it amounts to a direct negative.

Amendment No. 130 not moved.

Amendments Nos. 131, 133 and 134 are related and may be discussed together.

I move amendment No. 131:

In page 42, subsection (1)(b), line 44, to delete “section 43” and substitute the following:

"section 43,

and any such recommendation is not binding but shall be taken into consideration in effecting any alternation to the service plan.".

A complaint officer will not be allowed to make a recommendation arising from a complaint that could change the service plan. This amendment proposes that any such recommendation, while not binding, shall be taken into consideration in effecting any alternations to the service plan. It simply provides for the complaint to go through, even if it went against the service plan.

It depends on how complaints are dealt. For example, two complaints officers may make two different recommendations. I am not being smart but we have to be realistic and practical. Obviously, there will be an onus on the executive to bear in mind the complaints received and any recommendations made arising from them. There may be a gap in a particular area on, say, the administrative side. It would be desirable from the executive's viewpoint to close that gap and reduce the volume of complaints. These matters will be adequately dealt with through the requirements made by the Minister for the Health Service Executive in the complaint area in its annual report.

We want the complaint to get through.

One wants a problem fixed to ensure it does not necessitate unnecessary further complaints.

Amendment, by leave, withdrawn.
Section 55 agreed to.
Amendment No. 132 not moved.
Section 56 agreed to.
SECTION 57.
Amendment No. 133 not moved.

I move amendment No. 134:

In page 44, subsection (2), lines 10 to 12, to delete paragraph (h).

This amendment will ensure that the complaints officer is not limited in making recommendations. The Bill states: "Regulations under this section may, among other things, make provision for the following matters . . . the making of recommendations by review officers following the review of a complaint and the nature of the recommendations that they are authorised to make." This amendment seeks not to limit these provisions.

The regulations will provide the mechanisms and procedures to be used by the complaints officers.

Amendment, by leave, withdrawn.
Section 57 agreed to.
SECTION 58.

I move amendment No. 135:

In page 44, subsection (2), line 26, after "Executive" to insert the following:

"and as and from the establishment day, those Acts shall apply to the Executive and to service providers".

This amendment should be accepted, otherwise we will have to wait for regulations which may delay the application of the Ombudsman Acts. There are many Schedules to the Bill, showing how wide the health boards' involvement and influence were. The Ombudsman for Children Act is noted, but I do not see the other one.

The Ombudsman Act 1980 and the Ombudsman for Children Act 2002 are listed in the Schedules.

My understanding is that for the Acts to apply immediately without regulations, one would need——

To be helpful, I am advised that under section 62(2) the functions that immediately before the establishment day were the functions of a specified body under or in connection with the enactments list in Schedule 3 are transferred on day one.

Does that mean that those Acts will apply from day one to the HSE and to the services provided?

Amendment, by leave, withdrawn.
Section 58 agreed to.
Amendment No. 136 not moved.
Section 59 agreed to.
Section 60 agreed to.
NEW SECTION.

Amendments Nos. 137, 138 and 140 to 142, inclusive, are related and may be discussed together.

I move amendment No. 137:

In page 45, before section 61, to insert the following new section:

61.—(1) Comhairle na nOspidéal is, by this Act, dissolved on the establishment day.

(2) The functions that are specified in section 41(1)(b)(i) and (ii) of the Health Act 1970 and that, immediately before the establishment day, were the functions of Comhairle na nOspidéal are, by this Act, transferred to the Executive on that day.

(3) Despite the repeal of section 41 of the Health Act by this Act, subsection (1)(c) of that section (duty to consult with colleges) applies to the Executive in relation to the function that is specified in subsection (1)(b) of that section and is transferred to the Executive.

(4) In this section and section 67 ‘Comhairle na nOspidéal' means the body of that name established under section 41 of the Health Act 1970.".

This amendment proposes a new section 61, the purpose of which is to dissolve Comhairle na nOspidéal in line with the reforms being undertaken, to transfer certain of its functions to the HSE with regard to the regulation of the number and type of appointments of consultant medical staff and certain other grades as may be prescribed, and to specify qualifications for such appointments. In the case of hospital consultant appointments which involve the teaching of clinical medicine, the amendment provides that the Executive will have to consult the colleges involved, as Comhairle na nOspidéal currently does.

In addition to the first amendment, the Office of the Parliamentary Counsel advises that a technical amendment, No. 138, relating to section 62, is needed with regard to the Hospital Bodies Administrative Bureau, which is being dissolved by section 61 and which holds contracts, including contracts of employment, for Comhairle nanOspidéal, which does not itself hold contracts of employment or have assets and so on. The effect of this will be to ensure that no functions of the bureau are transferred to the HSE.

Amendments Nos. 140 to 142, inclusive, relate to section 67 and are technical in nature. They are to guard against the scenario, admittedly very unlikely, of Comhairle na nOspidéal being joined as a party between now and the establishment day. While there are no legal proceedings involved in Comhairle na nOspidéal currently pending or under way, it has been known for Comhairle to be joined as a party in the past, and provision is being made here for cautionary reasons should this occur for the HSE to assume the role of Comhairle in any legal proceedings or if any court order were to be made.

Amendment agreed to.
Section 61 agreed to.
SECTION 62.

I move amendment No. 138:

In page 45, between lines 34 and 35, to insert the following subsection:

"(4) This section does not apply in relation to the functions of the Hospital Bodies Administrative Bureau."

Amendment agreed to.
Section 62, as amended, agreed to.
SECTION 63.
Question proposed: "That section 63 stand part of the Bill."

Because of pressure of time I could not table an amendment to this section. This matter, which has been raised by the Psychiatric Nurses Association and IMPACT, relates to superannuation. Section 63 is about transferring employees from the current arrangement into the new arrangement. The explanatory memorandum makes it clear that current employees of bodies to be subsumed into the Executive will be transferred on terms and conditions no less favourable than those to which the employees were entitled immediately before the establishment day. That is clear. However, the explanatory memorandum also states that the Executive is required to maintain employees' existing superannuation entitlements pending the commencement of any new arrangements under section 23.

There is a contradiction in that it appears that while guarantees are being given on transfer, the HSE could vary these rights on the introduction of new arrangements. This needs clarification. The HSE cannot be given the power to vary the pension rights of employees. That is clearly a concern for psychiatric nurses.

Under section 64 the HSE will not have that right.

I do not read it in the same way.

The superannuation would in effect be a liability of the HSE.

The issue involves the possibility of changes in the superannuation.

The superannuation cannot be changed. If further amendments are needed in that regard we will talk to the Attorney General.

Ms McManus

There is another potentially very important issue of concern to people working under the new arrangement. Under section 60, the definition "recognised trade union or association of employees" means a trade union or association of employees recognised by the Executive for the purpose of the negotiations that are concerned with the terms and working conditions of the employees. As I understand it, that is not the case currently. The terms "trade union" and "association of employees" are apparently defined under the Trade Union Acts. That is different. We are now giving the right to the HSE to recognise officially or refuse to recognise particular associations of employees. That is a very different relationship, which could be problematic.

I understand that this is a standard provision which has been in previous legislation, including the Eastern Regional Health Authority Act. Section 63(7) defines previous service, recognised trade unions and terms of condition of employment for the purposes of the section. Section 65(3) provides that all rights and liabilities of a body being dissolved under the Bill, arising by virtue of any contract or commitment which would include recruitment competitions and panels for appointment are transferred to the Executive. That is in several Acts and I do not think it has caused any difficulty.

One can see the difficulty. One now has a body which is outside the traditional public service system. The HSE is a new and untried body.

It is a public sector body.

Yes, but it can decide whether to recognise a trade union, even though a trade union or association may be legitimately registered under the Trade Union Acts. The Minister is saying that the HSE could for example decide that IMPACT is causing it problems and refuse to recognise it.

Under section 63, the HSE is required to deal with recognised trade unions.

No, the HSE only has to deal with those trade unions it recognises.

I am advised that the provisions are exactly as they were in the previous legislation and that they did not cause any difficulty in practice.

That may be correct for the provisions made in setting up the ERHA, but not for those relating to this Bill.

Regarding other bodies set up recently such as the Irish Financial Services Regulatory Authority, I understand from discussions I had last week that the provisions before us are more or less standard. They apply in several of the Acts passed recently, and to the Courts Service, and they have caused no difficulties. The HSE is being established on the same basis as the other new bodies.

These are new bodies, but one is talking of an industrial relations minefield in the health service in terms of the large numbers of people employed. I do not believe that regulatory bodies or anything else are on a par. I did not table an amendment as I did not have the information in time, but I would like to be satisfied that this issue is being correctly addressed. It would be a great pity if it were to cause conflict or difficulties as regards enabling the HSE to do its job and I am worried about that. May I introduce an amendment on Report Stage?

I believe so.

I shall do so then.

Is the Deputy happy now?

I am never happy.

Question put and agreed to.
Sections 64 and 65 agreed to.
SECTION 66.

Amendment No. 139 in the name of Deputy Twomey was discussed with amendment No. 12.

I move amendment No. 139:

In page 47, between lines 37 and 38, to insert the following:

"(2) Within 90 days of the establishment of the Executive, a report shall be commissioned and laid before each House of the Oireachtas detailing how the performance and productivity criteria for benchmarking will be transferred to the new structures.".

The amendment was not discussed. It was decided to postpone discussion until later. This deals with benchmarking. Benchmarking has been a major factor as regards the health services. Will the Minister say if any report has been commissioned or whether one is to be laid before the House detailing how the performance and productivity criteria for benchmarking will be transferred to the new structures?

No, many of the people working in the new structures have received their benchmarking increases. Others are questioning their right to receive them. I am sure the Deputy is aware that benchmarking is supposed to be awarded in response to change. I look forward to discussing possible changes with the Deputy's colleagues in the Irish Medical Organisation. I believe he is talking about general practitioners. Benchmarking is for the public sector. GPs are not public servants. They are private business people, in effect. If that is the issue the Deputy is asking about, I very much look forward to the early negotiations with the IMO on many of these issues, including the outstanding 2%. I believe there are two lots of 2% under consideration and I am well disposed to the case being put as regards that. Benchmarking falls into this category. Against whom is a GP in the private sector to be benchmarked?

That is the question.

Benchmarking was introduced to give public servants the right to have their salaries measured against private sector analogues because public sector salaries had fallen behind. Now a private sector organisation is arguing that its members need to be benchmarked, but I do not know against whom.

I wonder whether there is a report on benchmarking.

The Government has committed itself to another benchmarking exercise, in 2007 I believe, as part of the ongoing process of reviewing public sector pay and conditions.

That is grand.

Obviously that will include HSE staff.

It was not just GPs I had in mind, it was the productivity——

I am sorry, I thought that was the point the Deputy was making. I had an interesting conversation with a medical colleague of his recently on these matters. We hope to have discussions at an early date. General practitioners are important in the provision of health care, as the Deputy knows.

I was looking——

I misunderstood the Deputy since he had a wry smile on his face.

I thought, perhaps, the Minister might have thought that was what I had in mind. I wonder if any reports have been commissioned on how benchmarking is working or whether there are plans for such a report.

The Government has announced there is to be a second benchmarking exercise and I believe it is scheduled for 2007.

Amendment, by leave, withdrawn.
Section 66 agreed to.
SECTION 67.

I move amendment No. 140:

In page 47, subsection (1), line 39, after "body" to insert "or Comhairle na nOspidéal".

Amendment agreed to.

I move amendment No. 141:

In page 47, subsection (1), line 41, after "body" to insert "or Comhairle na nOspidéal".

Amendment agreed to.

I move amendment No. 142:

In page 47, subsection (2), line 43, after "body" to insert "or Comhairle na nOspidéal".

Amendment agreed to.
Section 67, as amended, agreed to.
Sections 68 and 69 agreed to.
SECTION 70.

Amendment No. 143 is in the name of the Tánaiste. Amendments Nos. 144 and 145 are related. Amendment No. 146 is an alternative to amendment No. 145. Amendments Nos. 152 and 156 are related to amendment No. 146. I propose that amendments Nos. 143 to 146, inclusive, 153 and 156 be discussed together. Is that agreed? Agreed.

I move amendment No. 143:

In page 48, subsection (3), line 35, to delete "subsections (4) to (6)” and substitute “subsection (4) and section 15(2)(a) of the Civil Registration Act 2004”.

The provisions in sections 74 and 76 are not now required. This matter will be dealt with under Schedule 6, Part 26, which proposes amendments to a number of provisions in the Civil Registration Act 2004, including section 15 of that Act, which will allow for a redefinition of functional areas of the Executive for the purposes of the administration of the civil registration system. Section 15, as amended, will provide for the establishment of registration areas based on the functional areas of the health boards. The redefinition of the boundaries of those areas is required in future by the Executive, with the consent of an tArd-Chláraitheoir and the proper management of the registration by the Executive, subject to the control and supervision of an tArd-Chláraitheoir.

Amendments Nos. 152 and 156 are in the name of Deputy McManus. They are obviously technical and I have asked for the advice of the parliamentary counsel with regard to them. If it is in order I will come back to them on Report Stage.

Amendment agreed to.

I move amendment No. 144:

In page 48, lines 39 to 45, to delete subsection (4).

Amendment agreed to.

I move amendment No. 145:

In page 49, lines 3 to 7, to delete subsection (6).

Amendment agreed to.

Amendment No. 146 is in the name of Deputy McManus. I am advised that this cannot be moved. Does the Deputy understand the reason?

It does not matter, it is just a technical matter. However, we could not find any record of this Bill. It was not on the Attorney General's website. I wondered whether the Notification of Births Acts was the correct description.

This is being referred to Parliamentary Counsel for advice.

It is a technical matter and as it was not on the website we wondered whether it was the correct title.

Amendment No. 146 not moved.
Section 70, as amended, agreed to.
Sections 71 and 72 agreed to.
SECTION 73.

I move amendment No. 147:

In page 49, subsection (2)(e) line 41, to delete “superannuation arrangements for” and substitute “the application of section 64, with the necessary modifications, in respect of former”.

This is a technical amendment, the purpose of which is to provide for the payment of superannuation to former staff of the dissolved bodies. It applies to the provisions of section 64, which provides for the payment of pensions to former employees of specified bodies and to former employees of dissolved bodies.

Amendment agreed to.
Section 73, as amended, agreed to.
Sections 74 to 79, inclusive, agreed to.
SECTION 80.

I move amendment No. 148:

In page 52, subsection (1), line 8, after "matters" to insert "so".

This is a technical issue to do with drafting the actual section. My advice is that the word "so" needs to be put in to make clear what is in the certificate.

The Parliamentary Counsel states that it is no longer the custom to include the word "so" before matters in the modern drafting context, but I will take advice again.

Amendment, by leave, withdrawn.
Amendment No. 149 not moved.
Section 80 agreed to.
Sections 81 and 82 agreed to.
SCHEDULE 1.

I move amendment No. 150:

In page 54, line 4, to delete "2001" and substitute "2004".

These are technical amendments and we have agreed that the Minister will check that everything is all right.

Amendment, by leave, withdrawn.
Amendments Nos. 151 to 153, inclusive, not moved.
Schedule 1 agreed to.
Schedule 2 agreed to.
Amendments Nos. 154 and 159, inclusive, not moved.
Schedule 3 agreed to.
NEW SCHEDULE.

I move amendment No. 160:

In page 62, before Schedule 4, to insert the following new Schedule:

SCHEDULE 4 - REPEALS AND REVOCATIONS; PART 1; Acts Repealed

Number and Year1.

Short Title2.

Extent of Repeal3.

No. 26 of 1953

Health Act 1953

Section 65.

No. 1 of 1970

Health Act 1970

Sections 4(1), 4(5), 4(6), 5(1)(a) to (c), 6, 11, 13, 14, 15, 16(1) to 16(6), 17(4), 17(5), 18, 19, 20, 21(1), 21(4), 21(5), 22, 23(1) to 23(3), 24, 25, 26, 32(1), 33, 34, 35, 36, 37, 41(1), 41(3) to 41(8), 41(11) to 41(16), 42, 73, 83, and the Second Schedule.

No. 32 of 1996

Health (Amendment) (No. 3) Act 1996

Sections 1, 2(1), 2(3), 3, 4(3), 5, 6(1) to 6(3), 6(6), 7(1) to 7(5), 8(1), 8(2), 9(1), 10, 11(1) to 11(4), 13, 14, 15(1), 15(2), 15(4), 15(5), 16, 17(a) to 17(d), 18(a), 18(c), 19, 23, 24, and 25(3).

No. 13 of 1999

Health (Eastern Regional Health Authority) Act 1999

Sections 2 to 8, 10, 12(1) to 12(5), 13, 14, 15(1) to 15(5), 16, 17(1) to 17(4), 17(6), 17(10), 18, to 22, 24, First Schedule and Second Schedule.

No. 19 of 2004

Health (Amendment) Act 2004

The whole Act.

PART 2 - Orders Revoked

Number and Year1.

Short Title2.

Extent of Revocation3.

1973 No. 53

Hospital Bodies Administrative Bureau (Establishment) Order 1973

The Whole Order.

1996 No. 213

Health Service Employers Agency (Establishment) Order 1996

The Whole Order.

2004 No. 90

Interim Health Service Executive (Establishment) Order 2004

The Whole Order.

Schedule 4 specifies the enactments repealed or revoked by the Bill. This amendment provides for the insertion of a schedule to replace the existing one. It provides for the repeal of section 65 of the Health Act 1953, which is being replaced by section 44 of this Bill. It also removes references to sections 28 and 29 in the provisions relating to the Health Act 1970, as these were already deleted by the Comptroller and Auditor General Act 1993. It includes sections 34 to 37, inclusive, and section 42, as these were transition provisions included when the health boards replaced the health authorities. It also includes the Second Schedule to the 1970 Act, as this was repealed in 2004 only in respect of health boards.

Amendment agreed to.
SCHEDULE 4.
Amendments Nos. 161 and 162 not moved.
Question proposed: "That Schedule 4 be Schedule 4 to the Bill."

It is extraordinary that there is so much material being added on by way of an amendment. I would have thought that this was basic stuff. It refers to all the other Acts. Why was it not in the original Bill? There are pages of it.

The next amendment to be moved is to ensure that any employee of the executive who, immediately prior to the establishment of the executive, was an authorised officer or other designated officer for the purpose of certain Acts or regulations, continues in that capacity. These Acts are listed in Schedule 3. This would include environmental health officers.

Why was this not in the original Bill?

The Parliamentary Counsel has advised that it is a kind of belt and braces exercise to ensure that no area is left uncovered. There will be large transitional arrangements in the first six months of next year. We want to ensure that they are all covered in what we are doing here. We are repealing existing legislation.

Does the Department have its own Parliamentary Counsel?

No. We had a discussion in Cabinet recently about this issue. Although the number of Parliamentary Counsel has greatly increased in recent years, there is always a waiting time because of the volume of the legislation. We do have a legal adviser.

The Department of Environment, Heritage and Local Government has one. It is very efficient.

I have a very efficient team here too.

Question put and agreed to.
SCHEDULE 5.

I move amendment No. 163:

In page 63, lines 30 to 34, to delete all words from and including ", under" in line 30 down to and including "Executive." in line 34 and substitute the following:

"an appointment to perform functions on behalf of a health board, an Area Health Board or the Eastern Regional Health Authority as—

(a) an authorised officer under—

(i) the Poisons Act 1961,

(ii) the European Communities Act 1972,

(iii) the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act 1978,

(iv) the Tobacco (Health Promotion and Protection) Act 1988,

(v) the Domestic Violence Act 1996,

(vi) the Food Safety Authority of Ireland Act 1998,

(vii) the Beef Assurance Scheme Act 2000, or

(viii) the Public Health (Tobacco) Acts 2002 and 2004,

(b) a designated officer under the Protection for Persons Reporting Child Abuse Act 1998,

(c) an investigation or appeals officer under the Social Welfare Acts,

(d) a liaison officer under the Education (Welfare) Act 2000,

(e) an inspector under the International Carriage of Perishable Foodstuffs Act 1987,

(f) an authorised person or officer, or a designated person or officer, under the Child Care Acts 1991 to 2001,

(g) a family welfare conference co-ordinator or a person authorised to perform functions under Part 2 of the Child Care Act 1991,

(h) an authorised officer or a person authorised to perform functions under the Adoption Acts 1952 to 1998,

(i) an authorised officer or person holding office under the Births and Deaths Registration Acts 1863 to 1996 and the Registration of Marriages (Ireland) Act 1863,

(j) a person authorised to perform functions under the Mental Health Acts 1945 to 2001, or

(k) an officer, however described, whose functions under any of the Acts referred to in clauses (a) to (j) or any enactment referred to in Schedule 3 are analogous to those of an officer, inspector, co-ordinator or other person referred to in any of those clauses,

continues to hold that appointment until it is revoked or amended by the Executive.".

Amendment agreed to.

I move amendment No. 164:

In page 64, between lines 23 and 24, to insert the following:

"Continuation of authority to perform functions of medical officers.

4. (1) Any function under the Health Acts 1947 to 1953 of a medical officer of health may be performed on and after the establishment day by an appropriately qualified medical practitioner who is an employee of the Executive and is designated in writing by it to perform such function.

(2) Any function under the Health Acts 1947 to 1953 of a chief medical officer may be performed on and after the establishment day by an appropriately qualified medical practitioner who is an employee of the Executive and is designated in writing by it to perform such function.

(3) Any function under an enactment of the Director of Community Care and Medical Officer of Health may be performed on and after the establishment day by an appropriately qualified medical practitioner who is an employee of the Executive and is designated in writing by it to perform such function.".

Amendment agreed to.

I move amendment No. 165:

In page 64, line 30, to delete "establishment day-", to delete lines 31 to 53 and in page 65, to delete lines 1 to 13 and substitute the following:

"establishment day the determination ceases to have effect on that day.".

Amendment agreed to.

I move amendment No. 166:

In page 65, to delete lines 14 to 26.

Amendment agreed to.

I move amendment No. 167:

In page 66, after line 11, to insert the following:

"Transitional provision relating to funding for the year 2005.

7. (1) On the establishment day, there shall be established a Vote for the Executive, to be known as the Health Service Executive Vote, which shall be Vote 40.

(2) The Vote shall read ‘Estimate of the amount required in the year ending 31 December 2005 for the salaries and expenses of the Health Service Executive and certain other services administered by the Executive, including miscellaneous grants'.

(3) For the purpose of establishing a Vote undersubparagraph (1), an amount not exceeding €7 billion shall be allocated to the Vote.

(4) This section ceases to have effect on the approval by the Dáil of a financial resolution in respect of the funding of the Executive in 2005.".

Amendment agreed to.
Schedule 5, as amended, agreed to.
NEW SCHEDULE.

I move amendment No. 168:

In page 67, before Schedule 6, to insert the following new Schedule:

"SCHEDULE 6 - AMENDMENT OF OTHER ACTS; SECTION 78; PART 1; Amendment of Health Act 1947

Item

Provision affected

Amendment

1.

Section 33

In paragraph (b), substitute ‘medical officer of health for the region or area’ for ‘district medical officer for the district’.

2.

Section 36

In subsection (1)(c), substitute ‘medical officer of health for the region or area’ for ‘district medical officer for the district’.

3.

Section 37

In subsections (1) to (3), substitute ‘medical officer of health’ for ‘district medical officer’ wherever occurring.

4.

Section 78 (as amended by the Health (Amendment) Act 2004)

Substitute the following subsection for subsection (1): ‘(1) The Health Service Executive may acquire land either— (a)by agreement, subject to any general directions given by the Minister with the consent of the Minister for Finance, or (b)compulsorily under this Part of this Act or the Acts incorporated with this Act.’.

5.

Section 89 (as amended by the Health (Amendment) Act 2004)

Substitute the following subsection for subsection (1): ‘(1) The Health Service Executive may, subject to any general directions given by the Minister with the consent of the Minister for Finance, sell, exchange, let or otherwise dispose of any land vested in it.’.

PART 2 - Amendment of Health Act 1953

Item

Provision affected

Amendments

1.

Section 62

In subsection (1)(b)(ii), substitute ‘the Health Service Executive’ for each reference to ‘the Minister’ and substitute ‘any board constituted by the Public Appointments Service in accordance with the Public Service Management (Recruitment and Appointments) Act 2004’ for ‘any board constituted by the Local Authorities (Officers and Employers) Act 1926 (No. 39 of 1926)’.

PART 3 - Amendment of Health (Corporate Bodies) Act 1961

Item

Provision inserted

Amendments

1.

Section 3A

Insert the following section after section 3: ‘3A (1) The Minister may by order establish a body to perform, subject to such modifications as are specified in the order, functions that, immediately before the establishment day, were being performed by a specified body. (2) An establishment order shall include provision for— (a)the transfer, without further conveyance or assignment, of any property, rights and liabilities of the specified body to the body established under this section, (b)the preservation of continuing contracts and commitments made by the specified body, and (c)the continuance of pending legal proceedings. (3) Each person who, immediately before the establishment day of a body established under this section, is an employee of the specified body is, on that day, transferred to and becomes an employee of the body established under this section. (4) Except in accordance with a collective agreement negotiated with a recognised trade union or association of employees, a person transferred under this section is entitled, while in the employment of the body established under this section, to terms and conditions of employment no less favourable than those to which the person was entitled immediately before the establishment day of that body. (5) Until the terms and conditions of employment to which a person transferred under this section was entitled immediately before the establishment day are varied by the body established under this section after consulting and reaching a collective agreement with the recognised trade union or association of the employees concerned, they continue to apply to that person while in the employment of that body.

Item

Provision inserted

Amendments

(6) The previous service of a person transferred under this section is to be counted as service for the purposes of, but subject to any exceptions or exclusions in, the following Acts: (a)the Redundancy Payments Acts 1967 to 2003; (b)Adoptive Leave Act 1995; (c)Maternity Protection Act 1994; (d)Protection of Employees (Fixed-Term Working) Act 2003; (e)the Protection of Employees (Part-Time Work) Act 2001; (f)the Organisation of Working Time Act 1997; (g)the Minimum Notice and Terms of Employment Acts 1973 to 2001; (h)the Unfair Dismissals Acts 1997 to 2001; (i)the Carer’s Leave Act 2001; (j)the Parental Leave Act 1998. (7) Any superannuation benefits awarded to or in respect of a person transferred under this section and the terms relating to those benefits shall be no less favourable than those applicable to or in respect of that person immediately before the applicable transfer day. (8) A body established under this section shall make payments in respect of remuneration and allowances to its employees out of funds at its disposal. (9) The pension payments and other superannuation liabilities in respect of former employees of the specified body become, on the establishment day, the liability of the body established under this section. (10) In this section— “previous service” means service with the specified body before the establishment day of the body established under this section; “recognised trade union or association of employees” means a trade union or association of employees recognised by the specified body for the purposes of negotiations that are concerned with the terms and conditions of employment and the working conditions of employees; “specified body” means a body that was established under section 11 of the Health Act 1970 and that is specified by the Minister in an establishment order under this section; “terms and conditions of employment” includes terms and conditions in respect of remuneration and tenure of office and related matters.’.

PART 4 - Amendment of Poisons Act 1961

Item

Provision affected

Amendment

1.

Section 14

(a)In subsection (3)(j), substitute the following subparagraph for subparagraph (iv): ‘(iv) (b)In subsection (3)(k), substitute ‘and in the case of an employee of the Health Service Executive, a written authorisation of the Executive’ for ‘and in the case of an officer of a health board, a written authorisation of the board’. (c)In subsection (3)(o), substitute ‘the Health Service Executive’ for ‘health boards’.

PART 5 - Amendment of Family Law (Maintenance of Spouses and Children) Act 1976

Item

Provision affected

Amendment

1.

Section 16

In subsection (1), substitute ‘the Health Service Executive’ for ‘a health board’.

PART 6 - Amendment of Unfair Dismissals Act 1977

Item

Provision affected

Amendment

1.

Section 2

In subsection (1) (as amended by the Unfair Dismissals (Amendment) Act 1993), substitute the following paragraphs for paragraph (j): ‘(j) officers of a vocational committee established by the Vocational Education Act 1930, (k)the chief executive officer of the Health Service Executive for the purposes of section 17 of the Health Act 2004.’.

PART 7 - Amendment of Misuse of Drugs Act 1977

Item

Provision affected

Amendment

1.

Section 28 (as amended by the Misuse of Drugs Act 1984)

(a)In subsection (1)(a), substitute ‘the Health Service Executive’ for ‘a health board’. (b)In subsection (1)(b), substitute ‘the Health Service Executive’ for ‘a health board’. (c)In subsection (2), substitute ‘the Health Service Executive’ for ‘a health board’. (d)In subsection (11), delete the definition of ‘health board’.

PART 8 - Amendment of the Ombudsman Act 1980

Item

Provision affected

Amendment

1.

First Schedule (as amended by the Ombudsman Act (First Schedule) (Amendment) Order 1984

Substitute ‘the Health Service Executive’ for ‘Health boards’, wherever occurring.

2.

Second Schedule (as amended by the Ombudsman Act 1980 (Second Schedule) (Amendment) Order 1985)

Substitute ‘the Health Service Executive’ for ‘Health boards’.

PART 9 - Amendment of Misuse of Drugs Act 1984

Item

Provision affected

Amendment

1.

Section 8

In subsection (1), substitute ‘the Health Service Executive’ for ‘a health board’.

PART 10 - Amendment of International Carriage of Perishable Foodstuffs Act 1987

Item

Provision affected

Amendment

1.

Section 8

(a)In subsection (1), delete ‘, with the consent of the Minister for Health,’. (b)In subsection (1), substitute ‘the Health Service Executive’ for ‘a health board’.

PART 11 - Housing Act 1988

Item

Provision affected

Amendment

1.

Section 9

In subsection (4), substitute the following paragraph for paragraph (b): ‘(b)the Health Service Executive, and’.

2.

Section 11

Substitute the following subsection for subsection (4): ‘(4) A scheme made under this section may provide that the housing authority shall obtain and have regard to a report from a medical practitioner employed by the Health Service Executive in the making of lettings of dwellings where priority is claimed on grounds consisting of, or including, medical grounds.’.

PART 12 - Child Abduction and Enforcement of Custody Orders Act 1991

Item

Provision affected

Amendment

1.

Section 2

Delete the definition of ‘health board’.

2.

Section 14

Substitute ‘the Health Service Executive’ for ‘a health board’.

3.

Section 30

Substitute ‘the Health Service Executive’ for ‘a health board’.

4.

Section 37

(a) Substitute the following subsection for subsection (2): ‘(2) Where a child is detained under this section a member of the Garda Síochána shall as soon as possible— (a)return the child to the custody of a person (not being the Health Service Executive) in favour of whom a court has made an order referred to in subsection (1) of this section unless the member has reasonable grounds for believing that such person will act in breach of such order, or (b)where the child has been in the care of the Health Service Executive, return the child to it, or (c)in a case other than one to which paragraph (a) or (b) of this subsection applies, or where the member is of the belief referred to in the said paragraph (a), deliver the child into the care of the Health Service Executive.’. (b)In subsections (3) to (5), substitute ‘the Health Service Executive’ for ‘a health board’, wherever occurring. (c) In subsections (3) to (5), substitute ‘the Health Service Executive’ for ‘the health board’, wherever occurring.

PART 13 - Family Law Act 1995

Item

Provision affected

Amendment

1.

Section 47

(a)In subsection (1), substitute the following paragraph for paragraph (b): ‘(b)such person nominated by the Health Service Executive specified in the order as the Health Service Executive may nominate, being a person who in its opinion is suitably qualified for the purpose, or’. (b)Delete subsection (7).

PART 14 - Amendment of Domestic Violence Act 1996

Item

Provision affected

Amendment

1.

Section 1

In subsection (1), delete the definition of ‘health board’.

2.

Section 2

(a)In subsection (1)(a), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring. (b)In subsection (3), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring.

3.

Section 3

(a)In subsection (1), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring. (b)In subsection (6), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring.

4.

Section 5

In subsection (2), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring.

5.

Section 6

(a)In subsection (1), substitute ‘the Health Service Executive’ for ‘a health board’. (b)In subsection (2), substitute ‘the Health Service Executive’ for ‘a health board’. (c)In subsection (3), substitute ‘the Health Service Executive’ for ‘a health board’. (d)In subsection (5), substitute ‘the Health Service Executive’ for ‘the health board’. (e)Delete subsection (6).

6.

Section 7

(a)In subsection (1), substitute ‘the Health Service Executive’ for ‘the health board for the area in which such dependent person resides or is for the time being’. (b)In subsection (2), substitute ‘the Health Service Executive’ for ‘the health board concerned’. (c)In subsection (3), substitute ‘the Health Service Executive’ for ‘the health board concerned’. (d)In subsection (4), substitute ‘the Health Service Executive’ for ‘a health board’.

7.

Section 11

(a)In subsection (3), substitute ‘the Health Service Executive.’ for ‘the health board’ and ‘a health board’ wherever occurring. (b)In subsection (2), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring. (c)In subsection (3), substitute ‘the Health Service Executive’ for the health board for the area in which the person resides.’.

8.

Section 13

Substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring.

PART 15 - Amendment of Refugee Act 1996

Item

Provision affected

Amendment

1.

Section 8

(a)In subsection (5)(a) (as amended by section 11 of the Immigration Act 1999), substitute ‘Health Service Executive’ for ‘health board in whose functional area the child is’. (b)In subsection (5), substitute the following paragraph for paragraph (b): ‘(b)Where it appears to the Health Service Executive, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the Health Service Executive shall arrange for the appointment of an employee of the Health Service Executive or such other person as it may determine to make an application on behalf of the child.’. (c)In subsection (5)(c), substitute ‘Health Service Executive’ for ‘health board concerned.’. (d)In subsection (5), delete paragraph (d).

2.

Section 9

In subsection (12), substitute the following paragraph for paragraph (c): ‘(c)Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting inloco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Health Service Executive of the detention and of the circumstances thereof.’.

3.

Section 9A (as amended by section 7 of the Immigration Act 2003)

In subsection (2), substitute the following paragraph for paragraph (b): ‘(b)an employee of the Health Service Executive or other person appointed by the Health Service Executive under section 8(5)(b).’.

PART 16 - Housing (Miscellaneous Provisions) Act 1997

Item

Provision affected

Amendment

1.

Section 3 (as amended by section 197 of the Residential Tenancies Act 2004)

In subsection (2), substitute the following paragraph for paragraph (a): ‘(a)having consulted the tenant or the relevant purchaser and the Health Service Executive, believe that the tenant or relevant purchaser— (i)may be deterred or prevented by violence, threat, or fear from pursuing an application for an exclusion order, or (ii)does not intend, for whatever other reason, to make such an application, and’.

2.

Section 3A (as amended by section 197 of the Residential Tenancies Act 2004)

In subsection (2), substitute the following paragraph for paragraph (a): ‘(a)having consulted the authorised person concerned and the Health Service Executive believe that such authorised person— (i)may be deterred or prevented by violence, threat or fear from pursuing an application for a site excluding order, or (ii)does not intend, for whatever other reason, to make such an application, and’.

3.

Section 7

In subsection (1), substitute the following paragraphs for paragraphs (c) and (d): ‘(c)the housing authority in whose functional area the house in respect of which the application for the order was made is situate, (d)the Health Service Executive, and (e)the member of the Garda Síochána in charge of the Garda Síochána station for the area in which the house in relation to which the application for the order was made is situate.’.

PART 17 - Housing (Traveller Accommodation) Act 1998

Item

Provision affected

Amendment

1.

Section 8

Substitute the following paragraph for paragraph (c): ‘(c)the Health Service Executive,’.

PART 18 - Amendment of Immigration Act 1999

Item

Provision affected

Amendment

1.

Section 5

In subsection (4)(c), substitute ‘Health Service Executive’ for ‘health board for the area in which the person is being detained’.

PART 19 - Amendment of National Beef Assurance Scheme Act 2000

Item

Provision affected

Amendment

1.

Section 2

In the definition of “authorised officer”, substitute the following paragraph for paragraph (c): ‘(c)an employee of the Health Service Executive authorised in writing by the chief executive officer of the Health Service Executive to be an authorised officer for the purposes of section 6(1)(d) and (2);’.

2.

Section 29

Substitute the following subsection for subsection (2): ‘(2) The Health Service Executive may appoint such and so many persons as it considers necessary to be authorised officers for the purpose of the implementation of section 6(1)(d) and (2).’.

PART 20 - Amendment of Sex Offenders Act 2001

Item

Provision affected

Amendment

1.

Section 25

In subsection (1), in the definition of ‘State work or a service’, substitute the following paragraphs for paragraph (d): ‘(d)is an officer or servant of a harbour authority or vocational education committee, or ‘(e)is an employee of the Health Service Executive.’.

PART 21 - Amendment of Local Government Act 2001

Item

Provision affected

Amendment

1.

Section 2

In subsection (1), in the definition of ‘public authority’, substitute the following paragraph for paragraph (d): ‘(d)the Health Service Executive established under section 6 of the Health Act 2004;’.

2.

Section 13

In subsection (1), insert the following subparagraph after subparagraph (i): ‘(ii)is a person employed by the Health Service Executive and is at a grade or of a description of employment designated by order of the Minister for Health and Children, or’.

3.

Section 85

Substitute the following subsection for subsection (7): ‘(7) This section is without prejudice tosection 8 of the Health Act 2004 and an agreement may not be entered into under this section in any case in which an agreement could be entered into under that section.’.

4.

Section 220

In subsection (1) in the definition of ‘linked body’ (as amended by the Health (Amendment) Act 2004) insert ‘a Regional Health Forum established under theHealth Act 2004,’ after ‘means’.

PART 22 - Amendment of Public Health (Tobacco) Act 2002

Item

Provision affected

Amendment

1.

Section 2 (as amended by section 2 of the Public Health (Tobacco) (Amendment) Act 2004)

In subsection (1), delete the definition of ‘health board’.

2.

Section 6

(a)Substitute the following subsection for subsection (2): ‘(2) Summary proceedings for an offence under this Act may be brought and prosecuted by the Health Service Executive.’. (b)In subsection (3), substitute ‘the Health Service Executive,’ for ‘the health board concerned,’.

3.

Section 10

In subsection (1)(h), substitute ‘the Health Service Executive’ for ‘health boards’ and ‘the health boards’.

4.

Section 47 (as amended by section 16 of the Public Health (Tobacco) (Amendment) Act 2004

In subsection (7), substitute the following definition for the definition of ‘health premises’: ‘“health premises” means any hospital, sanatorium, home, laboratory, clinic, health care centre or similar premises required for the provision of services under the Health Acts 1947 to 2004, provided and maintained by the Health Service Executive;’.

5.

Section 48

(a)Substitute the following subsection for subsection (2): ‘(2) The Health Service Executive shall appoint such one or more persons, as it considers appropriate, to be an authorised officer or authorised officers for the purposes of this Act.’. (b)In subsection (3)(b), substitute ‘Health Service Executive,’ for ‘health board concerned,’.

6.

Section 49

In subsection (2), substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’.

7.

Section 51

In subsection (3)(b), substitute ‘the Health Service Executive’ for ‘the health board’ and ‘the health board concerned’.

PART 23 - Amendment of Ombudsman for Children Act 2002

Item

Provision affected

Amendment

1.

Section 2

(a)In subsection (1), delete the definition of ‘health board’.

(b)In subsection (1), substitute the following definition for the definition of ‘voluntary hospital’:

‘“voluntary hospital” means a hospital which is substantially funded by means of an arrangement with the Health Service Executive undersection 43 of the Health Act 2004 and the governing body of which is not the Health Service Executive or a committee of it.’.

2.

Section 9

(a) In subsection (1)(a), insert ‘or’ after ‘the Act of 1988,’.

(b) In subsection (1), substitute the following paragraph for paragraphs (b) and (c):

‘(b)a voluntary hospital in connection with the provision by it of health and personal social services within the meaning of the Health Act 2004 in accordance with an arrangement made by it under section 43 of that Act with the Health Service Executive,’.

(c) Delete subsection (4).

3.

Section 13

In subsection (2)(b), substitute the following subparagraph for subparagraph (iii):

‘(iii)where the investigation relates to an action taken by or on behalf of a voluntary hospital, to the Health Service Executive,’.

4.

Schedule 1

(a) In Part 1(4), substitute ‘The Health Service Executive.’ for ‘a health board.’.

(b)In Part 2, substitute ‘the Health Service Executive’ for ‘a health board’ and ‘the health board’ wherever occurring.

PART 24 - Amendment of Licensing of Indoor Events Act 2003

Item

Provision affected

Amendment

1.

Section 1

Delete the definition of ‘health board’.

2.

Section 13

Substitute the following subsection for subsection (1): ‘13.—(1) No action or other proceeding shall lie or be maintainable against— (a)the Minister or a fire authority or any officer of or person employed by the fire authority, (b)the Health Service Executive or any person employed by the Health Service Executive, (c)any person engaged by a fire authority or the Health Service Executive, (d)a member of the Garda Síochána, or (e)an authorised officer, for the recovery of damages in respect of any injury to persons, damage to property or other loss alleged to have been caused or contributed to by a failure to exercise any function conferred or imposed on the fire authority or the Health Service Executive by or under this Act.’.

3.

Section 21

Substitute the following subsection for subsection (1): ‘(1) A fire authority may appoint in writing such and so many persons to be authorised officers for the purposes of Part 1 or 2 and without prejudice to the generality of the foregoing such persons may include a person who is employed by the Health Service Executive.’.

PART 25 - Amendment of Immigration Act 2003

Item

Provision affected

Amendment

1.

Section 5

In subsection (2)(d), substitute ‘Health Service Executive’ for ‘health board for the area in which the person is being detained’.

2.

Section 8

In subsection (4), substitute ‘the Health Service Executive,’ for ‘a health board,’.

PART 26 - Amendment of Civil Registration Act 2004

Item

Provision affected

Amendment

1.

Section 2

(a)Delete the definition of ‘authority’. (b)Insert the following definition: ‘“Executive” means the Health Service Executive;’. (c)Delete the definition of ‘health board’. (d)Insert the following definition: ‘“registration area” shall be construed in accordance with section 15(1) and (2A);’. (e)Substitute the following for the definition of ‘scheme’: ‘“scheme” means a scheme approved under section 14;’.

2.

Section 14

(a)Substitute the following subsection for subsection (1): ‘(1) As soon as may be after the appointment of the first Superintendent Registrar of a registration area, he or she shall prepare a scheme in writing for the administration of the Civil Registration Service in that area and shall, after it has been approved by the Executive, submit the scheme to the Minister.’. (b)In subsection (3)(a), substitute ‘of the registration area concerned’ for ‘of the authority concerned’. (c)In subsections (3)(b) and (4), substitute ‘the Executive’ for ‘the authority concerned’. (d)In subsection (5), substitute ‘the Executive’ for ‘the authority’. (e)In subsection (6), substitute ‘the Executive’ for ‘the relevant authority’. (f)Substitute the following subsection for subsection (7): ‘(7) Without prejudice to the generality of subsection (1), a scheme shall specify in relation to a registration area— (a)the number of registrars required for the purpose of the performance of the Executive’s functions within that area, (b)the number of other employees required for that purpose, (c)the locations within that area of the offices of the Executive, (d)the proposed functions of, and distribution of functions between, the registrars and employees assigned pursuant to the scheme, (e)particulars of the proposed conditions of employment of the registrars and employees assigned pursuant to the scheme, and (f)particulars or provisions in relation to any other matter standing specified for the time being by the Minister.’. (g)In subsection (8), substitute ‘the Executive in relation to the registration area concerned’ for ‘the authority concerned’.

3.

Section 15

(a)Substitute the following subsections for subsections (1) and (2): ‘(1) Each functional area of the Health Service Executive shall, subject to subsection (2A), be a registration area for the purposes of this Act. (2) After consulting with an tArd Chláraitheoir, the Executive shall assign a name to each registration area. (2A) The Executive may, with the consent of an tArd Chláraitheoir, redefine for the purposes of this Act the boundaries of any of its functional areas, and, if it does so, that functional area as redefined shall be a registration area for those purposes.’. (b)Substitute the following for subsection (3): ‘(3) Under the overall management, control and supervision of an tArd Chláraitheoir, the Executive shall, in accordance with the provisions of the relevant scheme, manage, control and administer, through the Superintendent Registrar of each registration area, the Civil Registration Service in that area and perform in the area the other functions conferred on it by or under this Act.’. (c)In subsection (4), substitute ‘the Executive’ for ‘an authority’ wherever occurring and substitute ‘a registration area’ for ‘its functional area’. (d)Substitute the following for subsection (5): ‘(5) The Executive shall, in each year beginning with the year 2005, prepare an estimate in writing of its income and expenditure in the next following year in respect of each registration area and shall submit a copy of it to an tArd Chláraitheoir.’.

4.

Section 16

(a)Delete subsection (1). (b)In subsection (2), substitute ‘Accounts of the Executive relating to each scheme’ for ‘Accounts of an authority’. (c)Delete subsection (3).

5.

Section 17

(a)Substitute the following subsections for subsections (1) to (3): ‘(1) Subject to the provisions of this section, the Executive, after consulting with an tArd Chláraitheoir, shall— (a)appoint, in respect of each registration area, an employee of the Executive as the chief officer of that area to be known as the Superintendent Registrar, (b)appoint such number of employees of the Executive as registrars of births, stillbirths, deaths and marriages and assign them to each registration area, and (c)assign such number of other employees to each registration area, as it considers necessary for the performance of its functions. (2) The appointment and assignment of a registrar under paragraph (b) and the assignment of an employee under paragraph (c) of subsection (1) to a registration area shall be in accordance with the scheme relating to the area. (3) The Superintendent Registrar of a registration area shall manage, control and administer the Civil Registration Service on behalf of and subject to the control and direction of the Executive in that area and shall perform such other functions in relation to the Civil Registration Service as may from time to time be specified in writing to him or her by the Executive.’. (b)In subsection (4), substitute ‘in the registration area to which he or she is assigned’ for ‘in the functional area of the authority by which he or she was appointed’ and substitute ‘a scheme relating to that area’ for ‘a scheme made by the authority by which he or she was appointed’. (c)In subsection (5), substitute ‘the registration area to which the registrar or officer is assigned’ for ‘the authority by which the registrar or officer was appointed’. (d)Substitute the following subsection for subsection (6): ‘(6) A Superintendent Registrar of a registration area may give a direction to a registrar or authorised officer assigned to that area.’. (e)In subsection (8), substitute ‘the Executive’ for ‘the authority concerned’. (f)Substitute the following subsection for subsection (9): ‘(9) A person holding office under this section (including a Superintendent Registrar and a registrar) may be removed from office by the Executive if, in its opinion, the person is incapable by reason of ill health of performing the functions of the office or has committed stated misbehaviour or his or her removal from office appears to the Executive to be necessary for the effective performance of the functions of the office.’. (g)In subsection (10), substitute the following paragraph for paragraph (a): ‘(a)The Executive may appoint any of its employees to be authorised officers either, as may be specified in the instrument of appointment, for the purposes of this Act or for the purposes of specified provisions of this Act and shall assign such officers to a registration area.’.

6.

Section 19

(a)In subsection (3)— (i)substitute ‘the Superintendent Registrar in whose registration area’ for ‘the authority in whose functional area’ and substitute ‘the Superintendent Registrar may’ for ‘the authority may’, and (ii)substitute the following paragraph for paragraph (a): ‘(a)to attend before a registrar in that registration area, at the office of the registrar or such other (if any) convenient place as may be specified by the Superintendent Registrar on or before a day so specified (not being less than 7 days from the date of the notice nor more than 12 months from the date of the birth),’. (b)In subsection (5), substitute ‘in whose registration area’ for ‘of the authority in whose functional area’.

7.

Section 20

In subsection (1), substitute ‘of the registration area to which the registrar is assigned’ for ‘of the authority by which he or she was appointed’.

8.

Section 23

In subsection (2), substitute ‘of the registration area to which the registrar is assigned’ for ‘of the authority by which the registrar is employed’.

9.

Section 24

In subsection (3), substitute ‘of the registration area to which the registrar is assigned’ for ‘of the authority by which the registrar is employed’.

10.

Section 28

(a)In subsection (4), substitute ‘Superintendent Registrar in whose registration area’ for ‘the authority in whose functional area’ and substitute ‘in that registration area’ for ‘of the authority’. (b)In subsection (7), substitute ‘registration area’ for ‘functional area of the authority’.

11.

Section 29

Substitute ‘registration area’ for ‘authority’.

12.

Section 30

In subsections (1) and (2), substitute ‘Superintendent Registrar in whose registration area’ for ‘authority in whose functional area’.

13.

Section 37

(a)In subsection (2), substitute ‘Superintendent Registrar in whose registration area’ for ‘authority in whose functional area’. (b)In subsection (2)(a), substitute ‘that registration area or in the registration area’ for ‘that functional area or in the functional area of the authority’.

14.

Section 40

In subsection (1), substitute ‘of the registration area to which the registrar is assigned’ for ‘of the authority by which the registrar is employed’.

15.

Section 41

In subsection (4), substitute ‘registration area’ for ‘functional area of the authority’.

16.

Section 43

In subsections (1) and (2), substitute ‘registration area’ for ‘functional area of the authority’.

17.

Section 45

In the definition of ‘body’ substitute ‘the Executive’ for ‘an authority’.

18.

Section 52

(a)In subsection (1), substitute ‘the Executive’ for ‘the authority by which the registrar is employed’ and for ‘that authority’. (b)In subsection (2)(a), substitute ‘the Executive’ for ‘the authority by whom the registrar is employed’. (c)In subsection (2)(b), substitute ‘the Executive’ for ‘the authority by which he or she is employed’.

19.

Section 53

In subsection (4)(a), substitute ‘the Executive’ for ‘an authority’.

20.

Section 54

In subsection (2), substitute the following paragraph for paragraph (a): ‘(a)in case the body is the Executive, for the registration of a registrar named in the application who is employed by the Executive and is aged 18 years or more.’.

21.

Section 56

(a)In subsection (5)(a), substitute ‘the Executive’ for ‘an authority’. (b)In subsection (5)(c)(i), substitute ‘the Executive’ for ‘an authority’ and for ‘the authority’. (c)In subsection (5)(c)(ii), substitute ‘the Executive’ for ‘an authority’. (d)In subsection (5)(c)(iii), substitute ‘the Executive’ for ‘an authority’ wherever occurring and for ‘the authority’.

22.

Section 58

In subsection (2), substitute the following for everything before paragraph (c): ‘(2) Where an objection under subsection (1) is received by a registrar assigned to a registration area other than the registration area to which is assigned the registrar who, in relation to the marriage concerned, was given the notification referred to in section 46 or a copy of an order referred to in that section— (a)the registrar by whom the objection is received shall refer the objection to the Superintendent Registrar of the registration area to which is assigned the registrar who was given the notification or the copy of the court order, (b)the Superintendent Registrar to whom the objection is referred shall direct a registrar assigned to his or her registration area to perform the function conferred by this section on the registrar who received the objection,’.

23.

Section 60

In subsection (2), substitute— (a)‘the Executive’ for ‘the authority concerned’, (b)‘by the Executive to such employee of the Executive’ for ‘by the authority to such officer of the authority’, and (c)‘as the Executive’ for ‘as the authority’.

24.

Section 61

(a)In subsection (1)(b), in subparagraph (i), delete ‘or’ where it occurs after ‘a true copy,’; in subparagraph (ii), insert ‘or’ after ‘a copy’; and insert the following subparagraph:‘(iii) a certified extract,’. (b)In subsection (2)(b), in subparagraph (i), delete ‘or’ where it occurs after ‘a true copy,’; in subparagraph (ii), insert ‘or’ after ‘a copy’; and insert the following subparagraph:‘(iii) a certified extract,’.

(c)Insert the following subsection: ‘(5) The Minister may make regulations specifying particulars to be included in a certified extract referred to in subsection (1) or (2).’.

25.

Section 64

(a)In subsection (1), substitute ‘of the registration area to which the registrar is assigned’ for ‘of the authority by which the registrar is employed’. (b)In subsection (2), substitute ‘any registration area’ for ‘any authority’ and substitute ‘in that registration area’ for ‘of that authority’.

26.

Section 66

(a)In subsection (1)(g), substitute ‘the Executive’ for ‘a health board’. (b)In subsection (1)(i), substitute ‘the Executive’ for ‘a health board’.

27.

Section 68

In subsection (3), substitute ‘the Executive’ for ‘the relevant authority’.

28.

Section 71

(a)In subsection (1), substitute ‘the Executive’ for ‘the authority in whose functional area the offence was committed’. (b)In subsections (2) and (3), substitute ‘the Executive’ for ‘the authority concerned’.

29.

Section 73

In subsection (5), substitute ‘medical practitioners employed by the Executive’ for ‘medical officers of health boards’.

30.

First Schedule

In Part 2, delete ‘Personal public service number of child’.

The amendment replaces the original Schedule 6 and specifies the Acts to be amended by the Bill. In Part 1 of the Schedule, two amendments are made to the Health Act 1947.

The first amendment is to sections 33, 36 and 37, the purpose of which is to adapt the term "district medical officer" so that it will now read "medical officer for health". Deputies will recall that in the discussion on section 2 amendments, I advised the committee that the Health Act 1947 sets out specific statutory functions relating to the duties of a medical officer for health which includes a district medical officer. The legal advice is that to transfer these functions to the executive on establishment day, the amendment is necessary. The effect of the amendment, together with amendment No. 5, is to provide specifically that these duties of a district medical officer can now be carried out by an appropriately qualified medical practitioner who is an employee of the executive and who has been specifically designated by the executive to perform these functions.

The second amendment to the Health Act has been made to sections 78 and 89. The purpose of this amendment is to allow the executive acquire, sell, exchange or otherwise dispose of land subject to any general directions given by the Minister with the consent of the Minister for Finance. Section 15 of the Health (Amendment) Act 2004 introduced a requirement that the Eastern Regional Health Authority and the health boards must get the specific consent of the Minister before they could acquire or dispose of land. This was a transitional arrangement introduced after the removal of members from the health boards and was intended as a temporary measure pending the establishment of the executive. The Minister will have powers to issue directions to the executive regarding the acquisition and disposal of land but will not be directly involved in the matter. The arrangement proposed by the amendment is in line with the policy of enabling the executive to carry out its functions while ensuring that it is accountable for its decisions.

With regard to Part 2, the amendments to the Health Act 1953 are technical. They allow the transfer from the Minister to the executive of functions relating to the nomination of members for interview boards when appointments of clinical staff are being made in hospitals which carry out teaching or clinical medicine, conduct of medical research etc. It will be no longer appropriate for the Minister to be involved in these functions, given the role functions and responsibilities set out for the executive in the Bill.

Section 11 of the Health Act 1970 is being repealed in Schedule 4 on establishment day and any agency established under section 11 will automatically be abolished. BreastCheck is a joint board established under this section of the Health Act. In addition, the board of BreastCheck is comprised of chief executive officers of health boards who will also cease to hold office on establishment day. Therefore, this amendment is allowed to require the continued existence of BreastCheck.

On the advice of the Parliamentary Counsel, Parts 4, 5 and 7 to 26, inclusive, have been included to make technical amendments to change references to health boards to read "Health Service Executive" in the following 22 Acts: the Poisons Act 1961, the Family Law (Maintenance of Spouses and Children) Act 1976, the Misuse of Drugs Act 1977, the Ombudsman Act 1980, the Misuse of Drugs Act 1984, the International Carriage of Perishable Foodstuffs Act 1987, the Housing Act 1988, the Child Abduction and Enforcement of Custody Orders Act 1991, the Family Law Act 1995, the Domestic Violence Act 1996, the Refugee Act 1996, the Housing (Miscellaneous Provisions) Act 1997, the Housing (Traveller Accommodation) Act 1998, the Immigration Act 1999, the National Beef Assurance Scheme Act 2000, the Sex Offenders Act 2001, the Local Government Act 2001, the Public Health (Tobacco) Act 2002, the Ombudsman for Children Act 2002, the Licensing of Indoor Events Act 2003, the Immigration Act 2003 and the Civil Registration Act 2004. These changes are of a technical nature and are being made on the advice of the Parliamentary Counsel to ensure that no legal difficulties will arise with the dissolution of the health boards, area boards and the Eastern Regional Health Authority and the transfer of their functions to the Health Service Executive as a single national legal entity.

I had no idea health boards were involved with the National Beef Assurance Scheme Act.

Vets are responsible to the health boards for the scheme at county level.

One learns something new every day. It is impossible for us to accept all this automatically, although it seems at face value to be perfectly acceptable. I have no problem with the amendment but enter the caveat that I want legal advice on it and, if needs be, will come back to it on Report Stage. I do not envisage this happening but want to put the point on record.

We accept that.

Amendment agreed to.
Schedule 6 deleted.
TITLE.

I move amendment No. 169:

In page 9, line 5, after "ESTABLISH" to insert the following:

"A BODY TO BE KNOWN AS FEIDHMEANNACHT NA SEIRBHÍSE SLÁINTE OR IN THE ENGLISH LANGUAGE AS".

The amendment is in deference to the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, and seeks to insert the Irish language version as well as the English version of the title of the executive

I accept the amendment.

Amendment agreed to.
Title, as amended, agreed to.

It will be necessary to introduce amendments on Report Stage. I have dealt with many of the issues but wish to ensure there is no difficulty. Clarification is required on superannuation, the annual report, the accountability of the executive and issues in regard to complaints, the recruitment of employees and pending legal proceedings. There may be amendments to Schedule 6 in regard to a number of Acts that might require the insertion of the phrase "Health Service Executive" where "health board" was previously referred to.

I thank the Tánaiste for her contribution.

I take this opportunity to thank the members of the committee for their co-operation. We placed an onerous burden on the committee and its staff and I appreciate their efforts and assure the committee we will not make a habit of working in this way. I also thank my own staff, some of whom were up almost all night in recent nights finalising the amendments. I greatly appreciate this because without their guidance and support, it would not have been possible to complete this exercise with such speed. They have a further major exercise to undertake before Report Stage, which I know puts a particular onus on them. It is easy for me to make a commitment but much more difficult for my staff to translate it into "legalese" for Report Stage. Therefore, I acknowledge the significant support of and the burden on my staff at this time. They have worked extraordinarily hard on the Bill for 18 months.

I acknowledge the work done by the staff in the Department, the committee and the Bills Office which had to do much work it should not have been asked to do. I appreciate the Minister's commitment that this will not happen again because it should never happen. It damages the work of preparing legislation that this kind of rush and speed is used to deliver what is a major Bill which deserves scrutiny. Unfortunately, we have not had the time to reflect fully on the Bill or to ensure we do our job correctly.

I agree that a significant amount of work has been done by the staff of the committee and of the Department of Health and Children. I hope the Minister will gives us plenty of notice in regard to the medical practitioners Bill and the health information and quality assurance system that is proposed to be established early next year. These are vital elements of what we have discussed. It is vital we get this right.

I support what Deputy Twomey has said. I too recognise that a significant amount of work has been done at great effort. We should be careful to ensure there is enough time to do everything right. I thank the departmental staff for their hard work.

I thank the Minister for the work she has done. She started off on a good footing in the Department and I am sure she will continue in the same vein.

I thank members, the Minister and her officials, and the committee staff for their co-operation.