I have been advised by the Bills Office that amendments Nos. 2 and 3 of the Health Bill 2006 in the name of Deputy Twomey have been disallowed as they involve a potential charge upon the Revenue. Amendments Nos. 1, 4 and 5 are consequential on amendments Nos. 2 and 3 and have consequently also been disallowed. Amendments Nos. 50 and 51 in the name of Deputy Twomey have also been disallowed as involving a potential charge on the Revenue. Amendments Nos. 48 and 49 are consequential on amendments Nos. 50 and 51 and have consequently also been disallowed.
Health Bill 2006: Committee Stage.
I gave a commitment on the publication of the Bill to introduce provisions relating to whistleblowers and also to deal with some of the secrecy provisions of the Schedule relating to freedom of information. The Ceann Comhairle has ruled that these amendments as outside the scope of the Bill and therefore a motion must be brought before the House to allow them on Report Stage. I therefore propose that before the motion is brought before the House in advance of Report Stage I will circulate the proposed amendments to members of the committee.
This is unfamiliar territory to me. I understood that because the Government would not accept the whistleblowers Bill a section relating to whistleblowers would be included in every appropriate Bill. Is this correct?
That is correct.
What power has the Ceann Comhairle to go against Government policy?
In fairness to the Ceann Comhairle, the Clerk of the Dáil has ruled out the amendments on technical grounds. We have been advised that a motion must be brought before the House.
I have no argument with the Minister. If this is Government policy that determines the form of legislation I do not understand the role of the Clerk of the Dáil.
I presume it relates to the fact that it was not in the Bill as passed on Second Stage.
So the Minister came late to it.
It is procedural policy.
As I understand it the Schedule issues relate to FOI and that is the appropriate legislation. They have advised that we need a motion before the Dáil to bring them into this legislation. I feel, to be fair to Deputies, we should circulate the amendments and we propose to do that later today if it is in order.
When will the motion come before the Dáil?
Between now and Report Stage, perhaps next Tuesday as it must come in advance of Report Stage. We still must frame the motion as we were informed of this matter yesterday evening.
Could I ask, if possible, that we have a short debate on it when it comes in, rather than simply nodding it through.
I have not dealt with something like this before and I have not seen a motion of this kind before. I only became aware of the issue late last night and we still must draft the motion. I think it would be unreasonable not to give the Deputies of the committee a copy of the amendments we propose to make and we will do so later today.
I would also appreciate a debate on the motion, rather than simply nod it through as this is such an unusual situation that it is worthy of a short debate.
Section 1 agreed to.
SECTION 2.
Amendments Nos. 1 to 5, inclusive, are out of order. Amendments Nos. 6 and 7 are related and will be discussed together by agreement.
I was not informed that those amendments are out of order.
There is a letter on the Deputy's desk to that effect.
I received that just now but was not informed beforehand. We are expected to table amendments a week in advance, though there was a time we could do so with notice of only a day or two. If they are to be ruled out of order in this way we need more notice, though I do not blame the clerk.
The clerk informs me this matter has been raised before and efforts are being made to improve the situation.
These amendments have been ruled out of order because they involve a charge on the State but they are fundamental to the way I see patient safety. I made it clear on Second Stage in the Dáil that the way the Health Information and Quality Authority, HIQA, is being set up is wrong for patients. My amendments relate to care for patients in hospitals and not stigmatising mental health patients. Asserting that all patients in the health service will be cared for by HIQA except for mental health patients, who will be hived off to the mental health commission, stigmatises mental health patients. This is a fundamental way of looking at patients in the health service. Regardless of whether my amendments are considered to involve a charge on the State, the Bill reinforces and legislates for the stigmatisation of mental health patients. They should not be ruled out of order because they do not fit with House protocols.
Unfortunately, we have been informed that those amendments have been ruled out of order because they involve a charge on the State.
I object strongly to fundamental issues relating to the health service and the treatment of patients being dealt with in this way.
We will inform the Bills Office of the Deputy's concerns.
Amendments Nos. 1 to 5, inclusive, not moved.
I move amendment No. 6:
In page 8, subsection (1), to delete lines 26 and 27 and substitute the following:
" "disability" means disability as defined in section 2 of the Disability Act 2005 and the term "substantial restriction" in that definition shall be construed as meaning a restriction as described in paragraphs (a) and (b) of section 7(2) of that Act;”.
These are technical drafting amendments to the definition of disability under the Bill and there is no change in substance to the definition of disability as published. Amendments Nos. 6 and 7 reflect the definitions of disability in parts 1 and 2 of the Disability Act and for consistency we believe they should be included in this Bill.
Amendment agreed to.
I move amendment No. 7:
In page 10, lines 4 to 6, to delete subsection (3).
Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 to 6, inclusive, agreed to.
SECTION 7.
I move amendment No. 8:
In page 11, subsection (1), between lines 1 and 2, to insert the following:
"(a) to ensure the highest standards of patient safety,”.
This amendment aims to ensure higher standards of patient safety because patient safety issues are supposed to be the basis of this Bill.
One may think that this amendment relates only to the use of words but it is important. There are many references to standards, protocols and procedures in this legislation and I have expressed my concern in this regard previously. We should separate patient safety issues completely because, as the Minister knows, much of HIQA legislation relates not to setting standards and a social services inspectorate but to evaluating technology and treatments for the future. It is not only looking at information technology. My biggest concern, which I expressed on Second Stage and which I feel is fundamental to this legislation, is that HIQA's priority will be focused on the National Institute for Clinical Excellence.
The National Institute for Clinical Excellence in the UK evaluates treatments based on cost-benefit analysis and it puts accountants rather than patients at the centre of the health service. It withdrew treatment for breast cancer patients at one stage because the cost benefit analysis failed.
One of the concerns we have about the Health Service Executive is that the organisation that should be setting standards in nursing homes is the same organisation that is looking for beds from nursing homes. This is a contradiction because the HSE knows that if it wants proper standards it must pay for them but at the same time it wants the cheapest nursing home beds it can get. This will be a fundamental problem for HIQA because it is responsible for saving the State money and carrying out a cost-benefit analysis on the service the State provides to patients. It may create a conflict if the same organisation has responsibility for setting standards. Such conflicts have already occurred in the Health Service Executive, which will do what its political masters tell it, albeit not directly. The only way to protect patients is to have a patient safety authority focused exclusively on protecting patients. The question of money does not arise.
The HSE has sufficient scope to assume aspects of HIQA's function. It can carry out cost-benefit analyses of whether treatments should be made available. A body is needed to stand up for the patient and I want the legislation to provide for the highest standards of patient safety. This is a flawed Bill but if we must work with it, let us try to protect patient safety.
Patient safety is at the core of the establishment of the Health Information and Quality Authority. The setting of standards and monitoring against these standards is being done to enhance patient safety. We will deal with health technology issues later. If the Deputy allows, I would be happy to put his amendment to the Parliamentary Counsel before Report Stage. The amendment makes a statement and the Deputy makes a valid point.
Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 are related and may be discussed together.
I move amendment No. 9:
In page 11, subsection (1)(a), line 2, after “quality” to insert the following:
"(which shall as far as practicable be common standards of quality for services whether provided by the private sector or the Executive)".
I am curious as to the reason the amendments are considered related, although it is no harm to discuss them together. Two points need to be made. First, with regard to amendment No. 9, it is important to take the patient as the starting point. We all pay lip service to the concept of a patient-centred service. If we are to follow through on the logic of placing the patient at the centre of the service, standards of patient care must be the same irrespective of the type of facility providing the care. This principle should be stated in the Bill. Common standards of quality for services should apply. People have an entitlement to a certain standard of care. These standards should be established by statute and all facilities required to meet them. That is the thinking behind amendment No. 9, which I hope the Minister will accept.
Regarding amendment No. 10, there appears to be a gaping hole in the middle of the legislation as it does not specify that HIQA will have charge of setting standards in all hospitals. In addition to public and private hospitals, we are experiencing growth in for-profit hospitals. I urge the Minister to insert in the Bill a specific statement that standards apply to all types of hospital.
I understand that anyone who wishes to set up a hospital need only secure planning permission and obtain a fire safety certificate. There is a great deal of confusion in the public mind about differing standards. Some people believe private hospitals have better standards than public hospitals, while others believe the reverse is the case.
If the Bill is to achieve the objective laid down for it, we must establish the principle that all health facilities, regardless of whether they are owned by the public or profiteers, are subject to certain requirements set in law in relation to standards. Amendment No. 10 would ensure that hospitals, irrespective of type, would be included in the work of HIQA.
Deputy Twomey referred to patient safety, an issue of concern to all of us. Given that the Bill is supposedly concerned with patient safety, I urge the Minister to accept these two amendments, which clarify in practical terms what the legislation is about.
A number of issues arise. Under section 7, the services for which HIQA will have responsibility include the Health Acts 1947 to 2006. The Mental Health Acts are excluded because mental health is dealt with by a separate commission. This clearly includes hospitals. However, I take the Deputy's point that—
Will the Minister provide a ballpark figure on—
I want to deal with the issue of public and private hospitals. The section covers all services provided by the HSE or procured on its behalf. As Ireland does not have a licensing or accreditation system for private or public health care, the Department is not in a position to extend HIQA's remit beyond the services provided by the HSE or on its behalf. This is the reason the commission on patient safety and quality assurance has been asked to examine the issue of licensing, a highly complex area. In other countries which have introduced licensing systems, it has been shown to be an extraordinarily complex area from a legal perspective. For this reason, a sub-committee of the commission on patient safety and quality assurance has been established specifically to examine licensing, not only of hospitals but health services generally. I am a strong supporter of having a licensing regime.
I agree with Deputy McManus that other than having planning permission, anybody can provide a hospital. Doctors must be registered but that is a separate issue. The position is unsatisfactory from a patient safety and health service perspective. We are not in a position to extend to a system operating on licence until we introduce a licensing and accreditation system. The intention is that HIQA will, in time, develop into such a body. Separate expertise would be required for this purpose because those who inspect hospitals are generally clinicians rather than persons from a social services background. Considerable expertise is required.
As regards the substance of Deputy McManus's remarks, in so far as they relate to the functions of the Bill and the need to specifically mention hospitals, I will speak to the Parliamentary Counsel with a view to perhaps introducing an amendment on Report Stage to make this explicit. As the Deputy pointed out, it is not explicit in the current text.
On the social services side, because we have standards, registration and so forth, the social services inspectorate, which covers the areas of disability, child protection and the elderly, is within the ambit of the legislation and will inspect public and private institutions. However, we are not in a position to extend the remit of the legislation to the private sector until we have a licensing, registration or accreditation system in place.
While I appreciate the Minister has come half way, I do not accept that we cannot do something in law because we do not have a licensing system. If I could use the analogy of the Health and Safety Authority, it may enter accident and emergency departments, building sites and kitchens, move through workplaces and set certain standards. The HSA was established by statute in the same way I would expect HIQA would be able to assess standards in any facility, public or private.
I do not accept the basic premise of the Minister's argument. We do not need to wait for a licensing system to be established before allowing a monitoring body to protect patients. We would wait a long time if that were the case. While I appreciate the Minister must re-examine the issue, I urge her to adopt a different approach and treat HIQA as an external body which, provided the Bill is improved, will have powers to enter public and private hospitals and set the standards for which it has been established. Otherwise, the authority does not have much purpose.
We are not providing for an inspectorate of the acute and palliative care sectors for the very good reason that these areas require a different form of expertise. Health and safety legislation is complex and prescribes what every employer must do in the workplace from the perspective of occupational health safety and so forth. We do not have such a system in place for private hospitals. We do not specify that a private hospital must have A, B, C, D and E in place to qualify. There is no stipulation, for example, that orthopaedic surgery can be done in a particular facility but not heart surgery. That is not the case here as it is in many countries, particular the Scandinavian states and the United States, where different facilities can provide different services because of the standards that apply.
This is why this legislation is necessary. What is HIQA required to inspect? We do not have standards for patient care in hospitals but they will hopefully be established through the commission. Such a system is already in place in respect of the social services inspectorate. We recently published draft standards for both the disability and nursing home sectors, and standards are also in place in the child protection area. In such instances, we know what must be inspected.
That is not the case for the acute sector, however, either in the public or private setting. This is a major lacuna in the legislation. An amount of discussion on this issue took place when the Bill was being drafted. Could this body, in advance of a licensing or accreditation system, have the types of powers that are being suggested? The answer is "No" because it would not be effective. It would be toothless in so far as those powers are concerned.
The Deputy asked me to be more specific in clarifying that certain issues are not excluded because they are not mentioned. They are mentioned by virtue of the services provided for in the Bill. I am willing to discuss with the Parliamentary Counsel how we can accommodate much of what the Deputy has proposed by way of this amendment.
I will withdraw the amendment and reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 10 not moved.
Amendments Nos. 11, 15, 16, 30, 74, 87, 92, 94 and 104 are related and may be discussed together by agreement.
I move amendment No. 11:
In page 11, subsection (1)(b), line 17, before “and” where it firstly occurs, to insert the following:
", except any standards in relation to designated centres, special care units and the performance of the Executive's functions referred to in section 40(a)”.
I assure Deputies that I am also confused on the issue of how amendments are grouped together. These are technical drafting amendments. Amendment No. 11 clarifies that HIQA will not have to monitor compliance with standards and so on by designated centres and other services that are inspected by the chief inspector of social services. Responsibility for monitoring such compliance falls on the chief inspector.
Amendments Nos. 15 and 16 correct printing errors where paragraphs were wrongly numbered. Amendment No. 30 deletes a duplicate reference to the board of HIQA. Amendments Nos. 74 and 87 are drafting corrections to delete the unnecessary inclusion of the word "section" in section 60 and the words "a health or personal social service" in section 71.
Amendment No. 92 corrects a reference to the inspectorate of social services. Amendment No. 94 corrects an omission in section 75. That section prohibits a person from certain conduct in regard to inspections and investigations. For instance, a person cannot obstruct or impede a person carrying out an investigation or inspection. This prohibition now extends to conduct in regard to a person appointed to monitor compliance with standards set by HIQA.
Amendment No. 104 is a drafting amendment to section 98. This section provides for the making of regulations in respect of designated centres. For stylistic drafting purposes, the word "respecting" is amendment to "as respects".
Amendment agreed to.
I move amendment No. 12:
In page 11, subsection (1)(b), line 18, after “accordingly” to insert the following:
"and to report on any failure by the Executive to take appropriate enforcement action in the event of non-compliance".
This section deals with standards of health care and personal and social services but does not provide HIQA with the regulatory teeth required. The amendment seeks to rectify that.
It is my understanding that this amendment proposes that where HIQA finds there is inappropriate action in response to an instance of non-compliance, it must report this to the HSE and the Minister. Provision is already made in this regard in the Bill.
Problems may arise if the HSE does not take any action in such instances.
Does the Deputy suggest this should be made public in some fashion?
It should be recorded.
Section 7(1)(b) sets out that one of the functions of the authority, where there is a breach of standards, is “to monitor compliance with the standards referred to in paragraph (a) and to advise the Minister and the Executive accordingly”.
There is the question of enforcement.
Yes, that includes everything.
My concern is that a breach will be reported but there may be no follow-up.
I will take advice and come back to the Deputy on that. The executive is required under the Bill to have regard to any concerns HIQA may have in regard to the provision of services. If there is some doubt in this regard in the provisions of the Bill, we will review that.
I am satisfied with the Minister's response.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 11, subsection (1), lines 30 to 32, to delete paragraph (g).
This amendment relates to what I said earlier. Paragraph (g) has nothing to do with setting standards. It provides that one of the functions of HIQA is “to evaluate the clinical and cost effectiveness of health technologies including drugs and provide advice arising out of the evaluation to the Minister and the Executive”. This should not be a function of an organisation concerned with patient safety but should instead come under the remit of the IT section or clinical assessment unit within the HSE. This is what the National Institute for Clinical Excellence in the United Kingdom is all about. Assessment of the cost effectiveness of health technologies has nothing to do with patient safety. More than enough quangos have been set up within the HSE to deal specifically with this issue. It is entirely inappropriate to the ethos of protecting patients with which this Bill is concerned.
I do not agree. A body that has as its core concern standards in quality and safety is the most appropriate to take on this function rather than one that is composed of accountants who are concerned only with costs. One of the most positive features of our health care system is that as soon as drugs are authorised, everybody has access to them. This is not the case in other jurisdictions such as the United Kingdom.
That is currently the situation but it might not always be so.
Even in my limited role as Minister for Health and Children, I am constantly approached by people presenting new products and technologies. They all sound impressive and are presented extremely professionally. However, neither I nor anyone working in the formulation of health policy or even the delivery of services is capable of evaluating whether or not such products do as the label says.
It is therefore appropriate, within the resource allocation the Oireachtas can apply to the health service in any one year, that the body which has as its core concern quality, standards and safety should also be charged with examining new technology. Its function will be to see whether such technology lives up to its claims and whether there is a better way of providing quality care for patients. We may be using something that does not offer good value for money when something better is available. That is the purpose of this provision.
As part of the latest agreement with the pharmaceutical sector, we introduced, for the first time in Ireland, the concept of pharmo-economic analysis. A new product may simply do the same as another product that has suddenly gone off brand and become much cheaper. Is it not right that such products should be evaluated to ascertain whether they have benefits for the health care system? I assure the Deputy there is no intent that money should come before patient safety. It is intended that any products that are required or technologies used will be evaluated from a patient perspective. It is not all about pharmaceuticals or medication. Devices, technologies and so on are an increasing feature of the health care system. However, it is about having an independent body — not the service provider — that does not have responsibility for the budget doing an objective analysis of whether that is appropriate. This is the appropriate place.
When this body was suggested in the health reform process one of the strong recommendations was that it should do technology assessment because, as members are aware, nobody does it here. To establish a different body to do it or the provider of the services, such as the Health Services Executive, which is what I believe the Deputy is suggesting, would not be appropriate. It is better that it is done at arm's length from the service provider.
I will press this amendment because the issue is fundamental to this legislation. The Health Information and Quality Authority is set up almost as two organisations. One is a social services inspectorate but HIQA also looks at evaluating treatment. Cost effectiveness is the term being used here. We are talking about the ethos. The Minister said patients are not being denied treatment now but it is possible that they could be denied treatment in the future and it will be HIQA, an organisation associated with patient safety and standards, that will make public announcements to the effect that certain treatment is not cost effective. It fundamentally changes the ethos of a patient safety organisation when people read in the newspapers that it is denying them treatment while the following day the same organisation talks about standards or patient safety issues. The Minister is failing if she considers this as an issue just around patient safety.
One of the proposals in the document published by Fine Gael and Labour about a patient safety authority — something the commission will probably examine but unfortunately this Bill will be enacted by then — is that the Mental Health Commission and the social services inspectorate should be one organisation. We are not talking about setting up new organisations but putting together the most appropriate standard setting and patient safety issues. HIQA could continue the other functions such as evaluating standards of IT in the system and if it must do cost effectiveness evaluations on treatment, so be it. It could even do the pharmaco-economic assessments of new treatments but a patient safety type organisation, which is what the Minister is calling HIQA, should not have a role in terms of using words like "cost effectiveness of treatment". It will create confusion in years to come and patients will not view HIQA as protecting them. That could also have an impact on the way people regard the social services inspectorate because the social services inspectorate will be part of HIQA. The Minister is making a mistake in regard to what should be the future of protecting patients in the health care system. The social services inspectorate should be separate from HIQA and be part of the Mental Health Commission.
If the Minister took the approach suggested by Fine Gael and the Labour Party, in one swoop she would get rid of the stigmatisation of mental health patients, bring together patient safety issues and have HIQA carrying out a function that is not about patients but the way the health service is operated. It is about procedures and processes, not patient safety. This measure will come back to haunt future Ministers for health because there is no organisation protecting patients in the acute hospital services or in primary care.
The Minister should be aware of the way the Mental Health Commission is currently working. It is working quite well. For instance, no doctor likes to sign the pink forms for the involuntary admission of a psychiatric patient to a mental institution yet when those people go before the Mental Health Commission—
I want to get advice on what the Deputy is saying.
I will let the Minister take the advice first if she would prefer.
No. The Deputy can continue.
When those patients go before the Mental Health Commission, one in ten of those involuntary admissions is deemed inappropriate. Concerns have been raised in that regard. That is why a patient safety authority that is focused on protecting patients is vital.
One of the concerns is that the legal profession is regarding the role of the Mental Health Commission in an adversariel way and not in a patient protection way. The legal profession's view is that if someone's involuntary admission is rejected by the Mental Health Commission, that is a means to sue the doctor who signed that involuntary admission. That was never meant to be the role of the Mental Health Commission. Its role was as a patient protection mechanism. It was a way of getting a second opinion on whether the involuntary admission was proper, and it had a protective role. It has metamorphosised in such a way that the legal profession is regarding those one in ten cases as juicy pickings to sue doctors.
We must focus on patient safety and develop a patient safety ethos. We must protect patients in a way that is not adversarial and that is genuinely focused on the patient. HIQA does not do that. There is no sense that HIQA protects the patient in the way that a patient safety authority should. We should bring together the social services inspectorate and the Mental Health Commission under a patient safety authority, focus on protecting patients and push the legal profession out of this area. That whole area should be removed from this legislation.
On a point of information, surely the Irish Medicines Board has that role.
No. Its role is to approve particular medicines for authorisation in the Irish market.
Is that not the body that would deal with this area?
No.
It could deal with it.
It is not required to do any assessment.
It could be given that role.
Deputy Twomey is suggesting the amalgamation of the Mental Health Commission with the social services inspectorate.
Not amalgamate it.
Or set up a body that would do both.
Set up a body that would oversee both. Rather than have HIQA and the social services inspectorate—
Set up another body?
No. The two organisations are already set up but we could have HIQA and the social services inspectorate as two parts of the one organisation. What would be wrong with having the Mental Health Commission and the social services inspectorate as two parts of a patient safety authority and allow HIQA do its other function?
On the patient safety authority, I wish it were as simple as setting up an authority that is responsible for patients.
We know that is not the case.
The Deputy is portraying it as if—
I am not portraying it any way. If the Minister read our policy she would know that is not the case.
—we just have to set up an organisation, call it a patient safety authority and suddenly the world will change. I wish it were as simple as that.
Please allow the Minister to speak.
It has taken a considerable length of time to establish the Mental Health Commission. Many years after the legislation was passed in this House, with the support of all sides, it took a considerable effort to implement it, as we are all aware. It only happened last November and to the best of my knowledge it is working well. Unfortunately, when people are detained against their will it is sometimes necessary to have an adversariel approach. I wish it could be done without the adversarial approach but much of what is involved—
No.
Let the Minister finish.
—is challenging decisions on behalf of patients.
Let the Minister finish. The Deputy can come back in then.
The Minister is misinterpreting—
If I am doing that, I am sorry. I am just trying to explain.
The Minister was not listening to me.
I was listening. The Deputy spoke about the adversarial approach. Unfortunately, when decisions made by people are being challenged and people believe their clinical expertise is being questioned, an adversarial approach is often required. That is regrettable but I do not see an alternative. I do not want to disturb the Mental Health Commission, so to speak. It took it a long time to establish it; it has a clear focus and it is doing a good job. It is in its early days and to start meddling around with it and linking it with some other group would not be appropriate.
There would be no change to the Mental Health Commission.
When it was agreed to have an independent inspectorate, separate from the HSE, for social services, residential care for people with disabilities, child protection and older people, having a separate organisation was initially considered. I took the view, and the Government supported this view, that we had to stop creating a plethora of different organisations and consider bringing some bodies together. The social services inspectorate is about inspecting against standards to ensure quality care in the public and private system. We need to ramp up the number of inspectors and get dedicated teams, etc. The function rests with the HSE until this body is established. On a matter we will debate on a later amendment, it will take time to transfer responsibility in its entirety to HIQA, which needs to be done as quickly as possible. When the health reform agenda was being advanced, Prospectus advised that we needed a health technology assessment process, which we do not have here. Such a process exists in Canada and most European countries. The European Commission has supported countries in introducing technology assessment and having greater standardisation and collaboration between different member states in this area.
The question is where it should sit. I genuinely believe this is the place for it. We are establishing a new body with a greenfield site doing something we have never done before. I do not believe it is a role for those who authorise the products. There is a difference between the authorisation of a product to verify that it is legal, competent etc. and the decision to acquire the technology in a particular setting. It is important that the HSE has at its disposal, spending money on behalf of taxpayers, a body that is independent of it to give it advice on the assessment based on its expertise. That assessment is supposed to be an evidence-based assessment and advice is given accordingly, which is a good thing. I do not believe it is contrary to quality standards and patient care.
My suggestion for the social services inspectorate and Mental Health Commission is to put them together under the auspices of a patient safety authority. I do not propose changing the Mental Health Commission, which is doing a good job. The commission has found that approximately one in 20 involuntary admissions is being struck down. It provides an excellent second opinion from the patient's point of view, which is why it is so important that it be seen as an issue of protecting the patient. My concern is that unfortunately some members of the legal profession see this as another gravy train to allow them to start to make extra money for people, which is not its purpose. I am not talking about changing the Mental Health Commission. I am proposing putting the Mental Health Commission and the social services inspectorate under the auspices of an overall body to be called the patient safety authority so that patients could see it as purely their patient safety authority and that HIQA would be a separate organisation.
The Minister spoke about evidence-based evaluation of drug treatments. This matter will be considerably more complex as it will review not just medication. If a new stent treatment to deal with blocked arteries in the heart were invented that is four times as expensive as the present stenting operations we carry out now, it would be HIQA's role to evaluate that. It would need to establish whether heart patients would get that stent on the basis of what the Minister calls evidence-based cost effectiveness. That is how it works.
A body under the auspices of the Minister for Health and Children, the national immunisation steering committee, does not meet very frequently. We have been waiting for years for a decision on adding the pneumococcal vaccine into the usual childhood immunisations. The decision has been delayed for some years. It is estimated that up to 130 lives per year could be saved. Research has shown that vaccinating children for pneumococcus not only saves lives by preventing meningitis, but also reduces the number of ear, nose and throat infections, and pneumonias that children get, thus reducing their hospitalisation. Having herd immunity for pneumococcus reduces the number of elderly people who get pneumococcal infections, thus reducing the time they spend in hospital. It has considerable knock-on effects.
I ask the Deputy to confine his contribution to the amendment.
This is confined to the amendment. My point is that it is not as simple as evaluating a few tablets. It goes across the health service, including the evaluation of immunisation, drug treatments, stenting that might be use in heart operations and possibly even MRI and CT scanners. Those complex responsibilities should lie with HIQA and patient safety should be the responsibility of another organisation, which is already established.
This body will carry out assessments of products and technologies. It will not decide whether the HSE should procure, which will be a matter for the HSE. However, at least it will have an assessment. The Wyeth product the Deputy mentioned has been before the committee since 2001. In the early years it decided it was not a priority. I understand its next meeting will take place on 21 March and I understand it will be approved. I am conscious that there are two doctors here. In the rest of Europe that vaccine costs approximately €8 per shot and in Ireland it costs €35 per shot because of how we provide these vaccines. We would have the same issue with the cervical cancer vaccine. In many other countries it is administered by nurses. The greatest expense can often be the fee paid to the doctor as it is in this case. We have a real issue in this regard.
We need to talk to doctors' representative bodies on the roll-out of more vaccines. I understand it will be approved on 21 March. There is a six-month lead time to acquire the vaccine even though it is manufactured in Ireland. It is manufactured in my constituency, which is why I am so well informed about it. The company has been informing me about the vaccine and I have been inquiring about it. I understand the expert group is to consider it. Given that it has been introduced in other European countries, the consideration is favourable. The issue then will be to provide it in a cost effective way. Of course the fee paid for a vaccine is not part of health technology. It simply assesses the technology. It will be a matter for the HSE having reviewed the assessment to decide whether to procure the product.
I seek clarification on something the Minister said. Will she be permitted to talk to the doctors' representatives? The Competition Authority has made specific requirements.
It is not the Competition Authority. In the negotiations with the three wholesale companies representing the wholesalers in the pharmaceutical sector, legal advice was provided that suggested it would be price fixing to negotiate prices. This advice was procured on behalf of a retail pharmacist. The HSE subsequently checked that advice with its legal team and with the Attorney General, who confirmed that it is illegal for the State to set prices with any organisation other than its own employees. For example consultants are the State's employees. The issue that arose with the pharmacists will arise with the doctors. It has been agreed with the pharmacists to establish an independent mediation process to be chaired, I understand, by a senior counsel. The idea would be to negotiate what the contract should include and there would be a separate process to decide how to price it. I believe that is how it will be dealt with. A similar issue will arise with any other group of people who are not our employees. GPs are not our employees, they are self-employed people.
I intend to resubmit the amendment on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 11, subsection (1)(h), line 34, after “population” to insert the following:
"in terms of the provision and delivery of services and the regulation of—
(i) the demand for,
(ii) supply of, and
(iii) number of,
residential places throughout the State".
HIQA should be involved in regulating services. One of the problems with nursing homes is their location. Certain areas of the country have very few nursing homes. I propose that one of HIQA's functions would be to consider the geographical spread and availability of nursing homes. The HSE in procuring private nursing home beds for patients in the Dublin hospitals is now sending patients as far away as Westmeath because there are no private nursing home beds in the greater Dublin area. If HIQA has a role in standards, it should also consider areas with deficits in the delivery of services. In the past decade the private sector has assumed a major role in the care of the elderly. The ratio of private to public beds is now approximately 70:30. The problem is that there is a considerable deficit in the greater Dublin area. Some of this should have been corrected by Government policies. Fine Gael and the Labour Party feel very strongly about the developed acute care units where there would be a better mix between the public and private sectors. Patients are being sent to Kildare and Westmeath and at the rate things are going, they will practically be going to Galway. When patients are moved out of Dublin hospitals, there should be a role for HIQA to ensure that the proper spread and development of nursing homes is under its remit.
When the Taoiseach opened Leas Cross in April 1998, he spoke about its fabulous services and the fact that it contained only 40 beds. By the time Leas Cross closed, it had well in excess of 140 beds, which might have contributed to falling standards in the home. HIQA has a role in looking at where the beds are, where they will be in the future, how nursing homes expand and whether standards are maintained when nursing homes rapidly expand, as happened at Leas Cross. There should be a greater role for HIQA within the legislation in looking at these aspects, especially since the Minister is allowing this development to mushroom, with little or no adherence to standards, which are not taken as seriously as they should be.
I certainly agree with and support the idea that this task needs to be carried out. There is a mismatch in parts of the country. In north Dublin, people are inappropriately occupying beds. More than 100 people are inappropriately occupying beds in Beaumont Hospital because nursing home beds are unavailable in the community. In other parts of the country, one finds nursing homes where beds are empty.
When there is such a reliance on the private sector, it is very difficult to plan. Public lands being earmarked by the Minister for profit-making hospitals would be much better earmarked for community nursing beds. Be that as it may, this is an important task regardless of whether it is done by HIQA or the Department, and I would be interested in hearing the Minister's view on the matter. It is certainly clear that it is not being done at the moment when it needs to be done by somebody. It seems to be a question of wherever the beds are, the patients must follow, which is not always in his or her best interests.
Deciding about deficiencies in services is a function for the management of the HSE in the first instance. There is no doubt that there are real issues in the centre of Dublin in respect of nursing home beds because of property values. I am informed that even some of the private nursing homes find it very hard to compete when residential development is offered because of how lucrative it can be in the current market.
Last week, I held a discussion on this matter with the deputy manager of South Dublin County Council to see if there is a way of designating land specifically for community nursing home facilities. Deputy Twomey is correct in that we have a situation where people from Dublin city are being moved to Leixlip in Kildare and further afield. A number of issues arise from that. Moving older people away from their community is not a good idea and makes it very difficult for family members to visit them, particularly in the case of an elderly spouse. Although these distances may not be far to those of us who have cars, it can be really challenging for older people. There are real issues there.
We are bringing some more community nursing home facilities on stream this year, both at St. Mary's and Cherry Orchard. I believe that 50 beds will be provided in each case. We have several other facilities, including Brú Chaoimhín, St. James's and Clonskeagh Hospital, a facility in Dalkey and several others around the city, including St. Brigid's Home in Crooksling. There are an additional 50 beds at Peamount Hospital, 25 of which are rehabilitation beds for older people recovering from stroke. There is a real challenge there. A number of beds are being provided in the community setting in the public sector. The majority of beds being procured this year will be in the public sector in the Cork area. We have approximately 27,000 older people in residential care, of which 12,000 are in the public sector. If my memory serves me right, 15,000 older people are in the private sector. There are certainly challenges.
From next year, the National Treatment Purchase Fund will procure the beds on behalf of the HSE because those who require them should not be in the procurement business. Given that we will have the same system of support around the country, regardless of whether one is in the public or private system, in order to ensure this is not exploited unfairly, we need a national organisation that is separate from the HSE that would procure beds. If the price is not appropriate, the beds will not be procured. If some private operator seeks to exploit the fact that we will pay 80% of the cost and raises its prices unduly, it will not be included in the scheme. This is why we are giving this task to the National Treatment Purchase Fund, which has a good track record in respect of the procurement of services.
In respect of the amendment, it is unnecessary to include in legislation matters by way of legal requirements of statutory imperatives, namely, procuring or ensuring we procure appropriate services where they are needed, which is a management function for the HSE. I add the proviso that it is difficult for people in the private nursing home sector to compete with either commercial or residential development in the property market at the moment. It is hard to procure land, build a nursing home and make it pay when the alternatives are so attractive. I would like local authorities to look at zoning issues to make that attractive. I intend to raise this issue with my colleague, the Minister for the Environment, Heritage and Local Government.
The Minister's comments are interesting because she acknowledges there is a problem. In recent years, we have seen the construction of the private Hermitage and Beacon consultants' clinics. A private hospital which is mainly for outpatients is being constructed in Sandyford. Beacon Consultants Clinic has plans to expand its operations. However, the Minister intends using public land to build more private hospitals in Dublin. Would she not be better off following our line of thinking that land in the grounds of public hospitals would be better suited to community care units with proper step down facilities and proper rehabilitation and long-term high dependency care? There is obviously a market for private hospitals because these hospitals are being built and people are quite willing to build them. There does not seem to be a market for building high-dependency community care units for the elderly or even people under 65 who have suffered strokes. Would it not be better for the Minister to change policy, opt for something along the lines of what we have suggested, focus on community care units and let the private sector do what it is obviously doing quite well, namely, build private hospitals on greenfield sites and not have the connection with the public health system put forward by the Minister?
I do not wish to revisit the issue of co-location, with which the Deputy has an issue. He knows that 20% of beds in our public hospitals are private beds. There are 2,500 such beds in the country which offer preferential treatment to privately insured patients even though everybody has universal coverage.
We want to convert 1,000 of these beds to public use. We know that our hospital system needs more isolation rooms and single rooms. Many of these private rooms are single rooms and I hope they will be suitable for infection control. We must ensure that doctors are on site and the new private facility compliments the public system rather than competes with it somewhere down the road. We have 500 category 2 doctors. We can keep doctors on site and provide services in this privately funded facility. The land will be leased so there is no question of giving it away. In respect of the facility that will be approved, I understand a meeting will take place on Friday, after which tenders will be invited because they have gone through the new process. What will be sought by way of tender will be what suits and complements the public hospital system. Under such an arrangement, they will share facilities, use each other's diagnostics and pay for them in the case of the private sector using the public sector or vice versa. This approach makes eminent sense and it costs less than half that of providing beds in the traditional way. It will deliver up to 1,000 more public beds in key hospitals like Beaumont, Tallaght, St. James’s, Blanchardstown, Waterford and Sligo. Eight hospitals are involved at this stage and it will be agreed to proceed to tender on Friday.
Two issues arise in terms of nursing homes. In city areas where land is extremely valuable and very scarce, it is very difficult for the private sector to acquire land and build nursing homes and make that pay by getting a return on the investment. I would like to see local authorities in urban areas, not just in Dublin or Cork but in other cities like Galway, Waterford and perhaps Wexford, designating land for community nursing home purposes. Given that we have an ageing population, that would be a very good approach.
There is still a lot of land available. There is much land in public ownership in this city — obviously it is not all in the ownership of the Department of Health and Children as other bodies have land banks. We have not arrived at the situation where there is no land available in Dublin for public nursing homes. That is not the situation. If it were, I would perhaps take a different view, nor are we taking every last piece of land available at these hospitals, some of which have considerable amounts of land surrounding them. It is not about taking the last piece of land for these purposes, it is only being done if it makes sense.
We estimate that approximately one third of people currently in nursing homes would not be there if home supports had been available prior to them entering the nursing home. Clearly, when somebody goes into a nursing home setting it becomes extremely difficult to adjust to a home environment again if he or she is there for any reasonable period. It is estimated that up to 6,000 or 7,000 people currently in nursing homes could have been at home because they have low to medium levels of dependency with the aid of the kind of home care packages we have today. That has to be the priority in the future.
In the future we are going to support high dependency nursing home care in the public and private system and seek to keep those with low levels of dependency at home if possible. Obviously there will be exceptions where that will not be possible but in the main that is the policy agenda we are seeking to pursue.
I am not getting into a debate on co-location with the Minister. There are still many people offering to build private hospitals. The Minister will be aware of this phenomenon around the Mater Hospital. The commercial value of property increases dramatically when people learn a new hospital is being built because it brings new people to work in the area, many of whom are highly paid, in addition to visitors, which attracts business. That is why people are prepared to build new hospitals.
The same commercial value does not apply to community care units which look after elderly people because they do not involve the same number of staff, visitors or turnover. From the point of view of the Minister's policy on co-location, would we not be better off using public land because, as the Minister clearly stated, there is no great demand for building community care units in the greater Dublin area while there is a demand to build hospitals?
Would we not be better off using public land to build community care units ourselves and leave the co-location and private hospitals to developers because there is clearly a huge commercial value in this and they will develop them in their own time? From the point of view of what the Minister indicated in terms of the 20% of beds in private hospitals, I hope she will not sign the tendering documents before the new contract has been negotiated with consultants. Category 2 consultants, who are leaving public hospitals and driving to the private hospitals to which the Minister referred, can continue to do that after the private hospitals are built in the grounds of public hospitals unless the Minister has an agreement from all the consultants in a particular hospital to give up their rights to those private beds within public hospitals. I asked the Minister about this previously but I never got a clear answer.
To the best of my knowledge, the only hospital which has agreed to that so far has been Waterford Regional Hospital. All the consultants there have signed a letter stating they will give up their rights to private practice in the public hospital. I do not believe the Minister has received that letter from the consultants in any of the other hospitals where she is planning on siting co-located hospitals. If the Minister signs the tendering documents, in effect she will give additional private capacity to consultants and give nothing to the public system if the consultants do not give up right to private practice in a public hospital.
What the Minister said about single rooms is interesting. The last modern hospital I visited was one in Paris where every patient was treated in a single room. I do not think it should be new private hospitals alone that have private rooms; that should be the plan for the development of all new hospitals, public and private. We should try to treat as many patients as possible in single rooms.
I agree with what the Deputy says about single rooms. We hope the new children's hospital will be such a model that it will meet all the anti-infection requirements, etc. That is the intention. The famous phase 2B of Mullingar General Hospital is now compatible with infection control. From here on in, that will be the approach pursued.
We could discuss many other issues but we have to come back to what is on the agenda.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 11, subsection (1)(i), lines 37 and 38, to delete "referred to in paragraph (j)” and substitute “referred to in paragraph (h)”.
Amendment agreed to.
I move amendment No. 16:
In page 11, subsection (1) (k), line 45, to delete “referred to in paragraph (l)” and substitute “referred to in paragraph (j)”.
Amendment agreed to.
Amendments Nos. 17 and 112 are related and will be discussed together by agreement.
I move amendment No. 17:
In page 12, subsection (1), lines 1 to 4, to delete paragraph (l) and substitute the following:
"(l) to act as a body standing prescribed by regulations made by the Minister for Health and Children—
(i) as set out in section 5(5) of the Education for Persons with Special Needs Act 2004, and
(ii) as set out in section 10 of the Disability Act 2005.".
In line with the provisions of the Education for Persons with Special Educational Needs Act 2004 and the Disability Act 2005, it is intended that HIQA will set standards in regard to the carrying out of assessments under these Acts. Amendments Nos. 17 and 112 are technical drafting amendments to the provisions in the published Health Bill in this regard. The purpose of the amendments is to allow the Minister, under the Education for Persons with Special Educational Needs Act and the Disability Act to designate the authority for the purpose of drawing up standards for the carrying out of assessments under these Acts.
Amendment agreed to.
Section 7, as amended, agreed to.
NEW SECTION.
Amendment No. 18 is in the name of the Minister. Acceptance of this amendment involves the deletion of section 8 of the Bill. Amendments Nos 18 to 25, inclusive, are related and will be discussed together by agreement.
I move amendment No. 18:
In page 12, before section 8, to insert the following new section:
8.—(1) The Authority may undertake an investigation as to the safety, quality and standards of the services described in section 7(1)(a) if the Authority believes on reasonable grounds that—
(a) there is a serious risk to the health or welfare of a person receiving those services, and
(b) the risk may be the result of any act, failure to act or negligence on the part of—
(i) the Executive,
(ii) a service provider,
(iii) the registered provider of a designated centre, or
(iv) the person in charge of a designated centre if other than its registered provider.
(2) The Minister may, if he or she believes on reasonable grounds that—
(a) there is a serious risk of the kind mentioned in paragraph (a) of subsection (1), and
(b) the risk may be the result of any act, failure or negligence of the kind mentioned in paragraph (b) of that subsection, require the Authority to undertake an investigation in accordance with this section.
(3) The Authority must ensure that an investigation under this section does not interfere, or conflict, with the functions of other statutory bodies.".
I am introducing this amendment to allow HIQA to undertake investigations under section 8 on its own initiative. This amendment obviously therefore meets the terms of amendments Nos. 19 to 24 in the names of Deputies Twomey and McManus. Investigations will be undertaken by HIQA on serious issues where there is a risk to the life or welfare of a person receiving health services. The risk may be the result of any act, failure to act or negligence on the part of the body providing the service.
Section 8 is intended as a mechanism for an independent investigation of serious events. All adverse incidents are significant when negligence results in a risk to patients. I would expect thorough investigations of such incidents by service providers themselves. Section 8 is intended as a means whereby an independent investigation can be initiated either by the Minister or by HIQA. For this reason I do not intend to accept amendment No. 21.
I appreciate the thinking behind amendment No. 22. However, I am concerned that by providing for investigations into past events it might result in HIQA being forced to deal with historical issues rather than concentrating on current issues. I will, however, further consider this issue in consultation with the Chief Parliamentary Counsel and other advisers.
Amendment No. 25 proposes that investigations would be private. The legal advice available to me is that this would be an unclear provision and as such it may fall to the courts to decide what is meant by "private". For example, it could be interpreted as meaning that investigations would be kept secret which would not of course be administrative fair play. I should mention it is not envisaged that investigations would have public hearings. As provided for in the Bill, investigations may involve an examination of records, the seeking of information and private interviews with staff. Given the legal advice available, I am not in a position to accept this amendment.
I take it that to some degree amendments Nos. 19 and 20 have been incorporated into the Minister's amendment. Amendment No. 21, in the name of Deputy McManus, refers to past events. Will there be no scope for the authority to examine past events?
This refers to the body carrying out investigations into matters that occurred before it was established. I am setting up a process to examine Leas Cross and the death of Mr. Pat Joe Walsh. It is not a good idea for HIQA to revisit past events. We must use existing mechanisms, such as the legislation introduced by the Minister for Justice, Equality and Law Reform and used in the inquiry by Mr. George Bermingham into the Dean Lyons case. Such special investigations legislation allows investigations in the area of health but for a body such as HIQA to begin with historical investigations would not be a good start.
What body is examining past incidents in the health service?
I indicated that the Tánaiste and Minister for Justice, Equality and Law Reform passed legislation, the Commissions of Investigation Act, allowing investigation of any public event. I gave a commitment to the families of those at Leas Cross to establish a preliminary inquiry into events that occurred there. I met legal representatives yesterday to discuss it. The service provider under the Health Act 2004 is required to have a complaints procedure and have them investigated appropriately. These regulations came into effect at the start of the year.
Could a commission of inquiry investigate Leas Cross?
The commission could look into anything. It is open to us to use the commission of inquiry to examine events in health or other areas. There may be events from the past that HIQA should investigate but I have not given it the remit to search for historical events and establish what happened.
That is provided for already. Amendment No. 25 sought to establish an independent inquiry rather than a private one. My amendment may be misinterpreted. The other amendments proposed have been covered by the Minister's amendment. Regarding Deputy McManus's amendment, could a commission of inquiry investigate MRSA?
One could establish an inquiry under the Act.
Amendment agreed to.
Amendments Nos. 19 to 25, inclusive, not moved.
Section 8 deleted.
NEW SECTION.
I move amendment No. 26:
In page 12, before section 9, to insert the following new section:
9.—In any investigation under section 8—
(a) the report of the investigation shall be absolutely privileged,
(b) due process and fair procedures shall be observed,
(c) any person called to give evidence, shall be allowed legal representation if he or she so requests, and there shall be a duty on any person conducting an investigation to inform such a person of his or her right in that respect, and
(d) there shall be a duty of cooperation on any member of staff of the service provider save where such a person receives legal advice to the contrary.”.
We must state that Leas Cross and a small number of nursing homes caused all the problems for elderly patients but there was concern that nursing homes were not investigated. Now, there is concern that we are letting the pendulum swing too far in the other direction. Standards were published by a Government body charged with setting standards before Christmas.
The Irish National Accreditation Board.
The Irish National Accreditation Board published draft nursing home standards.
A number of people were involved. The Irish National Accreditation Board was a key player and these are draft standards. I intend to hold a consultation day with operators because this is good practice to do so in such areas.
Both sides are entitled to have their say. The Irish Nursing Homes Organisation published standards in July because it was unhappy with the standards of the HSE. Nothing was happening with regard to Leas Cross and the organisation was concerned it was being tainted with the same brush. It published standards that were stricter than the HSE standards. There is a consultative process for the standards published in December. Some of the inspection teams in the HSE are using those standards, which would be funny if it was not so serious. After years of passing inspection reports on places like Leas Cross, the HSE has gone into overkill using the new regulations. A number of operators will be put out of business because common sense is not prevailing. We should be protecting elderly people.
The Minister must decide the standards from which the HSE should work. The Irish Nursing Homes Organisation suggested suspending inspections until we have agreed on standards but that is not acceptable. That statement came from frustration rather than as a request that new standards be published. There is a sense that we are not sure what standards we should use. If the HSE is using the standards published before Christmas but the Minister intends further consultation on them, she should request the HSE to use the Irish Nursing Homes Organisation standards published last July. People are quite clear about those standards. We do not want good nursing homes closing their doors to elderly patients. The most committed and conscientious people take such standards to heart and they will leave the market. We will be left with the people who cause most problems, those who are motivated by reasons other than care of the elderly.
There is a serious need for the Minister to take control as we enter election mode. We are not giving these issues priority and must await the formation of a new Government in the summer. We need to stabilise this issue and need someone to issue clear guidelines on the standards the HSE should use. Good operators should not have to leave the system. We should get rid of those doing a bad job. The last thing we need is inspection teams going into nursing homes not so much to assess if elderly people are being protected but to ensure that nobody is writing bad reports about them.
The Minister mentioned Leas Cross and a commission of inquiry. There is great concern about how the situation in Leas Cross went on for so long. What was happening with the inspections teams and who was responsible for the inspection regime in north County Dublin? North County Dublin appears to be littered with nursing homes that were inappropriate for the care of elderly people.
The Deputy should confine his comments to the Bill.
We are discussing standards. Somebody was supposed to be implementing standards but there seems to have been a concentration of this problem in north County Dublin. I have asked the Minister previously if she ever made inquiries as to what happened in that health board area. What was wrong with the inspection regime in that area that gave rise to these problems?
It is fine to discuss Leas Cross. There are all sorts of opt-out clauses in the appendices of Professor O'Neill's report. However, I have heard or seen nothing else since. There is little point in introducing these standards if they will drive good operators out of the market and the bad operators continue in business, disregarding the standards purely on the basis of the people who are supposed to be enforcing the standards. That is what happened at Leas Cross. The people who were supposed to enforce the standards and protect elderly people seem to have fallen down unbelievably on the job.
We have never been given a clear indication of what happened there apart from the fact that the Leas Cross report was referred to the Garda Commissioner. What has the HSE or the Minister done to find out what happened in north County Dublin? It is not good enough to talk about systems failures. The generic excuse of systems failure would not apply to doctors under the Medical Practitioners Act. People get struck off, or should get struck off, for that type of occurrence. Why has the Minister not fulfilled her responsibilities by clearly stating to the committee what happened with Leas Cross and what is the definition of a systems failure?
We wish to take advice on part of amendment No. 26 in advance of Report Stage with regard to the issue of privilege. With regard to Leas Cross, we are damned if we do something and damned if we do not. Many Members of the House were screaming at us about standards after Leas Cross. There were no care standards in Ireland. The draft standards published at the end of last year are just a draft. We cannot compromise on patient safety but, equally, we must be sensible in the way we proceed.
I share the Deputy's view that we do not want good operators leaving the market because, in certain respects, impossible tasks are demanded of them. The problem with Leas Cross was that people had pressure sores and were left in bed for hours or days, incontinent patients were not appropriately dealt with and so forth. These are the care issues that horrified people. There was not a great deal wrong with the facility, to the best of my knowledge. I have never been there although I have visited very good nursing homes in north Dublin.
I have agreed to ask a senior counsel, although not under the commission of investigations, to examine all the issues that have arisen, including the response of the HSE, why patients were transferred from St. Ita's and so forth. Clearly, I had to wait until Professor O'Neill completed his report before acting in this area. There is nothing more confusing than a number of bodies examining the same issue at the same time. There are issues that must be examined, in the first instance to answer the concerns and anxieties of the families and, in the second instance, to learn from them and ensure this cannot happen again.
Sometimes, and I am not specifically referring to this issue, we can go from a certain set of circumstances into overkill or overdrive. Nobody wants that either. Everybody wants high standards of care, appropriate facilities and the law enforced and monitored. A number of nursing home owners, and I am familiar with their nursing homes, have met me and told me that these are demanding standards and that their nursing homes cannot survive with such requirements.
I am not competent to say whether our standards are too tough. However, since meeting with nursing home representatives and following discussions with my officials, I am considering the need to have a one day seminar or forum where those who are responsible for drafting the standards would engage with those who must operate them. Much good work could come from that process. People are entitled to that consultation and dialogue, and I would certainly learn from it. It is my intention to attend that event and I hope to organise it over the Easter break. People can have discussions from both the operational perspective and the standard setting perspective to ensure we are getting this right. Although the setting of standards is an issue for HIQA, the Minister must have a role from the policy perspective in these matters. We cannot set impossible standards.
The HSE has agreed, at my request, to put the inspection reports on the Internet so they are publicly available. This was sought by a number of families. However, some nursing home operators have said that if there is something small in the report they should be given a chance to change it rather than suddenly have the report on the Internet with a black mark. This is mainly because of the way the minor matter is often interpreted in the local media or elsewhere. That black mark could suddenly destroy their business and worry the families and residents. We need to be careful with this issue. Everybody wants high standards and wants them enforced and monitored. Equally, however, we do not wish to put good operators out of business, and there is no question of that in the private or public sector. The public sector will be inspected against the same standards for the first time, which is a good development.
With regard to the first part of the amendment, we will seek legal advice on the privilege issue before Report Stage. The legal advice available to me on due process and fair procedures is that these are implicit under common law and that specific inclusion of this provision would be redundant and perhaps even result in an unintentional effect on common law. Any person connected with an investigation can have access to legal representation if he or she wishes. If the Bill is silent on this matter the right to legal representation is part of due process and common law.
As regards the duty to co-operate save where the staff member receives legal advice to the contrary, the legal advice is that this would weaken the Bill. It would be odd if the legal advice was that someone should not co-operate given the obligations under the Bill for co-operation. In this regard, a person in charge of a premises or service or who possesses or is in charge of relevant records is required to furnish any information required by an authorised officer appointed by HIQA to carry out an investigation. There is also a requirement under the Bill to provide an explanation of any record or other information on other matters which are the subject of the functions being exercised by the authorised person. Moreover, section 75 provides that authorised persons cannot be obstructed or impeded when conducting an investigation and that false or misleading information must not be given to an authorised person. Contraventions of these provisions are offences under the Bill.
The Minister's suggestion of holding a conference over the Easter on standards is incredibly important. Many people do not realise how necessary such a conference is. Nobody is quite sure what standards are operated, and I am sure the Minister has received the same representations I have received. Some HSE officials are using old standards that date back to the health boards era, some are using the standards published by the private nursing homes and some are using the standards published before Christmas. The Minister is saying they were draft standards and should not be used. It has created much confusion and the Minister needs to clarify that she intends having this conference. It is a patient protection issue.
When watching the news on the scandal of infected blood products, I was struck that it was an employee of the Irish Blood Transfusion Board who was dragged through the courts and threatened with jail. This did not happen to any senior official involved in the case. There was a similar scandal in France and senior officials, right up to Ministers, were dragged through the courts, not some individual from the body responsible. It is important the right people are held responsible for bad decision making.
I insist the Minister has a clear report of inquiry into what happened at Leas Cross. There was something rotten there and matters were allowed to happen for some time. I do not want to make accusations against people on anecdotal evidence. A full inquiry needs to be made as to what and why matters went wrong in Leas Cross. It should not be about finding some nondescript public servant who cannot defend him or herself to the same degree as stronger interests. The definition of systems failure is too generic.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.
Amendments Nos. 27, 42, 43, 54, 83 and 91 are related and will be discussed together.
I move amendment No. 27:
In page 13, subsection (4), line 20, to delete "section 7(1)” and substitute “section 7(1)(a)”.
These are a series of drafting amendments related to standards set by the HIQA. Amendment No. 27 relates to section 10(4) which deals with admissibility of standards in court proceedings and clarifies that it is standards specifically under section 7(1)(a).
Amendments No. 42 and 43 relate to section 40 and clarify that it is standards specifically under section 7(1)(a) that will be relevant to inspections by the chief inspector in terms of compliance when registering and inspecting designated centres or inspecting special care units as appropriate.
Amendment No. 54 relates to section 49 dealing with the granting or refusal of registration and makes it clear that it is standards under section 7(1)(a) that are relevant in an application for registration.
Amendment No. 83 relates to section 71 which establishes the right of entry and inspection by authorised persons. The amendment makes it clear that the authorised person's right of entry is applicable to any premises used or proposed to be used for any purpose connected with the provision of services described in section 7(1)(a).
Amendment No. 94 relates to section 75 which relates back to section 71 and makes it clear that a person will not refuse entry to a person acting under section 71, monitoring compliance with standards.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
SECTION 12.
I move amendment No. 28:
In page 14, lines 27 to 29, to delete subsection (9) and substitute the following:
"(9) Not less than 40% of the members of a Body shall be men and not less than 40% shall be women.".
This amendment covers a subject which might find favour with the Minister. Tomorrow will be international women's day.
The Deputy sounds like she is slightly out of puff.
I have just come from having my photograph taken with the few women Members in both Houses.
I should have suspended the sitting.
No. I was also making the point to some visiting schoolchildren that Ireland has a lower percentage of female representation in Parliament than exists in sub-Saharan African parliaments. A system so unbalanced is fundamentally wrong. Women have little representation in seeing their own gender participating in decision making and making the laws of the country. We need to take special measures. I ask the Minister to take on this amendment. The proposal goes back to the 1992 Fianna Fáil-Labour Government. The principle is that not less than 40% of the members of the board of a State body shall be men and not less than 40% shall be women. It is a safegaurd and enabling measure to progress the participation of women in decision making in positions of authority. I hope the Minister will accept this amendment.
As someone who comes from a party in which 50% of its Dáil Members are female, I feel strongly about this issue. I do not disagree with Deputy McManus but of the current 12 members of the board, five are women. Given the need for certain expertise on this board, it may well comprise 80% women. I am well disposed to consulting on it.
I am advised, however, that it could lead to a question over what happens with a vacancy. The issue is going to be about the men rather than the women, given employment trends in health care. I frequently attend conferences where there may only be two men. The chief executive officers of the cancer registry, the HRB and the accreditation board are female. The final outcome for this board could be 80% women. It is finding the 40% quota of men that could be the larger issue. If Deputy McManus gives me a little leeway, I am happy to facilitate her amendment on Report Stage provided it can deal with the issue of when vacancies occur.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Section 13 agreed to.
SECTION 14.
I move amendment No. 29:
In page 15, between lines 25 and 26, to insert the following subsection:
"(3) A disqualification pursuant to an order of a court referred to in subsection (2)(a), (c), (d), (e) or (f) shall not take effect until the ordinary time for appealing against any such order has expired, or if an appeal is lodged within that time, until any such appeal, or a further appeal therefrom is determined.”.
I tabled this amendment on legal advice. The purpose of the amendment is to permit the usual opportunity to appeal the decision which would have the effect of disqualifying a person from membership of a body. The Minister may claim this is implicit but it is wrong in law. A clause similar to the amendment is set out in other legislation such as the Electoral Act 1992. This clause is necessary because, for example, a conviction stands pending an appeal. Thus disqualification would operate even though an appeal was pending.
The Electoral Act 1992 suspends disqualification pending an appeal. Section 42(2) states:
The registrar of the court by which a sentence referred to in section 41 (j) was imposed on a member of the Dáil or was confirmed on appeal shall notify the Chairman of the Dáil of the imposition or confirmation of the sentence as soon as possible after—
(a) in case no appeal is taken against the conviction or sentence, the expiration of the time limit for taking the appeal,
(b) in case an appeal is taken against the conviction or sentence and the appeal is disallowed or a sentence mentioned in section 41 (j) is imposed on the appeal, the determination of the appeal,
and on receipt of such notification by the Chairman of the Dáil a vacancy shall exist in the membership of the Dáil.
The amendment will copperfasten people's rights in being disqualified and will ensure the Bill is right in law and justice.
What we are doing is similar to the establishment of all other State boards. However, we are here to make law rather than follow precedent. The Deputy makes a valid point and, unless the Parliamentary Counsel gives a reason we should not do so, I will be happy to accept the amendment at a later Stage.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16.
I move amendment No. 30:
In page 16, subsection (1)(d), line 11, to delete “the Board”.
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 to 23, inclusive, agreed to.
SECTION 24.
Amendments Nos. 31 and 44 are related and may be discussed together.
I move amendment No. 31:
In page 21, lines 26 to 30, to delete subsection (8).
I seek the deletion of this subsection, which concerns gagging the CEO and ensuring he or she does not question or express an opinion on the merits of Government policy or of the merits or objectives of such a policy. It is demeaning that one must put a gagging order in effect. Hospital consultants were subjected to the same treatment. It is as if the Minister does not trust people in authority to understand a certain approach and their responsibilities, and must force them by law not to speak and give opinions. That is not appropriate and people who take up onerous positions have an understanding of what they may say. In exceptional circumstances we need to hear their views if they are contrary to those of the Government or if we become aware of an issue in the development of public policy. We must trust our senior executive officers and civil servants to understand the difference.
A gagging order such as this means no CEO could question the merits of a policy. Does this apply to discussions in private? A Minister may have a bee in his or her bonnet that is inappropriate in terms of patient safety. The CEO should not question such a policy, according to the Bill. That is not good for patients or the Minister. A person will say "Yes, Minister". In the television programme of the same name Sir Humphrey manages to find a way to nobble much of what the Minister wants but that is not healthy and not a good way to manage a difficult area of public policy. It is odd that the CEO shall not question or express an opinion on the merits of any policy of the Government or Minister of the Government or on the merits of the objectives of this policy. It does not state that this applies to speaking publicly.
This is fundamental. The person is a public servant. The CEO is responsible for operational and administrative issues but is not responsible for making policy, which is a function of the Minister and the Government. The energy regulator is appearing before another committee this morning. People want it every way. People want the Minister to be answerable for policy even in cases where it is delegated to a regulatory body.
Deputy McManus wants it both ways. We had the same debate when passing the Health Act 2004. I read some of the debate on that Bill. The CEO of this organisation is required to implement the policy of the Government and the Minister with responsibility for health. The Minister remains responsible for policy. The CEO is accountable to this committee and to the Oireachtas generally through this committee and can answer for all operational and administrative issues. However, the CEO cannot answer for the Minister who must implement Government policy on health. To require the CEO to do so would be wrong. We have a loyal public service to serve the Government and implement the policies of the day. In our democracy the people can decide if they like the policies or not every few years.
I could not agree more. We have a good Civil Service and can depend on loyalty — one of the features of the Irish system. Let us suppose the Minister sits down with the CEO of HIQA in private and is mulling over a policy. Perhaps the Minister does not have enough expertise in this area and asks the CEO to give an honest opinion of this policy. Under this Bill the CEO would have to reply that he or she cannot express an opinion.
The authority has a responsibility to advise the Minister.
This highlights the lunacy of this measure. On the one hand, the CEO cannot question the policy and on the other, he or she must advise the Minister.
No, Deputy McManus is suggesting that the CEO will answer on matters other than operational and administrative issues.
No. Let us be clear.
There is a grey area between operational issues and policy. The Cabinet sub-committee on health will meet this afternoon. The CEO of the HSE, the head of the National Hospitals Office and the chairperson of the HSE will be there and we will discuss a long agenda, including hospital-acquired infections.
It is a long day.
I know, I wish it could finish then. There is a grey area between operational issues and policy. Deputy McManus is suggesting that the CEO be accountable to this committee on policy matters. The CEO has no function in respect of policy matters.
I am not saying that at all. By putting a gagging order on the CEO—
There is no gagging order.
That is exactly what it is. If the Minister was preparing for a meeting of this committee with the CEO and asked the CEO a question, he or she would not answer the Minister to be on the safe side.
The Deputy is talking about the committee.
Yes.
The Deputy referred to me meeting the CEO in private and asked if I can ask for advice. Of course I can.
Let us suppose the Minister is outside—
I am responsible for the policy, not the CEO. We cannot have two people responsible.
I am not referring to responsibility. The Minister does not have to accept the advice. I am trying to imagine a hypothetical situation. Let us imagine the Minister and the CEO are preparing for a meeting with the Joint Committee on Health and Children, as part of the duties described in this legislation. The Minister may ask the chief executive officer, prior to that meeting, his or her opinion regarding policy. In carrying out his duty of accountability to this committee, the chief executive officer could certainly say that because they were preparing to go into a committee, he or she could not tell the Minister.
I am advised that is not the case.
That is a loose requirement.
I will take legal advice on what the Deputy is saying but is she trying to tell me that the Bill, as drafted, states that the chief executive officer cannot give an opinion? Professor Drumm gives me opinions all the time, as does Mr. John O'Brien and many other people. I take good ideas from both Deputies as well, as they know. I have accepted amendments and am not in a strait jacket.
The Minister would probably want to gag us as well if she got the chance.
On the contrary, I do not want to gag them at all. I am happy to accept many of their suggestions.
The Minister has said that she listens carefully.
I listen carefully to both of them. They would be surprised. I read nearly every statement they put out. I even read those that do not get publicity. I like to keep an eye on what they are saying.
What is in the air today?
Amendment No. 31 attempts to remove what is effectively a gagging measure. Even Sir Humphrey would not be able to get around it. It clearly states that "the chief executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy". For example, if Dr. Tracey Cooper, who is now the chief executive of HIQA, decides there is something seriously amiss in the way she is being asked to do her job on foot of Government policy, how can she express such concerns about Government policy to the Minister? Would she have to make a private phone call to the Minister? If she puts something in writing, could she be breaking the law?
No. If she puts something in writing—
If, in the performance of her duties, she puts something in writing—
I want to draw the Deputy's attention to subsection 8, which states: "In the performance of the chief executive officer's duties under this section", which involves appearing before committees.
Yes.
At the moment, even though this body has not been established because the legislation has not been enacted statutorily, I meet the chief executive officer and chairperson of the HIQA bi-monthly. I meet the chief executive officer of the Health Service Executive monthly. We discuss, for example, the care standards the Deputy and I discussed earlier. She was involved in that process. We have also discussed hospital-acquired infections. She is a medic and I am interested in her perspective. We have discussed her programme of work and the organisation as established, including priority areas such as hospital-acquired infections and getting the social services inspectorate up and running. She is not in a strait jacket and it is not the case that she cannot open her mouth. However, when she appears before this committee, she is accountable to it for the manner in which she runs the organisation. That is what the provisions of this section deal with. That is her job as chief executive officer of the organisation. She is not responsible for any policies implemented by me as Minister for Health and Children.
If Dr. Cooper appeared before this committee and was asked a range of questions on concerns she may have about the organisation—
She can give them all to the Deputy. Professor Drumm appears before this committee and members ask him questions about everything. I have not yet heard him say he cannot answer them. Has the Deputy?
I have seen him look at the Minister a few times before he opens his mouth.
He looks at the Deputy too, I am sure.
Not for the same reason.
Amendment, by leave, withdrawn.
Section 24 agreed to.
Sections 25 to 28, inclusive, agreed to.
SECTION 29.
I move amendment No. 32:
In page 23, subsection (3)(a), line 39, after “Authority” to insert the following:
"and the Office of the Chief Inspector of Social Services".
This is a technical drafting amendment designed to ensure that the corporate plan of the authority must also explicitly specify the key objectives of the Office of the Chief Inspector of Social Services.
Amendment agreed to.
Section 29, as amended, agreed to.
Sections 30 to 32, inclusive, agreed to.
SECTION 33.
Amendments Nos. 33, 34 and 99 are related and may be discussed together.
I move amendment No. 33:
In page 26, subsection (4), line 25, after "code" where it secondly occurs to insert the following:
"and the Authority shall comply with the code or revised code as so approved".
This section concerns a code of governance for the authority and sets out various aspects to the code. Remarkably, however, it does not oblige the authority to comply with the code. It might be helpful if it did so. Otherwise it would seem to be a fairly wasteful exercise. It would be useful if we could insert in the Bill a provision whereby the authority must comply with the code as it is approved.
The second issue concerns conflicts of interest, with which we need to deal more effectively than heretofore. I have concerns about an aspect of the health service that has mushroomed during the Minister's period in office. Many private interests have come into the hospital sector and have been welcomed by the Minister. They have also penetrated the primary care area, especially in general practice. A great deal of money is now being made out of the health service, which is a new phenomenon. One can certainly say that doctors make a great deal of money, but this is a different kind of money making. It is for profit and seen as a business, which puts a different complexion on the health service compared with what we had in the past.
We do not have regulatory protections in place to protect the public good. I have grave concerns about that aspect, which I have raised also in the context of the Medical Practitioners Bill. This perfectly valid concern has also been raised by the Irish Medical Organisation and others and it needs to be addressed. In this instance, we are talking about a specific authority. As the Minister said, its members will have expertise in various areas. People with particular expertise in health, however, are being drawn into the ambit of private operators because of their expertise. The conflict of interest that may exist has not been clarified or dealt with by establishing a code to protect the public good.
It is interesting to watch how doctors, in particular, are now engaged with private operators and developers in a new way. Naturally enough, it suits the private developer to have such medical expertise. Some of these people are eminent in their fields, but it raises serious concerns about conflicts of interest. While private developers may draw in doctors, the doctors and other experts can also influence public policy. More importantly in this instance, they can influence the manner in which the health service is managed in a way that meets the needs of developers. That is not to say that all these people are deliberately going out to do this, but the potential exists to do it.
We must scrutinise all our legislation to deal with the issue of conflicts of interest. It is not a healthy development but that is beside the point. It exists and we must deal with it. It is critical to assess any potential conflicts of interest concerning every organisation connected to the health service. We had an example where Professor Drumm brought in advisers and the oversight there seemed to be very vague. I do not suggest there was any wrongdoing. My point is that there are dangers wherever there is the potential for a conflict of interest. Somebody, at some point, will use his or her position and this is why we should put this into the legislation now.
There are a number of issues here and I do not disagree with the Deputy on matters relating to conflicts of interest. Those of us that have the privilege of working in the public service, particularly as Ministers, must be very careful and legislation is so strict in this regard that even stepchildren are affected by Minister's requirements and this can cause issues. The interests of officeholders' stepchildren must be registered as must those of advisers' spouses and this presents an incredible challenge to people independent of the political system. This is done to ensure that nobody associated with an officeholder can benefit from a decision he or she makes. When there is a potential conflict of interest it must be registered, known and acknowledged.
Translating this to the wider public system beyond officeholders has not yet happened to the same extent although I have no doubt we are moving in that direction. This is why we have the provision on a code of governance for the Health Service Executive and for this organisation. I have received advice in my briefing note and would like to revert to the Parliamentary Counsel regarding the Deputy's suggestion. In the annual report attention is drawn to adherence to the code of governance and so on and I will see if this area can be strengthened as I do not disagree with the Deputy's point.
Regarding private people in the health service, prior to the Beacon Clinic and Hermitage Clinic, which opened recently, the last private hospital to open in Dublin opened in 1981 and that was a hospital provided by doctors, the Charlemont Clinic. Health care professionals were involved in the provision of private services for profit before I became Minister for Health and Children and anyone who would suggest otherwise would be foolish. My job as Minister and our job as legislators require us to ensure that conflict of interest issues do not arise. I am not only referring to doctors when I say people must not use their public positions to make financial gain in their private facilities.
The issue of conflicts of interest will arise in the Pharmacy Bill to be published on Friday. A growing number of doctors are pooling together to provide facilities with a single pharmacy present and this raises issues relating to whether the pharmacy is supporting the practice and so on. I have written to the Medical Council regarding some of the ethical issues that arise and they are difficult to deal with under our constitution from a property perspective. Such matters must be addressed through conflict of interest provisions, as the Deputy suggested. If I could go back to the explicit provision on conflicts of interest rather than the implicit one on the code of governance I would be happy to do so.
Is it possible for us to have a copy of the letter the Minister wrote to the Medical Council?
Yes.
How long has the Minister been aware of the issue she just discussed regarding the Pharmacy Bill and the link between pharmacists and general practitioners?
I opened a place in Kerry and wrote the letter to the Medical Council some time ago. I have been taking legal advice and the Bill to be published on Friday has been in gestation for many years as it amends legislation dating back to 1875. For the past two years, since the pharmacy review group report, this issue has been examined by my Department and with the Parliamentary Counsel. Dealing with beneficial ownership property issues from a legislative point of view is very difficult and I have been advised that they cannot be dealt with through such provisions. These issues can probably only be dealt with through conflict of interest provisions and, although we had drafted benefit of interest provisions to go into the legislation, the Attorney General and his office advised that they are not appropriate and would not stand up constitutionally. Therefore we must deal with the matter in a different way.
I wrote to the Medical Council because I received complaints on ethical issues relating to certain people prescribing for their own benefit.
On that matter, is the Minister saying there are conflict of interest issues if a group of doctors have a specific contract with a provider and there should be no—
I am not saying that; I am saying that I do not want a situation to arise where there is encouragement for the prescriber to prescribe other than best medical care — there should be no other incentive.
Concerns have been expressed to me and I have not gone into them too much—
There are issues relating to location. I grew up in a place called Newcastle and our local pharmacy was in Rathcoole. The doctor was in our town and the pharmacist was in Rathcoole so one cannot deal with this matter by way of physical location; one must address conflicts of interest and ethical issues.
On what Deputy McManus said about governance and conflicts of interest, concerns have been expressed by people appointed as advisers who have what would be considered a huge conflict of interest. Has the Minister examined this issue?
Clearly, those are matters for the HSE, its board and chief executive officer. I have a huge personal regard for Dr. McGuire, who has been the subject of some criticism. There is no provision in Irish law for civil servants, public servants or advisers moving from their public work to their private work. In other countries there is a gestation period for which such people are paid. Their contracts of employment say they will work for a certain period and receive a certain salary.
This has been considered in different contexts over the years. For example, some very bright Secretaries General have resigned at young ages in recent years, are involved in many activities and have been sought after because of the abilities and skills they have. Occasionally this practice has been questioned and this issue has been discussed on several occasions. We do not provide, as some countries do, a remuneration package to carry an individual who had operated in the public arena through the gestation period before he or she can move into a private operation. In the past these issues did not arise because people retired at an older age and there was not a similar level of mobility and opportunity. This is an issue today and I do not think anyone has the answer. The same issue arises with politicians; there will be more opportunities for politicians in that sphere in the future, as is the case in the UK, the United States, Germany and some Scandinavian countries.
I do not think too many people want us.
Many consultancies in Dublin in taxation and other areas are run by former public servants. Many of our most successful business people are former public servants.
I will withdraw my amendment for resubmission and will do the same with amendment No. 34.
Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
Section 33 agreed to.
Sections 34 to 38, inclusive, agreed to.
SECTION 39.
Amendments Nos. 35 to 41, inclusive, are related and will be discussed together. Before discussing the amendments in detail, I note a division has been called in the Dáil.
I move amendment No. 35:
In page 29, subsection (2), line 5, to delete "Authority" and substitute "Minister".
The purpose of the amendment is to require that the Minister appoint the chief inspector of the Social Services Inspectorate. As such, it would establish a direct chain of command between the Minister and chief inspector. Given that the latter will be directly responsible to the Minister, he or she should be appointed by the Minister.
The amendment would require establishing the chief inspector as a separate entity from the Health Information and Quality Authority as opposed to part of it. While the Minister will appoint the first chief executive officer of the HIQA, it is a matter for the authority to make all other appointments.
The chief inspector is appointed by the board of HIQA and will not be directly responsible to the Minister.
Indirectly, through the HIQA, he or she will be responsible to me and the committee regarding operational issues and so forth.
Will the committee be able to call the chief inspector before it?
Yes.
Amendment, by leave, withdrawn.
Sitting suspended at 11.50 a.m. and resumed at 12.10 p.m.
We were discussing amendments No. 35 and 36 to 41, inclusive. Amendment No. 35 was withdrawn.
Amendments Nos. 36 to 41, inclusive, not moved.
Section 39 agreed to.
SECTION 40.
I move amendment No. 42:
In page 29, paragraph (c)(ii), lines 39 and 40, to delete “section 7(1)” and substitute “section 7(1)(a)”.
Amendment agreed to.
I move amendment No. 43:
In page 30, paragraph (d)(ii), lines 3 and 4, to delete “section 7(1)” and substitute “section 7(1)(a)”.
Amendment agreed to.
Section 40, as amended, agreed to.
Amendment No. 44 not moved.
Section 41 agreed to.
SECTION 42.
Amendments Nos. 45 and 81 are related and may be discussed together.
I move amendment No. 45:
In page 31, between lines 18 and 19, to insert the following subsection:
"(3) A person appointed under this section shall be given a certificate of his or her appointment and, when exercising any power conferred on the Authority, shall produce, on request by any person affected, the certificate or a copy of the certificate, together with a form of personal identification.".
A person appointed to undertake inspections on behalf of HIQA should, if so requested, be able to produce his or her certificate of appointment or a copy thereof as well as a form of personal identification.
Amendment No. 45 is acceptable in principle but the parliamentary counsel has indicated it requires slight adaptation. We will do that on Report Stage.
Amendment, by leave, withdrawn.
Section 42 agreed to.
Section 43 agreed to.
SECTION 44.
I move amendment No. 46:
In page 31, subsection (1), line 36, to delete "The" and substitute the following:
"For the period of 2 years from the commencement of this section, the".
This amendment relates to whether the executive in this legislation can carry out inspections. If this matter is not confined in some way it could undermine the purpose of the Bill. I presume this is to provide for a transitional period but it is not clear from the legislation because a timeframe has not been imposed. We are being generous in our timeframe. I would be happy if the Minister wants to reduce it from less than two years but the proposal is that a time limit would be set to ensure there would be no question of the Health Service Executive being the inspection service after the transition period.
Obviously we want it to happen as quickly as possible and work is already under way to make it happen as quickly as possible. Two things are required — the transfer of staff from the HSE and the recruitment of new staff, and that process is under way. It is not the intention that it would take anything like two years but if we were to put in a legislative timeframe I could envisage various industrial relations issues arising and it could make things very awkward from a logistical perspective as we get close to the timeframe deadline. It would not give us the desired flexibility.
Will the Minister consider the idea of incorporating the concept of a transitional period in some way? If this stays on the Statute Book as is, it means that at any time in the future, if it politically suited the Minister to get the HSE to do this rather than the more robust statutory authority, there is a danger it would be used. If the Minister would specify in some way, even if not in days or months, that it is purely for the purposes of transition I would find that acceptable.
I understand the point the Deputy is making, that following the move of the people forward it can be used in some other way. Is that the Deputy's point?
Yes.
I will take advice on that. It is purely for the transitional position, which is to be of a short duration.
I will withdraw the amendment with a view to resubmitting it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 31, subsection (1), line 37, after "out" to insert "unannounced".
The purpose of this amendment is to ensure that inspections are carried out unannounced. It is Fine Gael and Labour Party policy on a patient safety authority that when inspections are being carried out they should be unannounced. The idea of a flying squad with regard to hygiene audits has been discussed but if inspections are unannounced it would be a way of raising standards. I would like that acknowledged in the Bill.
The intention is that the inspections will be unannounced but putting something like this in legislation would make it extraordinarily prescriptive in terms of all situations. If an inspection has taken place there might be a need to return to examine books or records that were with an accountant or not there for some other reason. There may be some follow-up process that could be part of the inspection process where it might be useful to indicate that the inspector will be in the area and may want to examine books or documents that were not available for very good reason. It is to deal with that type of situation and be somewhat flexible. We spoke earlier about trying to ensure that we are sensible in regard to the standards and not go for "overkill", so to speak. This would be "overkill".
Amendment, by leave, withdrawn.
Amendment No. 48 is out of order because it is consequential on an amendment which involves a charge. Amendments Nos. 49 to 51, inclusive, are out of order because they involve a charge.
Amendments Nos. 48 to 51, inclusive, not moved.
Section 44 agreed to.
Section 45 agreed to.
SECTION 46.
Amendment No. 52 is in the name of the Minister. Amendments Nos. 55, 56, 75, 76 to 78, inclusive, 97, 101 to 103, inclusive, 105 and 106 are related and may be discussed with amendment No. 52.
I move amendment No. 52:
In page 32, line 20, after "registration" to insert "or renewal of registration".
These amendments relate mainly to the registration system and are technical in nature. Amendment No. 52 relates to section 46 and makes it clear that the prohibition against providing false or misleading information when applying for registration applies equally with renewal of registration.
Amendment No. 55 relates to section 49 dealing with the grant or refusal of registration and makes it clear that the certificate of registration issued will, among other things, set out the conditions, if any, attached to the registration.
Amendment No. 56 relates to notice of decisions of the chief inspector under section 54 and aligns the wording in subsection (2) of that section with that in subsection (1) by referring to both the applicant and the registered provider.
Amendment No. 75 replaces the existing section 64, which deals with prohibition against closure of designated centres without notice. Its effect is to replace the specified six months period with the prescribed period and to allow the different periods to be prescribed for different categories of designated centres.
Amendment No. 76 relates to section 66, which deals with notice of appointment to the chief inspector by a person appointed under law to take charge of a designated centre and deletes "acting in a prescribed capacity", which is not applicable. Amendment No. 77 also relates to section 66 and provides that the chief inspector may accept a later notification than that specified in subsection (1) where he or she is of the opinion that it would be right and proper to do so.
Amendment No. 78 repeals subsection (3) of the existing section 66 as unnecessary.
Amendment No. 97 relates to section 76 governing offences and clarifies that a registered provider will be guilty of an offence if he or she contravenes any regulations made in respect of that category of designated centres to which the designated centre belongs.
Amendments Nos. 101 to 103, inclusive, relate to section 96 dealing with regulation of the governing registration. The net effect of the three proposed amendments is to provide a new subsection making explicit that the regulations can prescribe the notice to be given by a registered provider of a designated centre of intention to cease to carry on its business and close the designated centre.
Amendments Nos. 105 and 106 relate to section 98 dealing with regulations for inspecting designated centres. The effect of these three amendments is to provide expressly that the regulation under this section may provide for a designated centre to be carried on for a prescribed period by a person who is not registered in respect of it and may include provision for the prescribed period to be extended by a further period as the chief inspector may allow.
I have concerns about this way of making law. The Minister publishes the Bill and has the back-up and the expert advice of her Department and the Attorney General, and that is as it should be. Our job is to scrutinise it and get whatever legal advice we can get but we cannot do our job if so much substance is introduced by the Minister by way of amendments. Much of this stuff is nuts and bolts requirements and provisions and on the surface one can accept that they probably improve the Bill but it is impossible for us to judge. What I find very odd is that the Minister and her Department cannot ensure that before the Bill is published these type of nuts and bolts provisions are in place and that everything has been fire-proofed, so to speak. The Department of Justice, Equality and Law Reform appears to have the same habit in that the Minister introduces many amendments which appear to be technical and straightforward but may not be or may end up having a different result to the one intended but we do not have a chance to scrutinise them. I find it inadequate in terms of accountability. Will the Minister explain to us the reason the bulk of these amendments were not in the original Bill? What happened? Did somebody tell her the Bill is flawed and she needs to do this, that and the other or was it as a result of lobbying?
In anything we have done today I do not believe we have changed the substance of what is before us. For as long as I have been in this House, which is quite a while, what we are doing is not unusual particularly when a new body is being established. Some of the earlier amendments related to printing errors. Sometimes the officials are working with the Parliamentary Counsel on amendments that have not been completely signed off on. We need to have everything completely signed off by the Parliamentary Counsel. There is a combination of reasons. I do not know the specific reason in this case. The officials with me today have been working on this legislation since the Health Act establishing the HSE was passed. It is a small team that works very hard. When they get the printed version they go through it thoroughly. If we see something that needs to be changed we do that and the same is true if we see ideas from others. I do not believe there has been any lobbying for any of these matters.
Does the Minister have her own parliamentary draftsman?
No.
I know it is a bit late in the day, but I raised this matter with the Minister's predecessor.
We have a legal adviser in the Department. However, to the best of my knowledge the legal adviser does not get involved in drafting.
When I was Minister of State in the Department of the Environment, it had a parliamentary draftsman division. When considering health legislation it is important to have such a capacity in the Department.
I would like to have it.
Has the Minister sought sanction for it from Cabinet?
I do not think any Department has it. It has all been centralised.
The Department of the Environment had it in my day.
The Deputy may find it has been centralised again. Some legal advisers do parliamentary drafting, particularly those who are professional barristers. We have two legal people in the Department, one legal adviser and a person on secondment from the Office of the Attorney General. She joined last week and I met her for the first time yesterday.
Is she working in the Department full time?
She will be in the Department for two years. I believe it is traditional for parliamentary draftspeople to move around different Departments to get experience. However, I am advised she will not be involved in drafting legislation.
So, the Department has a parliamentary draftsman, but she is not used in that role.
She was not seconded to be a parliamentary draftsman. She was seconded to be a legal adviser. As the Deputy can imagine, the Department of Health and Children is involved in a plethora of legal issues and not just legislative issues. I do not believe any Department does drafting. The practice now is to centralise the function. The resources of the Office of the Attorney General have been greatly expanded and strengthened. Some of the staff do not even work in the office. They do the work on an outsource basis, particularly some who have come from other countries. While it has expanded enormously, there is inevitably pressure on the officials who are drafting. The heads of a Bill are done in the Department and when approved by Cabinet the drafting process starts.
While I do not want to labour the point, it would be much more effective to have capacity in the Department that could build up expertise in the area.
Amendment agreed to.
Section 46, as amended, agreed to.
SECTION 47.
I move amendment No. 53:
In page 32, subsection (3), line 32, to delete "6 months" and substitute "3 months".
Since most of the people involved are private operators in the private nursing home sector, they should not be required to wait for long periods of time while an official makes a decision on how to run their business. The decision should be made within three months. I want to tie down the officials to make snappy decisions.
I do not believe this is a big issue. As it is six months in the child registration area, that was considered a reasonable period. Assuming there is no legal issue, I do not have an issue with the suggestion.
Amendment, by leave, withdrawn.
Section 47 agreed to.
Section 48 agreed to.
SECTION 49.
I move amendment No. 54:
In page 34, subsection (1)(b)(i), line 3, to delete “under section 7(1)” and substitute “under section 7(1)(a)”.
Amendment agreed to.
I move amendment No. 55:
In page 34, lines 22 to 25, to delete subsection (3) and substitute the following:
"(3) On granting the application, the chief inspector shall issue a certificate of registration to the applicant, having first noted on the certificate—
(a) the enactments, if any, cited to the applicant under subsection (1)(b)(iv), and
(b) the conditions, if any, attached to the registration under subsection (2)(a).”.
Amendment agreed to.
Section 49, as amended, agreed to.
Sections 50 to 53, inclusive, agreed to.
SECTION 54.
I move amendment No. 56:
In page 36, subsection (2), line 31, to delete "the applicant" and substitute the following:
"the applicant or the registered provider, as the case may be,".
Amendment agreed to.
Section 54, as amended, agreed to.
Sections 55 and 56 agreed to.
NEW SECTION.
I move amendment No. 57:
In page 38, before section 57, to insert the following new section:
57.—(1) If the chief inspector believes on reasonable grounds that any person is carrying on the business of a designated centre in contravention of a decision—
(a) under section 49 or 51, to refuse an application,
(b) under section 49 or 51, to grant an application subject to any conditions, or
(c) under section 50, to—
(i) cancel the registration of a designated centre,
(ii) vary or remove any condition of the registration of a designated centre, or
(iii) attach an additional condition to the registration of a designated centre, the chief inspector may apply to the District Court for an order to enforce the decision.
(2) The District Court, on hearing an application under this section, may make an order—
(a) in the terms sought by the chief inspector in the application, or
(b) in other terms as the Court considers appropriate.
(3) An application under subsection (1) shall be made to the District Court judge assigned to the district in which the designated centre is located.”.
The amendment seeks to insert a new provision, whose purpose is to allow the chief inspector to apply to the District Court for an order to enforce a decision made under section 54 if the registered provider fails to comply. This new section will not prejudice the ability to prosecute a registered provider who does not comply with such a decision. The new section 57(1) specifically states:
If the chief inspector believes on reasonable grounds that any person is carrying on the business of a designated centre in contravention of a decision—
(a) under section 49 or 51, to refuse an application,
(b) under section 49 or 51, to grant an application subject to any conditions, or
(c) under section 50, to—
(i) cancel the registration of a designated centre,
(ii) vary or remove any condition of the registration of a designated centre, or
(iii) attach an additional condition to the registration of a designated centre,
the chief inspector may apply to the District Court for an order to enforce the decision.
Section 57(3) sets out the orders the District Court can make under the section and section 57(4) requires that: "An application under subsection (1) shall be made to the District Court judge assigned to the district in which the designated centre is located.”
Amendment agreed to.
Section 57 agreed to.
SECTION 58.
Amendments Nos. 58 to 73, inclusive, may be discussed together by agreement.
I move amendment No. 58:
In page 38, subsection (1), line 31, after "order" to insert "where necessary".
Every effort should be made to inform the provider that an action has been taken and ex-parte orders should be used as the last resort.
Amendments Nos. 58 to 73, inclusive, relate to section 58, which is concerned with making the application, etc. We all agree that it is a matter of paramount concern to allow the chief inspector to act quickly where there is a risk to life or a serious risk to health or welfare of residents in a designated centre. This is particularly important as such residents can be very vulnerable. Accordingly the intention is to ensure that any action legitimately required to protect them is available to the inspection authority established by the Bill.
Sections 57 to 59, inclusive, must be read together. Section 57 allows the chief inspector to seek an interim order in certain specified circumstances, namely, where he or she has reasonable grounds for believing there is a risk to the life or serious risk to the health or welfare of a resident in a designated centre. This is a substantial threshold designed to make certain that the chief inspector never makes ex parte applications without the fullest consideration of their need in any situation. However, there may be circumstances in which the urgency is such that the chief inspector must proceed on an ex parte basis. While it is likely that these situations will be rare, it is nonetheless important to acknowledge the possibility and to provide accordingly as is done in section 58.
Moreover there are a number of other safeguards. The chief inspector may apply for an order ex parte. However, the District Court must be satisfied with the case made before granting it. It is an established legal principle that the person making an ex parte application must always present his or her case as fairly as possible and is required to outline the strengths and weaknesses of the case. Furthermore judges tend not to accede to such applications lightly and any order granted is usually for a very limited period. In that context the section provides that the ex parte interim order can only be effective for a specified period that cannot exceed 28 days. It ceases to have effect at the end of that period unless the parties consent to its extension and the District Court affirms it. Such an application must be made on notice to the person who is the designated centre’s registered provider at the time of the ex parte application. In the further interests of fairness the chief inspector is required as soon as practicable to serve on the person who is the registered provider at the time of the ex parte application a copy of both the ex parte interim order and the affidavit on which it was grounded.
Section 59 ensures that those matters addressed on an ex parte basis are brought to a final conclusion as quickly as possible. It provides that within 42 days of granting the ex parte interim order the chief inspector may apply to the District Court for a final determination.
Considerable thought went into these provisions in an effort to be as fair as possible to everyone and to ensure each person's constitutional rights are protected. The present provisions strike the balance between urgency and fairness and I cannot accede to the Deputy's amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 59 to 73, inclusive, not moved.
Sections 58 agreed to.
Section 59 agreed to.
SECTION 60.
I move amendment No. 74:
In page 40, line 21, to delete "section 56(4), 57(3) or section 59(3)” and substitute “section 56(4), 57(3) or 59(3)”.
Amendment agreed to.
Section 60, as amended, agreed to.
Sections 61 to 63, inclusive, agreed to.
NEW SECTION.
Amendment No. 75 seeks to insert a new section. Acceptance of this amendment involves the deletion of section 64 of the Bill.
I move amendment No. 75:
In page 41, before section 64, to insert the following new section:
"64.—(1) The registered provider carrying on the business of a designated centre shall not cease to carry on its business and close the designated centre unless the registered provider first gives the chief inspector written notice, of such period as may be prescribed, of the intention to do so as of a date specified in the notice.
(2) Different periods may be prescribed for different categories of designated centres.".
Amendment agreed to.
Section 64 deleted.
Section 65 agreed to.
SECTION 66.
I move amendment No. 76:
In page 41, subsection (1), line 23, to delete "acting in a prescribed capacity".
Amendment agreed to.
I move amendment No. 77:
In page 41, between lines 27 and 28, to insert the following subsection:
"(2) The chief inspector may accept a later notification where the chief inspector is of the opinion that it would be right and proper to do so.".
Amendment agreed to.
I move amendment No. 78:
In page 41, lines 34 to 36, to delete subsection (3).
Amendment agreed to.
Section 66, as amended, agreed to.
SECTION 67.
I move amendment No. 79:
In page 42, subsection (3), line 11, to delete "coming into operation of this section." and substitute the following:
"centre becomes a designated centre in accordance with the provisions of this Act.".
Section 67 establishes a realistic and necessary transition provision for existing designated centres to allow them to operate pending registration inspection by the chief inspector for a period of up three years or such shorter period as a chief inspector may determine. In that regard, the section currently provides that operators of such designated centres must notify the chief inspector within six months of this section being commenced.
Amendment No. 79 is a technical amendment to that requirement and provides that the obligation to notify the chief inspector is within six months of the centre becoming a designated centre in accordance with the provisions of this Act.
Amendment agreed to.
Section 67, as amended, agreed to.
Section 68 agreed to.
SECTION 69.
I move amendment No. 80:
In page 43, between lines 35 and 36, to insert the following subsection:
"(5) The report of an authorised person on his or her findings in respect of a designated centre following the exercise of any power under this Part shall be published on a relevant Internet website maintained by the Authority within 30 days from the exercise of the function concerned.".
This amendment is self-explanatory and aims to ensure public access to the reports and that we have a timeframe. Otherwise, we could be waiting years for a report to be released.
I do not disagree with the need to publish the reports and for people to have access to them on the Internet. This is now happening with nursing home inspections. It has an upside and a downside. There has been a considerable amount of criticism from some of the providers.
The 30-day period may be an issue. Could I get back to the Deputy? I would like to discuss it with my officials if this is acceptable.
Amendment, by leave, withdrawn.
Section 69 agreed to.
Amendment No. 81 not moved.
Section 70 agreed to.
SECTION 71.
Amendments Nos. 82, 84, 85, 86 and 88 are cognate and will be discussed together.
I move amendment No. 82:
In page 44, subsection (1), line 10, to delete "at any reasonable time" and substitute "at any time".
The purpose of these amendments is to delete the provisions which provide that authorised persons or the chief inspector can enter premises in accordance with section 71 at any reasonable time. The advice from the Parliamentary Counsel is that such a provision could be used for straight investigations or inspections as the phrase was open to interpretation. This could give rise to situations where the authorised person or chief inspector could be refused entry because, in the view of the provider, it was not a reasonable time to seek entry to a premises. Rather than risk such matters ending up in the courts, it is considered more appropriate to avoid any confusion as to the powers of the authorised officer or chief inspector and to delete these provisions.
Amendment agreed to.
I move amendment No. 83:
In page 44, subsection (1), lines 14 to 18, to delete paragraph (ii) and substitute the following:
"(ii) used or proposed to be used, for any purpose connected with the provision of services described in section 7(1)(a).”.
Amendment agreed to.
I move amendment No. 84:
In page 44, subsection (2), line 21, to delete "at any reasonable time" and substitute "at any time".
Amendment agreed to.
I move amendment No. 85:
In page 44, subsection (3)(a), line 36, to delete "at any reasonable time" and substitute "at any time".
Amendment agreed to.
I move amendment No. 86:
In page 44, subsection (3)(b), line 41, to delete "at any reasonable time" and substitute "at any time".
Amendment agreed to.
I move amendment No. 87:
In page 45, subsection (4)(d)(ii), lines 22 and 23, to delete "a health or personal social service" and substitute "a service".
Amendment agreed to.
I move amendment No. 88:
In page 45, subsection (5), line 28, to delete "At any reasonable time" and substitute "At any time".
Amendment agreed to.
Amendments Nos. 89 and 93 are related and will be discussed together.
I move amendment No. 89:
In page 46, between lines 10 and 11, to insert the following subsection:
"(7) Documents subject to legal professional privilege shall not be liable to production under this section.".
I received legal advice that this amendment should be inserted to ensure the Bill is constitutional.
We will seek advice on that. Deputy McManus has made a valid point.
Amendment, by leave, withdrawn.
I move amendment No. 90:
In page 46, between lines 38 and 39, to insert the following subsection:
"(9) For the avoidance of doubt, explanations furnished pursuant to subsection (7) or (8) shall not be admissible against the person required to furnish the explanation in any criminal proceedings.".
The same point is made by my legal adviser in respect of this amendment.
My answer is the same as that given in response to amendment No. 89. Given that Deputy McManus has such a good legal adviser, I must take note.
We were just talking about that.
I should send his bill to the Minister.
I know him. He is good.
I know the Minister knows him.
Quite appropriate.
He comes highly recommended. I understand he trained under the Minister for Justice, Equality and Law Reform.
He is now training the current Minister for Justice, Equality and Law Reform.
Let us not go there.
Amendment, by leave, withdrawn.
Section 71, as amended, agreed to.
Section 72 agreed to.
SECTION 73.
I move amendment No. 91:
In page 47, subsection (2)(a)(i), lines 24 and 25, to delete all words from and including "monitoring" in line 24 down to and including "section 7(1)(a)" in line 25 and substitute the following:
"monitoring compliance with standards in accordance with section 7(1)(b)”.
Amendment agreed to.
I move amendment No. 92:
In page 47, subsection (2), line 41, to delete "an assistant inspector" and substitute "an inspector".
Amendment agreed to.
Amendment No. 93 not moved.
Section 73, as amended, agreed to.
Section 74 agreed to.
SECTION 75.
I move amendment No. 94:
In page 48, paragraph (a), line 8, after "is" to insert "monitoring compliance with standards, or".
Amendment agreed to.
Section 75, as amended, agreed to.
SECTION 76.
Amendment No. 95 will be resubmitted on Report Stage.
Amendments Nos. 95 and 96 not moved.
I move amendment No. 97:
In page 48, subsection (2)(d), line 34, to delete "the regulations" and substitute the following:
"any regulations made in respect of the category of designated centres to which the designated centre belongs".
Amendment agreed to.
Section 76, as amended, agreed to.
SECTION 77.
I move amendment No. 98:
In page 49, subsection (1), line 13, to delete "prosecuted by the chief inspector." and substitute the following:
"prosecuted—
(a) where a person contravenes section 75 by refusing to allow an authorised person to monitor compliance with standards or conduct an investigation, by the Authority,
(b) in any other case, by the chief inspector.".
This is a technical amendment. Under section 75, a person shall not refuse to allow an authorised officer or chief inspector to enter a premises to conduct an investigation. The committee will recall that under amendment No. 94, the committee agreed to include a provision regarding an authorised person monitoring compliance with standards of this section. Under section 76, it is an offence to contravene section 75. That is, it is an offence to refuse an authorised person or chief inspector permission to enter the premises or, in the case of a dwelling, enter with a warrant.
Section 77 provides that the chief inspector may bring summary prosecutions with regard to offences under the legislation. However, in the situation where authorised persons of authority are being prevented from carrying out their duties under section 71, it would be more appropriate for the authority to bring the summary prosecution.
This amendment provides that where a person contravenes section 75 by refusing to allow an authorised person to monitor compliance with standards or conduct of an investigation, the authority may bring the prosecution and that all other cases under this legislation are a matter for the chief inspector.
Amendment agreed to.
Section 77, as amended, agreed to.
Amendment No. 99 not moved.
Section 78 agreed to.
Sections 79 to 85, inclusive, agreed to.
SECTION 86.
I move amendment No. 100:
In page 54, between lines 7 and 8, to insert the following subsection:
"(4) In relation to persons transferred in accordance with subsection (2) to become an employee of the Authority, previous service in the civil service shall be reckonable for the purposes of, but subject to any exceptions or exclusions in the—
(a) Redundancy Payments Acts 1967 to 2003,
(b) Protection of Employees (Part-Time Work) Act 2001,
(c) Protection of Employees (Fixed-Term Work) Act 2003,
(d) Organisation of Working Time Act 1997,
(e) Minimum Notice and Terms of Employment Acts 1973 to 2005,
(f) Unfair Dismissals Acts 1977 to 2005,
(g) Maternity Protection Act 1994,
(h) Parental Leave Acts 1998 and 2006,
(i) Adoptive Leave Acts 1995 and 2005, and
(j) Carer’s Leave Act 2001.”.
This is a technical amendment. Under the provisions of the Bill, the existing staff of the Social Services Inspectorate will transfer to the authority, and will be part of the staff of the Office of the Chief Inspector of Social Services. These staff are civil servants in the Department of Health and Children. The purpose of the amendment is to ensure their rights are protected in the transfer, subject to any exceptions in the legislation listed in paragraphs (a) to (j). It is a standard provision which is also included in sections 85 and 87.
Amendment agreed to.
Section 86, as amended, agreed to.
Sections 87 to 95, inclusive, agreed to.
SECTION 96.
I move amendment No. 101:
In page 57, paragraph (d), line 17, to delete “and”.
Amendment agreed to.
I move amendment No. 102:
In page 57, paragraph (e), line 19, to delete “prescribed.” and substitute “prescribed, and”.
Amendment agreed to.
I move amendment No. 103:
In page 57, between lines 19 and 20, to insert the following:
"(f) prescribing the notice to be given by a registered provider of a designated centre of intention to cease to carry on its business and close the designated centre.”.
Amendment agreed to.
Section 96, as amended, agreed to.
Section 97 agreed to.
SECTION 98.
I move amendment No. 104:
In page 57, subsection (3), line 40, to delete "respecting" and substitute "as respects".
Amendment agreed to.
I move amendment No. 105:
In page 58, subsection (4)(b), line 40, to delete “and”.
Amendment agreed to.
I move amendment No. 106:
In page 58, subsection (4), lines 41 to 43, to delete paragraph (c) and substitute the following:
"(c) may provide for a designated centre referred to in paragraph (b) to be carried on for a prescribed period by a person who is not registered in respect of it, and
(d) may include provision for the prescribed period to be extended by a further period the chief inspector may allow.”.
Amendment agreed to.
Section 98, as amended, agreed to.
SECTION 99.
Amendments Nos. 107 and 108 are related and will be discussed together by agreement.
I move amendment No. 107:
In page 59, subsection (1), lines 2 and 3, to delete all words from and including "other" in line 2 down to and including "4” in line 3.”
Amendment, by leave, withdrawn.
I move amendment No. 108:
In page 59, subsection (2), line 5, after "order" to insert the following:
"(other than an order under section 3 or 4)”.
Amendment, by leave, withdrawn.
Section 99 agreed to.
Sections 100 and 101 agreed to.
SCHEDULE 1.
Amendments Nos. 109 and 110 are related and will be discussed together by agreement.
I move amendment No. 109:
In page 60, line 12, column (3), after "Sections" to insert "59,"
These are minor amendments to the Child Care Act 1991 and the Children Act 2001. The first amendment arises from the need to streamline the Child Care Act with this legislation as the chief inspector will be inspecting child care homes against the regulations made under the Child Care Act and the standards set by the authority.
Section 59 of the 1991 Act has been deleted as it is no longer necessary in view of the amendment being made in Part 1.1 of the Second Schedule to the Bill. That amendment provides for a standard definition for children of residential centres, both the centres operated by the Health Service Executive and the centres operated by the voluntary sector, which provide a service on behalf of the executive.
The second amendment is to correct an error in the reference to the definition of children's detention school I will bring further consequential minor amendments to the Child Care Act on Report Stage.
Amendment agreed to.
Schedule 1, as amended, agreed to.
SCHEDULE 2.
I move amendment No. 110:
In page 61, in the third column, to delete lines 11 and 12, and substitute the following:
"(e) a children’s detention school as defined in section 3 of the Children Act 2001;”.”.
Amendment agreed to.
I move amendment No. 111:
In page 60, after line 50, to insert the following:
"
|
5. |
Section 41 |
In subsection (2) after the words “The Minister may” delete the words “by order”. |
".
This is a technical amendment to the Health Act 2004 which is required due to a printing error. Under the existing provision of section 41, the Minister may establish a national health consultative forum on matters relating to the provision of health and personal social services. However, in section 41(2), the Minister may specify by order only the number of members of the forum, determine the manner in which they are appointed, appoint the members and determine the rules and procedures. As a result, two orders have to be signed by the Minister, the first for the convening of the forum and the second for the appointment of the members. This is cumbersome and unnecessary and can easily be done administratively. It is therefore proposed to delete the words "by order" in section 41(2).
Amendment agreed to.
I move amendment No. 112:
In page 63, before line 1, to insert the following:
"PART 5
AMENDMENT TO DISABILITY ACT 2005
|
Item |
Provision affected |
Amendment |
|
1. |
Section 10 |
By deleting “under section 5 of the Act of 2004”. |
".
Amendment agreed to.
Schedule 2, as amended, agreed to.
TITLE.
Question proposed: "That the Title be the Title to the Bill."
I wish to give notice of my intention to return to a number of issues on Report Stage. Some amendments may be required in regard to the Child Care Act to make sure it dovetails with this legislation and also in respect of sections 5A and 38 of the Health Act 2004. I may bring amendments subject to legal advice to the Health Act 1970. Likewise, I may bring amendments to standards set by the HIQA in regard to the Disability Act to ensure they are compatible. I am required to mention them on Committee Stage to introduce them on Report Stage.
Does this mean there will not be a recommittal?
Yes.
I wish to protest at the fact that amendments are not only coming forward on Committee Stage but we are now having amendments introduced on Report Stage which should be introduced on Committee Stage. As we all know, debate on Report Stage is much more limited and restricted in terms of time. It is not satisfactory. It would be much better if the Minister accepted these amendments require to be tabled on Committee Stage and that there would be a recommital of the Bill to open up our chance of proper scrutiny.
Question put and agreed to.
I thank the Minister and her officials for attending today's meeting. I also thank the members of the committee for their constructive contributions to the Bill and for facilitating consideration of the Bill.
I thank the Vice Chairman for hitting the mark. Well done. It is one minute to one o'clock. Deputy Moloney will be very disappointed.
Bill reported with amendments.