SECTION 55.

I move amendment No. 188:

In page 24, subsection (1), line 25, after "board" to insert "in consultation with the board membership".

The purpose of this amendment is to ensure that chief executive officers would consult with the health board membership or with special child care subcommittees of the health board when acting in relation to the various functions laid out in this Bill. This is a reasonable amendment. There have been circumstances where the CEOs' administration at various times could have done with the second guessing and cross-scrutiny of health board members. It is important that we have some element of democracy in our health service, and I would ask the Minister to accept this very reasonable amendment.

I do not think this is feasible because you cannot expect the members of the health board to examine every case and every difficulty which arises in relation to each child, in consultation with the chief executive officer of the health board. That is not on. Although I am surprised and pleased to discover Deputy Yates' party's newfound faith in health boards, this is not feasible.

I am sympathetic to the point that has been made in relation to the notion of the health board chief executive officer having to consult but I do not think it would be possible in each case. Putting in the words proposed in the amendment would not be sensitive in relation to the rights of the child and the family, because one is broadening the discourse beyond the relevant profession. I am not saying I am against the democratic accountability of health boards but what I would like to see in the section, if the Minister considered it, would be if the chief executive officer having exercised these functions professionally, undertook to prepare a report for the health board on the exercise of these functions and there could be consultation which would have it lifted away from a particular case. There would be some kind of summary report on the exercising of this section and he would consult with the board on that. In the very unusual case where they felt there had been an error of judgment by the CEO this would provide elected members with a vehicle in which to bring it up, and at the same time it would leave the CEO with the maximum discretion and flexibility in operating the Bill. That would be my view on it.

I would have elaborated more had I known this amendment was going to be so contentious. I thought it would be agreed automatically. In relation to section 55 and the functions of the CEO, if we look through the section we will see that in subsection (1) (b) the charges would be a matter for the CEO if we do not include some reference to the board. In relation to subsection (1) (d) — any function in relation to the payment of a grant or allowance to a voluntary body or other person — this would be a matter for the CEO entirely without reference to the board; and in relation to subsection (1) (g) — any function in relation to the supervision of pre-school services — all these matters would be for the CEO, and there would be no right of consultation or no obligation on him to consult. There is a very important principle here which is called the principle of accountability. While there can be a case made that the nitty gritty and the personal details of each case should not be brought to the attention of board members, there is the alternative that a small child care sub-committee would be set up by the board which would be aware of detailed matters.

Section 3 of the Bill which deals with the functions of the health board, says:

It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

We find on page 24 that this is not the function of the health board but the CEO. There should be two categories of cases dealt with by the CEO but there should be another area in which he should act in consultation, which involves policy issues, planning issues and sensitive issues such as charges.

Is that not covered under section 6 where reports have to be prepared and presented?

I will have a real problem if we are asked to vote on this; I hope we are not. The case made by Deputy Yates related to consultation with the board members and policy. Whether we like it or not, we have to deal with reality. I can see a very strong case for the matters at (a), (b) and (c) being in the professional realm and the policy element being the one where there is consultation. The Minister suggested for, example, splitting this section. That would meet the point because the speed, the professionalism, the judgment necessary would be protected within a professional rather than a broad discourse as I mentioned in relation to (a), (b) and (c). It leaves the members the right of making a contribution in matters that are beyond the individual case.

A few moments ago Deputy Yates would not allow the Minister to consider whether an original section should be changed yet, in his contribution on this amendment, he changes his own amendment. You cannot have it both ways.

I reiterate my position: in my view the powers being given exclusively to the CEO in section 55 are too great. I believe there is a lack of accountability and I think that if the Minister reconsiders paragraphs (a) to (g) he will see there are inherently some policy issues involved. They should be appropriately dealt with by a sub-committee of health boards and, in effect what we will have is some programme manager who will know exactly where he stands as regards the law. He will know that he is not accountable to any member of the board when he has an open season as under paragraph (h) here. I believe that is essentially bad law and will and can lead to obvious future problems.

I said at the outset that I have the utmost respect for our health boards, the staff, their executives and their membership. The whole purpose of section 55 is to assign responsibility for certain functions to the chief executive officer and, through him to other professional staff of the health boards. This is fully in keeping with the practice that has obtained since the health boards were established, where responsibility for individual cases — and I think this is the point that Deputy Higgins was making — rests with the staff of the board. The board itself has a broad policy role and determines the overall policy in each level of service. Whether this is dealt with in committee or sub-committee is a matter for the relevant board.

It is also in line with the practice that applies in the local government area where decisions on individual cases are primarily for the management, with the elected members exercising reserved functions and deciding overall policy. Obviously, it is part of the CEO's role to keep his board informed generally on the affairs of the health board and to discuss major questions of policy and other matters with them. However, what Deputy Yates is proposing will go further and would, for example under subsection (1) (a) require the chief executive officer to consult the board about the arrangements for the care of each individual child. I am sure that the committee will agree that this would not be appropriate and, for this reason, I regret that I cannot accept the amendment.

I read the section and, I did not see the implications of not having provision for the board. My experience of the health board is that the community care committee of the board has its function; this is something that would be appropriate to the community care. Subsection (3) reads:

In this section "chief executive officer" includes a person acting as deputy chief executive officer in accordance with section 13 of the Health Act, 1970

That is pretty strong language. What we are actually saying is that we are enacting legislation and that responsibility is a managerial function. There is no members' function in this at all. That is not good enough. There should be some reference to membership of the board through the community care committee.

I believe the Minister should not have a closed mind on this. I acknowledge that the situation in relation to each individual child, and the dealings of each individual child, should not require consultation and I accept my amendment is not the ideal solution to the problem, but I was prepared to withdraw it on the basis that there would be a division of functions on what would be purely executive matters. That would be purely the day to day stuff, in the same way that any local authority operates: there are executive functions and reserve functions. My fear is that, under section 3 (1) all the general powers are conferred on the health board, but we later find "the board" does not mean the board but the CEO, as Deputy Sherlock has now outlined, it means the individual programme manager or the individual health board official. In my view, some cases should be considered by the committee, and some of these are clearly policy matters.

In relation to charges that is obviously a policy matter for the board. In relation to grants for voluntary bodies, whether the ISPCC in the area gets a grant or not, that is obviously a policy matter. For the health board to decide to provide pre-school services is obviously a policy matter. I do not believe any health board member, if he were sitting here today, would subscribe to the view that we should set in place forever a law that states they should not have a role in this area. I do not believe that would be the wishes of public representations or those people dealing first hand with it. Most importantly, the principle of accountability must apply.

I am prepared to withdraw amendment No. 188 on the understanding that the Minister would seek to separate the policy issues from the day to day executive cases. On that basis we can progress. If the Minister continues to take the attitude that CEOs should be left entirely to deal with all these matters, I am afraid we will have to have another vote.

There is no conflict between section 3 and section 55. Section 55 assigns to the CEO responsibility for individual cases. This does not take away from the responsibilities of the board members for overall policy matters. Paragraphs (a) to (g) are carefully drafted to refer to individual cases and individual decisions, but the overall policy in these areas would be for the board to decide. The purpose of section 55 is to assign responsibility for various functions under the Bill to the staff of the health board. In the absence of this provision the functions would fall to be performed by the members of the board. It is not intended that the various functions would be performed by the CEO personally.

By virtue of section 3 (3) the CEO will be able to avail of his powers under section 16 of the Health Act, 1970, to delegate any function assigned to him to specified officers or classes of officers. The Minister for Health is empowered to give directions to the CEOs in this connection. Subsection (1) specifies the functions which are to be assigned to the CEO. If we look at paragraph (e) it reserves to the CEO all decisions in relation to court proceedings. It is envisaged that that will be delegated to the directors of community care and senior social workers in consultation with the board's legal advisers.

Subsection (2) provides that any dispute or doubt as to whether a particular function is a function of the staff or of the members of the board will be determined by the Minister for Health. Subsection (3) provides that the powers, conferred on the chief executive officer under this section may also be exercised by a person acting as deputy chief executive officer. That would be, for example, where the CEO is absent due to illness or where the CEO has resigned his post. As indicated earlier, the CEO or his deputy may delegate these functions to other staff of the board.

We are talking about individual functions. We are talking about individual decisions. The board members will have to agree and be consulted on policy matters, for example, whether the board decides to go into general pre-school services or not. Individual matters are a matter for the officers of the board and, where there is any conflict, the Minister for Health would be the person to make the final decision. I think that should clarify the position. There is no conflict.

If the functions set out in paragraphs (a) to (g) are left within the sole responsibility of the chief executive officer he will be involved in making policy decisions; any function with respect to a decision to the making or recovery of a charge or the amount of any charge; the payment of a grant or allowance to a voluntary body or any other person and any function in relation to the supervision of pre-school services. That is a huge responsibility; it is almost a community responsibility and should come within the area of community care or maybe a subcommittee of the board. I think some thought could be given to more consultation on policy decisions. I think the administrative decision and functions could be left with the chief executive officer. If an executive officer has a certain attitude — maybe a very rigid attitude — to children or parents or to providing pre-school services etc., the membership of the board could find themselves without the influence to do anything about it. I hope the Minister knows what I am getting at.

With regard to a broad policy in the area of the supervision of pre-school services or the payment of grant or allowance to a voluntary body, if a chief executive officer denied payment to one of the groups who could provide very good child care facilities within his jurisdiction because of a personal attitude, that would worry me. There would have to be more consultation and accountability among other people than the CEO. Perhaps the Minister could look at the possibility of dividing the functions.

I am glad the amendment was withdrawn because I could not have supported it because of its implications for individual cases. The case might be met if the Minister, for example, if he is construing that these are administrative functions and that the difficulty arises as to whether they encroach on the policy area put in a form of words at the beginning of this section which acknowledged the policy and the input of elected Members. This would leave these as simple administrative functions within a policy framework into which elected Members have had an input. That would meet the case.

I can consider that situation but if we look at it in the overall context, the CEO is obliged to run the health services and the pre-school services on the direction of the Minister for Health under the law laid down as passed in this Committee, as, hopefully, ratified by the Oireachtas, and then under the regulations laid down by the Department of Health. He will be obliged to put that before his board and notify them of his decisions and get their views on it. That is how the situation normally operates. The CEO cannot operate in an ivory tower without consultation with his board members on policies and services. I will have another look at it but, to be honest, I think the line is very narrow.

Do you see the point? If you make the specific reference to what is the realm of policy, you are then saying the members have their whack at defining policy, and then he gets on with the administration.

I will have a look at that.

Is that a substantial look, a cursory look?

It is a look. When I say I will look, I will look.

Amendment, by leave, withdrawn.

I move amendment No. 189:

In page 24, subsection (1) (b), line 31, to delete "section 3 or 4" and substitute "section 3, 4 or 42".

Amendment agreed to.

I move amendment No. 189a:

In page 24, subsection (1), lines 36 to 39, to delete paragraph (e) and substitute the following:

"(e) any function with respect to legal proceedings in relation to the care and protection of a child;".

The purpose of paragraph (e) is to assign responsibility for legal proceedings to the staff rather than to the members of the health board. The existing draft needs to be extended to refer to interim care orders, orders as to access under section 17 and orders for the recovery of children under section 32. Rather than listing all the different types of orders, it is proposed to simply refer to legal proceedings in relation to the care and protection of children. I hope that this will find agreement.

Amendment agreed to.
Question proposed: "That section 55, as amended, stand part of the Bill."

The withdrawal of amendment No. 188 was on the basis that I was very inclined to oppose section 55. As far as I am concerned it is not semantics. It is very important to have it clearly defined what the role of the executive is and what the entitlements of members are. Deputy Higgins suggested that there would be a section inserted by the Minister to the effect that policy matters would be considered in conjunction with all policy matters. The Minister's words were: "I can consider that". Does that mean he will consider it favourably?

He may consider it.

"Shall" consider it. On that basis, I will not oppose the section. However, I want to place on the record that I am very unhappy with the section as worded, but I will oppose it on Report Stage if the Minister does not reconsider the wording.

Question put and agreed to.
Section 56 agreed to.

Would the committee agree to a sos?

I would like us to consider section 57.

We will be delighted to oblige.

I have another meeting at 8 p.m. There is no possibility of resuming after a sos.

I think we should work until 7.30 p.m. and see how far we get.

I have to advise that this section will take some time. This is very important in view of the Supreme Court's recent pronouncements in relation to children's courts.

I am trying to be helpful as I can. In relation, for example, to section 57 (2) (b) I have to oppose imprisonment for life and it would take me a very long time to make that case. If people feel that rather than beginning a discussion and finishing it in 12 minutes we should have a break now——

I will be considering withdrawing section 57 altogether in the light of the Government's other Bill.

I welcome the Minister's indication of his thinking in relation to withdrawing section 57. It is a very progressive consideration. Whether he wants to take it tonight or again——

If Deputy Yates makes his contribution I will respond and that might help to clarify the position.

I have an amendment to section 57 which does not deal with the substantive aspect. It deals with the establishment of children's courts. You will be aware that the new Government appointee to the Supreme Court made a major pronouncement about this and I have received advice to the effect that this legislation may be unconstitutional without reference to children's courts. That will take some time. It does not deal with the death sentence as such but it is still appropriate. I have my amendment down on this children court and I want to come back to that the next day.

My position is that obviously the Minister is anticipating somewhat; I welcome that anticipation. If he is thinking of withdrawing the section altogether there are two points to it. First of all, the survival of the death sentence under the age of 18 years is barbaric as, indeed, are some surviving penalties directed at children. The sooner they all go the better. I have a certain difficulty about it and that is that if the Minister withdraws the section the question we must ask is: are we passing a child care and protection Bill in a vacuum, anticipating the abolition of the death sentence in other legislation? Quite frankly, in the modern drafting of legislation, the substitution of the death penalty by imprisonment for life is, to me, an unacceptable principle.

On a point of order, all this discussion is out of order in my view. This is showing what is in your hand without everybody showing what is in their hands. The position is that we will have to meet on another day to complete the Bill. If we are going to have another substantial meeting we may as well cover this point as well as other points.

Progress reported: Committee to sit again.
The Committee adjourned at 7.05 p.m. until Tuesday, 29 May 1990, at 5.30 p.m.