Special Committee Misuse of Drugs Bill, 1973 debate -
Tuesday, 20 Jan 1976

SECTION 4.

Mr. Haughey

I move amendment No. 15:

In page 5, subsection (1), line 49, to delete " may" and substitute " shall, after consultation with the appropriate registration authority ".

I should like to say by way of explanation that section 4 is a very important section. It is the section which makes the Bill workable so far as professional persons are concerned, who have to have recourse to these dangerous, or controlled drugs as we call them in the context of the Bill, in the course of their professions. Therefore, it is a very important section.

Section 3 is the general section which makes the having of a controlled drug in one's possession an offence. Section 4 goes on to enable doctors, pharmacists and veterinary surgeons, and people like that, to have legitimate possession in the course of the exercise of their professions. It seems to me that it is necessary, in the context of section 4 (1), to make it mandatory on the Minister to make these regulations. I must say I have a preference in all legislation for the definite approach. It is woolly to leave things to the discretion of the Minister unless it is absolutely necessary to do so. I have an instinctive dislike, in all legislation, for the use of the word " may" where Ministers making regulations are concerned.

It is quite absurd to suggest that there would be a possibility that the Minister might never make any of these regulations. Therefore, we should make it mandatory on him to make the regulations so that these professional people will know where they stand. It is a very important area and it should not be left vague. We should place some statutory obligation on the Minister to make the regulations which will enable these persons to go about their duties in the exercise of their professions. Otherwise the situation would be left vague and indefinite.

I recommend the amendment to substitute " shall " for " may " and I go on to provide what I think is a sensible measure, that is, that the making of these regulations shall only be done after the appropriate registration authorities have been consulted. It is a reasonable safeguard to put into this legislation that the Minister shall consult the professions involved before he makes the regulations. I do not think it is difficult to visualise that the advice of these professions would be helpful to the Minister in the drawing up of the regulations. Their members will have to operate under these regulations; they will have to go about their daily duties under the authority of these regulations and, therefore, it is only fair that they should be able to direct the attention of the Minister to the different circumstances and exigencies which apply to them in carrying out their professional duties.

Therefore, when the Minister is making the regulations he should consult with the appropriate professional bodies so that the regulations would, on the one hand, be precise and avoid any possibility of looseness and, on the other hand, that they would make life bearable for the professional people who would have to live by them. I believe my amendment is reasonable and would improve the section.

Mr. Corish

I had a different view as to what was in Deputy Haughey's mind when I read the amendment but his contribution has made it simpler. Subsection (2) states:

. . . the Minister shall exercise his power to make regulations. . . .

This refers to what we have described as qualified persons, members of the medical profession, dentists, veterinary surgeons and pharmacists. I am bound by this subsection to do that. There is merit in what Deputy Haughey has said about consultation with the appropriate registration authorities. This will be done if it is necessary and it may be necessary to make an amendment to ensure it is done. It was the intention to consult with the various professions who have registration authorities but there are other people who would, in certain circumstances, be handling drugs. The reason I object to " shall" rather than " may " is that I need a little more flexibility in dealing with such people.

It should be remembered that the professional people will not be the only persons handling controlled drugs. For example, we must consider nurses, gardaí who might have a controlled drug in their possession for a legitimate purpose—producing it as evidence in court—and those engaged in transport or as sales representatives. It would be impossible for me to undertake to make a global regulation in respect of all these people because I must have regard to their standing in a firm and to take account of the circumstances in which they have the controlled drug. I will make the regulations in accordance with subsection (2) and I will consult with the registration authorities. However, as far as the other people I have mentioned are concerned, I do not believe I can consult with what have been described as their " registration authorities". I do not believe the gardaí have a registration authority and the transport drivers are in a similar position. For that reason I would like to retain flexibility in respect of those. There is not a lot between us on this issue and I believe Deputy Haughey really wants stricter control, something with which we all agree but I must retain an amount of flexibility in respect of those people who would be outside the category of those who would have registration authorities.

Mr. Haughey

Is the Minister proposing to introduce some mandatory consultation under subsection (2)?

Mr. Corish

Yes.

Mr. Haughey

Will the Minister write it into subsection (2)?

Mr. Corish

Or perhaps in a new subsection. I do not know whether Deputy Haughey, when he tabled his amendment, had the people I have referred to in mind. As far as I am aware nurses have not a registration authority included in the definition section which is confined to the three professions mentioned. I believe the gardaí, customs officials and transport workers are in a similar position.

Mr. Haughey

Does the Minister accept the " shall" portion of my amendment? In other words, does the Minister accept that it is desirable to make it mandatory on him to make these regulations? Does he agree that it should not be left to word of mouth by the Department to say that it is in order for doctors or veterinary surgeons to have these things for the purpose of their professions?

Mr. Corish

I should like to retain a certain amount of flexibility because I would have to have concern for certain cases such as factories where controlled drugs are manufactured. While I would grant a licence in accordance with section 5 it would be, more or less, a global licence but one would have to specify the type of person who could handle a controlled drug which is tantamount to saying having it in his or her possession. It would be difficult to work it and that firm may not be exclusively engaged in the manufacture of controlled drugs. There could not be a global regulation to include everybody working in such a factory; I would have to be specific. As yet, I would not know what people to include or exclude. It is for that reason I would like to retain an amount of flexibility. It would ensure that global permission would have to be given for everybody in a factory to handle controlled drugs.

Mr. Haughey

I do not follow that. Section 3 creates an omnibus general offence for anybody to have a controlled drug in their possession but obviously we cannot leave the situation like that because some people, during the course of their employment or in the exercise of their profession, will have to have these drugs in their possession. Section 4 deals with the situation where these people are entitled to have these controlled drugs in their possession for certain purposes. In my view the Minister must make regulations so that these people will know where they stand.

It is not good enough for the legislation to leave it open to the Minister to make regulations or not to make regulations as he sees fit. It is possible that he would never make any regulations. I think the Bill should make it compulsory on the Minister, in the interests of the people concerned, to make regulations setting out the circumstances in which they can have these drugs in their possession.

Chairman

If I might express a personal viewpoint, surely one can make the point that if it were mandatory on the Minister to make such regulations, the multiplicity of the regulations would be enormous, covering people involved in manufacture, distribution and redistribution. It is correct that there should be strict control of possession but I can envisage circumstances in which the Minister would have to work day and night making regulations——

Mr. Haughey

Could you visualise a situation in which the Minister would not make any regulations?

Chairman

I know a large number of industrial workers in the distributive and transport industries who handle controlled drugs. They are responsible to employers. This is a section which enables these people to have those drugs at all in their possession. It enables certain persons in the course of their employment to have those drugs.

Mr. Haughey

Yes, and the Minister must make regulations indicating which persons can have them and in which circumstances. Otherwise the Minister might never make regulations and nobody could ever have the drugs in his possession.

Mr. Corish

I will have to make regulations covering particular circumstances and these could not be sufficiently well defined. Deputy Haughey has had more years experience as a Minister than I and he knows there have been situations in the House where Ministers will always come down on the side of " may " and those in Opposition will look for " shall".

Mr. Haughey

It is impossible that we should enact this legislation and leave the situation so that nobody could ever have controlled drugs in his possession without committing an offence. That is the reason for section 4, so that certain persons will have control of those drugs, whether an employee in a factory or a member of a profession. The Minister can make regulations enabling certain persons in certain circumstances to have those drugs in their possession. That is necessary, but I want it made mandatory on him to make these regulations and not to leave this up in the air. The Department might indicate to veterinary surgeons " You can have those drugs——"

Mr. Corish

I have agreed totally as far as qualified persons are concerned.

Mr. Haughey

Is the Minister agreeing to " shall "?

Mr. Corish

In respect of qualified classes who would be handling the drugs in the course of their profession, I do not think we can be definite. I would give a verbal undertaking to do this but I should like to retain a certain amount of flexibility having regard to the types of persons and the circumstances.

Chairman

On Report Stage we could have coverage for those who would be normally involved by registration. I could envisage regulations which would have to cover Aer Lingus who would be engaged in importation.

Mr. Corish

What did Deputy Haughey mean when he spoke about " after consultation with the appropriate registration authorities "? Did he mean qualified persons or those who would in certain circumstances be handling those drugs such as the Revenue Commissioners, the Garda, nurses and so on?

Mr. Haughey

No. I was thinking in terms of the medical profession. The Minister would not have to consult them. Under subsection (2) it is mandatory on the Minister to make regulations.

Mr. Corish

Yes, but I will have had discussion.

Mr. Haughey

The Minister must put that into subsection (2).

Mr. Corish

Yes.

Mr. Haughey

It seems to me that if persons are to have controlled drugs in their possession in the course of their jobs, then the legislation should provide that regulations shall be made, indicating the persons so entitled and the circumstances.

Mr. Corish

That is contained in section 4 (1) and I could not attempt to think about the various ranges of people——

Mr. Haughey

I can see the Minister's difficulty. However, as the Bill stands, the Minister might not make regulations and a docker who might have to take drugs from a ship and put them onto a truck would be unprotected. There is no obligation on the Minister as the Bill stands to make regulations.

Mr. Corish

There is an obligation on me in section 5 in respect of licences.

Mr. Haughey

Section 5 again has the " may ".

Mr. Corish

In granting the licences I would have to be specific and in giving permission to a company I would have to specify who could and could not handle the drugs in the course of manufacture, distribution and transportation. There is the added factor in respect of nurses. I would have to make regulations that only nurses with special experience could handle drugs, not controlled drugs generally but specific drugs. For instance, it might not be proper to allow trainee nurses to handle certain drugs when it would be to allow ward sisters or matrons to do so.

Mr. Haughey

I do not want to spend the whole afternoon on it but I think the Chairman sees the point I am making.

Mr. Corish

I recognise the Deputy's anxiety. As I said before, I know an undertaking is not enshrined in the legislation. Certainly it would be my intention to comply with what the Deputy says. Apart from this business of consultation with the appropriate registration authority, I would, say, consult with An Bord Altranais with regard to possession of drugs. But in respect of other people who might be handling drugs, it would be difficult to provide for regulations, and regulations would have to be made to ensure security et cetera.

Mr. Haughey

I cannot push it any further. I made the point that it should be mandatory on the Minister to make regulations for those people who might be caught within the ambit of the Bill, regulations indicating the circumstances in which they can have these drugs in their possession.

Mr. Corish

I do not know whether it would be appropriate to that section or not but there is a situation, for example, where somebody might come across a package and have a controlled drug in their possession and be liable to prosecution. A regulation would have to ensure that such a person would not be answerable to the courts for accidental possession.

Mr. Haughey

That would be a matter of evidence; the court would deal with that.

Mr. Corish

Anybody could say they found it.

Mr. Haughey

I know. Apart from outlandish circumstances we all know that there will be certainly a number of categories of people who, in the normal course of their employment, will have to have these drugs in their possession, thereby leaving themselves open to prosecution unless they are protected by regulation. I want to make it mandatory on the Minister to make regulation in that sort of case if he thinks there is substance in my point, he can consider it.

Chairman

In any event, we will have an amendment on Report Stage in relation to the other aspect.

Mr. Corish

As far as the word " shall " or " may " is concerned, I will undertake to consult the draftsmen but the use of the word " shall " seems to be less binding. Certainly I want to ensure, as does Deputy Haughey, that there will be the tightest control possible.

Chairman

Is the amendment withdrawn on that understanding?

Mr. Haughey

Yes, and that sub-section (2) will be amended to make some provision for consultation, where appropriate.

Mr. Corish

The Deputy is clear that it would be just the ones included in the definition section?

Chairman

Yes.

Mr. Corish

Looking at the words " appropriate registration authority ', I suppose in the ordinary course of events, as I said, I would consult with An Bord Altranais.

Mr. Haughey

Deputy Briscoe suggests to me here that we consider omitting the word " registration ".

Chairman

And say " the appropriate authority "?

Mr. Haughey

Yes.

Amendment, by leave, withdrawn.

Chairman

I would point out that we have already discussed amendment No. 16 in conjunction with amendment No. 2.

Mr. Corish

I move amendment No. 16:

In page 6, subsection (2), to delete " qualified person " and substitute " practitioner or pharmacist " in line 1.

Mr. Haughey

The Bill got into such a disorganised state I am not clear whether, in the Minister's amendment No. 16, "practitioner" covers everybody.

Mr. Corish

It covers the medical people, dentists and the veterinary people——

Mr. Haughey

But not pharmacists, so they have to be added.

Mr. Corish

I suppose they could not be regarded as practitioners in the real sense.

Mr. Briscoe

It could be said that there are many practitioners who are quack practitioners, who are not qualified practitioners.

Mr. Corish

They would have to be registered practitioners.

Amendment agreed to.

Section 4, as amended, agreed to.