IN COMMITTEE ON FINANCE. - MEDICAL PRACTITIONERS BILL, 1927—THIRD STAGE (RESUMED).
The Dáil went into Committee.
SECTION 3 (3).
(3) The Council shall consist of nine members nominated or elected from time to time as follows, that is to say:—
(a) one shall be nominated by the Executive Council,
(b) one shall be nominated by each of the following bodies, that is to say, University College, Dublin; University College, Cork; University College, Galway; the University of Dublin, and the Apothecaries' Hall of Ireland.
(c) one shall be nominated jointly by the Royal College of Surgeons in Ireland, and the Royal College of Physicians in Ireland, and
I move:—
In sub-section (3), page 4, line 24, to delete the word "nine" and substitute the word "eleven," and in line 26 to delete the word "one" and substitute the word "two," in line 30 to delete the word "and," and in line 31 to delete the words "(c) one shall be nominated jointly by."
The effect of the amendment is to alter the number of members of the Council from nine to eleven to provide what was not provided in the Bill as introduced, namely, a separate representation for the College of Physicians and College of Surgeons, and, in order to secure the appropriate balance in the Council, keeping to odd numbers, to take an additional representative for the Executive Council.
The amendment means that the two Colleges, the Royal College of Surgeons (Ireland) and the Royal College of Physicians (Ireland), have each a representative. That was not made quite clear last evening, but it is now quite clear what the amendment means.
Amendment put and agreed to.
Question—"That Section 3, as amended, stand part of the Bill"—put and agreed to.
Question—"That Sections 4 and 5 stand part of the Bill"—put and agreed to.
SECTION 6 (2).
(2) Whenever a vacancy (in this Act called a casual vacancy) occurs in the membership of the Council by reason of the death, resignation, or disqualification of a direct representative or of a person elected under this sub-section to fill the place of a direct representative, the Council shall at its next meeting but one after the occurrence of such vacancy elect a registered medical practitioner resident in Saorstát Eireann to fill such vacancy.
I move:—
In sub-section (2), page 5, line 15, to delete the word "sub-section" and substitute the word "Act," and to delete all from the word "the" in line 16 to the end of the sub-section and substitute the words "a registered medical practitioner resident in Saorstát Eireann shall be elected to fill such vacancy by the persons who are for the time being registered medical practitioners resident in Saorstát Eireann."
This is an amendment by the Minister for Industry and Commerce accepting the principle of Deputy Doctor Hennessy's amendment. It provides, in effect, for a bye-election in the event of a casual vacancy, created by the death or resignation of one of the representatives of the medical practitioners.
The point was that, in the case of a vacancy, it was provided in the Bill that the Council should co-opt a member, but it was pointed out that, if two casual vacancies occurred and if two members were co-opted, the medical practitioners would be deprived of representation for three or four years. This amendment seeks to amend that so that an election would take place instead of co-option.
The Minister's amendment meets the principle involved in the amendment which stands in my name. I therefore will not move my amendment.
Amendment put and agreed to.
Question—"That Section 6, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 7 stand part of the Bill"—put and agreed to.
SECTION 8.
(1) As soon as may be after the passing of this Act the Minister shall hold an election of two direct representatives to be members of the Council and shall also send to every authority and body (other than the Executive Council) entitled under this Act to nominate or join in nominating a member of the Council a notice in writing requesting such authority or body to nominate or join in nominating (as the case may require) a member of the Council.
(2) On the completion of such election of such two direct representatives or the expiration of one month from the sending of the notice mentioned in the foregoing sub-section (whichever last happens) the Minister shall communicate to the Executive Council the names of the two direct representatives so elected and the names of the members of the Council nominated by authorities and bodies other than the Executive Council and shall at the same time request the Executive Council to nominate a member of the Council.
(3) When the Executive Council has nominated a member of the Council pursuant to such request the Minister shall publish in the "Iris Oifigiúil" a notice declaring the Council to be established as on and from a date named in such notice and stating the names of the persons elected and nominated in pursuance of this section to be members of the Council.
(4) If any authority or body (other than the Executive Council) entitled under this Act to nominate or join in nominating a member of the Council fails so to do before the publication in the "Iris Oifigiúil" of the notice mentioned in the foregoing sub-section, such failure shall be stated in such notice but shall not invalidate or prejudice the establishment of the Council or disentitle such authority or body subsequently to nominate or join in nominating (as the case may be) a member of the Council.
I move:—
In sub-section (1), page 5, line 40, to delete the words "or join in nominating," and in line 42 to delete the words "or join in nominating (as the case may require)."
This amendment provides for the deletion of the words "or join in nominating." There are a good many amendments of that kind, and they are entirely consequential on the decision to give separate representation to the College of Surgeons and the College of Physicians. These are necessary consequential amendments arising out of the change made in that respect.
Amendment put and agreed to.
I move:—
In sub-section (2), page 5, lines 51 and 52, to delete the words "a member" and substitute the words "two members."
This is a consequential amendment.
Amendment put and agreed to.
I move:—
In sub-section (3), page 5, line 53, to delete the words "a member" and substitute the words "two members."
This is also consequential.
Amendment put and agreed to.
I move:—
In sub-section (4), page 5, lines 60 and 61, to delete the words "or join in nominating" and on page 6, lines 1 and 2, to delete the words "or join in nominating (as the case may be)."
This amendment is also consequential.
Amendment put and agreed to.
Question—"That Section 8, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 9 stand part of the Bill"—put and agreed to.
SECTION 10.
(1) Not more than two months nor less than one month before every expiration of the term of office of the nominated members of the Council, the Council shall send to every authority and body entitled under this Act to nominate or join in nominating a member of the Council a letter notifying such authority or body of the date of such expiration and requesting such authority or body to nominate or join in nominating (as the case may require) a person to become and be a member of the Council on such expiration.
(2) Every authority or body nominating or joining in the nomination of a member of the Council shall, in the case of a nomination made before the establishment of the Council, communicate to the Minister and, in the case of a nomination made after such establishment, communicate to the Council in writing the name of the person so nominated or jointly nominated by it and no such nomination shall be complete until the name of the person nominated has been so communicated to the Minister or the Council (as the case may be) by the body or authority or all the bodies or authorities making such nomination.
I move:—
In sub-section (1), page 6, lines 21 and 22, to delete the words "or join in nominating," and in lines 24 and 25 to delete the words "or join in nominating (as the case may require)."
This is a consequential amendment.
Amendment put and agreed to.
I move:—
In sub-section (2), page 6, lines 27 and 28, to delete the words "or joining in the nomination of," and in line 32 to delete the words "or jointly nominated," and in lines 35 and 36 to delete the words "or all the bodies or authorities."
This amendment is also consequential.
Amendment put and agreed to.
Question—"That Section 10, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 11 stand part of the Bill"—put and agreed to.
NEW SECTION.
I move:—
Before Section 12 to insert a new section as follows:—
(1) As soon as may be after the occurrence of a casual vacancy in the membership of the Council by reason of the death, resignation, or disqualification of a direct representative or of a person elected under this Act to fill the place of a direct representative the Council shall appoint the President of the Council if he is willing to act or if he is not so willing some other member of the Council willing to act to be the returning officer for the election of a person to fill such vacancy.
(2) Every returning officer appointed under this section shall immediately upon his appointment hold an election in accordance with this Act to fill the vacancy which occasioned his appointment and every such election shall be conducted in accordance with the Rules set forth in the Third Schedule to this Act and such other Rules (if any) not inconsistent therewith as the Minister shall think proper to make.
(3) Every returning officer appointed under this section shall immediately upon the completion of the election for which he was appointed communicate in writing to the Council the name of the person thereat and such other information in relation to such election as may be prescribed by regulations made by the Council.
(4) Every returning officer appointed under this section shall be entitled to the assistance of the officers and servants of the Council in the holding of the election for which he was appointed.
This amendment provides the administrative machinery for carrying out the by-election, about which I spoke a while ago, in connection with a vacancy caused through the death or resignation of one of the medical representatives on the Council.
Amendment put and agreed to.
Question—"That the new section be added to the Bill"—put and agreed to.
Question—"That Section 12 stand part of the Bill"—put and agreed to.
SECTION 13.
(1) The Council shall appoint a register (in this Act referred to as the registrar) and may appoint such other officers and servants as it thinks proper.
(2) The registrar and every other officer and servant of the Council shall receive such remuneration and be subject to such conditions of service as the Council shall direct.
I move:—
In sub-section (2), page 7, line 33, to delete the words "as the Council shall direct" and substitute therefor the words "as shall be determined by the Council with the approval of the Minister and the consent of the Minister for Finance."
Amendment put and agreed to.
Question—"That Section 13, as amended, stand part of the Bill"—put and agreed to.
Question—"That Sections 14 to 17, inclusive, stand part of the Bill"—put and agreed to.
SECTION 18.
The Council may by regulations made by it prescribe all or any of the following things, that is to say—
(a) the procedure of the Council at its meetings and otherwise,
(b) the returns to be made to the Council in respect of elections or direct representatives by returning officers for such elections,
I move:—
On page 8, line 25, after the word "representatives" to insert the words "or of persons to fill casual vacancies."
This is consequential. It is necessary, in addition to the two direct representatives, to mention the persons who are also to fill casual vacancies. This arises out of an amendment which we accepted on that matter.
Amendment put and agreed to.
Question—"That Section 18, as amended, stand part of the Bill"—put and agreed to.
Question—"That Sections 19 to 25, inclusive, stand part of the Bill"—put and agreed to.
SECTION 26.
Any person registered in the register shall, at any time after his first registration therein and on making the prescribed application and paying the prescribed fee be entitled to have entered in the register in addition to his qualifications then already entered therein—
(a) any qualification the possession of which would entitle him to registration in the General Register, and
I move:—
In line 19, page 11, to delete the word "general."
This is a small amendment. The word "general" was inserted twice by mistake.
It is necessary to correct a mistake in the Bill.
Amendment put and agreed to.
Question—"That Section 26, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 27 stand part of the Bill"—put and agreed to.
SECTION 28.
I desire to draw attention to the fact that sub-section (4) of Section 28 makes provision for an appeal to the High Court and also for the evidence of persons of standing in the medical profession. I suggest to the Minister that, on the Report Stage, he might consider the propriety of making provision so that the High Court might be assisted by a medical assessor.
The question of providing for a medical assessor was considered and rejected after consideration. A medical assessor on a matter of that kind would, of course, give the court assistance from the point of view of a distinguished member of the profession, a member of standing and repute, but, in point of fact, where matters of professional conduct, or misconduct, are concerned it is not so much the point of view of an individual that one must aim at as the public opinion of the profession, so to speak. One could imagine individuals of quite high standing taking different views on the same issue. I do not think that we could do better than leave it to the appellant on one hand and the Council on the other to marshal as many eminent members of the profession as each can to give the court the assistance of their views. I know that the Minister has discussed and considered the question of assisting the court with something in the nature of an assessor chosen from within the profession, and that he decided not to embody a provision of that kind in the Bill. It is however, open to the Deputy to discuss it further with the Minister on Report.
Question—"That Section 28 stand part of the Bill"—put and agreed to.
SECTION 29.
(1) The Council may at any time hold or appoint any person to hold an inquiry into the conduct of any person registered in the register who is alleged to have been guilty of conduct which is infamous in a professional respect, and the Council or the person so appointed (as the case may be) shall have power to summon witnesses to attend such inquiry and to examine them on oath and for that purpose to administer an oath to such witnesses and to compel such witnesses to produce any documents in their power or control the production of which the Council or such person (as the case may be) considers necessary for the purpose of such inquiry.
I move:—
In sub-section (1), page 12, line 25, to delete the word "person" where it first occurs in that line and substitute therefor the words "members or member of the Council" and in lines 28 and 33, in sub-section (1) and line 36 in sub-section (2), to delete the word "person" and substitute therefor in each case the words "member or members."
The point of this amendment is that this body has a very definite set of duties to perform and we feel that if there is to be any question of delegation of its task, or any part of its task, it should be to a special Committee of itself—that it ought not to be open to the Free State Medical Council to assign to some person outside that body the task of investigating charges in a particular case. It might be convenient for the Council to appoint two or three of its members to investigate and report, but the Council ought not, we feel, to go outside its own ranks and delegate to some person, not a member of the Council, any part of its task of investigation.
I am glad this amendment was tabled. It was represented to the Minister the great objection there would be to the process which has been referred to.
Amendment agreed to.
Question proposed—"That Section 29, as amended, stand part of the Bill."
Is the Minister satisfied as to the powers of the Council or the persons appointed by this section?
Has the Deputy any criticism to offer or does he suggest that the powers are inadequate?
It is a question as to whether there is not undue power given. I am not quite satisfied as to the wisdom of giving the members of the Council, or the persons appointed, power to administer an oath. I do not know whether the Minister has considered the matter fully.
The General Medical Council has no such power. That was put before the Minister, but he thought it advisable this provision should be inserted in the Bill. Whether it is a good provision or not, I am not in a position to say.
I do not see any objection to the provision. The Local Government Department frequently hold inquiries on oath. Its inspectors, I think, are empowered to hold such inquiries. We do not think it is unwise, where a man's reputation and whole professional career are in the balance, to give to the body that must try that issue the power to take evidence on oath. It is a very serious matter for any practitioner to be struck off the register. His whole life and career are in the balance. The tribunal that must decide that issue ought to have power to put its witnesses on oath. If there is a very serious view to the contrary, we are prepared to consider it, but that is our own view of the matter.
There are different opinions held about the question. The point that occurs to me is that if evidence is to be taken on oath it makes necessary the presence of some legally-qualified person to see that the evidence is taken in a legal manner. Otherwise, it is quite conceivable that difficulties would arise, particularly if there were a subsequent appeal. If the Minister would inquire into the position, I would be prepared to bring the question up on Report.
I have very little doubt that a practitioner fighting for his professional existence will be legally represented before this body. There is nothing in the Bill which would restrict the Council, if they felt that they had need of legal assistance, from engaging some person. I should think that most of the persons appearing before this Council in the position of defendants will probably take the precaution of being represented by a legally qualified person.
I was looking at the matter more from the point of view of the Council.
Would the Minister consider the advisability of empowering the Council, as one of its ordinary functions in an investigation of this kind, to have a legal assessor? I quite agree with him that if there is a question of the professional reputation and future of a man at stake, the evidence tendered against him or for him ought to be on oath, and that witnesses should not be permitted to withhold their evidence under anything less than the penalty prescribed in the Bill. There is always in these cases the technical difficulty of the law of evidence. As the Minister knows, there is nothing more difficult for a court to determine than what exactly is evidence. There is, for instance, the question of hearsay. This section would be, to my mind, highly satisfactory, provided it were clearly stated that the practitioner before the Council should be entitled to be represented by counsel and that the Council should also be empowered to have its legal assessor on such a trial.
At the General Medical Council the defendant has always his own counsel.
I will discuss that with the Minister for Industry and Commerce. It is a question, simply, whether or not the Council would require express powers for this purpose so long as there is nothing prohibitory in the Bill. I should have thought that under the Bill as it stands it would be open to the Council, in any particularly difficult case where they thought there was need for it, to have the assistance of someone who would keep them right on matters arising out of the law of evidence. Clearly, that is a point to be considered—whether there is need for an express provision in the Bill empowering the Council to have such assistance. I will have the point looked into.
There is one point I might draw attention to. The Council "may hold, or appoint any person to hold, an inquiry——"
That has been altered by amendment.
So long as those words were there, they put the Medical Council in a position to employ a legal judge of these affairs. But then the point is still left in doubt as to whether the practitioner is entitled to have the benefit of counsel to represent him, it seems to me, from the reading of the Bill, that the Council would have such complete power that it could refuse this privilege. So long as there is opportunity for the Council to refuse to permit a man, who is practically on his trial before what is practically a court, to have legal assistance, it would scarcely be ideal justice.
These are certainly points of substance which might properly be raised on Report. I take it that the discussion raises two questions —(a) is there need for specific provision to ensure that a person in the position of a defendant may be legally represented before the Council and (b) is there need for specific provision to ensure that the Council may, if they consider it necessary, have the assistance of a legal assessor in matters of evidence, and so on. I will mention those two matters to the Minister in charge of the Bill.
I think this matter should be taken along with sub-section (2) of Section 3, which specifically states that the Council may sue and be sued. It is in connection with that that difficulty may arise.
Question put and agreed to.
Sections 30 to 40, inclusive, agreed to.
SECTION 41.
(6) The member of the Council nominated under this Act solely by a body to whom an order made under this section by the Executive Council relates shall while such order remains in force cease to be a member of the Council and such body shall not while such order remains in force nominate or join in nominating any person to be a member of the Council, and if such body is entitled to join with another body in the nomination of a member of the Council such other body shall while such order remains in force be entitled to exercise such right of nomination alone.
I move:—
In sub-section (6), page 16, line 34, to delete the word "solely," and in lines 37 and 38 to delete the words "or join in nominating," and to delete all from the word "and" in line 38 to the end of the sub-section.
This amendment is consequential and arises out of our alterations in the composition of the Council.,
Amendment agreed to.
Section, as amended, agreed to.
Sections 42 to 44, inclusive, and First and Second Schedules agreed to.
THIRD SCHEDULE.
Rules for the Election of Direct Representatives.
Rule 1. Every candidate shall be nominated in writing and every such nomination shall be signed by not less than twelve registered medical practitioners resident in Saorstát Eireann.
Rule 2. Every person entitled to vote at the election shall be entitled to vote for two candidates and no more.
Rule 10.—When the counting of the votes is completed the returning officer shall send the names of the persons elected and such other particulars relating to the election as may be required under this Act in writing signed by him to the Minister or the Council as the case may require.
I move:—
In the title, page 20, line 23, after the word "representatives" to add the words "and of persons to fill casual vacancies."
Amendment agreed to.
I move:—
In Rule 2, page 20, line 28, to delete the words "the election" and substitute the words "an election of direct representatives," and in line 29, after the word "more" to add the words "and every person entitled to vote at an election to fill a casual vacancy shall be entitled to vote for one candidate only."
Rule 2, as it is proposed to amend it, seems to read as follows:—
"Every person entitled to vote at an election of direct representatives shall be entitled to vote for two candidates and no more, and every person entitled to vote at an election to fill a casual vacancy shall be entitled to vote for one candidate only."
There is a possibility that two vacancies might occur at the same time, in the event of two representatives resigning, and there is no provision to meet that.
There would be two separate elections.
I think there ought to be a change made in the direction Deputy Hennessy has pointed out. There might be two casual vacancies, though it would happen but rarely.
The difficulty would be met by treating them as two separate elections.
In point of fact, if we decide to make this change, other changes will have to be made. There is no provision, so far as I know, in the Bill for the contingency of the two direct representatives of the profession vacating office at the same time. I suggest that the practical remedy for that position is that suggested by Deputy Thrift—that there be in fact two elections.
Even suppose you had the very unlikely contingency of those two seats on the Council falling vacant simultaneously, it seems to me there is no special difficulty about the election to fill one seat, being held on one day and an election to fill the second seat on another day. But it just so happens that in a great many sections in which the matter arises there would need to be small drafting changes, if you think it is necessary to provide for that contingency of simultaneous vacancies of the two seats directly representative of the profession.
There is a possibility of two resignations occurring at the same time. Something might arise in the Council that the direct representatives of the profession might not be satisfied about, and the two of them might send in their resignations simultaneously.
Does the Deputy see a great difficulty in dealing with the situation by means of two elections?
I think it would be desirable—even it would save expense —to have the two elected on the one voting paper.
It does not get you a true election.
I suggest to the Minister that unless a definite provision is made the tendency would be to follow the practice laid down in the Electoral Act. We know that when there were two simultaneous vacancies in North Dublin and North Leitrim there were, as a matter of fact, two separate elections.
We are talking about things that are scarcely analogous. In so far as this election would be analogous to any elections of the Dáil, it would be to a University. But there is a point of substance in it. It is a question whether a joint election is a true election, for this reason: Let us suppose that there are two vacancies, and eight or ten candidates, and you vote on the same paper for two persons. That is one position. The other position is that you proceed to fill one of the vacancies and then, with due advertence to the result of that election and who was the person who got in and who were the persons who did not, you proceed to have your second. A man might vote differently, according to the way the election was taken. You might get a different result. I am not sure whether, if you are out for a deadly accurate reflection of the wishes of the resident practitioners, it would not be better to have separate elections, because a man might vote on the second election with advertence to the first, and so on.
Why not put that in for the election that will take place for five years? If it is good for one thing it is good for the other. I am quite willing to accept what the Minister suggests.
I agree that the course suggested by the Minister is more desirable, undoubtedly, but I think we should consider whether some specific provision should not be made, because the returning officer will be liable to copy the Parliamentary practice, even in the Universities, if there are two simultaneous vacancies.
We cannot make provision for any case of hysteria that there is in the country. You must assume that the body elected will be responsible men, and that they are not going to go out in a hurry. If they are they will have to wait until they can get a second man in, and until they get a perfectly true reflection of the electors' opinion for such cases as may arise in which two medical officers elected would retire. I do not think we ought to make provision in the Bill. I think the Bill is all right as it stands.
Amendment put and agreed to.
I move:—
In Rule 10, page 21, line 2, after the word "names," to insert the words "or name," and after the word "persons" to insert the words "or person."
Amendment put and agreed to.
Question—"That the Third Schedule, as amended, be the Third Schedule of the Bill"—put and agreed to.
Title put and agreed to.
Ordered—That the Bill be reported with amendments.
The Dáil went out of Committee.
Bill reported, with amendments.
Report Stage ordered for to-morrow.
Message received that Seanad Eireann has passed the Land Bill, with certain amendments, and the Road (Motor Services) Bill, with certain amendments.
Sitting suspended at 6.30 and resumed at 7.15 p.m.,AN LEAS-CHEANN COMHAIRLE in the Chair.
