The Dáil is adjourned by order until Tuesday, but on the motion for the adjournment notice was given of a question by Deputy Tadhg Murphy.
ADJOURNMENT DEBATE. - APPOINTMENT OF A SOUTH CORK MEDICAL OFFICER.
Mr. MURPHY
I gave notice, after question time to-day, that I would raise a certain matter that was the subject of a question of mine yesterday. That matter is the failure of the Local Government Department to give the necessary sanction to the proposed appointment by the South Cork Board of Health of an existing Medical Officer when a dispensary district became vacant. Now, the question proposed to the Minister was as follows:
"To ask the Minister for Local Government and Public Health whether he is aware that sanction has not yet been given to the proposal of the South Cork Board of Assistance to appoint Dr. E.F. Nyhan, Johnstown, County Cork, to the vacant dispensary district of Carrigaline, and if he will state why sanction has not been given to the proposal to transfer Dr. Nyhan from one Board of Assistance area to another."
I regard this matter as one in which a very important principle is involved. It is not raised because of the merits of the appointment itself or because of any particular person interested in the appointment. I regard it as one in which the principle is of retaining and guarding whatever freedom the local authorities still enjoy since the passing of the Local Appointments Act. I have no doubt as to the value of the Local Appointments Act. I regard it as a measure from which a great deal of good has accrued, and it is because of that, and because I recognise that local authorities have still some rights and ought to have still some freedom that a matter of this kind is very worthy of discussion in the House. The facts in this case are as follows:—Some months ago a vacancy occurred in this particular district. The Board of Assistance notified all the medical officers in that particular area that a certain vacancy existed. In response to that no application from any existing officer in that area was received. In fact, only one application was received, and that happened to come from an existing medical officer with practically twenty years' service, who happened to be, at that particular time, the employee of another Board in Cork County. Nothing has been said against the merits of the appointment so far as the particular candidate was concerned. He had been twenty years in the public service and performed his work satisfactorily and well. Perhaps he never had sufficient influence to get out of the remote country district and receive the promotion his merit and abilities would entitle him to. In view of the fact that the principle of the Local Appointments Act is to secure efficiency and ability of the best type, I suggest that there was no reason whatever why an appointment of that kind should not have been ratified in the ordinary way. It is evident that even in the minds of the officials in the Department who failed to accede to the appointment of the Board of Health in this case there was some doubt as to the wisdom or even the legality of the action they took in this matter, because their statement is that the most desirable way of filling this vacancy was by application in the ordinary way through the Local Appointments Commission. You will notice, in the first instance, at any rate, that there was no definite refusal to sanction this appointment, and it was only in the reply of the Minister to the question addressed to him yesterday that he has definitely stated he was unable to accede to the request of the Board for sanction in this case. I am anxious to know, and really that is the point of raising this matter, why sanction has not been forthcoming in this case. There is nothing in the Local Appointments Act so far as I can read it to preclude any local authority in any particular county or any other portion of the State from appointing to a position like this any existing officer.
Section 5 of the Local Authorities (Officers and Employees) Act, 1926, runs as follows:—
(1) An appointment of a person to fill an office to which this Act applies may, subject to the sanction of the Minister, be made by a local authority without requesting or obtaining a recommendation from the Commissioners under the subsequent provisions of this Act if, but only if, the appointment is made within three months after such office became vacant or (in the case of an appointment to a new office) was created and the person so appointed is a person who at the time when such office became vacant or was created (as the case may be) either:—
(a) held a pensionable office under the said or any other local authority or any two or more local authorities the duties of which related to matters the same as or similar to the matters to which the duties of the vacant office relate.
The terms of the Act are very clear and there is no answer even in law to be given for the extraordinary action of the Department of Local Government in this matter. Here an appointment is made that is in accordance with the spirit, and so far as I can read it, the actual Terms of the Act of Parliament, and sanction has not been given to that appointment. I regard that as a very important matter, and I suggest in view, of the fact that the powers of local authorities are very restricted in matters of this kind that there should be no further filching away of the powers and rights of local authorities in this connection. The Minister may claim that he is not satisfied that the local authority in one particular portion of a big county like Cork would be able to pick out of that county the best person for a position of this kind. If that is so there is nothing to show and there is no right to assume that a local authority even from amongst its own employees would be able to appoint the proper person to fill a position of this kind, and the obvious thing for the Minister and the Department to say is that local authorities should have no rights in this matter, that each appointment of this kind should be made through the Appointments Commission. It seems that is the claim the Department is making and the claim underlying the action they have taken in this matter.
On some other occasion I hope the House will resist any claim of this kind. I hope it will say the local authorities will and are entitled and should be allowed to give promotion to men who by their service and ability have shown themselves fit to merit it, it being the recognised principle in all services that ability, merit and services are qualifications for promotion. I am particularly keen on this matter for more reasons than one, because as far as I can remember the particular section I am relying on was inserted in this Act at the request of the party I am associated with. I would like to hear from the Minister a much more satisfactory explanation than was contained in the answer to the question addressed to him on this matter. I hope it may be possible even yet to have an assurance that this particular case will be reviewed in the light of the facts I have stated. Otherwise it seems to me colour will be given to the contention of a number of people in this country who have held that view, which I do not share up to the present at any rate in connection with the Local Appointments Act, that the sole aim and object of the Act have been to restrict the powers of local authorities and reduce their authority in matters of this kind to a shadow. The proof that that is not so can be provided if we have an assurance that this matter will be looked into and that in future local authorities wishing to act in a bona fide fashion in connection with matters of this kind and utilising the powers vested in them by the Act itself will not be hampered in the discharge of their work in that direction. If sanction is refused in this case the appointment will be made by the Local Appointments Commission. A good many Deputies in this House have experience of the time it takes for the Local Appointments Commission to make such appointments. I remember hearing questions addressed to the President here from time to time in connection with the extraordinary delay that took place in several counties in the Free State in connection with such appointments. I know of cases in my county where local authorities are awaiting recommendations in connection with appointments of this kind for months. Such a delay is not good for the taxpayer who has to pay a much heavier charge than the normal one for substitutes for the medical officers in the meantime.
Neither is it good for the poor who are dependent for the treatment of themselves and their children, in case of illness, on the medical officers. There is one thing which makes a medical officer particularly interested in his work, that is the permanent nature of his office. These prolonged delays in the making of appointments are unsatisfactory, for the reasons I have stated. If the claim of the Board, to which I have referred to-night, had been admitted, no delay would have been caused in this case. I suggest that the failure of the Department to agree to the principle contended for by the Board is, at least, a departure from the spirit of the Act. It is a departure that should not receive sanction. It is a departure that local authorities will be justified in resisting if and when they come up against a situation such as I have endeavoured to describe. I should like to hear from the Minister a much more satisfactory explanation than we have had in this case up to the present. I should like to know exactly on what grounds sanction is withheld to the appointment and how the attitude of the Department can be reconciled with the duty of the Department to do its work in the public interest and in the public interest alone.
As a member of the South Cork Board of Health, which is concerned with this appointment, I desire to support the plea which Deputy Murphy has made. Dr. Nyhan attended before our Board and put his case forward. He had been in the medical service for nineteen years. That period he spent in an out-of-the-way district of West Cork. Surely an official who has given efficient service for that length of time is entitled to promotion. Dr. Nyhan had given satisfactory service during that period and was anxious to get in somewhere near the City of Cork, so that he might educate his family. In the district in which he was, there were no opportunities for education. I think the attitude of the Local Government Department in this particular case is very unfair. The Board unanimously appointed Dr. Nyhan, and for the Department to interfere now is unfair. If an official cannot expect promotion after nineteen or twenty years' faithful service, I think it is very hard. In this case, it is very unfair if Dr. Nyhan is to be kept in an out-of-the-way district after 19 or 20 years' service.
Although I am not a Cork Deputy or a Cork man, I should like to intervene in this debate for a few moments. If my interpretation of Deputy Murphy's motion is correct, it would seem that he has good grounds for believing that the Minister for Local Government and Public Health has some idea of setting aside Section 5 of the Local Authorities (Officers and Employees) Act. That is the only section that provides for promotion. I am not particularly jealous of the rights and privileges of local authorities, but I think one of the best sections of that Act was that providing for promotion—the section which gave a man who attended to his business a reasonable expectation that he would be rewarded by promotion. In the present instance I believe promotion is justifiable. I know the doctor mentioned. He is in a very backward district—one of the most backward in Ireland, if I may say so with due respect to Cork. I think it will be admitted by everybody that a man who has given good service in a district like that should not be debarred from promotion. If this appointment be referred to the Appointments Commissioners, they must make a new appointment. The Appointments Commissioners cannot deal with promotion. For that reason, I would ask the Minister, if he is satisfied that a proper promotion has been made—that promotion has been given on the merits—to issue his sanction forthwith.
I support Deputy Murphy on this question. As one associated for a long time with local authorities, as one who was interested in the passing of this Act dealing with local appointments, and as one connected with one of the few public bodies in the country that welcomed the Act, I have to say that, in my opinion, the Minister for Local Government and Public Health has completely overreached himself in declaring that promotion of this kind cannot be made by local authorities. Section 5 of the Act reserves to local authorities the right to deal with appointments within three months, on certain clearly-defined conditions. If those conditions are complied with, I do not see that the Minister can have any case.
The powers and privileges of local authorities have been considerably curtailed. Perhaps that is a very good job. But, seeing that their powers have been curtailed, I think it is unwarranted that the privilege they retain—the privilege of promotion— should be stolen from them by the Minister. I do not want to go into the question very deeply, because I have a similar motion down for next week. I do not desire to say more now than that I support Deputy Murphy very strongly on behalf of the local authorities. Local authorities all over the country will feel that they have a genuine grievance if this matter is allowed to go unchallenged, and, if their right is not conceded, I feel sure there will be a fight.
What I have got to say in this matter I should like to be taken in the nature of a request to the Minister for Local Government and Public Health to reconsider his decision refusing sanction to this appointment. I feel certain that he does not want to act in any way at variance with the carefully-considered opinions of the local authority. I suggest, therefore, that the Minister should reconsider the only reason which he apparently has for refusing to sanction this appointment—that the doctor does not happen to be in the actual area of the South Cork Board. I would ask the House and the Minister to remember that the doctor is resident in an adjoining area. Doctor Nyhan has proved himself, by the service he has rendered in the West Cork area, a most painstaking and efficient medical officer. For that reason, it is the opinion of the people resident in South Cork, as well as the opinion of the members of the South Cork Board, that Dr. Nyhan should be appointed. They suggest that he should be appointed for that reason and for no other reason. I am nearly certain that the Minister had not sufficient information before him when making this decision. If he had full information before him, I feel absolutely certain that he would take no other course than that of sanctioning Dr. Nyhan's appointment. He would do that, I am sure, if for no other reason than as a mark of appreciation of a medical officer who rendered good and faithful service to the poor under the West Cork County Board.
This case shows what an absurd position we can get ourselves into. We have Deputy French and Deputy Hennessy getting up and discussing in the House the merits and qualifications of a particular dispensary doctor. We have Deputy Brennan, from County Roscommon, talking about a right that has been taken away from a particular body in County Cork.
From public bodies generally.
The question is: what right has been taken from them? A vacancy occurred under the South Cork County Board of Public Assistance for a dispensary medical officer. They circularised the dispensary doctors in their own area, pointing out that this vacancy existed and that the Board were prepared to fill it by promotion—that they would proceed to fill the vacancy by promotion at their next meeting. At their next meeting, no application was received from any medical officer in the South Cork area. There blew in an application from a dispensary doctor outside the area entirely.
Not entirely.
Outside the area entirely.
According to the statute, is he not eligible for appointment, even though he is outside the area so long as he is within the area of the Free State?
Another point is that the circular issued by the South County Board of Public Assistance was only sent to medical officers under their own jurisdiction. Therefore, Dr. Nyhan could not make application.
Yes.
Therefore he availed of the first opportunity he had of applying for a position by transfer from one authority to another.
At the meeting at which the applications were to be considered there was no application from the dispensary doctors in the South Cork area, but to that meeting there blew in an application from a doctor in an area entirely outside the jurisdiction of the South Cork Board of Health, and we are being told that by preventing the South Cork Board of Health from appointing a person whose application blew in like that, we are preventing them from appointing the best person in County Cork and preventing promotion where it is due. I submit that that is quite absurd. The position is that, subject to the sanction of the Minister, a particular body can make promotion inside its own jurisdiction. Subject to the sanction of the Minister, according to the Act, it can make promotion from inside. The Act recognises that public bodies have not technical machinery for discriminating between the comparative merits of persons who are professional people or who are technical people, and it sets up the Local Appointments Commission to help local bodies to have technical and professional people properly selected. Clause 5 gives power of promotion, subject to the sanction of the Minister, and Deputy Murphy has asked me whether the Ministry of Local Government is prepared to work this Act in the public interest, and in the public interest alone. I say "Certainly," and I wish we could get local bodies to do the same, but, if public interest is to be served, local bodies must be given the best qualified people they can get. An assurance must be given that the procedure to be adopted under the Act will be such as to give merit its proper place where merit exists. If we fail, on the one hand, to give local bodies the best assistance we can, and if we fail, on the other hand, to recognise the merits of professional people, we fail to give the benefits of the Act to the best interests of the public. Let us assume that the South Cork Board of Assistance desire to go outside their own area and select a man from among dispensary medical officers outside that area.
Has the Minister read Section 5?
I have read every section in the Act, and I am trying to explain my interpretation, and that of my Department, so as to serve the best interests of the public. I ask Deputy Dr. Hennessy if the South Cork Board of Public Assistance want to go outside their own area and, in the spirit of the Act, find a man outside and bring him in as a dispensary doctor, what ought their procedure be? Ought they let it be known by advertisement, or otherwise, that that position was there? Ought they give every doctor in the North Cork area, or in County Waterford, who may desire to transfer to the Carrigaline district an opportunity of sending in an application?
Certainly.
Why did they not do so? My attitude and that of my Department is that if the South Cork County Board of Assistance want to go outside their area in order to effect a promotion the proper steps must be taken, even if we are only to consider the position of dispensary medical officers themselves. If those in the general service or the service in County Cork are to get fair play in the matter I suggest even to those Deputies who think that the rights of public bodies are being taken from them, that, having not received an application from a doctor within the area, if the South Cork Board want to go outside it they ought to come to the Minister and say that they want to do so. According to the Act, they are supposed to do that, if they want to go outside. I say that the County Board of Health, as they stand, are not competent to judge between the merits of different candidates outside and of whom they have had no personal experience. If they want to go outside and restrict the area of application to County Cork, I think the Local Appointments Commission ought to be asked to make a selection, even as between dispensary medical officers in Cork. I say in this particular case the local body whose rights and magnificent intentions have been spoken about here are not discharging their common duties and they are certainly not endeavouring to carry out this Act in the spirit or letter of it when going outside their own district to make an appointment they take an application that simply blows in without any other doctor in West Cork, where no doubt there are many out of the way places, being given the opportunity of applying for the position, or without any other doctor in North Cork being given the opportunity. On the merits of the case we are discussing it would be impossible for the Department of Local Government to hope they would stand in any kind of reasonable light either as regards the medical profession or public bodies as a whole if they allowed appointments to be made in this haphazard way.
Mr. MURPHY
I made the important point in raising this matter that in connection with two or three similar vacancies which arose in the same Board of Health area previously no application was received from an existing officer in the area, and that the Board of Health believed they had a perfect right to make this appointment in the way they did. It was well-known locally there was no applicant for the position in the Board of Health area. The Minister in his reply blamed the Board of Health because they had not notified the Department of their intentions to promote a doctor from some other part of the county of Cork, and practically in the same breath he said that if such intention was notified to the Department his view would be that the Board of Health would not be the proper body to make that appointment but the Local Appointments Commissioners. I see no reason to change the view I expressed when in opening this discussion I characterised the Minister's answer as entirely satisfactory.
Supposing there were half a dozen applications outside the South Cork area before the South Cork Board of Public Health, how could the Board judge of the qualifications and respective merits of the half-dozen candidates?
Mr. MURPHY
How could the South Cork Board of Public Health differentiate between twenty doctors in the South Cork area if they were promoting an existing doctor?
I agree they might have a difficulty, but in the spirit of the Act I would be prepared to authorise promotion in the appointment of a doctor inside one district to another district in their area. If the Deputy thinks there is any serious difficulty in doing that then he certainly cannot complain if difficulties like that are removed from the Board and the Board are provided with fully-qualified technical machinery to enable the best appointment to be made.
Mr. MURPHY
I say the Board are competent to make the appointment. I see no difficulties.
I say there is a difference between a board dealing with the respective merits of their own employees and dealing with the respective merits of employees not under their jurisdiction and with whose work they have nothing to do.
Is it the Minister's point that the South Cork Board of Health did not give sufficient facilities to their doctors to apply?
The Minister's point is that there blew in in a haphazard way an application from a doctor outside the Board's area. I will allow Deputy Dr. Hennessy to form his own conclusions as to whether that is reasonable.
The Dáil adjourned at 8.55 p.m. until Tuesday, 20th March.