Public Health Bill, 1945—Committee Stage (Resumed).

Dr. Ward

I move amendment No. 72:—

Before Section 16, to insert a new section as follows:—

16.—(1) The Minister may by Order transfer a district institution maintained by a public assistance authority under Section 31 of the Public Assistance Act, 1939 (No. 27 of 1939), to a health authority whose functional area includes the whole or a substantial part of the functional area of the public assistance authority.

(2) An Order under this section shall contain such provisions as the Minister thinks necessary or expedient for enabling the district institution to which the Order relates to be taken over and maintained by a health authority in accordance with the Order.

(3) An Order under this section transferring a district institution from a public assistance authority to a health authority shall, without prejudice to the generality of sub-section (2) of this section, contain such provisions for either or both of the following things as the Minister thinks necessary or expedient for the purposes mentioned in the said sub-section (2), that is to say:—

(a) adjustments of property rights and liabilities,

(b) transfers of the holders of offices under the public assistance authority whose duties relate to the management of the institution to similar offices under the health authority.

(4) When a district institution is transferred to a health authority by Order under this section, such Order shall have effect in accordance with its terms and the institution shall be deemed to have been provided under Section 13 of this Act by the health authority.

This proposed new section, as is clear on the face of it, proposes to give the Minister power to transfer a district institution maintained by a public assistance authority under Section 31 of the Public Assistance Act to a health authority. The most likely area in which this section may be operated is the City of Dublin. Some short time ago, I had discussions with representatives of the Dublin Corporation on the question of institutional accommodation for a section of the community for which they had a statutory responsibility, and, amongst other things, we discussed the possibility of the Dublin Corporation taking over St. Kevin's Hospital. I understand that the Dublin Corporation are inquiring into the possibilities and examining the position, but whether it will ever materialise, I do not know. The fact is that we have not any statutory authority within which St. Kevin's Acute Hospital could be transferred to the Dublin Corporation, if it were found desirable to do so.

So far as the position in the provinces is concerned, the public assistance authority and the public health authority are in fact the same. The county council is the public assistance authority and the public health authority, and it is only in Dublin City, and possibly in Waterford, and, I think, in South Cork, that the public assistance authority is not the same body as the public health authority.

The only assurance I can give him on that point is that the intention is to avail of the machinery of this measure for the purpose of doing good. For the sake of argument, suppose the Dublin Corporation were taking over St. Kevin's to-morrow as a public health institution, is there any Deputy who would object? Not one, because those Deputies who have given any consideration to the matter would agree right away that, if that institution could be taken out of the public assistance category and if, let us say, the same air of respectability could be brought about it as was brought about Rialto, it would be better for the poor of Dublin; and the Dublin Deputies, particularly those who are members of the corporation, would agree with that.

Mr. D. Morrissey

Let me make it clear that I have not the slightest objection to giving the Minister whatever powers he requires to enable the Dublin Corporation or any other corporation to do what they want to do. So far as cases like Rialto or St. Kevin's are concerned, I am delighted to hear that they have been taken over by the Dublin Corporation; but there is a very big difference between that and giving the Minister power to force the Dublin Corporation or any other corporation to do something which they do not want to do. That is the whole point at issue between us. I can subscribe to everything the Parliamentary Secretary has said, but, unfortunately, what he has been talking about is not what is in this proposed new section.

General Mulcahy

Would the Parliamentary Secretary tell us what a "district institution" is, and so relieve some people's doubts about it, as "district" is not defined in the Bill, though "institution" is.

Dr. Ward

I do not know if I can get the reference just now, but if the Deputy looks it up, he will find it in Section 31 of the Public Assistance Act. In fact, district institutions include district hospitals, county hospitals, county homes and institutions of that type. Outside the three areas I mentioned, the public assistance authority is the same local authority as the public health authority, so it does not really matter, outside the city.

General Mulcahy

We know what an "institution" is. I take it that a district institution is one in some way or another sponsored by some district committee, but what is "a district"?

Dr. Ward

It refers to a public assistance district.

Mr. L. Cosgrave

Does it follow from that, that an institution might be a district institution, say, for Rathdown, and it would not necessarily follow that the same institution would be a district institution for, say, Balrothery or Celbridge, although the actual public assistance authority in that case would be the county council, because there are three different areas? Would it follow that it would be limited to a particular area, or that an institution for one of those areas would apply to the other ones?

Dr. Ward

I do not understand the Deputy's point properly.

General Mulcahy

Is it a fact that there are only three different districts in the country—Balrothery, Rathdown and Celbridge—that are not contiguous with the county?

Dr. Ward

There are Waterford and South Cork, in addition.

Mr. Coogan

I move amendment No. 73:—

In sub-section (1), line 34, after the word "person" to insert the word "voluntarily".

This amendment does not exactly convey what I had in mind when I put it down. At the time I drafted it, my mind was directed to the penal provisions of this Bill. What I had in mind was the fact that under Section 29, particularly, persons might be detained, isolated, sent to institutions forcibly against their will.

Under Section 16 it is proposed that where a person receives institutional service from a health authority, he might be made to pay for that. Numerous persons who may come under the penal sections of this Bill may be old or infirm. They may prefer to receive nursing treatment and medical attention at home. They may have the strongest personal objections to institutional treatment of any kind. They may be persons who have a strong affiliation with the old home and they may virtually refuse to leave it for institutional treatment. Under these provisions it would be possible for these persons to be incarcerated in an institution against their will. Not only that, but it would be possible for the authorities in charge of the institution to detain a person there and to charge him for the period during which he was so detained.

It seems to me that that is entirely unreasonable. It is most unfair to subject a person of that type to these charges. I appreciate that my amendment, as phrased at the moment, would mean that everybody who voluntarily enters such an institution would have to pay for the institutional service. I did not intend that at all. I wanted to draw a distinction between persons compulsorily detained, compulsorily made to subject themselves to treatment in these places, and persons who go in there voluntarily. But many persons who go voluntarily may be poor and they may not be able to afford the institutional treatment. It is not my intention that they should be compelled to pay. I think where people are incarcerated and forcibly subjected to treatment it would be unfair to make them pay for the services.

Dr. Ward

Perhaps I might refer the Deputy to Section 29 (8), which says:—

"The cost of the maintenance and treatment of a person to whom an Order under this section relates in the hospital or other place mentioned in the Order...and any compensation payable to such person under paragraph (i) of sub-section (2) of this section shall be paid by the county authority of the joint district or county borough in which such person was when he was detained under the Order."

Anybody compulsorily detained under Section 29 will not, regardless of his means, pays for maintenance or treatment.

Where a person receives any institutional services from the health authority such health authority shall be answerable in damages to such person for any negligence in discharge of the duties of such health authority causing injury or damage to such person irrespective of whether or not such person may have been charged for services received by him from such health authority.

This amendment is to provide that, from the point of view of legal liability towards a patient in one of these institutions, there shall be no difference between a person who pays and a person who does not pay. The question of liability on the part of a hospital institution for negligence to a patient in the maintenance, care and treatment of that patient is one that has received considerable attention from the courts of this country and from the courts across the water. The general tendency of the courts in our own country, if we are to have regard to a very recent case in the Supreme Court, is to assimilate the position of non-paying patients with paying patients. But that is not clear at the moment. The purpose of this amendment is to make it clear that a person who has to go into one of these institutions is entitled to receive proper care, skill and attention, and that if there is any want of that due care, skill and attention the institution is to be liable for negligence at the suit of that person.

There is at present the principle that if there is a paying patient in any public institution, that institution is liable for failure to exercise due care in the maintenance and treatment of the patient, but if a patient goes in under regulations which are made for people who are unable to pay, then, in certain circumstances, the liability is not to that patient at all but is merely to the Minister, if there is any such liability. I think it is quite improper that there should be this differentiation between poor patients and patients who are able to pay for their keep and attention. The distinction would appear to come down from the days when people who went into poor law institutions were regarded as paupers with no rights. Arising out of that situation, regulations were made for the admission of pauper patients into institutions. The decisions of the courts of this country have laid it down perfectly clearly that in what would have been known in the old days as the case of a pauper patient suffering from negligence at the hands of the people in charge of those institutions, that the patient has no remedy in law, whereas if a small payment were made by the patient on going in, then that patient has a remedy in law against the person or the institution in consequence of whose negligence the patient suffered damage or injury. I want to draw the attention of the House to that legal situation. The object of the amendment is to get the position clarified, now that there is an opportunity of doing so, and of providing that, both from the point of view of non-paying patients and from the point of view of paying patients, the liability in law for negligence and breach of duty should be the same.

Mr. Cogan

I desire to support the amendment. It is very desirable that there should be no discrimination as between paying patients and non-paying patients as regards the neglect or hardship which they may suffer through failure on the part of those in charge of an institution to carry out their duties properly. As the law stands, apparently the non-paying patient who suffers some unfair treatment or an injustice can, and in all probability would, appeal to the authority in charge of the institution, to the Department, or to the Minister, but in law that person cannot recover any damages. In view of that, I think an amendment of this kind is desirable. It is particularly desirable in view of the far-reaching powers which the Minister is obtaining under this Bill: powers to compel a person to avail of, and to accept, institutional treatment. The amendment, if accepted, would provide a person with some kind of safeguard. It would go some distance to ensure that proper care will be taken of all patients who may be isolated or detained in a health institution. The amendment makes special provision for safeguarding the poorer type of patient who at present would, apparently, have no real redress in law.

Dr. Ward

I do not question Deputy Costello's exposition of the law, but what I do say is that his exposition of the legal position relates to a public assistance institution rather than to a public health institution. There is that big difference to be noted. We cannot remedy under this Bill a defect in the law, to which Deputy Costello has referred, in relation to public assistance institutions. I do not think that the law requires amendment so far as public health institutions are concerned. I would refer Deputy Costello, and other Deputies who may be interested in this, to Section 274 of the Public Health (Ireland) Act, 1878. That section is not being repealed under this Bill.

Mr. Costello

Will the Parliamentary Secretary please read the section?

Dr. Ward

"Where any person sustains any damage by reason of the exercise of any of the powers of this Act, in relation to any matter as to which he is not himself in default, full compensation shall be made to such person by the sanitary authority exercising such powers ....."

That applies to "any person" without distinction of class, whether the person is a paying or a non-paying patient, or whatever category the person may be in, so far as a public health institution is concerned. As I have said, the flaw in the law, if it exists in relation to public assistance institutions, cannot be remedied under this Bill.

Dr. Ward

I move amendment No. 80:—

In sub-section (2), page 10, line 6, to insert before the words "a committee" the words "a county authority".

This is a drafting amendment.

To delete sub-section (1).

First of all, sub-section (1) says that the Minister may, by Order, declare that a disease is infectious, and I object to the Minister declaring a disease to be infectious by an Order which nobody may have heard about: particularly when you look at the number of consequences that may flow from the making of such an Order. It has been pointed out before that this Bill, as drafted, will arrange the number of Orders and regulations made by the Minister, and that in the case of a regulation, at any rate, there is the possibility of having a review of it by either House of the Oireachtas, since, while the Minister could put the regulation into operation from the time of its drafting, nevertheless there are a certain number of days in which it could be discussed here or by either House of the Oireachtas, and in that case either House of the Oireachtas could decide to have that regulation annulled or passed, as the case might be.

In the case of an Order, however, there is no provision for its publication or annulment afterwards, and I think that when the Minister is defining what is an infectious disease it is a matter which should come under the review of this House, or both Houses of the Oireachtas, whether it is a matter of an Order or a regulation, because when you look down through the number of regulations here, you find that under Section 19, a person offending against Orders or regulations in the case of an infectious disease, shall be liable to a fine of £50; that under Section 20 such a person shall be liable to a fine of £100; that under Section 21 such a person shall be liable to a fine of £5; that under Section 23 such a person shall be liable to a fine of £50, or, at the discretion of the court, to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment. In the same way under Sections 25, 26 and 27, parents and certain other persons run the risk of suffering these penalties, and I think that in such cases there should be the possibility of review of the Minister's Orders here.

There is more than that in question, however. I think that, on Section 18, the Minister should give the House a review of what he considers to be infectious diseases, and in what way he proposes to differentiate between the two classes of infectious disease suggested in the Bill itself and in the section, because while he proposes to define what are infectious diseases, he proposes to take power to say that while certain infectious diseases will be treated with the full rigour of the law, others may not be treated in that way. For instance, in the case of some persons suffering from one particular kind of disease, it seems that they can go on a tram or bus without incurring any penalty, and neither will the driver of the bus or tram be liable to a penalty, but under the Bill as it stands it would seem that nobody is to have an opportunity of knowing what particular disease is meant until the Minister makes an Order. People have been travelling on trams or buses since their inception, even though they are suffering from certain diseases, and if they are not now to be allowed to travel on these vehicles without the possibility of incurring penalties, they should be allowed to know what these diseases are. I object to these things, and that is why I am moving this amendment. I am moving the amendment, not alone for that purpose, but also to get a definition from the Minister of what are infectious diseases and what differentiation he will make between the various classes of infectious disease.

Dr. Ward

It is not in any way surprising that there should be doubt in the minds of Deputies, who have not been in touch with the growth of this measure, as to the meaning and purpose of Section 18. Section 18 gives the Minister power to declare by Order what is an infectious disease. Now, right at the outset, perhaps I should draw the attention of the House to the fact that the Minister already has power to declare, by regulation, what is an infectious disease, and he is under no obligation to place such a regulation on the Table of the House. It is well that we should be quite clear about that, because there has been a good deal of misunderstanding created as to the alleged extraordinary power that the Minister proposes to take under Section 18. He is not taking any extraordinary power whatever. He is not taking any power that he does not already enjoy to-day. Naturally, you will say to me: "Well, seeing that that is so, and that you are going to deal with this matter of other infectious diseases and place the regulations on the Table of the House, why do you want to carry out this particular function by Order?" Well, let me say that if the House so desires, I have no objection to have this type of Order placed on the Table of the House. Perhaps I might explain another point on which Deputies could not be expected to be clear, and that is in regard to declaring what is an infectious disease. I want Deputies to be clear on this point. The fact that a certain disease may be infectious does not necessarily make that disease notifiable. In the past, certain diseases have been made notifiable by regulation, as I have already mentioned. Therefore, we have to draw some distinction between infectious diseases made notifiable by regulations and other infectious diseases that will not be notifiable.

The next point that I want to make clear is whether we should propose to bring tuberculosis and venereal diseases into the classes of diseases that will be declared by Order to be infectious.

Mr. Cosgrave

Would that make them notifiable?

Dr. Ward

As far as 81 is concerned, the Parliamentary Secretary has undertaken that, by whatever means he intends to do it in the Bill, he will have these Orders put in the same position as regulations, from the point of view of the House, and that satisfies me for the moment.

Dr. Ward

It would be necessary just to amend Section 18 to that purpose on Report Stage.

I move amendment No. 86, standing in the name of Deputy Beirne:—

In sub-section (1), line 19, to delete the word "knows" and substitute therefor the words: "has been notified by a competent medical authority".

An Leas-Cheann Comhairle

Mr. Hughes

Can an individual be a source of infection without contracting the disease—because of his contact with an individual who has had the disease?

Dr. Ward

He can be a carrier after he has had an infectious disease.

Mr. Cogan

The Minister raised a point with regard to the use of the words "competent medical authority" in this amendment.

Dr. Ward

I did not press that.

Mr. Cogan

I should rather accept Deputy McGilligan's wording, "registered medical practitioner". One or other of those amendments should be accepted, because a person would be open to prosecution on the ground that he knew he was a source of infection and he would have very great difficulty in proving that he did not know. In matters regarding illness, it is very hard for a layman to be definite about anything. We meet people who believe they have all sorts of diseases which they have not got and we meet others suffering from really serious diseases who do not really believe there is any thing wrong. On those medical matters, the layman is almost always at sea. It would be very unfair to insist on this provision without some safeguard. It would be extremely difficult for a layman to clear himself in court by proving that he did not know he was suffering from an infectious disease.

Mr. Larkin (Junior)

I should not be prepared to support this amendment because it seems to me that the test that would have to be applied would be whether the person concerned had been notified, if not by a competent medical authority, then by some medical authority. We are dealing with a number of diseases in respect of most of which no person requires to be notified by a medical authority that he is suffering from them. These may not be the most serious diseases but they may be the most inconvenient from the point of view of the effect on their home life and the effect on their ability to carry on their normal work. Suppose a person is suffering from measles. He does not require expert advice to realise that he is suffering from measles.

An Leas-Cheann Comhairle

Amendments Nos. 105 and 106 would seem to contain the same principle.

The new crop are going to have great fun.

Mr. Larkin (Junior)

The point raised by Deputy McGilligan is one to which we should give consideration. I have opposed amendment No. 86 with regard to requiring notification by a medical officer to prove that a person knows he is suffering from an infectious disease. The same principle is in Deputy McGilligan's amendment, although the wording is slightly different. He does, however, raise a different point. That is, the possibility of proving that a person knows he is suffering from an infectious disease by having him notified by a medical practitioner. Whether that is feasible or not, it seems to me to be a point that should be considered. How exactly it is to be done, I am not quite sure.

We have here a case, which is very common, of the ordinary layman who may come in contact in a thousand ways with an infectious disease and who, by reason of that contact, becomes a probable source of infection and may, in fact, infect other people. How and in what way are we to lay any basis on which it can be proved that he knew that, by reason of that contact, he has become a probable source of infection? Are we going to leave it wide open and, if we are, are we to be dependent on whether there is a person on the bench with the attitude of the Parliamentary Secretary and myself who will send him up right away, or a more lenient person who will take a more lenient view? If that is the kind of law we propose to make, it seems to me to be very poor law.

I can understand the difficulty of serving an official notice on an individual in such a case as that quoted by the Parliamentary Secretary, in which a person goes to a house, and, the following day, by reason of his contact with infection, has spread that disease and only two or three days later do the medical authorities become aware of it, and then serve formal notice on him that he is a source of infection; but when dealing with a section under which, as I think, a very large percentage of ordinary laymen may find themselves in difficulty, I do suggest we have some responsibility to try to get some more exact and close definition of the offence we are going to impose on these people, than merely depending on what knowledge they may have of whether, by visiting houses or having contact with people, they leave themselves open to punishment for failing to take precautions and have committed an offence under this Bill. We may be defining the section now, but in the years to come we will not be the people who will enforce it and, if we leave such a wide gap there for the ordinary layman, we may find that an ordinary person may be quite innocently drawn into serious consequences. After all, if we take the responsibility of making a law and thereby making an offence, we should try to secure as much protection as possible for the innocent person as well as making as much provision as possible to deal with the guilty person. As far as it stands at the moment, merely depending on the person knowing as proving the basis of the offence, there are countless cases where it will be purely a question of opinion on the part of the person administering the law as to whether the individual was guilty of an offence or not, and it will be very difficult for the innocent person to prove to anybody's satisfaction that he did not know.

Mr. Coogan

Take the case a little further. A person calls to the house of a patient who had no knowledge that he was suffering then from an infectious disease, but on the following morning the doctor comes in and diagnoses an infectious disease. That afternoon, the visitor has heard his neighbour is now so diagnosed. Are we to take it that the visitor should there and then isolate himself from his home, isolate himself from all public assembly and proceed to incarcerate himself in some public institution? Is that to be the position?

Surely he can be penalised before he transmits it to a third person?

Dr. Ward

But we will know nothing about it until he transmits it to a third person.

Mr. McGilligan

That is the point Deputy Larkin made. How are the authorities going to know? Someone is infected or in danger of being infected. I do not think it would be necessary in every case to wait until there had been infection, until it became notorious that a person was infected by typhoid. Supposing that person were known and it was also known that a number of people had been crowding around that person, surely the Parliamentary Secretary would not wait until someone had developed typhoid? Surely he would ask the registered medical practitioner to warn those people that they had met this carrier and had become a source of infection, that they ought to subject themselves to some sort of treatment before meeting ordinary human contact and should take all reasonable precautions? I could understand the Parliamentary Secretary if he said he could not take any action until someone else were infected. Then the damage is done.

I thought this was precautionary and not merely punitive. I thought the idea was to prevent people who, being warned, would keep away from others, on penalty of being brought into court. I did not think he was going to wait until a third person was infected. Apparently, that is the Parliamentary Secretary's idea. However, we have got away from the section. I come back now to amendment No. 105 in which the phrase is turned away from "knowing" to "having reason to believe." This phrase "reason to believe" is in Section 21, first of all, and is adopted in the Parliamentary Secretary's new amendment, No. 103. He uses the word "knows" in sub-section (3) but in sub-section (5), as it will be, of the new Section 19, he states: "the parent shall not send a child to school if the parent has reason to believe...." Has he reason to believe something that the court might more easily apply tests in respect of than this great word "knows"? I suggest one of the occasions upon which a court would hold a person had reason to believe would be when he had been warned by a competent medical man. Why not accept that and graft on to it such a phrase as will cover the area, that is, the zone of uncertainty at the moment?

Supposing the Parliamentary Secretary adopts such a phrase as "a person who has been given notice by the registered medical practitioner and otherwise knows he is a probable source of infection". That gets in one objective test that the courts might apply. If a man has been given such information, he is deemed to have the knowledge that the section requires. What is the area not covered by the notification given by the medical authority? The section could be improved if we put it in the form of "a person who has been given notice by the registered medical practitioner, and otherwise has reason to believe that he is a source of infection". That will give us at least one objective test and you would have the phrase "reason to believe" rather than this general word "knows". I would be afraid the courts might run awry on this word "knows". The Lord himself hardly knows what the mind of man is, and how is a court to determine it? That rules out one case where the word "knows" is the pivotal word. In the other case we have to take a decision on the question, did certain things happen?

Mr. H.M. Dockrell

I think the ramifications of this section are only being disclosed as it is being debated. I have been listening to speakers who appear to be exercising their minds about a man—whether he knows, or does not know, that he is a probable source of infection. I want to approach this matter from the angle of a person who does know that he is a probable source of infection and we will see where that is going to lead. He has to take reasonable precautions, according to Section 19. Are you going to get down to defining reasonable precautions in various categories? Deputy Larkin mentioned that a man might have measles and somebody visits him. Is that person, once he knows he has been in contact with an infected person, to go into quarantine for 48 hours or a week?

There is another ramification. Supposing a person is a worker and he goes into quarantine, will he be paid sickness benefit, or could he draw unemployment benefit because he is in quarantine? I think those and other points are going to come out gradually. Can quarantine be defined as stopping in your own house or, if they are children, in the house of their parents? Where is this going to finish up? The Parliamentary Secretary has merely broken in on the fringe of the cases by mentioning "reasonable precautions". Ought not we to have "reasonable precautions" defined in the definition section of this Act? "Reasonable precautions" under the heading of measles, and "reasonable precautions" under the heading of smallpox, I take it, would be somewhat different. What will "reasonable precautions" be in the case of a child, and what will "reasonable precautions" be in the case of an adult, and will people be paid sickness benefit and unemployment benefit?

I would like the Parliamentary Secretary to develop Section 19 before we even decide on these amendments, which are more or less all put down with the purpose of safeguarding persons as to whether they really know, or do not know, or ought to have known. I suggest this section has the most extraordinary ramifications.

Mr. Cogan

General Mulcahy

Mr. McGilligan

I do not want to go back over 17 years, but the Parlimentary Secretary has not impressed himself very much on the House in these 17 years. Various people may be affected by these diseases, and they are going to be subjected to fines and penalties if they do not submit themselves for examination, although they may not be aware that they are suffering from the disease. I think it was Deputy Dockrell who raised the question that a person may be brought to court, found guilty of an offence and fined, if he does not take "every other precaution".

Dáil Éireann díospóireacht - Tuesday, 26 Mar 1946

Dáil Éireann díospóireacht -
Tuesday, 26 Mar 1946