In relation to the amendment under discussion I rose before the adjournment of the debate at 7 o'clock merely to ask the Parliamentary Secretary if he had anything to say in connection with the point raised as to the position of the owner or person in charge of a public conveyance who would refuse to carry a person on that public conveyance in the belief that that person was suffering from an infectious disease when in fact the person was not so suffering within the meaning of the Act. I ask the Parliamentary Secretary to deal with the position of that person if brought before a court, because I think there is hardly any doubt that if he refused to allow the person to travel, still worse, if that person were publicly ejected from the particular conveyance, and was afterwards able to prove that at that time he was not suffering from an infectious disease, he would get damages in the court. I should like to know whether there is to be any protection for persons acting in a bona fide way.
Public Health Bill, 1945—Committee (Resumed).
I do not think I can be of much further assistance to the Deputy. The only thing I can say in reply to his last question is that a bus conductor would be well advised not to refuse a person admittance to the bus unless he knows that the person is suffering from an infectious disease. If he has any doubt, I think he ought to err on the side of safety for his own protection.
The trouble about that is, if he is driven back to that point—and I think the Parliamentary Secretary is right—then it seems to me that this section will be inoperative. I think the section cannot be operated. I mean, the person in charge of a public conveyance will have to be so absolutely certain——
He will have to know.
——will have to know of his own knowledge, not merely act on knowledge imparted to him by anybody else—that it would not arise once in 20 years.
It did not.
That is the reason.
They knew the law.
The reason why I am making this point is that this is not the only section in which this appears and the reason is not clear. One begins to ask oneself why the Department of Local Government and Public Health have gone to the trouble of drafting those sections if, in fact, they cannot be put into operation.
What the Parliamentary Secretary says now really hits the nail on the head and drives home the arguments. I think the Parliamentary Secretary has been asked, during the last 70 years that this law that he quotes has been in operation, was there ever a case of the kind brought up? At any rate, since the State was set up, in 1922, was there ever a driver of a public vehicle prosecuted for allowing a person suffering from an infectious disease to enter his car?
He knew he could not do it without violating the law.
There is no use in talking to us like that. The Parliamentary Secretary has been pointing out that the laws in these matters were so obscure that even the very highly qualified legal people in the House did not know what the law was and, while making that attack on those who are criticising the Bill here, he asks us to accept that every person driving or conducting a vehicle in the country was aware of what is in the Act.
The children on the street knew you could not travel by a public-service vehicle if you were suffering from an infectious disease, the drivers knew it, and the Deputy knew it. Everyone knew it.
The Parliamentary Secretary is simply making the discussion as absurd as his amendment is.
It is hard lines.
The Parliamentary Secretary has been saying that we are withdrawing laws from him that we gave to our oppressors, but the fact is that the Parliamentary Secretary has to bring himself back and base his case on the 1878 Act.
And the 1907 Act.
The Act of 1878 was the Act that the Parliamentary Secretary particularly quoted. If the Parliamentary Secretary will look through the Statute Book for 1878 he will realise that the ordinary people were only at the dawn of their liberties at that particular time and that there is nobody going to dare—as he now suggests—in the capacity of driver of a public vehicle, to interfere with a person boarding a vehicle or to challenge him that he suffers from infectious disease and will not be allowed to board. The 1878 Act was framed at a time when people's sense of responsibility and people's rights to liberty were not as advanced as they are now, after the passage of 70 years.
And the Deputy made his regulations under it, in 1929.
If the Parliamentary Secretary will only look at some of the statute laws that existed in Ireland up to 1878 and were wiped out at that particular time, he will have some realisation of the fact that the idea of liberty and a sense of responsibility was only dawning at that particular time. He is simply enshrining in this Bill an Act that ought to be wiped out of the Statute Book. He is imposing very large fines on persons suffering from infectious diseases who go into public places, and he might very well leave the responsibility for answering for offences of that particular kind on the person suffering from an infectious disease who knowingly goes into the public vehicle. It is only making the law appear silly to put sub-sections like this into the Bill.
I ask the Parliamentary Secretary to compare what he has in Section 28 with the amendment that was passed in relation to Section 19—amendment No. 103. In the case of a person in charge of a public conveyance, he is required to know by looking at a complete stranger whether or not he is suffering from an infectious disease. In the case of a parent of a child, living with the parent, according to the amendment that we passed and which is now part of the Bill, the parent is not deemed to have reasonable belief that the child is suffering from an infectious disease unless he has been served with notice from the medical officer. The bus conductor who casually sees the man or woman getting on the bus has to determine whether or not he knows the person has an infectious disease.
Amendment put and declared negatived.
I move amendment No. 53:—
In sub-section (5), line 23, after the word "shall" to insert the words "if the occurrence has taken place not earlier than 48 hours before he learns of it".
The sub-section as it stands reads:—
"Where the owner of a public conveyance learns that a person has been conveyed in the conveyance while a probable source of infection with an infectious disease, such owner shall
(a) forthwith take the conveyance out of service,
(b) as soon as is practicable inform the chief medical officer of the county or county borough in which the conveyance is usually kept that a person has been conveyed in the conveyance while a probable source of such infection, and
(c) cause the conveyance to be disinfected...."
Suppose the owner learns a week, a month, or two months after the occurrence, surely these things do not apply. Therefore, I put down the amendment. The position here is that if the general manager of Córas Iompair Eireann learns that somebody suffering from whooping cough travelled on the train from Dublin to Cork and if he discovers, a week after the occurrence, that he travelled in a particular carriage, the carriage has to be taken out of commission and disinfected, etc., etc. I suggest that there ought to be a time limit.
I am prepared to agree with the Deputy that there ought to be a time limit, but 48 hours would be too short a time. I will circulate an amendment for the Report Stage providing a time limit. It will be longer than 48 hours, but it will be a reasonable length.
Will the Parliamentary Secretary say whether, from the point of view of time, he can differentiate between a railway carriage and a taxi?
I am afraid not. The time limit will have to be related to the disease rather than to the particular vehicle.
I move amendment No. 54 in the name of Deputy McGilligan:—
To delete sub-section (6).
I am moving this amendment to get from the Parliamentary Secretary why it is thought necessary to have substantial penalties in these cases, particularly in view of the fact that it could quite easily happen that a man might commit a breach of the section without intending to do so.
I do not think that anybody incurs a special risk of a punitive character at the hands of the District Court by reason of the fact that there is an upward limit to the fine which can be imposed. As the Deputy will observe, there is no minimum fine fixed and, as Deputy Larkin conceded earlier to-night on another penalty clause, the probabilities are that the fine will be of such a nominal nature that it will not operate as a deterrent at all. I think, at any rate, that we can leave the question of the amount of the fine, within the maximum limit of £50, to the wisdom and judgment of the district justice. He will have heard all the evidence and, if he is fully satisfied that a serious offence has been committed, presumably he will inflict a salutary fine. On the other hand, after all these various contingencies which have been mentioned here have been brought to his notice in the course of the hearing of a charge, if he is impressed with the strength of the arguments and the mitigating circumstances operating on the case, I am sure that the district justice will not act in a harsh manner. I do not think we are risking anything by leaving the maximum fine pretty high, so long as we do not fix a minimum fine that might be deemed, in certain circumstances, to be excessive.
I do not think that is quite on a par with the penalty we were discussing at an earlier stage, to which the Parliamentary Secretary has referred. Those penalties are to apply to any breach of sub-sections (3), (4) and (5). I think the district justice will have to take it as a direction that the Oireachtas thought it necessary to put into this section provision for a fine of £50, or three months' imprisonment, or both. We are not dealing now with a maximum fine of £5 or £10. You are giving a direction, in so far as you can give it, to the district justice that a breach of sub-sections (3), (4) and (5) must be looked upon by him as a very serious matter and that, in imposing his penalty, he must have regard to the penalty provided by the Oireachtas under this particular sub-section.
What does the Deputy suggest as an appropriate figure?
I suggest that a penalty of £50, or three months' imprisonment, or both, is very severe.
I am not convinced by the Parliamentary Secretary's argument on this. It may be that some justices may fix a low fine, but a crank, if you like, might decide on the full penalty and there would not be a fair measure of justice in that case. I think Deputy Morrissey's argument is quite sound. When you provide in the section for a maximum penalty of £50, that would be an indication to any justice that the Oireachtas considers that a substantial fine was essential in the case of an offence under this section. Instead of trying to defend a fine of £50, or three months' imprisonment, the Parliamentary Secretary went on to argue that, in the ordinary administration of the law, it is unlikely that that amount will be imposed and that we should leave it to the discretion of the justice. I think the maximum provided for here is far too high. If the Parliamentary Secretary thinks that, by leaving it to the discretion of the justice, it would be very much lower, I think we should fix what we consider should be the maximum. From his argument, I think the Parliamentary Secretary does not think that the maximum will ever be imposed.
I do not think the maximum fine would be one penny too much for a deliberate offence under the section if a man deliberately and knowingly endangers the life of the community.
The trouble is that that is not in the section. There is no provision to that effect.
I think it is.
It is not. I should like the Parliamentary Secretary to tell me where it is.
Must we go back to the argument again, that if he does not know that a person is suffering from an infectious disease he does not commit an offence?
The Parliamentary Secretary is basing his interruption on a form of words which are not in the section. The trouble is that, apparently, he has not been able to find a form of words which will put his intentions into law.
Will the Deputy read the sub-section?
I have read it. I want to direct the Parliamentary Secretary's attention to sub-section (7). The person who is in charge of the vehicle may be fined £50, or three months' imprisonment, or both. Where the person so charged is not the owner of the vehicle, not only will he be fined, but the person who is the owner of the vehicle may also be fined £50. Will the Parliamentary Secretary read sub-section (7)?
Will the Deputy go back to sub-section (3)?
I would like the Parliamentary Secretary to go back to sub-section (3), because we have put our case on sub-section (3) and we have not got any reasoned answer to the points made.
Except that he must know; otherwise he does not commit an offence.
We asked how was he to know and the Parliamentary Secretary is not able to answer the question.
That is not the point. He does not need to know. If he does not know, he cannot be charged with any offence.
Therefore, if he does not know or cannot know, this section is so much eye-wash.
He can, of course, know.
He may, by one chance in five thousand, know of his own personal knowledge that a person is infected with disease. The Parliamentary Secretary almost ruled out knowledge as derived from anybody else. I do not want to be brought back to sub-section (3). I am dealing with sub-section (6) and one must also keep before one's mind sub-section (7). I should like to hear some case made for the very substantial penalties provided there. Those penalties may be inflicted on a person who is guilty of a breach of sub-sections (3), (4) or (5).
It is very hard to reconcile the statement of the Parliamentary Secretary with regard to sub-section (3)—that he would advise a person in charge of a public vehicle not to prevent a person getting on the vehicle on the ground that he had infectious disease——
Unless he knew he had.
The Parliamentary Secretary's advice was: "Do not prevent a person getting on a public vehicle unless you have a cast-iron case".
Unless you know the person is suffering from an infectious disease. There is not a word about cast-iron or galvanised iron in the Bill.
I am dealing with the Parliamentary Secretary's statements. He admits that a person who prevents another person from getting on a public vehicle is liable to an action in the court unless he has the cast-iron case that the person was suffering from infectious disease. I cannot reconcile the intensity with which he says that a person who lets a person with infectious disease on a public vehicle should be fined £50 and then that the maximum penalty will not be imposed.
I did not say "will not be". It will be at the discretion of the justice. I hope it will occasionally be imposed, if only as a lesson.
I draw the attention of the Parliamentary Secretary to the section of the 1878 Act from which this provision is supposed to have been taken. The maximum penalty there is £5. The Parliamentary Secretary comes along and asks us to sanction a new rendering of the law by which that £5 will be increased to £50, with a term of three months' imprisonment added.
There were not so many public service vehicles on the road then.
You have wakened up to that fact.
I am too wide awake for the Deputy.
Is this supposed to be a new way of balancing the budget? Surely, the Parliamentary Secretary has forgotten what public service vehicles were in 1878 or he would not bring in some of those provisions.
I am not a legal expert and I am seeking enlightenment. Under sub-section (3), the person in charge of a public vehicle who admits a person who, he knows, is a probable source of infection commits an offence. That is the basis of the offence, as the Parliamentary Secretary has been emphasising. Under sub-section (7), where the person who contravened sub-section (3) was not the owner of the relevant public conveyance, the owner is guilty of an offence. I can guess what the Parliamentary Secretary will say, but it is not set out in the section. How is the owner of the conveyance guilty of an offence unless he "knows" that the infectious case was so conveyed? You do not set out that in the section. Is he guilty because his servant knew and committed the offence?
That is it.
Why do we not say so?
It is not necessary to say it.
Then I do not see why we should bother framing legislation at all. If we prescribe a fine in respect of the owner of the vehicle, it would not be difficult to say that, if he also has knowledge as to the person being infected, he is guilty of an offence. But there is no such statement. With regard to the punishment, under sub-section (6), it may be a fine or imprisonment or both. Under sub-section (7), it may be a fine. That may be discrimination as regards responsibility between the owner and the employee.
The Deputy is right again.
Under sub-section (6), the punishment is a fine or imprisonment or both. Under sub-section (7) the punishment is £50. I think that the punishment will be largely in the form of a fine but there is no equitable relationship between a fine of £5 on a bus conductor and a fine of £50 on, say, C.I.E., or any large transport organisation. In so far as we have sections dealing with individual employees and large public undertakers, we should bear in mind the equity of the punishment to be meted out. A fine of £5 on the conductor of a bus on which such an offence was committed would be far heavier than a fine of £50 on C.I.E. In one case, the offence would have been committed by an individual and, in the other, by a large and wealthy corporation.
I move amendment No. 56:—
To delete sub-section (7).
We have already argued this question to some extent but I think that grave injustice could be done in this case. Even the owner of a hackney vehicle might not be aware that there was an infectious case in the vehicle. The driver might be aware. If the driver were convicted, under sub-section (7) the owner can be convicted and fined, although completely ignorant that an infected person had travelled in his car. If the guard of a train permits an infectious case to travel from Dublin to Cork, the company can be fined £50, although they knew nothing whatever about it.
I suggest that amendment No. 57 might be argued with it, if a decision is desired on No. 57.
If we get sub-section (7) deleted it will not be necessary to move amendment No. 57.
I was wondering whether it was desired to save amendment No. 57. The Chair will save amendment No. 57 if it is desired.
Do not try to save it; I shall save it.
Surely it is not suggested that we should convict a man who is not aware at all of the offence alleged? Deputy McGilligan's amendment would put the responsibility on him, if he is aware that an infectious case travels in the vehicle he owns. There is a responsibility on him then to put the vehicle out of commission for a certain period. As the sub-section stands, whether he is aware or not, he is convicted and he is liable to a penalty. I should like the Parliamentary Secretary to defend that principle.
It does not require to be defended. I think the section speaks fairly eloquently in its own defence. Again, it is not an innovation, and that is all I need say about it. It is part of the existing law which would have remained in the statutory code had we not attempted to co-ordinate these laws. Deputy Mulcahy at one time twits us with continuing the enactment of laws that were made by an alien Government. Well, he has used a fair share of them and they seemed to work all right for him. We, at any rate, are adapting any useful principles we found in the existing statutory code. I do not mind where a law originated so long as it happens to suit the purpose aimed at.
Even if it is a bad law.
No. We would not adapt any bad law. Deputy Larkin understands clearly enough what the purpose of sub-section (7) is. Sub-section (7) puts an obligation on the employer to see that an employee complies with the law and he is subject to a penalty if his employee does not in fact comply with the law. That is the principle involved in this, and that is why it is drafted in the terms which appear in sub-section (7). I do not think any Deputy could regard it as an innovation. Certainly there is nothing novel about the principle.
Do Deputies desire to have a decision on amendment No. 57?
What is the use of bothering about amendment No. 57 at this stage if the Parliamentary Secretary says he does not accept it? Amendment No. 57, if it were accepted, would ensure at any rate that it would have to be proved before a person became liable to a fine of £50 that the contravention occurred with the knowledge or the consent of the owner. I should like to ask the Parliamentary Secretary if a guard on a train from Dublin to Mullingar allows a person with whooping cough to travel in the train knowingly or wittingly, is it intended that, as well as the guard himself, the general manager of Córas Iompair Eireann under sub-section (7) should be liable to a fine not exceeding £50? If not, who will be regarded as the owner of the conveyance for the purposes of sub-section (7)?
I presume that will have to be determined later.
By whom?
If the sanitary authority takes the wrong person into court, the case will fail.
Surely, if we are passing a law here we should not pass it blindly. Is it a fact that the Parliamentary Secretary is unable to tell us who it is intended would be amenable under sub-section (7), if a guard of a train or a long-distance bus allows a person suffering from an infectious disease to travel in either of these conveyances?
On a long distance bus, the owner of the bus and on a train, the carrying company.
Who would be the owner?
The Great Northern Railway Company owns certain lines and Córas Iompair Eireann owns certain other lines.
The fine would be collected out of the funds of the company and no particular person would be made amenable as owner?
That matter can be determined in the court.
Surely we ought not to pass a law without having some intention in our mind? Surely we ought to know, as far as possible, what the effect of any law is going to be on particular persons or particular classes?
Is it the Parliamentary Secretary's argument that even in the case of a person who does no wrong, who is not aware that any offence is being committed, he should be fined? Does the, Parliamentary Secretary consider that justice?
If an employee does wrong, the employer is to be held liable for the wrongful act of his employee.
How does the Parliamentary Secretary justify that on any ground of common decency or justice? I understand the Parliamentary Secretary maintains that offences of this kind exist under the law. Undoubtedly offences of an analogous kind do exist, but they are the exception to the general principle in criminal law, that a person is to be held responsible for his own act only.
May I refer the Deputy to Section 63 of the Public Health Act of 1907?
I have stated there are instances which are merely exceptions to the general principle. We have an opportunity of doing something here which is just. The Parliamentary Secretary smiles at a thing which is contrary to the general principle of criminal law. I know that this Government is doing dictatorial things under the criminal law and doing it with some little help from the Parliamentary Secretary. The Parliamentary Secretary is one of the leaders. Nevertheless we are justified in making our protest in a matter of this kind. It is not the general law. It is not a general principle in criminal law that the owner is responsible for the acts of his servants.
Was it the law when your Government was in office?
I do not care whether it was or not.
It was the law when you were ten years in office and there was nothing wrong with it then.
Will the Parliamentary Secretary refer me to the section he is referring to?
Section 63 of the Public Health Act of 1907.
That was not passed by the Dáil.
Was it in operation while your Party was in office for ten years?
I do not care whether it was or not. The Parliamentary Secretary is reduced to very low extremes when he has to resort to an argument of that kind.
Will the Parliamentary Secretary say if any prosecution was brought under that section of the Public Health Act?
The Deputy will have to look up Deputy Mulcahy's records. There has been none since we came into office.
He will find that no prosecution was ever taken.
Is that an argument that it should not be there? If nobody suffered the death penalty in the past 20 years, would the Deputy argue on that ground that we should abolish the death penalty? Are penalties not deterrents?
Penalties may be deterrents. I am presuming that, as this is only a summary offence, no such offence must have been detected in that no prosecution was taken. There is no analogy between this and the death penalty. I take it that if there were no prosecutions, there were no offences, or the law was incapable of enforcement, which is the argument put forward here. I want to support what Deputy Costello has said. In this provision, you are attributing to the company the offence of its servant. There cannot be an offence unless there is guilty intention, and here the company has no knowledge, good, bad or indifferent, of the offence at the time of its commission. The servant is properly punishable under sub-section (3) and it seems most unreasonable and unjust, having punished the servant, to punish the owner under sub-section (7), who could not have prevented the servant from committing the offence at the time he committed it. He was not then in a position to stop the commission of the offence. The vehicle may have been miles from his office, place of business or residence, as the case may be, and he could not possibly have intervened to prevent his servant from committing the act which contravened the law. It seems most unreasonable that, in these circumstances, the owner should be liable to the maximum penalty of £50. I hold that there is a principle that unless the owner himself did something directly to connive at the commission of that offence, there is no guilty intention and that he has committed no offence in law.
Would the Parliamentary Secretary refer again to the section of the 1907 Act to which he referred?
I mentioned Section 63, and, during the Deputy's absence to-day, I quoted quite a number of relevant sections.
I have spent a considerable time in the House on this Bill. I have asked the Parliamentary Secretary a plain question. What section did he refer to? Was it Section 63?
Yes.
Deputies may like to hear Section 63 of that Act. It says:
"The owner or driver of a public vehicle within the district of the local authority used for the carrying of passengers at separate fares shall not knowingly convey, or any other person shall not knowingly place, in any such public vehicle a person suffering from any infectious disease, or a person suffering from any such disease shall not enter any such vehicle, and every person who shall offend against this section shall for every such offence be liable to a penalty not exceeding 40 shillings."
That is the law which is supposed to have been enforced by the last Government. It is a good thing we were able to send for the section to expose the Parliamentary Secretary's fallacy and inaccuracy. The Parliamentary Secretary cannot reply to that, and that is the section he relied on.
Could the Parliamentary Secretary say why, under the 1907 Act, the owner who knowingly is guilty of an offence is fined only 40/- while, under sub-section (7) of this Bill, a person committing an offence without his knowledge is to be fined £50?
We discussed the penalties up and down to-day.
The Parliamentary Secretary did not refer in any way to the discrepancy of which I speak now.
He has no answer to it.
No, he is struck dumb.
Obviously.
With amazement.
And ignorance.
It is well that we are not struck dumb by the Parliamentary Secretary's misrepresentations and misstatements with regard to legislation passed previously.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Brennan, Thomas.
- Breslin, Cormac.
- Fogarty, Andrew.
- Furlong, Walter.
- Gorry, Patrick J.
- Harris, Thomas.
- Hilliard, Michael.
- Kilroy, James.
- Kissane, Eamon.
- Little, Patrick J.
- Loughman, Frank.
- McCann, John.
- McCarthy, Seán.
- MacEntee, Seán.
- Morrissey, Michael.
- Moylan, Seán.
- Briscoe, Robert.
- Buckley, Seán.
- Burke, Patrick (Co. Dublin).
- Butler, Bernard.
- Carter, Thomas.
- Colbert, Michael.
- Colley, Harry.
- Crowley, Honor Mary.
- Derrig, Thomas.
- De Valera, Eamon.
- De Valera, Vivion.
- Flynn, Stephen.
- O Briain, Donnchadh.
- O'Connor, John S.
- O'Grady, Seán.
- O'Rourke, Daniel.
- Rice, Bridget M.
- Ruttledge, Patrick J.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Walsh, Richard.
- Ward, Conn.
Níl
- Anthony, Richard S.
- Blowick, Joseph.
- Cogan, Patrick.
- Commons, Bernard.
- Coogan, Eamonn.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, John A.
- Dockrell, Henry M.
- Dockrell, Maurice E.
- Giles, Patrick.
- Hughes, James.
- Keating, John.
- Larkin, James (Junior).
- McFadden, Michael Og.
- McMenamin, Daniel.
- Morrissey, Daniel.
- Mulcahy, Richard.
- O'Donnell, William F.
I move amendment No. 57:—
In sub-section (7), line 41, after the word "owner" to insert the words "if it be proved that such contravention occurred with the consent or knowledge of such owner".
It proposes that the owner cannot be found guilty in a case in which a boy of his offends under sub-section (3) unless, as the words of the amendment set out, it be proved that such contravention occurred with the consent or knowledge of such owner.
Surely that is the same principle as the one we have been discussing?
It is not.
It may be the same principle, but there is a question I would like answered. In discussing the earlier amendment, the Parliamentary Secretary relied on the 1907 Act. We now have a quotation given to us from that Act. I do not want to include anything that does not exist, but does the Parliamentary Secretary see any conflict between what he says and what Deputy Costello says?
Not a bit?
There are none so blind as those who will not see.
It seems to me that the Parliamentary Secretary, either through ignorance or deliberately, is misleading the House. It seems reprehensible.
Deputy Larkin had better consult some lawyer before making such charges.
I asked a question.
And got an answer.
The Parliamentary Secretary should learn good manners.
When the Deputy had not got manners outside, we could not expect him to have them here.
Notice taken that 20 Deputies were not present; House counted and 20 Deputies being present,
We are rather laboriously endeavouring to see that the laws we pass here are reasonable and that nobody who is not guilty may be affected in any way by the penalties those laws provide. It has been pointed out very clearly here that the Parliamentary Secretary completely misled the House in his references to the section of the 1907 Act which he said was analogous or exactly the same thing as is enshrined here in sub-section (7). When this was brought home to the Parliamentary Secretary by us, he had no explanation to give of it, and when others draw attention to the fact and seek an explanation of it, he simply tends to get abusive or insulting.
Come to his rescue and he might vote with you.
I am not coming to anybody's rescue, except to the rescue of the people for whom we are legislating, and I do not think that Deputy Larkin will ever ask me to come to his rescue, nor have I ever seen any necessity for his calling for the assistance of anybody in debating here. I think he has been endeavouring to assist the Parliamentary Secretary and has been doing it very well. However, I am simply concerned now with the facts involved and I called attention to the absence of a quorum so that the Deputies of the Parliamentary Secretary's Party may hear what is going on and may gather some kind of impression as to how the work of this House is being treated. I refer Deputies to sub-section (7) here, which says:—
"Where a person who contravenes sub-section (3) of this section is not the owner of the relevant public conveyance, such owner shall also be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £50."
The Parliamentary Secretary has insisted that where the employee is guilty of an offence, that is, where he carries a person whom he knows to be afflicted with an infectious disease in his car, he may be fined £50 and may get three months' imprisonment. But, under this sub-section, the owner, whether it is Córas Iompair Eireann or a person who owns a couple of taxis, without knowing anything about it, may be fined £50 as well. We are seeking to introduce an amendment that will secure that the owner will not be liable under this sub-section unless it be proved that such contravention occurred with the consent and the knowledge of such owner. The Parliamentary Secretary has endeavoured to mislead the House by suggesting that sub-section (7) as it stands, without any reference to knowledge, came directly from Section 63 of the Public Health Acts Amendment Act, 1907.
Did I quote the section?
The Parliamentary Secretary referred to Section 63.
But did I quote it?
The Parliamentary Secretary referred us to Section 63, and I want to quote, for the information of Deputies who have now come into the House, what Section 63 says:—
"The owner or driver of a public vehicle within the district of the local authority used for the carrying of passengers at separate fares shall not knowingly convey, or any other person shall not knowingly place, in any such public vehicle a person suffering from any infectious disease, or a person suffering from any such disease shall not enter any such vehicle, and every person who shall offend against this section shall for every such offence be liable to a penalty not exceeding forty shillings."
The Parliamentary Secretary, in the absence of knowledge on our part of the 1907 Act, endeavoured to persuade us that we were refusing him rights and powers under sub-section (7) to punish an owner, that he already had under an Act he is wiping out. When the Parliamentary Secretary is brought up against the discrepancy in what he puts to the House, instead of helping us he has nothing to say about it and he becomes abusive to those who ask for further information.
The amendment suggests that there shall be put into sub-section (7) a provision making it clear that the owner must be knowingly guilty of the offence. I ask the Parliamentary Secretary on what grounds he takes out the reference to the owner knowingly being guilty of the offence in the sub-section he has here when it existed in Section 63, to which he referred us, and why he now imposes a penalty of £50 where, under Section 63, which he quoted for us, the penalty was then 40/-? Perhaps there is some Deputy in his Party who could help us?
You got more help than you deserve.
There is the attitude of the Government, and particularly of the Parliamentary Secretary, to this House, summed up in a nutshell—we got more information than we deserved to get.
Is it not true?
It is not.
It is untrue and the Parliamentary Secretary, instead of apologising to the House for deliberately misrepresenting the position, turns to abuse. The Parliamentary Secretary loses his temper because he was exposed. He has been quoting the Act of 1878 and the Act of 1907 freely against us in the House.
And I am quoting them accurately.
Inaccurately, as was demonstrated here.
I say accurately.
Inaccurately.
Accurately—absolutely accurately.
We shall see it on the records of the House.
Every time I quoted, I quoted verbatim—accurately.
I say no. The Parliamentary Secretary referred Deputies to Section 63.
Ceann Comhairle, you had better bring this gentleman to order.
Is that the way to speak to the Ceann Comhairle? That is the respect the Parliamentary Secretary has for the Chair and for this House—that is his respect not only for Deputies, but for the Ceann Comhairle.
The Ceann Comhairle is well able to protect himself.
The debate might be carried on without reference to the Ceann Comhairle.
I did not refer to him.
On the last occasion the Parliamentary Secretary referred to Section 63, but did not quote it.
He did not quote it for a good reason.
The Parliamentary Secretary——
Am I entitled to speak or not?
If it is a point of order or of personal explanation, the Parliamentary Secretary must be heard.
I have been charged with misquoting a section of the 1907 Act.
No, Sir.
Perhaps I will be allowed to continue. I have quoted that Act several times during the debate. I have quoted it accurately. A Deputy says I quoted it inaccurately. That is untrue.
I did not say the Parliamentary Secretary quoted inaccurately. I said, and I repeat, that the Parliamentary Secretary sought to mislead the House, to misrepresent the position.
You are doing better now.
I repeat that, and the Parliamentary Secretary's whole case with regard to the Act of 1878 and the Act of 1907 was that there was no difference between the provisions of those Acts and the provisions with which we are now dealing, that the only reason why they were being repealed was simply because it was a matter of codification and simplification and there was no difference between the powers he is seeking now and the powers he has under the 1878 and 1907 Acts. His attitude here is that he will give just, and in such a manner as he thinks best, whatever information it pleases him to give to this House, not what the House is entitled to get. If that is to be the Parliamentary Secretary's attitude, we know where we are. If we have to deal not only with this difficult Bill, but with misrepresentation as well, we can, and we can expose it, and we shall expose it.
What are we exposing? We are exposing here sub-section (6) in respect to the contravention of sub-section (3) by a person in charge of a vehicle and sub-section (6) inflicts a penalty of £50 or three months' imprisonment, or both. Sub-section (7), in relation to the same offence, although the offence may be committed without the owner having the slightest knowledge, in addition to the £50 and the three months on the driver or the person in charge of the vehicle, puts a fine not exceeding £50 on the owner. The Parliamentary Secretary sought to mislead the House by trying to convey to the House that there was no difference between sub-section (7) of this proposed new section and Section 63 of the 1907 Act. The fundamental difference is that under Section 63 of the 1907 Act the person must do it knowingly, but under this sub-section, even though it is done without his knowledge or consent, he is made subject to a fine not exceeding £50. Every time that the Parliamentary Secretary is driven into a corner by argument from this side of the House, he falls back on the 1878 or 1907 Acts.
And the Act of 1890.
The Parliamentary Secretary uses the argument that those Acts, and the sections in them, were there not only during the 14 years that the present Government have been in power but during the reign of the previous Government, and then he asks: "Why were they not repealed?" He has in every way, directly and indirectly, implicitly and explicitly, sought to convey to the House that there is no difference between Section 63 of the 1907 Act and sub-section (7) of this section.
I want to know if there is any member of the Government Party who can say why an offence knowingly committed under the 1907 Act and punishable with a fine of 40/- should now be punishable by a fine of £50 in circumstances where it is not knowingly committed at all?
The purchasing value of the £, according to Deputy McGilligan.
I am asking if any member of the Government Party, sitting behind the Parliamentary Secretary, will answer that question.
Tá
- Blowick, Joseph.
- Cogan, Patrick.
- Commons, Bernard.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, John A.
- Dockrell, Henry M.
- Dockrell, Maurice E.
- Giles, Patrick.
- Hughes, James.
- Keating, John.
- Larkin, James (Junior).
- McFadden, Michael Og.
- McMenamin, Daniel.
- Morrissey, Daniel.
- Mulcahy, Richard.
- O'Donnell, William F.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Buckley, Seán.
- Burke, Patrick (Co. Dublin).
- Butler, Bernard.
- Carter, Thomas.
- Colbert, Michael.
- Colley, Harry.
- Crowley, Honor Mary.
- Derrig, Thomas.
- De Valera, Eamon.
- De Valera, Vivion.
- Flynn, Stephen.
- Fogarty, Andrew.
- Furlong, Walter.
- Gorry, Patrick J.
- Hilliard, Michael.
- Kilroy, James.
- Kissane, Eamon.
- Little, Patrick J.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Brennan, Thomas.
- Breslin, Cormac.
- Loughman, Frank.
- McCarthy, Seán.
- MacEntee, Seán.
- Morrissey, Michael.
- Moylan, Seán.
- O Briain, Donnchadh.
- O'Connor, John S.
- O'Grady, Seán.
- O'Rourke, Daniel.
- Rice, Bridget M.
- Ruttledge, Patrick J.
- Sheridan, Michael.
- Smith Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Walsh, Richard.
- Ward, Conn.
I move amendment No. 60:—
In sub-section (8), line 46, before the word "suspects" to insert the words "on reasonable grounds".
The sub-section, as it stands, enables an owner, or a person in charge of a public conveyance, to refuse to convey a person in the conveyance whom he knows to be a probable source of infection, or whom he suspects to be a probable source of infection. The amendment is designed to secure that suspicion, which would enable a driver of a vehicle to prevent a person from travelling upon it, must be based upon some reasonable ground. It will not be sufficient merely for a driver to say: "I suspected that A.B. was suffering from a disease which was likely to be a source of infection and I would not let him on." That goes too far. It gives too great a power to the owner or the driver of a public vehicle to refuse to allow a person, who had a right to travel on it, to use such a conveyance. The amendment is a reasonable one. The object here is to secure that this suspicion will not be allowed to develop into something which would enable a person who has a grudge against another person to work that grudge under the colour of an unfair law.
I am not opposed to the principle embodied in the amendment, but I am not so sure that the actual words suggested by Deputy Costello would appropriately meet the position. I will have an amendment embodying the principle circulated. Possibly the words suggested by the Deputy will fill the bill. I will have the matter submitted to our legal advisers to ensure that it is in proper drafting order.
I move amendment No. 62:—
In sub-section (9), line 55, at the end of the sub-section to add the words "inside twenty-four hours".
The sub-section provides that a local authority on request by the owner or person in charge of a public conveyance, in which a person had been conveyed, while a probable source of infection with an infectious disease, shall provide for the disinfection of the conveyance. The amendment would mean that there would be no delay by a local authority in carrying out the disinfection of the conveyance, so that it would not be held up indefinitely awaiting disinfection.
I would be prepared to circulate an amendment to provide for disinfection within a certain time. Within 24 hours might put a statutory obligation on a local authority that there would be difficulty in carrying out. The vehicle might be at a different headquarters from that of the local authority. A reasonable time limit might meet the provisions of the Act.
Will the Parliamentary Secretary consider it on Report Stage?
Yes.
On behalf of Deputy McGilligan, I move amendment No. 63:—
In sub-section (10) to delete paragraph (b), lines 8 to 10, page 16.
The sub-section provides that where a county authority carry out disinfection they may make a reasonable charge for doing so.
Amendment No. 64 seems to be an alternative to this one.
Before moving amendment No. 64 I wanted to give the Parliamentary Secretary an opportunity to explain what he has in mind in leaving paragraph (b) as it stands. It gives the local authority power to make a reasonable charge to the person who was conveyed, as he was responsible for bringing about the infection of the vehicle, whether he knew he was infected or not.
The county authority will carry out the disinfection. "In any other case" would include a case where a person was carried in such a vehicle without the knowledge of the owner or the driver that the person conveyed was suffering from an infectious disease. I do not know what the amendment adds to the section.
As it stands there might appear to be nothing wrong with a person, but he might find out later that he was suffering from scarlatina or measles or any of these diseases which are applicable to the section. In the interests of the owners of the vehicle, has he to report that he is suffering from a disease? It might be necessary in the public interest that that confession should be made, but if having innocently travelled in a vehicle while in an infectious condition he is liable under the section for the cost of the disinfection of the vehicle, he may hold his tongue. In the next amendment Deputy McGilligan is seeking to secure that just as the owner would not be liable under paragraph (a) unless he knowingly conveyed a person suffering from infectious disease, under paragraph (b) a person conveyed in a conveyance while suffering from an infectious disease would not be liable for the cost of the disinfection of the vehicle if he did not know that he was a probable source of infection.
That is so—if they did not know. If the owner or the person in charge knows that the person is suffering from an infectious disease and conveyed the person in his conveyance, the local authority may make a charge for the disinfection. There is no fault to be found with that. In any case where the owner or person in charge has not been aware that the person conveyed was a probable source of infection the local authority can make a charge for the cost of disinfecting the conveyance.
On behalf of Deputy McGilligan I move amendment No. 64:—
To add at the end of paragraph (b) the words "if it be proved that the person conveyed or the person having charge of the person conveyed knew that the person conveyed was a source of infection with an infectious disease at the time of such conveyance and that the person having charge of the person conveyed knew of or consented to such conveyance at such time".
The purpose of the amendment is that if a person, without knowing that he was suffering from an infectious disease, travelled in a public conveyance he would not be liable and if he found out, that night, that he was suffering from an infectious disease, he could, with perfect impunity, report the matter, so that the public health could be protected. Take the case of a person not feeling well and going to a doctor. He might get a taxi and might dismiss the taxi on reaching the doctor's house. He would realise, after seeing the doctor, that he was suffering from an infectious disease. It ought to be possible, in the public interest, for that person to report to the taxi owner or driver that he was suffering from an infectious disease and that the conveyance ought to be put through a process of disinfection. He having innocently been the cause of infecting the vehicle, should not be asked to bear the cost. If an amendment such as is proposed by Deputy McGilligan is not added, he would be liable to such charge and it might deter him from making the confession which in the public interest might be necessary.
I will look into that between this and Report Stage.
I move amendment No. 65:—
To add at the end of the section the following sub-section:—
(11) Nothing in this section shall apply in relation to an aircraft arriving from outside the State and which, while in the State, does not land any person or thing or take in any person or thing (other than any article for use in such aircraft).
Is this in accordance with the 1878 Act?
No, it is much more recent. This is international convention.
This Bill, we understand, is a new and up-to-date measure changing all the obsolete regulations and Acts that have hitherto governed public health but, in spite of the time that we have spent discussing Section 28, I doubt if we have yet got down to all the possible ramifications of the section. The discussion has been about the "person", the word "person" occurs in nearly every paragraph. I should like to ask the Parliamentary Secretary how far "things" will come into this section. For instance, there may be a case of infectious disease in a particular house. There will be clothes, bedding, etc., that will have to be removed and cleaned or washed. I think most of us who travel in public conveyances see from time to time bundles of washing or various other parcels that it is intended to deal with. Is it the position that under this section the conductor of a tramcar or bus, who must make himself aware of anybody in the district through which the vehicle passes who is suffering from an infectious disease, must also make himself aware of people who may be carrying things from that house for the purpose of having them cleaned or washed? To bring this to its logical conclusion, I take it the Parliamentary Secretary contends that in the case of certain diseases the clothes or bedding may be as dangerous as the person infected. How far is this going to be dealt with? Is the Parliamentary Secretary going to say: "That is all right; I will deal with that under the regulations" and, later on, when the regulations are produced that we have not yet seen is he going to slip in something to the effect that clothes or bedding which come from houses where there is infectious disease are to be treated in the same way, if carried in a public conveyance, as Section 28 now lays down in respect of persons? Does that bring us to the logical conclusion that ambulances or some special form of conveyance will have to be used for the purpose of bringing clothes or bedding which require special attention, as coming from infected houses, to laundries and cleaners? I should like to ask the Parliamentary Secretary if that aspect of the matter has occurred to him and how it is going to be dealt with.
In sub-section (5), there is provision that where the owner of a public conveyance learns that a person has been conveyed in the conveyance while a probable source of infection with an infectious disease, such owner shall forthwith take the conveyance out of service. What does that actually mean? Take the case of a taxi plying for hire. The taxi-man may be a married man with a large family. If he takes a patient to a hospital who, afterwards, is discovered to be an infectious case and if the Gárda authorities and the public health authority insist on the conveyance being taken out of commission, is there any method of compensating the taxi-man concerned?
If there is no method of compensating the man whose livelihood depends on his taxi, there is no encouragement given to him. He may possibly take the risk of not informing the Gárda authorities or the public health authorities that he had an infectious case in his taxi. In order that that man will report such a case, I ask the Parliamentary Secretary to state that a driver of such a conveyance will be encouraged to state the nature of the case he carried and that he need not fear that his livelihood will be taken from him. I suggest that if a taxi-man has his car put out of commission because of doing his duty by the State in reporting such a case, he ought to be given adequate compensation until his car is ready to go on the road again. I think the Parliamentary Secretary will agree that this is an important point and that it would be helpful if he could assure these people that they will lose nothing by reporting that a person suffering from a contagious disease had been carried in their taxi.
With regard to the point raised by Deputy Dockrell as to the carrying of articles and the disinfection of articles, structures, vehicles and other things, these matters are not dealt with in Section 28. Section 28 deals with the carrying of persons in a conveyance. The detailed regulations governing the matters mentioned by Deputy Dockrell will be placed on the Table of the House, under the Second Schedule, items 5 and 6. Item 5 provides for regulations dealing with the compulsory cleansing, disinfection and disinfestation of persons, buildings, structures, vehicles or articles, and the safe disposal or destruction of infected or dirty articles. The Deputy will have a full opportunity of discussing these regulations when they are placed before the House. The existing regulations dealing with these matters can be consulted. I do not think it will be necessary to make any radical departure in the matter of the regulations under this particular heading.
Regarding Deputy Byrne's point about the taxi-man taking a patient to a hospital, I do not think it will be possible to provide compensation for such a taxi-man if he takes a patient to hospital whom he knows to be a probable source of infection. He will not be under any obligation to take such a patient. There are conveyances for bringing infectious disease patients to hospital. His vehicle need not be long out of commission. Provision has already been made for the disinfection by the local authority of any vehicle that may be so used. As soon as he gets his vehicle disinfected he will be free again to ply his trade. I think that is a reasonable effort to meet the difficulties of the position.
I do not think that the local authority ought to be asked to compensate him for loss of time and possible loss of clients during the period within which his vehicle would actually be out of service. If such a provision were made, it could well happen that it would be more profitable for the taxi-man to take his vehicle out of service after giving a joy ride to someone suffering from an infectious disease than it would be to continue at a station. However, it is not likely that that will arise. In fact, I think it would be a very rare occurrence that a taxi-driver would in fact bring a person suffering from an infectious disease to hospital.
Even in the provincial centres we are fairly well supplied with ambulances for the removal of infectious disease cases. Here in the City of Dublin no difficulty has been brought to my notice in regard to the matter of providing vehicles for conveying infectious disease cases. Therefore, all private vehicles such as taxis ought to be discouraged and they should be used only, if at all, in a case of emergency, where the rapid removal of a patient would be necessary in the interest of the community and where an ambulance could not be found within a reasonable time. I doubt that such a circumstance would arise even in the City of Dublin. Anyhow, I do not see that we can make provision for compensation if a taxi-man, voluntarily and of his own free will, with full knowledge, takes upon himself to carry an infectious disease patient in his taxi. I think it is not unreasonable to ask him to put that taxi out of commission so that the next person who occupies the taxi will not run the risk of contracting the disease. It will only be put out of commission for a very short time until the local authority has an opportunity of having the vehicle disinfected.
The Parliamentary Secretary overlooked the point that I made. His last few words convinced me that he did not follow what I said. He said that if a man of his own free will takes an infectious case into his car the least he can expect is that his car should be taken away and disinfected. I agree with that. But that is not what the Bill says. The Bill says that such owner shall forthwith take the conveyance out of service. The Parliamentary Secretary said that a taxi should not be used for this purpose. He should have said knowingly used. If a doctor is called to a house in an outlying district, and the residents do not want the neighbours to see an ambulance pulling up at the door—it has happened in Dublin not once but thousands of times—a taxi may be ordered. When the patient arrives at the hospital it may be found to be an infectious case. In the meantime the taxi has gone away and somebody says that it should be traced. An advertisement may be inserted by the Garda authorities asking the taxi-man to report to them and he may not do so. You cannot blame him if he does not report to them. If he does, his taxi will be put out of commission and he will get no compensation, although his means of livelihood will be taken from him.
The Government have done so much in the interests of public health that I would appeal to the Parliamentary Secretary between this and the next stage to think over this matter and provide for some compensation to be paid to the taxi-man who voluntarily comes forward, in order to protect other persons who may be using his taxi, and says: "I am the driver of a taxi that brought an infectious case to such-and-such a hospital." The public health authorities or the Gárda authorities will say: "We will have to take the taxi for a period of 24 hours." It might be a period of seven days, according to the seriousness of the disease. That unfortunate man and his family will be left without bread and butter because of his honesty in reporting that he had taken a patient to a hospital. I appeal to the Parliamentary Secretary to consider that matter seriously and to improve this section by adding after the words "forthwith take the conveyance out of service" the words "and shall be compensated for his loss accordingly". It will mean only a few pounds. It might not mean £100 or £500 a year, for the whole country, to encourage these men to do right. I ask the Parliamentary Secretary to consider the point before Report Stage. Otherwise, I shall ask to be taken as objecting to that section because of that line.
I move amendment No. 66, on behalf of Deputy M. O'Sullivan:—
Before Section 29 to insert the following new section:—
An Order made under Section 27 or Section 28 of this Act shall be deemed to be a regulation within the meaning of Section 7 of this Act.
The purpose of this amendment is to secure that Orders made under Sections 27 and 28 shall be treated as regulations so far as their being laid on the Table is concerned. We have discussed the principle of the matter already and Deputy O'Sullivan desires that these matters should, if deemed desirable, be the subject of discussion in the House.
This has been covered by an earlier amendment.
I move amendment No. 67:—
In sub-section (1), line 15, after the word "opinion" to insert the words "after personal examination of a person carried out by such officer".
I think it will be admitted that this is a reasonable amendment having regard to the drastic powers given in the sub-section. The sub-section states: "Where the chief medical officer of a county or county borough, or the medical officer of a port sanitary authority is of opinion either consequent upon his own observations, or consequent upon information furnished to him by a registered medical practitioner, that a person in the area where such medical officer acts is a probable source of infection... such medical officer may order in writing the detention and isolation of such person in a specified hospital or other place...". Amendment No. 67 seeks to insert after the word, "opinion", the words "after personal examination of a person carried out by such officer". Having regard to the fact that the officer may order the detention and isolation of a person in any hospital or other place, it is not asking too much to require that that order shall issue only after the person has been seen and examined by the officer who is to issue the order for detention and isolation. The necessity for this safeguard should be clear to anybody reading the sub-section and the amendment must be considered a reasonable one.
If amendments Nos. 67, 68 and 69 be taken together they will show the wide alternatives for which Deputy McGilligan's amendment provides. If this section were amended as suggested it would read:—"Where the chief medical officer of a county or county borough or the medical officer of a port sanitary authority is of opinion, after personal examination of a person carried out by such officer, or where a registered medical practitioner, after personal examination of a person carried out by such practitioner is of opinion and notifies such medical officer..." The section would then provide that the order would issue only if either the chief medical officer of the county or county borough or the medical officer of the sanitary authority had personally carried out an examination of the person or a registered medical practitioner, other than he, had personally carried out an examination and had reported the result of that examination to the chief medical officer.
In these three amendments, Deputy McGilligan seeks to ensure that a person will be properly examined before such an order is made by the chief medical officer or the medical officer of the port sanitary authority or by a medical practitioner who advises the chief medical officer. The chief medical officer or medical officer of the port sanitary authority would then make the order on his own observation or it would be made on information furnished to the chief medical officer by a medical practitioner who had examined the person. Under the Bill as it stands, it does not seem to be the responsibility of the chief medical officer, or of the medical practitioner on whose report he may act, to carry out an examination of the individual. The patient should get a very thorough examination before any such order is made. Where the chief medical officer acts on the advice of a medical practitioner, that medical practitioner should be under an obligation to carry out an examination of the person. That is not prescribed in the section as it stands. The responsible medical officer could make an order merely on information furnished, which might not be first-hand information.
The House appreciates the point that the chief medical officer in the variety of circumstances, which may present themselves in connection with the operation of this section, could not personally examine every person who was a probable source of infection and who ought to be detained, because time might be an important factor and we have only one chief medical officer in the City of Dublin and only one chief medical officer, for the purpose of this section, in each of the counties. From the brief statements made in support of these amendments, I think that the House appreciates that difficulty. The sub-section, as drafted, states:
"Where the chief medical officer of a county or county borough or the medical officer of a port sanitary authority is of opinion either consequent upon his own observations, or consequent upon information furnished to him by a registered medical practitioner ..."
It has been suggested that the information upon which the chief medical officer would act might be conveyed to him by a medical practitioner who had not, in fact, examined the patient, and that it is conceivable that a person might be detained under this section who had not been examined by a medical officer at all. I would suggest to the House that it is so highly improbable, that it could be regarded as impossible, that any medical officer would advise the detention of a person without satisfying himself that the person should be detained as a danger——
Or as a probable source of infection.
As a danger to the general community. While I say that, if the House desires, as apparently the chief opposition Party does desire, to ensure, within the section at any rate, that there would be a statutory obligation to have the patient examined by some medical practitioner before the chief medical officer acts, I am prepared to meet the House to that extent. I think amendment No. 69 would be the most appropriate of the group of amendments, but by accepting any amendment at all, that whole part of the section would have to be examined. I am prepared to accept the principle embodied in amendment No. 69, it being understood, of course, that the first portion of the section as drafted, would stand, that the chief medical officer could act on the certificate of a medical practitioner.
The Minister will deal with it on Report?
Yes, so as to provide that some medical practitioner would have to examine the case.
I move amendment No. 73:—
In sub-section (1), line 19, to delete the words "or expedient".
I should like to hear what the Parliamentary Secretary has to say in regard to the necessity for the words "or expedient" in the section.
The Deputy will observe that sub-section (1), as the result of the acceptance of the principle of the amendment we have just discussed, will undergo considerable reconstruction. It reads at present "Where the chief medical officer of a county or county borough or the medical officer of a port sanitary authority is of opinion ...that a person in the area is a probable source of infection with an infectious disease and that his isolation is necessary or expedient in the interests of public health——" It appears to me that the medical officer would deem it expedient to isolate such a person as a safeguard.
In that case would it not be necessary?
It might not be absolutely necessary. He might not be sure it was necessary, but he might have sufficient doubt about it to feel that he would have to err on the side of safety and that it would be expedient to isolate the person. I think it would be wise to leave at least that amount of discretion to the medical officer. It is nearly on a par with the matter which we have discussed so much—the person who knows. The medical officer might be pretty well satisfied but, in fact, he would be very uneasy in his mind if he did not isolate the person. He could not be just sure that it was necessary but if he was satisfied that it was expedient, we could allow him that amount of discretion, because after all, none of us will forget that, in the main, our chief county medical officers or the medical superintendent officers of a county borough are men of fairly mature judgment. One does not get appointed to that post early in life. In addition to their specialised knowledge of infectious diseases, these medical officers usually have accumulated a considerable amount of worldly wisdom. I grant that we cannot assume that invariably every county medical officer will act in a thoroughly responsible way, but I think the risk is pretty small. At any rate, if anybody should be isolated or detained under the section, merely on suspicion, on the ground that it was expedient, and that, later on, the patient or anybody else is not satisfied that it was necessary, there is ample provision for the remedying of that position. On the whole, I think that we should leave these words in the section.
I think having regard to what is involved in this section for the person who may be detained or isolated, this power should only be exercised when the medical officer is satisfied that it is necessary in the public interest to have that person detained or isolated.
All right. Better leave it until we reconstruct the section. Personally, I do not see that a whole lot will be gained.
I move amendment No. 74:—
In sub-section (1), line 20, before the word "may", to insert the words "with the concurrence of a registered medical practitioner nominated by the person to carry out a personal examination of him and having carried out such examination, or, where the person is clearly advised of his right to nominate such practitioner as aforesaid and fails or refuses to make such nomination, with the concurrence of a registered medical practitioner chosen by such medical officer, and, in the event of disagreement between such officer and such practitioner, with the concurrence of such other registered medical practitioner as may be agreed upon between such officer and either the person, or the practitioner nominated by such person, or the practitioner chosen by such officer as the case may be".
This amendment provides that where there is a conflict of opinion between a registered medical practitioner and the chief medical officer as to whether a person should be detained in isolation, a third opinion agreed upon by these two persons may be brought in to decide whether it is necessary to have the person detained in isolation. In a case where the chief medical officer himself is the person who has examined the patient and proposes to make an order, the amendment provides that the person whom it is proposed to deal with in that way will be advised that he has a right to nominate a medical practitioner, to controvert, if he desires to do so, the opinion of the chief medical officer. In any case he can bring in an adviser of his own to consider his case and to consider the decision of the chief medical officer. If there is a conflict between these two in the matter, a third person agreeable to the two persons involved will be brought in as a kind of decider. It gives an expert court of appeal in the case of a person likely to come under the compulsory powers of this section.
Under this amendment, we would set up a rather complicated, tedious and slow-moving type of machine. In the first place, the chief medical officer would have satisfied himself in one or other of the various ways we have been discussing that it was necessary to isolate and detain a person who is a probable source of infection. Bearing in mind that the chief medical officer, in addition to having reached fairly ripe years of wisdom and of age, has acquired specialised knowledge in the matter of infectious diseases, and has a statutory obligation placed upon him for the control of infectious diseases in his area, it seems to me unwise to place such obstruction, if you like, in his way as would delay him in the important matter of isolating a person whose isolation, in his opinion, is necessary.
Under this scheme, a patient may nominate a practitioner, and clearly the patient is dissatisfied with the decision to detain him in an institution. Otherwise, he would not want to nominate any practitioner to call into consultation with the chief medical officer. We then have reached a position where the opinion of the practitioner brought in will be of equal importance in so far as an immediate decision is concerned with the opinion of the expert and the man who has a statutory obligation placed upon him. Time is passing while all these disputes are being adjusted, if they can be adjusted at all, and time is a very important factor in this matter. The chief medical officer does not lightly come to the conclusion that it is necessary to isolate anybody, but if he is to be obstructed by this compulsory type of machinery, you will make it very difficult for him to discharge his duties properly. If the doctor nominated by the patient disagrees with the chief medical officer, another medical man has to be called in. He, too, may have little or no specialised knowledge of infectious diseases at all.
I suggest to the House that all this is entirely unnecessary, and, again without unduly labouring it, let me direct the attention of the House to the machinery that operated in the past to meet this particular type of difficulty. In the olden days, before the institutions of government were set up in this State, if a person suffering from an infectious disease declined to go to an institution, the district medical officer could get an order from a justice of the peace for the patient's forcible removal. Without disparaging in any way the justices of the peace, most of us know that they had not any specialised knowledge as to the desirability or necessity of isolating anybody. On what evidence was the justice of the peace to act? He certainly could not act on his own knowledge, because he was issuing an order on a matter of a purely medical nature, and, consequently, if he were to act at all, he had to act on the opinion of the medical officer who applied for the order and who was the dispensary doctor of the district. I do not think it can reasonably be argued that the machinery proposed in the Bill is unfavourably loaded against the persons who may be detained under the section by reason of the change we are making.
Justices of the peace passed out, and we got our district justices and the district justice became the proper authority for issuing such an order. The machinery of the district justice for this particular purpose is not workable. Down the country, as people from the provinces will know, the district justice sits once a fortnight or once a week at most in the particular towns. If the county medical officer of health had to go before a district justice, make his case and secure an order from the district justice, clearly the section would be ineffective to meet the purpose intended.
But nobody will ask that.
I will come to what you are asking. I am merely tracing the history of the machinery provided to deal with this particular type of problem, without any intention of rubbing it into the Deputy for having been satisfied with that machinery for so long a time.
He cannot help himself; it must break out in spite of him.
We will have all this later on. Surely there is nothing wrong with reminding the Deputy——
I hope none of us catches the disease from which the Parliamentary Secretary is apparently suffering.
If you got some of the diseases the Parliamentary Secretary has, it would make a tremendous improvement in you, but they are not infectious unfortunately. That machinery, as I say, was unsatisfactory, and, in 1919, regulations were made which provided the type of machinery we are providing in this Bill. I hope I will not be accused of misleading the House. I had better make sure of reading them so as to safeguard myself fully. Article 19 (2) of the 1919 regulations provided:
"Where any suitable hospital or place for the reception of the sick is provided within the district of a sanitary authority or within a convenient distance of such district, any person who is suffering from malaria, dysentery, trench fever and is without proper lodging or accommodation or is lodged in a room occupied by more than one family or is on board any ship, vessel or boat or is lodged in any common lodging house or is in any place where such person cannot be effectively isolated so as to prevent the spread of the disease may on a certificate signed by the medical officer of health and with the consent of the superintending body of such hospital or place be removed to such hospital or place at the cost of the sanitary authority".
These regulations remained in operation until 1929. They, at any rate, established the principle of isolating persons suffering from certain specified infectious diseases who are a probable source of infection on the certificate of the medical officer of health. Therefore, so far as this particular departure—which has been the subject of a good deal of criticism—is concerned, it is not of a very novel nature either.
Was the provision there whereby the patient, if he desired, could ask for an appeal?
There was no provision at all for an appeal. So far as the provision for appeal was concerned, not only could the justice of the peace, and subsequently the district justice, order the original or intermittent detention of the patient, but he could order the continued detention if, after the disease in its acute form had spent itself, it would appear to be dangerous to allow the person out of the institution. The medical officer could get an order from the district justice, or the justice of the peace that preceded him, detaining the patient for any specified length of time and by renewing the detention order from time to time, he could keep him in custody indefinitely. When the emergency began, and we found ourselves in difficulties again in regard to this particular problem of rapidly isolating a patient who was either a contact or actually suffering from an infectious disease, we found that the machinery we had would not operate with sufficient rapidity to ensure the safety of the community. Under an Emergency Powers Order, we set up the machinery that has operated from 1940 down to the present day, that is, for the past six years. Under that Order, the Minister orders the detention of a person. We have detained quite a number of people under that Order. Deputy Mulcahy got the particulars, in answer to a question. It was a considerable number—I think, 160—within the past six years. Clearly, that machinery is not as satisfactory as the machinery proposed in the Bill.
The number was 30.
I included the contacts. What has the Minister to guide him? He is requested by telephone or telegram to issue an Order for the detention of Mr. X and Mrs. X and the little X's, who are probable sources of infection. He cannot take the responsibility of refusing to give the Order, because if he has confidence at all in his chief medical officers of health he has to decide that the responsible officer would not ask him to make such an Order unless he believed it was necessary. Consequently, we have made these Orders, we have never seen the patients, we have to assume that our officers will act in a responsible way, and we are fortified in that assumption by the knowledge that they do act in a reasonable way and that the medical profession is a noble profession with the highest traditions —even though I do belong to it, and the profession will be forgiven for that.
In the light of all that experience of the different types of machinery set up from time to time to deal with this matter, the machinery set out in Section 29 has been devised. I feel it is a reasonable proposition to put to the House that, in consideration of the fact that an immediate appeal can be made to the Minister if any person feels aggrieved because of the exercise of a detention order, we ought to allow the chief medical officer of health to exercise his judgment in this matter. I do not believe any hardship will be inflicted on anybody, but I do say that, under the terms of the provision, no continuing hardship can operate, because an appeal lies to the Minister. If anybody is dissatisfied, the case can be expeditiously and thoroughly investigated and if a person should not be detained he will be detained no longer. The machinery set out in this amendment could not work expeditiously and could only give rise to friction. It could only operate, in my opinion, to defeat the object and intention of the section. I do not know how strongly Deputies feel as to the propriety of making the amendments that are suggested here, but I think it would be highly injudicious to pursue this line and set up this particular type of machinery. It would be wiser to leave us the machinery proposed in the Bill. I feel perfectly certain that, if I come back in old age to whomsoever is in this House in 20 years—if we live that length of time— I will be told that no hardship has been inflicted on anyone under the terms of Section 29.
I think the Parliamentary Secretary has made a case for the appeal. He has reminded the House that it was always considered necessary to have some person other than the medical officer himself. In the old days, it was considered necessary to go before the local justice of the peace. That was up to 1919. It must be remembered that, in those days, we had not the same wording as we have now, it was not a question of "probable source of infection." It was then for specific infectious disease. The Parliamentary Secretary said that the justice of the peace had to be guided by the medical officer making the application for the detention order. I do not think he was confined to that. I do not know if there was anything to debar the person concerned from getting another medical opinion and having that put before the justice of the peace. That system was changed in 1919, but even after that it was still considered necessary to have some check.
The Parliamentary Secretary, again quoting from the regulations of 1919, whether intentionally or not, was trying to give the impression to the House that those regulations dealt with the same sort of thing as he is trying to deal with under this section. It was not the same. First and foremost, the powers such as they were in 1919, were not as great and, secondly, they were only in respect of specified infectious diseases, actually named and limited. Here we are dealing with "a probable source of infection". After 1919, as the Parliamentary Secretary said, the Minister had to make the order, at the request of the chief county medical officer of health. Even that in itself was a check, since no such officer would ask the Minister to make an order unless he were absolutely satisfied as to the reason for the order. Now we are asked to depart from that procedure, in respect of a far wider range of diseases, and even then not for specified diseases, but for cases where a person may be considered to be "a probable source of infection". The Parliamentary Secretary is asking that whatever safeguards were thought necessary, not only during our own period from 1922 to this date, but even during the British period, they are now to be wiped out completely by this Bill. I do not think the House ought to give the unrestricted powers for which the Parliamentary Secretary is looking.
The type of case that I am concerned with is what is known in typhoid as an intermittent carrier. I speak here without any specialised knowledge, but I understand that in cases of typhoid a person may be a source of infection for a short time, then there may be an interim period during which that person is no longer a source of infection, and then at a later period he becomes again a source of infection. In a case like that I do not know what the period may be when the person would be a source of infection, but I understand that one case resulted in a number of people becoming infected, and it was then this particular type of carrier was discovered.
Take the case of a person who appeals to the Minister. The Minister, I presume, then consults the county medical officer of health. Is there any provision whereby the person concerned could have independent medical advice, or an independent medical adviser who would also report to the Minister? In such a case it is desirable that the Minister should act not merely on the opinion of the county medical officer of health who, no doubt, would be acting bona fide. In some of these very difficult stages of a disease where a doubt may exist, I think the doubt should always be resolved in favour of the patient, because the liberty of the subject is important. Where a person is detained, possibly for a lengthy period, an independent adviser should be available, not alone from the patient's but also from the Minister's point of view, to consult with and give an opinion. In that way the person concerned will have the full benefit of medical opinion.
I would like to put this point to the Parliamentary Secretary. Nobody wants to tie the medical officer of health or other competent medical authorities into knots. Nobody wants to prevent the removal of a source, or a probable source, of infection. But what are the safeguards against a mistake in a medical opinion or, a still graver thing, a miscarriage of justice? Could something be inserted into the sub-section which will provide for the right of examination after the person has been removed to a hospital or other place, to quote the words of the section? In other words, could some system be devised whereby the medical officer of health would be given the widest powers to which his position would entitle him and also give the person concerned certain safeguards against being held up for a long period, perhaps through a mistake on the part of the medical authority or perhaps through the more unlikely but still graver case of an actual miscarriage of justice?
I should like to know from the Parliamentary Secretary whether the phrase "other place" excludes the possibility of a person being left in his own home if the medical officer is satisfied that the isolation will be sufficiently safe?
Might I say first, in reply to Deputy Morrissey, that I will refer him to Sections 61 and 65 of the Act of 1907? He will find that under these sections the procedure by court order applies to all infectious diseases. The regulations under the 1919 Act are confined to specified diseases, but all infectious diseases are covered by Sections 61 and 65 of the 1907 Act. It is there we have the round-about machinery of going through the court to get an order.
Deputy Cosgrave mentioned the difficulty of the intermittent carrier. The intermittent carrier does undoubtedly present a difficulty. It would be altogether wrong to assume that any or all carriers will be detained in an institution under this section until he or they are definitely and finally rid of the carrier condition. Let me take an intermittent carrier, for example. For periods that medical scientists cannot estimate— they can only ascertain by frequent and periodical examination—the intermittent carrier will be found not to be a probable source of infection. In other words, a probable source of infection this week may, in the course of a few weeks, clear up for a period and then become a probable source of infection later on. That type of case is difficult to deal with, because you cannot estimate in advance how long such a patient is likely to go free from the carrier condition.
Let us take a case of infantile paralysis. It is now fairly generally accepted by medical scientists that the virus which causes infantile paralysis is excreted for a considerable period after the disease has passed over—perhaps a matter of months. They are two types of cases we have to deal with. Coming now to the openly infectious case of tuberculosis, the sputum positive case may become sputum negative for a period and then become sputum positive again, so that we will have to exercise continuing supervision of all types of cases that are carriers, but not necessarily constant or continuing carriers. It is not proposed or intended that these people should be confined for the rest of their lives in an institution. These three types of cases will constitute, in the light of our present knowledge, the principal difficulties. Possibly there will be diphtheria, but it will not constitute so great a difficulty.
We would hope, and hope with absolute confidence, that, by means of a period of training as to personal conduct, personal hygiene, the treatment of excreta, and the disposal of sputum —even if we are not able to cure the carrier condition—that having given our patient a period of training in an institution as to how it would be necessary to behave in private life in order to protect the community, such a patient can with safety be released to his home. We would still, through our public health machinery, have to keep in contact with that patient so as to ensure that the precautions which the patient has been taught to take for the protection of the community will continue to be taken. That is the conception behind the section. I think it is a reasonable conception. These are things that cannot be translated into Acts of Parliament. You have to take powers to do things that appear to be outlandish and even outrageous, but which are absolutely essential. We do not intend to do anything either outlandish or outrageous. It may be difficult for the Opposition to try to place that kind of trust and confidence in us. I think the machinery is reasonable machinery, and that it will work reasonably well. Once again I say that I do not think any Deputy need fear consequences either to the patient or to the public health under this section.
The Parliamentary Secretary directed our attention to Sections 61 and 65 of the Act of 1907, and said that they applied to all the infectious diseases set out in the section that we were discussing—Section 29—which deals with the treatment of a person who is a probable source of infection and so on. It is well to see what are the terms of Section 61 of the Act of 1907 as against what the Parliamentary Secretary has said. The section, having dealt with the question of putting up a temporary shelter or house accommodation, goes on to say:
"Where the local authority in pursuance of the aforesaid powers have provided a temporary shelter or house accommodation they may, on the appearance of any infectious disease in a house, and on the certificate of the medical officer, cause any person who is not himself sick, and who consents to leave the house, or whose parent or guardian (where the person is a child) consents to his leaving the house, to be removed therefrom to any such temporary shelter or house accommodation, and in the like case on the like certificate may cause any such person who does not consent to leave the house to be removed therefrom to any such temporary shelter or house accommodation where two justices, on the application of the local authority, and on being satisfied of the necessity of the removal, make an Order for the removal, subject to such conditions (if any) as are imposed by the Order."
That section seems to imply that a certain amount of discretion resides in the two justices to have the case proved to them. The Parliamentary Secretary has made some point about the urgency of dealing with these things. I do not see that there can be any very serious delay where there is a question of calling in a second opinion, particularly if the case has been dealt with on a medical practitioner's report to the county medical officer. No doubt, he will have indicated whether he thinks the case is one which should be isolated or not. If there is any conflict of opinion between the person reporting the case and the chief medical officer that will be seen at once, and the calling in of a third person should not involve any great delay.
To leave the section as it stands savours carrying forward into ordinary peace times the smack for doing things on the hop that the Government got accustomed to by means of dealing with situations through Emergency Powers Orders. On a number of occasions recently we have been asked to enshrine in our legislation if not a full Emergency Powers Order certainly the seed or the shadow of one. I do not think it is advisable, since no serious kind of argument has been put forward in support of this, to leave it to the county medical officer of health alone, subject to an appeal to the Minister. The section does not give the necessary power or suggestion of appeal.
I do not think the amendment that we are discussing is one that calls for support because of the complicated machinery which it proposes to provide under sub-section (1). The Parliamentary Secretary has stated that he is prepared to consider on Report an alteration of the section in regard to securing the personal examination of a person, a thing which, to my mind, would be satisfactory. There is one point in regard to which I have some difficulty. I take it that if the medical officer, either through his own personal examination or that of his deputy, satisfies himself that a person is either suffering from an infectious disease or is a probable source of infection, he is still left with discretionary powers under the section to leave the patient in his own home if he is satisfied that the facilities for isolation are satisfactory, and that he is not under any compulsion to order the detention of that person in a hospital or elsewhere. It is from that point of view that I am still somewhat dissatisfied with the section. I would be quite satisfied if on the medical officer on his own examination or that of his deputy, having certified that a person is either infected or a source of infection, when it comes to the question of deciding whether it is essential that that person should be removed from his own home to a hospital or place of detention, an opportunity would be afforded of calling in another doctor.
I say that because all our hospitals and places of detention are not of an equally high standard. If I or some member of my family were under the necessity of being isolated at the present time we would be faced with a very great difficulty, due to the fact that a distance of a mile or a mile and a half would make a difference as to the choice that would be offered to us in the matter of hospital accommodation. I think that, in cases of this sort, when the medical officer feels that the facilities in the home are not sufficient to provide satisfactory isolation for the patient, those in charge of the patient should be afforded an opportunity of calling in another doctor so that there could be discussion and consideration not only of the conditions in the home but of those in the institution to which the patient would normally be sent. There is the ever present danger of cross infection as well as the question of general surroundings, and the distance from the home to the institution to which a patient may be sent, especially where the patient happens to be a child. I move to report progress.