After the discussion we had last night, I think we might withdraw this amendment.
Public Health Bill, 1945—Committee (Resumed).
Debate resumed on amendment No. 74, page 24.
Amendment, by leave, withdrawn.
A number of amendments go with amendment No. as far as I can see—amendments Nos. 87, 132, 134, 139, 140, 142 and 145. It seems to me they go with it.
Amendment No. 75 not moved.
Amendment No. 76 and, I think, amendments Nos. 93 and 101 go with it.
I think I will say "not moved" to that and that whatever would take place on amendment No. 79 might determine whether or not we would go back on these on Report.
Amendments Nos 76 and 77 go together.
Amendments Nos. 76, 77 and 78 not moved.
I move amendment No. 79:—
In sub-section (1), line 22, to insert after the word "place" the words "which may be the person's home".
The section would then read: "... such medical officer may order in writing the detention and isolation of such person in a specified hospital or other place, which may be the person's home, until such medical officer gives a certificate..." The diseases that it is proposed to deal with under Section 29 include, among other things, such diseases as scarlet fever, diphtheria, tuberculosis, certain aspects of venereal disease, syphilis, and it is quite clear that there are very many cases which, with no prejudice to the public health and with much greater chance of rest and proper isolation and treatment, might be dealt with in the person's home where the nature of the isolation would be satisfactory to the medical practitioner and to the responsible chief medical officer of the county.
The machinery for the control of infectious diseases embraces provision for isolation in the home. Anybody with practical experience of these problems will at once agree that under certain circumstances and conditions, that would satisfy the responsible medical officer of health, it is possible to have persons treated for quite a number of infectious diseases by adequate and proper isolation in the home. Isolation in the home under such circumstances as I am trying to envisage would be provided for by regulations under Section 20. It may be desirable, and I rather think it would, in addition to the other matters that are provided for in the Second Schedule—matters for which provision may be made in regulations for the prevention of the spread of infectious disease—to incorporate, as a matter in respect of which specific regulations could be made, isolation in the home. It is not absolutely necessary; it could be done under the regulations and in fact is done at the present time under instructions— verbal instructions, in fact—and professional understanding between the responsible medical officer of health and the medical attendant on the patient, but it would draw specific and particular attention to the possibility of such isolation if we provide for it in the manner suggested in the Schedule. Detention is a somewhat different matter. It does not seem possible to provide for the detention of a person in the home. Section 29 is intended, as Deputies will see, to deal with the position where the responsible chief medical officer of the area deems it necessary to detain and isolate. It envisages the set of circumstances within which it would not be possible to deal with the situation in the patient's home, but I think the object that Deputy Mulcahy has in mind can be properly achieved in the other way.
I should like to urge the Parliamentary Secretary to go as far as he possibly can to meet the intention behind this amendment and I do so from the point of view of getting the co-operation of the people in dealing with infectious diseases, particularly regarding children.
It is one problem here in the city; it is a different problem in the rural areas, because in many cases where a child gets diphtheria or measles or any of the other diseases that may entail isolation and detention and has to be sent to a hospital or institution ten, 20, 30 or 40 miles away from its home, the mother is, perhaps naturally, reluctant to let the child go. I am afraid that the consequence is that there is a temptation to cloak the disease so that the child will not be sent away. Having regard to the ordinary safeguards that must be taken and as far as it can be done without injury to public health and without danger of infection to other people, we ought as far as possible to have the isolation and the detention in the patient's home. I urge this because I believe that if the local medical officers make it a practice, as I think they are inclined to do —perhaps because of the circumstances of the home they are compelled to do it —of sending these children to institutions 20 or 30 or, perhaps, 40 miles away you will only increase the temptation to cloak the disease rather than to have them sent away.
I would strongly urge that on the Parliamentary Secretary. I have some experience of this. I know that in one part of my county the institution which deals with diseases such as those is situated anything from ten to 30 miles from the homes of a lot of the patients and we have rather painful evidence of the fact that the mothers of children are very reluctant—some of them make no secret of the fact—to allow their children to be sent there, particularly if they are very young. I appreciate, of course, that in many cases, having regard to the size of the house and, perhaps, to the size of the family, it is not possible to have a child suffering from any infectious disease isolated from the other members of the family. But where the medical officer is satisfied that it can be done without danger to others, I think it ought to be done. We ought to stress that as far as we can.
I think we will meet that in the manner I have suggested by making specific provision for isolation in the home by the making of regulations providing for isolation in the home, but, at the same time, to give the chief medical officer discretion in the matter. It is always well to bear in mind that Section 29 will only operate where the chief medical officer is satisfied that he cannot otherwise secure proper isolation of the patient for the safety of the community.
It is not set out here.
We cannot set out everything.
That is the trouble. That may be in the Parliamentary Secretary's mind, but it is not set out here. If it were, I would be quite satisfied.
As the Deputy is aware, medical officers of health have very extensive powers over the control of infectious disease.
I do not want to cast any reflection on county medical officers of health; quite the contrary. Perhaps my views may be somewhat coloured by some unfortunate experiences of my own. I am not urging this point with that in mind. I am urging it solely from the point of view of getting the fullest co-operation from the parents of the children. I am not so much concerned in this matter with adults, but I think the Parliamentary Secretary will agree from his own knowledge of the country and of country towns that where children have to be sent some distance away from their homes which will make it difficult if not impossible for mothers to visit them, there will be an inclination to cloak the disease.
The inclination and the practice are widespread.
That is the reason I would like, as far as possible, to meet that inclination by having them isolated in their homes. I recognise that perhaps in the majority of cases there would not be sufficient accommodation in the homes to have them properly isolated.
I will amend the Schedule in the way suggested.
The amending of the Schedule is advisable. Even when we come to discuss amendment No. 82 in the name of Deputy Hughes I think that is also advisable. I think the Parliamentary Secretary ought to give the chief medical officer the outlook suggested in this amendment. In dealing with difficult people there might be cases where the thing that would dictate itself is that the person should be kept at home. The chief medical officer, as a preliminary at any rate, in order to help to remove some small attitude of rebellion on the part of the person concerned might order the isolation of the person in his home, even though there might be unwillingness on the part of the person so ordered at that particular time to react to all the restrictions put on him. Nevertheless, a day or two might allow that spirit of rebellion to pass and the chief medical officer might find the case satisfactorily dealt with by suitable isolation in the home. If the chief medical officer finds that there is such a rebellious spirit that the only solution for him is to order the removal of the person from his home and isolation in an institution, he might find himself up against difficulties that he ought not to be pressed up against. I feel that the wording of the section as it stands might press him up against difficulties that a day or two might remove if he were in a position to order detention and isolation in the person's home. The question arises as to whether the words "other place" as they stand would not include a patient's home.
They would, in fact.
I think it would be better to make it clear so that there would be no lingering doubt in any person's mind that the chief medical officer could step in and take an authoritative attitude and issue an order in relation to a person who has been isolated. I would press on the Parliamentary Secretary to accept the amendment in order to make the sub-section read that a person could be detained under these compulsory powers in his home.
As Deputy Mulcahy himself has just mentioned, in fact the words "other place" are not limited and could include a patient's home if the medical officer decided that the person could be properly isolated and detained in his home. It was not the intention to detain people in their homes, because it did not appear to be feasible. Even following what Deputy Mulcahy has said, it is not clear how a person could be detained in his home, because detention is holding a person who is unwilling to accept isolation. Isolation in the home is a different matter because in that case you have the co-operation of the patient and of his family. I think my suggested method of meeting the situation is the best, and if we are driven back to the possible contingency where, in some extraordinary or exceptional set of circumstances, the chief medical officer desires to detain a patient for a couple of days to see if he would become more co-operative, as Deputy Mulcahy suggests, it could be done, because "other place" would include the home.
I accept the Parliamentary Secretary's assurance on the point and ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 80 and 81 not moved.
I move amendment No. 82:—
Before sub-section (2) to insert a new sub-section as follows:—
No such order in writing referred to in the foregoing sub-section shall be made unless the person so infected has refused the request of a medical practitioner to enter a specified hospital for the purpose of isolation and treatment or has refused to be isolated and treated in his own home or other place considered suitable for such purpose by the medical practitioner.
In view of the rather penal nature of the section, it is desirable to put in such a sub-section as this to make it perfectly clear that the powers to be used under this section will be used only in cases of absolute non-co-operation.
Acceptance of this amendment would seem to involve acceptance of the implication that the county medical officer of health would not act in a fully responsible way. The chief medical officer will not operate this section, unless he is satisfied that the isolation is necessary in the interests of public health. Deputy Mulcahy asks us to put a specific statutory obligation upon the chief medical officer not to make a detention order unless the patient has refused all co-operation in any shape or form. I do not think we should assume that the chief medical officer of a county or city would in fact detain anyone unless he were satisfied —under the statute, he must in fact be satisfied—that such detention was necessary.
There is also the other point—perhaps not very important and perhaps of some importance—that no payment for maintenance can be claimed by the local authority from the patients who are detained under Section 29. That point may be worthy of some consideration. It is not of corresponding importance to the maintenance payments which might fall to be collected in an ordinary general hospital because local authorities are not encouraged to press for maintenance fees in fever and isolation hospitals, for the sound reason that people are isolated in these institutions as much in the interests of the community as in their own interests. At the same time, people who can afford to pay are expected to pay and it is open to the local authority to recover the cost of maintenance and treatment. There is that advantage, anyhow, whatever it is worth, in compulsory detention that no claim can be made for payment.
I do not think it is necessary, and I do not think it is a good thing at the outset to imply that we are not prepared to trust to the good judgment of our chief medical officers in a matter such as this. They have serious and weighty statutory responsibilities placed upon them. In my own experience, I am not aware of any such irresponsible conduct as this amendment would appear to foreshadow. I do not know whether Deputy Hughes, if he were here, would be impressed by the arguments against his amendment, but I do very seriously think it would not be an improvement of the measure to incorporate this amendment.
I am afraid the Parliamentary Secretary has failed to grasp the real meaning of the amendment. It does not in any way seek to take away from the powers of the medical officer. All it asks is that a person who is prepared voluntarily to act on the instructions of the medical officer shall not have an order made against him.
It will not be necessary if he is prepared to act.
Read sub-section (1) and look at the whole trend of the Bill. The word "shall" is not used in sub-section (1), but the whole implication of "shall" is there. The medical officer must report to the chief medical officer, and, upon receipt of such report that a person is suffering from an infectious disease, the chief medical officer may do so-and-so. All we are asking here is that the order shall only issue when a patient refuses to carry out the instructions.
You have that in the whole context of the Bill.
If we have, what is the objection to the amendment?
The detention order will operate only when the chief medical officer considers it necessary for the protection of the public.
It is the issuing of the order that I am concerned with. I am not concerned with the question of detention. Suppose to-morrow morning I am told that I shall have to be detained and isolated in a particular hospital because I am suffering from an infectious disease, and I say: "All right; when do I go in?" I object to having an order served on me in just the same way as the fellow who refuses point blank to co-operate in any way. It is like serving a subpæna on a willing witness.
It will not be necessary to serve an order on you, if you are prepared to accept isolation.
I am not satisfied about that.
It is there in the section.
If that is so, what harm will acceptance of the amendment do? We are not taking any power from the medical officer to issue his order if a person refuses to co-operate. We say he shall issue his order only where a person refuses to co-operate. Where a person refuses to carry out and to act on the instructions of the medical officer, the order can be made against him immediately, but I think there ought to be a differentiation between the person who is prepared fully to co-operate and the person who says point blank that he will not.
I cannot see any point in it.
The words "in his own home" might be very dangerous in that amendment, even if the Minister were prepared to accept it. A person might opt to be isolated in his own home although the medical practitioner might not wish that.
If that is the only objection, I do not mind having that taken out, in view of what has happened already.
Also in that amendment it is assumed that the person is infected. Under Section 29, sub-section (1), it does not say infection but only suspicion of infection.
No one would hold to the actual wording, which would not do at all. We are dealing with the idea behind the amendment.
As a member of a local authority with experience of such persons in the past, I suggest to the Minister to hold fast to his own section as it is a very vital need of local authorities at the moment. It is the carriers that the section is meant to deal with more than anything else.
And contacts.
Is it?
Local authorities felt the need of such a provision as that in the past and they have no power to isolate or detain carriers. It is important to have that power.
We are not taking it away from them.
If a person volunteers to go into a fever hospital for treatment or examination, no order will be served upon him. There is nothing in the section compelling an order to be served upon a person who has volunteered.
There is nothing to say it will not be served.
It is the medical officer who will discover it in the first instance and we can assume also that he will communicate with the patient. He will not make a private report to the medical officer of health.
He must.
Not necessarily. He will be called in to treat or examine the patient. If he refuses to go away, the order can be made. That is all the section means, as I read it.
With all respect to Deputy Allen, I am afraid he has not grasped the meaning of this amendment. If objection is taken to the wording at the end, regarding "in his own home", in view of what the Parliamentary Secretary has said in relation to an earlier amendment, if he accepts the principle we are trying to convey he could bring in a form of words of his own to cover that, without in any way taking from the powers of the medical officer. I think we should make some differentiation between the person who is prepared to co-operate fully with the medical authorities and the person who says obstinately: "I will not do anything at all". You will have to use the law against him. If the Parliamentary Secretary is prepared to bring in a form of words of his own to meet the point, I would be quite satisfied.
I am not worried about the wording of the amendment at all, but about the principle of it.
On the general principle, my feeling is that there would be a fresh bright spot introduced into this rather sombre section if there were a sub-section there clearly stating that no order would be issued under this section except in the case of a person utterly unwilling to co-operate in every way. The Parliamentary Secretary has complained about the misunderstandings and the misrepresentations that have arisen around and been made about this measure. Even to help to do something to clear away some of this, from his own point of view, he ought to consider whether a sub-section like that should not go in. It seems wrong to think you are protecting the prestige and position of a county medical officer of health by leaving out a reference to the effect that no order would be issued except in the case of an unwilling person. It would clear away some of the suspicions from the personality of the officer, if it is clearly shown in the statute that it is only in the case of a person unwilling, whose detention is necessary in the interest of public health, that the chief medical officer can act.
I will further consider the views that have been expressed.
Amendment, by leave, withdrawn.
There are two amendments, amendments Nos. 83 and 84, dealing with the same matter, the setting up of a board of referees. In the case of No. 83, paragraph (2) is out of order, as it would impose a charge upon the Exchequer. Presumably, if such a board were set up, the members would get their allowances and expenses, but it is not permissible for a private Deputy to move that that be done. Perhaps Deputy Cosgrave would move the first portion of amendment No. 83?
Under the present scheme, the Minister will take good care that the expenses of such persons will come out of the rates.
I take it that paragraph (2) of amendment No. 83, has been deleted. Amendments Nos. 83 and 84 will be discussed together.
I move amendment No. 83, as follows:—
Before sub-section (2) to insert a new sub-section as follows:—
There shall be established an appeal board consisting of three registered medical practitioners appointed by the Minister to consider appeals under this section.
The purpose of this amendment is to get some information on the question of a person who is detained and wishes to appeal against it. I notice that the Minister has a later amendment, No. 129, which makes provision where a patient is detained for more than six months. We had a discussion on this last night, but I am not altogether satisfied. In the case of a person who has been detained as a probable source of infection and who appeals to the Minister, I take it the Minister would consult the district or the county medical officer of health who ordered the detention. Presumably there is nobody else he could consult, unless he appointed an independent medical person to examine the patient. A patient should have a right of independent appeal, particularly in the event of a dispute. While amendment No. 129, if accepted, would give the patient liberty to appeal at the end of six months, where a person is detained in an institution or even in his own home it is very desirable that he should have a right of appeal. Where his personal liberty is concerned, in the event of a dispute he should have power to have the opinion on the question of infection of an independent medical adviser. I would like to hear what the proposed machinery is under this section.
I would like to support the proposal to provide a right of appeal, as is suggested by Deputy Blowick's amendment No. 84. On an earlier stage of the Bill I was keen on having a wider appeal board, to deal with not only matters arising under this particular section but any issue arising under any of the Public Health Acts. However, as the poor man said: "Something is better than nothing." It would be very desirable to have an appeal in this case. There is in the section an appeal to the Minister, but I am not satisfied it would provide adequate security to the patient. One of the things which we dread most at the present time is the growing power of heads of Departments over all aspects of life. There are now very few people really independent. The independence of the citizen is being restricted and circumscribed to a greater extent every day.
In this amendment it is sought to bring in three independent members of the medical profession to adjudicate upon a case which may be put up by the person who feels he is aggrieved by being interned or isolated. There is a variety of ways in which a person might be aggrieved or unjustly treated. It might arise from the fact that the disease from which he was alleged to be suffering might not be in its infectious stage, or it might arise from the fact that there might be a wrong diagnosis of the disease. It might also happen that the person being detained in an institution might be detained in one which he considers unsuitable. He might desire to be isolated in some alternative institution. There is also the point about isolation in an institution and isolation in a home. The patient might feel that public health interests, the safety of the public, would be met by isolation in his own home and he might have a case there to be argued, a case which could only be decided by an impartial board such as is envisaged here. I think there is a reasonable case for the amendment and the Parliamentary Secretary ought to accept it.
I should like to take advantage of those two amendments in order to get some information with regard to an appeal. The section sets out:—
"(k) the patient (or the parent of the patient, where the patient is under 16 years of age) may at any time appeal to the Minister in writing to direct the release of the patient ..."
"(m) if at any time the Minister directs the release ..."
I would like some information on this. It may be covered somewhere else in the Bill, where I have not seen it but, so far as I can see, there is nothing in the section indicating that the Minister shall decide the appeal, much less that he shall decide it within any given time. Nowhere in this section, or elsewhere so far as I can see in relation to the point we are discussing, is there set out the sort of machinery which the Minister will use or will set up to determine an appeal.
I raise the matter at this point so that when the Parliamentary Secretary is replying to Deputy Cosgrave or Deputy Coogan he may enlarge a little with regard to the form of appeal suggested in the Bill. It seems to me to be very loose in the Bill. There is nothing there to indicate that the Minister shall determine a case submitted to him, there is no indication that it should be done within any specified time, nor is there any indication of the sort of machinery which the Minister will use to resolve a case submitted to him.
I would like to direct attention to amendment No. 127 in which I am seeking to get a decision on the point raised by Deputy Morrissey. My amendment suggests that in paragraph (k) the Minister shall communicate to the patient his decision upon an appeal within 72 hours from the receipt thereof by the Minister.
That is a separate point.
It will arise later on.
They are looking for a different form of appeal here.
Three medical men.
I do not think the appeal tribunal suggested by Deputy Cosgrave is necessary and I do not think it would be an easily workable type of machinery. It might be possible, and I suppose it would be possible, to make such machinery operative, but it is cumbersome and it is entirely unprecedented. All down the years people have been detained in institutions, but the question of the need for a special appeal tribunal such as is envisaged here has never been raised.
It is suggested that the Minister should set out in the statute detailed particulars as to how he is going to discharge his Ministerial functions. I think that is an unreasonable request to make. The Minister, under various Acts of Parliament, has certain statutory obligations. He is responsible to the House for the proper discharge of these obligations and, through the Government and the House, he is responsible to the people. It would be utterly impossible, and indeed improper, to set out in detail the manner in which the Minister should set about discharging his obligations. If he does not properly and adequately discharge his obligations, I have no doubt he will hear about it.
The machinery suggested here provides, under paragraph (k), that the patient or the parent of the patient, where the patient is under 16 years of age, may at any time appeal in writing to the Minister. That is clear enough. Then, under paragraph (1), the person having control of such hospital or other place shall afford all reasonable facilities for the purposes of any appeal under paragraph (k). The person in control of the hospital, the person in charge, will be under a statutory obligation to facilitate the patient in every way in forwarding his appeal to the Minister.
What would happen in the ordinary course when such an appeal comes to the Minister? The Minister would call for a report from the chief medical officer and, having got that report and submitted it to his professional advisers, he would arrange to send a medical inspector who would have special qualifications and special knowledge and experience of infectious diseases to examine the patient himself in consultation with the officers in charge there, and report. The Minister would then have before him the report of the medical officer in charge, the report of the chief medical officer of the area and the report of his own medical inspector whom he had sent down to make a special investigation and report. With all that evidence before him, he would decide whether the patient should be released. I think that is almost fool-proof. I think it guarantees to the patient beyond any reasonable doubt that he will not be detained for one day longer than is deemed necessary in the interests of the health of the community to detain him.
On the question of limitation of the period within which the Minister should come to his findings, it would be very difficult to fix a minimum time and I hope I will satisfy the House as to the reason therefore. It would be possible to fix a maximum time but, as I see the position developing, I think we may take it these cases will not frequently occur. When a case does occur, it may be assumed that there will be a pathological, bacteriological or biochemical examination, and tests will have to be carried out in order to establish to the Minister's satisfaction that the patient should be released or that the patient should be detained.
Consequently, I do not think it would be possible to enable the Minister to come to a proper decision in one of these cases within the time limit prescribed by the amendment. We will come to that later on. I want to say again that the machinery envisaged is a satisfactory type of machinery, and I do not think it is necessary to set out in the statute in detail the manner in which the Minister is to set about doing this.
And in a case like that a person can feel that he has an appeal.
You can rest assured of that.
The trouble is that that is merely an assumption. The Parliamentary Secretary assumes that so-and-so will be done, but he may not be there to carry out the guarantee.
Maybe the successor will be more expeditious.
This may be a very serious matter.
I regard it as serious.
We have to look at the two sides.
It is serious from the other side, too, I admit.
The Minister is providing specific machinery to deal with one side of the problem. He is not inclined at all to be as specific when dealing with the rights of the person who is detained and isolated. I do not question the bona fides of the Parliamentary Secretary. The assumption of the Parliamentary Secretary if set down in legislation will have subsequently to be determined by the courts. If the matter comes before the courts, it will not be determined on the Official Reports of what happened in Dáil Eireann or on what the Parliamentary Secretary said. It will be determined by what is set down in the section. That is what we are concerned about. There is nothing in this section to say that the Minister shall, at any time, determine whether a person should or should not be released. There is no obligation on the Minister to come to a determination at any time. That omission should be met. What the Parliamentary Secretary said makes the case made by Deputy Cosgrave stronger. If it has demonstrated anything, it has demonstrated that the section as it stands, from the point of view of the right of effective appeal by a person who is detained, is ineffective, and that some safeguard should be inserted. I do not agree that the proposal in the amendment is unwieldy, that it is unworkable or would cause any trouble.
The serious part of it is that there is no provision in the section for determination either way. Paragraph (k) reads:—
"the patient (or the parent of the patient, where the patient is under 16 years of age) may at any time appeal to the Minister in writing to direct the release of the patient."
Paragraph (n) reads:—
"if at any time the Minister directs the release of the patient he shall be released by the person having control of such hospital or other place in accordance with the direction."
I think there should be some statutory obligation to convey a decision say within 14 days, or some specified period, whether the decision is in the patient's favour or in favour of detention for a further period.
May I draw the attention of the House to the corresponding provision in the Mental Treatment Act, Section 226 (1) where provision is made for periodical inspection and examination by an inspector of mental hospitals? It reads:—
"Where the Inspector of mental hospitals makes a visit and inspection required by this Act of an approved institution he shall examine every person who is detained as a temporary patient therein and who has been received since he made his last visit and inspection required by this Act of the institution."
A further provision is made that he shall report to the Minister. Section 227 reads:—
"Upon receipt of a report under sub-section (4) of Section 226 of this Act, the Minister may, if he so thinks fit, by Order direct the person in charge of the relevant institution either to discharge the person to whom the report relates or to take the appropriate steps to have him received into a mental institution as a person of unsound mind, and the person in charge of the institution shall comply with such direction."
There when dealing with persons of unsound mind we did not put any time limit on the Minister. We did not set up any special tribunal, but depended on the Minister, acting on the advice of his inspector of mental hospitals, to administer justice to the best of his ability. We can similarly depend on him in this regard. In fact, it would in the circumstances be a more serious matter. On the last point that Deputy Cosgrave raised, as to a maximum period within which the Minister would come to a final decision, I would like to meet the Deputy on that. It is theoretically possible that the Minister might postpone coming to a decision over a long period. Personally I should not like that to happen. I think when an appeal goes to the Minister it ought to be dealt with with the greatest possible expedition. As to difficulty in coming to a decision any guarantee or statutory obligation that I would impose on the Minister could not interfere or restrict him in the proper discharge of his functions. I will look into the suggested period of 14 days that Deputy Cosgrave suggested. We may have to have it fully investigated before coming to a decision.
Will the Minister look into it before Report?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 84 not moved.
On behalf of Deputy Murphy I move amendment No. 85:—
Before sub-section (2), to insert the following new sub-section:—
(2) No Order shall be made under sub-section (1) of this section unless there is available a hospital or other institution specially adapted for the detention of persons suffering from infectious disease the subject of the Order mentioned in the said sub-section, and there are reasonable grounds for believing that persons detained in such hospital or institution will not be exposed to the risk of contracting some other infectious disease.
I cannot say exactly what motive Deputy Murphy had in putting down the amendment, except that it has relation to the words "in a specified hospital or other place". Possibly his anxiety was aroused because a person might be detained in a hospital not properly equipped for the treatment of infectious disease.
The section sets out that no order shall be made unless there is available a hospital or other institution specially adapted for the detention of persons. I think again we have to assume that a county medical officer of health or a city medical officer of health would not make an order for the detention of a person unless he was satisfied that the place of detention was the most suitable place that was available for him. That may be a hospital that is specially equipped or, in certain circumstances, it might not be a hospital at all, for the reason that people may be detained for a period who are contacts and it may not necessarily be a hospital in the sense of a fully-equipped fever hospital. They may have to be detained or isolated for a period as contacts and the same high degree of structural facility and equipment of the institution as would be necessary in a fully-established hospital would not be necessary. I do not know what the latter part of the amendment is intended to cover. I think it expresses a fear rather than anything else that cross-infection might take place in the institution in which patients might be isolated under this section. If it is a properly and fully-equipped hospital there will not be any danger of cross-infection. If it is some kind of temporary accommodation for the segregation of contacts there would only be the one type of infection about in the institution. It is only in a hospital where various types of infectious disease would be accommodated that the risk of possibility of other infection through loose management would arise. Deputy Murphy probably had some local circumstance in mind that he could probably explain if he were here but I do not think there is any big principle in the amendment that we may concern ourselves much about.
I think it is a very real fear in connection with a district certainly far removed from Deputy Murphy's area, with which I happen to be very familiar, and in connection with an institution which has to deal with fever cases from a very wide area. I think it is true to say that it has been found almost impossible to have the different sorts of disease so isolated one from the other that there was not a very definite danger of cross-infection. I know that people are inclined sometimes to talk very loosely about these matters but there have been in the particular case I have in mind very general allegations of people being sent to a particular institution, supposed to be suffering from a particular infectious disease and, having arrived there, developing, or being infected with, a completely different disease. I think it is quite true to say that there are fever institutions in this country at the moment that are not at all adequate to meet the present requirements much less the requirements which may arise when this Bill becomes fully operative. I think that is one of the difficulties that we are up against. The Parliamentary Secretary says, of course, that the chief medical officer will not issue the order unless he is satisfied that he has a suitable place in which to detain the person. He may have no choice in the matter. If the person is suffering from an infectious disease, under this section he is bound to issue the order and he may not have any choice as to where the person shall be isolated. There may be only one such institution for the county or the greater part of the county. That is the position to-day in certain counties. Even under present circumstances the accommodation is fully taxed and there is a definite danger and I presume that was the reason why Deputy Murphy put down this amendment because, of course, the whole point of the amendment is contained in the last two lines.
I am sure the Parliamentary Secretary is aware that allegations in regard to cross-infection do not come only from individuals who are not closely associated with local government administration. Very recently very serious allegations were made in regard to the danger of cross-infection in a fever hospital with which I am familiar. Those allegations were made by a county manager and that official, at any rate, should have a close knowledge of the requirements of fever hospitals and of the dangers which might arise from cross-infection. Therefore, I think there is something very important in the latter part of the amendment which the Parliamentary Secretary ought to look into.
The Parliamentary Secretary will agree that the trouble in connection with cross-infection is more likely to arise in an old institution where the general lay-out of the building does not permit of isolation.
That is so.
I have in mind the precautions taken in that respect in the new hospital in Clonskea, which is a model so far as the prevention of cross-infection is concerned. I think there is a general feeling that the question of cross-infection is morely likely to arise because of the general lay-out of the older type of buildings.
Yes, that is sound enough.
I would suggest to the Parliamentary Secretary to consider the amendment of Deputy Murphy from the point of view of protecting local authorities. There is always the danger, as Deputy O'Sullivan points out, of cross-infection. I have heard the suggestion made that the local authority might be made amenable in law where cross-infection takes place. I put it to the Parliamentary Secretary that he should consider that aspect of the matter, especially in a case where detention takes place under an order. It might lead to a case in court because, with all possible precautions, medical science cannot prevent cross-infection. It might lead to difficulties for local authorities—such things have been threatened in the past—where cross-infection took place.
I do not think it would be desirable to have another full discussion on institutional accommodation. We had a lengthy debate on that subject in the earlier discussions, but I do want to avail of the opportunity to say this, that the reconstruction of our fever hospitals and the provision of new fever hospitals is, in my judgment, one of the most urgent problems confronting us and it is an item in our programme of hospitalisation that will receive prior consideration over other pressing items.
Amendment, by leave, withdrawn.
Amendment No. 86, I think, was dealt with on No. 82. It is the same point.
Would you say it is the same?
That is for the Deputies to decide.
On behalf of Deputy Larkin, I move amendment No. 86:—
Before sub-section (2) to insert the following new sub-section:—
(2) No order shall be made under sub-section (1) of this section by any medical officer unless—
(a) the person in relation to whom the order is made has refused to isolate himself in a suitable manner; and
(b) a doctor selected by such person certifies that detention is necessary in the public interest.
I think the point Deputy Larkin had in mind in connection with this amendment was to try to avoid the necessity for, shall I say, almost the apprehension of the individual—taking him away from his home. He felt the necessity should not arise in the incipient stage of the disease and that it would arise only when he refused to take the necessary local precautions of isolation in his home. In connection with the second point, here again the question arises of some recognition of the individual rights of the citizen, that is, that he may have doubts regarding the bona fides of the action to be taken against him and he may probably feel he had the right to rely on his own medical practitioner to ensure that his rights in respect of apprehension were safeguarded.
We have discussed the principle embodied in this amendment at some length on previous amendments. Paragraph (b) of the proposed sub-section is a variation of the proposals that have already been discussed by the House. Paragraph (b) suggests that no order should be made under sub-section (1) unless a doctor selected by such person certifies that detention is necessary in the public interest. The acceptance of that principle would completely nullify the purpose of the section, or at least it might have that effect. It would simply mean that an order could not be made by the chief medical officer, even although he deemed it was necessary in the interest of public health, unless the doctor selected by the person himself certified that detention was necessary in the public interest. That opens up a pretty wide field. Notwithstanding what the chief medical officer thought as regards the degree of risk to the community, this private doctor, who perhaps had no qualifications whatever in the diagnosis or in the treatment or in the control of infectious diseases, could come along and say: "I am satisfied and, whether you are satisfied or not, so long as I am satisfied, you cannot interfere." Between Deputy Mulcahy's Government and the present Government it took quite a long time to build up, by a joint and continuing effort, the present public health machinery. Having got the distance of having county medical officers of health in all the counties and assistant medical officers of health in most and chief medical officers in the cities, I do not think that we, by an amendment to this Bill, should give statutory powers in respect to the control of diseases to private doctors who have no particular responsibility either to the local authority or to the State over the control of infectious disease.
Amendment, by leave, withdrawn.
I move amendment No. 87 in the name of Deputy Costello:—
To delete sub-section (2).
Sub-section (1) of Section 29 gives power to order the detention and isolation of a person whom the county medical officer of health considers should be isolated and detained. Sub-section (2) goes to provide all the necessary powers for taking that person and handing him over to some institution for control and treatment in every possible way. It completely cuts out the wish or the desire of the person concerned to be treated in a particular institution or in a particular way or by a medical officer of his own selection. I suggest that it is one thing to order detention and isolation, but it is another thing, when an order for detention and isolation has been made for public health reasons, that every scrap of right that an individual would have as to the kind of institution in which he would be detained, the treatment he would get, or the people who would treat him either medically or disciplinarily, is taken away from him under sub-section (2). I want to know if that is the Parliamentary Secretary's reading of the sub-section and, if so, what are the reasons why such drastic powers are required.
I am afraid we have discussed this pretty often.
This sub-section, in my view, contains the most objectionable features of this entire Bill. Under the provisions of this sub-section power is given to use force if necessary to achieve the end which is desired. That force is in no way limited to reasonable force or to anything else. There is no appeal, except in one instance, and that is in the case of a child under 16 years, from anything that is done in reference to the unfortunate patient suffering from an infectious disease. I do not know whether we have lost altogether the sense of the dignity of the human person. I do not know whether that is to be subordinated to the view of the medical profession, that whatever they think is necessary for the prevention of the spread of disease should be done to a particular afflicted individual. I think a person afflicted with disease has still some rights left. Under the sub-section he will have none. I made a strong protest against the powers in this sub-section on the Second Reading of the Bill. They appear to me to contravene the rights of the individual to an extent which is entirely unjustified by the moral law and, I think, possibly unjustified by the provisions of the Constitution, if there are any such provisions left.
I do not know whether the Parliamentary Secretary has given any indication of his intention in any way to soften down or ameliorate the drastic provisions of this sub-section. In paragraph (h) of the sub-section power is given to a registered medical practitioner having charge of a patient in a hospital to do anything or to cause anything to be done in relation to the patient which in his opinion is necessary or expedient to prevent the spread of infection from the patient. He can do anything. Under the clause as it stands, he can cause him to be put into a gas or a lethal chamber. There is nothing in the section to prevent him from doing that. I challenge any Deputies who are laughing at this to point out where the flaw is in what I have said. "Anything to be done in relation to the patient which in his opinion is necessary or expedient to prevent the spread of infection from the patient." That gives him legal authority to do anything he likes and the three or four matters which are particularised in no way cut down the generality of the powers conferred upon him. He can do anything he likes. He can cut pieces out of him. He can perform an operation and take out any vital parts of his anatomy which contain any germ of infection or are the focal point of the carrier's infection. There is nothing to prevent him legally from doing it, and if that were not enough, under paragraph (n), force may, if necessary, be used for carrying out any provision of this section, so that under paragraph (h) he may do anything he likes, anything which in his opinion is necessary to prevent the spread of infection and may use force, if necessary.
There is no use in blinking the issue. Those powers are as extensive as the draftsman's art could make them. It is no answer to say that a registered medical practitioner will act reasonably. He generally may, but, when giving powers of a kind so drastic as, in my view, to be unjustifiable, this House must take care that they know what they are doing and do it with their eyes open. Any Deputy who votes for this section is voting for absolute power in any registered medical practitioner to do anything he likes with the living body of an unfortunate afflicted person, and to use any degree of force he may think fit to use, and there is no authority in the country, either the courts or the ecclesiastical authorities, to whom any appeal can be made on behalf of that afflicted person.
Unfortunately, Deputy Costello was not here last night when a fairly full discussion took place on the general principles embodied in this section. As I have had cause to complain before, it is very difficult for me to have to keep repeating to the new audience I have each day the case I have had to make the day before. I do not think it is necessary to do that. Deputies can refer to the Official Report and I think they will find the case for this section has been fairly fully made.
Surely the Parliamentary Secretary will agree with me that practically the only discussion we had last night was on Deputy McGilligan's amendments Nos. 67, 68 and 69 in respect of which he agreed to amend sub-section (1) so that it would be clear that there would be a personal examination of a person by the county medical officer of health or a medical practitioner before he was dealt with under this section by Order at all.
In sub-section (1) of Section 29, as I have stated on a number of occasions already, provision is made within which the chief medical officer may make a detention order, if, in his opinion, it is necessary or expedient in the interests of public health. Sub-section (2) follows, and it sets out the detailed machinery necessary for the proper and efficient operation of sub-section (1). When Deputy Costello comes back to all this nonsense about infringing the rights of the subject, we must either bear patiently with him or keep repeating the case, the unanswerable case, in so far as infectious disease is concerned, for the complete and absolute control of individuals who, by reason of their infectious state, have been constituted a danger to the community. Deputy Costello knows as well as anybody in the House, and probably better than most, that the rights of the community must get prior consideration to the rights of the individual in cases such as these. If the individual is not allowed to assault his neighbour, to slander his neighbour or to endanger his neighbour's life in the physical sense, why should the individual, in the name of the liberty of the subject, be allowed to endanger the lives not only of his family and his immediate neighbours but of the entire community, when he comes to suffer from a dangerous infectious disease?
At an earlier stage of this debate, I had to remind the House that under the existing regulations the Minister has unlimited power. It has never been argued that it is unconstitutional nor has it ever been suggested that these powers have been abused. The existing law provides that the Minister may make such regulations as to him seem fit for the control of infectious diseases, and, as I have repeatedly told the House, there was no statutory obligation even to place these regulation on the Table of the House.
If so, for what purpose did the Minister require powers under the Emergency Powers Acts?
For the purpose of expeditiously dealing with a particular type of difficulty with which I dealt in considerable detail yesterday. The Deputy may want to sidetrack me. If it is necessary to defend the Emergency Powers Order, again, I presume we will get an opportunity of doing so, and I shall welcome it.
If he had all these powers under these regulations, what was the necessity of powers under the Emergency Powers Act?
Under Section 141 of the 1878 Act—I had better read it because it is safer to put these things on record as I do not want to lay myself open to the accusation of having attempted in any way to mislead the House——
The accusation was not that you attempted to mislead the House, but that you did.
Section 141 of that Act says:—
"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 any dangerous infectious disorder, and is without proper lodging or accommodation, or lodged in a room occupied by other persons not so suffering, or is on board any ship or vessel, may, on a certificate signed by a legally qualified medical practitioner, and with the consent of the superintending body of such hospital or place, be removed, by order of any justice, to such hospital or place at the cost of the sanitary authority; and any person so suffering, who is lodged in any common lodging-house, may, with the like consent and on a like certificate, be so removed by order of the sanitary authority."
Under that section, provision was made for compulsory isolation and detention. It is true that the district medical officer—not the chief medical officer because we had not chief medical officers at that time—had to get an order from a justice of the peace.
What has this to do with sub-section (2)?
Never mind. The Leas-Cheann Comhairle will call me to order, if I am out of order.
The Parliamentary Secretary is not speaking to the amendment.
I have been accused of interfering with the constitutional rights of the subject by the provisions made in Section 29 and I am replying to that. Section 12 of the Infectious Diseases (Prevention) Act of 1890 is rather interesting. It says:—
"Any justice of the peace acting in and for the district of the local authority, upon proper cause shown to him, may make an order directing the detention in hospital at the cost of the local authority of any person suffering from any infectious disease, who is then in a hospital for infectious disease and would not on leaving such hospital be provided with lodging or accommodation in which proper precautions could be taken to prevent the spreading of the disorder by such person. Any order so to be made by any such justice may be limited to some specific time, but with full power to any justice to enlarge such time as often as may appear to him to be necessary. It shall be lawful for any officer of the local authority or inspector of police acting in the district, or for any officer of the hospital, on any such order being made to take all necessary measures and do all necessary acts for enforcing the execution thereof."
What has that to do with sub-section (2) here?
I referred to Sections 61 and 65 of the Public Health (Amendment) Act, 1907. I also referred to the 1919 regulations. I do not know if Deputy Costello's attention has been directed to them. I think they are very relevant to the amendment before the House at the moment. Article 19 (2) of those regulations is as follows:—
"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."
There is no court of appeal, no appeal to the Minister, no special tribunal set up to provide for the discharge of the patient, if he succeeded in establishing a claim that he was not in an infectious state and consequently should not be detained. Deputy Costello makes some debating play of the terms of the section as they stand. I suppose I ought not expect him to advert to the Ministerial amendments that have been circulated. Notwithstanding the powers that we have at the present time and the powers we could continue to enjoy if we had not tried to co-ordinate the law, I thought there would be some appreciation of the effort I have made in these amendments to meet the line of criticism directed against the Bill. Deputy Costello reminds us of the power we took under paragraph (h) of this sub-section (2), in the Bill as drafted:—
"The registered medical practitioner having charge of the patient in such hospital or other place may cause anything to be done in relation to the patient which, in his opinion, is necessary or expedient...."
There is a Ministerial amendment, amendment No. 112, proposing to delete the words "anything to be done in relation to the patient which, in his opinion is" and to substitute the words "any precautions to be taken in relation to the patient which in his opinion are". It may have been of some debating value before—though I do not think it caused any real anxiety to anybody—but, at any rate, we can no longer be accused of giving the registered medical practitioner the fullest freedom to do anything he could wish to do in the way of treatment. He will now be required, by this amendment which is to come before the House, to take precautions in relation to the patient which are necessary in his opinon to prevent the spread of infection.
Anxiety has been expressed as to the danger of major operations. Deputies expressed the fear that, under this section, we are going to remove organs wholesale. I think amendment No. 122 will satisfy anybody who had any particular anxiety concerning his organs. Amendment No. 122 sets out that medical or surgical treatment shall not be given to the patient in such hospital or other place without the consent of the appropriate person. However, we might as well not have circulated these amendments at all. Deputy Costello comes back to the charge fresh as paint and tells us we are about to deprive people of their liberty and infringe their constitutional rights. As Deputy Allen now reminds me, we are also charged with infringing the rights of freedom of worship. I think we will survive all the charges Deputy Costello may make against us. Intelligent people, inside and outside this House, realise there is not much substance in the charges levelled against us in this regard.
The Parliamentary Secretary made similar remarks at the conclusion of the Second Reading debate. Every criticism I made was subjected to the same remark—that intelligent people, inside and outside this House, will have the same point of view. Far stronger words were uttered by far more authoritative persons than I am, after the Second Reading of this Bill, in condemnation of the proposals to which I directed attention.
There was a lay theologian writing in a political journal, too.
Do not forget the Irish Times.
Whether the political person to whom the Parliamentary Secretary is referring was or was not a lay theologian I do not know, because I do not know the individual, nor do I know the journal.
It poses as a Catholic organ.
Is the Parliamentary Secretary referring to the Catholic Standard?
Yes.
And the articles criticising the sections of this Bill were written by a lay theologian?
They could not have been written by a canonist, as they were not in keeping with the teaching of the Church.
I do not know anything about that article and have not the remotest idea as to who wrote it. Every word of criticism I uttered was pale and insignificant compared to the criticism that appeared outside. Mud-slinging is no answer to argument. The more mud that is slung, the more it is apparent that there is no answer to argument. The Parliamentary Secretary is an adept at mud-slinging; I am not.
The Parliamentary Secretary started his alleged answer to my criticisms of sub-section (2) by stating that he could not repeat to absent audiences what he had already repeated. I spent a considerable portion of yesterday on this measure. I left a little over half an hour before the conclusion of the debate. I venture to say that in the half hour, or the 35 minutes before the close of this debate the Parliamentary Secretary never made one reference, in the whole course of whatever observations he made, to the criticisms I made. I challenge him to produce, when the Official Debates are available, anything in the smallest degree relevant to sub-section (2) or anything I said on that sub-section. He quoted a number of sections of the Public Health Act of 1878 and the Infectious Diseases Act of 1890, but he never made the smallest effort to relate them to the provisions of sub-section (2) or to show that the present proposal, to which we object, has the smallest relation to the provisions of those Acts, the sections of which he read out in such a mumbling fashion.
If it was not the desire of the Parliamentary Secretary to co-ordinate the law they could still, to use his own expression, enjoy the powers conferred on him by the sections of the Acts to which he referred. Are we to assume, again, something similiar to what he said when he mis-referred to Section 63 of the Act of 1878 yesterday evening, when he was exposed in his efforts to mislead the House? Is the House to assume from what the Parliamentary Secretary said that all that has been done in sub-section (2) is merely to codify the provisions of the existing law? If he is trying to persuade the House that that is the effect of the sub-section, there is no ground for that suggestion; there is no relationship whatever. Anybody reading sub-section (2) of Section 29 and relating it to the provisions of the existing law could find no comparison or recognition between them.
He then fell back on the Ministerial amendments and, out of almost 700 amendments, all he was able to produce were two amendments to meet the criticisms made from this side of the House on the Second Reading. Because of the fact that the criticisms which were made and the invasion, not of constitutional liberty, but of the personal rights of the individual, irrespective of the Constitution, because those personal rights of the individual were being invaded unjustifiably according to the moral law, we drew attention to, and strongly denounced, the provisions of sub-section (2), providing that the body of the human person could be the plaything of a registered medical practitioner, as it could under the powers as they stood when the Bill was introduced and as they will stand with the Ministerial amendments. The Parliamentary Secretary was able to produce only two amendments softening down the harshness of the provision in the original Bill, which he was not able to get away with.
The only amendments that in any way endeavoured to meet the criticisms made were amendments Nos. 112 and 122 and, from the point of view of legal interpretation, they leave the situation exactly as it was before. Instead of saying the registered medical practitioner may do anything which, in his opinion, is necessary, in order that the public may be hood-winked, the phrase is used that the resident medical practitioner may take any precaution which he thinks fit. What is the difference between doing anything you like and taking any precautions you like? It is merely a difference of words.
What the Parliamentary Secretary should endeavour to do, if I may respectfully say so, is to meet argument with argument and not with invective or interruption. I state here categorically that there is no distinction in substance between the provision which enables the resident medical practitioner to do anything he likes and the provision which enables him to take any precaution he likes. I want to know the difference. From the point of view of legal interpretation, I say there is none. The Parliamentary Secretary, rather than interrupt Deputies, should try to keep his mind to the one point. He will not affect my argument by trying to divert the attention of the House to other points. I am dealing with his amendment and I will stay here until I make it clear to the House——
You did not stay here long last night.
If the Parliamentary Secretary continues to utter these irrelevancies with the view of trying to give the impression that I was not attending to my Parliamentary duties yesterday, I say he is telling a deliberate lie. I throw that in his teeth. I was here until 25 minutes past 9 and I say that the Parliamentary Secretary is telling a deliberate lie.
The Leas-Cheann Comhairle will deal with that.
I must ask for a count of the House. The members of the Parliamentary Secretary's Party ought to come in to listen to the way in which he is carrying on.
Even the Minister, the head of the Department, has never once intervened in the debate.
I think it is a disgraceful thing that Deputy Mulcahy cannot manage to have a House, seeing that the constitutional rights of the citizens are involved.
That is because Fianna Fáil have the majority and they prefer to spend their time outside rather than come here to listen to the debate.
There is not even one member of the Government in the House.
And there are six members of Fine Gael.
The six members are enough to instruct the Government Party. We should like to have the Parliamentary Secretary's supporters here to see how he is carrying on.
Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present,
With regard to the question raised about the Parliamentary Secretary telling a lie, it is not alleged that the Parliamentary Secretary is a liar. It was merely a question of fact.
I merely said that if he suggested I was not attending to my Parliamentary duties, he was telling a lie. I did say that and I would categorise what he said in very much stronger language, if necessary.
I am sure you would.
I would be prepared to state specifically my own personal view of the Parliamentary Secretary.
You are a dangerous man.
May I proceed with the debate? The Parliamentary Secretary is unable to answer the arguments I have put forward, that where the provision in the Bill is to the effect that a registered medical practitioner may do anything he likes with an individual suffering from an infectious disease, the amendment to that particular provision, merely stating that the registered medical practitioner may take such precautions as he thinks fit, makes no difference in substance. I want to know if the Parliamentary Secretary has any answer to that. The next point he makes is that he has another amendment providing that, although he still retains the provision in paragraph (n)—that force may, if necessary, be used for carrying out any of the provisions of this sub-section— that a provision put in now by way of amendment, that medical or surgical treatment shall not be given to the patient in such hospital or such other place without the consent of the appropriate person, takes away the right of the registered medical practitioner to perform by force a variety of operations. I say it does not. Precautions which the individual registered medical practitioner may take and which he may put into effect by force, would not amount to medical or surgical treatment. Treatment is the only thing that requires the consent of the patient. Precautions that may be administered by force are not such treatment, and, accordingly, the amendments are just in the nature of eyewash, in order to endeavour to mislead the public into thinking that criticisms of this Bill have been in any way met.
The Minister has not answered the point I made. He quoted certain sections of the Acts of 1878, 1890 and 1907. I ask him in respect of each of these Acts what they have to do with sub-section (2).
Power of control is given in sub-section (2).
The Minister quoted sections where he had power to detain and to isolate people. When dealing with Deputy Murphy's amendment No. 85 where it was sought that no Order should be made unless there is an available hospital adaptable for the detention of persons suffering from infectious disease the Parliamentary Secretary brushed that point aside. Section 41 specifically provides that where a suitable hospital or place for the reception of the sick is provided detention or isolation can be carried out. The Parliamentary Secretary did not disclose to Deputy O'Sullivan that he was advancing from the precious 1878 position, and was acquiring powers of compulsory isolation and detention. My point is that sub-section (2) apparently goes completely beyond any power the Minister has been able to dig up from the Acts and regulations he quoted. In a most penal way it provides that when a person is isolated or detained he is handed over completely to some group of medical practitioners that he may not want to have anything to do with, either in connection with his treatment, medical or surgical. I ask the Parliamentary Secretary to say why these powers are necessary, and why no provision is made for that person to be attended by a medical attendant that he knows. The only answer of the Parliamentary Secretary was that when a patient is taken into one of these institutions the cost of dealing with him either from the point of view of maintenance or treatment, is going to be borne by the local authority. That is no answer to my question, why the Parliamentary Secretary is now taking what is apparently completely new power, and that when an Order is issued, detaining or isolating a person, he is taken full control of by the medical machine that he need not necessarily want to have anything to do with, and is deprived of having the assistance of his own medical attendant.
We seem to be getting back to a Second Reading debate on this section.
It is one of the most objectionable sub-sections.
The Constitution has been invoked in this debate and a question was raised as to whether it was in force. Probably the Chair did not hear that. Deputy Costello raised that question.
Under the Emergency Powers Act it is not in force at the moment.
Deputy Costello then invoked the aid of the ecclesiastical authorities in an attempt to condemn the Bill. That was done on a previous occasion. The lay authorities and all the powers and eloquence of Deputy Costello on a previous occasion were not sufficient, without invoking the ecclesiastical authorities, to condemn the Bill.
What ecclesiastical authorities did I invoke?
Your eloquence was not sufficient. All the arguments you adduced to condemn the Parliamentary Secretary and the provisions of the Bill were not sufficient without going outside the lay authorities. It is an old gag that does not work any longer. It was tried out by the Deputy and his Party at one time. If they ever come into power again—which is not likely— it will not work. That is certain. They tried it on for years and we all know with what effect. It is time to leave that aspect aside. Section 29 gives the chief medical officer of health in an area power to control and detain persons who he suspects are suffering from infectious disease. It also gives power to treat persons, suspected of being affected, when in hospital. That is all the section does. Deputy Costello challenges the right of this House or of the chief medical officer of health to order treatment for a person in an institution or fever hospital. Listening to him, it strikes me that he or those in his Party must have only heard now that in the past there were sections in the community suffering from types of infectious disease that never went into fever hospitals or public institutions for treatment. They were treated by private practitioners. The objection would seem to be that they have in future to go into public places for treatment, and be treated by the medical officer of institutions. Deputy Costello strenuously objects, because these people have not the right to bring private practitioners to the institutions to treat them.
I never mentioned what the Deputy is talking about.
The Deputy did. He stated that these persons would not have the right to be treated by private practitioners.
I never said a word about private practitioners.
The Deputy is trying to reply to me when the Parliamentary Secretary was not able to do so.
I am not.
Whatever was said, let the Deputy proceed.
That shows how absurd the arguments of Deputies opposite are. One would think that they were living in a separate planet, and that there was no such thing in the past as treatment of infectious diseases and power to detain people. Everybody knows that there were very drastic powers in respect to one type of infectious disease, small-pox. I suppose this section deals with persons who may be affected by small-pox.
And tuberculosis or anything else.
And tuberculosis or anything else. Probably tuberculosis, if it is considered infectious.
It is in the Parliamentary Secretary's list. Tuberculosis is in the list that has been circulated.
Probably tuberculosis, yes, but there are other types of infectious disease in connection with which there would be necessity for giving treatment in a hospital by the medical practitioner appointed to that hospital. I want to say that the arguments put up by Deputy Costello and Deputy Mulcahy seem to an ordinary person absolutely ridiculous. They are trying to make some political capital out of this section. They tried it on the Second Stage; they failed; it fell very flat. They called to their aid other groups of persons outside this House altogether to try to help to make political capital for them and I want to say that their efforts on the present occasion will fail as they did in the past.
Deputy Allen, of course, is not quite as guileless or as innocent as he would wish the House to believe.
I am not a bit innocent, thank God.
Not a bit, and I could conceive Deputy Allen, if he were on this side of the House, making a completely different speech from the speech he has made.
I try to be honest all the time.
The Deputy was not even trying to be honest.
I try to be honest.
If he were, he would not talk in the strain in which he has just spoken. The Deputy tried to put words into Deputy Costello's mouth that Deputy Costello never uttered. The Deputy tried to misrepresent Deputy Costello's speech and he tried to impute to Deputy Costello activities in connection with what he called the ecclesiastical authorities which Deputy Costello never mentioned. Then, of course, we had the old gag—"you tried that once before with the Church and you know what happened". Let us hope, whatever was tried once before with the Church, that the people on the opposite side have more respect for the Church and Church dignitaries now than they had at that particular period. Let it pass at that.
Oh.
Mr. Morrissey
What does this sub-section mean? We are asked to give a lot of powers. I could imagine what would be said by Deputy Allen and every other person on the opposite side if this section were sought to be imposed upon this country by the British Government.
Leave the British out of it.
We are asked to give powers here so that, by force if necessary, the dirty Irish may be washed.
Only dirty in your opinion.
Not in my opinion at all. It is in the Bill. Of course, I know the Deputy has not read the section or the amendment. I know he cannot even listen intelligently to the speeches. I refer the Deputy to paragraph (h) (ii)—the cleansing, disinfection, disinfestation of the patient— washing the dirty Irish by force. If that were attempted to be done by the British Government I could imagine Deputy Allen at every crossroads in Wexford denouncing the tyranny and the brutality.
There is a bit of the stage Irishman in you still.
In me?
In you, certainly.
If ever I think of adopting that attitude I will come in here every time Deputy Allen gets on his feet, as I could have no better master or teacher.
If Deputies stopped addressing each other and addressed the Chair, we would make some progress.
May I suggest, with all respect, that if there is any admonition to be addressed by the Chair it ought to be addressed to the interrupter, not the person who is in possession at the moment. I want to put this to Deputy Allen and to other Deputies on the opposite side: this section as it stands gives power to remove by force a child against the wishes of the child, against the wishes of the parent, to take that child to any institution wherever it may be situate, determined on by the medical officer, and to perform any act which the medical officer thinks is necessary, even under the Parliamentary Secretary's amendment, to take any precaution he deems necessary, even to the point of making blood tests on that child against the child's wishes, by force, and against the wishes of the parent or guardian. Deputy Allen sees nothing out of the ordinary in that and the Parliamentary Secretary wants to convey that he is looking for no power here other than the power that was in the original Acts. Deputy Allen is too experienced, not only as a member of this House but as a member of a local authority, not to know that this is a revolutionary departure. I agree with the Deputy in one thing anyway and with the Parliamentary Secretary: so far as the Church authorities are concerned, they can look after their own business. I cannot see them turning anybody away from the church door, whether this Bill is passed or not. The fact is, of course, as Deputy Costello said, that no attempt has been made, either on this amendment or on the section or any section of the Bill, so far, to meet argument with argument. The Parliamentary Secretary, in order to avoid argument, in order to avoid dealing with the particular section that may be under discussion, in order to avoid dealing with the amendment, quotes sections of Acts from 1878 to 1907 and in most cases the sections which he quotes or to which he refers have no bearing on and no resemblance to the particular section or amendment of this Bill which is under discussion. It is because we realise what can be done under legislation such as this that we are taking those precautions, and we have reason for it. The Parliamentary Secretary asks us to assume that such-and-such a thing will not be done, to envisage what will be done, but some of us have very clear recollection, on the eve of the outbreak of the war, of being asked to give this Government extraordinary powers, of getting categorical assurance from the Taoiseach himself that those powers would not be abused and, of course, we lived to see them abused in the most disgraceful way, once the powers were granted. We have lived to see the Emergency Powers Act used to bring in under its operation matters that this House never dreamt would be brought in and used under its operation. It is because not only that this is bad in itself, as set out in print, but because we have had painful experience of the mentality behind this type of legislation that we have to try to take every step we can to safeguard the rights of the people.
Could I get any reply at all from the Parliamentary Secretary with regard to the points I raised that here he is taking completely new powers outside anything that he has been able to quote for us in the past, that under this section, as well as continuing the powers to detain and to isolate people and to put them into institutions, he is taking complete power to isolate them entirely from any medical attendant they might like to have and to put them into the hands of a medical machine in which they might not wish to be?
I want the House to understand and the public to appreciate that in accordance with the list of infectious diseases to which various sections of the Bill are to apply that has been circulated to us by the Parliamentary Secretary, tuberculosis is one of the diseases to which Section 29 of the Bill is to apply. Any unfortunate person who is suffering at any stage from tuberculosis may be arrested and detained at the instance of any registered medical practitioner who may take any precautions he in his absolute discretion thinks fit, any force that is necessary or unnecessary may be used against him and he may be detained and isolated from his friends, relations and parents. I want the public to appreciate the power that is taken in this Bill. The Parliamentary Secretary has refused to give any answer to the objections which have been made or to make any case in justification of the powers sought in this Bill.
The Parliamentary Secretary put forward two propositions which might well have emanated from the Continent of Europe. The first was that the rights of the community are prior to the rights of the individual. That doctrine was very widespread a few years ago. The second proposition that he laid down was what he called the incontestable case for the complete and absolute control of an afflicted individual. Is there any difference between these two points on which the Parliamentary Secretary endeavours to base the provisions of sub-section (2) of this section and some of the doctrines which were so widespread on the Continent of Europe a few years ago? We recognise that the community have rights. This Bill does not recognise that the individual has any rights as against the community. We strongly object to that and, for that reason, we insist that this section shall be properly appreciated and understood. If necessary, we shall drag the Parliamentary Secretary to his feet to try to justify, if he can, the provisions of this particular sub-section which, in his reply on the Second Reading debate or in any of the speeches he has so far made on the section, he has failed to justify in any single particular. I want to know can the Parliamentary Secretary give any reason why it is necessary to retain a person suffering from the initial stages of tuberculosis; why it is necessary that a registered medical practitioner should be entitled to take any precautions that he thinks fit in reference to an unfortunate individual; why force should be necessary in reference to that particular individual; why the rights of the community should be extended to such an extent as to submerge the entire rights of the individual.
The reasons have been given repeatedly, but the Deputy was not here to hear them.
I spent a considerable period of time on the Second Reading debate of this Bill. I spent a very considerable period of time on the Committee Stage of this Bill. I have heard no single reason given by the Parliamentary Secretary for sub-section (2) of this section, nor is it to be found in the Official Reports. I challenge him to produce one line from the Official Reports justifying any provision in sub-section (2) of Section 29.
The House has agreed to give the Parliamentary Secretary the power which he seeks in sub-section (1) of this section. That provides for the isolation and detention of any person suffering from an infectious disease, or who is a probable cause of infection. But, in sub-section (2), very drastic further powers are sought, powers which appear to me on the face of them to be unnecessary and undesirable. Why should the Parliamentary Secretary seek the powers contained in paragraph (h), such as "the cleansing, disinfection, or disinfestation of the patient"? Why should he seek the right to use force if necessary?
There is another matter which strikes me on reading this sub-section. In paragraph (e) there is power to isolate a patient until the medical officer certifies that he is no longer a probable source of infection. I think we already got an assurance from the Parliamentary Secretary that he would favour and approve of visiting committees in connection with institutions of this kind. I am rather doubtful as to whether a visiting committee could insist upon seeing a patient in the face of this particular paragraph. So far as I can see, the authorities in charge of the institution could refuse permission to a visiting committee to have any contact with a patient in such an institution. They could justify their refusal by quoting this particular paragraph. That is a very serious position for a citizen of this country to be placed in—to be completely isolated in an institution and to be cut off completely from any contact with anybody independent of that institution or of the Minister's Department.
I think this sub-section, if it is not deleted, ought to be very drastically amended. It ought to be made perfectly clear that an independent visiting committee should have the right to go into an institution at any time, see the patients there, hear whatever grievances they have, or whatever complaints they wish to make, and bring them to the notice of the proper authorities. That is the very least that should be provided for, but I think it is not provided for in this.
This sub-section is a very large one and the powers which it seeks are very widespread. I do not want to travel over the whole of the ground covered by this sub-section. But I should like to point out what I think is an outrageous power to give to any doctor, Minister of State, or any other person over an individual. That is the power contained in sub-section (2) (h) (iii): "the medical examination of the patient and the taking from him of blood or other specimens for bacteriological or protozoological examination or test". If that is taken in connection with paragraph (a), namely, that force, if necessary, may be used, I think this House is being asked to give powers to medical officers which they will not want, and which, in any case, should not be given. It seems to me that these two paragraphs, taken in relation to each other, turn an individual who is being detained in a hospital into something no better than a laboratory subject. As I read that, if a man, woman or child is taken to a hospital, the medical authorities have power to use that individual for the purpose of a laboratory experiment. That is a power which this House should not give to any individual or group of individuals. It is one thing to use powers for the protection of the community, to use powers to put a person in hospital for his own good or for the good of the community. In that connection, we on this side of the House have handed over certain powers to the Parliamentary Secretary which we were very loath to hand over to him. But I consider it an entirely different thing to hand over the powers to the Parliamentary Secretary to allow any medical persons to use a patient as the subject of a laboratory experiment, because that is the way I read sub-section (h) in relation to paragraph (n). I should like to hear the Parliamentary Secretary on that subject. I hope I am mistaken in my reading of it, but I certainly will oppose with all the inadequate force at my command the handing over of these powers to any person in the State and I do not care what medical degrees he holds. The rights of the individual transcend everything else in that connection.
Since I came into the House I have learned that the phrase has been used in this connection that the Government demand the complete and absolute control of the individual, and that they think the rights of the community are prior to the rights of the individual. That is the doctrine upon which the whole system covered by the term of Nazism was founded, and it was their use of the phrase and the summary measures which developed from it which led to the greater horrors which have recently been exposed through the system of concentration camps, sterilisation chambers, gas chambers and all the other horrible paraphernalia of that régime. Apart from all that, the use of this phrase has led to quite an awakening of the Christian sense in opposition to that particular doctrine, and one can hardly take up any ordinary newspaper, one certainly cannot take up any newspaper which pretends to deal with faith or morals, without finding that doctrine placed in sharp contrast with the opposing doctrine.
The opposing doctrine is the doctrine to which I adhere. That opposing doctrine has been put in these terms that there are rights which not merely Catholics have but which Christians have, which Christians arrogate to themselves as part of their very definite rights founded upon the human personality and the dignity which is supposed to attach to it. I stress this Christian doctrine—not merely the one which is backed by the tenets of a particular religion. It is supposed to be the heritage of old-time classical and more recent Christian tradition that there are individual rights which no State can take away and which no State can destroy, even though they make their claim on the basis of the greater good of the community, and involved in these rights are certain other matters which are here being contested.
I have always understood from recent reading that there are now two sharp divisions of view in this connection. One is the view of those who develop a particularly strong State attitude, that the State can do anything and that no rights are sacred in relation to the rights which the State claims to possess over the community. That claim is arrogantly made and is all the more dangerous when it is founded upon this matter of making people good, of making people clean, of making people healthy, whether they like it or not. It is stated of an old-time principal of one of the public schools who used to address his classes at the beginning of the term that he said he would flog them if they were not pure of heart. That has always been held up to scorn and ridicule as indicating how little fitted that man was to be an educator.
The same phrase is emerging apparently as current coin in this debate. People here are to be punished and may be punished in very different and very gross ways, if they are not, apart from being pure of heart, clean in body. In opposition to that, there is another view that there are certain things about the individual which may not be touched without his consent, irrespective entirely of what the background may be. The phrase used here that we require the complete and absolute control of the individual is, of course, a complete heresy of the Nazi system. One might have expected that three or four years ago to have been taken in its stride by people who thought very little about the matter, but it is surprising that it should arise at this stage, when, as I have said, the horrors to which that particular type of phrase gave rise have been thoroughly exposed and the dangers in the phrase very definitely paraded before people's eyes.
We are, however, faced with the view that the rights of the community are to be given complete and entire superiority over the rights of the individual. In opposition to that, I want to state very definitely that there are certain individual rights which cannot be submerged by any claim made on behalf of the community, no matter how strongly it is made. One of these rights is the extent to which the individual may be subjected to certain treatment against his will. When the Nazi system got going properly, there were excesses with regard to the emasculation of people, the sterilisation of other people and the destruction of people who were considered to be unfit and to be a source of infection and disease. The phrase has recently been used in the course of the trial which is occupying public attention that even a certain racial group of the community were to be regarded as if they were so many tubercle bacilli and to be destroyed in the same ruthless way as if they were such germs. That apparently is the aim which lies before the people who have framed this measure.
A very concrete argument has been put up here to paragraph (h) of sub-section (2) of Section 29 and I understand that the Parliamentary Secretary's defence of it is based on two amendments of his. I want to find out how far these amendments go. It is quite clear from paragraph (h) as it stood that anything could be done which a particular individual, a registered medical practitioner having charge of a patient, thought to be necessary. Deputies should not be misled by the Parliamentary phrasing of the paragraphs numbered (i), (ii) and (iii), because these are only things which, in particular, are to be included. The general sweep of paragraph (h) of sub-section (2), however, gives power to do anything which, in that man's opinion, is either necessary or even expedient for certain purposes, but it includes in particular—and here the curtain is lifted a little—that there may be a medical examination and the taking of certain blood specimens. Later, in paragraph (n), it is ordained that force may be used for any of the provisions of the sub-section, so that we are faced with the situation that force may be used in so far as a medical practitioner thinks that force is required, and the whole pivot of paragraph (h) is something which, in a certain person's opinion, is expedient or necessary.
We have an example close to our eyes of the danger of that phrase. At the start of the war, as has already been indicated by another Deputy, the Government asked the Dáil to give them powers for the purpose of preserving the State, and the way in which they were provided eventually was that the Emergency Powers Act was passed which indicated that certain things could be done if they were considered necessary, or that, if it was considered that certain things which were mentioned, were required for the purpose of preserving the State, these things could be done. When that piece of legislation came for analysis before the courts, they found they had no right to say whether, in their opinion, the matters were necessary or not. Once the Act itself said that the State could do whatever it thought necessary, you had all this flood of Emergency Powers Orders, each with the preamble that one, two or three Ministers thought certain things necessary, and then the courts were precluded from considering whether they thought these things necessary or not.
We have the recurrence of that phrase. The pivot of what may be done is where the registered medical practitioner, in his opinion, thinks certain things necessary or expedient. If the matter came for trial before a court, the court would find itself faced with the same barrier as it has been in connection with Emergency Powers Orders. The practitioner has certified that, in his opinion, certain things are necessary and so the courts are without power. The matter that he certifies as being expedient or necessary is regarded as being so and the court will turn to this section, where the Legislature in its wisdom decided to give that power. Hereafter, all a Minister defending a particular activity would have to prove would be simply that the practitioner certified that, in his opinion, certain things were necessary or expedient. Then the matter has to be performed and there is no safeguard to the citizen.
We may be asked to say that people will behave reasonably. If people are always supposed to behave reasonably, there is no need at all for this mass of legislation. A Bill with three or four paragraphs could be brought in, empowering the Government, in relation to this matter, to do whatever it thought reasonable. The purpose of legislation, however, is to inquire into the various things proposed and to see whether the necessary safeguards will be established in legislation, so that, hereafter, people will have their rights before independent judges, to say whether they are right or a registered medical practitioner is right in what he decides to enforce.
One of the things he can enforce is: "the medical examination of the patient and the taking from him of blood or other specimens for bacteriological or protozoological examination or test". He may require force in that direction. That is only a particular of what he may require. It has been put here that he may call for an operation and, as far as paragraph (h) of the section is concerned, he may— I do not think there is any denial—if he called for an operation, remove some organ or diseased portion of an organ. As long as he certified that, in his opinion, it was necessary, the matter is finished as far as the court is concerned and human rights are in abeyance. If that is not right, I ask someone to say where it is wrong. It is my reading of the sub-section.
Amendment No. 112 has been referred to, but there the pivot words are retained—he may cause any precautions to be taken in relation to a patient which, in his opinion, are necessary or expedient. Once the practitioner is able to certify that, in his opinion, certain things are either necessary or expedient, the matter is at an end and the courts are without power. I understand the Parliamentary Secretary relied a great deal upon amendment No. 122, but there is a conflict here under paragraph (h)— anything which is described as a precautionary measure may be done as long as that individual has a particular view.
We come to another thing called "treatment". I would like to know if the word "treatment" in amendment No. 122 overrides the word "precaution", or if "precaution" overrides "treatment"? In other words, is the Parliamentary Secretary's amendment No. 122 to be read as if it were: "No precautionary measure involving medical or surgical treatment shall be given to a patient without the consent of the appropriate person"? If that were the case, the difficulty arising here would be met to some extent. However, that is not stated in so many words. If a court were faced with a case in which a registered medical practitioner decided that a particular operation was necessary then, under this section, even taking the amendments as having been passed, if the practitioner certified that what he required was a precautionary measure which he thought necessary or expedient, the courts would be without resort and could not come to the help of the patient.
I do not see why there should be difficulty in meeting this. If it is decided that there cannot be an operation upon a person unless that person agrees, it should be possible to state that in simple terms; but it must be stated in order to get rid of the objection. Whether it is classed as a "precautionary measure" or as "treatment" the person's consent should be obtained before an operation can be performed. Until that particular amendment has been made, the matter is still in doubt. If that matter afterwards came before the courts, I suggest that the courts would say: "Here is something that is ambiguous. It may be precaution: in that event, the certificate of the registered medical practitioner is the last authority. It may be not precaution but treatment, in which case the will of the patient must be obtained. But we do not know which it is; we do know that through this whole section the thing that is made superior to any opinion the courts may have is a certificate of the practitioner." With that particular dilemma before them, they will be forced back upon this: "Does the practitioner in this case say not merely that something is required or is expedient but that he calls for that as a precaution?" The courts would then say: "If so, our view would possibly be that this is treatment and therefore should be carried by the new paragraph (j) but we have an authority stating something to the contrary and that authority is given supremacy right through Section 29." In that case the judges would probably have to fold their arms and say it was a matter where, if they were allowed to give a decision, they would not allow human rights, rights pertaining to the dignity of the human person, to be overridden. But the Legislature is the body that decides those things and counsel would be told that, in this case, these arguments would be much better addressed to the Legislative Assembly rather than to the court, as the court is tied by the law as it stands.
I ask the Parliamentary Secretary to take this calmly and to understand that, when this measure passes out of this House, nobody hereafter will be entitled to go before the court and tell the court what happened here. The court takes a piece of legislation as it finds it and, except on rare occasions, the court does not resort to Dáil reports of speeches to find out the intention. They look at what is before them, and if they see a very precise clause saying that the registered medical practitioner is set up as the authority in all these matters, it is his opinion which has to count. The Legislative Assembly says that, if the practitioner has a view, that view can not be upset in any court. On that point, the courts are without any resort, they have to apply the law and do not interpret it according to what was said here.
I do not suppose it is intended that a man should be forced to undergo a serious or radical operation unless he consents to it, but are we here giving powers which somebody hereafter may use, contrary to a person's will, to enforce upon him an operation, on the view stated by a practitioner that it is a precautionary measure which that practitioner considers either necessary or expedient? In that event, we have put the unfortunate patient into the position that he has simply to go into revolt. He has to fall back upon human rights and say: "I do not agree with what was said in Dáil Éireann that my rights as an individual are subservient to the rights of the community. Surely I have certain rights as a human person, which no group of any community can take from me and I will pursue the matter to the bitter end".
We are going to have a new system. We all remember the scenes that took place before the public eye when people in this country in olden days were forcibly fed, and we know the scenes that occurred when some people forcibly fed died under the application of that force. Is it suggested that that should be repeated? Is it even suggested that we should give ground for any belief that, with equanimity, we looked forward to the possibility of that being repeated? It is quite possible that people here might be accused of letting this thing pass unnoticed if, hereafter, force was used on an unwilling patient, simply because some registered medical practitioner thought something was required as a precaution and you might have a man resisting as well as he could and, therefore, making his best endeavour to see that whatever operation was proposed to him would be a failure. Supposing he passes out under such forcible treatment, would people here like it to be said that, with the warning given to them that a mere change of words could have put the situation right, they sat idly by and allowed the phrase to be carried through the Dáil? I suggest that that could lead to public exposure and public scandal.
The answer may be made that that is not going to happen. Who knows? It is when this piece of legislation has passed, as such, that the interpretation and the application and the enforcement of it occur. It may not be the people who are sitting here who will enforce it. They may not be here either to bemoan the fact that they took no part in trying to change it, or to pride themselves that they did take part fruitlessly in an effort to change it. It may be that a generation hence some enforcement of a particularly hideous type will take place upon an unwilling patient, with the result that life will be lost. It will be no good to say that we had a good intention when we passed this legislation, that we gave the good of the community as the overriding reason, and that we thought the powers would be reasonably used.
Once you pass this legislation, you pass it out for unreasonable use. If, every time the courts exercise their authority, it is made clear to them that these powers should be reasonably used, then you might rely on the courts using them reasonably; but once you pass this legislation out, the courts have no such standard to apply. They simply take what is done here; they take the dry words of some Act which they have to interpret and apply. If it is decided that a patient is not to be subject to an operation without his consent, it is the easiest thing to say that.
At the moment I suggest there is a conflict. As long as a thing is classed as precautionary, it is the authority of the registered medical practitioner which is supreme. It is only when the registered medical practitioner carries out the treatment at the wish of the patient that it should be permitted. As long as he keeps what he proposes to do on the grounds that it is a precautionary measure, then I suggest, on a clear reading of the section, that he can enforce his will under paragraph (n) and the consequences are that it will be related back to this Dáil and the debate here, but unfortunately this debate will not be possible of quotation.
If the Parliametary Secretary wants to clear this point, he can say that amendment No. 122 has the meaning that no medical or surgical treatment, whether it is precautionary or otherwise, shall be given, or that no precautionary measure involving medical or surgical treatment shall be given, without the consent of the appropriate person.
Could the Deputy give a definition of what will constitute medical or surgical treatment?
An operation is clearly surgical treatment. If a precautionary measure requires an operation, and the patient objects, the operation should not be performed. Surely we will have agreement on that? Could we get agreement on that —that a person should not be operated on against his will where that form of treatment is a precautionary measure?
It depends on what the Deputy means.
I mean that an operation is surgical treatment.
As distinct from taking a blood sample?
So far as a surgical operation is concerned, Deputy Costello has given an example—a person's gall bladder being removed, with relation to a typhoid carrier.
No difficulty about that.
I would object even to inoculations unless the person agrees.
That is the difficulty.
Well, if that is the difficulty let us narrow it to that. As the phrase stands, what Deputy Costello put up is quite feasible, that the removal of a gall bladder, classed as a precautionary measure, can be enforced against the will of the patient. Does the House want that? I think not. Let us make it clear that we do not want it. Let it be made clear in the Bill.
The draftsman considers it is clear.
It is no good saying to the courts that that is what the draftsman did. We are the rulers in this and, if the matter is not clear, it can be cleared up.
But if it is clear to the draftsman?
The draftsman is not going to be the judge. He is not going to be paraded before the court to tell what he meant. The words in the Act will be taken. There is the possibility, the probability, and I might say the certainty, of a conflict as to what may be done in the guise of precaution and what is prohibited, against the will of the patient, under the heading of treatment. Let us make it clear that precautionary measure does not override the impediment put in amendment No. 122. As long as that impediment is not made clear, I suggest the situation Deputy Costello described is an obvious result. The person may have a radical, a serious, a bad operation performed against his will, simply because some registered medical practitioner says in his opinion it is necessary or expedient as a precautionary measure. Nobody in the House wants that. Put it out in this measure.
I do not propose to go over the ground again. There are, however, some small points that arise, particularly out of Deputy McGilligan's interesting speech. The precautionary measures that may be taken under paragraph (h), assuming that the Ministerial amendment will be accepted, are intended to relate solely to the precautionary measures that may be necessary for the prevention of the spread of disease. As the House is aware, we are deleting the words "may cause anything to be done" and we are substituting the words "that precautionary measures may be taken".
In amendment No. 122 we specifically set out that medical and surgical treatment shall not be given to the patient in such hospital or other place without the consent of the appropriate person. Deputy Costello and Deputy McGilligan say that does not clearly exclude the possibility of surgical procedure as a precautionary measure. I will not take it upon myself to question their legal interpretation, but my legal advisers advise me that we have ensured against the possibility of medical or surgical treatment by the amendment we have circulated—medical or surgical treatment without the consent of the patient. If there is any doubt about that, I have no hesitation whatever in undertaking to have that doubt cleared up, none at all, because the policy very definitely is that treatment will not be carried out, either of a medical or a surgical nature, without the consent of the patient.
There is a difficulty, as Deputy McGilligan realises, in the matter of what constituted an operation. We must have power, as a precautionary measure, to do at least two things that occur to me. We must have power to immunise as a precautionary measure in order to prevent the spread of disease. But we do not regard immunisation as constituting treatment. We regard it as a preventive measure, as a precaution. I should like to hear Deputy McGilligan, who apparently has given a good deal of thought to this, relate the views he has expressed in his interesting contribution to the debate this evening to paragraph 10 of the regulations of 1929, issued by Deputy Mulcahy, when he was Minister. Paragraph 10 reads:—
"Upon the receipt of a notification under these regulations, or on becoming aware in any other way of a case or suspected case of acute primary pneumonia, or acute influenzal pneumonia or malaria or dysentery, in his district, the medical officer of health, or an officer of the sanitary authority acting under the instructions of the medical officer of health, shall make such inquiries and take such steps as are necessary or desirable for investigating the source of infection, for preventing the spread of infection, and for removing conditions favourable to infection, and if no medical practitioner is in attendance on the patient, the medical officer of health shall also take such steps as are necessary or desirable for ascertaining the nature of the case."
I submit that paragraph 10, if analysed with the proposals before the House, is identical. I submit that all the power, and with equal force, that could be sought here is in paragraph 10. The regulation states: "to take such steps as are necessary or desirable". It differs in a very small degree, if at all, from saying "or may cause anything to be done". The words of the regulation are: "take such steps as are necessary or desirable for investigating the source of infection, for preventing the spread of infection and for removing conditions favourable to infection". That is a pretty wide field. I suppose it is a matter on which lawyers could argue for a long time. The commonsense interpretation of the terms of Section 10 seems to bring it into very close harmony with the provision we are making in this Bill that has been described as being unconstitutional and depriving citizens of rights.
I have been asked: "why should we acquire power to take specimens of blood"? Deputy Dockrell objected very strongly to that. The Deputy probably knows that if a probable source of infection is detained under Section 29, we are absolutely impotent to determine that he is undoubtedly suffering from a particular disease unless we are free to take a blood specimen and have it examined. What are we to do? Are we to take him in and keep him there? We do not examine him. We do not apply any scientific tests to confirm the provisional diagnosis. We keep him there for the rest of his life at the expense of the rating authority. I do not think that makes sense. I do not think it is unreasonable to take statutory powers entitling us to take a sample of blood for the purpose of determining whether, in fact, a person is suffering from a particular infectious disease, whether typhus, typhoid or venereal disease or whatever it may be. I think we require the necessary statutory power to determine the diagnosis, and to determine whether, in fact, a person should be detained.
We have got some distance in this matter. I am not impressed by the quotation from the 1929 regulations. If the Parliamentary Secretary went back further he would find a time when something was considered to be the best treatment against the number of diseases. We have got away from that. Have we not got away from it? The Parliamentary Secretary stated that in 1929 we decided something. I do not think that the last advance of human wisdom was made in 1929.
I do not want to interrupt the Deputy. What about the constitutionality of the regulations of 1929 as related to the constitutionality of the matter before the House?
I do not think any question of constitutionality arises. This is something beyond any constitution. I hope the Parliamentary Secretary has not in view that constitution. That gave certain liberty. We had that before any constitution was written. They had that away back at the time signified by the term B.C. There was a clear statement, possibly in documents, from time to time, but it was not from the French Revolution, the American Revolution, the Constitution of 1922 or 1937 that people in this country got their rights. They had these rights. If the Constitutions of 1922 or 1937 took any rights away then the Constitutions so developed were bad. It is not a question of constitutionality. I am talking of human rights, rights given to people by Christianity. It is a Christian tradition that people, having a certain destiny, are put beyond animals. They are not to be subjected to treatment which might be all right for animals. The human race is distinct by the particular destiny held out to it. It was given certain rights as well as certain liabilities. But to say that a thing was right in 1929 is not an answer. It is a complete non sequitur. Since 1929 we have had the experience of what happened in those countries that have gone in for State worship, countries that have demanded the complete and absolute control of the individuals in contrast to the community good; we have had the example of what has happened in them and people's minds are much more sharpened to the dangers and their anxieties are very much more keen than they used to be because, in the interim, we have seen how this easy phrase that may be in the 1929 regulations works out.
And they were all right when you did it but not right when we do it.
They are completely wrong to put in a piece of legislation now. May I take one test: If the courts get this piece of legislation to interpret and somebody draws their attention to the fact that there were regulations made in 1929, supposing even somebody was able to bring before the court that the 1929 regulations were brought into discussion in this House, the courts will be made at ease, they will say, "Then the whole matter was disclosed and argued and even although dangers were propounded to the Dáil Deputies who discussed this matter they said, that is all right, we will take those in our stride." You cannot just forget history and the courts do not forget history and the courts will be alive to the fact that after certain abuses were revealed on a big historical canvas, notwithstanding this, this particular collection of Deputies decided to give this amazing power to a registered medical practitioner. In 1929, I doubt if the regulations were discussed with the same apprehension of danger that there is now and that does not mean that the Dáil of 1929 was any less devoted to its duty than the present Dáil could be. It is only by practical experience that one learns the dangers. We have had a heap of practical experience of the dangers in between and I am not at all swayed by any argument that is founded upon the fact that, before people's eyes were opened to what can be done under these regulations, in the past there was a piece of legislation which gave somebody the power to make regulations of that type. We are dealing with an entirely different atmosphere. We cannot forget history; we cannot call back time; we cannot call back or forget the things that have happened before our eyes and, if the courts come to interpret this afterwards and even look at the date—1946 —and all the various trials that are taking place before the eyes of the world and all the excesses that have been revealed and all that has been written about philosophic doctrines, and all the abuses that flow from one phrase—"the complete and absolute control of the individual"—when the good of the community is at stake, then they will say, "the Dáil did all this with their eyes open but with warning; they gave these powers and we will say, ‘Very good, if that is the legislative mind of the country, we have nothing to say except to allow the registered medical practitioner to have his say, to give his certificate, and we will apply the law.'" So that, I am not concerned whatever with regard to the 1929 regulations. If I was asked now to pass the 1929 regulations I think I could bring a volume of argument, derived from immediate experience, revealing dangers in the 1929 regulations which may not have been thought of by anybody when that piece of legislation was passed.
I take much more anxiety from a phrase the Parliamentary Secretary used. He said: "We do not regard immunisation as treatment". That is to say, the minds behind this piece of legislation do not regard immunisation as treatment. Do they regard operation as treatment? Is there anything in the legislation that says they do not regard operation as treatment?
Operation would be ruled out under the amendment.
Where? Under amendment No. 122? Will it be made precise that no operation, whether certified as a precautionary measure or otherwise, shall take place unless the patient is willing? That is the test that I put to the Parliamentary Secretary. Is he willing to accept that phrase?
I am willing to ensure, if it is not sufficiently clear, that an operation as we understand an operation will not be carried out on any patient without his consent.
Whether it is a precautionary measure or not?
Whether it is a precautionary measure or not, so long as it does not rule out the taking of specimens of blood.
There is the difficulty. The taking of specimens of blood is not immunisation.
No.
It may be a first step towards it but it is not immunisation.
It is more diagnostic than anything else.
The Parliamentary Secretary thinks the taking of specimens of blood is a requirement which he must have.
Precautionary.
He also regards immunisation as necessary, and neither of those two things is an operation. Where is the line drawn?
That is a difficulty.
Thank goodness it is your headache, not mine. I am trying to expose what I think are dangers in this that I ask the Dáil to attend to. I do not think this Dáil wants to give any registered medical practitioner the power to impose an operation on a patient against that patient's consent, and I do not care whether the operation is called precautionary or not. May I take the minor thing—the taking of blood specimens? What is the necessity for saying that that ought to be done? The Parliamentary Secretary's defence of that is: "We must know whether the patient is suffering from a particular infectious disease before we make up our minds to release him", but until the registered medical practitioner does make up his mind, has not he power still to isolate and detail the person? Has not he?
Yes.
Yes. Very good. The ball, so to speak, is always with the registered medical practitioner. He says: "I would like to take specimens of your blood. The purpose of that is that if I discover, on taking blood specimens and getting them analysed that you have not an infectious disease, you are free, but if you do not let me, you will have to stay here until I get some assurance in some way that you are not an infectious patient."
Undoubtedly, but bear in mind the people detained here are people detained against their will; they are not co-operating.
Very good; they are people detained against their will and their only power of appeal is to the Minister, and cannot the Minister say to them: "This is a very reasonable proposal being put here by the registered medical practitioner. All that is required is the prick of a needle, taking a specimen of your blood and, after that, you will get a result and if the result is anti-infectious disease, you go free. If you do not comply, you will stay here?" What is the necessity for having force to take the specimen of blood? Is not the control always with the detaining authority?
Supposing for the sake of argument it was a case of venereal disease, would you not be anxious to know had his wife got it from him?
Venereal disease, I think, is a complication. In connection with the source of infection in respect of venereal disease, cannot we leave that aside? I understand that the best medical view at the moment is that the only way in which infection of the venereal disease type can be spread is through sexual relations.
That is not so. It is the usual way.
What percentage of infection is carried otherwise than by sexual relation—a very small amount— so that you can leave that out of it. We are not discussing really venereal disease in this matter. We are discussing the other diseases that the Parliamentary Secretary has tabulated and, I say, you have a patient there suspected of being a source of infection with infectious disease. I object even to giving the Minister power under this Bill to enforce the taking from that person of a blood specimen against his will and there is no necessity for it because he can be detained; he can be isolated; he can be kept there.
If you cannot establish the diagnosis, how are you going to deal with the contacts?
I object to this section altogether, but I am taking the section as it stands. It starts off with:
"the chief medical officer is of opinion that a certain person is a probable source of infection".
That is all he has to do. He has to have an opinion. From that minute the person is detained and isolated until such time as he gets it clear that it is a wrong opinion. If that is the case, is not the authority and the control and the power always with the detaining authority?
He cannot get it clear if he cannot carry out the test.
He can enforce without using force.
Ah now!
Without using force, he can get his view in the end by the persuasion of detention put upon the man who is detained. Surely that is big enough power. Certainly, there is no reason based upon anxiety for the public health that should make the Minister or the Parliamentary Secretary ask for an enforcing authority because he keeps the man there until he is satisfied and the only appeal is to the Minister. The Minister can easily say: "There is an easy proposition—a prick of the needle and you are out if the result is satisfactory." I object even in that small matter. With regard to inoculation or immunisation we advance a step. There is a number of inoculations or schemes of inoculation which certain people favour and which certain other people of scientific advancement and attainment do not favour. What we are up against here is that the registered medical practitioner is to be the authority. He may desire to enforce a particular type of immunisation or inoculation upon a patient. Why should he be given power to do that? Supposing that patient has a medical practitioner of his own who disagrees with the immunisation theory or the immunisation treatment that is going to be given to the patient, why should the registered medical practitioner's treatment be enforced upon him? I do not think it should be. I think we surely ought to have something in this which would enable an opposition viewpoint to be put forward—I mean a medical viewpoint of an opposition type and another type of inoculation or immunisation suggested. But once this measure leaves this House, it is the registered medical practitioner who has charge of the patient, it will not be his own medical practitioner, and he will say: "I think you are a source of infection and that you ought to subject yourself to a particular immunisation scheme, and I am going to inflict it on you whether you like it or not, and whether or not your doctor advises that it is dangerous." I do not think that is right. Whatever may be said in connection with the making of a blood test, there is nothing to be said for enforcing against another doctor's view, or against the patient's view, which he founds upon his own medical practitioner's advice, some type of inoculation to which he objects.
I understand that the Custom House has sent around circulars to medical officers in the country telling them that they are to impose a particular type of immunisation in respect of certain diseases, or possibly in respect of a certain disease. I know that quite a body of medical opinion is against the particular inoculation suggested and believe it to be wrong, believe it, in fact, to be bad for health, and yet that is being enforced. We are giving power in this to officers of the Department to make up their minds as to what particular treatment will be given and to enforce it. I do not think that is right. I think we ought to have sufficient respect for the ordinary person's dignity not to subject him to medical treatment to which he objects, particularly if he objects to it on good medical grounds.
That leaves out of consideration so far this matter of operation. I still think, and I ask the Parliamentary Secretary to believe I am sincere in saying, that amendment No. 122 does not meet the difficulty from the court point of view. Supposing what I call an operation, that is to say the cutting open of a person and the removal of some organ or part of an organ which is diseased, is proposed by a registered medical authority and he says: "It is, in my opinion, expedient to prevent the spread of infection of a certain type from the patient", under paragraph (h) of sub-section (2) that is the last word in the matter. You do not go on to paragraph (k) and (j). It is only if the medical practitioner agrees that it is something which is described as surgical treatment that the patient's desire is sought and the practitioner is to refrain from imposing treatment upon him unless he agrees to it. I think the Parliamentary Secretary, with his better experience of medical matters, can easily see the conditions in which what is called surgical treatment can be expressed to be a precautionary measure against infection. If there is a situation in which an operation is proposed, does he want to have it that it may be surgical treatment or it may be a precaution, but that in that event the registered medical authority who says that it will be a necessary precautionary measure shall have his will?
No.
Even admitting paragraph (j) into this piece of legislation, the matter is not clear. The courts will find something called a precaution entirely under the authority of the registered medical practitioner and they will find something called treatment which is supposed not to take place until a patient agrees to it. But if the matter may be one or the other, or may be classified as both, the court is entitled to say they must consider that the Legislative Assembly has its own point of view, its own standards, and its own methods of finding out what is right and wrong, and that they passed that section which gives the registered medical authority complete and entire control as long as precaution is taken.
I ask the Parliamentary Secretary to look at what happened under the Emergency Powers Act. The Title of that Act was a copy of the words of the Constitution, Article 28,
"where necessary for the preservation of the State in time of war".
The Act was passed with that Preamble. Emergency Powers Orders were made, sometimes repeating that Preamble. The main one repeated it, but others simply referred to that main one. The attitude of the courts was that, once that phrase was used, they could not say whether whatever was proposed to be done was in fact required for the preservation of the State. It went to the point in this country in the last five or six years that we had an emergency Order enabling, I think it was, the General Assembly of the Presbyterian Church to be regulated in a particular way. That was done under an Emergency Powers Order which recited that it was necessary for the preservation of the State. Of course, the court's attitude would be that it was ludicrous and had nothing to do with the preservation of the State, but the State said it had, and that finished it.
Here you have this provision: "If, in his opinion, the thing is necessary and expedient". So far as I know, that only requires a certificate from a registered medical authority that it is, in his opinion, necessary and expedient that a particular operation shall be performed as being necessary to prevent the spread of infection from a particular patient. Once that is given, the operation can be done. I do not think we want that. I gather from the views of the Parliamentary Secretary and others that nobody wants it, but that is possible under the measure. I am only asking to have that doubt cleared up and that possibility entirely and completely removed. I personally object to the immunisation matter being there, with possible compulsory enforcement. I might even argue against the taking of blood specimens. That is a smaller matter. But, so far as this means that something can be enforced upon the human person against that person's desire, I think, on principle, it ought to be objected to.
I have listened to Deputy McGilligan, but I do not intend to follow him into all his arguments. He made a point about a person who is ill and who might be a probable source of infection. Nobody wants to see any person taken away. On the other hand, a healthy person also has his rights. If we were to accept all that Deputy McGilligan said, we would not detain anybody who was a probable source of infection, but just say to him: "If you do not want to submit to treatment, you need not be asked to do it." I feel that every healthy person in this country has his rights. Something must be done to protect him from infection, if an infected person is living in the community.
He can be locked up all the time under this section.
Mr. Burke
Does the Deputy want a person who is infected to go into his home or into mine?
I am not arguing that. What I say is that, while locked up, you should not have power to enforce an operation upon him.
Mr. Burke
If the Deputy realises that a man is infected, does he agree that that man should be allowed to go to the Deputy's home or to mine and to infect others?
I do not want that. I do not want his kidney taken out of him against his will.
Mr. Burke
I move to report progress.
Progress reported; Committee to sit again.