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Dáil Éireann díospóireacht -
Wednesday, 29 Jul 1953

Vol. 141 No. 6

Committee on Finance. - Health Bill, 1952—Report Stage.

I move amendment No. 1:—

In page 4, Section 9, to delete lines 40 to 47 and substitute as follows:—

(a) that institutional services shall be given in the institution to persons of a class specified by reference to their condition of health, or

(b) that institutional services shall not be given in the institution to persons of a class specified by reference to their condition of health.

When this particular section was being discussed in Committee some Deputies expressed doubt as to the exact meaning of it. Some Deputies thought it might give an opportunity to us of directing people of a particular class into any institution. I think on consultation with the draftsman it could hardly be interpreted in that way, but to make doubly sure, I think it is now drafted in such a way that that interpretation could not be given to it, and that the patient can only be classified in accordance with his condition of health.

I would like to know what we are agreeing to. The section as amended would now read:—

"SECTION 9.

The Minister may, by Order made in respect of a specified health institution, direct—

(a) that institutional services shall be given in the institution to persons of a class specified by reference to their condition of health, or

(b) that institutional services shall not be given in the institution to persons of a class specified by reference to their condition of health."

The Minister has introduced an amendment for the purpose of showing that he is not proceeding on a class basis. But the Minister is taking power in this section to decide that certain classes of work shall not be done by surgeons, that certain classes of work will not be carried out by a physician in particular health institutions.

Does the Minister take power tointerfere with the working of a county surgeon in a county surgical hospital or to interfere with some particular class of work that the hospital is doing? Can he then, say, prevent appendices being taken out in a particular institution? Can he decide that a gall-bladder or a heart operation, instead of being carried out in the county hospitals in Clare, say, or Kerry, will be carried out, say, in Limerick? He would have power under this section to list certain classes of operation, or to see that they were regionalised. Generally, our county surgeons are up to a very high standard now and I do not know that the Minister should require power to limit the type of work done by any particular surgeon. He would appear to be taking power to do that. From another point of view the Minister is taking power to decide that in certain county hospitals certain classes of medical treatment will not be given. I think we would require some explanation from the Minister as to why he proposes to interfere in that particular kind of way.

I have no more to say on that. This amendment is put down to give the Minister power to direct people to certain institutions and to accept certain classes according to their condition of health. It is necessary to keep, say' T.B. cases out of certain institutions and it is necessary to direct T.B. cases into certain other institutions. Of course, what Deputy Mulcahy was talking about was just nonsense.

I oppose the amendment.

Amendment put and declared carried.

I move amendment No. 2:—

In page 6, Section 15, to insert the following sub-section before sub-section (9):—

(9) Where a decision taken in pursuance of paragraph (b) of sub-section (2) of this section is a decision that the yearly means of the adult person are not less than £600, an appeal shall lie from the decision toa person appointed by the Minister, and regulations may make provision with respect to the making and determination of appeals under this sub-section.

On Section 15 a discussion arose on this matter, and the amendment is put in arising from this long discussion which took place in regard to appeals. First of all, I should say there are two questions on which an appeal might be acceptable: number one is whether a person is entitled to services or not, and number two whether they are getting that service or not having been pronounced as being entitled to it. I think it was agreed generally at the end that an appeal was not necessary on the second question— whether a person was getting a service or not—because it was pointed out that the Minister has ample power to deal with any complaint that may be made to him in regard to any question of neglect or refusal of service. The Minister has power to inquire into that and to deal with the persons concerned if they are not carrying out their duties. On the other point— whether a person is entitled to services or not—various suggestions were made and in particular in two directions: (1) whether that appeal should lie to the courts or (2) to the Minister. It was generally agreed by the Dáil, I think, that the Minister personally could not hear these appeals and then it was suggested that there might be a person appointed by the Minister. I have decided on the whole that that is a better alternative than the courts and I am submitting this amendment for the agreement of the Dáil. I do not think there can be any dispute on the means of farmers because it is very definitely laid down that if his valuation is £50 or less he and his family are entitled to certain benefits. Neither can there be any dispute as to whether a person is insured or not because if necessary a certificate will be issued by the Department. The only possibility of a dispute is on the £600 means test and what might lead to trouble there is that it is family income that is concerned, not personal income. I think, therefore, it isadvisable to have an appeal not only in the interest of a person that might have a grievance but also in order to try to get uniformity among the health authorities, because if we have one person deciding appeals the tendency will be to get this uniformity generally and therefore I am submitting this amendment.

Deputies might like to know what I have in mind. What I have in mind is an appeals officer very much on the same lines as we have under the Social Welfare legislation. It will be done by regulations and the procedure will follow rather closely on the lines we have in Social Welfare. I think that will work fairly satisfactorily. I think that the amendment as submitted would satisfy most of the Deputies who spoke on the Committee Stage.

Might I point out that amendment No. 21 and amendment No. 23 in the names of Deputies MacBride and Tully may be discussed with amendment No. 2?

Frankly, I am somewhat surprised at the nature of the amendment that the Minister has put down and not with any sense of opposition but rather considering the background of the debate we had on the Committee Stage. As I recall the debate on the amendment put down by the Labour Party, very strong stress was laid on the difficulties which arise in regard to the exercise of the right of appeal to the Minister where that would arise in respect of the determination of means. It will be recalled that I emphasised that we were more concerned with the question of a person's right to particular services and that we were not anxious to raise difficulties in regard to the transference of appeals in respect of means to the Minister. Now in the amendment emphasis is laid, in fact, on the right of appeal to an appeals officer in respect to one type of question which will arise in regard to the determination of means. It is well that we should know at the same time that the question of the limitation, or in fact the taking away of the Minister's power as set out in the Bill originally, hasnow been dropped so that the Minister still retains the power which he had under the 1947 Health Act in that respect.

Coming to the case now put by the Minister in support of the amendment, he points out that the one question of the determination of means which might give rise to difficulties is in respect to the class of persons with an income of under £600 a year, mainly because what has to enter into the calculation is the question of the family means. I think there will be general agreement that there should be such a method of appeal, but there is another equally and probably more important class, the class dealt with in Section 14, namely, the lower income group who are defined as those persons who are "unable to provide by their own industry or other lawful means the medical, surgical, ophthalmic or dental treatment or medicines or medical, surgical or dental appliances necessary for themselves or their dependents." Here we have got a fairly difficult problem because it is somewhat difficult to determine the means of a person in receipt of unemployment assistance or unemployment benefit. The means they have got has to be related, not to the question of the maintenance of the individual or his family, but to the capacity of these means to provide medical, surgical, ophthalmic or dental treatment and the appliances necessary for themselves and their dependents. That is a matter on which there could be very wide differences of opinion between the official responsible for dealing with the people and the individual applicant. Everybody is aware that there are all kinds of opinions as to what should be the cost of medical treatment. That difference of opinion can equally show itself in relation to the question of determining whether an applicant's means are such as to enable him to provide for this treatment or services by reason of his own industry or other lawful means, or whether that is outside his capacity. As the amendment stands, it appears that that particular person would not be able to take advantage of this machinery of appeal, whereas the personwhose claim to the benefits of the Act would be dependent on whether or not he fell within the group with less than £600 a year, could utilise this machinery. The Minister has dealt with the grounds on which he has provided this machinery of appeal in respect to persons who would fall within the £600 category, but he has not touched upon the category of persons indicated in Section 14. Perhaps he might like to make some comment on that.

There were three separate and distinct points involved in regard to the question of the right of appeal. There was, first of all, the question whether or not there should be any appeal from the determination of the local health authority or the county manager. I am very glad that in that respect the Minister has met the views which were put forward by the Labour Party and ourselves as to the necessity for the right of appeal. The next question that was involved was to whom the appeal should lie. I think conflicting points of view have been expressed on whether the appeal should lie to an official or whether it should lie to the district justice. I am dealing now only with the question of the limited right of appeal which is embodied in the Minister's amendment as distinct from the more general right of appeal to which Deputy Larkin has referred.

Frankly, I take the view that there is danger in constantly vesting more and more powers in the hands of officials whose determination is reached behind closed doors and whose determination may be reached without hearing the person who is involved or without giving such person any information as to the basis on which the appeal may be turned down. I think there is a growing tendency to vest semi-judicial powers of that nature in officials. I would much prefer to have an appeal of this kind determined in accordance with set rules of procedure which enabled the person involved to know at least the case he or she had to meet. An appeal in this type of case will be determined by an officer of the Department who will, no doubt, be largely influenced by whateverreports he has in front of him, reports from some other official. He may also be influenced largely by the general policy of the Department at the time. In turn, that policy will, no doubt, be largely influenced by the policy of the Department of Finance. I am not saying that that is confined to the Department of Finance of this Government or any other Government, but inevitably the Department of Finance will want to economise. That is their function and inevitably they will, from time to time, ask the Department of Social Welfare, or the Department of Health or other Departments, to apply measures of stringency. It would be inconceivable that officers of this Department in dealing with claims of this nature would avoid being influenced by such general considerations.

I think for all these reasons it would be much wiser to let the person who claims that he is entitled to services to prosecute his appeal before the District Court without any formality and let the district justice determine the merits of that appeal. I do not suppose that at this stage I can persuade the Minister to change the course he has adopted, but quite apart from the provisions of this particular Bill, I think that the tendency to vest more and more power in officials and to delegate more and more authority to officials of the Department to determine the rights of the public, in a semi-secret fashion is becoming more common, and I think the House should be alive to that danger and try to protect both itself and the public generally from that in the future.

Section 15 is worked on the basis that our population can be divided into three sections: 1,000,000 people fall within the public assistance group; the next 1,000,000 fall within the middle income group and the third in the higher income group. That division conceives two border lines or partition lines running through the population. Power is given to the county manager, a single individual, to decide as to the particular class in which any individual is to be placed and he then becomes entitled to the benefits and services providedunder the Bill according to the county manager's decision. The Minister realises that on the border line between the public assistance group and the middle income group there will be cases of doubt. Decisions will be given. Grievances will be expressed. In the case of the people on the border line between the middle income group and the higher income group where the family income is around the £600 level decisions made by the county manager may give rise to complaint and grievance.

The Minister in his amendment proposes to appoint an appeals officer in his own Department to hear appeals on behalf of the people on the partition line dividing the £600 group from those above them. But he proposes to deny to the members of the population around the lower line—that is, the line dividing the home assistance group from the middle income group—any right of appeal. Deputy Larkin pointed out the absurdity of putting an appeals officer in in reference to one line of division but denying the right of appeal to an appeals officer in the case of those who have grievances in regard to the first division line.

What type of problem will arise at the division line between the £600 individual and the person above which will be different, from the point of view of assessment and decision and, therefore, from the point of view of complaint, from that which will arise between the public assistance group and the lower level of the middle income group?

Apropos what Deputy Larkin has said, I do not see any particular virtue in confining the right of appeal to the interpretation of a person's means. It is possible that a number of other disputes will arise as to a person's entitlement to certain types of treatment. That is most likely to arise in the lower income group, and I think it is unwise of the Minister to keep out the right of appeal there. It would be much more satisfactory to allow the appeals officer to deal with any kind of appeal and I see no reason why the Minister should shut the door against appeals except in respect ofmeans. If the Minister pleads that he does not anticipate any such case arising, well and good. The time of the appeals officer then will not be taken up. If, however, such cases do arise there should be some method of having the appeal heard by someone other than the body which came to the decision in the first instance. I suggest the Minister should have a look at the matter again to see whether in fact any good purpose is served by limiting the appeal to means only. It would be better to give the appeals officer an opportunity of considering any appeal.

As to who should decide appeals quite frankly I think the civil servant can be relied upon to discharge his duties conscientiously with due regard to the public well-being, and from that point of view I think the civil servant would be the most suitable appointment. Those who have had experience of appeals officers under our social welfare code will acknowledge that not only were they painstaking and helpful but they went to considerable trouble in order to establish the right of individuals to the benefits provided by legislation. On the whole, I think an appeals officer appointed by the Minister is as suitable a piece of appeals machinery as can be devised. I would like to ask the Minister, however, whether the appeals officer he has in mind is a kind of statutory officer to whom an appeal will be submitted and whose decision will be final.

It will be final, yes.

Or will the appeal be subject to confirmation by the Minister or an official higher than the appeals officer? If we set up an appeals officer, we should give him absolute power to decide for or against rather than leave his decision open to ratification by other persons who will not have access to the information the appeals officer had in the first instance. I would like from the Minister some indication as to what he has in mind.

It is intended that the decision of the appeals officer will be final. There is no change so far as the lower income group is concerned.They were the public assistance group up to this. In fact, there was no change even when county managers were appointed. These people have always had the same rights, namely, the right of getting a ticket from the warden. That right remains and I do not think there is any necessity for an appeal there. It might be argued that a warden would refuse to give a ticket. At the moment that would be a very difficult question to deal with and I think we had better let it stand until we see how this scheme will work out. I do not think there is any danger the lower income group will be badly treated or worse treated than they are at the moment; they are in the same position as they have been in for the last 60 or 70 years.

On the other hand, the middle income group is a new departure and for some time there may be some confusion about this £600 family income. I think the one appeals officer is a better idea because it may eventually bring uniformity of practice. I want to correct a misapprehension that Deputy Larkin appears to have. I have divested myself of the appeals that lay in the 1947 Act. Appeal in relation to infectious diseases maintenance applications is gone and I do not think Deputies need worry about that. Every county manager knows now exactly what the policy is and there is not likely to be any dispute from this on. In the beginning the fact that the Minister could hear appeals had the effect of making the provision fairly uniform all over the country. It is working smoothly now. I am referring to the appeal which is in the Schedule of repeals, sub-section (4), Section 44, of the 1947 Act.

Would the Minister care to examine the question as to whether at this stage he would not provide for widening the scope of the Bill? Suppose a local county manager or a medical officer says a patient requires particular treatment, and that treatment is either very expensive or very difficult, and suggests alternative treatment, in that case the patient might say he did not want the alternative treatment and hold that he was entitled under the Act to get the othertreatment, and say that if that treatment would not be given to him he should have the right of appeal to the Minister.

That type of appeal is there. Under Section 83 of the Local Government Act, 1841, the Minister has power.

Debate adjourned.
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