asked the Minister for Health whether any discussions or correspondence have taken place in recent years between him and the Medical Association in relation to questions of medical ethics and other matters in relation to which the Association claimed that the question of ethics was involved; if he will make a statement on the matter; and if he will indicate the present position.
Ceisteanna—Questions. Oral Answers. - Medical Ethics: Discussions with Irish Medical Association.
8.
The only question of medical ethics raised by the Irish Medical Association was, so far as I am aware, in relation to medical secrecy.
In a letter dated 25th March, 1957 the Association protested against the following duties declared for the post of Obstetrician/Gynaecologist to Galway County Council. These duties had, incidentally, been previously included in a number of other posts, including County Surgeon, filled through the Local Appointments Commission:—
No. 1. "To give to the appropriate local authority all reasonable information respecting any person who is referred to him for examination and report by the local authority".
No. 2. "To give to any person (being a registered medical practitioner) authorised by the health authority or the Minister when requested, the clinical details respecting any person who is or has been under his care in the hospital".
The Association claimed that strict adherence to the terms of these duties would constitute a breach of "professional confidence".
The first duty which I have quoted would relate to examination of persons seeking or receiving some service such as disablement or infectious diseases allowances. Deputies will be aware, of course, that before Health Authorities can legally pay allowances of this kind, they must satisfy themselves by adequate medical evidence that the applicant or recipient, as the case may be, is, in fact, incapacitated by his disability. In a letter from my Department to the Association dated 18th April, 1957, it was pointed out that the first duty quoted applied only to persons sent by the local authority to the doctor "for examination and report"; that the attendance of the person for this purpose must imply that person's consent to the furnishing of the report; and that the principle of requiring medical examination and report was well established in everyday practice, e.g. in relation to applications for employment, or for life insurance purposes.
The second duty I have mentioned was also dealt with in the letter of 18th April, 1957, in which the Irish Medical Association were invited to discuss it in my Department. Arising out of this discussion, which took place on 31st May, 1957, the duty was redrafted and the views of the Association on the revised draft were requested by letter dated 9th August, 1957. The Irish Medical Association by their letter of 8th November, 1957, rejected this first redraft as unacceptable. The duty was further considered at that stage, and some further changes were made; a copy of the second redraft was transmitted to the Association on 9th December, 1957. On that occasion, I felt it advisable, in order to make my views abundantly clear, and to reach finality, to explain my attitude on the question in detail. I must apologise for taking up the time of the House by reading a copy of the letter dated 9th December, 1957, which set out my views and was issued at my direction; but I feel that this is an important matter which it is necessary to have put on record in the Official Report.
The letter of 9th December, 1957 was as follows:—
"A Chara,
I am directed by the Minister for Health to refer to previous correspondence and discussions regarding No. 12 of the duties prescribed for the office of Obstetrician/Gynaecologist at the Galway Regional Hospital. The duty as drafted was as follows:—
‘To give to any person (being a registered medical practitioner) authorised by the health authority or the Minister, when requested, the clinical details respecting any person who is or has been under his care in the hospital.'
The Minister has asked me to assure your Association that he agrees with the view that, normally, the relations between a doctor and his patient should remain confidential and that there should be no breach of this confidential relationship, without the consent of the patient, save for the most compelling reasons related to the public good. This, of course, is already accepted in the case of infectious diseases where failure on the part of the patient's doctor to notify the disease might have far reaching consequences from the public health point of view.
When a deputation from the Association discussed the duty in question with officers of this Department on 31st May last, it was explained that the circumstances in which compliance with the terms of the duty might normally be invoked were:—
(i) in the investigation of a complaint by a patient, made either to the health authority or to the Minister;
(ii) in the investigation of a complaint made by a seemingly responsible person in relation to the treatment of a particular patient or patients; and
(iii) in a general investigation of the work of the officer where, from observation in the course of an inspection, the Medical Inspector had reason to believe that the officer was neglecting or otherwise failing in his obligations to his patients generally.
In the circumstances at (i) above it seemed to be accepted that there could be no objection to the duty as drafted, since, in complaining, the patient, prima facie, gave his consent to full investigation and disclosure of information.
In the circumstances at (ii) or (iii) above, the patient or patients might be unaware that the doctor was regarded by anybody as being remiss in his treatment. If, in the course of the necessary investigation, it was necessary to approach one or more patients for their consent to the disclosure of information, a presumption would immediately be created in their minds, however carefully the approach was made, that there was some neglect or dereliction on the part of the doctor and, even if they could be assured later, following investigation, that there was no such neglect or dereliction, a suspicion would remain in many cases, with consequent injury to the reputation of the doctor and of the hospital. The deputation appeared to appreciate that point.
It was conceded by the official side in the course of the discussion that local circumstances might make it undesirable that a medical officer of the health authority should pursue an investigation in the absence of the consent of the patient to the disclosure of information and that the duty should be amended appropriately. The amended draft of the duty already forwarded to the Association made such amendment.
The net point at issue, therefore, appears to be the right of the Minister's Medical Inspector to pursue his investigation in relation to particular patients in the absence of the consent of the patients to the disclosure of information.
The Minister has given the most careful and sympathetic consideration to this point. As the Association appreciates, the Minister's responsibility to the Oireachtas requires him to ensure the highest level of service is given by all officers of health authorities, including medical officers, in respect of whom he is the appropriate Minister and his concern is to ensure that he will be in a position to discharge that responsibility in a manner which is fair to the officer concerned, to the service to which the officer belongs, to the patients concerned and to the public generally.
In a further effort to meet the genuine difficulty which the deputation agreed exists, the Minister suggests that, in the case of an investigation by one of his Medical Inspectors, the hospital doctor concerned will be entitled to refuse to supply clinical details of any patient in the absence of the consent of the patient unless there is produced to him a certificate from the Minister that the public interest requires the supply of the information without the consent of the patient. The duty as revised would read as follows:—
"To furnish the clinical details regarding any person who is or has been under his care in the hospital, to a registered medical practitioner authorised by the health authority or the Minister, on request, on production of the written consent of the person (or the written consent of the person's representative or next-of-kin) or, in the case of a registered medical practitioner authorised by the Minister, the Minister's certificate that it would not be in the public interest to seek such consent".
The Minister trusts that your Association will find it possible to accept the foregoing revision, which is the outcome of the most anxious consideration by him of the problem in an effort to meet the point of view of the Association.
Mise, le meas,"
Beyond the acknowledgment of the receipt of that letter, I have received no further communication in the matter from the Association.
I may say that my attitude in this matter remains unchanged. In my view the duties as now drafted represent the minimum necessary to enable a Minister for Health to investigate effectively any case in which there is good reason to believe that there has been carelessness or neglect, whether the case came to notice as a result of a complaint made by a patient or a patient's relatives or otherwise, and so to enable that Minister to discharge his obligations to this House and to the public.
Arising out of the Minister's very comprehensive reply, will the Minister state if he will be prepared to make the necessary regulation, now that the I.M.A. have not replied to his last letter of the 9th December, 1957? In other words, would the Minister not agree that the possibility exists that, by their failure to reply, the I.M.A. are in fact acquiescing in his proposals? Will the Minister therefore proceed to make that regulation?
Is the Minister not of opinion that the quality of his answer to this obviously arranged question is a gross abuse of the procedure of this House? Apart from that, is the Minister aware that, stripped of all the verbosity to which we have been treated, the original dispute between him and the I.M.A. is as to whether the local authority or the Minister may inquire what is wrong with a woman who has been referred to a gynaecologist for medical examination, and would it not be a disgraceful proposal that the local authority, or indeed the Minister, should have the right to requisition from a woman's gynaecologist details of her clinical condition without the consent of the patient? Lastly, might I suggest to the Minister that if there is a bona fide difference between him as a layman and the profession on a nice matter of ethics of this kind, is not the obvious way to settle it to invite the profession to meet him instead of exchanging this scandalous procedure with Deputy O'Malley?
The Leader of the Opposition is, as usual, on the wrong foot. There is no question of requiring information to be given in relation to any patient without the consent of that patient or the patient's relatives who may be intimately concerned unless the Minister by certificate determines that it would not be in the public interest to seek such consent. The real matter at issue here is whether a Minister for Health will be in a position to secure, with the consent of the patient or with the consent of the patient's relatives, in the generality of cases or where for reasons, say, of mental deficiency it would not be possible to secure the consent of the patient, such information as will enable him to investigate a complaint against a medical officer. That is what is at issue and all this talk about medical ethics is designed to prevent the Minister having a complaint which he receives properly investigated.
Could the Minister not meet these people and discuss this question with them as a rational man——
That is a separate question.
——and arrive at a reasonable settlement with them? Every Minister who has occupied the office of Minister for Health since the State was founded has been able to do that. Why cannot the present Minister?
That is a separate question.
It is manners to reply to a reasoned communication.
That is not the point.
It is all very well for the Deputy to say he is not interested in these matters but an unfortunate individual down the country who has a blue card is very greatly interested in having his complaints investigated, as I know. The question here is that a reasoned communication was sent to the Irish Medical Association in December, 1957. Up to now, two years later, I have not received a reply. I have not received it because they cannot give a reasonable answer.
Would the Taoiseach do for the medical profession and the Minister what he did for the oil companies and the workers a couple of days ago? He settled a strike of oil workers in three days because the Taoiseach asked them to come together in a reasonable manner, to sit down in one room and work out what seemed to be insoluble. If the Tánaiste will do the same in this case, in 48 hours we shall settle this.
We shall not.
There was co-operation on both sides when the oil strike was fixed.
The Deputy is helpful.
There is no cooperation by the I.M.A. Is the Minister aware that the I.M.A. are determined to maintain bad relations with the Minister and his Department, and is the Minister further aware that the critical date in this reply is March 25th, 1957, and that the conditions of which they complained in that letter to him were never referred to when Deputy Tom O'Higgins was Minister for Health? Is the Minister aware that March 25th, 1957, was only a couple of weeks after the General Election when Fianna Fáil came back into power?
In view of the responsibilities members of the Oireachtas have in this matter and in view of the condition to which public opinion and information is being reduced, will the Minister, instead of continuing the discussion by way of question and answer, prepare an exhaustive statement in a White Paper issued in an unemotional and clear way so that members of the Oireachtas may have a chance of reviewing this whole question in an unemotional and clear way? If the Minister is maintaining the stand he has maintained, will he at least do that immediately for the purpose of informing members of the Oireachtas and the public generally?
I would have no hesitation whatever in publishing, either in a White Paper or in some other way bringing to the notice of the House, the correspondence that has taken place in relation to this issue of medical ethics, which, I think, is the one on which the Irish Medical Association have chosen to break. I would want to consider that matter further. It would create a precedent, perhaps, and there might be some difficulty about creating a precedent of that sort. However, the question which Deputy Mulcahy has put is a helpful one and might be pursued.
Will the Minister realise, if the statement is intended to be helpful, that the whole scope of the difficulties which have arisen between himself and the Department, on the one hand, and the medical profession on the other, ought to be included so that there will be a full and clear picture of what the difficulties are?
Is it really necessary that the Minister should have to quarrel with the doctors because he cannot find a Bishop to fight with?
That is a very apt remark coming from Deputy Norton. The quarrel was not of my seeking. I did not declare any ban. I have not refused to meet these gentlemen, provided they revert to the position which existed before October, 1958.
How does the Minister get into so many rows?
9.
asked the Minister for Health if he will again indicate his willingness to meet the Irish Medical Association for discussions dealing with certain matters which he would be empowered to discuss directly with them if the Association intimate to him that the ban, boycott or prohibition on certain posts will be removed.
On the 11th June in reply to an earlier Question, I told the House that I am advised that, as the Association are not holders of a negotiation licence and are not an excepted body within the meaning of subsection (3) of Section 6 of the Trade Union Act, 1941, that section applies to them, and, consequently, it is not lawful for them to carry on negotiations for the fixing of remuneration or conditions of employment of their members. I understand that this accords with an opinion which the Association have received from their own legal advisers.
Since the City and County Management Act, 1955 came into operation, a Manager may not submit any proposal for variation of remuneration of any officer, including medical personnel, to the appropriate Minister save with the consent by resolution of the local authority. From this, it appears that even if there were no difficulty under the Trade Union Act, 1941, it would not be proper for me to enter into discussions with the Irish Medical Association on questions of remuneration of medical staffs of local authorities, since such questions are the responsibility of the Manager and the local authority in the first instance, and since no proposal for an increase can be submitted to me until the local authority have consented to it by resolution.
There are other specific matters apart from questions of remuneration and conditions of employment which the Association may wish to discuss with me and which it would be possible, under the law, so to discuss.
As I have stated on several occasions in correspondence with the Association and as I repeated in the House on 12th November, 1959, I am prepared to meet a deputation from the Irish Medical Association for discussions of such other matters—provided that they withdraw the ban which they have imposed upon the filling of local authority posts.
One good feature is that the public will know that the Minister has again offered to meet the I.M.A. if they withdraw this boycott. Is the Minister aware that the I.M.A. are a limited company? Under their articles of association they are specifically prohibited from engaging in any trade union activity. In fact, does the Minister not agree that the demands which they are making at present, and have been making over a period, are quite illegal and that the I.M.A. are in fact acting ultra vires and leaving themselves open to prosecution? Deputy Mulcahy will observe I have no brief today.
Without acrimony, would it not be possible to resolve this whole matter if the Minister laid aside all conditions, sent to these men and met them? Would he not acquire prestige for himself for having laid aside certain rights he conceives himself to have vis-á-vis these men and would he not place upon them a corresponding obligation to correspond to his gesture if, without reference to any past misunderstandings, he simply said: “I am going to see them and discuss all these matters with them. If they cannot be resolved, I shall have to adopt the proposal made by Deputy Mulcahy and furnish the Oireachtas with a comprehensive White Paper.” If the Minister would make that gesture, does he not think, without in the slightest degree derogating from his own authority and prestige, he might restore an atmosphere of goodwill which would make further disputes in this matter unnecessary from any side of the House?
I should like this position to be resolved to the satisfaction of both parties, but I am not in the position of the members of the I.M.A. As a Minister, as a Member of the Government, as a Deputy in this House, I am bound to have regard to the laws of the land. Most of the matters at issue are matters that relate to employees of the local authorities. An Act passed by this House—the County Management Act, 1955— declares that no persons can enter into any discussions in relation to the remuneration and conditions of employment of any person who is an officer or employee of a local authority without the consent of the local authority——
Meet them and tell them that.
I must observe that. If I did not, I would be told I was a dictator, that medical salaries were being dictated from the Custom House, and the local authority would, accordingly, criticise me. I am perfectly certain that their criticism would be re-echoed by the members sitting opposite. The next question is this. The I.M.A. as a body is in fact acting quite illegally. I should like to advert to the supplementary put by Deputy O'Malley. I have good reason to believe that the articles of association of the Irish Medical Association make it ultra vires for their members to engage in anything which would be regarded as trade union activities. What their council permits itself to do is, however, a domestic matter. I am bound to have regard to the terms and conditions of the Trade Union Act, 1941. That Act prescribes that no body which is not a registered trade union, unless it is an excepted body, can engage in discussions about remuneration and conditions of employment. After all, I must have regard to what the law provides. I cannot suddenly decide arbitrarily as the Leader of the Opposition would apparently wish me to do.
I am in that constitutional difficulty. If these gentlemen withdraw, as I say, their ban I will meet them in relation to this question of medical ethics. In that connection, let me remind the Deputy that I gave the Central Council of the Irish Medical Association a reasoned statement of my position in regard to this question of medical secrecy. They did not even do me the courtesy of giving me a reasoned reply. Now, apart from that, if the position is restored to what it was in December, 1957, or earlier, I am prepared to meet them to discuss the matter, and other cognate questions; but I cannot discuss any question relating to remuneration and conditions of employment with them. My only function in the matter is, if they come to any agreement with those who employ the doctors who are in the general health services of the State and in the employment of local authorities, I will consider that agreement on its merits. I may add, I shall consider it very sympathetically.
Can the Minister say under what constitutional authority the County Managers' Association negotiates with the Medical Association?
The County Managers' Association is in a rather different position in so far as they represent public authorities who are in a position to carry out these negotiations as public authorities.
That, in fact, there is no authority for the county managers? Surely, there is no statutory authority.
No, except they discuss these matters as individuals with the representatives. In this case I think the representatives of the county surgeons at the moment have, for instance, been discussing these matters, and I understand these discussions have been amicable——
Exactly.
——and they are being conducted at the right level.
And they are amicable.
They are being discussed at the right level. We do not have the medical politicians in Dublin interfering with them because——
The Minister never had a politician a county manager!
——after all, these county surgeons are concerned with their position and they are discussing the matter with the county managers in, as I have said, an amicable way which may lead to an ultimate settlement.
Might I suggest to the Minister that, if he had discussions, he might discover, like the county managers, to his own amazement and without regard to legalities and technicalties, that the discussions would be amicable? Since this fatal day to which both Deputy O'Malley and the Minister referred, it is true the Minister has dined with these gentlemen and there was no row. May I suggest now that the Minister should reciprocate their courtesy and, they, having invited him to dinner, he should invite them to talk, or even to tea?
I want to say my acceptance of the invitation was highly conditional: it was on the understanding that the ban they have imposed was withdrawn. They have not fulfilled their part——
But it was highly amicable.
——of what was understood to be a gentleman's agreement. When they withdraw that ban —I cannot deal with the specific questions of remuneration and conditions of employment—I shall be prepared to consider any views they may express on behalf of the medical profession in general in relation to Government employment.
I am calling question No. 10.
The Minister has been allowed to speak for 25 minutes on this subject.
The Chair has called the next question.
If that is looking after the interests of private Deputies—twenty-five minutes for the Minister and ten minutes for Deputies——
I have allowed several Deputies to put supplementary questions. I am calling the next question, No. 10.