Before the adjournment of the debate we had been dealing with amendment No. 6 which had been moved by Deputy Durkan and, grouped with it, amendments Nos. 9, 12, 14 and 16.
Private Members' Business. - Health Insurance Bill 1994: Committee Stage (Resumed) and Final Stages.
Debate resumed on amendment No. 6:
In page 5, line 13, after "Minister" to insert "and laid before the Houses of the Oireachtas".
This would be a good time for the Minister to include this phrase with a view to eliminating any doubt that might exist. While in any event the Minister would have discretion to apply such provision at any time, it would be in the interests, if not of public safety, certainly of clarity and transparency that it be included in the relevant sections.
As the Deputy said correctly, it is my intention that every regulation that will flow from this Bill will be laid before each House of the Oireachtas. Therefore, the Deputy's amendment is unnecessary because such a provision has been included in the Bill.
Amendment No. 9 in my name goes a little further than the Minister intends. There are so many let out clauses for the Minister in this Bill that it raises a question mark over whether its provisions will be maintained. Obviously one trusts the present Minister to deal fairly with the patients, clients, consumers or whatever he wants to call them, but the Bill will continue after this Minister has moved on, presumably to higher things. We need to be careful not to leave such an open-ended arrangement without accountability which could create major problems in the future. This is what the Minister is in danger of doing. My amendment proposes that any regulations brought into being — I imagine there will be major regulations as time goes on — should be laid before each of the Houses of the Oireachtas but should not come into effect until such time as a resolution approving of the draft has been passed by each House. This does not have to leave the matter open to debate but it does mean that it has to be on the record and that it must be approved by the House so that if there is a contentious issue it is possible for Members to deal with it within the normal framework of the business of the House.
Not long ago I raised an objection to proposals in the Medical Practitioners Bill to change the make-up of the Medical Council. Had such an objection not been put, it would have slipped through. There was a danger, even though I did object, that it could still have been proceeded with except that the Minister withdrew it, and rightly so. The same type of situation could arise again where vigilance on the part of Deputies, from whatever side of the House, would ensure good practice.
Acceptance of this amendment would not cause major headaches. I do not think any of us has ever caused the Minister major headaches. We have been extremely co-operative at all times. I ask the Minister to be aware that everybody is fallible. An unfortunate situation could have arisen except for the fact that it was possible to be alerted to it. In relation to regulations I ask that at least that kind of formality be gone through so that we all have a chance to participate and ensure that this Bill works well.
I have spoken to Deputy Durkan's amendment and I will speak specifically now to Deputy McManus's amendment No. 9. On virtually all legislation that goes through, there is a debate on the type of regulations and the procedure for dealing with regulations that flow from legislation. The normal procedure proposed in this legislation is that regulations be laid before the House and become operational unless there is an annulling motion within the statutory period. Because there will be detailed regulations it would be impractical if I were required to come formally before the House for a positive determination on every regulation, some of which will be technical and minor. Some may need to be introduced because of a changing market situation when the House is not in session. I would prefer to stick with the normal procedure which is that of placing the regulations before each House of the Oireachtas and allowing them to come into effect unless an annulling order is passed by either House within 21 days. This is the normal procedure and it is particularly apt and suitable for this legislation because the number of regulations will be so great that it would be impractical and difficult and would be obstructive of the aims of the Bill, which is supported by all sides of the House, if a positive resolution was required for every regulation.
In relation to amendment No. 6 in the name of Deputy Durkan in which he seeks to insert the words "and laid before the Houses of the Oireachtas", that is already envisaged. The phrase "by the Minister", in amendment No. 16, is not necessary as "prescribed" means prescribed by regulations made by the Minister. That is already incorporated in section 2, page 5, line 13. The Deputy's other amendments, Nos. 12 and 14, seek to insert the words "by the Minister by regulation and laid before the Houses of the Oireachtas". Section 3 already provides for the Minister to make regulations which must be laid before each House of the Oireachtas and will follow the normal route, that is, they will become effective unless an annulling order has been passed.
In response to the point raised by Deputy Browne, "prescribed" means prescribed by regulations made by the Minister. Therefore Deputy Durkan's amendment No. 16 is not necessary.
I realise we have a time constraint and I will try to act within it. The Minister has pointed out that the regulations may be made during the recess, perhaps during the second or third day of the summer recess. The chances of an annulling motion appearing before the House within a reasonable period are slim. In that case there is some merit in the amendments. The common theme running through all the amendments is the same. I recognise that tradition would have us do one thing but I am not sure we should not depart from tradition now and again. Perhaps now is the time to do it and the present Minister may be the person to do it. One has not always been pleased in the past about regulations made and laid before the Houses of the Oireachtas because they may have been made at a time when it was impossible to introduce a counter resolution. The possibility of an amending resolution coming during the recess is slim. However, I will not press the amendment.
I am in sympathy with the Deputy's views. I suppose it is not normal for somebody on this side of the House to express concern that so much power is given to Ministers to make regulations subsequent to legislation. When I started my political career as a Member of the other House there was a committee on legislation, one of the functions of which was to monitor statutory instruments and all regulations. It is a good thing to monitor regulations on a detailed basis and perhaps the committee system could be expanded to do such monitoring. That would change the traditional practice.
I wish to point to one section of the Bill which is germane to this discussion, that is the conferring of additional functions on the authority, assuming that the health insurance authority is established. I regard that as being of a different magnitude from the normal regulations to define the packages and so on of benefits available. I have followed the path proposed by Deputy McManus in section 21 (3) which states:
Where an order is proposed to be made under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving of the draft is passed by each such House.
Where amending legislation is necessary, it is right and proper that I would require the formal approval of the House.
It is a pity that the Minister will not adopt the approach recommended. I do not accept what he has said, that it would create major problems for him. It would constitute an added protection whereby we would ensure that the legislation and the regulations that will follow are fair to everybody. I know from experience that regulations made under other legislation have caused major problems because there was no opportunity to raise issues in the way proposed in the amendment.
I will withdraw my amendment but under protest as I think it is a good one. The Minister is being too cautious. I cannot see any difference between what he is proposing and what previous Ministers for Health proposed. It is a pity that he is not taking the opportunity to be more accountable.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 5, line 29, after "to" to insert "or in relation to".
The purpose of this amendment which relates to the definition of risk equalisation is to ensure that it can be applied in respect of payments made not only directly to persons but also payments made on their behalf, for example, payments made directly to service providers by the insurance undertaking. If an agreement is reached and payments are made directly to the service provider, this would be covered by the definition of risk equalisation.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
We now come to amendment No. 8 which is a drafting amendment. Amendment No. 10 is cognate. It is suggested therefore that amendments Nos. 8 and 10 be discussed together.
I move amendment No. 8:
In page 6, subsection (2) line 10, to delete "section" and substitute "Act".
These are technical amendments to make it clear that the provisions for regulations apply to all regulations made under the Bill.
Amendment agreed to.
Amendment No. 9 not moved.
I move amendment No. 10:
In page 6, subsection (3), line 13, to delete "section" and substitute "Act".
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
We now come to amendment No. 10a. It is suggested, therefore, that amendments Nos. 10a and 11a be discussed together.
I move amendment No. 10a:
In page 7, subsection (1) (a), line 5, to delete "subsections (3) and (4)" and substitute "subsection (3)".
These are technical amendments which have been introduced to ensure there is no ambiguity in relation to the application of the principles enshrined in subsections (1) and (2) to the premia charged for children. It was suggested that an insurer could, as the section was originally drafted, vary the premia charged for children within the zero to 50 per cent parameter on the basis of age, sex or health status. This was not the interpretation taken by the Department when the section was drafted. It has been decided to introduce these amendments to ensure there is no ambiguity in regard to the application of community rating to subsection (4). The word "waiver" has been inserted in subsection (4) (a) to ensure it is clear that the insurer can reduce the premium for a child to zero per cent if they so wish.
On the question of providing for a maximum charge of 50 per cent for children of insured persons, it became clear because of the way the section was originally drafted that it might have been possible for insurers not to apply the principle of community rating to children. The purpose of these amendments is to ensure clarity in this regard.
Amendment agreed to.
I move amendment No. 11:
In page 7, subsection (1) (a), line 8, after "contract" to insert "(after due allowance has been made in respect of the payment of any premium by instalments)".
The purpose of this amendment is to ensure that the normal arrangements under which a charge may be made for the facility of paying an insurance premium by instalments can be applied in the case of health insurance premia without such variations in premia charges being in breach of the principle of community rating.
Amendment agreed to.
I move amendment No. 11a:
In page 7, subsection (4), to delete lines 41 to 45, and in page 8, to delete lines 1 and 2 and substitute the following:
"(4) Subject to subsections (1) and (2), a premium payable under a health insurance contract effected by a registered undertaking—
(a) shall, in so far as it relates to a person under the age of 18 years, be—
(i) waived, or
(ii) reduced, such a premium being not more than 50 per cent of the premium in respect of a person other than the persons specified in this subsection under a health insurance contract effected by that undertaking, and".
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 8, subsection (3) (b), line 47, after "condition" to insert "as determined by reference to medical records".
The section as it stands is a bit vague. I am suggesting therefore that after the word "condition" the words "as determined by reference to medical records" should be inserted. I know from experience that in the case of life assurance problems can arise when a claim is made whereby the insurer disclaims liability on the basis that the insured person was aware of their illness or ailment. The insurer may claim that the insured person did not disclose their full medical history, given the degree to which the illness has progressed.
Although this may be applied differently in the case of health insurance the section is vague and I would like the Minister to clarify the matter and, if he sees fit, to accept the amendment.
The purpose of subsection (3) (b) is to ensure that insurers have some control over persons applying for membership who have a pre-existing condition and to whom waiting periods could be reasonably applied. It is not necessary to accept the Deputy's amendment as decisions by insurers on waiting periods for pre-existing conditions could be based on information available to the insurer following a medical examination or disclosure of medical history by the person applying for membership. For example, the person concerned could declare it on the application form and there may not be any medical evidence as such. If the Deputy's amendment was accepted the insurance company would be debarred from accepting a clear statement of a pre-existing condition without medical evidence. We are in agreement that where there is a pre-existing medical condition it would be reasonable to provide for a waiting period before full cover is applied. I am informed that the best way to achieve this is to accept the form of words included in the subsection.
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Section 8 agreed to.
SECTION 9.
I move amendment No. 15:
In page 9, line 31, before "refuse" to insert "(irrespective of whether or not the contract provides for its renewal)".
This technical amendment is necessary to ensure that a person cannot be refused renewal of a health insurance contract on the technical grounds that the contract contains no right of renewal. That sounds pedantic, but I am informed it is a belt and braces job as there is no specific clause in the contract that states one has a right to renewal. I want to ensure that people are not precluded from having that right. This is particularly important for people over 65 years when seeking to renew their health insurance cover as such persons do not have the protection of the open enrolment provision incorporated in this Bill.
Amendment agreed to.
Amendment No. 16 not moved.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 17:
In page 9, subsection (1) (a), line 41, after "prescribed" to insert "and available".
Section 10 (1) (a) states, "shall relate, at least, to such health services and ancillary health services as may be prescribed." My amendment proposes the inclusion of the words "and available". One could prescribe something that might not be available. As a member of a local authority and a health board one of the things for which I have contempt is people assuming power in areas over which they do not have it. The words "and available" would strengthen the section. The Minister will probably say he would not include something that was not available, but Ministers change from time to time and I am sure the Minister agrees that when he was on this side of the House he viewed matters differently and the same will apply when he is again on this side of the House.
I have given some consideration to the Deputy's amendment as it is eminently reasonable. However, I am advised it would diminish the consumers' right because it would involve a further qualification before payment is made to an insurer. For example, it could be argued that a contract would not apply if there was ambiguity about the availability of a service. We should not include a clause that would jeopardise the right of a consumer to avail of insurance for which he or she is contracting. As the Deputy's amendment would involve a diminution of consumers' rights I ask him to withdraw his amendment.
An insurance company might offer an attractive package, including services that might not be available, which would not compare favourably with another package. I accept the Minister has certain powers, but I tabled my amendment in the context of access to the services referred to in section 10.
I understand the Deputy's concern, but it is logical that one would not prescribe a package of benefits that did not exist and in so doing mislead the public. I am advised that the insertion of the Deputy's amendment would cause legal difficulties if an insurer wished to renege on his or her responsibilities. There would then be an onus on the insured to prove that the service contracted was available which might involve ancillary explanations such as the location of hospitals and so on. I do not wish to diminish the right of consumers in this legislation.
Amendment, by leave, withdrawn.
Amendments Nos. 18, 25 and 34 are related and may be discussed together.
I move amendment No. 18:
In page 9, subsection (2), line 48, after "section" to insert "provided such person's appointment has been approved by the Houses of the Oireachtas".
This relates to an earlier discussion. I accept the Minister has the right to enlist the assistance of consultants, assistants and so on. I do not wish to digress into a debate on a Bill due to come before the House shortly, but the role of the person from whom the Minister may seek assistance is important. As it is similar to the role of the Ombudsman the appointment should be referred to the Houses of the Oireachtas for approval. The person appointed will advise the Minister under a number of sections and, therefore, it is important that the Minister makes the concession I propose in my amendment. It is the prerogative of the Minister to accept amendments, but perhaps on this occasion he might accept my amendment.
I would not put my money on it.
I would be delighted to facilitate the Opposition in accepting an amendment to improve the legislation. The person in question will have an important advisory role, but not one that would require the importance attributed to a formal appointment by the Oireachtas. There are few statutory appointments reserved to the Houses of the Oireachtas, the Office of Ombudsman and Comptroller and Auditor General are two that come to mind. I do not deem it appropriate for this advisory role to be exalted to a status requiring a formal vote of the Oireachtas.
Amendment No. 25 refers to the same person, namely, the assessor, who will assess minimum benefit and be involved in the determination of risk equalisation. It would be inappropriate for such person to be appointed by the Oireachtas. Amendment No. 34 is unnecessary as the subsection is purely technical and allows the transfer of functions from the Minister to the Authority when the latter is established. The approval of the Oireachtas to such a transfer would be disproportionate to the issues involved.
Amendment, by leave, withdrawn.
Section 10 agreed to.
I move amendment No. 19:
In page 10, line 1, after "undertaking", to insert "or a person acting on behalf of such an undertaking".
Deputies will be aware that on Second Stage Deputy McDowell raised a point of ambiguity. I promised I would reflect on the matter and introduce an appropriate amendment, and I have done so in amendment No. 19. Deputy McDowell was concerned that the provisions in section 11 which prohibit the offering of inducements to persons not to enrol, not to renew their health insurance contracts or to avail of their entitlements under the public system might be circumvented through the use of a third party. The proposed amendment to section 11 is designed to close that loophole in the legislation and I am grateful to Deputy McDowell for the deep consideration he has given to this Bill and for his helpful suggestion on Second Stage.
Amendment agreed to.
We now come to amendment No. 20 in the name of Deputy Durkan. I observe that amendments Nos. 21 and 24 are cognate. I suggest, therefore, that we discuss Nos. 21 and 24 together.
I move amendment No. 20:
In page 10, paragraph (a), line 2, after "person" to insert "or member of such person's family".
The wording may not be entirely correct but my intention is along the lines mentioned by the Minister earlier. I felt that instead of going directly to the insured person, a competing health insurance company could offer younger members of a family or group a package and thereby cause a problem.
As it is now 9 o'clock I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Health for Committee Stage not disposed of are hereby made to the Bill, in respect of each of the sections undisposed of that the section, or as appropriate the section, as amended, is hereby agreed to in Committee, that the Schedule and the title are hereby agreed to in Committee, that the Bill, as amended, is accordingly reported to the House, that Fourth Stage is hereby completed and that the Bill is hereby passed".
Question put and declared carried.