Dáil Éireann díospóireacht -
Wednesday, 12 Apr 2000

Vol. 518 No. 1

Commission to Inquire into Child Abuse Bill, 2000: Report Stage.

Mr. Shatter

Before the House proceeds, I want to make a declaration of interest, so that there is no doubt about the matter. I think I am entitled and obliged to do so under the rules of the House.

The law firm of which I am privileged to be a partner, Gallagher Shatter – I have made similar declarations in the past – has acted for and represented some of the victims of abuse. The firm has been advising victims of abuse about this Bill, its workings and some of the difficulties that may arise with it, as no doubt have other law firms.

I am standing in for our education spokesperson, Deputy Richard Bruton, who is attending a funeral. I do not think anything I will say will relate to any personal financial vested interest. However, if at some stage a member of Gallagher Shatter, solicitors, acts before the commission that is being established, I would not like it to be alleged that I had not made such a declaration. I believe it is appropriate that I do so.

Any comments or criticisms I make of the Bill will be based on the Fine Gael view of it, taking into account representations that have been received from victims of abuse, the majority of whom my law firm has no contact with and does not represent, but some of whom we do represent. Some of my views and comments will reflect things they have said, not just exclusively to me but to the spokespersons of the other parties and, I understand, at meetings with the Minister. However, it is correct that I make that declaration because, otherwise, my position could be misunderstood.

Acting Chairman

That is duly noted.

Mr. M. Higgins

I move amendment No. 1:

In page 3, between lines 25 and 26, to insert the following:

"(a)the wilful, reckless or negligent infliction on a child of a fear of injury or failure to prevent such a fear, or failure to redress such a fear,”.

This is one of the most important amendments that I have tabled for Report Stage. It seeks to insert in the definition of abuse the appalling impact of trying to live, survive and construct a child's world in an atmosphere of fear. The words proposed to be inserted are: "the wilful, reckless or negligent infliction on a child of a fear of injury or failure to prevent such a fear, or failure to redress such a fear,".

As it stands at the moment, the definitions in section 1 refer to:

(a)the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,

(b)the use of the child by a person for sexual arousal or sexual gratification of that person or another person,

(c)failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare . . .

My amendment cannot be disposed of by referring to subsection (c) which is a retrospective reconstruction of what might have been an influence on what the child may have suffered.

Section 1(d), which is the more general one, states:

any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare,

My problem with that subsection is in the definition of "health". Later on we will deal with other amendments which will include psychological security or mental health. I am interested in this matter which is influenced by my own training as a sociologist. I will put the point simply because I have made the case already on Committee Stage. There is considerable evidence that having to live in an atmosphere of fear could be even more damaging to a child than a once off act of violence itself.

What I have in mind is what has arisen from the description of their circumstances by some of the victims themselves. To put it plainly, if one knew that if a child was removed to a particular room, certain practices would be visited upon the child – be it punishment by physical abuse or whatever – the room itself without a child in it would exist as a threat to the children present. Therefore, one has an atmosphere of fear that is oppressive. We are discussing an inquiry which, one must remember, is not dealing with the summary of actions in a forensic sense. It is also dealing with the responsibility for the ethos that was created and which endured, including its manipulation and abuse.

In an earlier debate we discussed with the Minister's predecessor the loss of files from the Kennedy report. According to the data in those files, it transpired that a child was taken to a landing, stripped naked and punished. The sheer existence of this as a possibility, the retention of that possibility and the creation of an atmosphere of fear is something that not only amounts to violence but also creates a massive potential for violence.

Looking at this from the point of view of a child's development, the effect is that the child's fear locks his or her development. I cannot accept what the Minister said previously on Committee Stage that there are other sections in the Bill that will deal with this point. It is my judgment that it cannot be handled adequately by the more general subsection (d), or by subsection (c). My proposal therefore is to insert the amendment as a new subparagraph after (a).

Mr. Shatter

I support what Deputy Higgins has said in the context of this amendment. He has made an extremely eloquent case for the commission being allowed to address the impact of children on living in an institution in which children were effectively terrorised. We know from the survivors that abuse came in many forms. Far too many young children suffered direct physical and or sexual abuse within our institutions. Of course, they should not have suffered such abuse. Other children witnessed abusers abusing, but they managed by luck or otherwise not to be on the receiving end of a direct physical or sexual attack. They saw the victims after the abuse had occurred, however. They listened to the cries in the corridors. They watched their friends being taken away in the dead of night, not knowing if someone would tap them on the shoulder half an hour later.

A great many people who lived in the institutions where these appalling events occurred suffered great trauma, even in the absence of being struck or sexually invaded. The amendment that Deputy Higgins is proposing would allow the commission to have a wider remit, and would extend to it the opportunity and possibility to hear from those who, by witnessing the horrors, were themselves affected, but who fortuitously were not struck or sexually attacked.

I have spoken to many people who survived the type of institutional care that we allowed in this State in the 1940s, 1950s and 1960s. Some of them tried to complain about what was happening but they were ignored. That is an issue I will come back to later in the debate. The reality is that in most institutions where there was violence and sexual attack, those who escaped inevitably at some stage were the victims of violence of some description or other.

The amendment is well thought out, although there is a risk that the Minister may regard it as being too broadly based. His view may be that we should only hear from those upon whom physical or sexual abuse was directly inflicted. I would regard children who witnessed these type of events, however, as having had psychological abuse directly inflicted upon them. In so far as an education was on offer to them, minimal though it was in years gone by, they could not avail of it to any degree because of the state of stress many experienced.

The amendment is well thought out and it does not fall within the provisions of section 1(d). If, as a child, I witnessed my best friend being severely beaten or sexually attacked, I do not believe the commission could accept my witnessing of those events – no matter what the impact was on me – as an act or omission towards me, which results in a serious impediment of my physical or mental health. There would have to have been some act directed at me or some omission in the context of a failure to properly care for me, which might constitute neglect.

When the commission produces its report it is important that we should have the totality of the story and that we understand the full impact of what happened, historically and not so many years ago, to those children who were supposed to be taken care of within those institutions. We should know the impact on the young innocent witnesses of other innocent children suffering direct physical and sexual attack and abuse. It is important that the commission's terms of reference are clear in this context and that this issue is not a cause of difficulty from the outset. I urge the Minister to accept this amendment and to incorporate his provisions within the terms of the definition of abuse as contained in section 1 of the Bill.

Mr. Naughten

I too support this amendment, a well thought out and well phrased amendment by Deputy Higgins. Returning to what we were discussing in section 1, the ethos of this interpretation seems to be focused solely on the physical manifestation of this abuse and not the threat of abuse to a child. In some cases, the threat of physical abuse to a child can have serious implications for the mental health of that child, sometimes more serious than the physical act itself. Deputy Higgins encapsulates this issue and that threat within the wording of this amendment. It is a fundamental issue which should be considered in the context of this legislation. It is important that we examine not only the physical manifestation but the context in which that happens and the impact that has on other children within the institution. Both my colleagues have elaborated quite effectively on this amendment and I urge the Minister to accept it.

Minister for Education and Science (Dr. Woods)

I thank Deputy Shatter for making clear to the House his interest and that of his law firm in these tragic cases. This amendment relates to the definition of abuse. As I said in committee, in preparing this Bill I was conscious of the need to provide a wide definition of abuse to cover physical, sexual and emotional abuse and neglect, as was recommended by the commission in its report on its terms of reference. We have tried to keep quite strictly to what the commission recommended and what it asked us to do. We accept its report in full and are implementing it in this legislation. I was concerned that the definition might become so wide as to trivialise the very serious abuses which occurred.

I noted with care the points made by members of the committee relating to the definition of abuse and based on those points. I have amended the definitions by accepting an amendment proposed by Deputy Bruton on Committee Stage. I am satisfied that the definition as it now stands in the Bill is appropriate to the work of the commission. I appreciate that Deputy Bruton is not able to be here. We had arranged that this Bill would start at 4.15 p.m., but because the other business moved more quickly than anticipated, we have found ourselves here earlier.

We must be careful that the commission, while it will have a wide remit, is focused in particular on the abuse which has serious consequences for the victims. Most of us have been victims of behaviour in the past which we would now call abuse, but it is not intended that the commission will cover that kind of conduct which may have been acceptable corporal punishment at the time. I am concerned that the amendment would include this kind of conduct and, therefore, make the task of the commission a great deal more difficult. Concerning the question raised by Deputy Shatter about the atmosphere of fear, this is covered by paragraphs (ii) and (iii) of section 4(1) (b), especially the reference in paragraph (ii) to “causes, nature, circumstances and extent”. As for other victims who were not actually abused, the commission can receive submissions from any person. That is covered in section 4(5). As far as the commission is concerned, it is entitled to receive submissions from any person who feels that he or she wishes to make such a submission. I do not accept the amendment.

Acting Chairman

Does Deputy Higgins want to make his concluding statement or a two minute intervention?

Mr. M. Higgins

I will make a two minute intervention first. There is a difficulty with section 4(1) (b). Section 4(1) states that the principal functions of the commission shall be subject to the provisions of this Act. I disagree with the Minister on the interpretation of the legislation but if he leaves the definition of section 4(1) as it is, which is tightly constructed around an action, and he has not dealt with the context of anticipation, fear or atmosphere which I have mentioned, section 4(1)(b) will be frail. If he had accepted my amendment concerning section 4(1), section 4(1)(b) interpreted by the commission could include all the circumstances to which he referred. It is a matter of whether one wants to be explicit and indicate a desire to be inclusive or whether one wants to suggest that it is implicit and leave it to chance that this matter would be investigated. We can make progress otherwise but this is one of the most important amendments that I have put down.

I assure the Minister that I am not put off by the recollective consequences of corporal punishment or those who threaten it. Let us be clear that if it was barbarous then, it is barbarous now. It is barbarous not because of a fashion or because there is a contemporary revulsion to it. That we kept it going for so long is a source of revulsion. The context of fear and the behaviour and attitudes that float from it, not just the physical threat but the body language, are all important. Therefore, it is not my reading that paragraph (iii) of section 4(1) (b) can deal with the amendment I am suggesting to section 1.

Dr. Woods

That is covered here.

Mr. M. Higgins

I am pressing the amendment.

Amendment put.

Tá

Allen, Bernard.Barnes, Monica.Bell, Michael.Belton, Louis.Bradford, Paul.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Coveney, Simon.Creed, Michael.D'Arcy, Michael.De Rossa, Proinsias.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Enright, Thomas.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Hayes, Brian.Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.McCormack, Pádraic.

McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Yates, Ivan.

Níl

Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.

Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Collins, Michael.Cooper-Flynn, Beverley.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John. Doherty, Seán.

Níl–continued

Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Moffatt, Thomas.

Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Sheehan and Stagg; Níl, Deputies S. Brennan and Power.

Amendment declared lost.

An Ceann Comhairle

Amendments Nos. 2, 3 and 4 are related and may be discussed together by agreement.

Mr. M. Higgins

I move amendment No. 2:

In page 3, line 26, before "physical" to insert "mental or".

This amendment is self-explanatory. It extends the definition of abuse to cover mental injury.

Amendment No. 4 proposes to include "or failure to redress such an injury". It covers circumstances where a child has been injured, has gone to someone and described it, and no action has been taken. This relates to the previous amendment which was disposed of. An injury which has been reported, with no redress forthcoming, exacerbates a child's fear, not just that an action might take place but that it is a waste of time reporting it. I got the impression that the Minister may be disposed to accepting amendment No. 2.

Mr. Shatter

Amendment No. 3, in the name of Deputy Richard Bruton, proposes to insert "pain, distress or" in the definition of abuse in section 1(1)(a). If amended, it would read:

"abuse", in relation to a child, means—

(a)the wilful, reckless or negligent infliction of pain, distress or physical injury on, or failure to prevent such injury to, the child,

This amendment also, to some degree, deals with the ground covered under the previous amendment which the Government voted down. It would ensure that where a child suffers distress, as a consequence of abuse or witnessing another child being abused, it falls within the terms of reference of the commission in considering abuse. The amendment also proposes that the infliction of pain, as well as physical injury, would be included in the definition of abuse. One can suffer pain without necessarily suffering physical injury. Pain can be a symptom of emotional distress. If I am afraid, tense and concerned about my safety, events that may occur, how the abuse others are suffering will affect me or if I will be abused, I may suffer a great deal of pain and distress even if I am not a direct victim of physical hurt. This amendment seeks to extend the definition of abuse as contained in the Bill.

The infliction of pain or distress could also extend to an issue I sought to have included as an amendment to the definition of abuse. I submitted my amendment this morning and I understand it has been ruled out of order. I will return to it when we deal with the section. I ask the Minister if this issue is included in any of the legal definitions of abuse and whether he will accept the extension of the concept of pain and distress in the manner suggested in amendment No. 3 to allow for its inclusion. We have learned with some certainty in the past few days that children in residential institutions were used as guinea pigs for the pharmaceutical industry, without parental consent and long-term monitoring.

If children were placed in an institution or home, that institution or home had a sacred duty and trust to care properly for them and to treat them as equally as all other children. I regard it as abuse that a child be used to test untested pharmaceutical products which have not been approved by the relevant regulatory bodies for general use by children. We now know that certain vaccines were used and children were immunised using experimental products. The children were used effectively to test these vaccines. It is scandalous that this occurred.

This does not fall into the area to which the Minister referred earlier when he was concerned that perhaps years ago corporal punishment was acceptable and if a child suffered mere corporal punishment, that is an issue which the commission should not investigate. I disagree with that view in its entirety but I understand from where it is coming. There was an ethos in society in the 1950s and 1960s where it would appear to have been regarded as a good thing that a child be hit occasionally if he or she misbehaved. We all know that occurred. It did not occur just in residential institutions; it occurred at schools which many Members of the House attended and some Members of the House were probably victims of that sort of behaviour.

The Minister does not want that investigated and he is concerned about trivialising, to use his phraseology, the role of this commission. Part and parcel of this commission's inquiry should be the extraordinary breach of trust by institutions and children's homes in apparently making the children under their care available for medical or pharmaceutical research without parental consent, without the children being informed, without their parents or any other relation being informed and without any long-term monitoring as to whether the use of pharmaceutical products had a long-term impact on these children. That is classical abuse. That is abuse which should fall within the remit of this commission.

I am not convinced that the definition of abuse in the Bill covers this area. It would be understandable that Ms Justice Laffoy, in her observations to the Government concerning the preparation of this Bill, would not have considered this issue because we did not know the extent to which this occurred. It was rumoured. It has taken two years since I raised this with the previous Minister for Health and Children, Deputy Cowen, for the commission of inquiry which he put in place, the departmental inquiry, to reach any conclusions. We now have the unofficial leakage of those conclusions but we have not seen the report. Apparently we will not see it for at least another month.

The people who were in the residential institutions referred to in that report regard what occurred as abuse. We do not know because, as I understand it, there are only three instances which have received any public airing. As I understand it, we are talking about three different events and three different products in the context of the institutions referred to. We do not know how many other residential homes for children made their children available as guinea pigs for the pharmaceutical industry in the 1950s, 1960s and 1970s when the regulations were not as tight as they were in the United States or in other European countries. That is an issue which now requires a far wider investigation and which will require a debate in this House when this report is finally published.

Let us get this Bill right. Let us ensure that the definition of abuse in the Bill guarantees – I want a guarantee from the Minister – that the remit of the Laffoy commission would extend to hearing from those children who were used to test vaccines; that the commission will have the remit to gain access to any institutional documentation which the informal departmental inquiry apparently could not uncover; that it will hear from the children how these revelations are affecting their lives; that it will have the remit to get medical opinion, if necessary, as to whether there are any long-term consequences of what occurred; and that it will be able to make recommendations, as it will be allowed to do in other areas, for any legislative changes which are necessary in this context.

I do not know whether the definitions of abuse in the Bill allow for this. As not only a Member of this House but as a lawyer who has some experience in this area, it is my view that this issue is not properly and adequately dealt with in that context. This is not a criticism of the Minister because he has become aware of what is in this report only in the past two or three weeks. He may be relying on leaks also because he is responsible for the Department of Education and Science and not the Department of Health and Children. Having drawn it to the Minister's attention and the Minister having become aware of what his colleague, the Minister for Health and Children, Deputy Martin, knows and was able to talk about on "Questions & Answers" last Monday night, I would have expected that the Minister would have introduced an amendment on Report Stage to address this issue. I want the Minister to clarify the position. I want assurances from him.

I want him to take on board the amendment in Deputy Bruton's name, amendment No. 3. Perhaps it could be stretched to cover this issue but I am not sure it does. Amendment No. 4 in the name of Deputy Higgins might be stretchable. It just about covers this issue, but again I am not comfortable that it does. Certainly amendment No. 2 does not do so and I do not think the case would be made that it does. This is an issue which we must get right and today we have an opportunity to get it right.

This morning I tabled an amendment to allow this serious issue to be expressly included within the definition of abuse. It was tabled before we took Report Stage in the House. It is my understanding that where amendments are tabled to Bills before the debate starts on Report Stage, there is a discretion to allow those amendments to be debated. It has certainly been my experience that in the past in the middle of Report Stage Ministers have come into this House and asked the permission of the Opposition to process additional Report Stage amendments which had not originally been submitted, and we on this side of the House have co-operated on occasion. I want the Minister to have time to consider this issue before Report Stage is completed. My understanding is that the specific amendment which I tabled on this issue has been ruled out of order for being late. I ask the Minister's indul gence to allow that the House agree that that amendment be put before us this afternoon on the resumption of Report Stage in order that it may be discussed. Maybe the Minister will feel today that he cannot take it on board but if we discuss it further this afternoon, it will provide the basis for the Minister to look at this issue when the Bill heads into the Seanad. It is an important issue which the House would be remiss not to address in this Bill in the light of the revelations of the past two weeks.

Acting Chairman (Mr. McGrath)

Deputy, I suggest you take up that issue with the Ceann Comhairle's office.

Mr. Naughten

I endorse the sentiments expressed by Deputy Shatter regarding amendment No. 3, which is in the name of Deputy Bruton. His argument is similar to the argument we made on amendment No. 1, that this definition of physical abuse is too restrictive. The terms "pain" and "distress" can encompass the issue of "mental duress".

Elaborating on Deputy Shatter's point, many of those people who were vaccinated in the 1950s and 1960s were and still are under mental duress. They fear they may have been vaccinated and there are questions which arise in that regard. There has been information, which has leaked into the media over time, regarding the Wellcome Foundation, which took part in drug trials which used those children as guinea pigs and which was involved in developing the three-in-one vaccine. Serious questions were raised subsequently regarding the standards of that vaccine and parents believe that their children have been physically and mentally damaged by it. With that in mind, how do these people feel when they consider they may have been guinea-pigs in vaccine trials in these institutions? Because of the concerns raised and medical reports submitted to Wellcome the product was withdrawn. Those children were abused and it was a breach of trust.

While it would be stretching the amendment, it could still come under its terms. I ask the Minister to examine introducing a specific amendment on this matter and to give the Laffoy commission access not only to institutional documents but to the documentation in the Department of Health and Children which could open a can of worms. There is a serious question as to whether the Department is willing to make the documents available.

These people are suffering immense fear and worry and do not know the implications of the trials. The least that can be done is for the questions raised to be answered. The drug trials were done with the knowledge of the State and the Departments of Health and Education. I am sure the Department of Health and Children and the institutions have the records available, including records of the damage done to children sub sequent to those drug trials taking place. This could result in the truth being brought to light and in putting these people at ease. Parents of brain damaged children should have access to this information. It is a fundamental issue and I urge the Minister to table an amendment which would elaborate on amendment No. 3.

Dr. Woods

I assure the Deputy that the commission will have access to any documents it wants from any Department and can make an order to get any documents. As I indicated, I have considered closely the question of the definition of abuse and have been able to modify it on foot of amendments made on Committee Stage. I am satisfied that following those amendments, the definition is fully appropriate to allow the commission undertake its task. Section 1(1)(d) is very comprehensive. It states: “any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare.” I think this will meet the requirements.

Deputy Shatter raised in particular the recent revelations by way of leak. I have not seen these and do no know what they are. The report will be published in three or four weeks and the only reason for delay is legal, something Deputy Shatter will know very well. People who are named have to be given an opportunity before the report is published. The Minister has made it quite clear that he will make it available as soon as he legally can.

The failure to protect children or the duty of care which rests on people supervising and managing institutions would seem to cover the position in a very general way. Deputy Shatter mentioned that the remit should extend to hearing from the children. They will all have an opportunity to express any way in which they felt they were abused and the commission will certainly hear these issues. The question concerns the probable need for a very specific investigation into the matter. I cannot prejudge this, but Deputy Shatter pointed out that it is a major issue in its own right and is somewhat different. It has an impact in terms of abuse, but is a much wider issue which needs to be examined in a specific manner. That matter will have to be decided when the report is available. The commission will certainly hear from the people who are concerned. Beyond that we should leave it to the report and see what action is decided upon by the Government.

Mr. Naughten

The legislation is entitled the Commission to Inquire into Child Abuse Bill, 2000. Does the Minister believe that these people have been caused pain by being used as guinea-pigs in the vaccination trials which took place in the 1950s and 1960s? Does he believe, therefore, that what will be published in the next month will be termed the abuse of children within institutions and that it should, therefore, come within the terms of the Bill rather than wait to introduce new legislation in the future? We have an opportunity to ensure the Bill encompasses this abuse and that the investigation can be up and running as soon as possible. These children have been abused. There was a breach of trust on the part of the institutions and these people are suffering pain. I assure the Minister that many of the people who will be contacted in the next week or so will have serious concerns. When Deputy Woods was Minister for Health in the early 1980s he was in charge of an investigation into the three-in-one vaccine and he is aware of the implications and some of the things the Wellcome Foundation got up to at that time.

Mr. M. Higgins

It would be valuable if we heard the Minister's attitude to amendments Nos. 2, 3 and 4. I understood from the proceedings on Committee Stage that the Minister might be disposed to providing for mental as well as physical injury in section 1(1)(a). I would have no difficulty if the Minister indicated he was willing to accept Deputy Bruton's amendment No. 3. I want to make certain that the pain and distress referred to by Deputy Bruton or the mental anguish I referred to is provided for.

A fundamental principle arises from what Deputy Shatter said. Deputy Shatter speaks of the abuse which took place by lending, as it were, the bodies of children for pharmacological experiments. The Minister is using a different version of the word "abuse", but this is not only an academic point. For example, one should not be confined in one's definition of "abuse" to that which one can specify at a given point in time. An example in law is where something has happened without a person's consent, the consequences of which are not known immediately but arise later. In that case, the issue that arises is not whether one can point to the damage that has been done immediately but whether it was done without consent. The use of a person in conditions of trust and care constitutes abuse and I support Deputy Shatter's definition.

Mr. Shatter

The Minister made an interesting comment in passing. He said that when the report into the vaccination inquiry is published, a broader report or further investigation may be needed. My point was well synopsised by Deputy Higgins and I have a simple view on this issue. Children were in residential homes and the people caring for them had a sacred trust, which they abused by making the children available to pharmaceutical companies without the consent of parents or other guardians and without informing the children or ensuring their health was fully and properly protected when follow up checks took place. They were made available to test pharmaceutical products and the efficacy of whether there should be a three in one or four in one vaccine and whether there should be a polio light or the real polio vaccine. Children were given vaccines who today do not know whether they are adequately immunised or protected in their adult years as a consequence of what happened during their childhood. That constitutes abuse.

I take the Minister's point that this may be covered by section 1(1)(d) which refers to “any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects.”. The very act of making a child available to a pharmaceutical company without parental consent, or a court's consent where there are no parents and its remit is to take action in the interests of the child's welfare, constitutes abuse, even if miraculously in the long-term there are no adverse consequences. No person, whether in the past, present or future, should make children in residential care available for experimentation by pharmaceutical companies.

Dr. Woods

The Deputy's latter point will be comprehended by section 4. There is also the question of the management and supervision of institutions and what was done, and that brings me back to the Deputy's point, which is comprehensively covered under section 4 in terms of the way in which children were affected by the management. Basically, what the Deputy wishes to have covered is comprehended by the legislation. The only reason I mentioned the other issue is that it may be so appalling and different in character that it may need something special in its own right. It is open to the commission to pursue the issue if it wishes.

Mr. Shatter

Is the Minister happy that it falls within the remit of the commission?

Dr. Woods

Yes, it is comprehended by its remit.

Mr. M. Higgins

The Minister addressed this issue on Committee Stage and I understood that he was amenable to a change in the wording of section 1(1)(a) which states:

In this Act, unless the context otherwise requires–

"abuse", in relation to a child, means–

"the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such an injury to, the child",

Amendment No. 2 would provide for "mental or physical injury". If the Minister indicates that he is accepting amendment No. 3 which would provide for "pain, distress or physical injury", I will not press my amendment. However, if he does not give ground on either amendment, I will have no option but to press it.

Dr. Woods

I spoke on the three amendments together. I do not accept amendment No. 3.

Amendment put and declared lost.

Mr. Shatter

I move amendment No. 3:

In page 3, line 26, before "physical" to insert "pain, distress or"

Amendment put.

Tá

Allen, Bernard.Barnes, Monica.Bell, Michael.Belton, Louis.Bradford, Paul.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Creed, Michael.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Enright, Thomas.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Hayes, Brian.Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.McCormack, Pádraic.McDowell, Derek.

McGahon, Brendan.McGinley, Dinny.McGrath, Paul.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Yates, Ivan.

Níl

Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Collins, Michael.Cooper-Flynn, Beverley.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John.Doherty, Seán.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.

Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Kennedy, Michael.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Sheehan and Stagg; Níl, Deputies S. Brennan and Power.

Amendment declared lost.

Sitting suspended at 1.32 p.m. and resumed at 2.30 p.m.