Health Bill 2006: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
In page 10, lines 4 and 5, "provided by the Executive or a service provider" deleted and the following substituted:
"provided by the Executive, a service provider or a person that is not a service provider but who receives assistance under section 39 of the Health Act 2004 or under section 10 of the Child Care Act 1991".

The Health Bill 2006 assigns responsibility to the chief inspector of social services for the inspection and registration of designated centres. Designated centres are defined as private nursing homes and institutions, homes or centres at which residential services are provided by the Health Service Executive or a service provider for children, people with disabilities or other dependent persons.

A "service provider" means a person who enters into an arrangement under section 38 of the Health Act 2004 to provide a health or personal social service on behalf of the Health Service Executive. The service provider may also be a person who is in receipt of assistance from the Health Service Executive under section 39 of the Health Act 2004 or section 10 of the Child Care Act 1991 of an amount prescribed by regulation.

However, it is technically possible that an agency providing residential services for children or people with disabilities may be in receipt of funding under section 10 of the Child Care Act 1991 or section 39 of the Health Act 2004 which is less than the amount prescribed because the agency is a small scale operation. It would be important that all residential centres are inspected and registered. The Seanad therefore amended the definition of designated centre to ensure there was no possibility of such a residential centre falling outside the remit of the legislation.

Seanad amendment agreed to.
Seanad amendment No. 2:
In page 24, between lines 15 and 16, the following subsection inserted:
"(3)Subsection (2) does not apply to employees appointed under this section during the 3 months beginning on the establishment day or during a shorter period that the Minister may specify.”.

Under section 26, HIQA is required to recruit its employees in accordance with the Public Service Management (Recruitment and Appointments) Act 2004. However, I intend to establish the authority shortly to give it the opportunity to properly organise itself and the Office of the Chief Inspector of Social Services. It will need to recruit personnel immediately. The interim authority has already begun the process of recruiting its senior management, including the Chief Inspector of Social Services. Amendment No. 2 was passed by the Seanad to allow a transitional arrangement, lasting three months or a lesser time specified by the Minister, during which the provisions of the Public Service Management (Recruitment and Appointments) Act 2004 will not apply. This will allow the authority to complete the recruitment process undertaken by the interim authority and enable the organisation to set itself up.

There is still the safeguard that any employees appointed to the authority are appointed in accordance with terms and conditions determined by the authority, subject to the approval of the Minister, given with the consent of the Minister for Finance. The deferral of the requirement to recruit through the Public Appointments Service or obtain a recruitment licence from the Public Appointments Service will only last for a maximum of three months. This is similar to the provision included in the Health Act 2004 which was used to set up the Health Service Executive.

Seanad amendment agreed to.
Seanad amendment No. 3:
In page 32, paragraph (a), line 16 deleted and the following substituted:
"(i) sections 39 to 42 and 53 of the Child Care Act 1991, and".

The Chief Inspector of Social Services has responsibility for inspecting and registering residential centres. The chief inspector is also given statutory responsibility for other matters under the Bill. These include overseeing the performance by the Health Service Executive of its functions under sections 39, 41 and 53 of the Child Care Act 1991 in respect of fostering and pre-school services and section 10 of the Health (Nursing Homes) Act 1990 in respect of the boarding out of elderly people. Amendment No. 3 clarifies that the chief inspector's oversight of the performance of the executive's functions under the Child Care Act 1991 will include the executive's functions under sections 40 and 42 of that Act.

Both sections relate to the Health Service Executive's functions in respect of children in its care and section 40 refers to the Health Service Executive's functions in the placing of children in residential care, securing their welfare and the form of contract to be entered into by the Health Service Executive with persons providing residential care. Section 40 also refers to the supervision and visiting by the executive of children in residential care and section 42 of the Child Care Act provides for the case review by the executive of each child in its care. Given the role assigned to the chief inspector in regard to the inspection of residential services for children and the oversight role in regard to the other functions of the Health Service Executive under the Child Care Act 1991, it is appropriate for the chief inspector to have an oversight role also in regard to sections 40 and 42 of the Child Care Act.

Seanad amendment agreed to.

Amendments Nos. 6 to 8, inclusive, 10, 11 and 14 are related to amendment No. 4 and all may be discussed together.

Seanad amendment No. 4:

In page 32, paragraph (c), lines 22 to 24 deleted and the following substituted:

"(i) regulations, and".

The Bill provides for the chief inspector to inspect residential centres against standards set by HIQA and regulations made by the Minister. Currently, regulations for private nursing homes are made under the Health (Nursing Homes) Act 1990 and regulations for children's residential centres are made under sections 38 and 63 of the Child Care Act 1991. Under the Bill, regulations for private nursing homes will no longer be made under the Health (Nursing Homes) Act but will instead be made under the Health Bill. While regulations in respect of registration issues for children's residential centres are also to be made under the Health Bill, it was envisaged that regulations in respect of standards of care at children's residential centres would continue to be made under the Child Care Act 1991.

Offence provisions in respect of the operation of children's residential centres would, therefore, be split between the Child Care Act and the Health Bill, with prosecutions taken by the chief inspector under both legislative measures. Following further consideration of this matter with the Parliamentary Counsel, it was subsequently decided that all the relevant regulations would best be made under the Health Bill. This would result in a more easily understood system of regulation overall. The change in approach advocated by the Parliamentary Counsel necessitated some amendments to the Health Bill and consequential amendments of the Child Care Act 1991.

Amendment No. 4 is a technical amendment to section 41, which sets out the functions of the Chief Inspector of Social Services. One of the functions under paragraph (c) is to assess whether the registered provider of a designated centre is in compliance with regulations made under the Bill or under any other Act which provides for the regulation of those centres. As all regulations will now be made under the Bill, it is proposed to delete the reference to regulations made under any other Act in paragraph (c).

Amendment No. 6 amends section 45. The Health Service Executive currently carries out inspections of children's residential centres provided by the voluntary sector. The executive also inspects private nursing homes, and section 45 of the Bill provides for a transitional arrangement whereby the Minister may require the Health Service Executive to continue to carry out inspections of children's residential centres and private nursing homes. This is intended as a temporary arrangement to facilitate the continued inspection of the relevant services pending the final establishment of all necessary arrangements, such as the transfer of staff and resources to the authority. Amendment No. 6 is a necessary technical amendment to section 45 to take account of amendments to the Child Care Act.

Section 50 deals with the grant or refusal by the Chief Inspector of Social Services of applications for registration of designated centres or applications for renewal of registration. In granting registration, the chief inspector must be satisfied that the designated centre complies with standards set by the HIQA and regulations made by the Minister. Amendment No. 7 is a technical amendment to section 50 to delete references to regulations made under the Child Care Act and to ensure that all references to regulations in the section are to regulations made under the Bill.

Section 79 provides for offences and subsection (2) of that section sets out the offences committed by a registered provider of a designated centre if the registered provider fails to discharge a duty to which he or she is subject or contravenes a provision of the regulations made in respect of the designated centre. Amendment No. 8 is a technical drafting amendment to section 79 to ensure that all relevant regulations made under the Bill are taken into account.

Section 101 allows the Minister to make regulations respecting designated centres and amendment No. 10 ensures that such regulations will now be applicable to children's residential centres. The Bill currently deletes those sections in the Child Care Act which provide for the registration of children's residential centres operated by the voluntary sector as, along with Health Service Executive residential centres, registration of these centres will now be regulated under the Health Bill. Amendments Nos. 11 and 14 are further technical amendments to the Child Care Act to delete provisions relating to the making of regulations for residential centres and related offences under that Act. These amendments are consequential to the changes made to the Health Bill, as all regulations relating to the residential centres will now be made under the Bill and offences against the regulations will be prosecuted under the Bill.

I am letting these amendments go through because, to be honest, I do not fully understand what the Minister is doing here. It is fascinating that the Minister is bringing forward amendments on the basis of the advice of the Parliamentary Counsel and that he is deleting sections of the Child Care Act. He is changing legislation. We have made the comment in the last two weeks that most people outside this Chamber have little or no interest in what we are doing with health legislation. Even now, only I, the Minister and officials are present in the Chamber, so it is unlikely there will be great discussion of what is happening with this.

It is amazing that we are changing such major legislation in the last few minutes of the Bill's passage. We have rushed a great deal of good legislation in the last two weeks. We should have been more sensible and given it more time. I regret that we rushed this so much. However, I will not oppose any of these amendments.

There are no major changes in what we are doing and we have discussed it in some detail. I appreciate the presence of Deputy Twomey. I know there are other events outside in which I am sure we would all like be involved in some shape or form.

I would not have collected as much as the Minister of State.

We just want to ensure the Child Care Act dovetails with the new Bill.

Seanad amendment agreed to.
Seanad amendment No. 5:
In page 32, between lines 38 and 39, the following subsection inserted:
"(2) If the chief inspector is absent or the position of chief inspector is vacant, the functions of the chief inspector under this section may be performed by an Inspector of Social Services designated by the Authority for the purpose of this subsection.".

The chief inspector of social services has a central role under the Bill and amendment No. 5 allows the authority to appoint an inspector to perform the functions of the chief inspector on a temporary basis where the chief inspector is absent for some period or where the position is vacant. It is a technical amendment made for the avoidance of doubt and designed to ensure there can be no question of dispute over the validity of registration decisions or other decisions made in respect of designated centres which must necessarily be made in the name of the chief inspector in situations where he or she is absent for some period or the position is vacant.

Seanad amendment agreed to.
Seanad amendment No. 6:
In page 34, subsection (1), lines 26 and 27, paragraph (a) deleted and the following substituted:
"(a) children’s residential centres, as defined in section 2(1) of the Child Care Act 1991, which are provided in accordance with section 38(1) of that Act, or”.
Seanad amendment agreed to.
Seanad amendment No. 7:
In page 36, subsection (1)(b), lines 36 to 41 deleted and the following substituted:
"(ii) regulations undersection 101, and”.
Seanad amendment agreed to.
Seanad amendment No. 8:
In page 52, subsection (2), lines 19 to 21, paragraph (d) deleted and the following substituted:
"(d) contravenes a provision of the regulations, or".
Seanad amendment agreed to.
Seanad amendment No. 9:
In page 53, lines 5 and 6, subsection (2) deleted and the following substituted:
"(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be commenced any time within—
(a) 12 months after the date of the offence, or
(b) 6 months after the date on which evidence first comes to the knowledge of the Authority or the chief inspector that is sufficient, in the opinion of the Authority or the chief inspector, to justify the bringing of the proceedings, provided that the proceedings are commenced not later than 2 years after the date of the offence.
(3) A document, purporting to have been issued by the Authority, in the case of a contravention ofsection 77 described in section 80(1)(a), or by the chief inspector, in any other case, certifying the date on which the evidence described in subsection (2) first came to the knowledge of the Authority or the chief inspector—
(a) is admissible without proof of the signature or official character of the person appearing to have signed the document, and
(b) in the absence of evidence to the contrary, is proof of the matters certified in the document.”.

Proceedings for offences are set out under section 80 of the Bill and the majority of offences under the Bill relate to the designated centres and are prosecuted by the chief inspector. However, the Health Information and Quality Authority, HIQA, may prosecute in cases where a person appointed to carry out an investigation under section 9 or to monitor compliance with standards set in accordance with section 8 has been refused entry to a premises. Section 80(2) provides that summary proceedings for an offence under the Bill may be instituted within 12 months after the date of the offence.

Amendment No. 9 retains this principle but also allows for the prosecution of offences up to six months after the date on which evidence first comes to the knowledge of HIQA or the chief inspector that is sufficient in the opinion of the authority or chief inspector to justify the bringing of the proceedings. This allows the chief inspector or HIQA, as the case may be, to prosecute where evidence of the offence only came to light some time after the offence was committed. However, in line with similar provisions in other legislation, proceedings in these circumstances must be commenced not later than two years after the date of the offence. Amendment No. 9 also provides for the admissibility of certificates certifying the date on which evidence first came to the knowledge of the chief inspector or HIQA.

Seanad amendment agreed to.
Seanad amendment No. 10:
In page 61, lines 35 to 37, subsection (1) deleted.
Seanad amendment agreed to.
Seanad amendment No. 11:
In page 78, column (3), lines 12 and 13, "Sections 59, 60, 61, 62, 63(4), 63(5) and 65" deleted and "Sections 38(3) and (4) and 59 to 65" substituted.
Seanad amendment agreed to.

Acting Chairman

Seanad amendments Nos. 12 and 13 are related and will be discussed together.

Seanad amendment No. 12:

In page 79, in the third column, line 24, "children's detention school" deleted and "children detention school" substituted.

These are technical drafting amendments to ensure the references are correct.

Seanad amendment agreed to.
Seanad amendment No. 13:
In page 79, in the third column, line 48, "The Executive" deleted and "The Health Service Executive" substituted.
Seanad amendment agreed to.
Seanad amendment No. 14:
In page 80, lines 8 to 16 deleted.
Seanad amendment agreed to.
Seanad amendment No. 15:
In page 86, between lines 34 and 35, the following inserted:
"

(c) In the definition of “connected person”, in paragraph (b), by inserting “or the county registrar concerned, as the case requires,”after “Wards of Court”.

"

This is a further amendment to Schedule 2, Part 7, which is an amendment to the Health (Repayment Scheme) Act 2006. It is a technical amendment to deal with an issue where a patient to whom the Act applies who would be entitled to a repayment of charges is a ward of the Circuit Court and the Circuit Court has a concurrent jurisdiction with the High Court in wardship matters. This concurrent jurisdiction is conferred by section 22(2) of the Courts (Supplemental Provisions) Act 1961. The registrar of the ward of the High Court only has responsibility for wards who have property with a value in excess of €6,350 or an income from savings and investments in excess of €380 per annum.

A patient whose property value or income from interest on savings or investments is below either of the thresholds mentioned by me could only be made a ward of the Circuit Court and the registrar of the wards of the High Court has no authority to act in such cases. Authority in this instance rests with the relevant county registrar.

The amendment amends the definition of a connected person in the Act to include county registrars and this puts beyond doubt the right of patients who are wards of the Circuit Court to have the county registrar apply for repayment of funds in line with the provisions of the Act.

Seanad amendment agreed to.

I would like to wish all the officials——

Acting Chairman

Does the Minister of State wish to indicate any further changes?

As I mentioned briefly earlier, we have looked for the support of the Members opposite. I seek the permission of the House to make some versional changes to the Bill. These arise because of the passing of the Health (Nursing Homes) (Amendment) Act 2007 earlier this year and from amendment No. 3, as agreed in this House today.

With the passing of the Health (Nursing Homes) (Amendment) Act 2007, the citation in the Health Bill needs to be amended to bring it in line with the citation in that Act.

Acting Chairman

Will the Minister of State start by reading the text of the amendment?

The first change is in respect of page 9, section 1(2), to delete lines 27 to 29 and substitute the following:

"(2) The Health Acts 1947 to 2006 and the Health (Nursing Homes) (Amendment) Act 2007 may be cited together as the Health Acts 1947 to 2007 and shall be construed together as one."

Acting Chairman

Is that agreed? Agreed.

The next change is in respect of page 13, section 8(1)(b)(i), line 10, to delete “the Health Acts 1947 to 2006” and substitute “the Health Acts 1947 to 2007”.

Acting Chairman

Is that agreed? Agreed.

The next change is in respect of page 47, section 73(2)(b), lines 37 and 38, to delete "under section 39, 41 or 53 of the Child Care Act 1991" and substitute "under section 39 to 42 and 53 of the Child Care Act 1991".

Acting Chairman

Is that agreed? Agreed.

It is very unusual to be asked to read out such changes, but I very much appreciate the House's co-operation.

I wish all the officials of the House and the Department of Health and Children an enjoyable Easter. I wish the elected Members of the House a productive Easter.

On behalf of Deputy McManus and myself, although we may have differed in respect of the Bill, I thank the Minister of State for the manner in which the debate took place and the officials for their co-operation on all Stages. It would be excellent if all officials in other Departments were as good as the officials in the Department of Health and Children. It says much for our public service. I wish everyone a good Easter.

I thank the Members for their compliments. I am sure my officials will be able to take a couple of days off over Easter to recharge the batteries. It is obvious from the small attendance at the debate here today that some Members take their Lenten obligations very seriously, which is very heartening.

Seanad amendments reported.

Acting Chairman

A message will be sent to Seanad Éireann acquainting it accordingly.

Notice taken that 20 Members were not present; House counted and 20 Members being present,