Seanad Éireann díospóireacht -
Wednesday, 4 Aug 1965

Vol. 59 No. 8

Public Business. - Hospital Sterile Supplies Board (Establishment) Order, 1965 (Amendment) Order, 1965: Motion.

Professor Dooge

I move:

That the Hospital Sterile Supplies Board (Establishment) Order, 1965 (Amendment) Order, 1965 be and is hereby annulled.

The motion in the name of Senator Garret FitzGerald and myself seeks to annul Statutory Instrument No. 157 of 1965. This is a Statutory Instrument notice of which has been issued directly to every member and which has the force of law unless it is annulled by this House, or by the other House, within seven sitting days. This motion has been moved not so much in criticism of what has been done or what is intended to be done under this particular Statutory Instrument but rather in criticism of the lack of information which accompanied the making of this particular Statutory Order and the setting up of this particular Statutory Body. The motion is put forward not, as I say, in order to assert that what is proposed is of necessity bad and accordingly the order should be annulled but rather that there is far too little information available to the members of the House to enable them to allow this particular Statutory Instrument to pass into law without some questions being raised on it.

This particular Statutory Instrument, which is entitled the Hospital Sterile Supplies Board (Establishment) Order, 1965 (Amendment) Order, 1965 is, as its title implies, an amendment of a previous Statutory Instrument—Statutory Instrument No. 1 of 1965. Both these orders have been made by the Minister for Health under the Health (Corporate Bodies) Act, 1961. I should like to say straight away that in my opinion the 1961 Health Corporate Bodies Act was a good Act. Prior to the passing of that Act companies could be established under the Companies Act under which the Minister for Health could provide special health finance. Since the passing of the 1961 Act the Minister, instead of using the Companies Act, which was hardly drafted or enacted for such a purpose, can establish such corporate bodies by order. The 1961 Act gives a firmer statutory foundation for such bodies and gives more Parliamentary control over the establishment and the operation of such bodies in dealing with health matters.

I want to emphasise that I think the Act is a good one and I welcome the fact that the Minister has in several instances acted under this 1961 Act. What we are faced with here today is a particular order, which amends a previous order. The first point I should like to raise is that orders amending orders always raise a certain amount of suspicion in my mind. I remember a story, which has been told in many forms, concerning what is alleged to be army routine in accounting for loss of valuable equipment. One version of the story goes somewhat like this. On particular manoeuvres a water-carrier was, through gross negligence, lost over a cliff and the person who was responsible felt that this negligence would leave him open to reprimand and possibly courtmartial for the negligent loss of valuable equipment. However, an older soldier was able to advise him that there was an established procedure for dealing with this matter. It was that he should report to the effect that on manoeuvres he had lost over a cliff not a water-carrier but a water-bottle and send in a full and detailed report about the loss of the water-bottle. Several days later he should then send an amending memorandum saying for "bottle" read "carrier". Subsequently, the two documents would never be brought together in any file and the consequences the soldier feared would not follow.

I think it would be a bad thing if the whole machinery of legislation would allow itself to get into the position that an order is made, as the order was made in January last, establishing a particular body and then six months later in July a new amending order is made which seeks to amend that particular order. Remembering, as I say, this old story of the army procedure I am immediately suspicious and curious.

When the original 1961 Act passed through the Seanad on the 27th July, 1961—shall we say this particular Bill was a product of the dog days of legislation—we find the Minister for Health referring to the type of body which would have been set up under the Bill if it had existed previously. He mentioned in particular—the Mental Research Council, the National Blood Transfusion Association, the National Mass Radiography Association, the National Rehabilitation Centre, the Dublin Rheumatism Clinic and Saint Luke's Hospital. These are all bodies of a certain type exercising a specific health function, a direct medical function. These were the types of bodies which the Minister mentioned when he was piloting this particular Bill through the Seanad.

In Statutory Instrument No. 1 of 1965 there was set up a corporate body for the provision of sterile requisites for hospitals in the Dublin area. This particular service is certainly one which, while it is not directly medical in the sense that those which I have cited in quotation of the Minister were, was ancillary to a medical service. I do not think there would be much comment, query or call for explanation in regard to it.

In the present order made in July and which is the subject of the motion, there was an extension of the functions of this particular body to something further. There was an extension of its functions to cover laundry, supply of linen, bedclothes, clothing and other articles. Here, we find an extension of this original Sterile Requisites Board to cover a function which is even less directly medical; which is, I think, ancillary to the ancillary service of medicine and surgery. There is a call here for an explanation. A change such as this, with an extension of these powers, should have been accompanied by an adequate explanation on the part of the Minister for Health.

The members of the House all received, as I received, an explanatory note which was attached to Statutory Instrument No. 157, an explanatory note which explains nothing. It is on account of the deficiency in this explanatory note that this motion has been put down, asking for a reasonably full explanation from the Minister for Health as to the circumstances in which the functions of this particular board should be extended and as to the precise nature of the work that can be done. It is necessary and salutary that this explanation should be given and that this discussion should take place here in the Seanad today.

It may well be that what is proposed by the Minister under this statutory instrument is well justified but we want to be careful lest we do not proceed step by step and precedent by precedent from the original intention of setting up bodies to provide direct medical health services, until we find bodies set up under the same Act for services which would ordinarily be provided by people in private business or might well be provided by the hospitals themselves. I think we need an explanation as to what is the particular demand for this laundry service and what are the reasons which the Minister for Health considers that the existing services are unable to supply it.

I should like to mention a few further points in regard to this order. One is that there is a rather curious provision in it providing that the board, which is set up to run this particular statutory body, instead of meeting and going to the trouble of drawing up and going through resolutions is relieved of that necessity. All they have to do is sign their names at the end of a memorandum under section 5 of the statutory instrument which we are now discussing. We find in that section and I quote:

A memorandum signed by all the members for the time being of the board shall be effective for all purposes as a resolution of the board passed at a meeting of the board, duly convened, held and constituted.

I should like to know for what reason does the Minister for Health think it proper that the board of this particular body which he is setting up need not meet, that it can act merely by appending its members' several signatures at the bottom of a memorandum.

There is further provision whereby the board might delegate some of its functions. These might be delegated to some sub-committee which would be quite all right but in view of the previous provision in regard to the signing of a memorandum, I am a little anxious here lest, perhaps, the board will not meet at all but will merely sign memoranda.

I await with interest what the Minister for Industry and Commerce has to say on behalf of the Minister for Health in regard to the demand for this service, the extent to which he has satisfied himself that the existing bodies cannot supply it, what his explanation is in regard to the particular way in which the board is now allowed to carry out its functions and whether he has any intention of setting up similar bodies of this kind. Are we to have a statutory instrument in October to say that this body as well as doing laundry can also do window-cleaning, another following up in December that it can do chimney cleaning as well? We should like to know where this procedure will stop. On the face of it the order is not bad but this motion is the only procedure available to us whereby we can give the Minister an opportunity of coming in and persuading us that it is in order.

Mr. Garret FitzGerald

I should like to support Senator Dooge in this matter and for the same reasons. I have no reason to believe that there is anything particularly objectionable in the proposed extension of activities of this body but, as I have no direct information on it, it seems proper to require some explanation from the Minister for Health. It seems quite inappropriate that legislation, by order of this kind, should be unaccompanied by any explanation of the action being taken.

In this instance, it is proposed to establish a laundry which may undertake work currently carried out by existing laundries. There is nothing inherently objectionable in this. There are many State bodies which compete in some degree with private enterprise. But when a State takes initiative of this kind to compete with private enterprise it is desirable, in order to avoid unnecessary feelings being roused, that the reasons for this should be explained. If this is done there should be no difficulty. I would have imagined that when, in fact, it was thought desirable to have such a laundry established and when this decision had been reached, it would have been notified to the existing laundries and that they would have been told what is involved. Any expression of view these existing laundries might make on the subject should have been taken into account, but not necessarily agreed with. It might be that some of them would object because they would lose a small amount of business. It would be proper at least to consult the people whose livelihood could be affected, to notify them of it, and certainly Parliament should be told in a case like this that the Government is contemplating an extension of its activities into an area of private enterprise. It is my understanding that there were not such consultations in this instance.

There are some laundries which know of it and some which have offered to co-operate with this particular venture. There are others which know nothing about it. It is wrong that this type of enterprise should be launched in this rather odd way simply by an amendment of an existing order with no explanation to the Oireachtas or to the individuals affected by it.

I should also like to comment on the question of establishing committees. The order also enables the board to delegate some of its functions to committees. It is a bit more involved than just establishing committees. It enables the body to delegate up to the whole of its functions to committees. I do not think the explanatory memorandum is adequate in what it says there, apart from the fact that it, as Senator Dooge says, tells us nothing whatever about the reason for the establishment of this body, good though they may be and good though they undoubtedly are. That is all I have to say. I should like to give the Minister an opportunity now, subject to other Senators not wanting to speak, of telling the House why he thinks it is a good idea. It is something we ought to be convinced of and told about rather than something which is passed without even noticing what is happening.

Mr. O'Quigley

It seems to me that section 5 of this order is ultra vires the Act of 1961. It is recognised that any statutory body has only such powers as are given to it by the statute. In a quick run through the 1961 Health (Corporate Bodies) Act, I cannot find any authority or any power in the Minister to enable the boards to establish committees, or in the boards to assign the discharge of their functions, or any of them, to the committees. It seems to me that the whole of section 5 is quite contrary to the statute. In any event, that is a matter of law for the Minister and his advisers to take note of. One cannot but regret this bureaucratising of a body of this kind. It may be all right to delegate these matters to a board. We all know that boards act in the main through their secretaries or Secretary and Chairman. But when you reduce the activity of the board to having a memorandum signed by a whole lot of “Yes” men who all agree with what the Secretary says, really, that makes a farce of these bodies. I hope the members of this board will not consent to having themselves defaced in this kind of way by agreement to memorandum after memorandum they get out from the Secretary and signing “I agree”, “I agree”—because that is what section 5 sets out to do. I think it is a completely undemocratic way of discharging public business with public money.

Minister for Industry and Commerce (Dr. Hillery)

I gather that the legality has been established of the amendment of paragraph 17 of the Establishment Order that advice is taken by the Minister and he is satisfied that it is within the Act.

Mr. O'Quigley

Lawyers differ.

Dr. Hillery

This would have been explained in the presence of our national newspapers but, in the present circumstances, the normal explanation of a new statutory instrument did not take place. There was no intention not to communicate with the public about it.

Mr. D.J. O'Sullivan

There is still a good daily newspaper in circulation.

Tomás Ó Maoláin

You cannot get enough of it in Dublin, though.

Dr. Hillery

We must not advertise. The principle is the very same. Co-operation between hospitals in the sterilisation of instruments and materials on a central co-operative basis was seen abroad by some Dublin surgeons some years ago. They suggested to the Minister for Health at the time that he should set up a working party here consisting of representatives of the hospitals and of his Department to investigate the possibility of instituting here a central service for sterilisation. The party was unanimous in recommending that such a body should be set up and it was done, as the Senator says, under the Health (Corporate Bodies) Act, 1961, under an Establishment Order entitled the Hospital Sterile Supplies Board. The initial objective of this was to serve the hospitals in Dublin but the Minister for Health envisaged and hoped for an extension of the service to the hospitals throughout the country. When this board had been operating for some time, it was suggested, again from the hospitals, that the functions of the board should be extended to cover the provision of a central laundry service. There is not any difference of matter and degree between a laundry and a sterilising service, I presume——

Professor Dooge

There are degrees of centigrade.

Dr. Hillery

The suggestion was made to the hospitals and put to the board which had already been established. They were asked if they could undertake these new activities. The whole question was fully discussed last June with representatives of the hospitals and representatives of the Minister for Health and it was generally agreed, in principle, that this, too, would be a desirable development. It was agreed at that time that a detailed investigation of the possibilities and implications should be made by the Hospital Sterile Supplies Board and this investigation is at present proceeding. In view of the agreement of the hospitals and of the Board, the Minister for Health decided that the Hospital Sterile Supplies Board should be given the necessary powers to undertake the provision of a central laundry service subject to the findings of this investigation as to the precise type of service which would be given centrally to the various hospitals.

This order which is questioned here is the order giving the power to the board to create these services. Both correspond: they are of the same nature. I think Senators would agree that it is to be praised in medical people that they are forward-looking and that they are seeking to co-operate and to get better joint services in these two fields of sterilisation and laundry. The result must be a higher standard of service and, of course, an economy in the running of hospitals, which is a consideration.

The hospitals have traditionally provided their own laundry service. Again, the years have made their equipment and, in some cases, their premises unsuitable. Time, too, has made it difficult for them to get staff and to reach the standard which is desirable. Some of the hospitals, in fact, abandoned the carrying out of laundry themselves and did go to commercial laundries but they found this expensive. Against that background and in the light of the intention to provide central laundries for two planned hospitals in Dublin, it seems logical that the voluntary hospitals should see merit in combining in the solution of this problem. I understand that considerable progress has been made in this field in Britain and in Scandinavia.

The only other information available is that the service will be provided on a non-profit basis. The laundry will be of the most modern type of equipment and under skilled management so Senators may expect that the Dublin hospitals will, for the first time, perhaps, have a central service, a high-class service and, at the same time, an economical service. No hospital will be compelled to use this service but, from what I see here, most of them should be very attracted to it because of the advantages to each hospital.

Professor Dooge

I am just a little bit unclear as to the exact stage which the investigations have reached in this particular matter. Do I understand the Minister aright that it has been agreed, in principle, to provide a laundry but that the details have not been agreed?

Dr. Hillery

It is agreed, in principle. The Minister seeks by this amendment to give them powers to do it but they themselves are investigating the precise nature of the laundry service. I presume this will come to the stage of questioning whether or not they will bring in chimneys, as the Senator suggested.

Mr. Garret FitzGerald

Does the Minister not feel, perhaps—even in his capacity as Minister for Industry and Commerce—that in the case of institutions like this it would have been normal and courteous to indicate the intention to the laundries engaged in this? At least he should have notified them, if not consulted them.

Seán Ó Donnabháin

The Seanad has appointed representatives to act on the Committee on Statutory Instruments. I acted on it myself for at least a year. I think this motion is an indictment of the members of that Committee.

Acting Chairman (Mr. Cole)

Is this a point of order?

Seán Ó Donnabháin

It is a point relative to this Statutory Instrument that it was considered by a Committee of the House. Now it comes before us on a motion by certain Senators which could be interpreted as a sort of indictment of the members appointed to that Committee.

Acting Chairman

I think the Senator is out of order at this stage.

Dr. Hillery

I left out something about the memorandum. I gather the intention of having the memorandum is to facilitate urgent matters to be dealt with. It is not intended to have the normal meetings substituted by a signature on the memorandum.

Mr. O'Quigley

That is consoling.

Professor Dooge

It is only proper to say that our action today has little relevance to the operation of the Committee on Statutory Instruments. We were not concerned with whether this order was or not legally outside the scope of the Health (Corporate Bodies) Act of 1961. We were concerned with the administrative act of the Minister for Health in making an order in a particular manner and his action circulating this order to the members to decide whether or not it would be annulled within the statutory seven sitting days. We were also concerned with the fact that the Minister did not give adequate information to the members of the House, the public and to the commercial interests concerned when he made that particular order.

I am satisfied from what the Minister has said on behalf of the Minister for Health that this Statutory. Instrument is one that should have the support of this House. However, in ways it was rather loosely drafted. The point the Minister made that signed memoranda will only be substituted for full meetings of the board in times of urgency is a matter that, perhaps, could have been made clear on the face of the Statutory Instrument itself. Where there is something the Minister thinks might be necessary to be done in times of urgency, it is bad practice that the Statutory Instrument should be drafted in so completely wide a fashion that, under it, the body set up could act in this way in its day-to-day operations. This is bad drafting and bad administration on the part of the Minister for Health. It is bad execution of delegated legislation. The House has repeatedly shown its jealousy in regard to delegated legislation. The loose drafting, the movement into what is a quasi-commercial area without a full statement on the matter, are things to be deplored.

While I unreservedly withdraw this motion to annul the order, I rebut any criticism that this was not necessary and not something apart from the work of the Committee on Statutory Instruments. Therefore, I withdraw it unreservedly but without any apology whatsoever.

Motion, by leave, withdrawn.