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Seanad Éireann díospóireacht -
Wednesday, 22 Jun 1966

Vol. 61 No. 11

Social Welfare (Occupational Injuries) Bill, 1965: Report Stage.

Before we take up consideration of the amendments tabled for this Bill, it would be well if I indicated that amendments Nos. 5, 8 and 16 are out of order.

Amendments Nos. 5 and 16 are out of order because the subject matters were not raised in a substantial manner in Committee and amendment No. 8 is out of order because it was negatived in Committee.

The Senators have been notified accordingly.

The Chair suggests that amendments Nos. 1, 2 and 19 be taken together.

SECTION 1.

I move amendment No. 1:

In page 5, section 1, between lines 43 and 44 to insert the following:

"(9) For the purposes of this Act—

(a) for every reference to an ‘appeals officer' in sections 44, 45 and 46 of the Principal Act there shall be substituted a reference to an ‘appeals tribunal' which shall consist of an appeals officer and at least two assessors appointed under section 44 (11) of the Principal Act.

(b) The Chief Appeals Officer shall be a barrister or advocate of not less than 10 years standing or a judge of the Circuit Court.

(c) the following paragraph is hereby added to section 45 of the Principal Act—

‘(c) the appeal tribunal may refer the question for the decision of the High Court."'

This follows on the amendment which we had on Committee Stage. We still feel that it would be much more just to the workmen if there were an appeals tribunal. The Minister did not seem very inclined to fit in with what we sought in our last amendment but I think he might consider this one as it fits in more with the standing legislation and would, in all ways, give us what we sought to get in our previous amendment. I hope that the Minister will think carefully on the views we put forward in regard to the justice of an appeals tribunal in cases of this kind and consent to meet us in this matter in some way.

I would suggest that the Minister give us an explanation of amendment No. 19. It seems to be the same thing but it is a bit difficult to construe.

Amendment No. 19 arises out of my undertaking to consider, between the Committee Stage and Report Stage, the introduction of an amendment which would allow questions of law arising out of whether or not an accident arose out of and in the course of employment to be appealed to the High Court. That is what I am doing here now. Under this arrangement, where an appeal is made against the decision of a Deciding Officer involving this question, I can, on the request of the Chief Appeals Officer, refer the question for decision by the High Court. If the question is decided by an Appeals Officer, any other person affected can appeal therefrom to the High Court on any question of law.

With regard to the amendment submitted by Senator Miss Davidson and Senator Murphy, as I explained, I already have power to appoint assessors to sit with Appeals Officers and this is, in fact, done already in connection with unemployment benefit. If it appears necessary, from experience of this scheme in operation, to do it under this code, it can be done also but I do not think it is either necessary or desirable that I should be tied to having assessors sitting in all cases, as this amendment would require me to do.

With regard to paragraph (b) of the amendment, this provision would be in conflict with section 43 of the Principal Act which provides that the Minister may appoint, from his officers, such and so many persons as he thinks proper to be Appeals Officers and that one of the Appeals Officers shall be designated by the Minister to be the Chief Appeals Officer. Therefore, I am already required, by the Principal Act, to appoint a Chief Appeals Officer from among the Appeals Officers designated by me. Apart from that, if this was accepted, we would have the anomalous position of two Chief Appeals Officers, one for occupational injuries and the other for other social welfare purposes. Therefore, this amendment is not acceptable and, as I have said, I have, in fact, got power to appoint assessors to sit with Appeals Officers, if it appears necessary after we have experience of the operation of this scheme.

I do not very much mind whether Senator Miss Davidson's amendment or the amendment put down by Senator FitzGerald and myself is accepted by the House. I would prefer the amendment we put down for the simple reason that it brings the right of appeal to a court within reasonable travelling distance of any person who wants to avail of the appeal.

It has been the fundamental guiding line of legislation over the years to reduce law costs by making the law more readily available to the people. It was for that reason that circuit courts were established. Indeed, at a later date we will have the Minister for Justice bringing into this House a Bill to extend, as he has already told us, the jurisdiction of the circuit courts to enable people to avail themselves of the courts more readily. What the Minister is providing for in his amendments is a right of appeal to the High Court. Straight away that in effect and in practice will mean that there will be very few appeals. That may be the way the Minister wants a particular social welfare code to operate; his Department will not be concerned with many appeals. But, the idea of a man who has a claim for workmen's compensation, or occupational injuries, who lives in Mayo, Donegal or Kerry embarking on High Court proceedings to have his case determined is altogether impractical and it may be confidently anticipated, as the Minister hopes, that the appeals to the High Court will be few and far between.

This is what I am trying to achieve in my amendment. If a person feels that there has been a wrong determination of his case he should have a right of appeal to the circuit court and that appeal should be to the judge of the circuit court, for the time being assigned to the circuit wherein the accident happened, or where the appellant resides at the option of the claimant workman. If we are going to give a right it should be given in such a way that it will be practical to avail of it by those whom it is intended to benefit. That is the kind of legislation we ought to frame.

Giving a right of appeal to the High Court to my mind will achieve very little. Though it will concede the principle, it will achieve very little under this Bill. The Minister, I am sure, has the figures for the number of appeals under sections 41 and 42 of the Social Welfare Act of 1952. I do not believe that there were 20 appeals since that Act was enacted in 1952. If that is all the Minister intends to afford the workmen of this country, it certainly is a very poor substitute for the right of resort to the courts to determine their claim, which workmen had up to now. I would urge on the House that this appeal should be allowed to the circuit court. In urging that, I want to call the attention of the House to this very salient fact. The Minister earlier said that Appeals Officers and Deciding Officers were people who were trained in social legislation and, therefore, were specialists and knew all about this kind of thing. I have before me a copy of the reply given by the Minister to a question on the 8th March, 1966. He had this to say about Appeals Officers and Deciding Officers which to my mind strengthens the case for a right of appeal on the part of the workman. The Minister said, as reported in volume 221, column 1100, of the Official Report of 8th March, 1966:

Only officers who have experience of Social Welfare legislation are appointed deciding officers or appeals officers. Before appointment, therefore, these officers have familiarised themselves with the duties required of them as deciding officers or appeals officers. On appointment they are given such further on-the-job training as may be found necessary. Duties as deciding officers form only part and sometimes only a very small part of the duties of deciding officers; many of these officers are occupied for the most part in aspects of day to day administration of the social services which do not involve the deciding of cases.

What I want to put to the House is this. The right of appeal would be practically from the Deciding Officer to the court and the Deciding Officers of the Minister: "form only part and are persons whose duties in the words sometimes only a very small part of the duties of deciding officers ..." so that, in effect, a deciding officer who will determine a workman's right under this new Bill will be a person who is not very frequently engaged in these kinds of decisions. Then the Minister says: "I will provide an appeal where an accident arises out of and in the course of employment to the courts" but the form of appeal he will provide is to the High Court.

What it means then is that a workman's rights will be determined by an inexperienced Deciding Officer. For that reason it seems to me to be absolutely essential that we should provide a more accessible right of appeal for the workman than the Minister is providing and that readily accessible appeal will be found in an application to the circuit court and the circuit court will be sitting in the man's county. He could get a lift there and that is quite a different day's work from travelling up to and down from Dublin to have his case heard in the High Court.

I think, therefore, that the amendment I suggest is one which provides a real right of appeal for the workman

First of all, I should like to point out that this is not the only appeal that is being allowed to the worker. Appeal to the court on this aspect of the matter is additional to the right of appeal that already exists. In regard to the point that Deciding Officers are not solely engaged on the giving of decisions, that that is only part of their work, it is a fact, of course, that all their other work is in the field of social welfare. This helps them to increase their experience of social welfare matters generally. No person is appointed as a Deciding Officer until he has, in fact, gained considerable experience of the whole social welfare code.

The principal Act already has provision for reference, and when appeals to the High Court on questions of law in regard to insurability arise, I can see no reason for making a different form of appeal to a different court in this matter. It is desirable that provision for appeal to the courts should be uniform both in relation to insurability and accident questions.

It is possible that both matters could conceivably arise on the one case. There could be a refusal of benefit on the grounds that the accident did not arise out of and in the course of the employment, or if it did so arise that the employment was not insurable employment under the Occupational Injuries Bill. It is possible that the two forms of appeal could conceivably arise in the same case. I think it is desirable that the appeal in both cases should be to the same court.

Insurable employment cannot arise under this Bill. I do not think that the question of insurable employment can arise.

Of course, it can. We had long discussions here about a lot of theoretical cases, as to whether those cases would be insurable employment or not. It is obvious that there could be disputes as to whether a particular employment was insurable.

As I said, it is not likely that many cases will be appealed to the courts on this matter because, having regard to the provisions of section 4 which provides that certain accidents will be deemed to arise out of and in the course of the employment, these disputes will not be as frequent now as they have been in the past—and they have not been very frequent in the past —and also due to the fact that the appeal to the court will follow the appeal to the appeals officer.

I take it that concludes the discussion on amendments Nos. 1, 2 and 19.

On a point of order, should not amendment No. 1 be taken first rather than amendment No. 19?

Is amendment No. 1 withdrawn?

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 5, between lines 43 and 44 to insert a new section as follows:

"2. (1) Notwithstanding anything contained in the Principal Act, an appeal shall lie from the decision of a deciding officer or of an Appeals Officer on any question as to whether an accident arose out of and in the course of employment to the Judge of the Circuit Court for the time being assigned to the circuit wherein the accident happened or where the appellant resides at the option of the appellant.

(2) Rules of Court shall provide for the procedure to be followed on appeals under this section."

Amendment No. 2 is being pressed.

Amendment put.
The Seanad divided: Tá, 15; Níl, 26.

  • Carton, Victor.
  • Conlan, John F.
  • Crowley, Patrick.
  • Davidson, Mary F.
  • FitzGerald, Garret M.D.
  • McDonald, Charles.
  • McHugh, Vincent.
  • McQuillan, Jack.
  • Malone, Patrick.
  • Mannion, John.
  • Murphy, Dominick F.
  • O'Quigley, John B.
  • O'Reilly, Patrick (Cavan).
  • Prendergast, Micheál A.
  • Stanford, William B.

Níl

  • Ahern, Liam.
  • Boland, Gerald.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Eachthéirn, Cáit Uí.
  • Egan, Kieran P.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Honan, Dermot P.
  • McGlinchey, Bernard.
  • Martin, James J.
  • Nash, John Joseph.
  • Ó Conalláin, Dónall.
  • Ó Donnabháin, Seán.
  • O'Kennedy, Michael.
  • O'Reilly, Patrick (Longford).
  • O'Sullivan, Ted.
  • Ryan, Eoin.
  • Ryan, James.
  • Ryan, Patrick W.
  • Ryan William.
  • Sheldon, William A.W.
  • Teehan, Patrick J.
  • Yeats, Michael.
Tellers:—Tá: Senators Conlan and M cDonald; Níl: Senators Browne and Farrell.
Amendment declared lost.

I move amendment No. 3:

In page 6, to delete lines 56 and 57.

The purpose of the amendment is to define what is insurable occupational injuries employment. For that purpose resort is had to the First Schedule of the Social Welfare Act, 1952. In the First Schedule of that Act there are two types of employment mentioned, those which are insurable under the Social Welfare Act and those which are excepted from insurance under the Social Welfare Act. In subsection (3) of section 3 of the present Bill certain employments are excluded from entitlement to occupational injuries benefit. One of those is "employment under any local or other public authority in the execution of any contract for services." On the last occasion I asked the Minister what was meant by "any contract for services." I shall be glad to hear what the Minister has to say about that.

It seems to me that a contract for services arises in those cases where the person is employed but they have such a type of skill that the employer does not have the direction of the manner in which the services are to be discharged. He really employs the person because of the skill he has. That can apply in the case of a radiographer in a public authority working in a hospital, radiologist or a medical doctor who is employed in the first year after he has qualified. It seems to me that if a nurse in a hospital slips on the floor and injures her back and is entitled to occupational injuries a medical doctor who is within the income limits under this Bill, who similarly slips and receives the same kind of injury should be equally entitled, because he is within the income limit, to occupational injuries.

It seems to me that under paragraph 3 that we are excluding the medical doctor, the radiographer or the radiologist because the contract with the public authority is a contract for services. There is no justification for this legalistic distinction between the two kinds of employees and the amendment is designed to remove paragraph (d) of subsection (3).

The definition I have of contract of service is that employment under contract of service implies the existence of a master and servant relationship between the employer and employee. The employee is obliged to render personal services and is subject to the right, on behalf of the employer, to control and direct him in the natural performance of his duties.

On the other hand, a contract for services implies a person engaged as an independent contractor, who undertakes to do certain work for another person without subjecting himself to that person's control as to the method of performance of the work. He may, in certain circumstances, contract to do the necessary work personally without the right of control by his client on his method of working. These lines which it is sought to delete from the Bill—paragraph (d)—exclude from the scope of the Act employment under any local or other public authority in the execution of any contract for services.

It would not be necessary to provide for the exclusion of these people were it not for the fact that special provision was made to bring a certain class of persons within the scope of the Principal Act. Other people employed under a contract for services are not insurable under the Social Welfare Acts, but a departure from this general principle of employer-employee relationship was made in the Principal Act in order to allow people such as carters who may be in employment on a contract for services basis—a contract for the supply of a horse, cart and driver to a local authority in connection with the upkeep of roads— to be insurable when the employment is of one person only and is by way of manual labour and service is given only by the employed person.

It is felt that in such circumstances such a person should be insured for the different insurance schemes, unemployment benefit, disability benefit and contributory old age and widows' pensions. The work that these people do, however, need not be carried out under direct supervision, so that while it is appropriate for insurance for other purposes it is not appropriate for insurance for occupational injuries purposes because it is a matter for the man himself how he carries out the work and if he does it in such a way as to cause him to suffer injuries he is in no different position than any other self-employed person. Certainly, the employer could not be held responsible. It would be inappropriate to extend this provision to the Occupational Injuries Code, particularly when such independent contractors are only insurable when employed by a local or a public authority.

This highlights the defects and the deficiencies of the Bill. If I understand the Minister correctly, we now have this further anomaly in the matter of employment and disability benefit. The person with the horse and cart employed by a county council comes under the Social Welfare Acts and is entitled to disability benefit if he suffers sickness while so employed. That was the purpose of bringing him in. Now, under this Bill, if he is injured arising out of or in the course of his employment with his horse and cart with the county council, he will not be entitled to occupational injuries benefit. I am stating what appears to me to be the law as stated by the Minister.

That is an anomaly which will be extremely difficult to justify to the small farmer with his horse and cart employed by the local authority. The second anomaly that arises, apparently, is that such a person, if he were employed by a private person, may well be within the scope of the Bill. I have knowledge of a case of a man who to all intents and purposes was an independent contractor. He went around building haysheds for various farmers. While building a hayshed for an employer—putting rope on one of these RSJs, these reinforced steel joists——

Rolled steel joists.

Reinforced.

Reinforced they call it in the building trade.

That is so.

There you are. Here is an expert. Ring up Brooks Thomas. However, this man fell and injured his back and the circuit court, which has been so maligned by the Minister, found that while to all intents and purposes he was an independent contractor, he was a workman employed by the farmer because the farmer could point out to him where to do the work. He was duly paid his workmen's compensation. Now, if I understand the Minister correctly, that man being an independent contractor, will be excluded from benefit under this Bill. It makes me again wonder whether we really know the extent to which we are stripping various types of workmen of benefits which they have hitherto enjoyed under the Workmen's Compensation Acts.

The Minister did not deal with the situation which seems to me to be a clear case where you have a contract for services. A physiotherapist or a radiologist may be employed and may be injured—may suffer an electrical shock or may slip in the theatre. That person, though he comes within the income limit, simply because he happens to have a particular skill and happens to be the kind of person who cannot be directed by the employer who has no competence to do the work, does not come within the scope of the Bill. It is anomalous that though he is within the income limit he will not be entitled to a halfpenny. Therefore, paragraph (d) will militate against people at both ends of the scale—the carter with his horse and the person with the academic qualifications.

Amendment put and declared lost.

Is oth liom é sin.

I move amendment No. 4:

In page 10, line 15, to add at the end:

"except where the beneficiary was working a five-day week, prior to the accident, in which event the amount payable for any day of incapacity after the first twelve days of incapacity shall be one-fifth of the appropriate weekly rate".

This is a small point which I raised in another form on Committee Stage when the Minister was good enough to point out that the effect of the amendment would be one which, while it would confer marginal benefits in the matter of longer periods of disablement, would have the opposite effect and would reduce benefits in the case of disablement for periods of 12 days or less. I have, therefore, reworded the amendment to leave its application to a period for which it will confer some marginal benefit on the worker. I accept the Minister's point which he made on the Committee Stage that the benefit involved is fairly small, but it could be significant and it seems right that we should recognise that the five-day week does exist very widely and that where it does exist a workman should not be put at a disadvantage by getting only one-sixth of a week's benefit in respect of one of every five working days on which he is prevented from working owing to disablement.

While it is not a major matter, it seems to be the thing on which I should take the Minister at his word by putting down an amendment which would confer this marginal benefit, which would not cost very much and which does give rights that a workman should have if he is a five-day worker and if his disablement lasts longer than a fortnight. The rewording of the amendment eliminates the danger of which the Minister spoke, of the worker being at a disadvantage because of the old amendment, and I would ask the Minister to accept it.

This new amendment has given me an opportunity of examining the possible effects more closely, and while I stated on the Committee Stage that it was only in longer term cases that the amendment would be of any benefit at all and that this would only be a marginal benefit in those cases but that it would work the other way in short term absences from work, when you look at it more closely it will be seen that even in the case of longer absences this proposal to change from a six-day basis to a five-day basis could work to the disadvantage of the workman. Where a workman is incapable for a period of a number of complete weeks plus a number of odd days, if those odd days include his day off, his rest day, this could work to his disadvantage. If he is absent for five full weeks plus his rest day he would on the five-day basis receive five weeks payment only. If he were absent for five weeks plus three days, those three days including a rest day, he would receive five weeks plus two days benefit, that is, two-fifths of the weekly rate, on the proposed five-day basis; but if he was on the six-day basis he would receive five weeks plus three days benefit, that is half the weekly rate. There seems to be on balance more to be lost than gained by this amendment, and I think that it would be better to wait and see whether there arises need at some future time to make any general alteration in the provisions in order to cater for five-day week workers, but I do not think that there is any such need. In any case, if this amendment were to be accepted it would be necessary also to modify the injury benefit period for five-day workers. There is no proposal here to do that. I do not think that this is necessary, and it could conceivably work to the disadvantage of the workman, though it would be a very small disadvantage.

I am in a difficulty about concluding inasmuch as I have not understood the Minister's explanation. That is not to say that he did not explain it carefully and completely, but it is a complex matter and my difficulty arises from a defect of understanding on my part. Not understanding it, I am in a difficulty about knowing what to do about it. I do not see the Minister's difficulty. I do not see, in fact, how the rest days come into it. I know that the payment is payable in relation to working days which the worker has lost. If a man is out for two weeks and two working days he should get two and two-fifths. I do not see how rest days come into it.

He would be paid for it under the present system if his rest day comes into it. He would be paid for three days instead of two under the present system, but under this amendment he would be paid for two.

If a man is out for two weeks plus Saturday and Sunday and comes back on the Monday he gets two and two-sixths weeks benefit, because he will always be out on those two days. If a man works a five-day week and is out for two weeks he will not return on Saturday morning. He will turn in on Monday morning. Is the Minister suggesting that he will automatically get two and one-third weeks benefit because he did not turn up on Saturday or Sunday when he was not due anyway? It does not seem to me to make sense.

He will get two and one-sixth under the present system but under the Senator's proposal he will not.

I am now totally lost. I cannot follow the Minister's explanation.

He will be given credit for the day he does work as it stands at present.

Would the Minister like to direct my attention to the relative clause under which this happens?

It arises out of the fact that we deal with a six-day week rather than a five-day week.

That does not seem to have regard to the fact that the five-day week is going all around the world. If I understand it properly the benefit applies to all the days on which the man normally works and if he is a five-day worker it will be five days of incapacity.

It is days on which he is certified as being incapable of work.

If a man works a five-day week he is not usually certified for five days, but for a week.

The medical officer will certify him from one date to another date.

He will certify for a week, that is from Monday morning to the following Monday, if it is a six-day week or a five-day week. Why should he decide to certify him from Monday to Saturday night, not including Sunday, when he would not work in any case? I cannot imagine any medical officer doing anything of that kind.

If he does not do a week's work he will get a week's benefit.

This is my whole point. If he turns up on Tuesday morning having been certified for a period of 17 days, under the Minister's arrangement, he will get two and one-sixth weeks even though he should get two and one-fifth. I do not think that anything the Minister has said has made his case that there is a danger of a man losing under this amendment. A certificate will apply for a week, which is seven days, or for the days when the man does not work, which is five days. In no circumstances can it be taken to apply for six days.

I agree that in some circumstances the worker could gain under the Senator's proposals but in others he could lose. If the period of incapacity over a week includes the rest day, including the sixth day on which he did not work then under the Senator's proposal if it was over a period of three days beyond the week he would be paid for two and two-fifths of a week benefit. Under the existing proposals he would get two and three-sixths.

Despite the indulgence of the Chair and the help of the Minister, I have not understood the Minister's explanation. If the man turns up on the Tuesday morning I cannot see what the rest days have to do with it. He will have a certificate for the period he was out, from the previous Saturday morning before that will represent one week plus one day —nine days—to the Tuesday. That for which under the amendment he would get one week and one-fifths benefit, but under the Minister's system he would get one and one-sixth.

Under my proposal he will get two-sixths, or one-third, as against one-fifth.

How can a man on a five-day week, who turns up on a Tuesday morning——

Because we assume he is on a six-day week.

Could the Minister say where he assumes that in the Bill? Where does the Bill define "the day of incapacity" as Saturday and not Sunday?

That is an assumption that Senator FitzGerald wants me to change. He wants me to treat, in the case of a man working a five-day week, the week's benefit as being for five separate days.

I am sorry. I am asking the Minister to define "day of incapacity." I understood it to be a working day. If a man is on a five-day week the "day of incapacity" could be a Friday. Then his rest day could not be included no matter how much the Minister might want to include it. On what does the Minister rest his interpretation of "day of incapacity" as including a Saturday, although the man is not due to work?

The fact that one-sixth of the weekly benefit is the daily rate in all cases whether the man works a five-day week or a six-day week.

That does not answer the point at all. I am afraid the Minister is confused. I thought it was only I who was confused. I have now come to the conclusion that the Minister is even more so.

The Appeals Officer will decide that no matter what the Minister has said.

Amendment put and declared lost.
Amendment No. 5 not moved.

The Chair suggests that amendments Nos. 6 and 7 be taken together.

I move amendment No. 6:

In page 11, lines 56 and 57, to delete "the period taken into account" and substitute "a period of less than seven years."

These amendments arise out of the quite long and useful debate we had on this issue on Committee Stage. I pointed out that the Dáil, in introducing the new subsection—subsection (9)—seemed not to have adverted to the relationship between that new sub-section and subsection (7) in which there is a limit of £380 for the lump sum, thereby creating a situation in which, in any case where the basis of assessment of this benefit is a period of more than seven years, the worker will be given a choice between weekly pension and a gratuity which will be less than and could, in fact, be substantially less than, or a mere fraction of the commuted value of his weekly pension, tempting him to take the lump sum which is worth far less than the value of the pension. This, I think, is a fortuitous and unintended consequence of the improvement the Dáil tried to effect by introducing subsection (9).

Having probed the matter on Committee Stage on the basis of an amendment I put down, I discovered more about the meaning of this section and its operation from the Minister, in his reply, and it seemed to me—as I said in that debate—that the right answer here is to limit this lump sum option to those cases in which, in fact, the amount involved would be small, because it involves both disablement of less than 20 per cent and also the assessment of a period of less than seven years disablement; the combination of the two yielding a situation in which a man would, therefore, be getting a small sum of money weekly for a limited period, the commuted amount of which would not be great and would, in fact, be less than £380. It is entirely wrong that in such a case a man should be given a lump sum rather than this small pension for a limited period. It is undesirable that the man would be put in a position in which he would be tempted to accept a lump sum of £380 when the true value of the pension over a period of life, 20 years or something like that, could possibly be £1,000 or more. I would prefer not to give him a dangerous option to take an inadequate lump sum which does not represent the commuted value of the pension.

Therefore, what I have tried to give effect to is a straight alternative that in the 20 per cent or less case either the position is that the disablement will last seven years or more and the lump sum should not be limited to £380 which may be only a fraction of the true value of the weekly pension, or the pension and the period which is assessed for is less than seven years when he should get the lump sum and be finished with it. There would be no option here but a straight choice depending upon whether it is above or below seven years. From the discussion we had on Committee Stage it appeared that this measure was the best solution to a slightly tricky problem and in this way cope with the unfortunate by-product of an improvement which the Dáil introduced in this particular section, but introduced without considering the implications of sub-section (7) in this new sub-section (9) as inserted.

I would, therefore, suggest that these amendments provide a more clear-cut and satisfactory basis and avoid the danger of a workman being tempted to take a lump sum which would be only a fraction of the true commuted value of his pension.

When we talk about the danger of tempting a workman to take a lump sum which would be only a fraction of the true commuted value of his pension, we should consider the level of pensions at this low rate of disability. Senator FitzGerald is thinking of the man who is just barely below 20 per cent and would, therefore, qualify for one of the higher lump sums and one of the higher rates of pension. But this is a provision which applies to rates of disability ranging from 20 per cent down to nil. In the case of the really low percentage rates of disability, the appropriate amount of pension would be quite ridiculous. If Senator FitzGerald's amendment was accepted, those people would have no option but to accept a ridiculously low rate of pension, rather than a lump sum which would also be low but would, I think, be accepted by most people in preference to a rate of pension which could go as low at 1/2d per week for one per cent disability. It would be hard to convince any man that it would be more in his interests to get a pension of 1/2d per week rather than a lump sum, even though that would, I think, be only something over £21. Therefore, when we are dealing with such small sums, it is desirable to give people, in that position, the option of the lump sum rather than the pension, because the pension will be of such an amount that it would not, in fact, do a great deal to improve the man's weekly standard of living, whereas he might see some advantage in accepting a lump sum.

I accept that the Minister has a point there which I would be more than prepared to meet in the amendment. It would be partly met if one added to amendment No. 7 the words "and the commuted value of the pension would be more than £380." I am not sure whether a similar change would be necessary in amendment No. 6 but I would be quite prepared to meet the Minister on that point. I am only concerned with cases where the pension and the scale of injury and period of disability are such that the commuted value would be more than £380 and where, therefore, the lump sum would represent less than the value of the pension.

I am quite happy that, in any other case, the procedure the Minister has in mind would prevail but I do think we should not, in any legislation, introduce a system where we would give the option of a lump sum to a man, which would be only a fraction of the true commuted value of his pension. As I have said, it would be at least partly met by adding the words "and the commuted value of the pension would be more than £380." I would ask the Minister whether he would be prepared to accept something of that kind which, while meeting his point also, is a valid one. We do not wish to force pensioners to take pensions of 1/2d for a long number of years when the Minister could commute them into a lump sum which would be more reasonable.

I think we are quibbling over a small point and I do not see any reasonable way, at present at any rate, to do what Senator FitzGerald has in mind, without doing something in the process that neither of us would like to do. I think the position is reasonable. The original proposal, which is in accordance with the minority recommendation and which, as has been admitted here, follows the lines of legislation in Britain, was at these low rates of disablement to have a lump sum provision only and in order to meet this point which was raised in the Dáil I agreed to give the option to the workman to accept a pension instead.

I think we have gone as far as it is necessary to go. The maximum amount of lump sum under this section is £380 and the maximum rate of pension. I think, is something around 23/-, so that nobody will suffer any great misfortune if he makes the wrong choice. I do not see any way in which we could provide for all possible circumstances and I think that at this low level of pension it is desirable to give the injured workman the option of accepting a lump sum rather than a pension.

Could I just——

The debate is concluded.

We are on amendments Nos. 6 and 7——

Amendments Nos. 6 and 7 were taken together.

Would the Minister consider, nevertheless, some amendment because while he says nobody could be at a disadvantage, and I am referring to his statement that £380 is the maximum amount of lump sum, obviously the amount could exceed £1,000 if the disablement were for a period of 20 years or more? It seems to me that we should delete this limit which should not be in at all when the disablement could exceed the period of seven years. It could be 20 years or life. If he is not prepared to do that he should accept amendment No. 7 in the way I said and also I think it would be necessary to amend amendment No. 6 by leaving "the period taken into account," and adding in "its commuted value would be less than £380." I think this amendment, notwithstanding the one I have mentioned already, would meet the Minister's objection. I appeal to him to accept this or agree to delete the £380 in an attempt to sort out this matter. Would the Minister say "yes" or "no?"

I can only say "no".

Amendment put and declared lost.
Amendments Nos. 7 and 8 not moved.

I move amendment No. 9:

In page 18, to delete lines 27 to 30 inclusive and substitute the following:

"( ) Where no next-of-kin of the deceased can be traced, the amount payable under this section shall be the vouched expenses of the funeral, with a maximum of fifty pounds."

This is an amendment merely to bring something more definite into the section and give effect to what the Minister said the regulations would implement. I understood the Minister to say on the last date that the death benefit of up to a maximum of £50 would always be paid to the personal representative or the next-of-kin. But, in cases where these were not readily to be found the amount not exceeding £50 which would be paid would be payable in respect of the vouched expenses of the funeral. That is what the amendment says. "Where no next-of-kin of the deceased can be traced, the amount payable under this section shall be the vouched expenses of the funeral, with a maximum of £50." I think that makes it perfectly clear, without recourse to regulations as to what will be done. I think it will make for more clarity in the section if the Minister accepts the amendment.

I do not see the necessity for this amendment. This will be the position under the Bill when it is enacted and I am advised that this is the best way to do it. We are both seeking to do the same thing and I am satisfied that I am, in fact, providing what Senator O'Quigley wants to be provided in the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 20, to delete lines 22 and 23 and substitute:

"(4) Payments under this section shall be made from the 8th day of July, 1965."

When I was dealing with this section on Committee Stage I expressed regret that workmen's compensation which would continue to be payable to those who are at present in receipt of a weekly sum under the Workmen's Compensation Acts of 1934-1955 would not be increased directly with effect from a current date. I have since had a look at the 1953 Workmen's Compensation Act and the 1955 Workmen's Compensation Act. Notwithstanding all the calculations that insurance companies may have made and notwithstanding the fact that in some cases it might prove a burden to employers, the Oireachtas in 1953 and 1955 increased the amount payable to persons in receipt of weekly sums from the coming into operation of the 1953 Act and the 1955 Act. That was all that was to it and the insurance companies, who were in the main affected by this, had to lump it if they did not like it.

It seems to me from calculations I make that there are certain categories of workmen who will not even benefit as much as they should having regard to the increasing cost of living since 1955 by the addition they will get under this Bill. What I am seeking to do under this amendment is to make some compensation to people who for over more than 10 years have got no increase of any kind in the workmen's compensation paid to them since 1955. There are a number of these people who are totally and permanently incapacitated, some of whom may be receiving £3 10s and some of whom may be receiving the maximum of £4 10s under the 1955 Act. Notwithstanding one round of wage increases after another, these unfortunate people have been awaiting legislation to give them an increase such as was provided under the 1953 and the 1955 Acts.

The Bill to give effect to the Minority Report under the Commission was introduced in Dáil Éireann on 8th July, 1965. It is fair and reasonable to say that that Bill should have been through long since if the Minister had been as vigorous in getting time for an important measure of this kind as he should have been, or as he might have been at any rate, from the point of view of the workmen who are awaiting increases. In all classes of salary adjustment and increases there is always an element of retrospection. If we were to go back to the date on which this Bill was introduced and say that these additions would become payable on that date, that would be offending no principle but would be giving effect to what is one of the commonest things in any kind of wage or salary increase, that is, an element of retrospection. Therefore, that is the minimum which the Oireachtas should provide for people who got no increase whatsoever in their compensation since 1955. I urge upon the House that these additions which will be payable under section 24 should be made payable back to 8th July, 1965.

I think what I am doing in the case of existing recipients of workmen's compensation is reasonable. It is all right to say that when the Workmen's Compensation Acts were amended on previous occasions, insurance companies just had to provide the increased amounts. They were, of course, continuing to operate that scheme, and no doubt they were able to recoup themselves for the extra expenditure involved, in the premiums charged. As I said, what I am doing in respect of people who are in receipt of workmen's compensation is reasonable, I think. The maximum weekly payment of workmen's compensation was fixed at £4 10s from 1st September, 1955. At that time the consumer price index at mid-August was 128 and at mid-May of this year it was 185. On that basis the appropriate increase on 90/- would be 40/-, but, in fact, we are providing for a single man an increase of 52/6d and for a married man an increase of 90/-.

The contributions to the Fund from which these benefits will be paid will commence only as from the appointed date which I have not been able to fix yet because I have not got the Bill yet. Accordingly, there will be no fund to meet any payments before the appointed date. I cannot undertake the retrospective payments which seem to be involved in this amendment. I think I am doing what I can reasonably be expected to do for existing recipients of workmen's compensation.

Earlier in this debate I had to say the Minister spoke like a lawyer when he wanted to get out of certain things. Now he talks like an employer. I never knew of any employer who was disposed to refuse legitimate demands made upon him by his employees, who did not advance the excuse: "I have no money." Of course, we know there is no money in the Fund but surely there is no suggestion that the calculation is so tightly made that the Fund could not withstand the few extra shillings which would be required in one payment out of it when it begins to accumulate.

The truth of the matter is that workmen have been very badly treated by Ministers for Social Welfare from about 1958-59 on, as the cost of living began to rise very steeply. They have been very badly treated as compared with employees in trade unions who have been able to enforce their demands by strike and other action. It would be very small compensation to these people to pay them some kind of lump sum. Under previous legislation if a workman at a particular time was on £3 10s which was related to his pre-accident average weekly earnings, and those pre-accident weekly earnings were related to the rate that was then current in the employment, he was always entitled to go to court in later years and say: "Since I was awarded workmen's compensation in 19-blank the rate of earnings have increased, and if I were working today and met with an accident the amount of compensation I would get would be so much." He would thereby get an increase in his compensation. That is the kind of thing that should be taken care of

It seems to me that it would be very small recompense to the unfortunate worker who at best is on the maximum of £4 10s if he were to get an element of retrospection in respect of his benefit but the Minister, like every employer who has a legitimate demand made upon him, says he has no money. I am quite sure the workers would be prepared to wait until next Christmas, until such time as the money would be in the Fund, and they would be prepared to take whatever lump sum would be payable out of the Fund next Christmas. The Minister could certainly do that if he wanted to.

Amendment put and declared lost.

I move amendment No. 11:

In page 21, in lines 9, 13, 21 and 36, to insert "casual" before "overtime."

This also arises out of the Committee Stage debate when the question of overtime came up and it was clear to me, after hearing what was said in that debate, that only casual overtime should be disregarded and that where overtime is an integral part of the payment it should not be disregarded. Senator Murphy gave the excellent example of a bus driver on a regular schedule year in and year out involving overtime as an integral part of his remuneration. That type of overtime which is a normal part of his remuneration should be provided for. It is quite wrong that a man who perhaps spent decades of his working life as a bus driver in receipt of this remuneration—and who took the job knowing that overtime would be part of his remuneration—should be put in a position where his compensation will be reduced because part of his remuneration is technically overtime.

Therefore, I propose that the word "overtime" where it is used in the section should be preceded by the word "casual". The Minister's Deciding Officer can interpret what is and what is not "casual". That is something which they would be able to do. This would give them discretion. The Minister tried to make out—quite unsuccessfully I think—that they have such a discretion because he said they could decide whether something was overtime. He emphasised the words "for a full normal working week" and said it would be a matter for the Deciding Officers. It is now evident that in his own Bill the Minister will preclude Deciding Officers from including in what a man would earn for a full normal working week anything that is described as overtime. What I want to do is leave to the Deciding Officers the discretion which the Minister claims they have, but which self-evidently they have not got, to decide whether overtime is an integral part of a man's work because it is done regularly, or whether on the contrary it is simply casual overtime. I ask the Minister to agree to the insertion of the word "casual".

There is a vote in the other House.

Perhaps the Minister would reply to this amendment and we can have our vote while he is having his. Perhaps the Minister is accepting the amendment?

I am not accepting the use of the word "casual" in connection with this matter. It is clear that the Deciding Officer will have to decide each case on its merits and the interpretation of the word "casual" would give rise to excessive difficulty. If it was introduced it would be bound to create anomalies. For instance, a man who happened to be working overtime at the time of his accident would qualify for the overtime to be included in his pay, whereas another man who had been working a considerable amount of overtime up to a short period before his accident would be excluded. I would not be prepared to accept this at all.

I am merely saying in the Minister's absence what I would have said in his presence. The Minister simply has not answered the point at all. He has disregarded the basic fact that this instructs the Deciding Officer to disregard all overtime. The Minister said that the Deciding Officer will have to decide each case on its merits. I do not think it should be left to the Deciding Officer to do this. In the Social Welfare Act, 1952, the Deciding Officer has to decide whether employment is of a casual nature. If he decides that, he should be able to decide whether overtime is casual or not. The Minister has made no case whatever and, therefore, I have no hesitation in pressing the amendment.

Amendment put.
The Seanad divided: Tá, 15; Níl, 23.

  • Carton, Victor.
  • Conlan, John F.
  • Crowley, Patrick.
  • Davidson, Mary F.
  • FitzGerald, Garret M.D.
  • Jessop, W.J.E.
  • McDonald, Charles.
  • McHugh, Vincent.
  • McQuillan, Jack.
  • Malone, Patrick.
  • Mannion, John.
  • O'Quigley, John B.
  • O'Reilly, Patrick (Cavan).
  • Prendergast, Micheál A.
  • Rooney, Eamon.

Níl

  • Boland, Gerald.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Eachthéirn, Cáit Uí.
  • Egan, Kieran P.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Honan, Dermot P.
  • McGlinchey, Bernard.
  • McGowan, Patrick.
  • Martin, James J.
  • Nash, John Joseph.
  • Ó Conalláin, Dónall.
  • O'Kennedy, Michael.
  • O'Reilly, Patrick (Longford).
  • O'Sullivan, Ted.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Ryan, William.
  • Teehan, Patrick J.
  • Yeats, Michael.
Tellers: Tá, Senators Conlan and McDonald; Níl: Senators Browne and Farrell.
Amendment declared lost.

I move amendment No. 12:

In page 23, to delete all words from and including "disqualification" in line 44 to the end of the subsection and substitute: "Temporary disqualification for receipt of occupational injuries benefit or any amount under section 26 of this Act, provided that when notice is given of the accident the disqualification shall be lifted and all payments due since the accident shall then be made".

This matter was discussed on Committee Stage when we made the case in regard to disqualification that the Minister and his Deciding Officers should not have the right to disqualify a man permanently or, indeed, for any prolonged period simply because he failed to give the prescribed notice to his employer referred to in subsection (1). The penalty of disqualification from receiving benefit until such notice is given is a perfectly ample penalty and will encourage any sensible worker to give the required notice. I can foresee no circumstances where it should be necessary to go beyond that and penalise him beyond the point at which he gives the required notice, to penalise him thereafter or indefinitely simply because he has failed to fulfil this condition.

We discussed this on Committee Stage and at no time was a case made by the Minister for a penalty of this order. It seems quite wrong that the Minister or his Deciding Officers should have the power to penalise a workman even after he has given the required notice. I press the Minister to see the merit of the amendment. It would allow sufficient power to penalise the person until he has given the notice. This is not a matter for a penalty. It is a matter for some pressure on the man to ensure that he does give notice to his employer. There is no pressure greater than providing that a person will be deprived of benefit until he gives the notice. There is also the incentive that when he gives the notice he will get back money. If he fails to give notice he is deprived of benefit and he does not know whether he will get benefit until he has given notice.

It is wrong of the Minister to attempt here as in other cases to take powers to penalise workmen when there is no requirement to do so, when it is not necessary for the efficient and satisfactory administration of the Act. Accordingly, I ask the Minister to agree to the amendment which will give him the necessary power to enable him to ensure that people who do not give notice will not get their money. We wish to ensure that no bureaucratic penalties will be imposed for errors of judgment or forgetfulness on the part of workmen.

I want to get in before the Minister, otherwise I would not have an opportunity of saying anything on this amendment. These questions of notice and the time limit within which proceedings could begin were two of the things under the Workmen's Compensation Acts which were most unsatisfactory and which gave rise perhaps to more appeals to the Supreme Court than any other aspect of the legislation. That was for the reason that there were so many difficulties and different circumstances in which workmen could be deprived of their rights because of this time limit of six months before the commencement of proceedings and the requirement under section 28 to give notice within a reasonable time. Whatever was to be said for having under the Workmen's Compensation Act, 1934, a stipulation as to the giving of notice of the occurrence of an accident, there is no case to be made for it under this legislation.

The purpose of giving notice under the 1934 Act was to enable an employer to inquire into the circumstances of the accident, to get the various witnesses, to enable him to gather all the evidence which would help him to make up his mind whether or not an accident had occurred to the employee and whether it had occurred during the workman's employment. Even at that is was laid down clearly in the Act that the notice should be given as soon as practicable. Everybody is presumed to know the law. That is a kind of working rule that has been evolved over the years by the common law lawyers, and at times it is not a very satisfactory rule and works great hardship and injustice. At least if a worker or his trade union wanted to find out what the position was in respect to the giving of notice under the 1934 Act he could look up the Act and there he could see in section 28 that he was to give notice in writing of the accident "as soon as practicable after the happening thereof or before the workman has voluntarily left the employment in which he was injured". That was in black and white in the Statute.

But when we come to this new gem of modern legislation, what do we find? We find that "Regulations may provide for requiring the prescribed notice of any accident in respect of which occupational injuries benefit or any amount under section 26 of this Act may be payable to be given within the prescribed time by the insured person, or, where within that time his death results from the accident, by such other person as may be prescribed, to the insured person's employer or other prescribed person".

Might I have recourse to my own experience as a lawyer and say this, that it is utterly impossible at any time to ascertain what the law is made under regulations by the various Departments of State? It is impossible to any man even in the Law Library with all the resources available to lawyers and with all their knowledge. You cannot at any time be certain as to what the law is under the existing statutory regulations. The reason is that today you find the Minister for Health or the Minister for Industry and Commerce makes a regulation and it is only six days in operation perhaps when there is another amending regulation out. There is no place where you can find all these statutory regulations at any time. When it comes to looking up the index of statutory regulations you find that the index is compiled every so often, sometimes at intervals of 10 or 12 years, sometimes at shorter intervals. It is not possible even for practising lawyers to be certain at any time as to what the law is which has been made under statutory instruments. In my own experience I have had to have inquiries instituted with the appropriate Department to know whether, in fact, any further regulation under a particular section has been made, or whether a particular regulation has been amended, to be certain before advising a client as to what the state of the law as far as it has been affected by the statutory instruments.

This is a fundamental objection to this Bill, that so much of it will be implemented by regulations. The Minister will say, of course, that his officers in his Department will know the regulations. Of course, they will, because they made them and the Minister put his name to them, but ordinary members of the public outside the Department will not know what the position is, and there may well be different kinds or different forms of accidents and regulations made prescribing the people who are to give notice where death results. In these circumstances it seems to me that it would be most unjust to disqualify any workman from receiving compensation in respect of any period because he has not given notice, not in accordance with the Act but in accordance with regulations which he will never have an opportunity of knowing, copies of which he will find it difficult to find even in a solicitor's office in his local town. I think, therefore, that if it does happen, as we can be certain it will happen, that workers for the reasons I have indicated have not given notice or their dependants have not given notice, within the prescribed time, they should be entitled, after ascertaining what the position is and finding out that they should have given notice within a particular time, to the benefit of the Acts, which, of course, they are entitled to by law in any event, and they should not be deprived of them because of ignorance, I, therefore, hope that this at least is one amendment that the Minister will accept from the Opposition.

I think I made it as clear as it is possible to make it on the Committee Stage that there is no intention except in very exceptional circumstances of depriving any workman of any arrears of benefit due to his failure to give notice, but it is necessary to have this notice given even if it is at a late stage. Normally nothing more would be done than what Senator FitzGerald suggested would be necessary, that is, that payments of benefit would be withheld until notice is given, and it is only in very exceptional circumstances, such as when a workman unreasonably just refuses to give notice, that this power would be used. I think that it is obviously necessary to have the power even though it may only very occasionally be necessary to use it. There is certainly no intention of permanently depriving any workman of any benefit for which he would otherwise qualify merely because of the fact that he did not give notice in time, but still the intention is to have this power in order to ensure that notice will be given when that is required.

The Minister in dealing with matters of this kind always starts off with a most unexceptionable statement that there is no intention—I wrote it down—of depriving a workman of his benefit for not giving notice. Then the next sentence, of course, is persuasive—"normally nothing more would be done"—but the third sentence goes on to explain why it is necessary to have a penal power including penalties on workmen. This just does not arise. There is no requirement for this. The Minister has made no case for it. If a workman does not give notice he does not get benefit. That is quite sufficient penalty.

Under the Social Welfare code a man can be told to stay in his house and not go out without leaving information as to where he is going. That is because he is being brought within this code. There is no reason, in a case like this, where no issue arises to introduce the power to impose a severe penalty on a man simply because he did not give notice of his injury. He should get the whole amount of the benefit when he gives notice and nothing until he gives notice, and not seek power in these remote and probable cases which civil servants always want power for—that they must have power to penalise everybody, anywhere, at any time if they do not like how they behave. This is no way to legislate. I must say that if I were ever in the position the Minister is in, I would have a review of the whole code to take out of it all the bureaucratic powers which have been put into it to cover all remote contingencies and to keep people under proper control of the bureaucracy.

Here we have a case where these powers are being introduced. We are opposed to it. Where these unnecessary powers are taken to penalise people, here as elsewhere, we should be opposed to it. Here, as elsewhere, we on this side of the House, if the opportunity arises, would change it from this impersonal bureaucratic system into a human system where this constant emphasis on penalties and pressures of various kinds on people will be replaced by a system under which there will be the minimum amount of pressure and not all the possible powers to deal with every possible contingency not required for the efficient administration of the Acts and to prevent large scale evasion or fraud.

The whole approach of the Minister, throughout this, is a bureaucratic approach and is not the approach appropriate to a political Minister whose job it is to stand his ground. He should insist that civil servants justify their claims to have all these powers, instead of which it seems to me, in this Bill, in any power looked for, he is not fulfilling the function of a political Minister, which is to stand between the civil servants with their natural desire to protect the public purse—which they let get out of hand —and the ordinary people of the country who can be caught up in this machine which is still so much of the old Poor Law machine. I do not think the Minister is doing his job in that respect. He is not justified in seeking all those powers. Whatever the difficulties the old system had, this is an impersonal bureaucratic system and the Minister tells us he is justifying this because the existing Social Welfare code has this and therefore, we must have it here. It is in the existing Poor Law code but the Minister is strengthening it by introducing this new power to require a man to undergo a surgical operation which even the existing Social Welfare code does not admit.

We have a duty in this House to stop this type of approach and attitude and merely seek the powers necessary for the efficient administration of the Acts. But when we see something which is not necessary being introduced, it is our job to check the Executive in this matter and we should stand firm on a point of this kind.

Amendment put and declared lost.

Amendments Nos. 13, 14 and 17, in the opinion of the Chair, should be taken together.

Amendments Nos. 13 and 14? Amendment No 17 is on another section. I think we will take amendments Nos. 13 and 14.

I do not see why any of them should be taken together.

There is something to be said for taking amendments Nos. 13 and 17 together but not for No. 14: amendment No. 14 is quite a different thing.

Acting Chairman

Amendments Nos. 13 and 17.

Amendment No. 13 amends section 31 and amendment No. 17 amends section 33 which is intimately bound up.

Acting Chairman

All right. We shall take amendments Nos. 13 and 17 together and we shall take amendment No. 14 separately.

I move amendment No. 13:

In page 25, to delete lines 18 to 20 inclusive.

What we intend in this amendment is to delete from section 31 the obligation, under penalty of being disqualified from receiving any benefit under this Act, to submit to medical treatment—to exclude the requirement that a man should submit himself to a surgical operation. This is, indeed, the most obnoxious section in the whole Bill. It is I think the first time in the history of this State that the Legislature is seeking power to make a man submit himself to a surgical operation under a penalty. It may well be that the Minister, with all the vast resources at his disposal, is able to find some precedent but, if he does, all I am saying is that here and now, in this somewhat more enlightened age, we ought not to agree that the Legislature should enact any piece of legislation which requires a man, against his will, to undergo a surgical operation. The Minister made the case upon the last occasion—and not very correctly—that this kind of provision was to be found in the Social Welfare Act of 1952. What was to be found in the Social Welfare Act of 1952 is provided for in paragraphs (a) and (c) of subsection (1) of section 31 of this Bill. That is to say—the Minister takes power to require a man to submit himself to a medical or other examination for the purpose of determining the extent of his disablement. If a man says: "I am disabled and I cannot lift my arm," the Minister is entitled to say: "Very well, I will get my medical doctor to see whether or not you can lift your arm" That is reasonable enough.

Then, in paragraph (c) it is provided that the Minister may make regulations requiring a man:

to attend at such places and times as may be required for the purposes of the said medical examination or treatment.

It is going far enough to say you will require a man to submit himself to medical treatment, even if he may be the kind of person who does not believe conscientiously in medical treatment and there are people around this country who do not believe in taking antibiotics and the various pills and so on prescribed for them from time to time. As medical research goes on, we find that people, who may have objected to taking, say, phenacetin some years ago and might have said: "Oh, doctor, that does not agree with my kidneys", were proved right because it does cause renal failure. I do not know if that is the correct medical term but here we are going further than that. We are saying that a man must hand himself over, body and soul, to a surgeon. The anaesthetist can knock him out and thereafter the Minister for Social Welfare, the Deciding Officer or Appeals Officer has so ordained that man can be ripped open by the mere "say-so" of the Appeals Officer in the Department of Social Welfare.

Now let the people on the Government side of the House, who are constantly talking about the great service performed for this country by President de Valera when he introduced the Constitution in 1937, know that the Constitution itself has something to say about safeguarding personal liberties and the freedom of the people and if it does not the Constitution means nothing. Mind you, I have the greatest doubts as to whether the content in paragraph (b) is constitutional. I doubt if there is anybody, a legislator, a judge, an Appeals Officer or a Deciding Officer, who has a right to say to any man: "You must submit yourself to surgical treatment and if you do not we shall impose a penalty on you and the penalty we shall impose is to starve you and your wife and children up to a period of six weeks and see how you like it. If you do not submit by that time and you have survived you are well worth having and we will pay you compensation." All the Minister wants is to starve a man for six weeks. The Minister will say that will not be done; that he will not subscribe to enacting legislation which enables a clerical officer or a staff officer in the Department of Social Welfare to say to any citizen in this country: "If you do not submit yourself to a surgical operation, even if it is only the removal of an ingrown toe nail, I will stop your pension". If this is not a police State and if this is not the kind of thing we would object to if we heard it went on in Rumania and Soviet Russia, I do not know what goes on in the police State we object to. That is the kind of thing we expect to find in the police State. That is part of the disrespect for the liberty of human beings. The Minister will say this is all subject to the proviso that a man merely refused without good cause.

I pose this question as I have done before. A man may be told by his doctor: "There is no reason why you should not have a surgical operation. Your blood pressure is all right, your heart is sound, your chest is all right and these are the only things that give rise to any cause for apprehension." The man may ask the doctor "Tell me is it necessary for me to undergo a surgical operation?" The doctor may say: "No, you can live with it". The man may say: "All right: I will live with it." That man may be unreasonable. It may be that a surgical operation extending over half an hour to three-quarters of an hour would make a dramatic change in his physical condition. I believe it is the right of free people in a democracy to say that they will not submit themselves to a surgical operation if they do not want to. That to me is freedom, as it is not freedom that we should say that people will be put in jail if they do not undergo a medical operation.

I believe this House should reject this particular section. If the Minister comes in in five or ten years time and lays before the Houses of the Oireachtas a list of the people who would not undergo these medical operations and shows us then the kind of depredations this has caused to his Occupational Injuries Fund, at that stage and with that experience we shall consider what kind of powers we will give him. We shall never go the distance of giving him, or his successor in title, the right to say to any man that he must undergo a surgical operation.

We had down an amendment to provide that people should not undergo treatment which was contrary to their religious susceptibilities. That has been ruled out of order. It was only when I was considering this at greater length that it occurred to me that part of the treatment people might have to undergo would be hypnosis. Some people might say that hypnosis would be the real cure for one's neurasthenic condition. People will say: "That may be so but I will not have myself hypnotised even if you tell me it will cure me." I think it is a defect in this particular legislation that we have not—I say "mea culpa”—provided against that kind of medical treatment. If somebody does not wish to undergo hypnotic treatment, I do not see why we should oblige them to surrender themselves body and soul into the hands of a hypnotist or to a person who practises that kind of thing. For that reason I regret that on the question of medical treatment we have not provided against that, but the resources of Parliament are not exhausted and there are such things as amending bills.

I find it difficult to understand what the real basis for all this sound and fury is. Reading this section of this Bill, it seems to me that essentially it is merely re-enacting the position that exists at the moment. Indeed, it is not going so far as the present law does. As I understand the present situation which has existed for many years, without any objection from Senator O'Quigley that I know of, an injured workman is expected to undergo the necessary medical treatment to remedy his injuries and the present position is that if he refuses to do so it is a matter for the court to decide whether his refusal is reasonable or not. The Minister has modified this to the advantage of the workman. At present if the court decides he is not reasonable, his compensation is altogether terminated; the Minister is only asking the power to be used in exceptional cases. The only power he is asking is to withdraw the compensation for six weeks, which is considerably less drastic than the legislation at the moment.

Senator O'Quigley is trying to maintain that under this Bill a workman can be forced to undergo a surgical operation and suggests that is not the position at the moment. It is the position at the moment. There is no doubt at all that if a workman is required to have a finger set and refuses to have it done and ends his chance of recovery, then the court can take his compensation away from him. As Senator O'Quigley put it, he can be starved into agreeing. That is the present position. There is nothing new in this at all. I think Senator O'Quigley is fascinated by the notion of the workman lying on his back about to undergo a serious internal operation and being forced by some official of the Minister's Department into doing this. This is not the position at all; this relates to simple things such as setting fingers and so forth.

Why not state it clearly?

It is stated that if a person feels without good cause——

Where does it say any minor operation?

It says "good cause". This matter was considered by the Majority in relation to the Commission on Workmen's Compensation. It was agreed, among others by Senator FitzGerald who is, of course, one of the signatories of that Majority Report. I refer to paragraph 411 of the Majority Report.

We shall have to read that.

Arising out of——

——treatment.

The Report agreed to by the Commission, including Senator Garret FitzGerald, says:

Under the existing system where the question of a workman submitting to medical treatment arises...

It goes on to say:

The workman would not, in any circumstances, be expected to undergo treatment which might endanger his life...

Would the Senator read on?

The Senator sounds like a Minister.

...where any doubt exists as to the reasonableness of his refusal to undergo treatment he invariably gets the benefit of the doubt.

Next sentence, please?

...We thought, therefore, that the workmen's interests in this regard were well protected as things stand.

As things stand, be protected by the court.

I am entitled to speak too. Senator O'Quigley has been attempting to perpetrate the notion that for the first time this Bill brings surgery into it, that formerly it was a matter of medical treatment—giving pills and so on — and that now surgery is being brought in. It was quite clear to the majority of the commission at paragraph 411 that surgery was involved when they said "treatment which might endanger his life". Senator O'Quigley attempted to say that in the past medical treatment did not include surgery, but it is perfectly clear from the practice of the courts in regard to workmen's compensation over the years, and from paragraph 411 of the Majority Report, that medical treatment did, in fact, include surgery. There is nothing new about that at all.

Senator FitzGerald said, in effect, that workmen were protected by the judges, whereas under this Bill they would be at the mercy of officers of the Minister's Department who might behave in an utterly unreasonable way. I do not believe that. It is perfectly obvious that no one will be forced to undergo surgery which might endanger his life. That is covered by the words "if the person fails without good cause". Even if some utterly unreasonable and dictatorial officers of the Minister's Department did endeavour to force a workman to undergo that kind of surgery, it is quite clear that he could appeal to the courts. He could take an action maintaining that the Act was not being observed. I should imagine that it would be quite impracticable to try to insist on a man undergoing a surgical operation which might endanger his life if he maintained he had good cause.

In any event, what is happening here is that the law as it stands is being re-enacted with the difference that whereas at the moment if a workman refuses to undergo a surgical operation he can be deprived of his compensation permanently, and in the Bill he can be deprived of it for six weeks. Otherwise, it is exactly the same.

I feel that Senator O'Quigley's approach to this problem is the more correct one. I do not think two wrongs will make a right. I have always felt that anything which interferes with a person's decision concerning his own health is wrong. When we had regulations affecting the treatment of TB patients whereby they were compelled to undergo treatment unless they were to lose their compensation or their benefit, the only justification that existed in that case was that we were dealing with an infectious disease and those people could be a danger to the community. In such circumstances I felt the State had a right to insist either on treatment of the condition or segregation of such persons. I also feel that where a person is insane or deemed to be incapable of making a decision for himself the State might have the right to dictate therapy. Where a minor is concerned I also feel the State could overrule the rights of parents and insist upon the minor having treatment.

Apart from those three conditions, I do not feel the State has the right to insist on persons undergoing any form of therapy against their will. By tradition we assume that medical treatment and physiotherapy if they do not do good will at least do no harm, but with modern drugs and modern treatment that may not be so in the future. In all cases of surgery I feel there is always an element of risk. We have seen cases in the past in which even the pulling of a tooth has resulted in the loss of life of the patient. Therefore, no one should have to submit to surgery against his will.

We see many private patients with ample means who may be in severe pain for something like a disc lesion and they are so terrified and mentally disturbed at the idea of any treatment involving needles or knives that they go home with the pain rather than have a simple injection which would relieve it. If people in such circumstances are entitled to refuse treatment, I do not see why workmen who might be equally terrified and frightened should not also be entitled to refuse it. It is not a matter of how serious the operation is. It is a matter of the person's approach to it. That is the key point. A person can be just as terrified of being put to sleep to have a finger set, as of being put to sleep to have a spinal operation which might relieve a paralysis or leave him totally paralysed for the rest of his life.

Over and above that, I feel that if the State is going to order a person to have treatment, then the State must guarantee that the treatment will leave him better off than when he started. If the State is going to persist in this approach, the State must be liable to an action if such treatment fails, or if it leaves a person worse off than he was before. The State must be prepared to stand over that risk to a person's life and health. Consequently, while there are many parts of the Bill which I do not really like but which I am prepared to go along with, this is one part of the Bill with which I cannot agree.

I am in agreement with Senator Alton in many respects but I think we have left one factor out of consideration which should be given a bit more weight. You cannot have medical treatment or surgical treatment without the doctor's co-operation. We have to consider the integrity of the medical profession in this regard. I do not think any surgeon will operate on a patient just because the person who decides the patient's claim for compensation or benefit suggests that it will be adjusted unless something is done.

An injured person can submit only to the medical treatment which a doctor is proposing to give him. The officials who administer this subsection will not suggest the treatment. They will not prescribe it. It will be on the advice of the doctor. I personally would rely on the ethical standards of my colleagues in this regard. If a patient were unreasonably to refuse the help which he could get from his doctor, whether medical or surgical, I do not think it is unreasonable for some pressure to be brought to bear on him when there is a question of prolonged payment of compensation. In such cases the usual procedure of consultation between doctors would decide exactly what should be done, and would probably get over the difficulties which I can quite see and which Senator O'Quigley has mentioned in his very persuasive argument in favour of the amendment.

I should like to reply to Senator Jessop with regard to something he said with which I am not in agreement. I think there is some confusion here in regard to what doctor we are talking about. As I understand the administrative procedure, the Deciding Officer—I am open to correction on this—will be advised by a doctor who will say: "This man's condition is curable if a certain operation is undertaken." The Deciding Officer, on the advice of his doctor, will then say to the man: "Unless that operation is undertaken you will not get your compensation for the prescribed period." The man may then go to his own doctor and say to him: "I have been told that I must undergo an operation. Is there any risk?" His doctor may say that there is a risk. The man may then decide that he will not go ahead with the operation but that he will be penalised.

There is good cause.

There is nothing in this which advises that the matter is a good cause. If the Minister will write that in it will go a long way towards meeting us. Good cause is whatever the Deciding Officer decides is good cause. There is no appeal to the courts in this respect. I think there is some confusion by Senator Jessop. It would be perfectly correct in medical ethics if the Deciding Officer said that the operation would involve no risk but the man's own doctor may say there is a risk. There will be a conflict of advice. Not only that but two different questions are being asked of two different doctors. There are, therefore, two different points of view in regard to this. The doctor in the first instance may advise the Deciding Officer that the man's condition is curable if he undergoes the operation. The man's own doctor is asked if there is a risk involved and he may say there is. The man's own doctor may say that the operation would be a good thing but that it would involve risk. The man asks his own doctor if there is risk involved because it is his own health which is at stake. The Deciding Officer does not have to take that into consideration when he gets advice from his doctor.

I do not think this matter can be met on the basis of Senator Jessop's argument. It is more complicated than that. There are two different questions involved here but even if the question were exactly the same, with respect to both our doctor Senators here, and it was put to two different doctors you would not necessarily get identical replies from them. I think the views expressed by Senator Alton and Senator O'Quigley are correct. I am sure their interpretation of the matter is correct.

This principle does not exist in the existing code and there is no use telling us that it exists. If it exists there is no reason to insert the word "surgical". The Minister is changing the code by inserting the word "surgical" to apply to workmen's compensation cases when no such word applies in the case of the social welfare disability cases. If, in fact, medical treatment now includes surgical treatment the insertion the Minister is proposing is superfluous. If it does not include it, then its insertion is confusing. The Minister is stuck on either horn of the dilemma and he has not succeeded in anything he has said up to this in getting off it.

The Minister is introducing a new principle because he is asking a man to undertake something which would be risky. I suspect this matter is unconstitutional. It has been an odd characteristic of this Government in the years they have been in office since 1957 that when they refer to matters, they say they are not unconstitutional. I consider that the Constitution is in many ways an excellent document, whatever was said about it at the time. It is puzzling that this Government have ignored something which could be unconstitutional, particularly when they introduced the document and defended it very ably in the Dáil. If the Minister gets up and says that this is not unconstitutional, as so many Ministers have said about many other things, I would not accept that. The Minister should bear in mind that the Constitution is the Government's own document. It gives certain rights to people. It gives them the right to life and liberty and the right of protection against undue interference from the State.

I regard the proposal of the Minister to insert the word "surgical" in this Bill as unconstitutional. I would ask the Minister to amend this. I am sure this principle has been put in possibly by civil servants and the Minister might not have realised its implication and that this was a new principle. Now that the position has been made clear to him, the Minister should agree to our amendment. He should not insert something which is unconstitutional and objectionable in this legislation.

I think, as Senator FitzGerald has said, that there is some ambiguity here. I should like the Minister to define, if he can, what he means by appropriate medical treatment as decided by whom?

No new principle is introduced in this section. Medical treatment which has been prescribed under the Workmen's Compensation Act certainly would include, if necessary, surgery. Consequently, it is quite wrong to attempt to suggest that this is something completely new. Medical treatment was wide enough to include any kind of medical treatment, including surgery and it was provided in the old Act.

What section?

In my view nothing new has been inserted in the Bill.

I should like to support the viewpoint put forward by Senator Alton. His contribution was the best we have heard on this matter. This matter affects the integrity of the individual. In that regard we all remember when the question arose, for instance, on tests for alcohol where there was a question of drunken driving involved. A great deal of thought was given to the interference with the individual as to whether he should submit to a blood test or another type of test where the question of dangerous driving was involved. Before action was taken—I understand it is not in operation yet—the Government had to give serious consideration to what was described as an infringement of the rights of the individual. These rights no longer obtain in a number of European countries but I know of no country whose Government have gone so far as to suggest that the integrity of the individual can be interfered with to such an extent that under any compensation code he must submit himself to a surgical operation which could involve, perhaps, results opposite to those intended by the surgeon, which could endanger the individual's life.

I do not accept that such a provision has been in operation in our legislation, in spite of Senator E. Ryan's intervention. Without in any way casting a reflection on our medical profession, doctors differ. George Bernard Shaw in Doctor's Dilemma illustrates this obsession of the medical profession. Some favour a surgical operation as the be all and end all of treatment. Others shy away from the idea of operations. There are different approaches to treatment. It could be that a particular doctor was very keen on the use of the knife. He might make a decision which the Department official would like. On that basis we must take into consideration immediately the type of individual Senator Alton referred to—the man or woman who was fearful of either the knife or the needle. Such persons exist in the middle and upper income groups.

Here we had a statement from a very responsible and well-known medical man that many people refuse treatment or hesitate to have treatment involving a surgical operation. Because such people have that right, which nobody wishes to take away from them, why is it that the State, because there is a certain amount of money involved, insists that the workman must submit to an operation which his nature and his instinct revolt against? On that basis, the Minister should reconsider this matter and, whatever about the deletion of the two lines suggested, should remove the word "surgical".

This section provides power to make regulations in certain circumstances. I made it clear that it has not been decided it will be necessary to make these regulations. We have not found it necessary to make them in the case of disability benefit. I made it clear that if these regulations are made they will be reasonable regulations operated in a reasonable way, that there will be no attempt to exert undue pressure on anybody to undergo a major operation. Under similar provisions in the British scheme, regulations have been made and these include, and I quote:

No person shall forfeit any benefit for refusing to undergo a surgical operation not being one of a minor character.

I can assure the House that if regulations are made here they will contain a similar provision which, in effect, restricts surgical treatment for the purpose of this section to minor surgery. If this provision is not included in any regulations that may be made, then these regulations may be annulled. In so far as the question of the existing workmen's compensation code is concerned, I have here a volume entitled Employers' Liability and Workmen's Compensation in Ireland, by Bernard Shillman. At page 119, where the author is dealing with the question of whether a workman who has met with an accident has by refusal to undergo an operation forfeited his right to receive further compensation, it is stated:

As between himself and his employer an injured workman must at all times act reasonably. It is his duty to aid recovery by all reasonable means. If by his neglect or misconduct he aggravates his injury and incapacity for work, or if its continuance results from such subsequent unreasonable conduct, it cannot be regarded in law as a consequence of the accident: it is due to his unreasonableness.

It is this test of reasonableness which determines whether an injured workman who insists upon the payment of compensation should submit to a surgical operation. If in all the circumstances of the case his refusal to undergo such operation is unreasonable he disentitles himself to further compensation, for his incapacity ceases any longer to be the result of the accident.

That, I take it, is the law at present. Here, as I have said, if these regulations are made at all they will include a provision limiting this to a surgical operation of a minor character so that, in effect, the position in this regard will favour the workman who prefers not to take what other people would consider reasonable steps to improve his condition.

Would the Minister put that limitation in the Bill if he is prepared to put it in the regulations?

If the regulations are made, that limitation will be in them.

Why not put it in the Bill?

There is no need to because the regulations may not be made at all—it might not be necessary to make them. If they are made, this will be in them.

What should be remembered is that payment of benefit is due only when disablement arises from an accident. If without good cause a workman refuses to take reasonable steps to overcome his disability, then the disability no longer arises from the accident but from his own desire to retain the disability. Another point on the proposal to delete the word "surgical" from section 33 is that this definition of "medical treatment" relates not only to section 31 but also to section 14 which provides for an increase of disablement benefit during approved hospital treatment. This treatment is defined in section 33 as being medical treatment received as an in-patient in a hospital.

Where is "medical treatment" in section 14?

Section 14 provides for an increase of disablement benefit during approved hospital treatment.

Exactly. There is no mention of "medical treatment" so the mention of it later is irrelevant to section 14.

Subsection (2) of section 33 states "references in this Act to a person receiving approved hospital treatment shall be construed, in relation to any occupational injuries benefit payable to him, as referring to his receiving, as an in-patient in a hospital or similar institution, with the approval of the Minister medical treatment for the relevant injury or loss of faculty". Medical treatment is defined in subsection (1) of section 33. I think that most people here realise that the case that has been put up by Opposition Senators is a ridiculous one. Everybody here knows that there is no intention whatever to compel any person to undergo any major surgical operation if he does not feel inclined to do so.

Then we should not give power to the Minister.

The Minister does not have this power and it is not intended to take it.

Here we are dealing with a piece of legislation and the Minister should only seek and be granted such powers as are necessary to implement the legislation. The Minister and, indeed, other speakers have referred to the fact that this power to compel a man to undergo a surgical operation is contained in the 1934 workmen's compensation code, but to say that is utterly dishonest, and dishonest to the knowledge of the Minister, because when the Minister was reading from Mr. Bernard Shillman's book, a copy of which happily and fortunately I have here, he did not read —I certainly did not hear him read— paragraph 1. He is content to base his case on Steele v. Robert George and Co. Ltd. (1941), Northern Ireland, but he has omitted paragraph 1 which says "There is nothing in the Workmen's Compensation code which imposes on a workman an absolute obligation to submit to a surgical operation or even to undergo any special form of treatment."

Absolute. There is nothing absolute in this.

Did the Minister read it out?

No, I did not. I did not have necessity to read it. I could not read the whole book.

The Minister has misread this and is misleading the House in relation to this in the same way as he misread from the Minority Report of the Commission. The other day he said that I was talking like a lawyer. Today I would qualify that and say that he is talking like a bad lawyer. A bad lawyer always refuses to face up to difficulties, a good lawyer faces into them and says: "I will distinguish this thing from that."

When the Senator talks about the Minister being guilty of misleading it might come better from him if he were not misleading the House himself.

If the Senator can produce a single instance in which I have misled the House on anything, then I will be ready to apologise.

I will at a later stage.

And then I shall deal with it and I shall apologise because it will be done unwittingly. The Minister, when he got up and was unable to read what was before him, did not have the grace to admit that he was wrong or apologise. I certainly would be on my feet at once to apologise if I misread anything or misled the House, because that is not my form. I do not think that anything we have to say in this House will be constructive if it is by way of misreading what others have said. Senator E. Ryan said, and so did Senator Yeats, that this was in the Workmen's Compensation Act, 1934. It is not in the Workmen's Compensation Act, 1934. The Minister reads then from Mr. Bernard Shillman's book in relation to a case not decided under this jurisdiction but decided in an entirely different jurisdiction, that is to say, in the Northern Ireland Court of Appeal. I would have thought that if the Minister wants to tell us what the law is in this country he would give us the law as interpreted by our courts——

Under our Constitution.

——and not have to have recourse to a decision of a Northern Ireland court. It is manifest that there is no such decision in our courts, because the Minister's officers and his Department had the capacity to ascertain what the law is as decided by the Irish courts. We can now say that there is no Irish decision by the Irish courts when the Minister depends on the principles adduced by Mr. Bernard Shillman on page 119 of his book.

That is only what Senator FitzGerald thought that the Majority of the Commission said.

I am going to come to the second misreading of the Commission in a moment.

I am very glad that I have this book here with me this evening so that we will not all be wondering what the Minister is talking about and be thwarted and frustrated by the knowledge that it was not correct, in having the book here. Senator Yeats made bold to refer to the report, this time the Majority Report, of the Commission on Workmen's Compensation. I am beginning to wonder are Senators on that side of the House or the Minister literate, because they are not able to read what is clearly set out in the different reports. The Minister could not read what is set out in bluff capitals in relation to the right of appeal in the Minority Report. The Majority Report, paragraph 411, said "We recommend that there should be no change in the existing arrangements in regard to requiring a workman to submit for medical treatment, nor should a workman be required to undergo a course of rehabilitation as a condition for continuing to receive workmen's compensation". As we lawyers would then say, a fortiori there should be no change in the arrangements in regard to requiring a workman to receive surgical treatment when the Commission say that he should not even be required to receive rehabilitation treatment as a condition for continuing to receive workmen's compensation.

Will the Senator read the last four lines of paragraph 411?

I have heard the Senator read a lot, but either the Senator or the Commission must not be literate. In any event, the Report shows that the majority subscribed to the view that a workman should not be required to undergo a course of rehabilitation as a condition for continuing to receive workmen's compensation. If this is the view of the Commission, surely the Commission did not then say that he should be required to undergo surgical treatment. That is as plain as can be.

Will the Senator read lines 4 and 5 of the paragraph? Senator FitzGerald knows very well what they mean.

Senator FitzGerald can read them while I am talking. The paragraph says: "Under the existing system where the question of a workman submitting to medical treatment arises, the court has to decide whether the workman's refusal to undergo treatment is reasonable or not." There is not a word there about surgical treatment.

The Commission went on to speak about treatment which might endanger his life. What kind of a pill is it that might endanger his life?

When you are talking about a physician you are talking about giving medical treatment, but if you are talking about a surgeon he is going to give surgical treatment.

All doctors give surgical treatment.

Senator Yeats also placed his argument on the basis that even if a man was deprived of compensation because he would not undergo a particular form of operation he would have an action in the courts.

I have withdrawn that suggestion.

I am very glad to know that, because that disposes of a charge that I was about to make that the Senator did not even understand the Bill, a charge that I do not make at this time. I want to say that Mr. Shillman in his book referred to three cases—one which was decided in this country, another which was decided by the House of Lords in England, and I thought that we had got rid of the House of Lords and reference to the Privy Council quite some time ago, and the third was to the Court of Appeal of Northern Ireland. The one case that was decided in this country dealt with a slight operation.

Now the Minister says this will relate only to minor operations and he refers to the British code. There is so much reference to what goes on in Britain and Northern Ireland that I often wonder why it was necessary at all to break the connection with England. As I understand it, and as I am advised, there is no such thing as a distinction between major and minor operations; that where a person has to undergo an anaesthetic that is regarded, in medical circles, as involving a risk. Where you have any risk and where that involves a person's health and wellbeing that is to my mind a matter of major concern to the individual concerned. But, of course, that would not be a matter of major concern to that Department which will operate this system in that flexible and impersonal way described in the Minority Report.

I am not prepared to say to the workmen of this country that they are to submit themselves to the adjudication of the impersonal system which will operate in Áras Mhic Dhiarmada. I am not prepared to do that; other Senators may be, but I am not prepared, in a matter which relates to the health and wellbeing of a person, to submit the final arbitrament of that matter to the impersonal decision of a Deciding Officer or of an Appeals Officer in the Department of Social Welfare.

Now I put down an amendment dealing with the objections on grounds of religion. I have already indicated that there are some people who would not submit to the kind of rehabilitative or medical treatment which might be involved in hypnosis. Some people might say: "Oh, that is only a laugh, there are lots of people who submit to Paul Goldin in the Olympia Theatre."

Business suspended at 6.05 p.m. and resumed at 7.15 p.m.

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