I ask the Minister — this is something we discussed last week — to explain about the power of the council to borrow. I recall last week that he said the council would finance itself when I asked about how it would be financed. Section 22 deals with the power of the council to borrow.
Dentists Bill, 1984: Committee Stage (Resumed).
Section 21 agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill".
The section is an all-encompassing section. For capital and current purposes, the council, subject to conditions which I am in a position to lay down under the Act, may borrow such moneys. That is an enabling power and it is a very useful and necessary one to have because it will be of particular benefit to the council, particularly with regard to borrowings which have to be approved.
Question put and agreed to.
Section 23 agreed to.
SECTION 24.
Government amendment No. 8:
In page 13, subsection (2), lines 3 and 4, to delete ", with the consent of the Minister,".
This amendment was sought by the Dental Board. Under the provisions of subsection (2) the Dental Council may, again subject to my consent, allocate any surplus funds at their disposal to dental education, research or to any public purpose connected with the profession of dentistry. The board made the case that the amount likely to be spent in this way would be quite small: under a similar power in the 1928 Act, the board had spent some £15,000 in the past five years. The fund would not come from the public purse but from fees charged by the council for registration services. The manner in which the funds can be allocated is clearly laid down and the annual audited accounts will be laid before the Houses of the Oireachtas when published. The board also pointed out that speedy decisions sometimes had to be made in regard to the application for financial support for scientific meetings and so on and that having to obtain the prior consent of the Minister could cause delay. I accept the merit in the observations made by the board and, accordingly, I propose to delete the necessity for my consent in this regard. Accordingly, I commend the amendment to the House.
We should thank the Minister in this regard. We find legislation spattered with consents of Ministers these days, and with Ministers having to get the consent of other Ministers. In this regard the Minister has done the correct thing in removing that requirement.
I thank the Minister for this amendment. It seems to me to be an opportunity to eliminate in many ways the question of getting consent, which is happening all over the place. I think the council would welcome control of their own destiny as much as possible and this is why deletion of the words "consent of the Minister" is a further help. I welcome it and I thank the Minister.
Amendment agreed to.
Question proposed: "That section 24, as amended, stand part of the Bill."
In introducing his amendment the Minister said that it had been indicated to him that the amounts at the disposal of the Dental Council would be liable to be small and that it was not a matter of expenditure of large, amounts of money. If we look at the Bill, if we look at the additional functions that are being laid by the Oireachtas on the new Dental Council we will realise that we are proposing a degree of activity which was not there before. We must face the fact that if there are to be surpluses and if deficiencies are to be avoided the level of fees which will have to be charged may become extremely high. Extra functions mean extra funds. I ask the Minister if he could give us any indication of what attitude he might take if, after the operation of two or three years, it is clear that there are funding difficulties in the case of the new Dental Council?
I would be quite sympathetic in terms of getting the council off the ground in the first instance. Equally, I am preoccupied on the education front that where particular schemes are introduced every possible assistance be given. In so far as this Bill is concerned it is an enabling Bill. There are no Exchequer funds committed within the general framework of the Bill but that does not preclude the Department, in their ordinary day-to-day work, from applying to the Minister for Finance to give occasional grant-in-aid moneys to particular bodies to enable them to get off the ground. However, I want to make it quite clear that at this point I have no proposals as such to put before the Department of Finance, nor indeed have I any consent at present.
Question put and agreed to.
Section 25 agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
We have a very important section here in regard to the establishment of the register. I do not want to anticipate a discussion that might come afterwards when we will be discussing the question of a specialist register. It seems to me that if the Minister is going to hold to the Bill as drafted and have a specialist register that it will detract in some way from this main register. I want to say no more than that at the moment. It seems that as a consequence of whatever decision is made in regard to the specialist register it might be necessary to return to section 26 on Report Stage. I make that intervention now, lest in attempting to return to it on Report Stage the Chair would point out that section 26 had not been mentioned on Committee Stage.
Question put and agreed to.
SECTION 27.
On section 27 we have amendment No. 9. Amendments Nos. 10, 11 and 33 are related to No. 9. Amendments Nos. 9, 10, 11 and 33 will be discussed together.
I think amendment No. 12 might well be grouped for purposes of debate. The object of amendment No. 12 is the same as that of the ministerial amendments.
We were going to group amendment No. 11 (a) with amendment No. 12.
I agree with that.
We will take amendments Nos. 9, 10, 11 and 33 together. Is that agreed?
Yes.
Government amendment No. 9:
In page 14, subsection (2), line 22, to delete "section 28" and to substitute "sections 28 and 65".
If I may, I will take amendment No. 9 and ask the House to consider amendment No. 33 with it because there is a substantial degree of inter-relationship between those two amendments. These are proposed as a result of discussions with the Dental Board. The purpose of the amendments is to ensure that persons registered in the Commonwealth and foreign lists of the British dental register do not continue to have entitlement to registration in this country. It has been a difficult section, as the Leader of the House is aware, to get into a correct legislative framework. In brief, section 27 (1) of the Dentists Act, 1928, gives entitlement to registration in this country to persons on the British dental register which would include persons in the Commonwealth and foreign lists of that register. This arrangement forms part of an agreement entered into with the UK under the 1928 Act, termination of which is provided for in section 65 of this Bill. It was the intention when drawing up the heads of the Bill in our Department that persons in the Commonwealth and foreign lists of the British register would no longer be entitled to registration here. That was the reason for the provision in section 65 (3). It now seems, however, that this provision does not cover the situation fully. Section 27 (2) (a) gives entitlement to entry on the new register to any person who immediately before its establishment was entitled to be registered in accordance with the Dentists Act, 1928, and was not so registered.
The purpose of the provision is to cover persons who hold a qualification issued by the RCSI but are not registered here when the new register is established. The RCSI ceased to train undergraduates in dentistry in 1977 and, accordingly, provision must be made for holders of the RCSI qualification who, for one reason or another — mainly because they are working abroad — are not registered here when the new register will be set up. That may appear to be a rather complicated explanation but that is the particular import of amendments Nos. 9 and 33. Section 27 (2) (a) could also be construed as going further than it was intended. Among those entitled to registration here under the 1928 Act, immediately before the new register is established, are persons on the British register. This includes those on the Commonwealth and foreign lists. It appears, therefore, that although future entrants to those lists will be excluded here it can be held that anyone entering on those lists when our new register is set up will continue to have entitlements to entry on it. Section 65 (3) would not operate to preclude this. Accordingly, it is necessary to amend sections 27 (2) and 65 (3) to redress the situation. These are the main points in that regard.
If I may impose again on the House I will speak at some length at this stage because we are grouping amendments Nos. 10 and 11 together. Amendment No. 10 is a drafting issue. It inserts the word "for" where it was inadvertently omitted in drafting. Amendment No. 11 deals with section 30 of the Dentists Act, 1928. It gives the Dental Board power to register a dentist from any "British possession, self-governing dominion or foreign country" which the board recognises for that purpose on the basis of reciprocity. In drawing up proposals for the Bill, it was considered that provision should be made for the continuation of any existing agreements made by the board but that the new Dental Council would not be given power to enter into fresh ones. This is the reason for the provision in section 27 (2) (e) of the Bill. The Dental Board pointed out, however, that no formal agreements have ever been entered into with other countries and that the power given under section 30 of the 1928 Act has never, in fact, been used to register any person here. The board considers that there is no good reason for the provision in section 27 (2) (e) of the Bill and that any application for registration from a national of a country outside the EEC could be dealt with adequately under section 27 (2) (d) of the Bill. I have accepted the view of the board in that regard and, accordingly, the amendments are tabled.
I think I had better finish at this stage, a Chathaoirligh, because we could suffer from legislative indigestion if we do not get that much clarified.
The Minister has made it clear that the degree of grouping we have in these three amendments is enough for us to be going on with. I regret that a confusion in my own notes made me bring forward a suggestion to enlarge the debate.
What the Minister has done in amendments Nos. 9 and 11 — amendment No. 10 is a drafting amendment — has properly brought the position of our agreement with the British Government, or indeed the agreement between the dental registers of the two countries, up to date. What was appropriate in 1928 in regard to mutual recognition is not appropriate at present after the long lapse of the intervening years. There is no need to re-enact in full all the provisions in the 1928 Act. I welcome amendment No. 9 and amendment No. 11. I welcome amendment No. 11 not only for its content, but, of course, I also welcome it from the point of view of format because this was the one blemish which I criticised the Minister for when I was talking on Second Stage. It was the one section of the Bill where there was reference to other legislation. I am glad that it has now gone because if it had not gone on the basis that its content was not required I would have sought to amend it on the basis of format.
Amendment agreed to.
Government amendment No. 10:
In page 14, subsection (2) (c), line 34, after "recognise," to insert "or".
Amendment agreed to.
Government amendment No. 11:
In page 14, subsection (2), to delete lines 38 to 41.
Amendment agreed to.
Amendment No. 12 is an alternative to amendment No. 11a on which amendments Nos. 18a, 18b, 18c, 18d and 18e are consequential. Amendments Nos. 11a, 12, 18a, 18b, 18c, 18d and 18e should be discussed together.
Government amendment No. 11a:
In page 15, lines 5 to 13, to delete subsection (5), and to substitute the following subsection:
"(5) A person to whom a decision under subsection (3) of this section relates may, within the period of two months, beginning on the date of the decision, apply to the High Court for cancellation of the decision and, if he so applies, the High Court, on the hearing of the application, may—
(a) declare that it was proper for the Council to make the decision, or
(b) cancel the decision and direct the Council to register the name of the person making the application, or
(c) cancel the decision and—
(i) direct the Council to make a new decision, or
(ii) give such other directions to the Council as the Court thinks proper.".
I should indicate here that acceptance of amendments Nos. 11a, 18a, 18b, 18c, 18d and 18e would mean the withdrawal of amendment No. 12 in the names of Senator Dooge and Senator Ferris. Effectively, amendments Nos. 11a, 18a, 18b, 18c, 18d and 18e are Government amendments. They arise as a result of amendment No. 12 and this seeks to add to the powers of the High Court under section 27 (5), in consideration of an appeal against a refusal of the Dental Council to register a person on the grounds of the unfitness of that person to engage in the practice of dentistry. As section 27 (5) stands, the court can (a) uphold the decision or (b) can cancel it and direct the council to register the person concerned. The amendment of Senators Dooge and Ferris is designed to broaden the restrictive nature of these powers by providing the court with a third alternative of giving any other direction it thinks proper. Section 27 (5) is one of the six instances in the Bill where the High Court is given an appeals function in relation to decisions of the council on registration and disciplinary matters. The others are sections 30 (5), 32 (6), 39 (3), 40 (3) and 42 (3). They are all based on similar provisions in the Medical Practitioners Act, 1978, which were specially drafted with the Constitution in mind.
Accordingly, I made the point earlier on in consultations and discussions. Because of this the Attorney General was consulted about the amendment proposed by the Senators in section 27 (5) and he is of the view that the section would be improved by the amendment but that for the sake of consistency similar amendments should be made in the other five sections involving the High Court. He advised that the parliamentary draftsman should be consulted about the wording of the amendment as there would be some minor grammatical error in section 27 (5) if amended as proposed since it would read that the court could "either or" with three choices existing. Also the wording of the amendment to section 27 (5) would not necessarily be appropriate for the other five sections and, therefore, I have had that particular amendment prepared and the six amendments proposed. Acceptance of them will, of course, mean the withdrawal of No. 12. My only hope is that Senator Dooge has not raised a hare which might be chased for many a year in terms of the capacity of the High Court to have a number of options open to it. The only consolation is that if the hare is going to be chased the Senator and I will not be the hunters.
I am grateful to the Minister for the way in which he has met the point which I raised on Second Stage. That point was that the powers of the High Court in the section as originally drafted merely to uphold a particular refusal to register or to direct a registration was unduly restrictive of the High Court. I think, in principle, when we are legislating on matters like this we should not tie the hands of the court. My worry was that if we had enacted the section as originally introduced, we would leave the High Court in a position that it could not on appeal direct a new trial. I thought that was a substantial point and I am happy that the Attorney General agrees with me.
In regard to the question of the type or form of amendment between No. 11a and the consequential amendments Nos. 18a to 18c, in fact of course the form proposed by the Minister and the completeness of the amendment by the Minister is far preferable. The amendment put down by Senator Ferris and myself was merely put down in order that we could discuss the principle on Committee Stage. I looked at the sections and felt that we should discuss one of them and if we agreed in principle we could always follow up on Report Stage. The Minister has come more than half way to meet us by not only accepting the principle but doing as it were the Committee Stage and Report Stage work together. This Bill will now have sections concerned with the appeal from a disciplinary body to the High Court which is far preferable to what was there before and I think, indeed, the form that was there before has been used in other cases and I think at a convenient time the case of the other disciplinary bodies should be amended here also. The more we try to tie the hands of the High Court in these questions of disciplinary matters the more danger we court in regard to the constitutionality of enactments such as we are making now. I am grateful to the Minister for meeting the point that was raised and for doing it so positively.
Amendment agreed to.
Amendment No. 12 not moved.
Section 27, as amended, agreed to.
Section 28 agreed to.
NEW SECTION.
Amendment No. 21 is consequential on amendment No. 13. Amendments Nos. 13 and 21 are to be discussed together.
I move amendment No. 13:
In page 15, to insert before section 29, a new section as follows:—
"29.—(1) If the Dental Council are of opinion that any branch of dentistry has become so distinctive that it would be for the convenience of the public or of the dental profession that registered dentists qualified to practise, or practising, in that branch of dentistry should use a distinctive title, they may by regulations prescribed appropriate titles and conditions under which they may be used; and the use of a prescribed title under the prescribed conditions shall not constitute a contravention of section 50 (2) of this Act.
(2) The Council shall in regard to any speciality in respect of which regulations have been made under subsection (1) of this section maintain a list of registered dentists who are qualified under such regulations to use such distinctive title."
Again, I am putting forward this amendment, not as an ideal wording but as the basis on which we could have a discussion of a matter of principle in regard to this section. The proposal in the section, that is section 29 of the original Bill, was that there should be a register of dental specialists. The Minister in replying to the anxieties expressed by Members on all sides of the House during Second Stage indicated that, in fact, this was not a mandatory section and the power given under section 29 to establish a register of dental specialists did allow for the discretion of the council. On the other hand, the Minister has powers which we shall be discussing in due course in regard to requiring the council to act even on their discretionary functions. This must give us pause. We must ask ourselves if this is the best way to act.
A part of the argument that the Minister used was that in many countries of the European Community there were such registers and that it could well be that a directive would be drawn up in harmonisation of the dental profession which would require us to establish such a register under such a convention. Of course, if that were the only reason why we wanted to consider a specialist register, then I think that could be done elsewhere in the Bill where the question of EEC directives is dealt with. I think we must look at section 29 from the point of view not of what might happen under an EEC directive but on the basis of our present situation. While it is true that some of our partners in the EEC have what can best be termed as registers of dental specialists, in the United Kingdom, with which our dental register and dental profession are closely linked, they do not have a register of specialists. We have, on the other hand, a list of specialists and the main purpose of this amendment is to raise the point of principle as to whether we should have a register of dental specialists or a list of dental specialists. The thrust of amendment No. 13 is, in fact, the same as the thrust of amendments Nos. 14 to 18 which have been put down in the name of Senator Fallon and this is the point we need to determine in this House.
My fear is that by establishing under section 26 a register of dentists and then establishing under section 29 a register of dental specialists, we devalue the general register in section 26. I feel that if you say, right, in this section of this Bill we establish a register of dentists, and three sections later we establish a register of dental specialists, then this register of dental specialists appears to be a far more important thing from the point of view of the proper organisation of the profession of dentistry than the general register. It sounds better. At the very least it is being given equal status. I am not convinced that, in fact, this register of dental specialists is something that is of equal importance to the register established under section 26 which is a continuation, of course, of the register established under the 1928 Act.
For that reason, I think it would be more appropriate if in compiling any list of dental specialists — it may be advantageous to do this — it would be better described simply as a list so that it could perform, in the absence of an EEC directive, exactly the same function as under section 29 of the Bill if it were called a list and it would not appear to be more important or more pretentious than it need be. If it comes to the case of harmonisation, if it comes to the case where a directive uses the word "register" then we would have no option.
I do not think I should say anything about the wording of this amendment. It was drafted and set down here to raise this point of principle, whether in fact under section 29 we need to call the lists which are to be established registers and thereby raise comparisons with the vitally important register of section 26.
Although we have amendments of our own on this section we accept the basic principle of this amendment and that it would follow on our amendments. Indeed, all the amendments would meet our aspirations in this regard. The previous speaker has given his thoughts on this section and the practical situation that he saw and I support his views. If a list rather than a register were the order of the day it would almost certainly be for the benefit of the overall community and would allow our dental professions to move forward almost independently. It is important to know that at least six out of ten countries of the EEC have no register as such. I know that in Britain they were very careful and moved very slowly on that. In fact, they have not a register of specialists. I support the amendment. The EEC directives do not make it mandatory to establish a specialist register. The whole idea of a list would be far preferable to the profession that we know has done great work here since the 1928 Act.
We all know that the training of a specialist in Italy, for example, takes something like three years. The same training for a specialist in Ireland is a period of eight years. It does not seem fair that that situation should be allowed to develop. We should have a list rather than a register for the many reasons that I and the previous speaker have given. I support the amendment in the knowledge that it meets our aspirations for the subsequent amendments that we put forward. I will ask the Minister to accept it in the good spirit that prevails on all sides of the House. It seems to be a logical, practical amendment and one I think that would meet the wishes of the Senators on both sides of the House.
I would like to follow up on what the previous Senators have said on this section. I should like to stress my reservations about the whole idea of a specialist register. The two factors that must be closely examined are the legal factor and the cost factor. I should like to refer to the cost factor. A specialist register, would, in my view, lead to an increase in the overall expense of dental treatment in the country. It is easy to foresee these specialists doing work that at the moment is being done by less well trained and cheaper practitioners both in the public and private sectors. I fear that because of the legal implications involved the general practitioner could opt out of treating any complicated cases with the result that these will be referred to the specialist. I should like to give an example of costs involved at the moment. A general practitioner or a health board dental surgeon will cost the State about £5 for an examination. A specialist at present charges the minimum of £22 and this can increase to £25 in the State or public sectors, depending on the specialist involved. A general practitioner or health board dental surgeon could treat a simple orthodontic case for as little as £20 per year at the moment whereas a specialist will charge a minimum of £121. A specialist charge on the health board is roughly about £32 per hour and a dental surgeon's rate can vary from £10 to £11 per hour. I should also like to point out that specialists in all professions are far more expensive than their colleagues in general practice. As regard the medico-legal difficulties, there is a danger that primary care workers will refer even the simplest cases to specialists to avoid legal problems. In the State sector particularly they will opt out to avoid complaints. The parallel in medicine is a GP sending everyone to hospital consultants and the Minister is now trying to reverse this. Professional insurance protection societies will probably advise members to refer more patients to specialists.
The third danger I see is that patients will always want to go to a specialist whether they need one or not because — and probably it is a fault with most of us — they wrongly consider that they will get a superior level of service. I am concerned that the general public, given a chance, will want a consultant surgeon or physician to attend to all their complaints. This will be difficult to overcome if the register is maintained and is freely available to the general public. Finally, there could be a danger that the Department of Health will opt out of continued education for the cheaper primary care workers. They have done this for decades in the medical area. This is essential to utilise our limited resources effectively and efficiently.
To conclude, there seems to be no logical reason for the Minister to introduce a specialist register. I favour, as the amendment suggests, the introduction of a specialist list system and even if the Minister will not concede an amendment now may be in the Dáil he will introduce his own amendment that would overcome this difficulty.
I support Senator Dooge and the amendment of my colleague, Senator Fallon. By the time the Minister leaves the House with this Bill as amended, it will bear very little resemblence to the original Bill. That in itself might prove that the Seanad has a role to play in legislation which is something we are often accused of not having. If one did not read the explanatory note on section 29, and the Minister's introductory speech here on Second Stage very closely, and perhaps a few times, one would think that this practice is acceptable in Europe. Of course, the Minister, as well as the rest of us, knows that is not so. I understand that in the EEC of the ten member states there are only three that have specialists registered.
I wonder why does the Minister think this is necessary at the present time. I would like to ask him a direct question and hope that he will give me a clear answer. What will this register do for the people in the west of Ireland, for example, in Clare, to provide a better service on the ground? That is what legislation is all about. There is no use talking about enabling Bills and words and drafting of what matters is how it will affect the people and the service. To single out a particular branch for specialist recognition could lead to the general dental practitioners effectively being debarred from doing work for which they are trained. Such action surely would not be in the interests of the public, either in the short or the long term.
I would like to ask the Minister what this so-called register of dental specialists will do? Will it give us a better service? Will it cost a lot more? The major point is that the community would be best served by the development of the service available from the primary care dentists, the family dentist and the health board dentist supported by dental auxiliaries who would provide educational and preventive services. The family dentists and the health board dentists would then be further supported by fully trained consultants.
If the register of specialists was introduced, would we have to have new facilities made available to allow Irish graduates to become entitled to have their names on such a register? What effects will this have on the role of the family dentist, on the health board dental surgeons — the few we have — the Defence Forces dentists and dentists working in any teaching or other hospital? What will this list of registered dental specialists do for the people I have referred to? If it is true that the World Health Organisation has already favoured the list rather than the register, I do not know why we must opt for something that may be just wrong for this nation.
There are many figures I would like to quote but while I have very strong views on the matter I would be told by the Cathaoirleach that I should have included them in my Second Stage speech. We should have a better service, for example, in the orthodontic field where there is really no service. We have 250 people waiting for two years. We are talking here of a register of dental specialists — it is time that we got our priorities right for once.
I support Senator Dooge in this amendment. Maybe some of my colleagues who do not spend too much time in this House, will at least see that some of us are trying to have an input into legislation that is going to affect every house in this nation. This is very important legislation and perhaps too many politicians may take it too lightly.
Briefly, I would support the thrust of this amendment. Many of the arguments for it have already been adequately put on the record. It seems to me that amendments have to be examined in the context of the trends and developments that have taken place in dental care in Ireland. That is the essential point, that we have seen a dramatic change particularly in the parts of the country where you have had fluoridation of water supplies for a substantial period. The pattern of primary care has changed and will continue to change very dramatically. This places a strong emphasis on the need to look at both manpower needs and training of manpower in providing the kind of dental service which will really address itself to and meet the needs of the future and do it, as has been emphasised in a number of the contributions, in the most cost-effective and reasonable manner.
It is really against that background that it appears to be clear that the family dentist and the health board provision of dental care will have to be on a more specialist level because there will be the demand for that care from the general practitioner dentist in Ireland in the coming years. It is here, in further opportunities for retraining and in the development of the training of dentists, that we should place our emphasis to ensure that the standards are ones which can meet the particular needs of the population and that we are providing a broadly based, acceptable and adequate degree of dental care at that level. It seems, as has already been stated, a departure from that to create a specialist register that would have all the counter indications already mentioned and the cost disadvantages and the possibility of an opting out by the dental profession who are not on the specialist register from the various types of treatment which would be and should be within their range in providing dental care and that it would not provide an accessible and high standard care for the population of this country.
In a sense, I am still not entirely sure whether it would be necessary to have lists, as proposed by the amendment — it may be in a sense a compromise amendment, I am not sure — but it enables that to happen if the Dental Council so recommends. For that reason, I would strongly urge the Minister to look very closely at it. He has already heard representations from both sides of the House as to the approach and practice in other countries and recommended by the World Health Organisation. My primary reason for supporting this amendment is because of the developments that have already taken place on the ground in Ireland in relation to dental care, the trends that are there and our future manpower needs. It is in such contexts that I support this amendment.
I do not know if it is a matter of old age or not but I have been around for the last 20 years in the trade union world and I have become reasonably experienced in smelling special pleading and this case reeks of a degree of special pleading. It reminds me of the mid-sixties when I was around in the trade union world and was secretary of the demarcation committee of the ICTU. We used to have some esoteric arguments about the difference between the sheet metal craftsman and the sheet metal pre-fabricator, and as to whether a person should be called a stationary engine driver or a crane driver. Quite frankly, this should be kept in perspective. Section 29 is an enabling section: it is no more and no less than an enabling provision. It enables the council, who may, with the consent of the Minister....; it "may" prepare and it "may" establish the register to be known as a register of dental specialists. It "may" contain therein a division in respect of each dental speciality from time to time — I would again stress, quoting the section —"recognised by the council under section 37 of this Act." There is no imposition whatsoever on the council to introduce a register: it may do so.
It is an enabling provision which is only prudent within the context of the profession. God knows, if I were to take to heart some of the arguments here I would be going back and wearing my hat as the Minister for Social Welfare saying that I will have to revise the fees paid to some specialities within the profession. I would have to indulge in some "queer hawk" activity relating to consultant orthodontists and oral surgeons throughout the country. I really think that the special pleading which I have been subjected to in relation to this section does not stand up. In fact, I may suspect that some of the special pleading comes from those who may not necessarily hold specialities themselves. To that extent I want to say that the difference between the list as proposed and the register as is proposed within the section is eminently discernible because it is not adequate simply to devolve on the Dental Council the casual convenience of setting up a list and casual titles of designation and so on. If I personally decided to become a dental specialist I would take great umbrage at my professional body having such a casual devolution prescribed for them under law.
It is essential that the council should be given power, if they wish to exercise the power, to make the regulations prescribing the specialities, registering the specialities and then it would have a proper formal statutory base. It would specify the requirements for entitlement to registration which, after all, is quite different from somebody having a list in his back pocket as a dentist. Let us respect the profession. Let us give people the registered speciality that they are entitled to. Equally, it is very important since this Bill contains substantial set regulatory provisions relating to appeals to the High Court for registration and removal from the register, which indeed is the tripartite disciplinary procedure proposed quite eloquently to us by Senator Dooge. All these powers devolve in the context of registration as distinct from setting up this concept of a list. Because the UK has a list there is no particular reason why we should not have a far better Act which is likely to stand the test ot time in the profession to the end of this century. That is basically the initial thrust of my argument here.
Sections 29 and 30 provide a means for the establishment by the council of a register of dental specialists at some future date. It does not specify when, but it is at some future date. There are EEC directives in that regard. We tend to forget in this country that since 1978 we have been obliged to adhere to directives. It is true that the Community recognises a number of specialities. It is equally true that a number of EEC member states have specialist registration. It is reasonable to assume that the practice would tend to develop over the years and on that basis this Bill should anticipate a degree of specialist registration by the council. It is a prudent provision in this Bill to meet that eventuality and to avoid a need to bring in amending legislation.
The arguments that have been adduced have been very adroit. They have been put forward by Senator Dooge with customary dexterity but in his heart of hearts, as a distinguished academic he would agree perhaps we should not have a list of specialists in heavy water to be listed by the academic authorities. These men would take grave umbrage at such listings. Indeed, I would suggest that the arguments in relation to the other issues raised, such as the development of posts of dental consultants, are not valid. It has been suggested to me that with such a registration system the posts might be damaged. I do not accept that at all. I had lengthy arguments, in fact quite excessive arguments, about this issue. There was very special pleading. I do not accept for one minute that the post of dental consultant would be damaged by such a provision. In Britain, for example, the requirements for a consultant post are a higher degree which normally takes four years, plus four years in a training pathway — usually in a registrar post. We have adopted requirements of that nature for the only consultant posts which we have created so far in the health board services here — those of consultant orthodontist. I only wish we had enough money to employ more of them: I respect the contribution they have made.
It is equally true that there is no prospect of additional cost arising here. I do not see it arising. I do not see people rushing off to dental specialists. The generality of dentists in this country have very high expertise. Certainly their role is not likely to be diluted. There is an argument of fear being generated within the profession. It is a self-regulatory profession. The dental profession will have a majority virtually within the council. They will not allow their colleagues to flood them out of ordinary conventional work and have specialists take over and dilute their role. That is not likely. All these inferences keep coming to me and therefore they say, "Ah, well, we shall have a list. We will run that list". I do not share the simplicity of that argument at all.
Equally, and finally, we have the situation within the European Community. I do not believe that the Community would accept the kind of concept of lists proposed here. I do not believe they would accept that would be an adequate recognition of minimum qualifications laid down in existing directives. I do not think that they would accept that.
Is the Minister telling us that there is in existence at the moment a directive which would compel us to have a register of specialists?
In effect, what I am saying is that if a directive were to make specialist registration necessary it would be necessary to bring our registration into line and while I would bow to more assured awareness of EEC directives, any experience I have had is that they tend to go for the formal statutory registration of particular specialities and that the devolution of more casual powers to a council would, in my opinion, and from the detailed advice I have had within the Department of Health, not be accepted.
Finally, there are a number of amendments proposed by Senator Fallon to which I shall briefly refer because they are all germane to our discussions. They are to some extent on the lines of amendment No. 13 of Senator Dooge and Senator Ferris, to replace the register of specialists with a specialist list. They do not go as far as amendment No. 13 since they would only change the general terminology. They would leave the other provisions there. Apart from a change of name, I do not think the amendments would have any real, practical effect because they would only change the title, leaving all the other provisions relating to the register to apply to the list, namely those with an entitlement to registration, the right of the council to refuse registration, to erase names and so on and appeals to the High Court. All those provisions would still remain even if amendments Nos. 14 to 20 were accepted.
I would also point out that if these amendments were accepted it would require consequential amendments to sections 37 and 39(1). I am prepared to argue this issue with our colleagues in the Seanad. I feel that it is in the best interests of the profession. I have spoken to quite a number of specialists who are all in favour of this provision. I have spoken to a large number of dentists who tell me and assure me that I should not be too convinced by individual special pleading. They say it is a sane and sensible measure to bring in and it is one which will not damage the profession and will enhance the general role of specialists within the profession itself.
The Minister opened his remarks by saying he was not convinced by the arguments made. I hasten to return the compliment. I feel that the Minister has done nothing to rebut the points that were brought forward. He reached back into his experience and said it reminded him of demarcation disputes. May I ask him frankly, if we pass section 29 are we going to have more or less demarcation disputes? It seems to me that this is a section setting the stage for demarcation disputes as to who is or is not a specialist in a particular area. Not only are we doing that but we are involving the High Court in the determination of such disputes, something that I think is completely unnecessary. The Minister said in his closing remarks that he has spoken to many specialists who were in favour of this. Of course they are, just like the metal workers that he remembered who were in favour of nobody else doing their own special thing.
I would like to assure the Minister that there is a deep anxiety among general practitioners in dentistry in regard to this. Whatever the outcome of our debate today, I think that it is unfortunate that in going into this relaunching of the organisation of the dental profession in Ireland the Minister is out of sympathy with that deeply-held anxiety. The Minister suggested that what is proposed here is a question of casual title, that there is something not right about this. I do not think so, it is quite clear from this amendment. I do not claim that the wording is perfect but I think the wording is quite adequate in this regard. I think that we must remember here what is the main purpose of this Bill.
The Minister in some of his ad hominem remarks referred to my own specialisation. I am a chartered engineer. There is the single qualification. There was a movement indeed for many years for registration of engineers in defence of the public interest. That was turned down by successive Governments on the grounds that it had not been proved beyond doubt that there was a damage to the public interest in such a lack of registration. I suggest that was reasonable. There would be a damage to the public interest if we did not have the general register of section 26, no question about that. What damage is there to the public interest if we do not have the specialist register of section 29? What benefit to the public interest? Leave aside the benefit to individual specialists, where is the benefit to the public interest?
The Minister said that we should anticipate what might come in a directive. There are no directives at the moment. We should not anticipate what might come in a directive. We should not anticipate in fact that even though a minority of states at the moment have such registers that that would be a form of a directive. Even if that were so — and I grant him this — there is no need for us to anticipate that day. There is no need for us to have section 29 in order to carry out that directive because section 60 of this Bill is adequate in order to carry into effect in Ireland any directive which insists that Ireland as well as the other nine members must have a register of specialists. In this regard, the Minister has indicated that he finds the amendments of Senator Fallon less objectionable than he does amendment No. 13 put down by Senator Ferris and myself. If the Minister could now assure me that he is prepared to accept Senator Fallon's amendments I would certainly withdraw amendment No. 13 in favour of amendment No. 14 and the consequential amendments.
If there is one qualification which Cork people have it is that when they become obdurate they become wholly obdurate and there is no way that I will accept Senator Fallon's amendments either, in that regard. I am not in the least bit out of sympathy with the needs and the aspirations of the profession. I am trying to reflect them in an enchanced way. I do not believe that a list system as such gives what I call parity of registration as between the general profession and the specialists within the profession. I want to give them a mutuality of regard and that is why I think they, too, should be registered. A mere listing system would be a devaluation, the very word used by Senator Dooge initially in his first contribution. If I may take the word and apply it in a different context, I think it would value the general role. I am acutely aware, and I have been trying to prepare for it in recent months, that Ireland is taking over the Presidency of the European Community for the next six months, and I find in reading through any of the literature on the social side the concept of registration is well and truly established rather than the list. There is, I think, a bit of professional semantics going on here. We are afraid of people being registered because they are specialists, that they may take over work which we normally do. There is a fear of that and as a consequence we will merely list them because they will have an enhanced professional status if they are on a register of specialists. That is pure semantics: it is pure internal professional preoccupation and indeed it is a particular paranoia which is relevant to all professions. In the dental profession there has been a slight outbreak but we will cure it by the end of this Bill with great help from the profession.
To that extent I do not see the logic of a specialist list. I want to give the general profession a prospect of registration of their own specialists. The absurd has been suggested: the man in the street might be confused if we go ahead with this provision. That is a difficult one to accept. A specialist register would be of some assistance to the public and, indeed, to the Department. If persons are in need of specialist treatment they will at least be able to establish that the specialist they were attending was not on a particular list, that he was a suitably qualified, registered person accepted by the council, and that he would not have been registered if he did not have that qualification. Therefore the man in the street is not likely to be confused.
Senator Robinson and Senator Dooge go back to the old days when all three of us served on the Joint Committee on EEC Legislation. We would adhere to the directives of the Community if we were formally bound to adhere to them. There would be the prospect of the council being given an opportunity to have a phased implementation of such directives. That is open to the council. I had difficulty in convincing some of the advocates of this list system that since 1978 we have been obliged to recognise nationals of the European Community who possess qualifications specified in various directives and allow them to practise as specialists in this country.
The prospect of more control by the profession on a self-regulating basis, having its own specialists properly registered, is better than chasing after the UK list system. If the UK had no list system I do not think the issue would ever have been brought up. Resort to that ploy does not stand up.
There is not much more I can say on the matter. I will be attending a dinner in the College of Physicians tonight given by the Faculty of Community Medicine. Ten or 15 years ago the same argument was used in the medical profession: we will not have a Faculty of Community Medicine. I will be at a conferring where specialists will receive their qualifications in community medicine. That is an advance within the medical profession. They have not destroyed the GMS and they will not destroy the generality of the medical profession. They are respected persons within their profession.
I have to leave the House to make special arrangements to be there for the second conferring in that faculty. That is done by the medical profession, by the College of Physicians. It is done without pressure from us and within the framework of the Medical Practitioners Act, 1978, not within that precise framework. There is provision in the 1978 Act for speciality registration. In fact, the medical profession have not found it necessary to exercise that power under the 1978 Act, but they have an enabling provision. I cannot accept the proposals here. I have examined them very closely and I have argued them out with our own senior professional staff in the Department. I am comforted by the sane and sensible advice which they have been giving me on this issue.
The Minister rightly paid tribute to the dental profession in his Second Stage speech, as we all did. I am asking the Minister to comment on the fact that our dental profession have prided themselves on the qualifications and the training they give to their dentists. If such a register was set up it would be mandatory to include every qualified person from other EEC member states who would not have half the training and qualifications of Irish dentists. Having regard to what the Irish dental people have put into their training and the pride they take in it, does the Minister not think it would be most unfair that somebody could come in from another member state with half the qualifications and half the training and find himself on a par with his Irish counterparts? I personally think there is a degree of unfairness in that. That is my principal objection to this section.
One has to appreciate some of the background to this. The enabling power devolves on the profession. The two persons nominated by UCC may have a particular dental speciality. Seven fully registered dentists resident in the State may be appointed by election among the dental profession. The two persons appointed by the Medical Council may have preconceptions and wishes relating to dental registration of specialists, and so on. If they all combine together and, in the wisdom of a self-regulating profession, assisted by the person appointed by the Minister for Education, who may or may not be a specialist, decide to open up a register for specialisation and register specialists, they will have the power to do that. It is no more and no less than an enabling provision.
The dental profession would be doing themselves a disservice if they delete the section and have no prospect of registration, or decide to have a contrived system as proposed in the amendment. That does not wash with me because I want to divest myself of control and registration domination over the council. I do not want to have that control. I am prepared to devolve it. If I were recalcitrant and totally difficult as a Minister I would say, "You can register yourself as a dentist and I will register the specialists". I am not saying that. The road which some of the devotees of the list system want to go down might be a rather undesirable road. Ultimately we could finish by not even paying a consultant orthodontist the type of salary he is entitled to be paid because everything would be determined by the Minister of the day. On balance registration is eminently fair and reasonable.
I am becoming somewhat confused by listening to this debate. It is important to tease out the issue a little further. I should like to refer to a comment made by the Minister in his earlier reply to the contributions made, when he said he got a strong smell of special pleading. It is certainly true, as is very usual with a Bill of this kind, that Members of the Seanad have received a number of representations. Speaking for myself, I have had both written representations and some oral representations from different members of the dental profession. Our role here is to devise legislation which is clearly in the public interest and which provides us with the best dental service, as broadly accessible and as cost effective as we can devise. It is in that spirit that I am making my contributions, and not in any sense as a pleader for any person. If I am a pleader for anybody, it is the ordinary member of the public who wants access to the best standard of dental care that we can provide.
I am not as yet persuaded by the arguments which the Minister has advanced for the register. It is clearly something that he has thought a great deal about and that he has had to consider very carefully. Also earlier I commended the Minister — and this is one of the clearest features of the way he has presented this Bill — on his openness and his willingness to listen to this House. I take very seriously the fact that he has obviously got weighty objections to the amendment put forward by Senator Dooge. It has to become clearer.
As I said when supporting the amendment, I did so because of the changing pattern in dental care in Ireland. I would welcome the Minister's views on the examination of the pattern which is clearly emerging and which has consequences for manpower. This is really what we are talking about here when we are talking about a possible register of specialists.
I should like to refer to a paper on Dental Manpower Needs delivered by David Barmes at a recent conference in Ireland. I have already referred to an earlier part of that paper where Dr. Barmes had looked at the changing levels of oral health care and the differences this would make to the primary health care where the large emphasis would be on health education and prevention and the role of auxiliary dentists in this area. He then turns to a consideration of the level of referral which he would envisage in the area of dentistry. On page 4 of the paper he says:
In contrast, there is an ultimate level of referral for high technology procedures in surgical, periodontal, prosthetic, orthodontic and general medicine procedures related to oral health which require very high level training but for a diminishing operator to population ratio.
As I have often said, I have had doubts and still retain them, that even today's dental graduates are being adequately prepared for this level of performance. There is thus the danger of the profession falling between two stools, over-trained for moderate technology and under-prepared for high technology over a broad spectrum of what are now regarded as dental specialties and for a type of practice which will be very different in age structure and in the needs of each age group from what is seen as traditional. You can see by that statement that I believe there will be no room for specialty groups in dentistry in the future.
I do not know — and I would welcome some comments from the Minister on it — whether that is special pleading in a narrow, professional sense which we should be wary of, and which we should not accept on the face of it, or whether it is a genuine assessment of the kind of care that will be needed over the coming years. Is it the case that there will be a need for more highly trained general practitioners, because the kind of dental practice which they will be engaged in will be different, because the pattern of the need for dental care has changed, and that there will be a relatively very small number of further specialists? Therefore it would be illogical and not cost effective to move in the direction of having a register of dental specialists which envisaged a fair number of specialties in this area to which a great deal of emphasis, cost, training, and so on, would be diverted.
That is my genuine dilemma. It seems that the trends in dentistry support the arguments advanced for the amendment. Yet it is clearly something the Minister has had to consider very carefully and he clearly has a strong resistance to it. I should like to hear his comments on that assessment of the trends in dental care and the manpower needs which will flow from that in the future: whether it is narrow, specialist pleading which we should be wary of and look at in a broader context, or whether it is a genuine assessment of the needs which would be relevant to the kind of dental services and the training for that which we would like to see.
I should like to make a comment on the EEC dimension to this. As has been stated and confirmed, there is at the moment no directive requiring a register. It seems to be a sort of red herring to bring it in at this stage. If, in the future, it were to be the approach at Community level that there would be a directive requiring a register of specialist dentists in each of the member states, then the authority to do that — it is referred to adequately in section 60 of this Bill — is in section 3 of the European Communities Act, 1972. The Minister has power by regulations to amend, adapt, repeal, any Act of the Oireachtas in order to comply with our obligations under the European Community. We do not need it for that reason. It is really a bit of a red herring. Since there is no directive requiring it and since, as I understand it, a minority of member states of the EEC at present have a register of dental specialists, we are better off looking at the situation on the ground in Ireland and assessing the future needs of this country and the way in which we can meet those needs. I would be grateful if the Minister would comment on that aspect.
I am not entirely enamoured of the powers for regulation in section 3 of the 1972 Act. This beloved House has been as jealously guarding its prerogative as the Upper House. If I were simply to insert sections of that nature into legislation and gaily avail of them the House might take a very different view. It is not an argument that I favour.
The Minister is quite right. There is section 60 of the Bill.
The main point I wish to get back to is a point of reconciliation at the end of this discussion. A careful examination of section 30 indicates the care with which we have approached this provision. Those who would be entitled to registration in the register of dental specialists would be dentists who have had initial registration, who, in the opinion of the council, have completed their training in a speciality recognised by the council. Under section 37 (1) the council with the consent of the Minister determine the dental specialities to be recognised for specialist dental registration purposes. Likewise the council have to be satisfied that the person has completed a programme of training in specialised dentistry of a standard considered by the council to be adequate.
The general provision of that training comes from a body recognised by the council under section 37 (3) of the Bill. That enables the council to specify the specialist training body which they recognise. The activities of those bodies are monitored by the Post-Graduate, Medical and Dental Board established under the Medical Practitioners Act, 1978. I cannot go any further in giving the council such enhancement of self-determination to decide this issue themselves. In five years time the council may say. "This idea of dental specialisation is a lot of hooey and we do not propose to register anybody". They have absolute power not to do so. If they are proposing to do so admittedly they have to have my consent. I am not likely to withhold consent lightly. I have access to post-graduate bodies and to the Minister for Education and I can readily cross-check. That power is devolved to the council.
I have one other objection to the amendment. Admittedly it is a drafting objection but it has equal validity. It says here that the council "may by regulations prescribe appropriate titles and conditions under which they may be used ..." I have always had objections to statutory bodies having statutory power to decide statutory regulations. The only people who should have statutory power to draft, prescribe and have statutory regulations annulled, if necessary, are the Minister of the day and the Houses of the Oireachtas. We do not devolve statutory powers as such. We devolve powers of registration subject to the constitutional right of a person to appeal against deregistration. That is one danger in having a registration list defined by regulation. I would be quite unhappy about that, but that is not germane to the main thrust of my argument here. We had lengthy discussions with the Irish Dental Association on this matter. Because I tend to be excessively confrontational in my approach to these issues, I want to reassure the medical profession that nothing underhand is envisaged in this regard. If the Minister for Finance had his way I would not be advocating this course at all because of the prospect that there might be some cost involved in the payment of specialists. There might be, but I would like to be able to spend much more money on employing an additional quota of consultant orthodontists who are badly needed in our health board structure.
With reference to Senator Robinson's observations, I see considerable structural changes. For example, we could see within the dental profession specialities in terms of dental education. The education of the population at large in dental care, dental hygiene and oral care is at a very low ebb. There has been a considerable improvement in the past ten or 15 years and one of the first things I would say to the new council is to consider that. Some of the millions of pounds which we spend on expensive oral surgery arise out of the neglect which my generation suffered. My experience of dental care was related to the war years. I was born in 1935. My dental care consisted of rather rudimentary treatment in the City Hall in Cork under a local dental officer who did his best but had a very attenuated role. Things have changed in that regard. I see the practice of dentistry and the specialities relating to it concentrating on education, training and care. That, in itself, is work of enormous benefit to the community, related to diet, to nutrition and to people's primary care of their health. It may be that we will have specialisation in that area in the future.
I plead with the House not to press me on the amendments in the context of being no more and no less than a layman, a politician who has to make a value judgment of a highly subjective nature about the merits of amendments advanced to him. In the heel of the hunt I do not get any pleasure from saying I will not accept an amendment. If I saw merit in it I would accept it. I do not see merit of a compelling nature in these amendments.
Just a further point of clarification on an aspect which has not been touched on yet. I was going to raise this in the context of section 30 but the Minister strayed to section 30 and, with your indulgence, a Leas-Chathaoirligh, the point is a question of interpreting sections 29 and 30 together.
The Minister emphasised that the provisions of section 29 are enabling, and that the council may decide to establish a register of dental specialists and it would need the consent of the Minister. On the face of it, the wording does appear to be enabling. The word "may" is used and there is "with the consent of the Minister". But when you look at section 30 it is not quite so clear that it is just enabling. Section 30 provides an entitlement to be placed on the register. Section 30 (1) says:
"Subject to the provisions of this Act, the following persons who comply with the conditions specified in subsection (2) of this section, shall be entitled to be registered in the Register of Dental Specialists...
I was going to suggest when we came to section 30 that it might be better to clarify that, if it is genuinely going to be enabling, by the addition of some such phrase as "should such register be compiled" to make it perfectly clear that the entitlement is a conditional entitlement only if such register were to be recommended by the Dental Council. Otherwise a person who satisfied the conditions of the further subsections, who was qualified in that way could say, "I am entitled to be on this register of specialist dentists. I require the council to come forward with this register of specialist dentists. I am going to court and will look for a mandamus on it.” The answer would be that the wording is “may” but we have had a number of cases where “may” in a statute is interpreted in the context of “shall”. It is not a clear case of that here, because there is the additional requirement of the consent of the Minister, but the Minister has made it clear that he would be willing to consent to the establishment of such a register. Therefore it would be necessary, if it is to be a genuinely enabling provision, that there be some qualification to section 30 to make it clear that the entitlement is only dependent on the Dental Council with the consent of the Minister for the time being, having decided that it would be in the best interests of the profession or of dental care that there be such a register. That would require some amendment to section 30.
I should like to follow Senator Robinson on that point and perhaps narrow down this discussion to the question of the degree of autonomy. I might say in relation to the Minister's remarks about the making of regulations by the council, I completely agree with him that the drafting is clumsy and quite inappropriate in that regard. The Minister said in his last intervention that in regard to this matter the council have, and I quote him, "an absolute power not to do so". I join with Senator Robinson in questioning whether under the Bill that is the true legal position. Not only is there the problem of possible appeals to the courts under section 30 but there is, of course, the general power of the Minister under section 15. Whereas it can be said no Minister is likely to use this power, it is quite clear from section 15 that no power of the council, no discretion of the council is absolute. This gives rise to a certain degree of worry. In this regard I would join Senator Robinson in asking the Minister to look at section 30 between now and Report Stage and remove all danger of this circumstance whereby the Oireachtas having put "may" into a statute with the clear intention of it being discretionary that the courts then interpret it as being without discretion. If the Minister could, at the same time, tell us here that it would be beyond the wildest dreams of his ministerial imagination that any of his successors would use section 15 to compel the council to act under section 29, he would remove some, though not all, of the misgivings that we have.
I will bear in mind the two points made by Senator Robinson and Senator Dooge in that regard. The essential point I would make about section 30 is, of course, that it is applicable on a post-registration decision. The register has to be set up in the first instance. Under section 29 the council have to establish a register. Following the establishment of the register, then the question of entitlement comes into play. Section 30 may be slightly ambiguous. I will be prepared to have a look at that because it has the general preamble "Subject to the provisions of this Act..." It may be that to allay any fears I could consider "Subject to section 29" if one wanted to be quite specific or "Subject to the provisions of section 29". I will have a word with the parliamentary draftsman and my advisers in the Department of Health regarding section 30 so that that is explicitly clear between now and Report Stage.
Will the Minister put his hand on his heart in regard to section 15?
I do not have a heart at this stage.
Amendment, by leave, withdrawn.
Amendments Nos. 15 to 20 are similar to amendment No. 14 and they may be discussed together.
In the light of the discussion in the past hour, I shall not move the amendments.
Amendments Nos. 14 and 15 not moved.
Section 29 agreed to.
SECTION 30.
Amendments Nos. 16 to 18, inclusive, not moved.
Government amendment No. 18a:
In page 16, lines 29 to 37, to delete subsection (5), and to substitute the following subsection:
"(5) A person to whom a decision under subsection (3) of this section relates may, within the period of two months, beginning on the date of the decision, apply to the High Court for cancellation of the decision and, if he so applies, the High Court, on the hearing of the application, may—
(a) declare that it was proper for the Council to make the decision, or
(b) cancel the decision and direct the Council to register the name of the person making the application, or
(c) cancel the decision and—
(i) direct the Council to make a new decision, or
(ii) give such other directions to the Council as the Court thinks proper.".
Amendment agreed to.
Section 30, as amended, agreed to.
Section 31 agreed to.
SECTION 32.
Government amendment No. 18b:
In page 17, lines 41 to 49, to delete subsection (6) and to substitute the following subsection:
"(6) A person to whom a decision under subsection (4) of this section relates may, within the period of two months, beginning on the date of the decision, apply to the High Court for cancellation of the decision and, if he so applies, the High Court, on the hearing of the application, may—
(a) declare that it was proper for the Council to make the decision, or
(b) cancel the decision and direct the Council to register the name of the person making the application, or
(c) cancel the decision and—
(i) direct the Council to make a new decision, or
(ii) give such other directions to the Council as the Court thinks proper.".
Amendment agreed to.
Section 32, as amended, agreed to.
Section 33 agreed to.
SECTION 34.
Question proposed: "That section 34 stand part of the Bill."
This is an important section in so far as it deals with the general power in regard to education and training. It is written in very much more general terms than sections 38 to 44 of the 1928 Act which deal with the same function. I would like to ask the Minister how will the Dental Council operate in regard to education and training. Will they operate completely through the mandatory committee under section 13 (2) or will they exercise certain functions other than through the committee on education and training? Secondly, I would like to ask the Minister what change will there be in regard to education and training? There are now dental boards of some type which have a concern here - I forget their names for the moment. I would like to know, in practice, what will be the change? My third question is, what will be the relationship of the Post-Graduate Medical and Dental Board which exists under another statute in relation to the Dental Council and the mandatory committee on education and training of the Dental Council?
I share the view of the Leader of the House that this is an important section in the Bill. It specifically obliges the council to satisfy themselves that all the courses of dental education and training are adequate and suitable. There is a retention power, of course, given to the council, the council having the overriding power of determiregistration nation of the work of the committees and that is important. The other major change in this section is that it transfers the educational function in dentistry to the Dental Council from the Medical Council, who exercise that function under the Dentists Act, 1928. Therefore, if we pass this today, it will make dentistry a self-governing profession here as it became in the UK in 1957. That is of considerable importance in relation to this section. With regard to the other questions Senator Dooge asked, I have not an immediate answer to them at this stage, but I will bear them in mind for Report Stage.
I wonder if, in fact, these things should well be left to the new educational and training committee. We have now boards of examiners in regard to dentistry which are statutory. These will be no longer statutory and I would like to know if, in fact, any decisions have been made with regard to whether the new educational and training committee set up under section 13 (2) will act directly with the internal examining boards of the training authorities. Have there been any discussions on that?
Will the Minister say if this new Bill will make provision for the introduction of dental hygiene in the schools? If that is the case very definite standards of treatment should be agreed and an agreed training course of three to four years should be undertaken before any licence is granted. This would be essential in order to ensure that from the start a high standard of quality of service is provided. The training of dental hygienists is important because it will be their duty to give a dental health education programme to the community who must be made aware of the prevention of disease rather than trying to deal with it afterwards.
This section is a very important one even though we may have put a lot of emphasis on other sections. The Minister told us his age and spoke of the service he had in Cork in his growing years. It is our business now to see that attention is given to the prevention of disease and perhaps in the years ahead we may not need specialists, consultants or dentists.
This is a most important section. Perhaps in looking at the Bill many of us did not put the emphasis on it that we should have put on it. I do not think the people who made representations to me put sufficient emphasis on that section either.
I appreciate the point made by Senator Honan. In fact, there was not a great deal of discussion about this section in the various discussions we had. In reply to Senator Honan and Senator Dooge, the council have a very clear power devolved on them in relation to total control by the council of the practical knowledge requirements and the clinical experience required at examinations for the primary qualification. Equally, on the post-graduate side they have major powers. They must as a council be fully satisfied. They will, admittedly, transfer on a subsidiary but holding basis the work to the training education committee but at all times they will have power to run that show and I have no doubt that they will do so effectively. That power under section 34 is very considerable and is all-embracing and the section was a very difficult one to frame. It is the best the parliamentary draftsman could do, in my view, because of the general nature of the role and functions of this section.
The point I should like to raise here has regard to post-graduate education. It is probably quite inadequate to mention mere post-graduate education in this particular context. Post-graduate education is not defined in the definition section of the Bill. It could be interpreted in two ways. There is a narrow meaning for post-graduate education: where it is formal post-graduate education, taken relatively soon after primary qualification. There is also the other form of post-graduate education known widely as continuing education which does not come within the narrow meaning and is only included if we interpret post-graduate education in a broad way.
In these days of rapidly changing technology, continuing education has become of vital importance. This mid-career retraining, this type of training in which people in professional practice come back in order to study a new development, must, of course, be a vital factor in the educational training of our professional workforce in dentistry. As I say, it may well be that we could accept that continuing education is covered in the term "post-graduate education". I ask the Minister, in view of the great importance of continuing education for the upgrading of the dental workforce as developments go on, whether it would not be appropriate that we should put it beyond all question, as it were, and lay emphasis on continuing education, either by inserting here in section 34 or else in the definition section, a phrase that would read "post-graduate including continuing education" or "post-graduate and continuing education". I think it would help to remove all possible doubt on this point and, equally, it would be flagging the importance of continuing education which is something we can never emphasise too much.
I will consider the matter on Report Stage. I think I will have much difficulty in so doing because I am rather loath to cut across the functions of the Post-Graduate Medical and Dental Board established under the Medical Practitioners Act, 1978. These functions are pretty specifically defined as, in section 40 (a), "to promote development of post-graduate, medical and dental education and training and to co-ordinate such developments." I would be reluctant to embroil myself in cutting across that specific function. Admittedly the board have entitlement under that section to advise me on all matters relating to the development and co-ordination of post-graduate medical and dental education training. I suppose section 37 should really be read in conjunction with section 37 (3). It enables the council to specify the specialist training body which the council will recognise, that is, for the purpose of completion of satisfactory specialist training. I will consider on Report Stage the point made by Senator Dooge in relation to continuing education and training, but at this Stage I probably would find myself in some considerable difficulty lending a definition to that concept at this stage.
I appreciate the difficulty the Minister would have here. That leads me on to the next, and possibly the final point, I have on this section. That is the question of the Post-Graduate Medical and Dental Board set up under section 40 of the Medical Practitioners Act. I raise the question whether in fact, when this Bill is being enacted which makes the Dental Council independent of the Medical Council, the position of this particular board should not be taken account of? We have a board set up here under that Act which sets up the Medical Council. If we are to act in the post-graduate and continuing dental education field through this Post-Graduate Medical and Dental Board set up under the umbrella of the Medical Council, I wonder if there should not essentially be an amendment here so that this board should either be a board appointed jointly by the Medical Council established under the 1978 Act and the Dental Council set up under this Bill or whether there should be a separate post-graduate dental board set up under this Bill. It seems there is a bit of the umbilical cord which has not been taken away.
Not having any professional awareness of that situation, far be it for me to interfere with the umbilical cord and find myself in dire trouble. I hold the view that the council inevitably should have powers relating to post-graduate as well as graduate training. That would be the broad thrust of my response because subsection (3) of section 37 relating to specialist registration states:
The Council shall from time to time determine, in relation to each speciality recognised by it, the body or bodies which the Council shall recognise in the State for the purpose of granting evidence of satisfactory completion of specialist training.
The council have an enabling power to specify the qualifications granted in the State for registration. I will consider the point raised by Senator Dooge on Report Stage. I am rather reluctant to get embroiled in the provisions of the Medical Practitioners Act, 1978. There are considerable problems there of cross-reference. It is a difficult one at this stage.
I appreciate that and indeed I suggest to the Minister that it is a matter of such complexity that it might be looked at between now and the discussion of the Bill in the Dáil rather than have a hurried examination of the matter now. I would like to stress that we should look at section 40 of the Medical Practitioners Act, 1978. There is interweaving here. For example, we have the Bill here which attempts to give autonomy to the dental profession and yet it is a body established by the Medical Council who have the function of promoting the development of post-graduate dental education. They have the function of co-ordinating such development. The coordination of post-graduate dental education is in the hands of a body which is subsidiary to the Medical Council and established under the same statue. It seems to me that there is a degree of interpenetration here which may be inevitable, and I suggest that the Minister should look at it. If he can solve it between now and Report Stage in this House all to the good, but he should look at it before the Bill is dealt with on Committee Stage in another place. We can only hope that the remainder of this separation process does not take us the 56 years it took us to go from the 1928 Act to the 1984 Bill.
I take the point made by the Senator. It is true to say that in Chapter II of the Medical Practitioners Act the life and functions of the post-graduate medical and dental board seems to be put into it on a separate basis. The functions of the Medical Council are quite separately dealt with in Chapter I. I will have a sharp look at Chapter II and see if there could be one encompassing new provision, if necessary, to do the interlocking and keep that umbilical cord intact.
Question put and agreed to.
Sections 35 to 37, inclusive, agreed to.
SECTION 38.
Question proposed: "That section 38 stand part of the Bill."
Section 38 is another key section. It is the primary section of Part V which is in regard to the fitness to practise. It has already been discussed fairly well on Second Stage. I will merely summarise now by welcoming the development that any person can take an initiative in regard to this, the careful procedures laid down here, the prima facie examination by the Fitness to Practise Committee, the report of the council and the provision of the appeal to the High Court which is now being made more flexible.
In this regard, there is just once specific point I would like to raise. I hope the Minister will forgive me in this if once again I draw a parallel with the UK legislation. I think it is always useful to look at UK legislation but I am no advocate of slavishly following it. They make specific statutory provision for the appointment of a legal assessor whereas we content ourselves with giving authority to the Dental Council or to the Fitness to Practice Committee to take such advice, including legal advice, as it may think fit. There is a difference between these two, namely under the British system, the legal assessor is not only legal adviser to one side. They have the provision whereby there can be a legal assessor to examine the legal position in regard to a particular point whose findings are made known to both sides. I would like to ask the Minister whether the institution of such an assistant of the court was considered. It may well have been considered and rejected for a good reason. If it has not been considered in depth, is the Minister prepared to examine it between now and the final Stages of this legislation?
I would be very concerned if I were to amend the provisions in that respect or even to contemplate the question, although it is raised appropriately enough by the Leader of the House. Essentially it is a transposing of the sections of the 1978 Act, and that particular fitness to practise procedure has been the subject of detailed High Court analysis and decision. I would hold the view that as against the UK position, — I am speaking here from memory — our High Court would regard it as the definitive assessing authority and, as such, would regard itself as having the definitive authority to advise the parties. The requirement of the legal assessor in that setting would be offensive to the prerogatives of the High Court.
I may not have described properly the functions of this legal assessor. Far from complicating the position and far from taking in any way from the High Court, he would operate in the same way as in the United Kingdom, by the useful function of avoiding a mistrial at the disciplinary hearing. In other words, his main function would be in regard to rules of procedures, to avoid difficulty.
We must be rather careful here when we are dealing with the case of an individual on trial for his professional life. Special precautions are taken in the criminal law in regard to murder cases when people are on trial for their lives. Equally, too, every care must be taken when a person is on trial before a professional tribunal for his professional life. It seems to me that person is entitled to every advantage, to see that the procedures are correct and that full advantage is given to him.
I would just like to ask the Minister if he would take a look at section 28 of the Dentists Act, 1957. It may well be that it would add nothing to the smooth running of the disciplinary procedures under the present Bill and it may well be that it is not precluded under this Bill.
My essential and instinctive reaction when the point was made by the Leader of the House was that there may well be — and I would be very surprised if there would not be — a considerable rebuttal of such a prospective procedure being intruded at a preliminary stage into the Act by the High Court. As I recall, the 1957 UK Act does not contain the ultimate prospect of formal court proceedings. On preliminary statement of case, and, to use a layman's phrase, at the point of the production of the book of evidence and the procedures contained in the statement of offence, it would be facilitating if there were a legal assessor available to both sides. Effectively, he would have to be an officer of the court. Under our judicial system and under the High Court appeal system we had within the Act that the court would regard that as an intrusion into that ultimate section. That is the original point.
The Minister is not correct in saying there is no appeal. There is an appeal to the Privy Council in Britain and ultimately I suppose to the House of Lords. The position is that if such an assessor was to be appointed I would envisage that he would be appointed by the President of the High Court so that it would not be a detraction.
I accept the Privy Council role in regard to the UK situation, but I am conscious that that particular fitness to practise structure and that disciplinary procedure have been the subject of enormous extensive pleadings in the High Court and indeed in the Supreme Court over a number of years relating to the medical profession. In the case of law reports on it, that particular procedure was never suggested by the High Court as being a possible procedure. Perhaps it would be a useful system. It might declare some redundancy among the plethora of junior and senior counsel who work on both sides of the cases in those instances. It would be illuminating to know how many fees one would save on the pleadings of such cases.
It seems that this was in some way — and maybe I am wrong here — a new departure and that section 38 was giving High Court powers to a committee. I am just wondering if this is something new. I should also like to ask who would impose the fine of £800 or when is it done? Perhaps the Minister would comment on those two questions.
My hearing is not the best.
Are we giving High Court powers to a committee and, if so, is this a new departure? Also, who imposes the fine that is mentioned of £800?
It is an area fraught with enormous constitutional danger. I am rather reluctant to get embroiled in it. The power unquestionably is there. Perhaps Senator Dooge may recall, I do not, the constitutionality of that section being challenged. When I was a trade union officer I used to examine the rules of trade unions who had power to fine their members and the constitutionality thereof was frequently called into question with good cause in the context of the rights of natural justice. I therefore do not wish to open that particular can of worms but it is something to which the Senator has correctly drawn the attention of the House and one which ultimately on a test case would have to be decided. I have the assurance of the parliamentary draftsman that it is in order and I readily transfer legislative responsibility to him for the time being in that regard, but it is a very open question.
Question put and agreed to.
SECTION 39.
Government amendment No. 18c:
In page 21, lines 46 to 49, and in page 22, lines 1 to 7, to delete paragraph (a), and to substitute the following paragraph:
"(a) The High Court, on the hearing of the application, may—
(i) cancel the decision, or
(ii) declare that it was proper for the Council to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Council to erase his name from the register concerned or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of his name in that register shall not have effect, or
(iii) give such other directions to the Council as the Court thinks proper,".
Amendment agreed to.
Section 39, as amended, agreed to.
SECTION 40.
Government amendment No. 18d:
In page 23, lines 21 to 29, to delete paragraph (a), and to substitute the following paragraph:
"(a) the High Court, on hearing of the application, may—
(i) cancel the decision, or
(ii) declare that it was proper to make a decision under this section in relation to such person and (as the Court may think proper) direct the Council to attach such conditions as the Court thinks proper to the retention of the name of such person in any register maintained under this Act, or
(iii) give such other directions to the Council as the Court thinks proper,".
Amendment agreed to.
Section 40, as amended, agreed to.
Section 41 agreed to.
SECTION 42.
Government amendment No. 18e:
In page 24, lines 35 to 39, to delete paragraph (a), and to substitute the following paragraph:
"(a) the High Court, on the hearing of the application, may—
(i) cancel the decision, or
(ii) confirm the decision and direct the Council to erase the name of such person from the register, or
(iii) give such other directions to the Council as the court thinks proper,".
This section is somewhat out of tandem with section 38 in its manner of dealing with the issue which it raises. The power to determine under this section appears to lie exclusively with the council without reference to the Fitness to Practise Committee. I wonder would it not be better if the power to deal with breaches of the criminal code, which this section appears to deal with, were not included as a further subsection under section 38? It seems to be a rather cumbersome way of dealing with breaches of the criminal code.
The second thing that worries me about this section is that it refers merely to offences which can be tried on indictment, in other words, indictable offences. It does not deal with summary offences. There are many offences which could conceivably be committed by a practising dentist which could be far more serious than an indictable offence. Take, for instance, the offence of having excess alcohol in the blood when driving or a repeat of that particular offence, or an offence of being cruel to an animal, which again can be dealt with and tried summarily without the necessity for trial before a judge and jury. I should like the Minister's response to those two points.
Admittedly, nobody would wish to have the spectacle of a dentist being subjected to a series of summary convictions, for example, for drunken driving. But the imposition on the dental profession should be no greater than the imposition on the citizenry at large. Therefore, that particular section relates quite clearly to conviction by the courts on indictable offences on a jury basis. The general acceptance is that for the ordinary summary convictions, that particular section would not apply. That is only fair and reasonable. Technically speaking, an unfortunate dentist could find himself in dire trouble on a series of convictions for parking offences or any other offences. I do not think they are as unworthy a profession as to merit that kind of stringency. Accordingly, there is a clear restriction to indictable offences. This section again, has been the subject of considerable litigation and had the intensive scrutiny of the High Court.
Amendment agreed to.
Section 42, as amended, agreed to.
Sections 43 to 45, inclusive, agreed to.
SECTION 46.
Amendments Nos. 19 and 20 not moved.
Section 46 agreed to.
Section 47 and 48 agreed to.
SECTION 49.
Question proposed: "That section 49 stand part of the Bill."
I have already raised on the definition section the question of bringing forward the definition of the "practice of dentistry". I raised on the same section the point as to whether it was necessary to define the profession of dentistry in addition to defining the practice of dentistry.
I can assure the Leader of the House that we are tabling an amendment on Report Stage in this regard.
I am grateful to the Minister.
Question put and agreed to.
SECTION 50.
Amendment No. 21 not moved.
Section 50 agreed to.
SECTION 51.
Question proposed: "That section 51 stand part of the Bill."
As a matter of curiosity, is the raising of the fine from £100 to £800 strictly in line with inflation?
I should like to raise a matter which is not dissimilar. I am amazed that the Minister did not decide to provide for a continuing offence in respect of the matter referred to in section 51. A fine is for the commission of an offence as such. The would-be wisdom in providing, as is provided in certain sections of various Acts creating offences, that there should be a fine for a continuing offence for each particular day that the offence continues to be committed would be particularly appropriate by virtue of the nature of the offence which subsection (2) of section 51 creates.
I am constrained by my colleague, the Minister for Justice, in this regard, that the current maximum fine on summary conviction is £800. This is the current limit whether it relates to inflation or not. I think it relates more to the vagaries of the Department of Finance than anything else in terms of collecting money.
We are lucky it is not £8,000.
We are lucky it is not £8,000.
Question put and agreed to.
SECTION 52.
Question proposed: "That section 52 stand part of the Bill."
This section is concerned with the coverage of those who are protected against the general prohibition on the practice of dentistry. I should like to ask the Minister if there is a substantial change in this regard. There is coverage, of course, of auxiliaries who were not covered up to now. Is this section substantially different from existing legislation?
There is no major change in this regard.
The Minister is satisfied now that all groups that should properly be covered are now covered?
Yes, including students.
There is one further question which arises under section 52 (4). This subsection exempts the time for the institution of summary proceedings in respect of an offence committed under this section. I am wondering why in this particular case the Minister extended it to two years, bearing in mind that the time limit has not been extended under other sections of the Bill which would appear to be more appropriate for extension. For instance, in section 67 the time limit for the institution of summary proceedings has not been extended. Why has the time limit been extended to two years under this section?
The Dental Board made representations to me that very often more than six months have elapsed between the committing of an offence and the matter being brought to the attention of the board. The section enables proceedings to be instituted within two years, as the Senator has rightly pointed out. The Petty Sessions (Ireland) Act would normally permit proceedings to be instituted within only six months from the commission of the offence. Therefore, the two year limit is inserted here and it seems that we are entirely within our rights in so doing.
Question put and agreed to.
Section 53 agreed to.
On the question of the business of the House, we may anticipate that there will be substantial debate on sections 54 to 56, to an extent that would make it unlikely that it would be completed within the next 13 minutes — the only time available. From the point of view of coherence of debate, I am wondering if in fact we might devote those 13 minutes towards a more leisurely sos rather than have an interrupted debate on section 54?
That makes sense.
Progress reported; Committee to sit again.
Sitting suspended at 5.20 p.m. and resumed at 6.30 p.m.