Health (Miscellaneous Provisions) Bill 2014: Committee and Remaining Stages

I welcome the Minister of State at the Department of Health, Deputy Kathleen Lynch.

Sections 1 to 5, inclusive, agreed to.
SECTION 6

Amendments Nos. 1 to 3, inclusive, are related and may be discussed together.

I move amendment No. 1:

In page 7, between lines 11 and 12, to insert the following:

“(iii) by inserting the following paragraph after paragraph (g):

“(ga) physical therapist;”,”.

While there is much with which to agree in the legislation, we are putting forward these amendments - I will speak to all three of them if that is okay; therefore, we do not have to be repetitive - because we seem to be out of kilter with about 100 other countries in using terminology like "physiotherapist" and "physical therapist". It seems to be the advocated position of the Society of Chartered Physiotherapists that this should be the case. They are interchangeable and one and the same in Northern Ireland and Britain, as well as in approximately 100 countries around the world where they are affiliated to the World Confederation of Physical Therapists.

We should bring ourselves into line with them, particularly given the proximity of Northern Ireland, in order that people can have absolute confidence in the situation. The lack of ownership of this title gives confusion to society as regards what results can be expected from treatment by physical therapists, on the one hand, or physiotherapists, on the other. As people are entitled to certainty in that regard, we must ensure the appropriate standards are adhered to.

The Minister of State and her officials no doubt have been in contact with the Society of Chartered Physiotherapists in preparing this legislation. We think this is an ideal opportunity to bring back that into the kind of arrangement I have outlined, which is being followed in many other countries. It seems that under certain EU regulations and obligations we ought to define these terminologies as one and the same, as is the case in other member states.

I can appreciate that other people who are now beginning to use that title - heretofore there was a lack of ownership or definition - may have an issue with this proposal. Therefore, transitional arrangements may need to be put in place for these people to bring themselves up to the appropriate standards. They should have an opportunity to do that in order that they can continue their livelihoods. We should come up with an appropriate term for those who do not have the same qualifications, earned after three or four-year third level programmes, for what in all other countries are known as physiotherapists and physical therapists. Such qualifications would give people the confidence to which they are entitled.

As this is the industry standard in many other countries, there is no reason we should not move to that standard also. Grandfathering arrangements with appropriate training may be required to cater for people who are currently using that title but who wish to be under the internationally required standard to be consistent with using it elsewhere. I am sure we can cross that bridge when we come to it, if the Minister of State were to agree to the amendments.

I also support the amendment to safeguard the title, which is very important. It was only in recent months I learned that one does not need a qualification to use that title. There is a public safety issue involved. In my innocence, I assumed that if a person said he or she was a physical therapist or a physiotherapist, he or she was qualified and had completed the necessary qualification process. Friends of mine have completed many years of study at college in order to be thus qualified.

We need to safeguard the title because there is a public safety issue involved. It is welcome that Ireland will soon hold the presidency of the World Confederation for Physical Therapy. Dr. Emma Stokes, a lecturer and researcher in Trinity College Dublin, is the sole candidate for the position. It is remiss, however, to come from a country that does not have protection of title. I hope therefore that the Government will accept this amendment or find a way to bring it forward.

I am not opposing these amendments to be obstructive.

They seem to be prompted by the long-standing view of the Irish Society of Chartered Physiotherapists which seeks to have the title “physical therapists” confined solely to registrants of the profession of physiotherapists. The amendments would not achieve this. The matter can be dealt with by regulation under the existing legislation. Each registration board will be charged with making three by-laws, one of which will be in relation to qualifications, which is the protection that both Senators seek. The issue of the title is anything but straightforward, given that Ireland is unique in having for over 20 years more than 350 physical therapists practising here. These practitioners have always used the title “physical therapists” and many have pursued programmes to degree standard on the basis that they would qualify to practise as physical therapists. Any decision reached on the matter should be reasonable and proportionate when ensuring protection of the public. Last month, the Minister, Deputy Leo Varadkar, in accordance with the Act, consulted with the newly established Physiotherapists Registration Board about options to address the issue. That board is due to report to the Minister in early 2015 and once the Minister has had the opportunity to consider the advice and, if necessary, consult more widely he will make a definitive decision. I hope this gives some degree of comfort to both Members.

Amendment put and declared lost.
Section 6 agreed to.
Sections 7 to 31, inclusive, agreed to.
SECTION 32

I move amendment No. 2:

In page 21, between lines 16 and 17, to insert the following:

“(2) Section 79 of the Principal Act is amended by inserting a new subsection (6) as follows:

“(6) The title ‘physical therapist’ shall be deemed to be one and the same title as ‘physiotherapist’ and the use of either or both titles is restricted to those professionals with the appropriate standard of qualification who are registered as physiotherapists under this Act.”.”.

Amendment put and declared lost.
Section 32 agreed to.
SECTION 33

I move amendment No. 3:

In page 21, after “deceive,”,” on line 19, to insert the following:

“and by amending subsection (a) by inserting the word “or” at its end and by inserting the following after pararagh (a):

“(aa) contravenes section 79(6),”,”.

Amendment put and declared lost.
Section 33 agreed to.
SECTION 34

I move amendment No. 4:

In page 24, between lines 10 and 11, to insert the following:

81F. Should any person registered by the Optical Registration Board, in the course of an examination, discover a medical condition that would require medical treatment, or arrive at the suspicion that there exists a medical condition that may require treatment, that person shall—

(a) inform the patient of the presence of that medical condition, or the suspicion of the existence of a medical condition, and

(b) recommend that the patient consult with a registered medical practitioner.”.”.

This is the first of a series of three amendments I am offering which deal with three critically important issues, namely, patient safety, saving public money and attempting to prevent the development of any kind of closed shop. We are blessed to have a phenomenal cohort of professionals in this country. I speak about the fabulous nurses, doctors, dentists, physiotherapists, opticians, medical specialists, ophthalmologists and social workers who keep the show on the road. The show is not well organised and was not rationally constructed, and the thing that saves our bacon is the quality of the people who work in it.

I have occasion to see many people whose lives have been saved by opticians. Approximately 50 to 100 people get a primary cancer in the eye. They may present to their doctor or eye specialist, but may typically present to an optician with vision change merely for a check-up. In this case, an eagle-eyed optician doing an appropriate examination may find evidence of an eye tumour which could be fatal but which is usually cured if treated early. My hat is off to our colleagues who have this critical role. They are sometimes the first persons to diagnose a person with diabetes, tuberculosis or circulatory disease. In some parts of the world, they are the first to diagnose a person with HIV. These conditions can all present with abnormalities of the eye, and very often the first person the patient presents to is not a doctor, ophthalmologist or GP but an optician. We must acknowledge the critical role they have had and I would not wish to demean this.

In this amendment I seek to ensure that a classic medical situation of falling through the cracks is less likely to occur. With this amendment, an optician examining a patient who finds something that might indicate an underlying medical condition, would not have, as has been widely circulated to Members of the House, an obligation to refer the patient – we never said that – but an obligation to inform the patient and suggest the patient seek medical attention. I cannot see why it should be controversial. Some would say it is gilding the lily because this obviously happens anyway. In the overwhelming majority of cases it happens, and all I am saying is that it should be enshrined as part of the code of professional practice of opticians, optometrists, formerly known as dispensing opticians, and the various associated specialties.

I understand the Minister of State needs to consult. I have said before that she is an extremely courteous contributor to the business of the House and I would never seek to stop her from doing necessary consultation. All we are asking is that it be codified in law and regulation that this is expected of people. It should be uncontroversial.

There is a certain amount of understandable confusion about the issue. Ophthalmologists are the medical doctors who pursue senior postgraduate training in eye diseases. They are usually, but not always, eye surgeons. Opticians and optometrists are part of that other very esteemed profession who do not have a medical qualification but who go directly into training to look after optical and ocular issues.

This is not something I thought up on the back of a bus. The ophthalmologists approached me expressing their concern that the new regulations under which CORU and the regulatory boards could act would, perhaps, be strengthened in the case of the opticians if this requirement were inserted. People may ask why we are not suggesting it for everybody else. It is because the amendment relating to the opticians has come up now. A similar amendment may be relevant to some of the other fine specialties. The opticians are different in that they tend to act entirely appropriately but more independently than some of the other specialties to which people are often referred by doctors, dentists or nurses. I ask the Minister of State to consider this uncontroversial amendment. It would strengthen what is a very good Bill and would help our very fine cohort of opticians to continue to play their critical but unsung role.

We often hear about how great it is to get one's eyes tested or to get one's contact lenses, but we should remember that opticians save a bunch of lives also.

Does the Minister of State wish to speak now or would she like other Senators to come in? Others have indicated that they would like to speak.

I just need to check something.

I am not disagreeing with Senator John Crown. I hate to disagree with him, the man is a medical genius. However, I have some concerns about this amendment and I cannot support it. However, I think the Minister of State should certainly take on board the point made. We may be talking about the question of training opticians in a different way. We may have to introduce a different code of practice, but to put an onus like this on opticians at this point would create the potential for negligence where people possibly do not have the qualifications or know-how to be able to identify everything the Senator suggested. At the age of 18 years, my late mother benefited from the quick thinking of an optician. She lost an eye because of cancer and, thankfully, did not succumb to that disease until 54 years. Senator John Crown has shown such leadership with regard to cancer research and treatment and I bow to his prowess. An issue could arise if, as the Senator rightly pointed out, the ophthalmologists are the people who ultimately need to see these patients if they are at risk. If opticians have the potential to let something slip between the system, this is an issue of training and codes of conduct. It needs to be training first, followed by a code of conduct, followed by statutory responsibility rather than just statutory responsibility if it is the case that people do not have the required training beyond checking a patient's sight for Specsavers or whoever. I hope Senator John Crown does not think I am not supportive because I am, but I cannot support the amendment in its current form.

I agree with Senator Marc MacSharry. The amendment is extremely restrictive. It refers to any person registered by the Optical Registration Board, in the course of an examination, discovering a medical condition that would require medical treatment. The people about whom we are talking would have the competence to deal with certain aspects such as an infection or some aspects of a problem that might be identified. Under this provision, even if they had the competence and the experience of dealing with a medical condition, they would now be obliged to refer them on. The CEO and the secretary of the association are in the Visitors Gallery. They are not in favour of this amendment. In respect of the drafting of this legislation, the Department and Minister of State have held widespread consultation. The association was fully briefed, is very familiar with and in favour of the draft legislation and is not in favour of the amendment. The amendment is overly restrictive.

Practitioners in this area must operate within their skills, knowledge, competence and experience. This will be dealt with. First, they must be registered and there also will be a code of practice with which they must comply. If they are in breach of that, there is a disciplinary structure to follow. In fairness to Senator John Crown, the way the matter is drafted is well meaning but it involves a huge obligation. Regardless of how small the medical condition identified, under this amendment, the patient would automatically have to be referred to somebody else even where the person has the competence to deal with it. I will oppose the amendment on that basis.

I support the amendment. Senator John Crown has spoken very persuasively based on his renowned expertise in his field. If there are symptoms of cancer, diabetes about which one hears a lot, and circulatory diseases or abnormalities such as HIV which were mentioned by the Senator, I hope the professional in this case would not just tell the patient he or she needs a new pair of glasses but that he or she needs further attention because some of these conditions are serious. Otherwise, a diagnosis that should have taken place will be delayed and the condition will get worse. We are talking about overcrowding in accident and emergency departments and crowds of people in GPs' offices waiting to see a health service professional. We are actually engaged in the transaction. It would be most valuable if a professional could just tell a patient that he or she needed to attend to this as well. It would keep a person in the system because I do not know if these conditions can cure themselves. Senator John Crown is the expert, but if the conditions are pre-existing and we can get persons on to the next stage and get them back to full health, why would we turn down this amendment?

This is a well intended amendment; however, I also see reason to reject it. It is very important that if a condition of concern is detected that a correct referral takes place, but referring people back to the GP who may not even have the right equipment to determine that and creating another waiting list is not sensible. We are trying to have a good public primary health care system. I know the HSE is doing its best to achieve this. There are 781 optometrists in Ireland. They are the primary health care providers as regards people's eyes. WHO research has shown that 80% of blindness is preventable. It is prevented by regular eye examinations and it is the duty of the optometrist to detect eye diseases and to refer for appropriate treatment. The waiting lists for most eye diseases are horrendous and the probability of a patient losing vision by the time he or she is seen is very high so we do not need to make those lists any longer. This is where optometrists can help.

While I accept that Senator John Crown's amendment is well meaning, if it were carried, it would add to the already very long waiting lists. He is proposing that if persons present with a condition, professionals must refer them to their GPs straightaway and tell them to get medical attention. This defies logic. GPs are not equipped with the machinery to measure pressures. They do not have machines such as slit lamps, which is a microscope for examining the front and back of the eye. There are another six vital pieces of equipment that GPs do not have. In England, Wales and Scotland, there is a direct referral system from the optometrist to the appropriate department within a hospital. This eliminates unnecessary referrals. Optometrists are not claiming to be doctors but they have all completed a four-year Bachelor of Science degree in optometry and complete professional qualifying examinations before they can practise.

We also know that we are living with an ageing population and it is predicted that visual impairment will increase by 50% in the next 20 years. As we all know, as we get older, we can see the power of our sight deteriorating. It is in the public interest that unnecessary referrals are avoided because they will just further clog up the system. In the interests of correct care, which is the intention of the amendment, why not do as they do in England, Wales and Scotland and have that direct referral system to the appropriate expertise or consultant as opposed to going back through the GPs which is an unnecessary loop? I thank the Acting Chairman for giving me the opportunity to address the amendment.

In fairness, I do not think the amendment makes any reference to general practitioners; the reference is to registered medical practitioners. I presume the intention is to refer to the appropriate speciality as opposed to the general practitioner. However, I am not in a position to support it. It is well meaning but is a narrow amendment. Codes of conduct, codes of practice and professional competencies are already in place which probably cover the intention of the amendment. I see one or two unintended consequences if we were to accept it, one of which is that it would restrict practice immediately. To use my own profession as an example - I am a psychiatric nurse - nobody would have thought 15 years ago that the profession of psychiatric nursing or nursing in general would have expanded to fill the role it has now. We would not have imagined the roles of nurse prescriber, registered clinical nurse manager or psychiatric nurse specialist. The profession has expanded in a way we could not have imagined. If there were provisions in the Nursing Act that precluded that kind of expansion, it would lead to all kinds of trouble. We will see emerging competencies in all professions as we move forward. It would be wrong of us to seek to restrict this.

My experience of opticians is that they are very careful people and they refer patients on. Clearly, as the first point of contact for people in terms of eye care, they are experts. My experience - not personal experience - is that when a difficulty is encountered people are advised to go further, wherever that is. I take the amendment in that vein. For all the reasons expressed by various speakers, I cannot accept the amendment. I hope I can explain the reason, but I take it in the spirit in which it was offered. I believe it would introduce unnecessary and inappropriate provisions into primary legislation and would apply to the optical profession when the Bill is enacted. The amendment proposes to effectively resurrect certain provisions of the Opticians Act 1956 which the Bill will repeal and to insert them into the Health and Social Care Professionals Act 2005. It would impose in primary legislation requirements on members of the optical profession to inform patients of suspected diseases or medical conditions, and to recommend that patients so informed consult with a medical practitioner. I do not take it that the Senator is saying that necessarily would be a GP. I understand that perfectly.

I believe the existing robust regulatory provisions would adequately address these issues. There are three by-laws that the optical registration board will have to make when it is up and running, one of which is about conduct and ethics. That can be fleshed out at that point. The provisions in the Bill relating to the future regulation of the optical profession were subject to extensive consultation. A departmental working group on subsuming the Opticians Board into CORU, which informed the drafting of the legislation, comprised representatives of the board, including ophthalmologists, as well as members of CORU, the Irish Association of Dispensing Opticians, the Association of Optometrists of Ireland and the Department's professional regulation and primary care units. Separately, the Department met and corresponded with representatives of the Irish College of Ophthalmologists on the proposed legislative provisions. I am pleased to see evidence of increasing co-operation among all the eye professionals. For example, the HSE national clinical programme for eye care is aspiring to increase interdisciplinary activity among professions in order to deliver a cost-effective, safe, high-quality eye care model for patients in the community. That is what Senator Fidelma Healy Eames was talking about when she mentioned the clinical care pathway.

I understand care pathways are being agreed by all stakeholders. The model envisages an ophthalmic referral process in the community for sight-threatening eye diseases such as glaucoma, age-related macular degeneration and cataracts. This would ensure management was provided for as long as possible by optometrists within the community setting and that only those with referable eye disease were directed into the secondary and tertiary setting. This would free up clinic time to treat those patients most at risk of sight loss sooner in order to achieve better outcomes for patients in terms of preventing vision loss, improved quality of life and independent living.

The Bill proposes to transfer the regulation of the optical profession from the 1956 Act to the more modern regulatory model set out in the 2005 Act. The model is reflective of the current realities experienced by today's eye care professionals. By the end of next year, the 2005 Act's regulatory model will apply to 16 health and social care professional areas. The Act comprises title protection provisions linked to a registration scheme. It also provides for codes of professional conduct and ethics to be adopted by by-law and a fitness to practise regime similar to that applying to medical practitioners, nurses and midwives. Under the 2005 Act, any health professional, including an ophthalmologist, optometrist or dispensing optician, who did not recommend that a patient consult with an appropriate health professional about a suspected disease or health condition would be guilty of professional misconduct and would be liable to disciplinary sanction, including cancellation of his or her registration. That is a fairly robust and severe penalty in terms of what Senator John Crown wishes to achieve. I agree with him that it is hugely important, but the Act already provides for this. Such omissions would be in breach of the code of professional conduct and ethics that is adopted by each registration board. Each code is framed in accordance with statutory guidelines set by the Department and CORU, and its objective is public consultation prior to its adoption by by-law. The codes require registrants to act within the limit of their knowledge, skills, competence and experience and to refer on patients or service users when necessary. I believe they do this already.

The code of professional conduct and ethics for the optical profession is currently being drafted by the inter-optical registration board, which includes on its board two eye doctors. Members of the interim board will be appointed to the statutory board when this is enacted. For these reasons, I believe the amendment is unnecessary and would not fit with modern legislation or professional regulation. I am also concerned that it would result in optometrists and dispensing opticians being treated differently from other professions registered under the 2005 Act.

I thank the various contributors. I had not realised that so many people in this Chamber were such extraordinary experts in the arcane details of the optical specialties. I say well done all round. Much research has gone into this.

I remind the Minister of State of two facts. First, it was the Irish College of Ophthalmologists that approached me. It was medical doctors - the people who deal with diseases of the eye - who were unhappy with this. It was because neither they nor I wanted to make it look as though there was any question of our trying to protect a closed shop for them that we never said "should consult an ophthalmologist"; it was "consult a medical practitioner". I agree with other speakers that there is a craziness in the way referral patterns work in Ireland. We are mandated to go through general practice at times when it is highly inappropriate to do specialist-to-specialist referrals, but that is the way it is. Therefore, we kept it broad and said patients should see a medical practitioner. That is the reason we did it.

The second fact refers to people acting responsibly within the scope of their practice. It was the power that the registration boards have to define the scope of the practice which led to the concerns of the ophthalmologists that a group of people who are not medical doctors could make a decision as to what was and was not appropriate within the realm of medical diseases for a patient to be referred to a doctor.

That is why we said it happens 99.99% of the time. Nobody is perfect, whether a doctor or an optician. There are things we have to do legally and this is a reasonable provision to put in regulation. In no way does it limit the scope of anyone's practice.

It potentially could.

I will take a question from the Senator.

The Senator is not in the Chair.

I ask Senator John Crown to continue his contribution.

It in no way limits the scope of anyone's practice because, by definition, if somebody felt it was outside the scope of his or her practice, he or she would not be referring in the first place. I do not get this argument. There is more than a little whiff of turf to this. It is a simple, minimal amendment that enhances patient safety and hurts nobody. I cannot understand why it is being treated so controversially. I will press the amendment.

The amendment refers to the discovery of a medical condition that requires medical treatment. That means a practitioner would be required to make a recommendation that the patient take a second opinion for every medical condition discovered. Even where the practitioner has competence to deal with the matter, he or she is obliged to refer the patient to someone else. This is why I have a problem with the amendment. It imposes an unnecessary obligation even if the practitioner is competent. I cannot accept the amendment.

The Minister of State rehearsed the list of people who are consulted. There were no patients. As a patient, I would be very pleased were this amendment implemented. It is like our other difficulty with the junior certificate. The 14 and 15 year olds I know were not asked whether they hate the idea that their work should be independently assessed. The matter is focused on the teachers. This issue is also about insiders. The patients would like this to happen but they do not appear to have been consulted.

My own experience and, I think, the experience of the majority of people is that opticians do this. They are professional in their approach and if they spot something they believe requires further investigation, they usually advise the patient accordingly. However, I think the legislation is robust enough to provide that if an optician spots something but does not inform the patient, it can be considered a dereliction of duty. Significant penalties can be imposed in such circumstances, including removal of registration, which has the effect of taking away a practitioner's livelihood.

The amendment would also impose greater obligations on this group than we have imposed on others. We should not do that. Senator Sean D. Barrett is correct but when one goes for an eye sight test or to purchase new contact lenses, I am not certain that "patient" is the correct word. This is probably the only profession that allows for that sort of equality of status in respect of how we interact with practitioners. Any person who has an opinion on this, whether patient or client, can respond to the public consultation. It will be interesting to hear their responses and I am sure most people who go to an optician hope they will leave with nothing more than a new pair of glasses. In the event that something else occurs, I know from the experience of friends that they were informed when something required further investigation. As it happens, this advice saved them a great deal of grief. The current provisions are sufficiently robust and we should not impose on opticians, ophthalmologists or any other group of similar professionals an obligation that we have not imposed on others.

The reason we are imposing it at this stage is that the Bill deals with that specialty. I was not in the Oireachtas when the original legislation was introduced. The ophthalmologists brought this to my attention because, as the Minister of State pointed out, there is a unique professional-client among opticians. Interactions with other specialties follow a professional referral. Somebody can self-refer to an optician and by-pass all the medical expertise. This is why we believe this relationship requires the provision.

I could be wrong, but I believe we have provided in other legislation for legal mandates on certain people to report certain things even though common human decency and professional standards dictate that a reasonable person with the relevant professional qualification would act appropriately in the absence of a mandate. We have provided for mandates in areas such as domestic spousal and child abuse. I love it that I have so much attention from the Civil Service. My mother would be very proud today. I will not be raising any more issues but will press the amendment. For the record, the Irish College of Ophthalmologists felt that its members had not been adequately consulted or given sufficient opportunity for interaction. That is why it asked me to raise these issues.

Representatives of the college met the previous Minister for Health, Deputy James Reilly, and I will meet them in two weeks time. There will be consultation. It is not that we are deaf to what people say. Equally, I do not dismiss the Senator's amendment but we consider the current provisions to be sufficiently robust. I accept the Senator's point.

Amendment put:
The Committee divided: Tá, 4; Níl, 38.

  • Barrett, Sean D.
  • Crown, John.
  • Heffernan, James.
  • Mullen, Rónán.

Níl

  • Brennan, Terry.
  • Burke, Colm.
  • Byrne, Thomas.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • D'Arcy, Michael.
  • Gilroy, John.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Moloney, Marie.
  • Mooney, Paschal.
  • Moran, Mary.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • O'Brien, Darragh.
  • O'Brien, Mary Ann.
  • O'Donnell, Marie-Louise.
  • O'Donovan, Denis.
  • O'Neill, Pat.
  • Power, Averil.
  • Sheahan, Tom.
  • van Turnhout, Jillian.
  • Walsh, Jim.
  • Whelan, John.
  • White, Mary M.
  • Wilson, Diarmuid.
  • Zappone, Katherine.
Tellers: Tá, Senators Sean D. Barrett and John Crown; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.
Section 34 agreed to.
Sections 35 to 40, inclusive, agreed to.
NEW SECTIONS

I move amendment No. 5:

In page 30, between lines 13 and 14, to insert the following:

"41. Subsection (1) of section 18 of the Principal Act is amended by substituting "be set by the Minister" for "be set by the Council".".

I welcome the Minister of State and her officials and acknowledge their very active role in the proceedings.

There is a tendency for bureaucracies to get bigger, there is a tendency for bureaucrats to self aggrandise, there is a tendency for organisations to define new roles for themselves to start hiring all manner of people involved in public resources, in lobbying and engagement. There is a tendency to think that the headquarters of the organisation could, perhaps, be upgraded a little. Very often in these organisations the money for that comes exclusively from the practitioners: the opticians, the optometrists, physiotherapists, radiographers, radiotherapists who have to pay it. Every time their retention fee goes up, there is a high chance that, in turn, will represent an increased revenue burden on either the Exchequer, if they are paying the fees of the person in question, or the individual, patient, citizen who goes to see them.

I would have thought the Minister of State would have approved of this. It gives the Minister a little more power, just to make sure that the group of people who are deciding on the needs of their bureaucracy and also the people who are deciding what the revenue stream for it should be, that there is an extra level of checks and balances on the fees set. Across the many registration boards and CORU, the council, there would be people with many diverse roles and there may well be some who would see merit in hiring additional persons about the necessity for whose employment there may be some controversy. All I am saying is there should be an extra level of scrutiny and that it should come from the Minister.

I thank the Senator. Despite the fact that I know this amendment is so well intentioned as to give politicians more powers, I am not certain it is the type of power we should have. I am opposing the amendment. It runs counter to the trend in modern Irish legislation to give health regulators responsibility for financing their statutory public protection functions through the annual fees by registrants, as the Senator has pointed out.

The key principle underpinning such legislation is that regulators should be independent, self-funding and free from political interference. For that reason the Health and Social Care Professionals Act 2005, the Medical Practitioners Act 2007 and the Nurses and Midwives Act 2011 all provide that fees for registration and retention of registration are set by the regulators themselves. Each regulator is required to ensure it has sufficient funds to perform its functions under the relevant legislation. While the bulk of the annual running costs of the health and social care professionals and its registration boards, known collectively as CORU, are being funded by the Exchequer, the intention is that the CORU regulatory system will in time be self-funding when all registers are up and running. This is the case with the other health regulators responsible for regulating doctors and nurses.

The Health and Social Care Professionals Council is obliged to manage its financial affairs in a prudent manner and there are a number of supervisory mechanisms in place. The Department of Health is responsible for the oversight of the corporate governance of the council and the registration boards established under the Act. It also holds the council to account in its performance of its functions and ensures adherence to Government policies relating to staffing numbers and their pay and conditions. Each year when its accounts have been audited by the Comptroller and Auditor General they are presented to the Minister for Health, laid before the Houses of the Oireachtas and published.

The current legislation strikes the right balance between independent regulation and political oversight. To take away the council's power to charge registration fees would, I believe, be a retrograde step and would undermine CORU's ability to perform its legislative functions and to achieve its objectives to protect the public. I greatly admire the Senator's confidence in the political system.

I am a democrat at heart.

Is the Senator pressing the amendment?

I am. I remind the House of those other great examples of modern Irish legislation where similar independence was granted such as Irish Water. In the spirit of that inspiration I will press the amendment.

Amendment put:
The Committee divided: Tá, 15; Níl, 25.

  • Barrett, Sean D.
  • Crown, John.
  • Daly, Mark.
  • Healy Eames, Fidelma.
  • Heffernan, James.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Murchú, Labhrás.
  • O'Donovan, Denis.
  • Power, Averil.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • D'Arcy, Michael.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Moloney, Marie.
  • Moran, Mary.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • O'Brien, Mary Ann.
  • O'Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.
  • Whelan, John.
  • Zappone, Katherine.
Tellers: Tá, Senators Sean D. Barrett and John Crown; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.

I move amendment No. 6:

In page 30, between lines 13 and 14, to insert the following:

“41. Section 32 of the Principal Act is amended by the substitution of the following for subsections (6) and (7):

“(6) If any member of the Council is of the opinion that a registration board has submitted to the Council a draft bye-law that may be likely to result in competition being prevented, restricted or distorted, and if this draft bye-law has not been supplied to the Council with a copy of the Competition Authority’s written opinion as to whether the draft bye-law is likely to result in competition being prevented, restricted or distorted, the Council shall—

(a) submit the draft bye-law to the Competition Authority and seek its opinion as to whether any provision of the draft bye-law would, if the bye-law were made, be likely to result in competition being prevented, restricted or distorted, and

(b) not approve the draft bye-law until after the Council has received a written opinion from the Competition Authority.

(7) A registration board shall ensure that as soon as practicable after a bye-law of the board is made it—

(a) is published in such manner as the board may determine, and

(b) is submitted to the Minister for laying before each House of the Oireachtas.

(8) Subsections (4) to (6) of section 95 apply with the necessary modifications to bye-laws submitted to the Minister in accordance with this section as if they were regulations made by the Minister.”.”.

I will be very brief.

The charge has often been laid at the door of professional regulatory bodies that they have tended to operate closed shops. Such a charge has frequently been laid at the door of the medical professions, but in truth, the biggest impediment to jobs in medicine in Ireland is not the professional bodies but the agencies that create the jobs. It struck me that the discussion of this amendment provides a good opportunity to make sure this issue is dealt with authoritatively. The regulatory bodies have a unique role in that they straddle a number of different areas of responsibility in terms of recognising who can practise a profession and determining how they should practise it. As such, this is something that is deserving of some degree of oversight to make sure that there is no self-serving behaviour across the range of specialties and in medicine too, which is not part of this particular Bill. We should ensure measures are not introduced that are restrictive in terms of the recognition of training qualifications, experience, grandfathering clauses and so forth, which would have the effect of creating closed shops. This, in turn, would have the effect of driving up prices, decreasing services and restricting access for bright young people who want to join the professions, and would ultimately work to the detriment of patients and clients.

Any member of a profession can report a matter to the Competition Authority without the necessity for a provision to be included in legislation. Comprehensive legislation relating to the Competition Authority is already in place. This Bill deals with health care, and I do not believe we should now impose an additional condition here when the issue is already dealt with adequately in other legislation. Any person, whether a member of the council or of the general public, can report a matter to the Competition Authority and it is up to that organisation to deal with such a report. This amendment, however, requires the Competition Authority to give an opinion on a matter, which is unnecessary and will only create more bureaucracy as well as delays in the process of putting rules and regulations in place. Therefore, I am not in favour of this amendment.

In this area of public policy, the new entrants are the shining stars. We always say how much we appreciate young people and so forth. Unfortunately, however, the incumbents invariably find new ways to keep new entrants out. Regarding Senator Colm Burke's point, the Competition Authority is a fairly barkless watchdog in these matters. There are so many examples in Ireland where the incumbents rig the market. We have a labour market of insiders and outsiders, with lots of unemployed young people, which never worries the insiders, who invariably block access. When we set up a body to draw up regulations it should focus on professional standards, quality and so forth, not on keeping out new entrants. However, regulatory bodies tend to gravitate towards the latter type of regulation. The Competition Authority has issued mild warnings in this regard, as demonstrated with regard to buses and taxis in the past. Nobody stays awake at night wondering what the Competition Authority will do. The authority will not do anything in this area unless we provide for it in legislation. One of the best ways to keep incumbents in any profession on their toes is to provide a constant stream of new entrants, who improve the professions by raising standards and bringing new ideas, but invariably we tend to go for the opposite approach. That is why Senator John Crown's amendment is very appropriate. We should see it applied to many other areas of professional activity, because competition is not the norm and the Competition Authority is slow to intervene unless it is invoked, which is what this amendment does.

I cannot support this amendment. I am loath to disagree with my friend and colleague Senator Sean D. Barrett, who has argued that the Competition Authority is a barkless organisation, but we saw the teeth of that organisation in the recent negotiations on a new GP contract. The ruling from the Competition Authority in that regard was far from barkless.

Senator Colm Burke made reference to creating unnecessary bureaucracy, and there is also the potential for an unintended legal consequence in that when we prescribe in law that somebody must do something, that generally excludes great numbers of other people from doing it, by inference. The Senator has already pointed out that it is open to any member of the public to draw an issue to the attention of the Competition Authority. If we were to prescribe in law that it was up to a member of the council or the board to do so, the danger is that this would be interpreted as meaning that members of the public should not. This is an issue worth considering.

This amendment would, in certain circumstances, permit an individual member of the health and social care professions to require the council to seek an opinion from the Competition Authority on a draft by-law to be made by a registration board. It would delay the approval of that by-law until such an opinion is received. All by-laws made by the registration boards are subject to public consultation and approval by the council. Interested bodies are also consulted. The Bill requires registration boards to submit to the Competition Authority by-laws relating to codes of professional conduct and ethics. There is, however, nothing in the legislation to prevent a registration board or the council from agreeing to seek an opinion from the Competition Authority concerning any other by-law if it is felt that such an opinion is necessary.

I am also concerned that this amendment could delay indefinitely the making of an important by-law. Critically, there is no provision in the amendment that the council may proceed with the approval of the by-law if the Competition Authority does not give its opinion before a date to be specified. For these reasons, I am opposing this amendment.

The argument Senator John Crown has made in favour of this amendment is probably one of the reasons it should be opposed. What if, for instance, there was someone on the board who was particularly obstructive and who demanded that every by-law be submitted to the Competition Authority? We have seen that type of obstructive behaviour in the past. Clearly, it is open to anyone - not just a person on the board, but a member of the profession or a person who wishes to become a member - to refer any issue to the Competition Authority if he or she deems it to be anti-competitive. There is nothing in the legislation to stop someone from doing that; nor is there anything in the Bill that would stop the board itself from seeking the opinion of the Competition Authority. The difficulty with the amendment is that there is no specified time limit. Furthermore, it could be used as a mechanism to obstruct, which is why I oppose it.

I would presume that the Competition Authority, like all other branches of our extraordinarily efficient public service, would deal with any such query rapidly and that there would not be any delay in addressing a legitimate query with the regard to the possibility of the operation of a closed shop.

What if the Competition Authority did not have an opinion? That is an option too. It is a possibility that the authority would not have an opinion on a matter.

One would presume that the absence of an opinion implies the absence of a judgment that a provision is anti-competitive.

Amendment put:
The Seanad divided: Tá, 17; Níl, 24.

  • Barrett, Sean D.
  • Craughwell, Gerard P.
  • Crown, John.
  • Cullinane, David.
  • Daly, Mark.
  • Heffernan, James.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Norris, David.
  • Ó Murchú, Labhrás.
  • O'Brien, Darragh.
  • O'Donovan, Denis.
  • Power, Averil.
  • Quinn, Feargal.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • D'Arcy, Michael.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Moloney, Marie.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • O'Brien, Mary Ann.
  • O'Donnell, Marie-Louise.
  • O'Neill, Pat.
  • van Turnhout, Jillian.
  • Whelan, John.
  • Zappone, Katherine.
Tellers: Tá, Senators Sean D. Barrett and John Crown; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.

I call on the Leader to amend the Order of Business.

I propose an amendment to the Order of Business to allow the debate to continue until 5.50 p.m. to enable the House to conclude its work on the Bill.

Is that agreed? Agreed.

Sections 41 to 44, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Senators Marc MacSharry and John Crown for the interest they have taken in this and for tabling amendments on behalf of those who lobbied them. I thank everyone who contributed to this very technical Bill as it is a small but important piece of legislation relating to public safety and certain categories of professionals. This legislation will serve us all in future.

It is not that the people we now hope to register with the new board were previously failing to do their jobs. Clearly, they were doing good, professional jobs but it is essential that the title they practise under be protected. We are all conscious of this and I thank all contributors for their co-operation in the past few hours to ensure this legislation will be enacted.

I thank the Minister of State for coming before this House and for the manner in which the debate was handled. I ask that she reflect on the points made by Senator John Crown and others regarding amendments that I understand she could not accept. We all want optimum regulation to ensure quality of care but the Minister of State should consider prioritising counselling, psychiatry, psychology and suicide prevention. One can call oneself a professional therapist after a weekend course in areas relating to diet, weight and other matters and this does not serve us well. The Minister of State might consider this as her next legislative move in this area.

I thank the Minister of State and the Department for bringing forward this legislation. I also thank the Department for the consultation that took place prior to this. It is important that there be consultation prior to bringing forward legislation - as many people as possible should be involved in the process. This legislation is evidence of this. I thank everyone who contributed to the debate, particularly those who tabled amendments. I may not have agreed with all the amendments but it is important that each area be examined carefully and amendments force us to do so. I thank Senator John Crown and my colleague on the other side of the House, Senator Marc MacSharry, for their amendments as they contribute to the debate.

Question put and agreed to.