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Select Committee on Finance and General Affairs díospóireacht -
Tuesday, 20 Jul 1993

SECTION 15.

I move amendment No. 29:

In page 12, subsection (1) (a), line 31, to delete "or attempting to drive".

This is another controversial section. Lest what I am about to say is open to misinterpretation later or the Minister chooses to put a different interpretation on it——

Not likely.

The Minister almost managed it but not quite in terms of hit-and-run accidents before lunch. The Minister must do everything possible to prevent people feigning injury or illness and being brought to hospital following an accident thus avoiding detection for driving over the drink limit. This has been a major loophole to date. There is no doubt that the faking of injury has allowed people to avoid the full rigours of the law following accidents involving drink driving.

Apparently, however, there is concern among the Irish Hospital Consultants Association in relation to this matter and the Minister needs to put his views on the record to allay any fears they have. I am referring to a press report over the weekend by a health correspondent, Eilish O'Regan, which requires a response from the Minister. If there is genuine fear among hospital doctors that the Minister's proposals in section 15 are inoperable, or will in some way undermine the doctor/patient relationship or current practices, particularly in casualty departments of hospitals, the Minister should look again at this section without losing his intention of getting at the person who is faking following an accident.

The Minister should respond to the hospital consultants' concerns, because the doctors believe that to demand samples could place them in a serious ethical and legal dilemma and they have made that point clearly. What will happen if a consultant turns down a request from a garda to take a sample? Will the consultant have to reply in writing setting out the reasons for his or her refusal, or can he or she say no on the spur of the moment behind the curtain in the casualty ward? To what extent are the consultants protected if they refuse to allow gardaí, with the designated doctor, to take a sample from a patient who may or may not be injured, the extent of whose injuries have not been ascertained within the three hour rule?

The Minister has been asked to clarify the medical and legal responsibility for the patient, and whether that responsibility will be transferred from the consultant who admits the patient to the medical practitioner who comes to take the sample at the behest of the local gardaí investigating the accident. Will there be a transfer of medical and legal responsibility or will the consultant have to refuse or grant permission for a urine or, more likely, a blood sample to be taken in these cases? We need clarification on this. My amendment does not pretend to be too scientific, but it begs for clarification in straightforward English of section 15 (1) — a formula which appears under one guise or another several times in the Bill — which states:

Where, in a public place, an event occurs in relation to a mechanically propelled vehicle in consequence of which a person is injured, or claims or appears to have been injured, and is admitted to hospital and a member of the Garda Síochána is of the opinion that, at the time of the event,—

(a) the person was driving or attempting to drive, or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive), the mechanically propelled vehicle,

We know the Minister is trying to say that attempting to, or having intent to, is as big a crime as actually driving. Is the Minister satisfied that the phraseology, or parliamentary legal speak, in the section is clear?

I understand what the Minister is seeking to do in obtaining specimens from those who are in hospital. I agree, however, that some clarification is required. I am sure I read the same reports as other Deputies about the medical profession having some difficulty with this. I am sure it is a difficulty in perception rather than in fact. It would be helpful if the Minister explained in a little more detail what the exact implications are in relation to the designated medical practitioner as opposed to the consultant in the hospital. Although there seems to be a little ambiguity about that, I am supporting the Minister's objectives in this section.

I am grateful to the Deputies for their general support for this provision. Before I go into some technical detail on the amendment, perhaps I should say that the primary concern is to close off a loophole which allows drunken drivers to escape. Like all of my colleagues, I am amazed at what can be attributed to consultants in the media from time to time. The primary aim of this legislation — and of all Members — is to reduce the load on hospitals arising from accidents which take place on our roads. The number of accidents, 10,000 each year, is an enormous burden on the management of our hospitals and I am often surprised, therefore, that the reaction to provisions we try to introduce — I am not saying that we are always perfect — is sometimes a little over the top when we ask for further support in detecting people who are escaping the net.

I am prepared to consult and consider alternative methods. If there is a better way of securing the same result in consultation, I am prepared to accept that. These consultations will take place between now and Report Stage and I will return to that matter then.

I do not believe that Deputy Doyle's amendment is necessary. The wording of subsection (1) (a) is tied in with the substantive offences provided for in sections 10 and 11. The offence in section 10 relates to a person driving or attempting to drive a mechanically propelled vehicle and the offence in section 11 relates to a person "in charge of a mechanically propelled vehicle . . . with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it)". If the person in charge is driving or attempting to drive the vehicle the offence under section 10 is applicable.

Section 15 (1) (a) deals with all of the circumstances covered by both sections 10 and 11. It relates to a person who was driving or attempting to drive, or in charge of with intent to drive or attempt to drive. Sections 10 and 11 are based on the provisions of the 1978 Act. These have been tried and tested and have survived that time without any problems. I indicated on Second Stage that I was not proposing to change those sections which have proved successful. That is basically what is happening here.

I understand we will be coming back to this section on Report Stage. Will the Minister accept that it is the only serious area of contention in the Bill other than the one we discussed this morning?

A point I omitted to make in my initial contribution was that there is some concern that doctors may be charged with bodily assault for taking a blood specimen from someone who is semi-conscious and subsequently objects to the sample having being taken when they could not give permission.

I am not concerned about those who have feigned injury in order to avoid arrest. They are the people the Minister is trying to get to. If the patient is genuinely injured, is the doctor who takes the specimen, or the consultant who gives permission for the specimen to be taken, open to a charge of bodily assault on the injured person or the victim?

I do not think so. The provision allows the consultant or the doctor in charge in the hospital at that time to make the decision about whether that choice should be exercised or not.

In writing or orally?

I have not thought about that.

It could be important subsequently if there was a court action.

My view, and it is not based on any legal work I have done on this matter, is that it should be all right, if it is given orally. However, I want to consult with the medical authorities and the various hospital administrations on these matters so that we may have the best possible provision. The idea is not to allow people to feign injury or to escape the true rigours of the law for crimes or otherwise which they have committed. I will return on Report Stage with the completed work for that provision.

Will the consultant or physician in the hospital be required to justify the decision not to allow the blood or urine sample to be taken, or will the doctor's word be accepted? In other words, will the doctor have to defend on medical grounds his or her decision to prevent a blood or urine sample being taken in the hospital, or will the doctor's decision be accepted without question?

The doctor's word will be accepted.

The Minister stated his intention to look at these matters between now and Report Stage. Deputy Doyle referred to the letter to the Minister, as reported in the newspapers, from the Irish Hospital Consultants Association. Two matters have been referred to in it and I want to ensure that the Minister will bear these matters in mind between now and Report Stage. The letter, as reported in the newspapers, states:

If a consultant turns down a request from a garda to take a sample will the consultants have to give their reply in writing, setting out their reasons for refusal.

Presumably this is one of the matters the Minister will consider and reply to later. The report also adds:

Mr. Smith has also been asked to clarify if medical and legal responsibility for the patient will be transferred from the consultant who admits the patient to the medical practitioner while the sample is being taken.

It was arising out of that second comment that I made my first comments. With the best will in the world, legislation tries to place enforcement, and the provisions behind enforcement, in a way which will help to reduce accidents of all kinds. That, in itself, is and should be beneficial to our hospital system. There are circumstances where we would expect to get fair consideration for points we make about closing off loopholes.

The second comment in trivial. Nevertheless, it can be discussed if there is a basis for discussion. I can say no more at this stage, apart from the fact that these discussions will take place and we will find a resolution to that and other problems. If the issue is as substantive as it appears to be, although I do not think there is any foundation for that, we will try to resolve it.

How can the Minister describe a point made by a reputable organisation as "trivial", and then say it is a matter for serious consideration?

I said "if it is substantive", and I cannot understand how it is. However, we are prepared to talk about the issue. There is a difference.

The word "trivial" was used.

We will wait to see how this matter will be considered on Report Stage.

Is this a new power for the Garda?

Will the practice where a designated doctor can enter hospitals to take blood or urine specimens from those involved in traffic accidents be a two tier one? Will there be a difference between private and public patients? With regard to the private patient, will there be a notice on the door, "Do Not Disturb" or "No Admittance"? Will the nurse in the public ward, say. "you can put the needle in him because he is a medical card holder"? I am serious about this matter and I am not taking away from the integrity of the medical profession. I am putting a question I was asked at the weekend and which I could not answer. I suggested that a professional opinion was required.

In other words, the Deputy is not as good a medical practitioner as he is a lawyer?

That is right and I had to accept it. I would like to know the answers to these questions. I do not have the same reservations as I had on the amendment we debated earlier. Some people have maintained that we have become a three tier society, never mind a two tier one. Perhaps this is a question which does not apply in these circumstances, but it could arise in the future. If I am wrong in my interpretation or naive in what I am asking, so be it. However, I am highlighting the possibilities. In my opinion, this legislation gives the consultant or doctor who is in charge of the hospital or the patient far reaching powers. These people only have to say, "you shall not", and the decision is final.

Deputy Connolly has hit the nail on the head as far as section 15 is concerned. Subsection (4) states:

. . . . it shall not be an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his admission to hospital, the person comes under the care of a doctor and the doctor refuses, on medical grounds, to permit the taking or provision of the specimen concerned.

Medical grounds are medical grounds and it will be a matter for the discretion of the doctor concerned to say whether or not the specimen should be taken. It is easy to count the number of tiers we have in the health services and it is no secret that there is a world of difference between the level of care and medical attention given to people in private care and those in public care. I do not think we have to stretch our imagination too far to see that there will be few specimens taken in the Blackrock Clinic or its equivalents but there may well be many specimens taken in the casualty departments of public hospitals. Deputy Connolly has raised a relevant issue, that we are possibly creating law which in its application will apply differently to those who can afford private medical care and private wards in hospitals to those who will be in public wards or who will be found in the waiting rooms in casualty departments.

We should dispose of the amendment before having a general debate on the section, which we have practically had.

Amendment, by leave, withdrawn.
Amendments Nos. 30 and 31 not moved.
Question proposed: "That section 15 stand part of the Bill."

The discussions which will take place between my officials and representatives of the medical profession in the context of this provision will be based on the issue of a uniform and fair basis with no distinction between private and public patients and no distinction between patients in casualty wards or elsewhere. Clearly we all want to see the fair operation of this provision. The question of taking specimens by force or from unconscious patients does not arise and there will be no interference with medical practice in the hospitals. The doctor in the hospital is in charge and will make the decision as to whether this provision is to be put into effect as far as a particular individual is concerned. I give Members an assurance that my discussions with the representatives of the medical profession or others will be based entirely on ensuring that is the case.

With regard to this issue of public versus private, would I be right in interpreting this as a situation where a person, who possibly has drink taken, would feign an accident and hop into the ambulance? In such a situation the person is usually taken to the casualty department of a public hospital. Therefore, we might be overexaggerating the "do not disturb" sign on the door scenario. I do not think the ambulance would be heading straight to the Blackrock Clinic or to St. Vincent's Private Hospital. It is more likely to be going to the casualty department of a general hospital.

That is a fair point.

Question put and agreed to.
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