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Select Committee on Health díospóireacht -
Wednesday, 17 Oct 2018

Children's Health Bill 2018: Committee Stage

The meeting has been convened to consider the Children's Health Bill 2018. The purpose of the Bill is to provide for the establishment of the functions and board of Children's Health Ireland and the transfer of certain employees, properties, rights and liabilities to Children's Health Ireland and the National Paediatric Hospital Development Board. I welcome the Minister of State with special responsibility for mental health and older people, Deputy Jim Daly, and his officials to the meeting and I thank them for their attendance.

There are a number of related proposed amendments and groupings of amendments that arise and it is proposed to group the following amendments: amendments Nos. 1 and 2, 3 and 4, 6 to 8, inclusive, and 9 and 10. All other amendments which are not grouped will be discussed individually.

Section 1 agreed to.

Amendments Nos. 1 and 2 are related and may be discussed together.

I move amendment No. 1:

In page 6, line 9, after “section 5” to insert “, known as the Kathleen Lynn National Children’s Hospital”.

I appreciate, as some people have said, that this is not the appropriate place to legislate for the name of the hospital, but if we do not do it here, then I am not sure when we are going to have the opportunity to be able to move this. My colleague, Deputy Ó Snodaigh, has been pursuing the building of the hospital for a long number of years, and the naming of the hospital after Kathleen Lynn.

There are many good reasons that it would be appropriate to name the hospital after Dr. Kathleen Lynn. She was a founder of St. Ultan's Children's Hospital. She was a woman who worked extensively with children and women, in particular, both in and outside Dublin. As we commemorate 100 years since some, but not all, women got the vote, it would be appropriate to remember an Irish woman such as Dr. Kathleen Lynn, who was a suffragette, a volunteer in the Irish Citizen Army and who also participated in the Rising in 1916.

I cannot think of another person who would be more appropriate. My understanding is that the initial name that was chosen is not now going to be used. We ask that consideration be given to this name. I note that historians such as Mr. Martin Mansergh and others have backed this call. It is not just a call coming from my party, but from many quarters. I have yet to hear a good argument against naming the hospital after Dr. Kathleen Lynn.

I do not propose to accept amendment No. 1. The legal name of the new body under this Bill is Children's Health Ireland and this broad name reflects the object and functions of the new body, which are broader than just a hospital as the Minister mentioned during the Second Stage debate. It is considered that it may be useful for the new body to also have an operational or brand name. The Department is engaging with the Children's Hospital Group and arranging for a new process to agree an operational name that would be endorsed by Government. This is yet to begin. While ensuring wider consultation, the new process is expected to acknowledge the work undertaken in the previous naming process and the valuable input of staff, patients services users and the Youth Advisory Council. A number of names have already been suggested and these and other names put forward will be considered as part of the process. These names will include, of course, Kathleen Lynn National Children’s Hospital, as put forward by Deputy O'Reilly. The new operational name will be endorsed by Government before it is announced.

Accordingly I do not intend to accept amendment No. 1.

Is Deputy O'Reilly pressing the amendment?

Chairman, at this point I will withdraw the amendment, but I will resubmit it on Report Stage.

For the purpose of the record, I still have to hear some good arguments for not naming the hospital after Kathleen Lynn.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 to 5, inclusive, agreed to.

Amendment No. 2 in the name of Deputy O'Reilly has been discussed with amendment No. 1.

I move amendment No. 2:

In page 7, line 4, after “health”, where it secondly occurs, to insert “, mental health”.

As we have already discussed the amendment, I will withdraw it and resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Section 6 agreed to.
Section 7 agreed to.

Amendment No. 3 is in the name of Deputy O'Reilly. Amendments Nos. 3 and 4 are related and will be discussed together.

I move amendment No. 3:

In page 8, to delete lines 24 to 26.

The purpose of this amendment is to have a discussion about the subsection. The hospital board has a mission, which is to provide paediatric health care to children across the State. It is a mystery to me why the hospital would need to become a member of a company. It seems that it would be operating nearly as a separate entity and this is why I call it into question. I would like the Minister to explain it for me.

We understand the need for the provision for borrowing, but it does seem that this section appears to create nearly a separate entity that would be at arm's length and therefore we have concerns about this section.

I thank the Deputy. The new body will have to have an arrangement with multiple universities, academic institutions and research entities due to its national remit in the education of health care professionals in paediatrics and engagement in paediatric research. The formal arrangements between the universities and the new body will require some corporate identity to be decided. While this is not yet clear, it is considered prudent to allow the new body to become a member of a company subject, of course, as members can see, to the consent of the Minister. The provision also keeps options open for the type of structure that may be required for a body to carry out philanthropy for Children's Health Ireland.

Regarding amendment No. 4, the provision allowing the new body to borrow for current as well as capital purposes is considered useful but as members can see from the Bill it is strictly controlled. The ability of service providers to respond to strategic investment opportunities in the public interest within legal control limits must be seen to be a progressive step in managing hospital facilities into the future. I understand there may be a concern that the retention of this provision will allow this and other Governments to underfund the hospital and exploit the provision by instructing the new body to borrow money for the purposes of providing healthcare services. Nothing could be further from the truth. The new body will be funded by the State as a section 38 agency as the three children's hospitals currently are through a service level agreement reached with the HSE.

The primary driver for a service provider to borrow is to drive better value in services provided to patients in a cost effective and timely manner. This provision allows the board to respond to strategic opportunities or needs as they arise. Borrowing for current purposes could be considered in scenarios where the hospital cannot generate sufficient internal funding resources in the short term to develop a service but is able to demonstrate longer-term viability and an ability to repay. The ability to borrow within controls creates this opportunity. Circumstances in which the new children's hospital would make a case to borrow money or engage in activities that have an element of borrowing could also arise in regard to leasing or licensing of commercial areas or leasing of equipment. This could also encompass investment in a strategic service initiative or expanding operational capacity in a service that has hospital income generating potential such as attracting international patients to avail of cutting edge high technology services or the specialist paediatric expertise and experience that will be available in the new hospital. There is also the need to consider possible scenarios whereby the new body could require the potential to borrow to invest in extending existing services further in order to generate hospital income by providing cross-jurisdictional services, for example, for children from Northern Ireland as part of an accountability framework. Such scenarios would be subject to approval of a business case, demonstrating return on investment with the potential to repay borrowings and generate hospital income.

The Bill allows for proper and fully accountable governance and management within the framework of national policy. It is acknowledged that since the new body will be largely funded by the State, its borrowing would form part of the overall public debt of the State, as assessed by the EU and other bodies and the State must exercise control before such liabilities are undertaken. The Bill therefore includes a provision for borrowing subject to the approval of the HSE, Minister and approval of the Minister for Public Expenditure and Reform and the Minister for Finance. It is therefore considered appropriate to provide for the potential to borrow in the Bill. Accordingly I do not propose to accept amendments Nos. 3 and 4.

The Minister refers to the current children's hospitals and the fact that they operate as section 38 agencies. Do they have the facility that he is seeking to insert in this section, that is, the facility to borrow for current purposes?

St. James's Hospital has that facility at present.

I am referring to the other three children's hospitals. I wish to understand the reason that if the three hospitals do not have this why the Minister of State would seek to introduce it now. The Minister referenced the concern I have but did not address it. It strikes me as problematic that a section 38 hospital, as we are establishing this new hospital, would have the capacity to borrow for current purposes. I immediately see that it gives the facility to underfund the hospital and for the hospital then to borrow. I do not see the need for this provision.

I was trying to future proof the viability of an institution that we are establishing here. That can become part of modern day medical practice. The hospital may want to go into services for the cross-jurisdictional area or it may want to expand an existing service and to treat people from another jurisdiction. It may wish to borrow money to set up that service and the hospital may be able to pay back for that service over time. That brings in a commercial aspect to the viability of the hospital we are establishing. We have precedent there. One could bring it down to the most elementary function, to borrow money to buy a photocopier.

It can pay it back through an operational process. That makes sense for schools and for different bodies. There is nothing new here.

When it comes to healthcare, we are trying to future proof the viability of this and for it not to have its hands restrained to allow it to do that. Tallaght, Crumlin and Temple Street hospitals are not State hospitals. I gave the example of St. James's Hospital having the ability to borrow but the other three are not State hospitals and, therefore, I will have to get confirmation of that.

The Minister of State is trying to fix a problem that does not exist. He talks about this in medical terms but, based on my understanding and my contacts with members of the medical community, doctors are not looking for this. He is trying to fix a problem that doctors do not have. He is giving the hospital the capacity to get itself into debt to borrow for equipment but he is unable to point to an example of a hospital that does not have this facility but cannot purchase equipment. Is he saying that hospitals without this facility cannot purchase equipment or cannot be future-proofed? This is where my difficulty lies. First, I do not hold with the notion that hospitals will get themselves into debt in the first instance. Second, if doctors are not looking for it, and if the problem does not exist in terms of hospitals not being able to buy a photocopier or other equipment, the Minister of State is trying to fix a problem that does not exist. With respect, there are many problems that do exist that could be fixed.

As I understand it, the Deputy's issue is with current expenditure. Am I correct in that?

I am trying to explain to her that current expenditure will refer primarily to service provision. If the hospital wishes to extend its range of services, borrowing may become a part of that. If it can secure income, for example, if it were to go into another jurisdiction and offer procedures to patients from the North of Ireland, paid for by that jurisdiction, it could provide a compelling case where it would wish to borrow the money. The hospital would still have to get ministerial approval and to go through the checks and balances with the Department of Public Expenditure and Reform and the HSE. If we prohibit that possibility in legislation, it can never do it. We are trying to allow for that possibility subject to the controls and whatever.

I appreciate that the Deputy's fear is that this is a way of letting the State stand back from funding day-to-day expenditure. That is not the idea in this regard. The idea is that we do not tie its hands behind its back before it starts to expand or explore a range of service delivery expansion, if it so wishes. If we prohibit that in legislation now, it can never do it and having that facility would be an understandable objective of any medical entity that would be established in the modern age.

With respect, if it can never do it, it will be funded by the State. Is the Minister of State saying that, without the capacity to borrow, the State will not fund innovation and-----

The Deputy can answer that herself. She can look at history. This is to expand new ranges of services, allowing the entity itself to be creative, to modernise and to be progressive, if it so wishes. That is all we are doing. We are not compelling it to borrow money. We are not instructing it; we are only saying if the entity decides and if it clears the checks and balances in the Department of Public Expenditure and Reform, which are significant by any standard, through the Department of Health and the HSE, it can. That is all we are doing here: allowing that in legislation.

I remain unconvinced. I withdraw my amendment and will resubmit it on Report Stage.


Amendment, by leave, withdrawn.
Section 8 agreed.

Amendment No. 4 has been discussed with amendment No. 3.

I move amendment No. 4:

In page 9, line 4, to delete "or current".

Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 to 12, inclusive, agreed to.

I move amendment No. 5:

In page 11, between lines 24 and 25, to insert the following:

"(2) The membership of the board under subsection (1) shall be made up of the following members:

(a) 8 ordinary members and the chairperson, appointed by the Minister;

(b) 1 member, with non-remunerated observer status, nominated by the Irish Congress of Trade Unions (ICTU), appointed by the Minister;

(c) 1 member, with non-remunerated observer status, nominated by Dublin City Council who shall be a sitting Dublin City Councillor, appointed by the Minister;

(d) 1 member, with non-remunerated observer status, who shall be a patient advocate, appointed by the Minister.".

This amendment relates to the board and the inclusion of representatives of the workers concerned. We believe that representatives of the ICTU, which I understand will represent the majority of workers in the new hospital, should have the ability to voice the concerns. We equally believe there is a role for patient advocates and that was underlined by the recent Scally report. He went further and said there should always be two in order that one can act as a support for the other. There is a seat for a Dublin City Council representative on the current board of Crumlin hospital and we would like that to continue. It is to broaden the board and make it as relevant and dynamic as it can be by ensuring that a range of interests, groups and voices can be represented.

I do not propose to accept the amendment. It relates to the appointment process of board members to the board of Children's Health Ireland. As provided for in the Bill, all members will be appointed by the Minister.

Section 13 refers to membership of the board on establishment day - the first board. The Bill has been drafted so that the existing Children's Hospital Group board, a non-statutory administrative board first established in 2013, will become the first board of Children's Health Ireland. This board comprises persons who were either appointed or reappointed in summer 2017. This is a competency-based board and includes some members of the boards of the three children's hospitals, a member from Northern Ireland and a member with international expertise. The board is currently overseeing the complex integration of the three hospitals and transition of existing services into one single body. Retaining that membership will allow the board to maintain continuity, and ensures that the first board will have the required competencies to undertake the leadership role required over the next few years.

It is possible that the proposed amendment is intended to ensure that all boards, and not solely the first board, are appointed under the mechanism outlined therein.

The Bill provides that all board members be appointed by the Minister for Health and, in the interests of securing the necessary skills and experience on the board, board members will be appointed on the basis of competencies, experience or expertise deemed relevant to the body's functions. While all are to be appointed by the Minister, the Bill provides that the board of the new entity will nominate eight out of the 12 board members. In drafting this legislation, we have been conscious of the need to achieve the integration of the three hospitals in a way that respects the values and cultures of each. One such example is the arrangements for appointing board members. Accordingly, the Bill provides for a role for the board in the appointment of board members, as is currently the case in the children's hospitals.

The integration of the three children's hospitals into one new entity is a major change programme, with significant cultural and operational factors. The three children's hospitals coming together have been at the forefront of paediatric healthcare. Each has demonstrated enormous commitment to, and has established a strong track record and a proud tradition in the provision of, healthcare services to children and young people in Ireland. The three hospitals are key stakeholders in this project, and their agreement and support are fundamental to a successful transition.

Looking at the meaning behind the amendments, I am at one with the Deputy that it is important that the board would be cognisant in its work of the needs of its staff and its patients. The Bill provides for the body to be given broadly-worded functions in such a way that provides clarity, authority and certainty in its key roles. One such role is the nurturing and development of staff. Section 6(2)(d) requires the new body to "facilitate, foster and promote, through education and other programmes, the personal and professional development of its employees...".

The new children's hospital is the largest and most complex healthcare project undertaken in Ireland to date. It is recognised that staff may be unsettled by changes to operating and service models and the location of their work and staff well-being is a key consideration during the transition phase and beyond. In parallel with the capital project, the Children's Hospital Group has a comprehensive integration programme under way supporting staff in the transition and integration of the three existing hospitals. Work includes: to develop and deliver the employee engagement strategy and plan, define a list of representative bodies that will need to be engaged with or consulted and define and document the strategy and plan for this process and develop and deliver the change and people management strategy.

Section 6 relates to object and functions of the new body. Its functions include that it will provide for patient safety and quality of patient care and "promote excellence in the practice and provision of paediatric services". The new body is also required to "advocate on behalf of children and young people about healthcare issues". It is clear from this that the focus of the new body is on the care of its patients, ensuring that the clinical operation of the hospital is driven by the objective of improving, promoting and protecting the well-being of children. This will be a function of the entire board and not the remit of one particular board member.

Regarding the appointment of a Dublin city councillor, as Children's Health Ireland is the single national tertiary hospital for the country and a specialist service provider for children from all over Ireland, it would not be appropriate for local councillors to be represented on the board.

There are other ways to ensure that local representatives can contribute. As Deputies may be aware, in 2016, the new children's hospital project monitoring committee was formed as a communications channel between the National Paediatric Hospital Development Board and local residents and representatives on the construction of the new children's hospital. Members of the committee include representatives from Dublin City Council, the National Paediatric Hospital Development Board, councillors and nominated local residents. The objective of the committee is to develop a process for communication and dialogue to address residents' concerns and issues during the construction phase. Accordingly, I do not intend to accept amendment No. 5.

Dublin City Council has a representative on the board of the National Maternity Hospital and that person fulfils a very important role in terms of ensuring that the board is rounded. I had some experience with another entity, which I will not name, where traditionally the custom and practice was that there was a seat for the workers' representatives. It was an extra seat but it was not stipulated in legislation and, over time, that provision was eroded and we ended up with a board where business was very heavily represented and the workers were not.

For that reason, providing in legislation and ensuring that workers have the right to be represented on the board are important. The reason is that, over time, and I say this because I have seen what happens, even with the best intentions, and the Minister of State has outlined the best intentions in the world, if we do not codify exactly what we mean and if we are not in some way specific about it, it will not last. The Irish Congress of Trade Unions, as outlined in the amendment, represents almost 800,000 workers across the State, so a nominee would be a representative for all workers as much as a representative for the staff, and we would see this provision as important.

I appreciate where the Deputy is coming from. She has a long-standing tradition in promoting the rights of workers. I respect that. Every member of the board is tasked in legislation with respecting the rights and the needs of the workers and the patients. To abdicate that role to one member of the board can presuppose that the other members of the board do not have a responsibility in this area. There are added complications and challenges such as the many workers in the hospitals who are not members of a union. Are they not represented then? Is this just representing the unionised workers? There are situations where consultants do not regard their membership of the Irish Hospital Consultants Association as being in a trade union. There are different anomalies.

On the broader issue, every member of the board is tasked with representing the best interests. That is their duty, that is in legislation, and that is underpinned in the governance. I would be satisfied that those concerns are taken on board and should be taken on board by all members.

I was not suggesting that the representation for the workers in the new hospital would solely reside with one member but rather that they would have a voice and be represented, the same as with patient advocates. This is important given that this is a place where people may be patients and where people will work. Worker representatives in other areas do a good job of ensuring that a group that perhaps would not necessarily have a voice has a voice at the table. That is important.

Is the Deputy pressing amendment No. 5?

I will withdraw amendment No. 5 and resubmit it on Report Stage.

Amendment, by leave, withdrawn.
Section 13 agreed to.
Sections 14 to 19, inclusive agreed to.

There are three amendments to section 20, amendments Nos. 6 to 8, inclusive, all in the name of Deputy O'Reilly. The amendments are related and may be discussed together.

I move amendment No. 6:

In page 15, line 31, to delete “or a local authority”.

Amendments Nos. 6 to 8, inclusive, are technical amendments that relate to amendment No. 5, so I do not propose to speak on them. I intend to withdraw each amendment and resubmit it on Report Stage.

Amendment, by leave, withdrawn

I move amendment No. 7:

In page 16, line 2, to delete “or a local authority”.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 16, lines 7 and 8, to delete “or a local authority ”.

Amendment, by leave, withdrawn.
Section 20 agreed to.
Sections 21 to 23, inclusive agreed to.

Deputy O'Reilly has tabled two amendments to section 24. As amendments Nos. 9 and 10 are related, they may be discussed together.

I move amendment No. 9:

In page 18, line 9, after “Children’s Health Ireland” to insert “and its subsidiaries”.

This amendment is being submitted in order that the subsidiaries of Children's Health Ireland would be subject to oversight by the Committee of Public Accounts and the Comptroller and Auditor General. We spend a great deal of time talking about accountability and all members try their best to ensure there is accountability. Outside of these walls, people throw their eyes up to heaven and think that nobody is accountable for anything and there is no accountability. That is regrettable. At every opportunity where we can include additional accountability, we should do so, but if there are going to be subsidiaries of Children's Health Ireland, they should be subject to the Comptroller and Auditor General and the Committee of Public Accounts.

I do not propose to accept amendments Nos. 9 and 10. These amendments relate to the appearance of the CEO before the Committee of Public Accounts. The purpose for which the CEO appears before the Committee of Public Accounts is for the committee to examine and report to Dáil Éireann on the annual financial statements and reports of the Comptroller and Auditor General on Children's Health Ireland. Children's Health Ireland, CHI, will be preparing financial statements that follow the standard rules and will be audited by the Comptroller and Auditor General. Section 9 of FRS 102, which is the financial reporting standard, deals with the requirement to prepare consolidated financial statements. Under that section, the new body will be required to present a financial statement for itself and any of its subsidiaries on a consolidated basis. This means that the CEO is already required to give evidence on the economy and efficiency of a subsidiary of the new body in the use of its resources and the systems, procedures and practices employed by a subsidiary of the new body for the purpose of evaluating the effectiveness of its operations. It would be unnecessary, therefore, to reference this separately. While I agree with the sentiment proposed by the Deputy, I understand that it is a duplication and, accordingly, I do not intend to accept amendments Nos 9 and 10.

I thank the Minister of State.

We believe there is a need for this provision. I take on board what the Minister of State has said, I will consider what has been said at this meeting, and we may resubmit amendments. I will move both amendments and withdraw them with a view to resubmitting them following further discussions.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 18, line 11, after “Children’s Health Ireland” to insert “and its subsidiaries”.

Amendment, by leave, withdrawn.
Section 24 agreed to.
Sections 25 to 37, inclusive, agreed to.
Question proposed: "That section 38 stand part of the Bill."

When there has been a consolidation or a transfer from one body to another, the staff have been guaranteed that persons transferring to the new body have done so on conditions that were no less favourable than their existing conditions. As there is a move involved in this case, it cannot be said that the conditions are not less favourable because staff have to travel to work in a different location. Does section 38(2) have to be included in the collective agreement?

Does the collective agreement have to be concluded before the transfer date or is it possible that it will be simply be the case that it will be said that the terms and conditions will be no less favourable and that they will be negotiated post the move? Does the Minister of State anticipate that will be locked down in advance of the move?

Does the Deputy's query refer to the transfer date?

I am informed that, post transfer, employees will retain whatever they have on the day of transfer.

The section only refers to service and wages. They are the minimum. It just refers to service and remuneration. The latter is a word I hate because I always say it wrong. The Minister of State will know as well as I do that one's terms and conditions of employment are made up of a whole range of things. It is not just one's wages and service. If I am missing it, I apologise but it seems that it is quite narrow.

The Bill refers to an employee's "terms and conditions of service including those relating to tenure of office, or of remuneration" not being less beneficial "than those terms and conditions of service or of remuneration to which he or she was subject immediately before the day of transfer." If the Deputy wants any further clarity, I will be happy to get if for her before Report Stage.

Could the Minister of State do so, because it seems narrow? It might be that I am misreading it.

Would the Deputy mind submitting it to me so that we can be absolutely clear?

Absolutely, I will of course.

Question put and agreed to.
Sections 39 to 67, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.

As this Bill has now completed Committee Stage, it is recommended that the members submit Report Stage amendments to the Bills Office without delay because Report Stage may be taken at short notice.

I thank the Minister of State for attending.

I thank the Chair and members for their co-operation.