Jim Daly (Cork South West, Fine Gael) | Oireachtas source

The difficulty we face here collectively is putting that into legislation, and how we would word this particular option of not publishing, unless it is in the public interest. When one legislates, as the Deputy is aware, there is no room for doubt. What we are talking about is extraordinary, special circumstances where there are legitimate reasons not to publish. All of us accept that they exist, which is the point that the Deputy is trying to make and has succeeded in bringing to our attention and having recognised here. There are exceptional circumstances that exist where publication is not in the best interest. We would maintain that they are rare, are not the norm and are the exception, but they exist. The question then arises where we can put it into legislation here that one does not publish unless one is absolutely sure it is right, or whatever, but that is restricting the whole objective of this, which is to give patients, as well, the right to know if somebody has a history.

We have to try to balance the right of the patient to know and the right of the registrant to have his or her particular circumstances taken into account. How do we do that? How do we strike that balance and who makes the judgment call?

Deputy O'Reilly spoke about the regulator and argued that he or she could make the case. Of course, the regulator, as I understand it, can make a case to the High Court ahead of publication as things stand currently. The regulator can say that he or she understands the case very well and believes it would not be in the interest of patients to publish but ultimately the determination must be made by somebody. The registrant may not have to make the case to the High Court. The regulator could say that having dealt with this, he or she would not be recommending publication and that happens. The crucial point is who makes the final determination and we must accept, in a democracy, that the courts are the overall superseding authority when it comes to making determinations.