Mary Harney (Dublin Mid West, Progressive Democrats)

I move:

That, pursuant to Standing Order 170, Standing Order 125 is modified to permit an instruction to the Committee to which the Health Bill 2006 may be recommitted in respect of certain amendments, for which it has power to make provision in the Bill in relation—

(a) to protection—

(i) for employees from victimisation by employers, and

(ii) for all persons from civil liability

where those employees or persons make disclosures, in accordance with certain procedures or in certain circumstances, in respect of actions that—

(I) pose a risk to the health or welfare of persons, or

(II) lead to a substantial waste of public funds,

(b) to applying Schedule 3 of the Freedom of Information Act 1997 to confidentiality provisions in specified Acts and regulations, and

(c) to the Civil Registration Act 2004 to allow marriages to be solemnised in a place that is not open to the public in particular circumstances.

I thank the Ceann Comhairle and the House for allowing a debate on those issues, which are to be dealt with in the Health Bill 2006. I had intended to introduce the amendments regarding the first two issues on Committee Stage but was advised that they were outside the Bill's scope. The third issue, which relates to the Civil Registration Act 2004, is a technical amendment. However, it has serious implications for a very small number of people and must be dealt with urgently, as I will outline shortly. It is therefore necessary to take the opportunity offered by this Bill to introduce that amendment.

I propose to amend the Health Bill to insert section 101 to introduce legislation to provide for protected disclosure in the health sector. The section inserts into the Health Act 2004 a new Part that makes provision regarding the protected disclosure of information. The term "protected disclosure" means that where a person makes a disclosure in good faith in accordance with the provisions of the legislation, that person is protected from civil liability. If the person is an employee in an organisation providing a health service, he or she is protected from victimisation by employers where making a disclosure in good faith in accordance with the provisions of the legislation.

In addition, any person who makes a report to a professional regulatory body can benefit from those provisions. However, to ensure that the provisions are not abused, the protections do not apply where the person making the disclosures does so knowing that the disclosure is false or misleading or where he or she made the disclosure recklessly without regard to whether it was false or misleading, frivolous or vexatious.

The legislation requires the Health Service Executive and certain health corporate bodies to establish procedures so that employees can report matters of concern where patients may be put at risk, there is waste of public funds, or legal obligations are not being met. In the case of the Health Service Executive, I am amending the 2004 Act to provide that the procedures be included in the HSE's code of governance, which of course must be approved by the Minister.

The HSE's procedures apply to service providers and any other person receiving assistance from it under section 39 of the 2004 Act or section 10 of the Child Care Act 1991. However, a service provider may, subject to the agreement of the HSE, establish its own procedures.

The procedures must provide for the appointment of an authorised person to whom employees can make reports. The authorised person must investigate the report and may refer the matter to one of the regulatory bodies listed in Schedule 2A or to a profession's regulatory body or, if he or she is of the view that a criminal offence has been committed, to the gardaí.

The provisions also allow for the continuation of investigations by the authorised person or another person appointed by the person in charge of the body where matters have been referred to the regulatory or professional bodies or the gardaí. That is to enable the relevant body to deal with any disciplinary matters that may arise from the disclosure. The employees of relevant bodies must use the established procedures if they wish to obtain protection under the legislation. Relevant bodies are defined under the Bill as the Health Service Executive; a service provider; any other person receiving assistance in accordance with section 39 or section 10 of the Child Care Act 1991; or a body established under the Health (Corporate Bodies) Act 1961.

The scheme also provides that the protections and sanctions apply to employees of private nursing homes who report matters to the Chief Inspector of Social Services and employees of private psychiatric hospitals who report matters to the Inspector of Mental Health Services. Any person who reports a matter to a professional regulatory body is also protected from civil liability under these provisions. The professional regulatory bodies are defined in the Bill as An Bord Altranais, the Dental Council, the Health and Social Care Professionals Council, the Medical Council, or the Pharmaceutical Society of Ireland.

If that person is an employee he or she is protected under section 551 from victimisation, whether he or she is working in a public sector or a purely private sector operation, as the definition of employee is sufficiently broad to cover both sectors. It should be noted that the definition of employee also covers those placed for the purpose of vocational training and those who work for agencies providing staff for health service providers.

In addition, where a person makes a disclosure to an authorised person of the Health Information and Quality Authority, or the chief inspector of social services, or the inspector of mental health services in the course of the performance of their functions, such disclosures, subject to the conditions set out in the legislation, are deemed protected disclosures.

Section 55A sets out the definitions for this Part. Sections 55B, 55C, 55D, 55E, 55F and 55G set out the circumstances in which a disclosure may be considered a protected disclosure, which I have already outlined. Section 55H obliges the executive and certain other relevant bodies to establish procedures to deal with protected disclosures. Section 55I sets out that it is a condition for those providing a service on behalf of the executive, or receiving assistance from the executive, to adhere to the executive's procedures or to the procedures they establish with the agreement of the executive. Section 55J sets out the obligations of relevant bodies in dealing with protected disclosures.

Section 55K stipulates that employees of relevant bodies may only make disclosures and attract the protections under this legislation if they comply with the established procedures, or if they are making a report to a professional regulatory body or to an authorised person of the Health Information and Quality Authority, or the chief inspector or mental health services inspector. However, this section provides that an employee of a relevant body may make a disclosure directly to one of the regulatory bodies listed in Schedule 2A if: the employee has reasonable grounds to believe that the immediate reference to that body is justified by reason of the urgency of the matter to which the disclosure relates; or the employee has reasonable grounds to believe that there has been no investigation of the matter; or if an investigation has taken place that there has been no action or recommended action on the matter to which the disclosure relates.

Section 55L provides for protection from civil liability of any person making a protected disclosure. Section 55M sets out the provisions for the protection of employees from victimisation for making protected disclosures and the procedures for seeking a remedy from a rights commissioner or the Labour Court where an employee alleges that they are being victimised for making a disclosure. Section 55N deals with matters concerning the proceedings of the Labour Court in respect of this legislation.

Section 55O deals with the enforcement of Labour Court decisions. In particular, it provides that if an employer fails to carry out a determination of the court, an application can be made to the Circuit Court and the Circuit Court can apply interest penalties in addition to the amount of compensation decided by the Labour Court.

Section 55P is a technical provision regarding evidence and attendance at a hearing of the Labour Court. Section 55Q sets out in more detail what the term penalisation means. Section 55R is a technical provision ensuring that a change of ownership of a business does not frustrate the provisions of the legislation. Section 55S makes it an offence to make false reports and provides for the prosecution of such offences. Section 55T provides that the legislation will not affect the Protections for Persons Reporting Child Abuse Act 1998. That Act provides protection from victimisation and civil liability for persons reporting the abuse of children.

The introduction of protected disclosure provisions in the health sector will result in greater public confidence in the safety and quality of our health care and social services. We need to promote a culture of openness in the health service where health service employees are encouraged to raise any concerns in regard to the safety and welfare of patients. The provisions we will look at today will improve the level of protection provided to employees in the health service who raise such concerns in good faith.

The provisions also ensure consistency of approach throughout the health service in regard to procedures for the protected disclosure of information by employees. Moreover, the provisions will support the existing statutory frameworks governing health professionals and those proposed in the Medical Practitioners and Pharmacy Bills.

I will now deal with the amendment of the Third Schedule of the Freedom of Information Act 1997. The Bill provides for the application of freedom of information legislation to the Health Information and Quality Authority. All its records will come within the scope of that Act and the public will have rights of access as defined within the Freedom of Information Act. The provisions of the Bill, as published, also ensure clarity regarding the transfer of records and the preservation of rights concerning existing records and current staff of the Irish Health Services Accreditation Board and the social services inspectorate.

I take the opportunity presented by this legislation to update the Third Schedule of the Freedom of Information Act 1997 with regard to non-disclosure clauses within other health legislation. Certain health legislation provides for confidentiality provisions which, if they are not listed in the Third Schedule of the Freedom of Information Act, mean that they take precedence over that Act. I am therefore including a range of Acts and regulations in the Third Schedule. I am also providing that where legislation to establish statutory bodies places an explicit duty of confidentiality on staff and others, that legislation will be included in the Third Schedule of the Freedom of Information Act. This is to remove any doubt as to the application of the Act to these bodies.

The list proposed in the amendment arises from the most recent review of health legislation by my Department, which has identified a number of confidentiality clauses not listed in the Third Schedule and which should be so listed to remove any doubt as to the application of freedom of information rights of access. Most are staff confidentiality clauses within legislation to establish new bodies. Others arise from the transposition of EU directives that require confidentiality in the acquisition of commercially sensitive information. These changes stem from a formal review under section 32 of the FOI Act. They reflect the recommendations of the information commissioner and the report of my Department to the Oireachtas Committee on Finance and the Public Service.

The first part of the amendment concerns primary legislation. The amendment lists the staff confidentiality clauses within the legislation establishing the Health Insurance Authority, the Food Safety Authority of Ireland, and the Office of Tobacco Control. The amendment also ensures that the strict confidentiality of the work of the health repayments scheme appeals office does not prohibit the consideration of FOI access in appropriate circumstances.

The second part of the Schedule relates to secondary legislation. The amendment lists the staff confidentiality clauses within the statutory instruments establishing the following: the Crisis Pregnancy Agency; the National Council for the Professional Development of Nursing and Midwifery, the Health Research Board, the National Haemophilia Council, the National Health Council on Aging and Older People, the National Social Work Qualifications Board, the National Treatment Purchase Fund Board, the Pre-Hospital Emergency Care Council, St. James's Hospital board, St. Luke's Hospital board, and the Women's Health Council. The amendment also clarifies that the confidentiality of the patient record within a nursing home does not prohibit the consideration of access to information under the provisions and protections of FOI.

The remaining non-disclosure clauses listed in this part of the amendment arise from the transposition of EU directives that contain specific protections for commercially sensitive information. Inclusion of these in the Third Schedule means that, while the commercial sensitivity of the information will be recognised, the provisions of the FOI Act can apply in so far as the original directive permits. The information commissioner has recommended that these be included in the Third Schedule for this purpose and I agree with this approach.

The proposed amendments to sections 51 and 52 of the Civil Registration Act 2004 arise from the urgent need to continue to facilitate the marriage of seriously or terminally ill people who, by reason of their illness, are unable to travel to a public venue for their marriage. The current legislation, which makes provision for special arrangements for the marriage of persons who are seriously ill, is due to be repealed on the commencement of the marriage provisions, Part 6, of the Civil Registration Act 2004, which will take place within the next few months.

Section 52(1) of the new Act provides that a marriage may be solemnised at a venue chosen by the parties to the marriage with the agreement of the registered solemniser and, in the case of a civil marriage, the approval of the authority — that is, the Health Service Executive.

Section 51 of the Act makes it a substantive requirement for all marriages that they take place in venues which are open to the public. In other words, it is one of the requirements for the validity of a marriage. Recent legal advice received by my Department indicates that section 51, as currently worded, may cause difficulties concerning the solemnisation of the marriages of people who are seriously ill, which occasionally take place in their own homes or in hospices. The effect of the proposed amendment to section 51 is to remove the requirement that the venue be open to the public in cases where a medical report has been furnished confirming that one or both parties are unable to attend such a venue due to illness. The effect of the proposed amendment to section 52 is to remove the requirement that Health Service Executive approval is required for venues in such cases which involve civil marriages. Such marriages could then continue to be solemnised in private homes or other such venues as required, subject to the agreement of the registered solemniser who is performing the ceremony and the approval of a superintendent registrar or an tArd-Chláraitheoir. The amendment would secure the constitutional right to marry of persons in such circumstances and avoid these tragic situations being exacerbated by the stress of uncertainty over the legal rights of partners and children.

Apart from the urgent need to secure the right of people to marry in these circumstances, this amendment is urgently needed to ensure the smooth commencement of the remainder of Part 6 of the Act. If this issue is not dealt with now, the commencement of Part 6 as it currently stands could either prevent the marriages of seriously ill people or place in doubt the validity of such marriages, if they proceeded. Alternatively, the commencement would have to be delayed to facilitate discussion of this issue at a later date. Such a delay would, in turn, impede the modernisation of the marriage registration service, as envisaged by the Act, and prevent other couples from having civil marriage ceremonies at venues other than registry offices, which the Act also permits for the first time.

I thank the House for considering these matters and move that the amendments be discussed as part of the Bill.

See this speech in context