Mary Harney (Dublin Mid West, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

I will begin by thanking the Ceann Comhairle and the House for facilitating the reading of this Bill and its passage through Dáil Éireann. I appreciate the time Deputies are giving to the Bill and will endeavour to ensure that we use our time well.

The Health (Miscellaneous Provisions) Bill 2007 is urgent because of the need to address, without delay, matters concerning bodies established under the Health Corporate Bodies Act 1961 and technical drafting issues identified regarding the Medical Practitioners Act 2007.

I have endeavoured since last Thursday to be fully open with Deputies about every aspect of the Bill and I welcome the opportunity now to set out its provisions and to make clear the purpose and value of each section. The Bill is straightforward in its purpose in all respects. It involves no policy change and no additional charge on the Exchequer.

In brief — I will go into detail later — the provisions in the Bill in regard to the health corporate bodies are required on foot of legal advice from the Attorney General that the constitutionality of the 1961 Act could possibly be open to challenge. The standards of legal engineering are different now from 46 years ago when the Health (Corporate Bodies) Act was enacted. When the need for structural reinforcements of a building or a bridge to modern standards is advised by engineers, this should be acted upon.

It is not a question of any of these bodies having "no legal basis" as some have described it. Rather, Deputies will fully appreciate that given the importance of bodies established under the 1961 Act to the health service, we could not allow any shadow of doubt to exist in this matter. Therefore, urgent action is needed to confirm these bodes in primary legislation.

Similarly, other provisions are being put in place for the avoidance of doubt. The Bill includes provisions amending the Establishment Orders for St James's Hospital and Beaumont Hospital to put beyond doubt the capacity of those hospitals to enter into co-location arrangements.

The technical amendments to the Medical Practitioners Act 2007 will facilitate the phased commencement of significant provisions in that Act and the moving from the old regulatory system to a new and better regulatory system.

Deputies will know that the Health (Corporate Bodies) Act 1961 has proved critical in the development of health services during the past 46 years. This Act allowed the Minister for Health and Children to establish by order bodies to perform functions in the provision of health services which could not be readily and conveniently operated by existing statutory bodies.

Prior to the 1961 Act, the Minister for Health met the need to establish a health body by arranging for the establishment of companies under the Companies Act. The use of the Companies Act in this way was an expedient solution to a problem at that time and allowed the Minister to act with speed where necessary. However, by 1961 it was considered that the use of the Companies Act in this way was not an appropriate device for the establishment of a body to administer a health service financed from public funds. The view was also taken that the establishment of companies in this way was not consistent with the responsibility which the Minister has towards the Oireachtas.

This presented a problem for our predecessors. On the one hand, it was not appropriate for the Minister to use funds under his or her control to establish health agencies without recourse to the Oireachtas. On the other hand, health services were expanding rapidly with a consequent need for health organisations operating outside the then statutory health authorities and it was necessary to have in place a mechanism that would allow the Minister to establish bodies quickly when the need arose. The solution at the time lay in the Health (Corporate Bodies) Act 1961, which allowed the establishment of bodies by ministerial order. This included the requirement that a copy of an order be sent to each Member of the Oireachtas after it is made.

The Act has worked well over the years with more than 40 bodies established under this legislation, 19 of which are in existence. These include St James's Hospital, Beaumont Hospital, St Luke's Hospital, the Drug Treatment Centre, the Dublin Dental Hospital, the Irish Blood Transfusion Service, the National Cancer Registry and the National Cancer Screening Service and other important health bodies.

Arising from consideration of the adequacy of the powers of the Health Service Executive under existing primary legislation to fund the new National Paediatric Hospital Development Board, a body established under the 1961 Act, the Attorney General decided in mid-October that a more fundamental review of the constitutional status of the Health (Corporate Bodies) Act was required. He wrote to me with his considered advice on 26 October to the effect that the breadth of powers conferred on the Minister under the Act could possibly breach Article 15.2 of the Constitution which vests power for making laws for the State in the Oireachtas. The legal advice also has implications for bodies set up under the Local Government Services (Corporate Bodies) Act 1971 and that matter is under active consideration.

It is important to emphasise that all these bodies were properly and transparently constituted under the 1961 Act by way of statutory instrument. However, given the advice and recommendations from the Attorney General, it is clear that urgent primary legislation is required to confirm the orders for existing bodies. This is the first and most immediate issue in regard to the 1961 Act.

Legal advice also indicated that further legislation be drafted to address a wide range of issues identified in regard to the Act, including the retention of the power of the Minister to establish bodies under the Act, the circumstances in which that power should be exercised, the nature and limits of the functions which may be conferred on such bodies, the relationship of such bodies to the Minister, the Health Service Executive and other statutory agencies in the health area, and the funding of such bodies. These are complex issues which clearly require further time and thought. The Government intends to introduce another Bill dealing with these matters in 2008.

However, given the immediate need for certainty as to the status and powers of bodies established under the Act, the wide range of crucial and fundamental health services provided by the bodies and the substantial public expenditure involved in their operation, it was decided to prioritise matters for the Bill before us. For this reason, the Bill confirms the orders made for existing bodies and related matters, acts carried out by former bodies and provides for related matters.

As I stated, provisions are also being included in the Bill to put beyond doubt the legal capacity of St. James's Hospital and Beaumont Hospital to enter into co-location arrangements. As these provisions have attracted some attention, it would be useful to put in context the co-location policy and the provisions.

It was clear in 2004 that there was a need for a comprehensive and consistent approach to the assessment of a variety of proposals for private developments on public hospital sites, including, for example, at Waterford and Limerick. Prospectus Management Consultants were engaged by the Department of Health and Children in autumn 2004 to advise on an appraisal framework which would both encourage private investment in the acute hospital sector and promote and protect the public interest. Moreover, I and colleagues had increasing concern regarding the extent to which the level of private practice in public hospitals was exceeding the ratio of 80:20 agreed with the medical organisations.

Approximately 2,500 beds in public hospitals — 20% of the total — are designated for use by private patients. However, the level of private elective admissions to public hospitals was running at about 35% of the total. This was affecting the ability of public patients to access public hospitals and contributing to longer waiting times for public patients. I was not and am not prepared to allow these and other factors lead to a position where private patients received priority access to public hospitals at the expense of public patients. This circumstance called for innovative thinking and out of this the co-location initiative emerged.

The essential idea underlying the co-location initiative is to free up capacity for public patients and deliver new public acute beds in the quickest and most efficient manner. The initiative was founded on the principle that all patients ordinarily resident in the State should have access to public hospitals based on medical need and the possession of private health insurance should not influence timeliness of access or treatment.

A diversity of providers of hospital care is commonplace in many countries and is entirely appropriate. We will also be capable of using the new privately managed facilities for public patients to supplement rather than supplant public service provision, just as we do via the National Treatment Purchase Fund. In principle, all hospital capacity that meets standards and offers value for money should be capable of being used for all patients.

The Government endorsed the initiative in July 2005. The policy directive I subsequently issued to the HSE required the executive to undertake a rigorous value for money assessment of co-location proposals which would take account of the value of the public site and the cost of the tax forgone. The HSE had to satisfy itself that proposals represented better value for money than building, commissioning and operating beds in the traditional manner. The HSE and National Development Finance Agency have confirmed that the tenders received for six sites provide value for money and the projects are in a position to move to the financial close.

Detailed and innovative features will promote the public interest. Each site will have one accident and emergency department. The private hospitals will facilitate medical training and research and development; accept direct admissions to medical and surgical admission units from primary care centres and general practitioners on a 24-7 basis; comply with physical design requirements to fit with the public hospital; have joint clinical governance, shared information and records management, performance management and documented service level agreements, where these are undertaken; and participate in the public HIPE and case mix information systems.

As I indicated, provisions are included in the Bill to put beyond doubt the legal capacity of St. James's Hospital and Beaumont Hospital to enter into co-location arrangements. It is arguable that these hospitals already have the necessary powers in their statutory instruments to enter into co-location arrangements as the HSE hospitals clearly do under the Health Act 2004. However, it is considered prudent to put the matter beyond any doubt and expressly amend the orders relating to the two hospitals.

Turning to the amendments to the Medical Practitioners Act 2007, the Bill addresses certain matters regarding the transitional provisions of the 2007 Act. The amendments being proposed in the Bill are essentially technical in character. The substantive provisions of the Medical Practitioners Act 2007 — enhanced lay membership of the Medical Council, registration processes, fitness to practise procedures and new provisions relating to medical education and training at basic and specialist level and regarding maintenance of professional competence — remain unchanged.

We are studying the implications of the judgment made by Mr. Justice Kelly last week concerning fitness to practise procedures in the Act and will bring forward amending legislation, if required. The Medical Practitioners Act 2007 was signed into law earlier this year. The main objective of the Act is to provide for a modern, efficient, transparent and accountable system for the regulation of the medical profession, which will satisfy members of the public and the profession that all medical practitioners are appropriately qualified and competent to practise in a safe manner on an ongoing basis. The advice from the Office of the Attorney General is that some technical amendments are required to strengthen the transitional provisions of the Act, which will allow for the nomination and election processes provided for in the Act regarding the new Medical Council to take place as early as possible in the new year. Thereafter, the other provisions in the Act will take effect on a phased basis. This is what is being done in the Bill.

I am anxious that there should be an orderly hand-over from the outgoing Medical Council to the new body and an orderly, phased implementation of the entire Act. Having carefully considered the advice of the Office of the Attorney General, I am proposing that immediate action is taken at this time by way of primary legislation because of the importance of the Act for both the medical profession and the protection of the general public. It is in the public interest that the necessary amendments are made as a matter of urgency.

My Department has been liaising closely with the Medical Council on the implementation of the Act, preparation of the election regulations and related matters. It is appreciated that the need to amend the Act has placed some additional responsibilities on the current council. I have already expressed my appreciation to the president of the Medical Council regarding the co-operation of the council in this process.

I will now set out the main provisions of the Bill. Part 1, sections 1 to 4, inclusive, are the preliminary and general sections. Part 2, sections 5 to 9, inclusive, deal with health corporate bodies. Part 3, sections 10 to 20, inclusive, amend the Medical Practitioners Act 2007. Part 4, section 21, amends section 38 of the Health Act 2004.

Sections 1 and 2 are standard technical provisions stating that the Act may be cited as the Health (Miscellaneous Provisions) Act 2007 and setting out the definitions used.

Section 3 is a standard provision on the payment of expenses incurred in the administration of the Bill out of moneys provided by the Oireachtas.

Section 4 repeals section 70 of the Health Act 2004. Section 70 allows the Minister to dissolve a health corporate body by order and transfer its functions to the Health Service Executive. However, once a body is confirmed under the current Bill, it cannot be dissolved by order but must be dissolved by primary legislation and, on this basis, section 70 is to be repealed.

Section 5 is a key element of Part 2 of the Bill in relation to health corporate bodies. It confirms establishment orders made under 1961 Act for current bodies and provides that these orders have statutory effect as if made in primary legislation. One of these existing bodies is the National Social Work Qualifications Board established under the 1961 Act to carry out a range of functions regarding the validation of qualifications of social workers. The Health and Social Care Professionals Act 2005 provides for the establishment of the Health and Social Care Professionals Council and registration boards to regulate and register members of designated health and social care professionals, including social workers. Section 83 of that Act provides for the dissolution of the National Social Work Qualifications Board as its functions will be carried out by the council and the relevant registration board when it is established. Subsection (4) is therefore designed to enable the Minister to dissolve the board in line with the provisions of the 2005 Act despite the fact that the board is one of the bodies that will be confirmed under this legislation.

Subsection (5) takes account of the provisions of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 which provides for certain staff to continue in employment after the age of 65. Section 6 confirms that validity of acts carried out by former bodies in accordance with their establishment orders.

Section 7 and the associated Schedule — Schedule 1 — amend the establishment orders for existing bodies which are currently funded by the Health Service Executive to reflect the actual role of the Executive in its capacity under the Health Act 2004 and the health reform programme. Some ministerial functions are, therefore, transferred to the executive while the executive's current role is given effect in other instances, subject to ministerial oversight. Establishment orders for St. James's and Beaumont Hospitals are also amended to put beyond doubt the legal capacity of these hospitals to enter into co-location arrangements.

Section 8 is a technical provision relating to funding of bodies by the Minister. The section does not apply to the National Haemophilia Council which is funded by the Health Service Executive and the National Paediatric Hospital Development Board, which is currently funded by the Minister but is to be funded by the executive.

Section 9 is a technical provision to take account of the provisions of the Comptroller and Auditor General (Amendment) Act 1993 whereby accounts of bodies are audited by the Comptroller and Auditor General who submits the audited accounts, with a report, to the Minister who in turn lays them before the Oireachtas.

The next ten sections — Part 3 — amend the Medical Practitioners Act 2007. Section 10 explicitly provides for a phased implementation of the repeal of the Acts specified in Part 1 of Schedule 1, and the revocation of the statutory instruments specified in Part 2 of Schedule 1, on different days. Section 11 clarifies the definitions of key terms relating to registered medical practitioners provided in the Act of 2007.

Section 12 provides for the clarification of the provisions in the Act of 2007 relating to the continuance in being of the Medical Council and for the continuation of any work commenced but not completed under the Act of 1978 including, in particular, fitness to practise inquiries.

Section 13 provides clarification in relation to specialist registration in the context of the first election process; provides explicitly for the termination of the membership of the current Medical Council by providing that a person who was a council member immediately before the first appointment of the new council will cease to be a member unless he or she is one of the persons so appointed; and allows for the council to perform any functions assigned to it by the Act of 1978.

Section 14 clarifies that the Medical Council may charge fees for the retention of a medical practitioner's registration. Section 15 is a transitional provision which clarifies which medical practitioners should be registered in which division of the new register, including those medical practitioners who, immediately before register establishment day, were already registered in the General Register of Medical Practitioners.

Section 16 provides that medical practitioners are deemed to be registered on the register if their names are entered on the General Register of Medical Practitioners immediately before the register establishment day. Section 17 provides that a medical practitioner who is subject to disciplinary proceedings under Part V of the Act of 1978 may not seek, during the transitional period, to evade sanction being imposed on him or her by the Medical Council by applying to have his or her registration removed under section 52 of the Act of 2007.

Section 18 provides for the clarification of the provisions in the Act of 2007 in relation to the consideration of complaints by the preliminary proceedings committee. Section 19 provides that a Medical Council member may not hold office for more than two consecutive terms and membership of the existing council will count towards reckoning the membership period. Section 20 refers to the consequential amendments set out in Schedule 2.

Section 21 is a technical amendment to section 38 of the Health Act 2004. Schedule 1 sets out the details of the amendments to the health corporate body establishment orders amended in accordance with section 7. Schedule 2 sets out consequential amendments referred to in section 20 of the Medical Practitioners Act relating to when each of the relevant sections becomes effective.

I again thank the House for giving its time to this urgent Bill. In the case of the provisions concerning bodies established under the Health (Corporate Bodies) Act 1961, I believe that it is better to be safe than sorry. It is necessary, for the avoidance of doubt, to make these bodies legally safe. The amendments to the Medical Practitioners Act will result in the smooth transition we are seeking to the new system under the Act by strengthening the transitional arrangements which will apply to the regulation of medical practitioners. I commend this Bill to the House.

Following a query raised this afternoon, I should say that it was not possible for me, because of the legal advice, to give advance notice, before last Thursday, to the Opposition or to put into the public domain in advance of the capacity to publish the legislation the fact that there was a legal doubt surrounding 19 bodies. I acted totally in accordance with the legal advice made available to me by the Attorney General on that matter. We were not in a position to draft the legislation because of the huge number of bodies involved any faster than the period from 26 October.

See this speech in context