Thursday, 10 November 2005
Health and Social Care Professionals Bill 2004 [Seanad]: Report Stage (Resumed) and Final Stage.
The Dail Divided:
For the motion: 53 (Dermot Ahern, Michael Ahern, Barry Andrews, Seán Ardagh, Martin Brady, John Browne, Pat Carey, John Carty, Donie Cassidy, Michael J Collins, Mary Coughlan, Brian Cowen, John Cregan, John Curran, Síle de Valera, Noel Dempsey, John Dennehy, Jimmy Devins, Seán Fleming, Jim Glennon, Seán Haughey, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Micheál Martin, John McGuinness, John Moloney, Donal Moynihan, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Charlie O'Connor, Willie O'Dea, John O'Donoghue, Batt O'Keeffe, Ned O'Keeffe, Fiona O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Michael Smith, Joe Walsh, Michael Woods, G V Wright)
Against the motion: 41 (Bernard Allen, Dan Boyle, Tommy Broughan, Richard Bruton, Joan Burton, Paudge Connolly, Joe Costello, Seymour Crawford, Ciarán Cuffe, John Deasy, Jimmy Deenihan, Bernard Durkan, Damien English, Martin Ferris, John Gormley, Tom Hayes, Séamus Healy, Joe Higgins, Michael D Higgins, Brendan Howlin, Enda Kenny, Kathleen Lynch, Shane McEntee, Finian McGrath, Liz McManus, Olivia Mitchell, Breeda Moynihan-Cronin, Catherine Murphy, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, Ruairi Quinn, Pat Rabbitte, Eamon Ryan, Seán Ryan, Emmet Stagg)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Neville and Stagg.
Amendment declared carried.
I move amendment No. 11:
In page 13, line 8, to delete "Employment" and substitute the following:
(c) 3 persons who have such qualifications, interests and experience as, in the opinion of the Minister, would be of value to the Council in performing its functions".
The Dail Divided:
For the motion: 50 (Dermot Ahern, Michael Ahern, Barry Andrews, Seán Ardagh, Séamus Brennan, John Browne, Pat Carey, John Carty, Donie Cassidy, Michael J Collins, Mary Coughlan, Brian Cowen, John Cregan, Síle de Valera, Noel Dempsey, John Dennehy, Jimmy Devins, Seán Fleming, Jim Glennon, Seán Haughey, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Conor Lenihan, John McGuinness, John Moloney, Donal Moynihan, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Charlie O'Connor, Willie O'Dea, John O'Donoghue, Batt O'Keeffe, Ned O'Keeffe, Fiona O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Michael Smith, Joe Walsh, Michael Woods, G V Wright)
Against the motion: 37 (Bernard Allen, Dan Boyle, Tommy Broughan, Richard Bruton, Joan Burton, Paudge Connolly, Joe Costello, Seymour Crawford, Ciarán Cuffe, John Deasy, Jimmy Deenihan, Bernard Durkan, Damien English, Martin Ferris, John Gormley, Joe Higgins, Phil Hogan, Brendan Howlin, Enda Kenny, Kathleen Lynch, Shane McEntee, Finian McGrath, Liz McManus, Olivia Mitchell, Breeda Moynihan-Cronin, Catherine Murphy, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Jan O'Sullivan, Séamus Pattison, Willie Penrose, Ruairi Quinn, Pat Rabbitte, Eamon Ryan, Seán Ryan, Emmet Stagg)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Neville and Stagg.
Amendment declared carried.
I draw the attention of the House to an error in section 4(4)(d) page 10, line 15 where the word "continuous" should be "continuing". I ask the Ceann Comhairle to instruct the——
A correction will be made. Amendment No. 15 is an alternative to amendment No. 14, amendments Nos. 16 and 25 are related and amendment No. 26 is an alternative to amendment No. 25. Amendments Nos. 14 to 16, inclusive, 25 and 26 will be discussed together.
I move amendment No. 14:
In page 20, lines 2 and 3, to delete all words from and including "it" in line 2 down to and including "determine" in line 3 and substitute the following:
(a) is published in such manner as the Council may determine, and
(b) is submitted to the Minister for laying before each House of the Oireachtas".
Following the Committee Stage debate, further consideration was given to the proposals to lay council rules and registration board by-laws before the Houses of the Oireachtas. I am pleased to propose amendments dealing with this matter. Amendment No. 14 provides for the health and social care professionals council to publish its rules and submit them to the Minister for laying before the Houses of the Oireachtas.
Section 95 deals with the Minister's power to make regulations and amendment No. 16 provides that subsections (4) to (6), inclusive, of section 95 apply with the necessary modifications to rules of the council submitted to the Minister in accordance with this section as if they were regulations made by the Minister.
Section 32 provides for the publication and other requirements relating to draft and other by-laws made by registration boards. Amendment No. 25 amends this section to provide for registration boards to publish by-laws and submit them to the Minister for laying before each House. Subsections (4) to (6), inclusive, of section 95 will apply with the necessary modifications to the by-laws of registration boards submitted to the Minister in accordance with this section and regulations made by the Minister. I trust this meets Deputy McManus's requirements and that in the circumstances she will appreciate that I do not propose to accept her amendment.
It is a pity that the Minister of State does not accept my amendment No. 15 because it provides parliamentary accountability and a mechanism which is very reasonable. I am surprised that the Minister of State does not see it that way.
We have a health service which is now stripped of almost all accountability. The systems in place under the former health board system provided for some kind of scrutiny, albeit flawed, at local level. We must now be very conscious that at national level there must be enhanced forms of accountability and that is the purpose of my amendment. I regret that the Minister of State will not accept it.
I move amendment No. 16:
In page 20, between lines 8 and 9, to insert the following:
(8) Subsections (4) to (6) of section 95 apply with the necessary modifications to rules submitted to the Minister in accordance with this section as if they were regulations made by the Minister.
I move amendment No. 17:
In page 22, line 12, after "profession" to insert the following:
"and each register shall be available for inspection by members of the public".
I am pleased that this amendment has not been ruled out of order. We need transparency and openness. The register should be available and open for inspection by the public. That is what I seek to achieve in this amendment which inserts after the word "profession", "and each register shall be available for inspection by members of the public". That intent should be explicitly included in the terms of the Bill. If included, there can be no doubt as to the public's right of access and the guarantee of that right. I acknowledge that Deputy Twomey has presented a similar wording and on behalf of both of us I ask the Minister of State to accept the amendment and live up to the spirit of transparency and openness essential in the progress of this legislation.
I support the amendment in the names of Deputies Ó Caoláin and Twomey. This is a reasonable proposal which should be uncontroversial. I do not see any reason the public should not be able to inspect the register. The amendment would facilitate openness and transparency. I do not understand why any professional would not be happy to have an inspection of the register with that professional's name on it. I cannot see any reason that should not be accepted and see many good reasons it should be on the basis of ensuring and greatly helping with the credibility of the register. On that basis I support the amendment.
Regarding Deputy Neville's assertion that the register should be available for inspection by the public, the Medical Council register of doctors is available on-line. One can see if a doctor is registered with the Medical Council. Doctors did not object to their names being made public but to their home addresses being given on the register. They were agreeable to having their professional addresses listed. Accordingly, there is no problem in having the names of professionals listed with their professional addresses. People can then check to see that those people are on an official register rather than merely accepting what is indicated by plaques on professionals' office walls.
The issue of access to registers is already dealt with in the Bill. Section 46(1)(a) states that a registration board shall make its register available to members of the public at all reasonable times. This meets the requirements of both Deputies and therefore I do not propose to accept the amendment.
I am disappointed with the response of the Minister of State. I do not know if he has expressed his own view or if he is simply trundling out the text offered. As a member of the medical profession, Deputy Twomey has put the case well. That demonstrates clearly that not only I, as member of the public, and he, as a member of the medical profession, but a great many others believe that we should ensure full transparency and openness. That requires access to the register in all these cases. It is imperative.
We had an earlier discussion regarding the listed professions under the terms of this legislation. There are people established in different areas of medical practice, not within the listed professions but among others to which I have alluded, in whose case a plaque on a wall is all it amounts to. There is no way in which the public can properly establish with ease the qualifications and suitability for practice of any person presenting. We have echoes of these difficulties with regard to the qualifications of people currently being addressed in the media. In this situation, a register should be open and a straightforward argument for such access deserves support. I cannot understand the rejection of the proposition by the Minister of State and I ask for his reconsideration.
Section 46 of the Bill deals with access to and publication of registers. Section 46(1) states that a registration board shall:
(a) make its register available for inspection by members of the public at all reasonable times, and
(b) publish, by electronic and not less than one other means, its register at intervals of not more than 12 months from the date of the establishment of the register or the last publication of the register.
I hear what Deputy Ó Caoláin says but, in fairness, the amendments being proposed by Deputies Twomey and Ó Caoláin are unnecessary and add nothing to the Bill that is not already included in it. Therefore, we cannot accept the amendment.
I move amendment No. 18:
In page 22, between lines 13 and 14, to insert the following:
"(c) make or forward complaints to the Council under section 51,".
The council overseas all 12 registration bodies, each of which receives and considers complaints. However, I understand that complaints are forwarded to the council only where the outcome is negative for a member. A list of all complaints made, regardless of their outcome, should be sent to the council.
Amendment No. 18 is concerned with the power of a registration board to make or forward complaints to the council and, under section 52(3), a complaint to the council may be made on behalf of any person or by a registration board. On that basis, the issue raised in the Deputy's amendment is already provided for under the Bill.
Amendment No. 19 concerns the accreditation and inspection of training course providers and the monitoring of trends and performances in health services. The education and training courses, rather than the providers of courses, should be accredited. Under section 48, a registration board may approve a training programme if it is satisfied that it is suitable for the education and training of candidates for registration or may refuse to approve the programme if it is not so satisfied. A registration board may issue guidelines concerning the requirements for its approval of education and training programmes. Section 49(1)(a) requires the registration board to satisfy itself as to the suitability of the education training, assessment and examination provided by any education and training programme approved by the board. Section 49(1)(b) requires the registration board to satisfy itself as to the clinical experience provided in any education and training programme approved by the board. Therefore, while the courses providers are not accredited, their courses are.
With regard to research, under section 27(4), registration boards may, with the council's approval, engage in research into education and training relating to the practice of a designated profession, including the formulation of experimental curricula and the evaluation of existing programmes and examination and assessment procedures. The registration board may also maintain statistical records and make those records available for research and planning.
The carrying out of research to monitor trends and performance outside the education field seems to be a function more proper to other bodies, such as the Health Service Executive, and it would not be appropriate to charge registration boards with this duty. I do not, therefore, propose to accept these amendments.
Will all complaints made to registration boards be submitted to the council or will submissions be made only where outcomes are negative? Will the council maintain a record of all complaints made to it or will that be a function of the registration boards?
I move amendment No. 20:
In page 22, line 44, to delete "one" and substitute "two".
While supporting the thrust and endeavouring to reflect the position with regard to the Green Party's amendments on the additional representation of those involved in the education, I am not pressing this amendment.
I move amendment No. 23:
In page 24, line 31, to delete "section 38(2)" and substitute "section 38(2)(a)".
Section 38 provides for the granting of registration to applicants who comply with general requirements and hold qualifications approved by the registration board of a designated profession as attesting to the standard of proficiency required for registration. It also provides for a registration board to take account of qualifications awarded in another European Union state and those awarded in states outside the EU. It was, however, indicated on Committee Stage that improvements to section 38 were being considered.
The concern was that section 38 as it stood encompassed nationals of EU member states who were awarded qualifications in an EU member state but did not specifically encompass EU nationals who gained their qualifications outside the EU. While section 38 also took account of non-EU nationals who gained their qualifications outside the EU, it did not specifically encompass people who were not EU nationals and were awarded qualifications in an EU member state. It was therefore undertaken to bring appropriate amendments on Report Stage.
Amendment No. 27 amends section 38(2) to fully take into account qualifications approved by the registration board, whether such qualifications are awarded in this country, another European country or outside the EU. It also takes into account both EU nationals and non-nationals. In some cases, a qualification held by an applicant may be below the standard required, that is, a lesser qualification. However, the applicant may have undergone additional training or acquired experience which satisfies the registration board, following a test of competence, that he or she has a requisite standard of proficiency for registration.
Amendment No. 28 is a technical amendment to define what is meant by "lesser qualification". Amendment No. 29 is a technical amendment to delete a previous definition which is no longer required in the context of the substantive amendment to section 38(2). Amendments Nos. 23 and 24 are technical amendments required as a result of changing section 38.
I move amendment No. 25:
In page 26, lines 24 and 25, to delete all words from and including "the" in line 24 where it secondly occurs down to and including "determine." in line 25 and substitute the following:
(a) is published in such manner as the board may determine, and
(b) is submitted to the Minister for laying before each House of the Oireachtas.
(7) Subsections (4) and (6) of section 95 apply with the necessary modifications to the bye-laws submitted to the Minister in accordance with this section as if they were regulations made by the Minister.".
I move amendment No. 27:
In page 28, line 25, to page 29, line 10, to delete all words from and including "if" in line 25 down to and including "registration." in line 10 and substitute the following:
(a) the person has been awarded in the State a qualification that the registration board of that profession has, by bye-law, approved as attesting to the standard of proficiency required for registration,
(b) the person is a national of a member state who has been awarded in a member state a qualification in that profession that the State, pursuant to a directive or relevant measure, is obliged to recognise as corresponding to a qualification referred to in paragraph (a),
(c) the person is a national of a member state who has been awarded in a member state a lesser qualification specified pursuant to a directive or relevant measure and he or she meets the applicable compensatory requirements specified pursuant to the directive or that measure for the practice of that profession in the State by persons holding the lesser qualification, or
(d) the person has undergone training in the profession outside the State and he or she -
(i) has been awarded outside the State a qualification in the profession that the registration board is satisfied attests to a standard of proficiency corresponding to the standard attested to by a qualification referred to in paragraph (a), or
(ii) has, in or outside the State, undergone such additional training or acquired such experience as satisfies the registration board, following a test of competence that it may require the person to take, that he or she has the requisite standard of proficiency for registration.".
I move amendment No. 28:
In page 29, between lines 27 and 28, to insert the following:
"'lesser qualification' means a qualification attesting to a standard of proficiency below the standard attested to by a qualification referred to in subsection (2)(a);".
I move amendment No. 30:
In page 30, between lines 10 and 11, to insert the following:
"(b) the person—
(i) has previously been registered within the preceding 24 months, or
(ii) has not been registered within the preceding 24 months and has provided evidence of having attended and successfully completed in the past 3 months relevant, accredited refresher training,".
I need a moment to refresh my memory on this amendment.
Section 39(2)(c) provides that a registration board shall restore a person's name to its register if the person meets the criteria established, by law, for restoration to the register. The amendment proposed by the Deputy is covered by the by-laws of registration boards. Therefore, I do not propose to accept the amendment.
I move amendment No. 34:
In page 37, between lines 25 and 26, to insert the following:
53. The Council may, if it appears to it desirable in the public interest to do so, irrespective of whether or not it has received a complaint, investigate any matter that appears to it to indicate that a registrant may have—
(a) committed an offence, or
(b) behaved in a manner that would contravene the grounds set out in section 52(1).
This amendment is designed to give the council power to initiate investigations on complaints or matters of public interest. I am not sure if this issue is covered elsewhere in the legislation.
Given the potential implications for a practitioner's livelihood, all decisions of the council in the disciplinary area are subject either to appeal or to confirmation by the High Court. It is clearly essential, in that regard, that the council behaves strictly in accordance with the principles of due process at all times. The fitness to practice procedures contained in the Bill are designed to differentiate clearly between the distinct and separate roles of the various constituent elements of the disciplinary process.
The role of the council is broadly twofold in this matter. The council initiates the investigations of a complaint and, following the substantiation of a complaint against a registrant, it dictates an appropriate sanction based on the recommendation of the registration board.
Conferring a broad power on the council itself to initiate a complaint, as proposed by Deputy Twomey, would circumvent the detailed fitness to practice system set out in the Bill and run the risk of rendering the disciplinary committees superfluous or, at least, confer a lower order of importance on them. It might also undermine the objective of the Bill to develop a more modern approach to the investigation of fitness to practice complaints through the introduction of a mediation route and allowing a practitioner to accept a complaint in order to preclude a full hearing in less serious cases. Moreover, there could be concern among practitioners regarding the scope for potential abuse of the complaints system in circumstances where an investigation could be commenced in the absence of a complaint being made.
I appreciate the Deputy wishes to allow scope for the regulatory system itself to initiate a complaint against a registered practitioner. This area is covered in subsection (3) of section 52 of the Bill, which allows the registration board to make a complaint to the council. Therefore, the proposed amendment is not accepted.
I move amendment No. 35:
In page 38, between lines 9 and 10, to insert the following:
"(7) In the event that the Council receives a complaint regarding a registrant who is also a member of the Council, that member shall absent himself or herself from any meetings, discussions, investigations or votes pertaining to the investigation of such a complaint.".
While this is standard procedure, I would like to see this provision made explicit in the legislation. If a complaint is made about a person who is a member of one of the registration boards or the council, that person should withdraw from any discussions or investigations into his or her case.
I support Deputy Twomey on this issue. I do not have a further amendment but presume it is taken as understood that in the event of a registrant, who is also a member of the council, having to absent himself or herself, that the exception regarding attendance at any meetings or discussions would be in the case of him or her being called before his or her peers. I presume that exception is understood and, given that, the proposition in amendment No. 35 is worthy of reflection in the Bill.
On Committee Stage, in response to an amendment tabled by Deputy Twomey, a commitment was made to consult the Parliamentary Counsel with regard to the drafting of an amendment, to be tabled on Report Stage, to the effect that a registrant who is a member of the council and becomes the subject of an inquiry should absent himself or herself from council discussions on the matter.
However, I am not in a position to table this amendment because the advice I have received is that this issue is covered by the principles of natural justice and that the rules of natural justice are expected to be observed by the disciplinary body. These are the rules and procedures to be followed by any person or body with the duty of adjudicating on disputes between parties or when considering the rights of others. One of the main rules is that a person must not be a judge in his or her own cause.
The advice of the Parliamentary Counsel is that including the amendment could have the effect of disturbing the ordinary rules of natural justice that apply as a matter of course. The amendment could have the effect of freezing or limiting the other rules. Clearly, this is not what we wish to do. It also raises other issues, for example, specifying that a council member should absent himself or herself when the subjects of a complaints inquiry merely begs the question as to why we are not specifying that members should absent themselves when a relative or close friend is the subject of an inquiry. Clearly, absenting oneself in those circumstances would be a normal part of proper procedures. Section 59(4) refers to the necessity of observing fair procedures when receiving evidence so the issue raised by the Deputy is dealt with in the Bill. I hope the Deputy will appreciate my position on this matter and the fact that I cannot accept this amendment.
The Minister of State is saying that if a complaint was made about a member of the council and that person pressed the issue, he or she could remain at council meetings while the particular case was being discussed and could contribute to the discussion.
If the issue was pressed, could the member remain in attendance? The Minister of State is saying the person may withdraw from the meeting of his or her own volition. However, if the person pressed the issue, could he or she stay while his or her case was being discussed?
It is normal in a situation where a person is directly involved in a case that he or she does not participate. It is accepted by all groups and organisations that a person cannot be a judge in his or her own cause. As a rule, people absent themselves and do not get involved in discussions which relate to them directly. If a case arose where a member of the council was the subject of a complaint, the other members of the council would object to him or her remaining on and participating in the ensuing debate.
I am seeking clarification regarding a situation where a complaint is made about a member of the council and that member decides that he or she wants to attend the meeting at which the complaint is discussed. If the member insists on being part of the meeting, how will he or she be removed? The Minister of State appears to indicate that if one wished to press the matter, they could remain at the meeting. I would like to have the matter clarified.
Committees will observe fair procedures but the question is how specific does one want to be. Committees and organisations try to be as fair as possible. For instance, if I were on a committee and someone made a complaint against my brother, it would not be fair for me to sit in at the meeting and participate. If one wants to be specific, how far down the road does one want to go? When the matter was last debated, there was genuine support for what was being proposed. However, having given the matter serious consideration, we believe it would not be appropriate.
I move amendment No. 38:
In page 65, in the third column, between lines 13 and 14, to insert the following:"Diploma of British Orthoptics, or".
This amendment proposes to include a qualification which was omitted inadvertently.