Dáil debates

Tuesday, 20 March 2007

Health Bill 2006: Instruction to Committee.

 

5:00 pm

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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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.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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Would this legislation protect me if I were to send the Minister for Health and Children, Deputy Harney, a letter detailing the concerns expressed to me by a constituent regarding practices in a hospital, nursing home or health care facility in County Wexford? I think the answer to that is no. The Deputies and Senators of Oireachtas Éireann are not considered trustworthy enough to be covered by this legislation. People trust us, to some degree, as public representatives, to carry information on their behalf with a certain amount of protection from the State to help look after their interests.

Information given to me as a Deputy may be false and this is something that we must be wary of. Under this legislation it will not be possible to get protection when a constituent passes on information without announcing it in public as a parliamentary question that receives parliamentary protection. I will not be able to write to the Minister requesting she explore concerns expressed to me by a constituent at a clinic. The Minister is suggesting that people with concerns, for example in Wexford or the south east, must instead make their complaints about a person in a health care facility to an individual in an office who may work with or be married or related to the person in question. The Minister is not that stupid and knows that it will not be long before issues of confidentiality relating to who has come before a deciding officer come down the grapevine.

The legislation relating to whistleblowers is useless and not worth the paper on which it is written. People will not be willing to approach a person in the structures the Minister has established, though they will receive whistleblowers' protection. The Minister should have learned from the Leas Cross matter, though it is clear she has made no inquiries as to what happened in that case. If a person who made complaints about Leas Cross had to adhere to these procedures he or she would have been ostracised by those working for the HSE. The Minister must change this legislation so that people can have access to others who they trust with complaints and to ensure a certain degree of anonymity in the system.

The Minister must have a contract with the HSE. If a general practitioner, GP, trainer went to the HSE suggesting his or her trainee had an alcohol problem there could be a risk because, to the best of my knowledge, the GP trainers who train the next generation of Irish GPs have no contract with the HSE. If GP trainers have no contract with the HSE how will the Minister protect them when they express concerns about trainee GPs? If the concerns are expressed in reports that go back to the central office and the information is incorrect they may be subject to legal action. GP trainers cannot protect patients of the future under this legislation because the Minister has no contract with them and is making no effort in this regard. She is blindly letting this happen.

The HSE was set up under the Health Bill 2004 and it took two years for the Minister to sign off on Part 9, the complaints procedure. Regarding Leas Cross, I have seen nothing that gives me confidence that the HSE will not try a cover-up or whitewash if something goes wrong. It is clear that neither the Minister nor Professor Drumm bothered to read the Leas Cross report on protecting patients by Professor Des O'Neill.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I have read it.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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I do not believe the Minister has read it because she has done nothing about the issue. She would not produce this kind of rubbish if she had read the report.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The Deputy attacked me some weeks ago for engaging in overkill on the matter and said inspections were too severe.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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The Minister will occasionally have to think about what people say to her.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The Deputy suggested we were engaging in overkill on the subject of Leas Cross.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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To some degree the HSE did engage in overkill on the matter because it tried to implement standards that had not been signed off. The HSE was on autopilot and when that goes wrong one must be concerned as to what could happen. It is the Minister's job to ensure that these things do not happen.

The Minister has not yet signed off on some of the standards that are being employed in nursing homes across the country, though she had a press conference on them with the usual grandiose statements.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I did not have a press conference on them.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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The Minister did not sign off on them yet they are being used throughout the health service. Is the Minister in charge of the Irish health service? The Minister knows that this legislation will not protect anybody. Senior management, who chose to ignore things going wrong for many years, will not take responsibility for their actions. Usually an unfortunate individual down the line is made a scapegoat and pays the price for things going wrong. This legislation is more of the same.

The Minister spoke eloquently on the two midwives who bravely stepped forward but her legislation would do little to protect them. They would be expected to approach an individual in Our Lady of Lourdes Hospital, where the problem existed in 1998, to make the complaint. There was significant public support for Dr. Neary when he was exposed because people do not expect such things to happen. The two midwives happened to be in a solicitor's office when they made their statements and the solicitor followed up on them. The midwives are not protected by this legislation and could be charged under it. In this legislation the Minister has failed to protect the midwives she spoke of so much.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The midwives are protected as things stand as they were not victimised and their complaint was acted upon. The example of the midwives is a good one.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They would not be known publicly.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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They have chosen not to make themselves publicly known.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They went to a solicitor and so had a way to keep their identities hidden. They will not be covered in this legislation to approach a solicitor in the same way because a solicitor is not the authorising officer.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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They contacted the health board which acted on their information.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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The Minister agrees the legislation will not even protect those who exposed Dr. Neary and the events at Our Lady of Lourdes Hospital eight years ago.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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They are protected, even under existing law.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They would not be protected under the Bill.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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They would be protected.

6:00 pm

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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I fail to see how that is the case. Perhaps the Minister will explain how the two midwives in question would be protected because my reading of the legislation is obviously wrong. The reason the Bill will fail is that the Minister did not provide an option allowing people to contact a truly independent person. She will not achieve the objective she has set for the so-called amendment on whistleblowers. The provision is a sop to hide her failures in this area over the past eight or nine years during which she has paid scant regard to the protection of patients in the health care system. She is trying to rush through a number of Bills to prevent her from being exposed as having disregarded patient protection.

The only way to protect patients is to establish a patient safety authority with full responsibility in this area, as the Labour Party and Fine Gael Party have proposed. People would trust such an independent body to inquire into their complaints. The Minister obviously does not like information of this nature entering the public domain. Her failure to establish an independent patient safety authority notwithstanding, one would at least expect her to regard Members of the Oireachtas as suitable authorising persons on condition that they made inquiries in a discreet manner through the appropriate Minister. Deputies do not abuse parliamentary privilege because they respect the institution of the Oireachtas. The Minister could have made such a provision. She failed miserably and has made a lukewarm attempt to cover up the gross failings of the Government in the area of patient safety.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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I have grave concerns about the Government's general policy of pushing legislation through the House at breakneck speed without affording Members sufficient time to obtain legal advice or scrutinise and debate the various changes it proposes. We are paid to do this job but are not being given a chance to carry out our remit. This approach, which is particularly evident in the area of justice, is also notable in the area of health.

The only reason the House is debating this motion for one hour is that the Ceann Comhairle initiated changes in Standing Orders in response to the practice of introducing swathes of amendments on Report Stage. This practice, a characteristic of the Tánaiste and Minister for Justice, Equality and Law Reform, is evident in the amendment to the Health Bill. It prevents Members from ensuring legislation being passed meets needs.

A chunk of amendments has been introduced at the 11th hour to deal with fundamental issues. The right to speak, the right to know and the right to marry are basic human rights but Deputies do not have an explanatory memorandum for the various amendments being proposed. While we received a note, the normal practice in presenting Bills is to provide an explanatory memorandum to inform Deputies and ensure we are on the right track. In the absence of such a memorandum, I must confess that I do not feel sufficiently well equipped to live up to my responsibilities in this regard.

The Labour Party takes seriously the issue of whistleblowing on which it introduced a Bill in 1999. The Government accepted the Bill tabled during Private Members' business and referred it to committee. It has behaved badly since, however, because the select committee has not met to discuss the legislation. Although subsequently included again on the Order Paper, no action has been taken to progress the legislation.

The Government gave a commitment to provide protection, sector by sector, to allow people to feel safe when reporting something amiss in their sector. If that is Government policy, one would expect it to have a standard template under which the same type of conditions and safeguards for protecting disclosure would apply to each sector. In such circumstances, we would not need to continually reinvent the wheel. Does the health sector have particular requirements which do not exist in other sectors? I do not imagine that is the case. While working in the health sector carries a great deal of responsibility because one deals with life and death, the act of disclosing information to an appropriate person does not vary. The original whistleblowers Bill introduced by my party related to enterprise and employment.

If there is a template for whistleblowing protection, why on earth did the Minister not introduce this amendment, which she knew she would publish, as part of the original Bill? On Second Stage she alerted the House that measures to address this issue were coming down the tracks. This showed a certain incompetence on her part in that she knew what she wanted to do but did not include the relevant provisions in the Bill in the normal fashion so as to enable public scrutiny. Deputies are a small circle. Those affected by this issue have not had an opportunity to make an input to the proposals. Whatever the restrictions applying to Members, those applying to the public at large and people affected by this issue are absolute. Given that the Minister knew what she wanted to do, the question arises as to why the proposals in the amendment were not in the original Bill.

It transpires that the Minister did not have the right to state she would introduce an amendment on Committee Stage because she had no powers to do so. At the end of Committee Stage she informed the select committee that she would introduce the amendment on Report Stage. I believe her admission that she did not have any knowledge about how this was done. Having asked for a short debate, I discovered that the particular requirement was already addressed by Standing Orders. This is not a good way to process legislation.

Deputy Twomey asked whether people can have confidence that the person to whom they are reporting is truly independent. Without such confidence this process will not work. The case of the two midwives who finally blew the whistle after 18 years of practice in the case of Dr. Neary should be salutary. To this day, we do not know their identities and while the Minister may argue that this is by choice, we must ask why they would choose to maintain anonymity after all the good they have done and all the courage they have shown. The reason they choose anonymity is not fear or cowardice but well grounded.

This is an important issue in terms of getting the legislation right. The Labour Party is fully committed to the principle of protecting whistleblowers. We want to support the Minister in extending the Freedom of Information Act to new areas in the health service. As Minister of State at the then Department of Enterprise and Employment, Eithne Fitzgerald, did the country a great service when she introduced a Freedom of Information Act that was regarded at the time as living up to a difficult challenge. It has proven to be progressive even though the Government tried to cut back its provisions. The fundamental principle of freedom of information is now established in our culture.

I cannot help but smile when I hear the Minister speak about a culture of openness in the HSE. Problems still exist in that organisation. Even now the culture of openness is more an aspiration than anything else. My colleague, Deputy Moynihan-Cronin, gave me a letter she received from the HSE dated 12 March relating to issues relevant to this Bill. I understand it was couriered to her. This letter was issued in response to her inquiries about nursing home inspections, including such questions as when they would be available and the reasons that some had not taken place. This information was sought by her on 5 December last but no response was forthcoming until 12 March.

There is much tokenism from the Government in regard to openness and transparency but the evidence indicates otherwise. Reference is frequently made to evidence-based practice in the health sector. This is also a good standard for politics. The evidence does not support the existence of a culture of openness and transparency. Extending the freedom of information legislation to the professional bodies or whatever does not necessarily deal with the issue in terms of how the HSE is operating. We all support efforts to ensure there is more access and that the norm is openness rather than concealment. However, the Minister must recognise that we are dealing with a vast organisation — one of the largest employers in the country — that is almost impenetrable not only from without but often also from within. That is what I hear from staff in the health service.

The amendments relating to the registration of marriages cause us to question the competence of the Government. It introduced legislation in 2004 to enable people to get married in more congenial conditions and surroundings. This was a positive initiative and we all supported it. We are still waiting, however, for that legislation to come into operation. One of the most remarkable discoveries in wading through these 30 pages of amendments is that the right people used to have to be married in their own home where, for example, one of the parties suffered from a chronic illness, was taken away by the Government without it even realising it had done so. This was only brought to its attention because the legislation could not be implemented.

This Bill was originally intended to establish an inspectorate for nursing homes but it became a Bill to establish HIQA. In addition, it now provides safeguards for whistleblowers and also entitles people to get married in their own home. I assume there will be no more surprises. Again, one must question the competence of the Government in providing good legislation. Several of the amendments to the Schedules, for instance, include an asterisk and accompanying note informing us that a "printing error has resulted in incorrect line references". What standards are applied that we end up with these notes and asterisks? Can these printing errors not be rectified before Report Stage?

This may seem a minor point but one must bear in mind the importance of this Bill. Its original purpose, the establishment of a nursing homes inspectorate, became the new purpose of the establishment of HIQA. I hoped this body would be empowered to deal with facilities across the health sector. I was deeply disappointed, however, to find that hospitals, for example, do not come under HIQA's remit. It is likely to be something of a toothless tiger if that function is not included from day one.

The Minister, Deputy Harney, does not work out her actions in advance. This is the Minister whose greatest achievement was to force through the establishment of the HSE without adequate planning and preparation and without even a chief executive officer to manage the change. We have been living with the dire consequences ever since.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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What is wrong with the legislation?

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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I did not say there is anything wrong with it. Perhaps the Minister is not listening.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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In her assertion that I forced it through, the Deputy implied the legislation is faulty. We would be talking about it still if the Deputy had her way.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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The Minister had her chance to speak. My point is that the Government's legacy is appalling in terms of ministerial management.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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That is Deputy McManus's opinion.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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It seems the Government was determined that the HSE would be established irrespective of whether the necessary preparation took place. It has proved to be a disastrous political decision. In other countries, the authorities ensure changes are managed in a manner that is competent and effective and that also ensures transparency. None of those elements is in place and the HSE is under great strain. I ask the Minister to think about that instead of arguing.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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Deputy McManus is incorrect.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will share time with Deputies Gormley and Finian McGrath.

The memo from the Department of Health and Children's legislation unit to the Government Chief Whip's office, which was copied to Opposition spokespersons, states that the Government made a decision on 7 March 2006 to address the issue of whistleblowing on a sectoral basis. It further stated that Ministers were instructed to introduce whistleblowing provisions in draft legislation being prepared in their respective Departments. We find in the case of the Health Bill, however, that the Government's amendments on disclosure of information and the Freedom of Information Act were ruled as being outside the scope of the Bill.

Could the Government not have anticipated such a ruling when it made its decision to incorporate whistleblowing amendments into legislation that was already advanced in drafting? This has created a messy legislative situation. An already unsatisfactory Bill, as I described it on Second Stage, is having two distinct new elements grafted onto it. We must go through a roundabout procedure to deal with these amendments. Has this situation arisen in the case of other Bills as freedom of information amendments were applied to them? How will the Government deal with this in future Bills? Perhaps the Minister will throw some light on these questions in her reply.

It is interesting that the memo to which I referred also states the Health Bill provides the only opportunity in which to make the necessary amendment to the Civil Registration Act 2004. As civil registration bears no relation to the subject matter of this Bill, we can conclude that the Government anticipates little or no further legislation coming before the Dáil and that the general election will be called in a matter of weeks. Perhaps the Minister of State will enlighten us on that.

It is right that whistleblowers should be protected, nowhere more so than in the health services. Brave people in these services have repeatedly exposed wrongdoing and neglect which has resulted in injury and sometimes loss of life. It was a courageous midwife who blew the whistle on the appalling scandal in the obstetrics and gynaecology department of Our Lady of Lourdes Hospital in Drogheda. Michael Neary's professional peers protected him for years from the consequences of his brutal actions on dozens of women, and even tried to protect him after he had been exposed. Every protection should be offered to those who out of selfless motives act in the public interest. They should not be penalised. Too often it is the person who reports the wrongdoing who is punished while the culprit escapes censure.

I agree that some deterrent is needed to prevent false reporting. However, I am opposed to the provision in Government amendment No. 37 for terms of imprisonment for false reporting. That is over the top and I appeal to the Minister to withdraw that part of the amendment as the fines for this offence are more than sufficient. It is entirely inappropriate to impose custodial sentences, and we have few enough places available to accommodate people.

On the civil registration amendment, I am concerned at the way this is being tacked on to this legislation to fill a gap in the 2004 Act. This seems to be another example of legislative drafting going wrong. I agree we should facilitate those who wish to hold marriage ceremonies in their homes and I have no difficulty in facilitating them by way of this amendment. However, questions arise with regard to the way the Government does such business, not for the first time as the recent sexual offences legislation has shown.

Photo of John GormleyJohn Gormley (Dublin South East, Green Party)
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This amendment to the health legislation has not received the type of scrutiny I would like to give it as it has come late in the day. It has become a feature of this Administration that much of its legislation is rushed and put through for optics. We are approaching a general election and the Government wants to clear the decks and be able to say it has dealt with the whistleblowing issue which is being tacked on to the health legislation, and everything is fine.

I and many Opposition Deputies do not have the resources to deal with legislation foisted upon us in this manner. I hold three portfolios and do not have the numbers of staff the Minister of State has to examine these issues in detail. If we are to be serious about legislation, the Opposition must be shown some respect. I know there is a tendency in Government to see the Opposition as a nuisance and to dismiss it. Legislation rushed through in this manner has many flaws.

I have questions with regard to what was called in the Minister's speech, "an authorised person". Whistleblowing is important in exposing corruption and mismanagement. Long before Leas Cross became an issue, I outlined an instance where an employee of a nursing home came to me as a public representative and informed me of appalling conditions, mistreatment of patients and bad food etc. This nurse would not report the situation to her superiors and all she would do was make anonymous phone calls to the then Eastern Health Board, but those calls were never acted on. Her question now would be, what sort of protection would be afforded her under this legislation. The midwives in Our Lady of Lourdes Hospital could well ask the same question.

When people come forward and inform an authorised person, can we be sure they will be treated properly subsequently? We are told they can inform these authorised persons and their disclosures will be known as "protected disclosures". People want to know how safe this system is. Over and over again, I have seen situations where whistleblowers are not protected. I am sure the Minister of State is as aware of such cases, even where people go to a local authority to complain about disorderly neighbours.

I take the point made by Deputy Ó Caoláin, but sometimes false or exaggerated reports are made to the detriment of an individual. Similarly, there is often a level of intimidation and a great deal of fear with regard to making reports, with the result that people do not wish to provide their names. In particular, this is often the case with regard to local authority issues and people complain instead to public representatives. Deputy Twomey made the valid point that we are on the receiving end of so many complaints that we know the score. There is a role here for public representatives. We should be in a position to pass on such information, but, regrettably, that is not covered in the legislation.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I thank the Chair for the opportunity to speak on this motion. It is important when talking about the health service that we have a vision and plan for its development. The health service belongs to the people, the taxpayers and citizens of the State. No-one should hold the high moral ground in debate on the health service nor should the issue be used as a political football. It is important to point out that the majority of Deputies and Senators support the health service and health service staff who do their best to improve the service.

When I was elected in 2002, it was as a member of the independent health alliance which aimed to support reform, investment and change in the development of the health services. During debates in recent years I have been critical of the faults of the health service, but at the same time I have strongly supported the issues and sensible proposals made by Deputies, particularly my colleagues the Independent Deputies, for the development of the health service.

We must have strong legislation and do our best to assist and protect whistleblowers. By whistleblowers I mean people with a genuine grievance or who have recognised something wrong with regard to practices in the health service. I am not talking about cranks and accept we need to be very cautious about false reporting. On the amendments, it is going too far to talk about imprisonment. This is too harsh as fines are adequate to deal with the situation.

Our focus must remain on patients in the overall debate. We must declare it is unacceptable to have patients on trolleys in accident and emergency units, particularly in a country awash with money. Many policies are emerging in the run-up to the election as people want to give away more money. Patients are still on trolleys after ten years of this coalition in Government. That is not acceptable to me, to the doctors, the ancillary staff, the consultants or the nurses. We need reform and investment and this Government must wake up to the reality that we need more beds to provide proper services for patients.

We must continue to develop community care, particularly for general practitioner services. I welcome the recent developments especially on the north side of Dublin because we need quality services to assist accident and emergency services. We must also develop specialist services. Some of the best doctors and nurses on the international stage work here. They entered the profession to save lives and help patients and we should give them our maximum support. They in turn have a responsibility to realise they are working for the taxpayers and need to respect citizens when it comes to change and development, and reform of the health services generally.

I received an e-mail from John Edwards on 5 February last, from the United States, in which he states we must stop using phrases such as access to health care which mean less than universal care and which person, family or child we are willing to leave behind without the care they need. We need a universal solution. This is relevant to today's debate because we need a quality health service and long-term plans to develop that. We should not be afraid of studying and learning from countries which have excellent services and a broad vision of society. I encourage the Minister of State to develop services for people with disabilities who are often forgotten.

Rushed legislation is always dangerous as we should have learned from the past. We all want a quality health service and we should support that demand.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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I thank the Ceann Comhairle and the House for facilitating this motion. I will respond to some of the less than positive comments about aspects of the proceedings, for example, about the whistleblowing provisions. These are based on principles in legislation in other jurisdictions which in general provide for adherence to certain procedures. The authorised persons will be independent. If a person is victimised he or she has recourse to a rights commissioner, and the Labour Court and is protected from civil liability. The midwives in Our Lady of Lourdes Hospital would have been protected by virtue of the definition of employee.

I do not believe, however, that the Opposition spokespersons oppose the fundamental principles underpinning the amendments. How can they oppose whistleblowing, improving freedom of information, and facilitating marriages for those who are too unwell to get married in a public place? The House has considerable interest in these principles and understands the benefits for the health service and for individuals that will result from these amendments.

The provisions for the protected disclosure of information by employees represents a milestone in the health services. It is essential that employees feel empowered to make disclosures in good faith in the best interests of patients and service users. A culture of openness must be an integral part of the health service if we are to continue to improve standards of safety and quality and to ensure the patient is always to the forefront. The amendment we will consider today to provide for the protected disclosure of information——

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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On a point of order, as the Minister of State seems to be responding to the Second Stage speeches and is reading his own speech could he please answer two of my questions? Would this legislation cover the two midwives from Our Lady of Lourdes Hospital who went to a solicitor? Would it protect someone who came to me as a Member of the Oireachtas?

I did not ask many questions in my Second Stage speech but expected a yes or no answer to those questions.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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My understanding is that the midwives would have been protected.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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On what basis?

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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As employees of the health board.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They went to a solicitor. Is the solicitor an independent authorising officer?

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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If they had followed the proper procedures they would have been protected.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They went to a solicitor which is not the proper procedure. They should go to an authorised person within that unit.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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Is the Deputy referring to what happened in the past or what may happen in the future?

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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If the incident occurred today they would not have followed procedures by going to a solicitor.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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They would be protected if they used the procedures outlined here to report to management.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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The solicitor is not management.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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I will refer to this later.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They are obviously not following procedure if they go to a solicitor because the solicitor is not part of the management of the local Health Service Executive office. The legislation would not have covered them.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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My understanding is that they would be.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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We have a problem here already.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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This Act does not cover them.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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They would be covered by client confidentiality if they went to a solicitor.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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Who makes the complaint? Can the solicitor carry the complaint back to management?

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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I will have to return to this question later.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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The solicitor cannot say what they are doing so to that extent they are covered by client confidentiality but this legislation does not protect them. That is a different matter.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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My understanding is that they are protected.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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What would happen if they came to me?

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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I do not know the answer to that question. They must use the procedures set out in the Bill in order to be protected.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They are not protected unless they go to somebody——

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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They must go to the authorised person.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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They must go to somebody in the Health Service Executive where they work in order to be protected by this legislation.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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The authorised person will be independent.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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In what way? Will the Minister of State describe in what way this person will be independent?

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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What is independent? Does the Minister of State mean an Independent Deputy such as Deputy Finian McGrath? What does the Minister of State mean by independent? There is nothing independent about the Health Service Executive and the way most people are employed to work for it.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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That is a judgment.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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The Minister for State should not be so naive. What is independent? We should know what this means. Does it refer to a High Court judge or a solicitor?

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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How will it be defined?

Jim Glennon (Dublin North, Fianna Fail)
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I ask the Minister of State to conclude. This issue can be dealt with on Report Stage.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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It is a secret.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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It is a top secret in the HSE.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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It is a secret and this is supposed to be a "culture of openness".

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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The amendment we are considering today to introduce provisions for protection of the disclosure of information in the health service will allow employees to know that they will be listened to, will not be penalised in the workplace for speaking out in good faith and will be protected from civil liability in making disclosures in good faith, and that disclosures will be examined.

In respect of the amendment to Schedule 3 of the Freedom of Information Act 1997 it is important to remove any doubt about the appropriate right of access under that Act to information held by health bodies. The provisions of the amendment stem from a former review under section 32 of the Act and reflect the recommendations of the Information Commissioner and the report of my Department to the Oireachtas Joint Committee on Finance and the Public Service.

The amendment to Part 6 of the Civil Registration Act 2004, deals with the law relating to marriages. Under section 51, a marriage must be solemnised in a place open to the public. Sadly it may not always be possible for a person who is seriously or gravely ill and who wishes to marry to attend a public venue. We all hope that such circumstances are extremely rare but we need to ensure that provision is made for those who find themselves in such circumstances. As outlined, the proposed amendment to section 51 will remove the requirement that the venue be open to the public where the appropriate authority is satisfied, on the basis of a medical report, that one party is, or both parties are, too ill to attend a public place and gives approval to the person solemnising the marriage for holding the marriage elsewhere.

In human terms, the amendment will mean a tremendous amount to people in difficult health circumstances. Apart from this incalculable benefit, it is important that any question mark be removed in respect of section 51 so Part 6 of the Civil Registration Act overall can be commenced as planned, thus ensuring the modernisation of the marriage registration service, as envisaged by the Act.

I look forward to Report Stage of the Health Bill 2006, during which I have no doubt there will be a very useful and constructive examination of the amendments.

Question put and agreed to.