Dáil debates

Tuesday, 20 March 2007

Health Bill 2006: Report Stage (Resumed) and Final Stage

 

Notice taken that 20 Members were not present; House counted and 20 Members being present,

8:00 pm

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I move amendment No. 11:

In page 13, between lines 19 and 20, to insert the following:

"(c) to report on any failure by the Executive to take appropriate enforcement action in the event of non-compliance with the standards referred to in paragraph (a);".

Tá brón orm nach raibh mé ábalta a bheith i láthair ag tús an díospóireacht ar an Chéim seo. I am sorry I was not in the Chamber for the commencement of Report Stage, but I had to attend a meeting.

This amendment is designed to strengthen the hand of the authority to hold the Health Service Executive to account. It provides for ongoing monitoring by the authority of the executive's compliance with its rulings. The HSE must be fully held to account. There can be little doubt in the minds of any in this House that the HSE has become what I can only describe as an enormous and unaccountable quango, with no democratic accountability whatsoever. With all its flaws, the former health board system had a much greater level of accountability and transparency, most importantly courtesy of the input of democratically elected members of local authorities, who played an important role in its work.

The HSE has become an enormous and unaccountable quango and that is perfectly illustrated by the way in which information relating to its work is now more difficult than ever for Members to ascertain. Members of this House will know that only too well. We have seen the ever-increasing percentage of questions tabled to the Minister for Health and Children and the Ministers of State at the Department that are referred directly to the HSE. The figure in this regard represents an increase of almost 35% on what applied during the previous Minister's term in office. Despite the repeated promises and commitments made by the parliamentary affairs division of the HSE, we continue to encounter inordinate delays in responses to parliamentary questions. In my experience, these delays are generally measured in months rather than days or weeks.

I and other Members warned of this lack of democratic accountability when the health boards were abolished. In return, the Government promised greater efficiency and committed to the better delivery of health care services across the board, but the opposite has happened. We now have a seriously deficient health service at every level, from acute hospital services across the entire range of services. There are grave concerns and difficulties are experienced by service users. There is great discontent among direct employees, those who deliver the service at the coalface, and this has been particularly exemplified recently by the members of the Irish Nurses Organisation and the Psychiatric Nurses Association.

The public hospital system is clearly in a deepening crisis, the primary care strategy has been virtually abandoned, MRSA is endemic and the HSE is being used to implement the privatisation of services through what can only be described as the infamous co-location project, which is very much the baby of the current Minister and which reinforces the two-tier system that is at the root of many of our problems. The HSE and the Minister must be held to account. The HIQA may provide the means to do this, and therefore, I urge the adoption of this amendment. I hope the Minister of State, Deputy Tim O'Malley, is in the position to give us an affirmation of its acceptance.

Tim O'Malley (Limerick East, Progressive Democrats)
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This amendment is very similar to one moved by Deputy McManus on Committee Stage. The position is as follows. Under section 7(1), HIQA is required to monitor compliance with standards it sets, other than those standards set on services inspected by the chief inspector of social services. Under the Bill, "designated centres" are residential centres for children in need of care and protection, residential services for people with disabilities and residential centres for older people, including private nursing homes. Designated centres must be registered by the chief inspector of social services if they are to operate. If designated centres do not meet HIQA standards, they will not be registered by the chief inspector.

The Bill also amends the Health Act 2004 to require the HSE to have regard to other standards set by HIQA in so far as is practicable and subject to the resources available to the executive. It is envisaged that service agreements between the HSE and service providers, under the 2004 Act, will contain appropriate provisions regarding adherence to HIQA standards. Given the extensive powers given to HIQA for monitoring compliance with standards, I believe the level of compliance will be very much evident. Accordingly, I do not intend to accept this amendment.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am disappointed the Minister of State's response is negative. I am not certain whether the response to the previous ten amendments followed the same pattern. However, if this is the pattern of the Government approach, it is on a collision course with Opposition voices. The Government seems unprepared and unwilling to accept reasonable amendments which seek to improve and strengthen the legislation which is severely deficient.

It is critically important that the HSE is held to account and that it is seen to be the case that there is open, transparent accountability applied to all its work and decisions and that the public's confidence is built through such an exercise. That confidence cannot reach the standards we desire until such time as the structures are changed to ensure there is democratic accountability and that the Minister who presides over the Department and the HSE — although she would have us believe she does not — or someone in that role in the future once again takes full and accountable charge of the delivery of health services in this jurisdiction. This is very important.

Again, I commend the amendment to the Minister of State and appeal to him to reconsider the response he already offered.

Tim O'Malley (Limerick East, Progressive Democrats)
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I have reconsidered the amendment, but do not intend to accept it.

Amendment put and declared lost.

Amendment No. 12 not moved.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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I move amendment No. 13:

In page 13, line 35, after "population" to insert the following:

"in terms of the provision and delivery of services and the regulation of

(i) the demand for,

(ii) supply of, and

(iii) number of,

residential places throughout the State".

Does HIQA have any plans to provide for how services will be provided in nursing homes? What is the Government response in regard to demand and supply and the number of residential places throughout the State?

Tim O'Malley (Limerick East, Progressive Democrats)
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Consistent with the national health information strategy, section 7 confers a number of information related functions on HIQA. Those functions are interrelated and are designed to ensure the authority can examine and evaluate existing information systems, provide advice and make recommendations to the Minister and HSE about deficiencies and set appropriate standards for the HSE and service providers.

I understand the intention behind the Deputy's amendment, but believe it could limit HIQA in its information evaluation function and consequently impact adversely on its other information functions. As a specialist body, HIQA must not be constrained in how it examines our complex health information environment. The new section setting out the objectives of HIQA is sufficient to provide proper guidance in this area. The sort of information the Deputy seeks to include in the provision is by its nature the sort of management information with which the HSE should be concerned and is far too detailed to be included in legislation. For these reasons, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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I move amendment No. 14:

In page 14, line 33, before "is" to insert "has been, within the previous 2 years, or".

This amendment concerns the issue of what is covered in the section, whether it covers what is current or previous years.

Tim O'Malley (Limerick East, Progressive Democrats)
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While I appreciate the principle behind this amendment, it is not a good idea for HIQA to revisit past events. HIQA is a new body with a new mandate and its role will be to prevent the mistakes of the past recurring, through quality-based and patient safety driven standards, accompanied by better information systems rather than by investigating them.

We have a range of existing mechanisms that can be used to investigate historical matters, for example, the legislation introduced by the Tánaiste and Minister for Justice, Equality and Law Reform. This legislation would allow investigations in the health area. It would be inappropriate for a body such as HIQA to begin by conducting historical investigations.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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That is a great pity. We do not propose an indefinite backward period. That HIQA does not have a role in this regard undermines its strength and supports the argument made by those on this side of the House for a patient safety authority. If we look at the record on health, we see that many serious scandals were only unearthed a long time after they began. The Dr. Neary case is a good example of this. It took a long time, even after the health board acted, for the full story to unfold and for justice to begin to be done. It is a pity that it takes a while to expose such situations within the health service. This is not being established on a greenfield site as if nothing had ever happened before the establishment of HIQA. In fact HIQA should have been set up at the same time as the HSE. That was the deal, and the structure was to be such that there would be a watchdog and a new form of management. We never got the watchdog although we got the new form of management which is not always a pretty sight.

The watchdog being introduced has such limited powers that "watchdog" is probably not an accurate term. It is disappointing that HIQA's brief does not include assessing hospitals or investigating other issues. Much was promised with HIQA. It was rolled over with the inspectorate of nursing homes which was not its original function. It was to be an independent authority that would protect the patient. We must wait, however, for a new Government to establish a patient safety authority for a secure system that people can trust. That authority will listen to complaints rather than say that it cannot pay attention to incidents that happened before the date of this legislation, no matter how bad they were. How will HIQA learn if not from past experience? Is that not the best way for us all to learn?

Tim O'Malley (Limerick East, Progressive Democrats)
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There is no need for me to say more than that I do not intend to accept the amendment.

Amendment, by leave, withdrawn.

Deputies:

Amendments Nos. 15 and 32 are related and will be discussed together by agreement.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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I move amendment No. 15:

In page 15, between lines 10 and 11, to insert the following:

9.—In any investigation under section 8—

(a) the report of the investigation shall be absolutely privileged,

(b) due process and fair procedures shall be observed,

(c) any person called to give evidence, shall be allowed legal representation if he or she so requests, and there shall be a duty on any person conducting an investigation to inform such a person of his or her right in that respect, and

(d) there shall be a duty of cooperation on any member of staff of the service provider save where such a person receives legal advice to the contrary.".

In the earlier debate on the amendment to this Bill I asked the Minister of State to explain whether it covered certain examples, such as the two midwives from Our Lady of Lourdes Hospital. This legislation does not protect them but they are covered under other legislation which provides for client privilege which entitles someone to make a complaint to a solicitor who protects his clients if he passes the complaint on to an authority such as the former health board. Had the two midwives in question approached anyone outside the mythical chain of command that the Department has set up they would not have been protected. The Minister of State describes this structure as independent but we know it will be deeply involved with the Health Service Executive, HSE, in some form or other and will not be as independent as he thinks. It is always necessary to protect people. Each time I put these questions to him the Minister of State referred to the advice he was receiving to get himself out of the problem rather than state the situation.

I also raised the issue of a general practitioner trainer who might pass on his concern about one of those he was training to the HSE. The trainer would not be covered because he or she has no contract for training a GP. It might sound unbelievable to the Minister of State that 150 GPs are trained every year but there is no contract with the trainers. The legislation does not cover someone such as a consultant employed by Deloitte & Touche to examine PPARS who might express concerns about the system. This shows the deficiency in the whistleblowers amendment.

My amendment approaches the issue from the other side. Although we on this side of the House have always told the Government it needs to wake up and root out the poor nursing homes there is a serious need, which the Minister often does not realise, to protect natural justice because the HSE can and does abuse its position. At one time parents caring for foster children with autism expressed doubt that they could cope. The HSE did not send in psychologists, social workers or extra home helps, it sent in the A-Team to kick down the door and grab the children. In this way it can sometimes abuse its clout. This amendment aims to protect everybody's constitutional rights. We want to make sure that people being investigated are made fully aware of their legal rights so that we can always be sure of proceeding in the proper manner.

When this matter was raised on Committee Stage the Minister said she would consider this issue and respond to us.

9:00 pm

Tim O'Malley (Limerick East, Progressive Democrats)
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My legal advice is that absolute privilege, which is a complete defence to a defamation action applies even where the words complained of are published with knowledge of their falsehood and with the intention of injuring another. While I do not believe that reports of investigations will contain deliberate falsehood or be slanted in any way I am reluctant to include such a wide provision on privilege in the Bill. The Minister stated on Committee Stage that the legal advice available to her was that a person undertaking an investigation or inspection and making a report would have qualified privilege. He or she would have a defence in a defamation case where statements were made in good faith.

In view of the Deputy's concerns in the matter, further legal advice was taken in regard to what provisions, if any, might be included. Accordingly, having consulted further and concerned to ensure that there is no ambiguity or lack of clarity on this important issue, I am tabling amendment No. 32 which expressly provides for qualified privilege in respect of reports or documents prepared by, or communications made by HIQA, an authorised person, the chief inspector, inspectors and qualified persons. As is the norm in this area, however, such reports, documents and communications must be made in good faith and in carrying out relevant functions by the persons concerned. The legal advice available to me on due process and fair procedures is that these are implicit under common law and that specific inclusion of this provision would be redundant and perhaps even result in an unintentional effect on common law. Any person connected with an investigation can have access to legal representation if he or she so wishes. If the Bill is silent on this matter the right to legal representation is part of due process in common law. I am reluctant in any event to accept the amendment as inclusion of this provision in the Bill immediately begs the question of who is to pay for the legal representation. In any event, the legal advice is that it would not be appropriate to include the provision.

With regard to the duty to co-operate, save where the staff member receives legal advice to the contrary the legal advice is that the proposal in this regard would weaken the Bill. It would be odd if the legal advice were that somebody should not co-operate given the obligations to do so under the Bill. In this regard, a person who is in charge of a premises or service, or who possesses or is in charge of relevant records, is required to furnish any information required by an authorised person appointed by HIQA to carry out an investigation.

There is also a requirement under the Bill to provide an explanation of any record or other information provided or matters which are the subject of the functions being exercised by the authorised person. Moreover, section 76 provides that authorised persons cannot be obstructed or impeded when conducting an investigation and that false or misleading information must not be given to an authorised person. Contravention of these provisions is an offence under the Bill. On this basis I do not intend to accept amendment No. 15 but hope the Deputy will be reassured that the Minister's amendment, together with the legal advice I have outlined, is sufficient to meet his concerns.

A GP trainer or GP trainee who is acting inappropriately could be reported to the Medical Council and the person making the report would be protected under the legislation.

The purpose of the provision is to ensure that proper procedures are put in place to enable employees to make reports in good faith. It follows the principles set out in whistleblowers legislation in other jurisdictions, which legislation in general provides that the relevant organisation establish procedures and appoint officers to whom reports can be made. This Bill provides for both. The authorised person, by virtue of being a statutory officer, is independent in the performance of his or her functions. The Minister's amendment, therefore, provides the legal framework for making such disclosures.

On Deputy Twomey's point, it should be remembered that it was to the North Eastern Health Board's solicitors that the midwives made their initial complaint. This new statutory framework will mean that, in future, there should be no reason an employee would feel the need to report the matter to a legal representative. The two midwives would be protected as employees.

Amendment, by leave, withdrawn.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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I move amendment No. 16:

In page 17, to delete lines 1 to 3 and substitute the following:

"(9) Not less than 40 per cent of the members of a Body shall be men and not less than 40 per cent shall be women.".

The subject of this amendment arises time and again and relates to ensuring a gender balance on State boards and bodies. When I raised this matter on Committee Stage, I was struck by the fact that the Minister supported it in principle. She said there could be problems in ensuring the balance across the board and claimed that women dominated in many areas. That was news to me. The Minister said she would consider my amendment sympathetically.

There is no provision in the legislation — maybe I am missing it — to show there has been any movement to get the balance right. Ultimately, it is all a matter of where one stands. If one is in favour of ensuring a balance, one can deliver it. Arguments were made in the past that a gender balance of 40% could not be achieved because there were not enough women in senior positions in the areas of concern. When this was put to the test, it was quite clear that the Minister was motivated and wanted to do right by women. As a result, many women have been promoted to decision-making positions in a beneficial way. This goes some way towards striking the balance although we are a long way off parity.

In this instance, the argument is that we may not be able to find enough men in senior positions. I do not accept this in respect of women or men. If this were a matter of Catholics and Protestants, black and white or Jew and Christian, we would not even have to debate it; we would automatically have provided safeguards to ensure proper representation on decision-making boards. Given that this is an issue of men and women and that we operate in a context in which women comprise only 13% of the representatives of this House, which figure is lower than the average in sub-Saharan Africa, there is a culture of denying the imbalance that pervades not only State boards but also other boards with decision-making power throughout society. When we have an opportunity to put things right, we should seize it and address the imbalance in good heart. I believed the Minister had taken on board my message and therefore the Minister of State might tell me what resulted from the fine words we heard on Committee Stage.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It should not have been necessary to table this amendment. Every Government-sponsored Bill providing for the appointment of members to a board, authority, council etc. should contain the requirement for the appointment, through affirmative action, of at least 40% of either gender serving on the board. That should be expected of Government. That we must repeatedly and continuously make the argument is a damning indictment of the Government's failure over the past ten years to employ affirmative action to ensure there is every opportunity for women to play a role not only on such bodies but at the heads of such bodies.

Any cursory look at the make-up of the vast majority of care providers in the health and social care provision areas will reveal that the overwhelming number of them are women. Are we to anticipate once again the oft-trundled out reply rejecting the arguments behind such an amendment? It is long past time that the Government grasped the nettle and acknowledged that the only way to ensure that women will have the opportunity to play a full participatory role in such bodies is through such a provision in legislation. The authority in question is a particular authority where we should adopt this approach. Who among us will say that women cannot aspire to hold up to at least 40% of the posts on this board? It beggars belief that anyone would defend the view that would leave us in a situation where the overwhelming number, if not all, would be men. I join Deputy McManus in appealing to the Minister of State to turn the corner on this issue through this legislation. I therefore commend the amendment to him.

Tim O'Malley (Limerick East, Progressive Democrats)
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The Minister was sympathetic to the objective of this amendment on Committee Stage. She made the point then, and I make it again, that under the existing provision, there is nothing to stop 80% or even the entire board of the authority being female. Currently five of the 12 board members of the interim HIQA are women. The matter has been further researched and we have found that legislation establishing boards invariably addresses the matter of gender balance in board membership. The exact wording tends to vary from statute to statute but it seems clear the principle of gender balance is normally stated as an objective rather than an absolute requirement. There is one exception to this principle and I will refer to it later.

This is to ensure that decisions on board membership, especially in cases of casual vacancies, which can create particular difficulties where gender based percentages or absolute numbers are involved, are not determined solely on gender considerations. There is a particular need for this where the organisation involved has specialised functions. In such situations a primary consideration must be that a board member has the knowledge, experience and/or qualifications to enable him or her to discharge properly his or her public responsibilities as a board member. HIQA is a specialised body covering a wide range of expert areas, including safety, quality, health information systems and standards and health technologies. To be fully effective there must be flexibility in board appointments to ensure the appropriate mix of specialist skills on the board. Accordingly, it would be inappropriate to subject appointments to an overriding and exclusive gender consideration, especially where a vacancy occurs where a specialist member resigns and his or her expertise must be replaced.

In addition to the above policy consideration, legal advice was sought. That advice stated the current provisions in the Bill adequately address the matter of gender balance. The Minister has a mind to ensure there is an equitable balance between men and women and to allow for the proper retention of necessary ministerial discretion. More significantly, from a legal perspective, the advice was that acceptance of the proposed amendment posed a legal risk that arises from the fact that at any given time, there may be an unavoidable delay in making a required appointment after a vacancy occurs pending the recruitment and appointment of a suitably qualified man or woman. Whenever the number of board members falls short of statutory requirements, there is a chance that the argument that the board, and hence the authority, is not legally constituted might succeed. If so, that has potential to adversely affect the board's ability to function, the authority of which the board is the governing body and the authority's employee, the chief inspector.

I referred earlier to an exception to the special principle, the Education for Persons with Special Needs Act 2004, which requires the Minister to ensure that at least six of the members of the 13 member council are women and at least six of them are men. Even in that Act, when it comes to the membership of the special education appeals board, which is a specialist board, there is no reference to gender balance. It is stated that the chairperson and ordinary members of the appeals board shall be appointed by the Minister from among persons who have a special interest in or knowledge of education and, in particular, the education of persons with special educational needs.

Having regard to all these factors and the legal advice received, I feel that the current provision is the most appropriate in the circumstances.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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Why am I not surprised?

Amendment, by leave, withdrawn.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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I move amendment No. 17:

In page 17, after line 41, to insert the following:

"(3) A disqualification pursuant to an order of a court referred to in subsection (2)(a), (c), (d), (e) or (f) shall not take effect until the ordinary time for appealing against any such order has expired, or if an appeal is lodged within that time, until any such appeal, or a further appeal therefrom is determined.".

This amendment relates to the protection of the rights of an individual to appeal a decision because otherwise the Bill would have the effect of disqualifying such a person from membership of the body. It is to protect the rights of an individual in this situation and I tabled this on Committee Stage on legal advice. The Minister may claim it is implicit that this right exists but that is clearly wrong in law. There is a provision to protect people in the Electoral Act in the same way we propose in this amendment. I was surprised the Minister did not table a similar amendment. Perhaps the Minister of State is going to accept this amendment.

Tim O'Malley (Limerick East, Progressive Democrats)
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On Committee Stage, the Minister indicated she would consider this matter further, especially in light of the Deputy's reference to the Electoral Act. Since then, the relevant provisions in the Electoral Acts, namely sections 41 and 42 of the 1992 Act, have been examined and legal advice has been obtained.

The situation covered, however, is not identical to that in the Health Bill in matters that give rise either to disqualification for election to the Dáil or from existing Dáil membership. The Electoral Acts do not disqualify someone from Dáil membership even where he is convicted of a serious indictable offence. In terms of board membership of HIQA, however, it would not be appropriate that a person convicted of an indictable offence should remain as a member. Even in situations where such an individual was contemplating or undertaking an appeal, it would be inconsistent with his professional and personal responsibility to protect the reputation of HIQA to remain on the board.

The legal advice received from parliamentary counsel is that the statutory triggering of automatic cessation of board membership as currently set out in the section is appropriate under Irish law and does not offend the Constitution. Hence, there is no need constitutionally for a saving provision that would allow a person to continue as a member of the board pending expiration of an appeal period or the outcome of an appeal.

Eligibility to run for the Dáil and the matter of removing an existing Dáil Member go to the heart of our parliamentary democracy. In that context, we are not comparing like with like either generally or specifically in terms of general principles when we compare Dáil membership with membership of a State board. This was a point strongly made by Parliamentary Counsel. He distinguished between the right of adult citizens to stand for election to the national Legislature, which is an essential feature of a democratic state, and membership of a board appointed by a Minister. The limitations provided under section 42 of the Electoral Act 1992 are consistent with the former but unnecessary for the latter.

Provisions to the same effect as section 14(2) of the Health Bill 2006 are common in the Irish Statute Book without saving provisions staying their operation pending the expiration of an appeal period or the outcome of an appeal. Parliamentary Counsel's opinion was that for consistency throughout the statutes it would be inadvisable to provide differently here. All of the advice received confirmed the point that we are not comparing similar situations and, on balance, the current provisions, which are well established in legislation dealing with membership of State boards, are appropriate. I shall not, therefore, be accepting the amendment.

Amendment, by leave, withdrawn.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 23 is related to amendment No. 18 and they will be taken together by agreement.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I move amendment No. 18:

In page 23, to delete lines 43 to 47.

On a point of clarification, does Deputy McManus's indication of withdrawal mean that it does not stand in my name as——

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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No. We will hear you on it, Deputy.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Thank you, a Cheann Comhairle. I was just curious because it is what happened on the last one.

This is an odd situation in terms of lines 43 to 47 because what that subsection provides for in real effect is a gagging order against the chief executive. This is an exercise to not only censor but close down the independent utterances of the chief executive. I wonder about the genesis of this subsection. Is it indicative of the difference of opinion regarding the numbers of public beds that might be required between the Minister on the one hand and the chief executive, Professor Drumm of the Health Service Executive, on the other? What is the Minister's and the Department's explanation for the inclusion of such a gagging measure which is counterproductive because it is in the public interest that we have full exposure of such differences of opinion and the dichotomy that can exist between the Minister and the Department on the one hand and the chief executive of the HSE on the other. I would like to hear an explanation of it. The amendment, which seeks to delete same and ensure there is greater public scrutiny, awareness and knowledge of the range of different opinions that exist between both entities, should be accepted.

Tim O'Malley (Limerick East, Progressive Democrats)
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There was much comment in committee about this subsection being a gagging measure. The Minister stated that she saw the principle behind this provision as fundamental to the way our parliamentary system works. I can only set out again in some detail the valid justification for the provisions the proposed amendments seek to delete.

Section 24 provides for the chief executive of HIQA to attend before certain Oireachtas committees to give an account of the general administration of the authority. Section 41 similarly requires the chief inspector of social services to attend and to give a general account of the activities of his or her office.

It is important that there should be accountability to Oireachtas committees but that accountability must be properly focused in terms of the persons appearing. Both the chief executive officer and the chief inspector are employees of HIQA. While they are senior public servants they are not responsible for formulating Government policy and to require them to comment either on the merits of any Government policy or the merits of the objectives of such policies would be inconsistent with their role. Accordingly, the section recognises that the chief executive officer and the chief inspector should be answerable for administrative matters only. It is the responsibility of the Minister to answer to the Oireachtas in respect of policy matters. Acceptance of the amendment would dilute the role of the Minister in this regard and for those reasons I do not accept this amendment.

Amendment, by leave, withdrawn.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 19 is in the name of Deputy McManus. Amendments Nos. 20 and 34 are related and may be discussed with amendment No. 19.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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I move amendment No. 19:

In page 28, line 41, after "code" where it secondly occurs to insert the following:

"and the Authority shall comply with the code or revised code as so approved".

With regard to amendment No. 20 there is a serious issue that is not being addressed by the Minister with regard to conflict of interest. I am surprised at this when I consider what the Minister said on Committee Stage. A very serious situation arose in regard to the HSE. A special adviser was brought in by the chief executive officer of the HSE who had been connected with a company that was involved in developing primary care centres. He subsequently left his role as adviser on primary care strategy prematurely and is now on the board of directors of the same company, that is, a commercial company interested in making profits out of the primary care provision. In the same way, we have various bodies being established and new inputs into the health service, particularly from private for profit companies, but we do not have robust regulation of standards when it comes to participation in what can be important and influential bodies. We have seen that in the HSE.

We are now establishing a new body at HIQA and the issue of conflict of interest has not been bolted down. The Minister accepted the criticisms I made on several occasions. I make this criticism not to get at an individual but because there have been shock waves through the health service, particularly among health professionals who are concerned at the new direction the Minister is taking without considering the dangers. When there is a great deal of money to be made from providing health care and determining the nature of the delivery of health care, there will be predatory practices. We do not have the protections or the experience of what is happening now, whether it is in co-located hospitals, the provision of primary care centres or issues related to the pharmacy sector, with which the Minister of State is very familiar. The Pharmacy Bill will be debated shortly and there are not protections in that Bill from these predatory forces. I have major concerns about that. Attention has been given to this issue on Committee Stage. I raised these concerns on Committee Stage and I felt I got a good hearing from the Minister but nothing is happening. That is a characteristic of this Minister for Health and Children. She makes all the right comments but then does something else or, more importantly, she does not do what must be done to provide the protection for the public good.

Tim O'Malley (Limerick East, Progressive Democrats)
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I will respond to amendments Nos. 19, 20 and 34 together. There are several related provisions in the Bill dealing with the codes of governance — section 33; standards of integrity, section 79; and codes of conduct, sections 80 and 81 — which are relevant to any consideration of these amendments.

Regarding the first amendment, it is clear that the authority shall comply with its own code of governance. Any failure by HIQA to comply with this code would be a matter for the Minister to consider and to determine the appropriate action.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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That is not written into the law. There is nothing to require compliance.

Tim O'Malley (Limerick East, Progressive Democrats)
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I draw particular attention to section 33(5) which requires that arrangements for implementing and adhering to the code of governance must be included in the authority's annual report and section 36(2)(e) requires that the annual report contains a report on the authority's arrangements for implementing and adhering to its code of governance. In addition, under section 33(4), the code will be publicly available. These provisions will further ensure HIQA's compliance with the code.

As regards the second amendment, that the code of governance should include a requirement on board members, staff etc. to disclose interests and avoid conflicts of interest, which would then be available through a register for public inspection, I will make a number of points which I hope will reassure the Deputy that the provisions in the Bill are adequate and appropriate.

The key point of the proposed amendment is to address conflicts of interest. The Minister stated in committee that she shared Deputy McManus's view on the importance of conflict of interest issues and in the past week has had this issue investigated further. It would perhaps be useful to set out the implications of the ethics Acts — the collective citation for the Ethics in Public Office Act 1995, the Standards in Public Office Act 2001 — and the authority. Under the ethics legislation, if a conflict of material interest exists the person concerned, if he or she is a person to whom the ethics legislation applies, must not perform the function and must disclose the interest. It is intended that board members and senior management of the authority will be subject to the Standards in Public Office Act 2001. In that regard, the interim HIQA is already a prescribed body under regulations made in 2005 for the purposes of the Ethics in Public Office Act and its chairperson, board members and chief executive are designated as designated directors and persons, respectively, for the purposes of these Acts.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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As it is now 9.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Health and Children and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."

Question put.

The Dail Divided:

For the motion: 47 (Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, Séamus Brennan, Joe Callanan, Pat Carey, John Carty, John Cregan, John Curran, Síle de Valera, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Michael Finneran, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Tony Killeen, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, John Moloney, Michael Moynihan, Michael Mulcahy, Éamon Ó Cuív, Willie O'Dea, Liz O'Donnell, Denis O'Donovan, Noel O'Flynn, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Brendan Smith, Noel Treacy, Ollie Wilkinson, Michael Woods)

Against the motion: 33 (Bernard Allen, Dan Boyle, James Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Paudge Connolly, Joe Costello, Ciarán Cuffe, Jimmy Deenihan, Olwyn Enright, Martin Ferris, Eamon Gilmore, John Gormley, Kathleen Lynch, Finian McGrath, Paul McGrath, Paddy McHugh, Liz McManus, Olivia Mitchell, Catherine Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Eamon Ryan, David Stanton, Liam Twomey)

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Broughan.

Question decared carried.