Wednesday, 6 November 2019
Regulated Professions (Health and Social Care) (Amendment) Bill 2019: Report and Final Stages
I move amendment No. 1:
In page 25, between lines 3 and 4, to insert the following:
“Amendment of section 44 of Act of 1985
17. Section 44 of the Act of 1985 is amended by the insertion of the following subsection after subsection (3): “(4) (a) Paragraph (b) applies where—(i) a registered dentist becomes the subject of an order under subsection (3), and
(ii) the Council has reason to believe that—(I) the dentist is registered in another jurisdiction as a dentist, or has made an application to be registered as a dentist in another jurisdiction which has not yet been determined, and(b) The Council shall give notice in writing to that body of that order and may, notwithstanding any provision of Directive 2005/36/EC or of the Regulations of 2017, provide that body with a copy of the order and copies of other documents relevant to that order.”.”.
(II) that order may not have come to the attention of the body duly authorised to perform functions in that jurisdiction that correspond to the functions of the Council.
These amendments address an issue relating to data exchange which my colleague, the Minister of State, Deputy Jim Daly, indicated on Committee Stage. At present, regulations in European Economic Area or EEA states are automatically notified when a sanction has been imposed on a registrant. In drafting the Bill, it was considered prudent to provide for this for third countries also, particularly in the context of Brexit. The Bill, therefore, provides that a regulator shall notify sanctions to its equivalent body in another jurisdiction if the regulator has reason to believe the registrant is also registered there. All five Acts provide a mechanism for the regulator to apply to the High Court for the immediate suspension of a registrant where this is considered necessary to protect the public. This suspension comes into effect while steps are being taken under the fitness to practise process. As indicated on Committee Stage, it is necessary to provide separately for exchange of data between regulators outside the EEA space in these circumstances. Accordingly, a separate provision in each of the Acts is required to provide for this.
The amendments I am now proposing will provide that the regulators will be able to advise their equivalent body in another jurisdiction of an order of the court under the immediate suspension provision where the regulator has reason to believe the practitioner is registered in that jurisdiction, or has made an application to be registered, and that the regulator in that jurisdiction is not aware of the court order. There is already provision to notify in certain circumstances and we are adding to that a provision to notify under the immediate suspension provisions. This was largely welcomed on Committee stage.
I move amendment No. 2:
In page 25, to delete lines 21 to 36.
I have submitted this and similar amendments on which we had a discussion on Committee Stage. We need to open up a dialogue about what exactly is being proposed. The sanctions of admonishment and censure in the respective Acts are considered relatively minor and would not automatically be published where the appropriate regulatory body considered it was not in the public interest. I do not understand what the problem is with the original legislation or why there is a need to make changes at this stage. There is considerable confusion and concern among workers across the health service who are affected by these changes, such as nurses, physiotherapists, social workers, optometrists, doctors and dentists. Why is the Minister seeking to change the primary legislation in this way? The regulatory body may take the view that it is not in the public interest but this almost places an onus on the relevant body to publish.
I will give the Minister a small example of what I mean. Years ago, I represented a nurse who was accused of something that was minor but serious. When she committed the misdemeanour she was in the grip of an issue with addiction but she got her life back on track and, by the time she came before the fitness to practise committee, she had already come through it and was ready to go back to work. The committee took a very benign view but she was terrified that any reference to what she had done would be published, on the basis that she did not present a threat to anybody. She had had an incident but she had dealt with it and had come through it on the other side. Has the Minister had discussions with the representatives of the people who are going to be at the business end of this provision? Can he outline the rationale behind the provision? It seems to me to place an onus to publish. While we should always have a consideration of the public interest, we should also have consideration for the person who will have to deal with the consequences of this.
The Bill amends all five Acts to require regulators to notify both the HSE and the employer when a sanction is imposed on a registrant. Provision has also been made to allow the regulator to notify the HSE and the employer where a sanction is applied by a regulator outside the State and the regulator is satisfied that it is in the public interest to do so. This provides a very important protection to the public in light of the increased mobility of health professionals globally. Deputy O'Reilly's amendment would restrict the Dental Council's powers to notify the HSE only when a sanction is imposed in this country and not outside.
I understand the Deputy's intention and I am conscious that the Bill will go through to the Seanad, where will be another chance to have a look at this. From a technical point of view, this would be an accidental consequence of the amendment. It would also remove the express power to notify an employer when such a sanction is imposed and this approach would run contrary to the purpose of the Bill. None of the other amendments for consideration is attempting to remove these powers of notification in relation to the other regulated health professions so this amendment would treat dentists differently from all other health practitioners, though I accept that this is also not the rationale behind the amendment. For this reason, I cannot accept the amendment. On the broader point, however, the capacity to notify the HSE when a registrant has a sanction imposed on him or her outside the State is an important provision and, in the interest of equity, should apply to all health professions. I am not convinced of the case for not having such a provision but perhaps the Deputy and I could discuss it when the Bill goes to the Seanad, as well as the technical issues I have with the amendment.
Other provisions in the Bill require practitioners to make a declaration upon application for registration and every year after sanctions or convictions are applied outside the State. The Bill also provides the power for all five regulators to notify employers and the HSE of sanctions imposed in any country outside the State but this amendment would remove this power in the case of dentists. Public interest is always the test the regulators apply and both the Deputy and I agree with them on this. I am satisfied that the regulators understand the meaning of "public interest" but I am happy to tease the issue through further if the Deputy wishes to consider further amendments in the Seanad.
For clarification, it was not my intention to isolate one grade, group or category, although I accept that is how it looks. Sometimes, however, it is not in the public interest.
Let us put aside the technicality of the amendment. I accept this is isolated to one group. Does the Minister accept there are scenarios where the sanction could be quite light? The offence, for want of a better word, might be relatively minor. There are scenarios where the public interest is not served by publication or notification of one's employer. I am thinking in particular of the woman mentioned earlier, who I will not name. She was terrified that, should she choose to re-enter the workforce, her employer would be advised of her offence. I acknowledge that an offence was committed, but she had more than come through it. Does the Minister accept that there are scenarios where, for whatever reason, it is not always in the public interest to publish this information? There are situations where the damage caused to the person in question would outweigh any benefit to the public interest.
I accept that there is a technical issue with the amendment. That is fine. Between now and when this Bill comes before the Seanad, I ask the Minister to engage with those representing these people because there are scenarios where the public interest would not be served. I accept that the public interest is absolutely paramount. However, I have experience of situations where it would definitely not have been in the public interest to publish that information in any way, shape or form. It would bring people back to a time in their life when they had a particular issue, through which they have now come. It would be unfair to keep bringing them back to that place.
I accept the Deputy's long history and involvement in representing employees in the health service, as well as her knowledge and bona fides in this area. I am happy to engage further on this issue between now and the Seanad's consideration of this Bill.
I will make two points on this amendment. I accept that there are situations where it may not be in the public interest to publish certain information, but I also trust our regulators to make that determination. The independence and robustness of our regulatory bodies is right and proper. We are empowering our regulators and trusting them in this regard. That is an important point.
On my second point, I do not wish to be pedantic but there is a difference between publication and notification.
Publication suggests that something is published in a newspaper, as opposed to notification. A person's employer has a right to be notified, but people also deserve second chances. It is about striking that balance. By and large, our regulators understand how to do that and get it right. I am happy to engage further between now and the Bill's passage through the Seanad.
I move amendment No. 3:
In page 30, line 22, after “post” to insert “or electronically”.
I can be brief because this is a largely technical series of amendments. The Minister of State, Deputy Jim Daly, introduced a series of amendments on Committee Stage that would give regulators the option to send notifications about registration by email or other electronic means. At that time, the Minister of State signalled that there may be a need to introduce further amendments on Report Stage to provide for notification by electronic means for events other than registration. We are now bringing forward those technical amendments.
I move amendment No. 4:
In page 32, between lines 10 and 11, to insert the following: “Amendment of section 27 of Act of 2005
26. Section 27 of the Act of 2005 is amended, in subsection (3), by the deletion of paragraph (e).”.
This is another technical amendment flagged on Committee Stage. The Minister of State brought forward an amendment on that Stage to further amend the Health and Social Care Professionals Act. The amendment specifically sought to remove the requirement for the council to refer all sanction recommendations from the fitness to practise committee to its registration board. At that stage, the Minister of State indicated that a further technical amendment would be required on Report Stage to delete the recommendation-making function of the registration boards contained in section 27 of the Health and Social Care Professionals Act, as this had been inadvertently omitted from the Bill. This amendment deletes the relevant section of the Act. It is a purely technical amendment to fix an error.
I move amendment No. 5:
In page 36, to delete lines 30 and 31 and substitute the following: “33. Section 50 of the Act of 2005 is amended—(a) in the definition of “disciplinary sanction”, by the substitution of “section 66(1)” for “section 65(1)”, and
(b) by the substitution of the following for the definition of “poor professional performance”:“ ‘poor professional performance’, in relation to a registrant of a designated profession, means a serious error or failure of the registrant to meet the standards of competence that may reasonably be expected of registrants practising that profession;”.”.
The Minister will be aware that in 2015, the Supreme Court upheld the dismissal of a Medical Council ruling made against consultant paediatrician, Professor Martin Corbally. A finding of poor professional performance was made against Professor Corbally by the Medical Council, and he challenged that finding all the way to the Supreme Court. The Supreme Court judgment was a landmark one. The five-judge court unanimously dismissed the Medical Council's appeal against the High Court's quashing of a council decision that Professor Corbally should receive an admonishment over a once-off error. The court said that a threshold of seriousness must be met for a medical professional to undergo a public inquiry. It further stated that it was neither fair nor just that someone like Professor Corbally was subjected to an inquiry with extensive publicity, some of which lacked fairness and moderation. Despite the landmark judgment, the case has not been legislated for. With that in mind, I have submitted this amendment to try to legislate across all the primary Acts to incorporate the Corbally judgment in the definition of poor professional misconduct. I would prefer if such legislative change came from the Minister, but that has not happened. We discussed this on Committee Stage. In the absence of a satisfactory response from him, I will press the amendment and the others that incorporate the Corbally judgment in the definition of "poor professional performance".
I refer to the related issue of appeals going to the courts. A lengthy discussion was held on Committee Stage about finding a reasonable way for people to avoid going to the High Court as their first port of call for an appeal. As Deputy O'Reilly said, it is sometimes necessary for them to do so, and the Supreme Court can also be brought in. At that time, the Minister stated that he would take a serious look at the issue. However, I was disappointed to see that none of his amendments deal with it. It is mentioned on pages 16 and 17 of the Bill, where it is stated that the first port of call is the High Court. Do any of the Minister's amendments deal with this or is any work being done to find a non-judicial route for a person's first appeal?
I will comment on Deputy O'Reilly's amendments together. I note her wish to appropriately reflect the Corbally judgment in the regulatory Acts, specifically by the addition of the words "serious error" to the definition of "poor professional performance". This was the subject of a good and intense debate on Committee Stage. The issue has been considered by my officials since then, and, indeed, had been considered before Committee Stage as well. As advised on Committee Stage, the health regulators are absolutely clear in their application of legislation that a threshold of seriousness applies to poor professional judgment. The Supreme Court's judgment in the Corbally case left no doubt in this regard. The judge at the time ruled that:
The term “poor professional performance” has a threshold of seriousness built into it: therefore only conduct or activity, by act or omission, which reaches that level, can be said to meet the test.
Against this clear Supreme Court ruling, these amendments propose to insert a variation of additional phrasing into the definitions in the four Acts. I am advised that such an introduction risks potential unintended consequences and would not bring additional clarity. Do these amendments intend the word "serious" to apply only to error or also to failure, and is that intention sufficiently clear in the proposed definition? As we know, professional regulation is a highly litigated area and the amendment of definitions, in particular, is something we must approach with great caution. It is also worth noting that the regulatory Acts provide for a registrant to provide particular undertakings to the regulator in appropriate circumstances. These may be employed, for example, where the necessary threshold of seriousness has not been met. A revision of the definition could, therefore, impact on these or other aspects of the legislation, which are, therefore, difficult to predict in advance. For these reasons, I remain of the view that it is neither necessary nor desirable to amend the definition and accordingly, I am not in a position to support these amendments. The Supreme Court ruling has provided great certainty, and my fear is that amendments to the definition would accidentally inject a degree of uncertainty into this area.
I do not have access to the same facilities as the Minister, but my intention was to legislate for the Corbally judgment. The concerns I raised have not been addressed by his response. It is imperative that we legislate for this. The intention when the judgment was issued was fairly clear. It was a landmark judgment and the dismissal of the Medical Council's appeal was unanimous. From my perspective and based on the interactions I have had, the intention is to legislate for the Corbally judgment. In the absence of that, I have no option but to press this amendment.
I caution the House against that. I do not in any way dispute what Deputy O'Reilly is trying to do. The strong advice available to me is that the definition of "poor professional performance" is provided for in four of the five health professional regulatory Acts already in place. It is not covered in the legislation relating to dentists. That has now been defined by the Supreme Court. There is no greater clarity in terms of understanding that we could arrive at than the Supreme Court. For us to begin to alter the wording would inject a degree of uncertainty. I know that is not the Deputy's intention, but it could be an unintended consequence. I would genuinely advise against these amendments. I would be happy to engage further with Opposition spokespersons in advance of the Seanad debate, but I am concerned about this.
On Deputy Donnelly's query, my officials responded to him, through the committee, in terms of outlining the rationale for confirmation by the High Court versus a lower court. Perhaps I will discuss this with him and we can decide if he wants to pursue it further.
Mick Barry, Richard Boyd Barrett, John Brady, Tommy Broughan, Pat Buckley, Joan Burton, Joan Collins, Catherine Connolly, Ruth Coppinger, Pearse Doherty, Dessie Ellis, Michael Fitzmaurice, Kathleen Funchion, Brendan Howlin, Alan Kelly, Catherine Martin, Denise Mitchell, Imelda Munster, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Louise O'Reilly, Jan O'Sullivan, Thomas Pringle, Maurice Quinlivan, Seán Sherlock, Brian Stanley.
Bobby Aylward, Maria Bailey, John Brassil, Colm Brophy, Richard Bruton, Peter Burke, Catherine Byrne, Jackie Cahill, Ciarán Cannon, Joe Carey, Pat Casey, Shane Cassells, Jack Chambers, Lisa Chambers, Niall Collins, Marcella Corcoran Kennedy, Simon Coveney, Michael Creed, John Curran, Michael D'Arcy, John Deasy, Pat Deering, Stephen Donnelly, Paschal Donohoe, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Charles Flanagan, Seán Fleming, Noel Grealish, John Halligan, Simon Harris, Michael Harty, Seán Haughey, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Heather Humphreys, Paul Kehoe, Seán Kyne, Josepha Madigan, Micheál Martin, Charlie McConalogue, Helen McEntee, Finian McGrath, Mattie McGrath, Michael McGrath, John McGuinness, Joe McHugh, Tony McLoughlin, Aindrias Moynihan, Michael Moynihan, Margaret Murphy O'Mahony, Dara Murphy, Eoghan Murphy, Eugene Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Kate O'Connell, Willie O'Dea, Kevin O'Keeffe, Fiona O'Loughlin, Anne Rabbitte, Michael Ring, Noel Rock, Shane Ross, Eamon Scanlon, Brendan Smith, Niamh Smyth, David Stanton, Robert Troy, Leo Varadkar, Katherine Zappone.
I move amendment No. 6:
In page 38, between lines 9 and 10, to insert the following:
"Amendment of section 60 of Act of 2005
36.Section 60 of the Act of 2005 is amended by the insertion of the following subsection after subsection (3):"(4) (a) Paragraph (b) applies where—(i) a registrant becomes the subject of an order under subsection (3)(b) The Council shall give notice in writing to that body of that order and may, notwithstanding any provision of Directive 2005/36/EC or of the Professional Qualifications Regulations, provide that body with a copy of that order and copies of other documents relevant to that order.".".(a), and(ii) the Council has reason to believe that—(I) the registrant is registered in another jurisdiction in a designated profession or has made an application to be registered in a designated profession in another jurisdiction
which has not yet been determined, and
(II) that order may not have come to the attention of the body duly authorised to perform functions in that jurisdiction that correspond to the functions of the Council.
I move amendment No. 7:
In page 41, to delete lines 1 to 14.
This section is opposed for the same reasons as I outlined in respect of previous amendments. It has to do with publication. The Minister and I have had a discussion and we agree that we must put the public interest first. I am seeking only to afford a modicum of protection to an individual against whom a finding, even a minor one, is made. In such a circumstance, the publication of a censure or admonishment for a minor infringement could have major implications for a person's professional career and personal life. I think the Minister understands where I am coming from with this amendment. My hope is that he and-or his officials will take the time to engage with the representative bodies before the Bill moves to the Seanad. These bodies have much more knowledge than we do concerning the potential unintended consequences of publication. I say that with the caveat that the public interest has to come first.
As Deputy O'Reilly said, we have already had a discussion. I will reflect further on this issue before the Bill goes to the Seanad. I make the following point to be of assistance should the Deputy decide to have an amendment tabled in the Seanad. The amendment, as drafted, would cover three of the five regulatory bodies and would not cover dentists and pharmacists. I only point that out by way of being helpful. My position remains very similar to that which I expressed in the previous debate we had on notifications.
I move amendment No. 10:
In page 53, between lines 2 and 3, to insert the following: “ ‘poor professional performance’, in relation to a registered pharmacist, means a serious error or failure or a series of errors or failures of the registered pharmacist to meet the standards of competence that may reasonably be expected of a registered pharmacist;”.
I move amendment No. 11:
In page 55, between lines 8 and 9, to insert the following: “Amendment of section 45 of Act of 2007
60.Section 45 of the Act of 2007 is amended by the insertion of the following subsection after subsection (5):“(6) (a) Paragraph (b) applies where—(i)a registered pharmacist becomes the subject of an order under subsection (1), and
(ii)the Council has reason to believe that—(b) The Council shall give notice in writing to that body of that order and may, notwithstanding any provision of Directive 2005/36/EC or of the Professional Qualifications Regulations, provide that body with a copy of that order and copies of other documents relevant to that order.”.”.(I)the pharmacist is registered in another jurisdiction as a pharmacist or has made an application to be registered as a pharmacist in another jurisdiction which has not yet been determined, and
(II)that order may not have come to the attention of the body duly authorised to perform functions in that jurisdiction that correspond to the functions of the Council.
I move amendment No. 12:
In page 63, between lines 16 and 17, to insert the following: “(viii) by the substitution of the following definition for the definition of “poor professional performance”:“ ‘poor professional performance’, in relation to a medical practitioner, means a serious error or failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner;”,”.
I move amendment No. 13:
In page 90, to delete lines 8 to 14 and substitute the following: “(2) The Council may, until the 1st anniversary of the commencement of section 94 of the Regulated Professions (Health and Social Care) (Amendment) Act 2019, grant registration in any particular list of the Specialist Division to a medical practitioner who—(a)is registered, or is able to be registered, in the General Division,
(b)on or before 31 December 2008, both met the qualifying criteria for appointment to a medical post in the State as a consultant and occupied such post, and
(c)satisfies the Council that he or she has sufficient competency such that he or she should be registered as a specialist in that list.”.
This amendment reflects a commitment given on Committee Stage to review and, if necessary, revise a Committee Stage amendment to the Bill. The Committee Stage discussion was very helpful because several Members, principally Deputies O'Reilly and Donnelly, sought greater clarity on eligibility for registration on the specialist division of the Medical Council's register of a small cohort of medical practitioners who were correctly appointed to consultant posts prior to 2008. As we discussed at the committee, a small number of people would have qualified but, for whatever reasons, whether family life or something else, did not avail of the grandfathering clause at that time. I do think any Deputy had a difficulty with this cohort being dealt with. Deputy O'Reilly wanted to check that the provision was specific. I am revising the text, therefore, to bring additional clarity to the scope of the provision, specially regarding the cohort of medical practitioners that it is intended to capture. The amendment specifies that a consultant must have been correctly appointed to his or her post under the terms in operation in 2008 and must satisfy competency requirements for registration. I thank Deputies for their helpful comments on Committee Stage. I trust and hope that the revised wording addresses their concern and I respectfully ask the House to accept my amendment.
I welcome the clarity the Minister has given. For the avoidance of any doubt and to be a bit belt and braces about the whole affair, this is not intended as a vehicle by which people who have a lawful entitlement, which I would not interfere with, to a contract of indefinite duration are now practising as consultants. It is explicit and recorded in the House that this is intended to deal only with those people who would, by virtue of their qualifications and experience, in 2008 have been entitled in this regard and not an entitlement by virtue of a contract of indefinite duration. It refers to people who would have had that entitlement at the time but who did not avail of it, for whatever reason. I have spoken to people who, for family reasons, could not avail of the contract and that is fair enough. The intention is to include these people. We need to be very clear that this provision is not intended to add to the register those people only practising as consultants because they have a contract of indefinite duration. That is a whole other conversation that we will have on another day.
To be helpful, the Deputy is entirely correct. The amendment introduced on Committee Stage was to facilitate the transfer of a small number of consultants, estimated to be about 30 or 40, from the Medical Council's general division to its specialist division. These are consultants who were correctly appointed to their posts prior to the introduction by the HSE in 2008 of a requirement that consultants be registered in the specialist divisions. The consultants in question did not take advantage, for a number of reasons, of the five-year period during which they could have applied for transfer under the Medical Practitioners Act 2007. On Committee Stage, Members were agreeable to this change but they were concerned that the language used in the amendment was overly broad and could be problematic in terms of access by consultants outside of the intended cohort. The revised text is now being introduced to address those concerns.
I move amendment No. 14:
In page 104, between lines 30 and 31, to insert the following: “Amendment of section 60 of Act of 2007
109.Section 60 of the Act of 2007 is amended by the insertion of the following subsection after subsection (4):“(5) (a) Paragraph (b) applies where—(i) a registered medical practitioner becomes the subject of an order under subsection (3)(a) or (3A)(a), and (ii) the Council has reason to believe that—(b) The Council shall give notice in writing to that body of that order and may, notwithstanding any provision of Directive 2005/36/EC or of the Regulations of 2017, provide that body with a copy of that order and copies of other documents relevant to that order.”.”.(I)the practitioner is registered in another jurisdiction as a
medical practitioner or has made an application to be registered as a medical practitioner in another jurisdiction which has not yet been determined, and
(II)that order may not have come to the attention of the body duly authorised to perform functions in that jurisdiction that correspond to the functions of the Council.
I move amendment No. 17:
In page 116, between lines 12 and 13, to insert the following: “(iv) by the substitution of the following definition for the definition of “poor professional performance”:“ ‘poor professional performance’, in relation to a nurse or midwife, means a serious error or failure by the nurse or midwife to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of a registered nurse or registered midwife, as the case may be, carrying out similar work;”,”.
I move amendment No. 18:
In page 118, to delete lines 36 to 39, and in page 119, to delete lines 1 to 3 and substitute the following: “(c) by the insertion of the following subsection after subsection (11):“(11A) (a) Subject to paragraph (b) herein, paragraph (a) of subsection (11) shall not apply to the Preliminary Proceedings Committee except in relation to the Committee’s initial consideration of a complaint made before the date of coming into operation of section 129 of the Regulated Professions (Health and Social Care) (Amendment) Act 2019.(b)Where the Preliminary Proceedings Committee, or a subcommittee thereof, is considering a complaint referred to that Committee—(c)Subject to section 63, paragraph (a) of subsection (11) shall not apply to the Fitness to Practise Committee except in relation to the Committee’s inquiry into a complaint made before the date of coming into operation of section 129 of the Regulated Professions (Health and Social Care) (Amendment) Act 2019.”,”.(i)if the complaint concerns a registered nurse, at least one member of the Committee or subcommittee shall be a registered nurse, and
(ii)if the complaint concerns a registered midwife, at least one member of the Committee or subcommittee shall be a registered midwife.
This amendment is submitted to avoid what I hope is an unintended consequence of preliminary proceedings of fitness to practice committees adjudicating on a matter concerning a nurse in the absence of a nurse sitting as part of that committee or similarly adjudicating on a matter concerning a midwife in the absence of a midwife sitting on the committee. It is proposed that the Bill be so amended. To be honest, I thought this was an oversight. Where a member of a regulated health profession is being adjudicated upon, it should be made explicitly clear that a member of the same profession should sit on the preliminary proceedings of fitness to practice committees.
I have discussed this matter with individuals who take these cases and it is their belief that this provision is absolutely essential. I also raised the issue on Committee Stage and it has not been addressed. I will press the amendment to a vote because it is my understanding that the people involved feel extremely strongly about the issue. They initially believed this was an oversight and I thought an amendment would have been made in the intervening period. Since that has not happened, I will press this amendment.
I had hoped that Deputy O'Reilly would be open to my powers of persuasion on this matter before deciding to press the amendment. I believe we have addressed the issue the Deputy wishes to address. There are two parts to this, namely, the composition of the committees and ensuring a shorter timeframe for complaints, which is in everybody's interest. While Deputy O'Reilly's amendment addresses the concern about the composition of preliminary proceedings committees and a fitness to practise committee of the Nursing and Midwifery Board of Ireland, it had been suggested that the Bill, as drafted, could potentially have unintended consequences in the make-up of committees. That concern was brought to the attention of my Department earlier this year and an amendment in my name, which addressed this issue and one other issue, was introduced and agreed on Committee Stage. The composition of committees is dealt with in a number of sections in the Nurses and Midwives Act and I am advised that, when read together with my amendment on Committee Stage, they fully achieve the outcome sought by Deputy O'Reilly.
The amendment I introduced on Committee Stage also addressed the second problem, which the Nursing and Midwifery Board of Ireland had identified. The Bill, as initiated, was applying a new streamlined committee structure to complaints received after the section of the Bill comes into effect. This would not have assisted with processing the complaints already received by the board and it could have taken up to two years before the new structure came into effect. For want of a better phase, we did not want a backlog of complaints building up. Accordingly, the Committee Stage amendment that I introduced applies the new structures to complaints already received but which have not yet progressed to inquiry stage. This approach will ensure that complaints are concluded in a shorter timeframe, which is obviously of benefit to the complainant, registrant, witness and regulator.
I very much appreciate that it is Deputy O'Reilly's sincere intent to address the original issue. However, the amendment, if accepted, would undo the provision which addresses complaints already received when the section takes effect. Accordingly, I cannot support it. I believe I have addressed the concern regarding the composition of the committees with the Committee Stage amendment I brought forward when it is read alongside the Nurses and Midwives Act.
Let us wait and see. Can the Minister confirm that as part of the preliminary proceedings or the fitness to practise committees, there will be a member of the profession on which the adjudication is being made, for example, a nurse where the adjudication is on a nurse and a midwife where the adjudication is on a midwife? My intention is to ensure that happens. I do not want to undo anything, add to a backlog or do anything like that. Clearly, that is not the intention here. The intention is to ensure that the regulated health profession in question is represented on the committee. If the Minister can give me that assurance, I will find myself amenable to persuasion.
I move amendment No. 19:
In page 133, between lines 29 and 30, to insert the following: "Amendment of section 58 of Act of 2011
156.Section 58 of the Act of 2011 is amended by the insertion of the following subsection after subsection (4):"(5) (a) Paragraph (b) applies where—(i) a registered nurse or registered midwife becomes the subject of an order under subsection (3)(a), and
(ii) the Board has reason to believe that—(I) the nurse or midwife is registered in another jurisdiction as a nurse or midwife or has made an application to be registered as a nurse or midwife in another jurisdiction which has not yet been determined, and(b) The Board shall give notice in writing to that body of that order and may, notwithstanding any provision of Directive 2005/36/EC or of the Regulations of 2017, provide that body with a copy of that order and copies of other documents relevant to that order.".".
(II) that order may not have come to the attention of the body duly authorised to perform functions in that jurisdiction that correspond to the functions of the Board.
I move amendment No. 20:
In page 135, to delete lines 15 to 18.
This section proposes to amend the primary legislation, the Nurses and Midwives Act, in a manner which appears unnecessary. It is burdensome in a financial, administrative and personal respect and it will have the unintended consequence of unnecessarily exposing registrants who are suffering from illness to the glare of publicity associated with proceedings in open court. I referred already to a case in which I was personally involved. This section proposes an amendment to section 72 of the Act, which will require now that sanctions of advisement, admonishment or censure are confirmed by a court. Currently, those sanctions do not require confirmation by a court. It is not confirmation by a court that I have difficulty with but the fact that the case is made public. I am happy to listen to what the Minister has to say about how that scenario will be avoided. None of us wants to place regulated health professionals in a scenario whereby they find themselves in open court in respect of something that does not require the glare of publicity.
The Bill provides that for all of the regulated professions, the minor sanctions of advisement, admonishment or censure will now require confirmation by the court before they come into effect. This provision is considered appropriate in light of evolving case law which is increasingly concluding that it is the adverse finding arising from a fitness to practise proceeding rather than the specific sanction which often has the most significance for registrants. It is appropriate, therefore, that such a finding goes before a court before a sanction is applied on a registrant. The Bill, as drafted, will provide for all sanctions to be subject to confirmation by the court. This will result in greater equity of treatment for registrants who are the subject of an inquiry.
I recognise the concerns expressed by Deputy O'Reilly on this issue, particularly in relation to how a registrant may feel he or she will be negatively impacted in the process. However, I must balance that, to use a phrase we keep discussing and with which the Deputy and I both agree, with the public interest in maintaining a transparent, fair and robust system of professional regulation. Under the current legislation, for example, a censure with a fine requires confirmation by the court before it comes into effect, while a censure alone does not. Clearly, the current position is not equitable. Confirmation of all sanctions will ensure that all registrants are subject to the same treatments and protections of the court.
I also remind the Deputy that, in accordance with the definitions discussed earlier, a threshold of seriousness applies to the events giving rise to a fitness to practise complaint and these are cases that have been deemed to meet a threshold of seriousness. In appropriate cases, a regulator may invite a registrant to give an undertaking or consent to a particular course of action and, if given these, conclude the matters and not require the confirmation by the court.
The issue of costs was raised on Committee Stage. It is important to state that in future, as is the case now, it will be the courts which will determine who bears the costs. The determination by the court in these matters cannot be presumed in favour of either party in advance.
Deputy O'Reilly's amendment would relate only to nurses and midwives. I am sure that is unintentional but I need to point that out. For the reasons of equity I have outlined, I do not believe the Deputy wishes to treat one group of registrants more favourably than another. For these reasons, including the technical matter I outlined, I am not in a position to accept the amendment.