Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Senator rightly traced the very varied history of many of these institutions. That history concluded in recent decades with an increasing assimilation to the State and to the public sphere, but it is difficult to say with legal certitude in the case of any of these entities. The health boards and all the hospitals within them are clearly established by law, but the voluntary hospitals were established by enactments over many decades and, on one view of the matter, are established by law.

The question then of a pure hospital established under the Companies Act, as would be the case with some modern private hospitals, would again raise issues of interpretation as to whether incorporation under the Companies Act would constitute being established by law for the purposes of the Act. Without anticipating what might be decided, that might well turn on the amount of public funding which was committed to these institutions. They are questions of degree on which a court would have to make a judgment in the case of the application of the convention proceedings in a concrete case and it would be difficult for us to legislate by anticipation for all the different kinds of cases which might emerge.