Seán Power (Kildare South, Fianna Fail)

I thank Senators for their informed contributions to the debate on this important legislation, the need for which has been argued for some time, not least by the medical professionals.

The Bill comes at a time of great change in the health service which has seen a number of significant legislative initiatives such as the Health Bill 2006 which this House debated recently. Some of the issues raised in the Bill before us today arose in that context also. A keen interest has been shown in having an honest and open debate on the subject of this proposed legislation. Relevant stakeholders have been involved, particularly with the recent consultation process and publication of the draft heads of the Bill. Department officials have met with a number of key groups in this area.

Safe outcomes for patients and quality of health care have been at the heart of a number of announcements made in recent weeks, including legislation to underpin the Health Information and Quality Authority, the establishment of a commission on quality and safety in health care and the appointment of the Health and Social Care Professionals Council. However, this legislation is very wide ranging in that it directly affects the medical profession, but indirectly, all those who come in contact with the profession as patients. The Bill represents a new era in the regulation of the medical profession. It is important to get it right and that we have a new Act which can and will stand the test of time. The end results must be legislation that is robust, yet flexible, and which ensures patient safety is to the forefront in all doctor-patient relations.

It is important to acknowledge that the majority of doctors perform to a high standard. However, lessons must be learned from those instances where patients have been harmed, and as such there are many provisions which shift the balance towards patient safety. All medical practitioners have a duty and responsibility to ensure their practices are safe and that their skills are up to date. The majority of doctors practise competently and many are involved in continuing education or professional development. The Bill will provide support for doctors in terms of education, training and ongoing competence assurance and it will assure patients that the competencies of their doctors are to acceptable standards.

Another matter that has caused considerable debate is the question of public hearings on fitness to practise issues. This development has been generally welcomed by patient groups in contributing to openness and transparency in procedures. However, particular concerns have been raised by the medical profession in regard to media coverage of such inquiries and the potential for harm to the reputation of a doctor who is innocent unless proven guilty. I am conscious of these matters, but once again it is a question of redressing the balance. The in camera behind closed doors nature of inquiries to date has operated against the public interest. Protections are in place for cases or parts thereof, where it would not be appropriate to hold public inquiries. However, the public interest requires that such hearings should, in general, be held in public and it is necessary to move the balance more in this direction.

A number of Senators raised particular issues and I shall deal with as many as possible. Senators Browne and Henry raised the issue of the public inquiry as regards fitness to practise. The committee may decide to hold all or part of an inquiry in private. This is likely to be used in sensitive cases such as those mentioned by Senator Henry.

On the issue of standard of proof, the courts have ruled on this matter over the years. Where it is proposed to remove a doctor's registration, depriving him or her of the means to make a living, the burden of proof is already set out by case law as the standard of beyond a reasonable doubt. Senator Henry also raised the matter of appeals of a censure. In the coming months the High Court is due to consider a judicial review matter relating to appeals against a finding of the fitness to practise committee under the provisions of the 1978 Act. It is possible that the court's decision could have some effect or provide some insight into the matter. Therefore, I consider it preferable to await the decision of the court before making any change to appeals of this nature. Legal advice also suggests to await the outcome as it may give some guidance on how best to provide for any legislative changes which may be required.

The council will have the public interest as its primary goal. Its membership of 25 is designed to support this. Only people with expertise and experience will be asked to or elected to serve on the council. The balance, however, between non-medical and medical representation, has been significantly altered to include a majority of persons who are not nominated by medical professionals. While there may be many medical specialties which could argue a case for representation on the council, the council's committees can include all or any of those specialties in their membership. This is not limited to persons who are members of the council. As a result, the council will have access to further specialised expertise, both medical and non-medical, as required.

Senator Henry raised the issue of medical expertise on the fitness to practise committee. It is considered necessary in the interests of the public confidence in the regulatory system that the fitness to practise committee should have a majority of persons who are not doctors. All committees may include in their membership persons who are not members of the council, giving any required medical or other expertise for an individual case.

Senator Browne raised the issue of nominated and elected persons to the council. On the Stages of the Bill in the Dáil, it was outlined that it was normal for members for a statutory board to be appointed on the same basis. This is consistent with legislation governing other statutory bodies. It is not intended as a means for the Minister of the day to unilaterally override the nominating powers of the bodies concerned or an election process. It was clarified by way of amendment which provides that the Minister may not refuse to appoint any of the persons nominated or elected to serve on the council. The matter referred to by the Irish College of Psychiatrists was provided for by an amendment in the Dáil.

The provisions of section 23 deal with the removal of individual council members from office in specific circumstances such as illness, stated misbehaviour, obstructive behaviour and matters covered under the standards and ethics in public office legislation. If difficulties arise with regard to an individual member of the council, it will be made known to the Minister by the president of the council or other appropriate member.

The matter of how the entire council may be removed from office was discussed in some detail in the Dáil. The removal of the council from office will require a ministerial order, a draft of which must be laid before both Houses of the Oireachtas. The draft must be accompanied by a statement of the reasons for the order. The order cannot have effect until a resolution approving it is passed by both Houses of the Oireachtas. It would require a considerable debate before such drastic action could be taken.