Mary Harney (Dublin Mid West, Progressive Democrats)

It should be. I apologise to the Senator.

The related public expenditure involved in the operation of these bodies is very substantial at approximately €900 million. The National Paediatric Hospital Development Board is also one of these bodies and, when examining the adequacy of powers of the Health Service Executive to fund the new board, the Attorney General indicated that a more fundamental review of the constitutional status of the Health (Corporate Bodies) Act 1961 was required. He commissioned external legal counsel to assist his office and wrote to me with his considered advice on 26 October indicating that the broad powers conferred on the Minister could possibly breach Article 15.2 of the Constitution, which vests power for making laws for the State in the Oireachtas.

His strong recommendation was that, as a matter of urgency, primary legislation was needed immediately to confirm the orders establishing these bodies as if the orders were Acts of the Oireachtas. Work commenced immediately to draft the Bill, including the Schedules. There was no delay since the end of October.

The legal advice also has implications for bodies set up under the Local Government Services (Corporate Bodies) Act, 1971. The Government considered that matter yesterday and has decided to draft similar confirming legislation to cover orders made under the 1971 Act.

I should stress at this point that it is not a question of health corporate bodies currently having "no legal basis" as some have described it. These bodies were properly and transparently constituted under the 1961 Act by way of Statutory Instrument. However, given the advice and recommendations from the Attorney General, Senators will appreciate that prompt action was required.

The first step is today's Bill to confirm the orders for existing bodies and related matters. The Attorney General also expressed other concerns about the 1961 Act, including the retention of a power by the Minister to establish bodies to perform functions regarding the provision of health services, the circumstances in which the power may be exercised and the nature and limits of the functions which may be conferred on such bodies. These matters will require further time and attention.

Given the immediate need for certainty as to the status and powers of bodies established under the Act, the wide range of crucial and fundamental health services provided by the bodies and the very substantial public expenditure involved in their operation, it was decided to prioritise matters for the present Bill. For that reason, the Bill before us today confirms the orders made for existing bodies and related matters, acts carried out by former bodies and provides for related matters. The Government intends to bring forward another Bill dealing with the other matters raised by the Attorney General in 2008.

Before outlining other aspects of the Health (Miscellaneous Provisions) Bill, I will briefly put into context the 1961 Act. It was enacted by the Oireachtas to allow transparency and oversight in regard to the establishment of health agencies while allowing flexibility to act quickly when required. It has served the health services well over the past 45 years but the standards of legal engineering are different now from 46 years ago, when the Health (Corporate Bodies) Act was put into law.

I was first in a position to brief the Opposition and to speak publicly about the Bill last Thursday. I have been open about every aspect of the Bill then and now, and I welcome the opportunity to set out the provisions and make clear the purpose and value of each section. The Bill is straightforward in its purpose in all respects and involves no policy change and no additional charge on the Exchequer.

The Bill includes provisions amending the Establishment Orders for St. James's and Beaumont Hospitals to put beyond doubt the capacity of those hospitals to enter into co-location arrangements. The technical amendments to the Medical Practitioners Act 2007 will facilitate the phased commencement of significant provisions in that Act and the moving from the old regulatory system to a new and better regulatory system. There is also a small technical amendment to the Health Act 2004.

As I have stated, provisions are also being included in the Bill to put beyond doubt the legal capacity of St. James's and Beaumont hospitals to enter into co-location arrangements. These provisions have attracted some attention because of co-location policy itself, and it would be useful to put the policy, as well as the provisions, into context.

It was clear back in 2004 that there was a need for a comprehensive and consistent approach to the assessment of a variety of proposals for private developments on public hospital sites. There were proposals at St. James's and Beaumont themselves, and Waterford and Limerick, for example. Prospectus Management Consultants were engaged by the Department of Health and Children in the autumn of 2004 to advise on an appraisal framework which would both encourage private investment in the acute hospital sector and promote and protect the public interest.

My colleagues and I had increasing concern over the extent to which the level of private practice in public hospitals was exceeding the ratio of 80:20 agreed with the medical organisations. Approximately 2,500 beds in public hospitals are designated for use by private patients but the level of private elective admissions to public hospitals was running at about 35% of the total. This was affecting the ability of public patients to access public hospitals and contributing to longer waiting times for public patients.

I was not and am not prepared to allow these and other factors lead to a position where private patients receive priority access to public hospitals at the expense of public patients. This called for innovative thinking and out of this the co-location initiative emerged.

The essential idea underlying co-location is the freeing up of capacity for public patients and the delivery of new public acute beds quickly and most efficiently. The initiative was founded on the principle that all patients ordinarily resident in the State should have access to public hospitals based on medical need and that the possession of private health insurance should influence neither timeliness of access nor treatment.

A diversity of providers of hospital care is commonplace in many countries and is entirely appropriate. We also will be capable of using the new privately-managed facilities for public patients to supplement, not to supplant, public service provision, just as we do via the National Treatment Purchase Fund. In principle, I believe all hospital capacity that meets standards and offers value for money should be capable of being used for all patients.

The Government endorsed the initiative in July 2005 and the policy directive I then issued to the HSE required the executive to undertake a rigorous value-for-money assessment of co-location proposals which would take account of the value of the public site, the cost of the tax foregone etc. The HSE had to satisfy itself that proposals represented better value for money than building, commissioning and operating beds in the traditional way. The HSE and the National Development Finance Agency have confirmed that the tenders received for six sites provide value for money and that the projects are in a position to move to the financial close.

There are detailed and innovative features to promote the public interest which deserve particular mention. There will be one accident and emergency department on each site and the private hospitals will facilitate medical training and research and development. They will accept direct admissions to medical and surgical admission units from primary care centres and general practitioners on a 24 hours a day, seven day a week basis. They will comply with physical design requirements to fit with the public hospital. They will have joint clinical governance, shared information and records management, performance management and documented service level agreements, where these are undertaken. They will participate in the public HIPE and case mix information systems.

Provisions are included in the Bill to put beyond doubt the legal capacity of St. James's Hospital and Beaumont Hospital to enter into co-location arrangements. There was some legal analysis suggesting these hospitals already have the necessary powers in their statutory instruments to enter into co-location arrangements. Another view was that amending the statutory instruments would have been a safe way to proceed. Just to be clear, the constitutional status of the Health (Corporate Bodies) Act did not form part of that legal analysis. However, given the wider change now in the present Bill to reinforce the health corporate bodies in primary legislation, the prudent course of action now is to put the matter beyond any doubt and expressly to amend the orders relating to the two hospitals.

The Bill amends certain matters regarding the transitional provisions of the Medical Practitioners Act 2007. The Medical Practitioners Act 2007 was signed into law earlier this year. The main objective of the Act is to provide for a modern, efficient, transparent and accountable system for the regulation of the medical profession, which will satisfy the public and the profession that all medical practitioners are appropriately qualified and competent to practise in a safe manner on an ongoing basis. The advice from the Office of the Attorney General is that some technical amendments are required to strengthen the transitional provisions of the Act which will allow for the nomination and election processes provided for in the Act regarding the new medical council to take place as early as possible in the new year following which the other provisions in the Act will take effect on a phased basis. That is what is being done in the Bill.

The proposed amendments are essentially technical in character. The substantive provisions of the Medical Practitioners Act 2007, including enhanced lay membership of the Medical Council, registration processes, fitness to practise procedures, and new provisions relating to medical education and training at basic and specialist level, and regarding maintenance of professional competence, remain unchanged. I am anxious that there should be an orderly handover from the outgoing Medical Council to the new, and that there should be an orderly, phased implementation of the Act in general.

Having carefully considered the advice of the Office of the Attorney General, I am proposing that immediate action is taken at this time by way of primary legislation because of the importance of the Act for both the medical profession and the protection of the public. It is very much in the public interest that the necessary amendments are made as a matter of urgency. My Department has been liaising closely with the Medical Council on the implementation of the Act, the preparation of the election regulations and related matters. It is appreciated that the need to amend the Act has placed additional responsibilities on the current council. I have already expressed my appreciation to the president of the council regarding the co-operation of the council in this process.

I will now set out the main provisions of the Health (Miscellaneous Provisions) Bill 2007. Part 1, sections 1 to 4, are the preliminary and general sections. Part 2, sections 5 to 9, deal with health corporate bodies. Part 3, sections 10 to 20, amend the Medical Practitioners Act 2007. Part 4, section 21, amends section 38 of the Health Act 2004.

Sections 1 and 2 are standard technical provisions stating that the Act may be cited as the Health (Miscellaneous Provisions) Act 2007 and setting out the definitions uses. Section 3 is a standard provision on the payment of expenses incurred in the administration of the Bill out of moneys provided by the Oireachtas. Section 4 repeals section 70 of the Health Act 2004. Section 70 of the Health Act 2004 allows the Minister to dissolve a health corporate body by order and transfer its functions to the Health Service Executive. However, once a body is confirmed under the present Bill, it cannot be dissolved by order but must be dissolved by primary legislation and, on this basis, section 70 is to be repealed.

Section 5, Part 2, is a key element of Part 2 of the Bill regarding health corporate bodies. It confirms establishment orders made under the 1961 Act for current bodies and provides that these orders have statutory effect as if made in primary legislation. One of these existing bodies is the National Social Work Qualifications Board established under the 1961 Act to carry out a range of functions regarding the validation of qualifications of social workers. The Health and Social Care Professionals Act 2005 provides for the establishment of the Health and Social Care Professionals Council and registration boards to regulate and register members of designated health and social care professionals, including social workers. Section 83 of that Act provides for the dissolution of the National Social Work Qualifications Board, as its functions will be carried out by the council and the relevant registration board when it is established. Subsection (4) is therefore designed to enable the Minister to dissolve the board in line with the provisions of the 2005 Act despite the fact that the board is one of the bodies that will be confirmed under this legislation. Subsection (5) takes account of the provisions of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 which provides for certain staff to continue in employment after the age of 65.

Section 6 confirms that validity of acts carried out by former bodies in accordance with their establishment orders. Section 7 and the associated Schedule, Schedule 1, amend the establishment orders for existing bodies which are currently funded by the Health Service Executive to reflect the actual role of the executive in its capacity under the Health Act 2004 and the health reform programme. Some ministerial functions are therefore transferred to the executive while the executive's current role is given effect in other instances, subject to ministerial oversight. Establishment orders for St. James's and Beaumont Hospitals are also amended to put beyond doubt the legal capacity of these hospitals to enter into co-location arrangements.

Section 8 is a technical provision relating to funding of bodies by the Minister. The section does not apply to National Haemophilia Council which is funded by the Health Service Executive and the National Paediatric Hospital Development Board which is currently funded by the Minister but is to be funded by the executive.

Section 9 is a technical provision to take account of the provisions of the Comptroller and Auditor General (Amendment) Act 1993 whereby accounts of bodies are audited by the Comptroller and Auditor General who submits the audited accounts, with a report, to the Minister who in turn lays them before the Oireachtas.

The next ten sections in Part 3 amend the Medical Practitioners Act 2007. Section 10 explicitly provides for a phased implementation of the repeal of the Acts specified in Part 1 of Schedule 1, and the revocation of the statutory instruments specified in Part 2 of Schedule 1, on different days. Section 11 clarifies the definitions of key terms relating to registered medical practitioners provided in the Act of 2007. Section 12 provides for the clarification of the provisions in the 2007 Act relating to the continuance in being of the Medical Council and for the continuation of any work commenced but not completed under the 1978 Act including, in particular, fitness to practise inquiries.

Section 13 provides clarification regarding specialist registration in the context of the first election process; provides explicitly for the termination of the membership of the current Medical Council by providing that a person who was a council member immediately before the first appointment of the new council will cease to be a member unless he or she is one of the persons so appointed; and allows for the council to perform any functions assigned to it by the Act of 1978.

Section 14 clarifies that the Medical Council may charge fees for the retention of a medical practitioner's registration. Section 15 is a transitional provision which clarifies which medical practitioners should be registered in which division of the new register including those medical practitioners who, immediately before register establishment day, were already registered in the General Register of Medical Practitioners.

Section 16 provides that medical practitioners are deemed to be registered on the register if their names are entered on the General Register of Medical Practitioners immediately before the register establishment day. Section 17 provides that a medical practitioner who is subject to disciplinary proceedings under Part V of the Act of 1978 may not seek, during the transitional period, to evade sanction being imposed on him or her by the Medical Council by applying to have his or her registration removed under section 52 of the Act of 2007. Section 18 provides for the clarification of the provisions in the Act of 2007 regarding the consideration of complaints by the preliminary proceedings committee. Section 19 provides that a Medical Council member may not hold office for more than two consecutive terms and membership of the existing council will count towards reckoning the membership period. Section 20 refers to the consequential amendments set out in Schedule 2.

Section 21 in Part 4 is a technical amendment to section 38 of the Health Act 2004. Schedule 1 sets out the details of the amendments to the health corporate body establishment orders amended in accordance with section 7. Schedule 2 sets out consequential amendments to the Medical Practitioners Act, referred to in section 20, relating to when each of the relevant sections becomes effective.

I thank the Seanad for giving its time to this urgent Bill the purpose of which is straightforward. In the case of the provisions concerning bodies established under the Health (Corporate Bodies) Act 1961, it is better to be safe than sorry. This Bill will safeguard and ensure the lawful status of key bodies operating in our health system. The amendments to the Medical Practitioners Act will result in the smooth transition we are seeking to the new system under the Act by strengthening the transitional arrangements which will apply to the regulation of medical practitioners. I commend the Bill to the House.