Keith Swanick (Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Cuirim fáilte roimh an Aire Stáit, an Teachta Corcaran Kennedy as bheith anseo inniu. I mo thuairim féin agus mo pháirtí Fianna Fáil, tá an Bille seo an-tábhachtach agus ba mhaith liom buíochas a ghabháil le mo pháirtí Fianna Fáil agus ár seanadóirí. Freisin, fuair mé go leor tacaíocht leis an Bille ó dhaoine sa tseirbhís sláinte, agus roinnt comhairleoirí. Is mór an onóir dom ar son Fhianna Fáil an bille seo a chur chun tosaigh sa Seanad. Ocht seachtain ó shin, i rith díospóireacht eile anseo, labhair roinnt seanadóirí i bhfabhar an rúin. Seanadóir Devine agus Conway-Walsh ar son Sinn Féin, Seanadóir Reilly ar son Fine Gael agus bhí mé an-sásta leis on tacaíocht ó Seanadóir Marie-Louise O’Donnell freisin.Tá na fadhbanna leis an tseirbhís sláinte níos tábhachtaí ná aon fhadhb eile agus tá an fhadhb níos measa anois ná riamh.

It goes without saying that the problems with the health service are the most important problems we face in Ireland today. Unfortunately many of these problems are getting worse with time, not better. It genuinely gives me no pleasure in saying this, but it is an important backdrop to this legislation and the thinking behind it. It is important to acknowledge the huge interest shown in this Bill by fellow Senators, and it demonstrates to me the determination from members to be constructive and solution driven, for our health system here in Ireland. The Minister of State, Deputy Corcoran Kennedy, and her officials are all most welcome and I look forward to hearing her thoughts on the issues which this Bill raises.

I acknowledge the support from Senators on all sides of the Chamber for what is contained in this Bill. As Members and the Minister of State will recall, I attempted to introduce a series of amendments to the Health (Miscellaneous Provisions) Bill 2016 when it was before us two months ago. Unfortunately, the ruling was that the amendments were out of order as they involved a potential charge on the Exchequer. It was on that basis that I produced a new Bill, the Critical Health Professionals Bill 2017, which contains exactly the same provisions as the previous amendments that I had proposed. I am very grateful for the public support expressed by Senators Reilly, Devine, Conway-Walsh, Wilson and Marie-Louise O’Donnell, and by the numerous other Senators who spoke to me after that debate, urging me to continue to pursue the matter through a Private Members' Bill. Senators Mark Daly and Robbie Gallagher kindly co-signed the Bill to get it to where we are now, and I thank them for that, as I do Councillor Damien O’Reilly of Fianna Fáil from Dunboyne in County Meath who has played an important role in helping to get this legislation to the floor of Seanad Éireann.

When I spoke about this issue previously in the house, I welcomed Dr. Enda Shanahan to the Public Gallery. His insights, research and dedication to this issue are an inspiration to us all. He is a man whom the laws of this land forced to retire from the public health system due to an arbitrary date. When we met here a number of months ago, his research and his folder of notes on the matter were a sight to behold, and he quietly encouraged me that day to keep the flag flying on this issue. I salute Dr. Shanahan for his service to this State in the public health system and my only regret is that he is unable, unfortunately, to benefit from the changes planned under this Bill as he has retired from the public health service.

This Bill is designed to address the situation of mandatory retirement for critical health professionals within the public health system. It is one part of a range of solutions that can be addressed easily, and I am very grateful for the time which Minister for Health, Deputy Simon Harris, spent with me going through the various aspects of this Bill. He is to be commended on the interest that he has shown in this, and he has informed me that he wants to see this Bill move along speedily through the legislative process, if at all possible. There are too many times when critical health professionals within the Health Service are forced to retire due to their age and no other reason. This Bill sets out to change that while at the same time seeking to address chronic staffing problems in the health service.

An interesting question was raised with me about this Bill. What category of professional within the health service is a critical health professional as outlined in the Bill? This is a really important question and I am happy to inform the House that I have addressed that specific issue in section 2 which requires that the Minister introduce procedures by regulation that can set out the category of health professionals to whom this would apply. It is worth noting that the global shortage of health professionals is unlikely to change any time soon. There is however a compelling logic in allowing the Minister for Health to renew or revise periodically the categories of health professionals that are covered by the Act. This is similar to how certain aspects of employment legislation operate, such as the employment permits legislation which governs the critical skills employment permits, as well as the highly skilled eligible occupations list operated by the Department of Jobs, Enterprise and Innovation.

I am conscious that this legislation has to be workable, and while I have very strong personal and professional views about the arbitrary retirement age as it exists, I know that there is an urgency to the issue I seek to address. There is little point in introducing legislation to this Chamber that has no hope of being enacted. In the previous Seanad, the former Senator, Professor John Crown, did great work on this very topic, and I suggest that Members review that debate in 2015 if they wish to get a deep understanding of where he was coming from with his legislative proposal. His Bill was entitled the Longer Healthy Living Bill and was supported through Second Stage in Seanad Éireann by Fianna Fáil, Sinn Féin, the Labour Party, Fine Gael and the Independent Senators. I know Professor Crown is critical of an aspect of this Bill as proposed, specifically with regard to the dual consent provision. I will explain why I have included a dual consent provision, because this is central to this Bill being able to make an immediate impact, which I hope will ensure it does not get bogged down in legal or contractual challenges.

I believe mandatory retirement is an archaic system, but I do believe that in the absence of a more formalised system in its place, we must tread carefully. This Bill could have gone further, but upon careful examination of the law, I have chosen to deal with the issue in this manner. Under this Bill, as proposed, the option for an employee to retire is not affected and nobody will be required to work past their retirement age unless they wish to do so. This is the first part of the dual consent process. The second element of this process required under this proposed legislation would mean that both the employee and the employer would have to consent to an extension past the mandatory retirement age. In having this provision, it allows both parties to contract out the new arrangements and does nothing to impact upon the legal rights of others.

In addition to the Bill presented in 2015 by former Senator Crown, this is an area where a lot of legislation has been proposed. In the previous Oireachtas, the Employment Equality (Abolition of Mandatory Retirement Age) Bill, was put forward by Deputy Anne Ferris from the Labour Party. Just a few weeks ago, the Dáil had a Second Stage debate on a Bill sponsored by Deputy John Brady from Sinn Fein, called the Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016. From what I could see from this Bill from Deputy Brady, it is worthwhile and Fianna Fáil supported it in the Dáil. Separate to that, my Fianna Fáil colleagues, Deputies Willie O’Dea and Mary Butler, have also produced an important Bill, namely, the Employment Equality (Amendment) Bill 2016. They too have engaged widely on the matter and have been very clear in their desire to see change in this area.

I highlight these other Bills to outline to the House the exact difference with this Bill. It is, I believe, one that could have a very immediate impact on the crisis in our health system. During the debate on this issue in February in Dáil Éireann, the Minister of State, Deputy Stanton, illustrated that the Sinn Féin Bill would involve unilaterally setting aside the retirement provisions of most existing employment contracts and would have serious implications for public sector employment, pensions policy and the wider labour market. These are all things that can be addressed, I am sure, to strengthen that Bill as it goes to Committee Stage. It does, however, highlight the legal minefield that exists in this area.

The reason I have chosen the dual consent model is to navigate the complexity of Article 15.5.1° of Bunreacht na hÉireann. The Constitution precludes the Oireachtas from declaring unlawful acts which were not so at the date of their commission. It would certainly give ample opportunity for substantive legal challenge as the Bill in the Dáil, as I understand it, appears to apply retrospectively to pre-existing contracts of employment. I am no constitutional lawyer, but I am certain that the Attorney General will have something to say about that.

In the previous Oireachtas, the Committee on Justice, Defence and Equality examined in detail the broader issue of mandatory retirement, and it received incredible submissions and presentations from the public on the matter. I want to read again a passage from Dr. Enda Shanahan's formal contribution and testimony to that Oireachtas committee. In November 2015 he said:

Two years ago I was compelled to retire from the health service where I worked as a specialist hospital doctor. I wrote to management, [then Minister for Public Expenditure and Reform, Deputy Brendan Howlin] and to [then Minister for Health, Deputy James Reilly], indicating that I was able and willing to keep working in the public health sector after age 65. I explained that I was physically fit - still running all distances up to and including marathons- and medically fit for purpose as certified by the Medical Council continuous professional development process ... The answer was that retirement was mandatory on reaching age 65.

At no point was any objective effort made to assess my suitability to continue working. I was retired purely because of a date in the calendar.

I will now take Members through each section of the Bill. Section 1 is a standard section setting out the various definitions used in the Bill. The key element of section 2 would allow the Minister for Health to introduce regulations to allow critical health professionals remain in their roles past the age at which they otherwise would be required to retire.In practical terms, it would allow the mandatory retirement clause in the employment contract to be set aside, to allow health professionals to continue working under the same conditions they would otherwise have enjoyed had they not been required to retire at that age.

There are two parts to section 3. The option for an employee to retire is not affected by this legislation and nobody will be required to work past their retirement age, unless they wish to do so. There is an important dual consent process required under the proposed legislation, which would mean that both the employee and the employer would have to consent to an extension past the mandatory retirement age.

Sections 4 to 6, inclusive, can be viewed together and they confirm that the same terms of conditions of employment would continue for staff, as set out in the conditions of employment.

Section 7 sets out that in order for health professionals to have their mandatory retirement age clause ignored, they would be required to inform the chief executive officer or the equivalent within their respective organisation, not less than three months before they reach their mandatory retirement age. This is to allow for management and the employee to engage constructively and formalise an agreement.

Section 8 has four parts. Part 1 specifies that the dual consent process to allow this to happen requires the written consent of both employee and employer. This written consent must be in place before the employee reaches the mandatory retirement age. Part 2 sets out that this agreement would include the timeframe permitted for an extension of employment, which may be up to two years initially and may be extended once, for a further two years, as long as the dual consent remains in place between both parties.

Part 3 states that these changes are not available to an individual who has previously availed of early or voluntary retirement. Part 4 is a practical section to make provisions so that if individuals who have availed of an extension of employment become unfit to work as per their work contract, they shall retire immediately under the terms of their employment.

Section 9 has two parts. Part 1 specifies that the legislation, if enacted, will apply to all organisations funded directly by the Department of Health, all organisations funded by the HSE, organisations funded under section 38 of the Health Act 2004, and all other health and disability service providers. In conjunction with the commencement of the Act, the Minister shall publish a list of all the organisations that the Act shall apply to. Importantly, it is provided that the Minister shall update the list to reflect any changes to organisations, including mergers, name changes and newly-established entities. Section 10 deals with the Title and commencement details.

I want to see this Bill become law, but I also want it to become good law and I know from speaking to the Minister, Deputy Harris, that he is committed to this also. In my career in medicine, I have encountered many highly-skilled consultants, doctors and nurses who did not want to retire but received a letter informing them that they were no longer of service to the State. This makes no sense to me. There have been too many instances where critical health professionals within the already overstretched health service have been forced to retire due to a date on their birth certificate and no other reason.

As a doctor I know that our current health system is embattled by staff shortages, shortage of senior consultants, not enough GPs, and a dearth of highly-qualified specialist nursing staff. Therefore, we need to do something, as the status quo is not working. This Bill is one step in the right direction in helping to erase those problems.