Tuesday, 27 March 2007
Health Bill 2006: Committee Stage
Under the Bill, the Chief Inspector of Social Services has responsibility for inspecting and registering designated centres. Designated centres are defined as private nursing homes and institutions, homes or centres at which residential services are provided by the Health Service Executive or a service provider for children, people with disabilities or other dependent persons. The term "service provider" also covers a person who enters into an arrangement under section 38 of the Health Act 2004 to provide a health or personal social service on behalf of the Health Service Executive. It also means a person who is in receipt of assistance from the Health Service Executive under section 39 of the Health Act 2004 or section 10 of the Child Care Act 1991 in excess of an amount prescribed by regulation.
It is possible, however, that some residential services for children or people with disabilities may be provided by agencies which, by virtue of the small scale of the operation, may be in receipt of funding under section 10 of the Child Care Act 1991 or section 39 of the Health Act 2004 which is less than the amount prescribed. Such residential services are not included in the current definition of designated centre. Clearly, it is important that all residential centres are respected and, for this reason, we propose to amend the definition so that there is no question but that all residential services funded by the Health Service Executive are inspected.
I wish to record my eternal objection to legislation which gives the Minister carte blanche to ignore the legislation, which is what this section involves. Every Bill which contains an open-ended timeframe for its implementation is, essentially, handing over to the Government the legislative role of the Oireachtas. I have always objected to this practice, and I wish to put my objection on the record again. It is surely not beyond the wit of man or woman to work out when it is possible to implement legislation, even if it is a year hence. A Mental Health Bill was passed in 1981 but it was never brought into force. As the Government did not have to bring it into force, it was 20 years before revised legislation was introduced.
I move amendment No. 7:
In page 13, subsection (1)(i), line 41, after "population" to insert the following:
"in terms of the provision and delivery of services and the regulation of—
(i) the demand for,
(ii) supply of, and
(iii) number of,
residential places throughout the State".
We propose this amendment because the Bill does not go far enough in specifying the centres that will be under the authority's remit.
The objective of HIQA, as set out in section 7, is to promote safety and quality in the provision of health, social and personal services for the benefit of the health and welfare of the public. Section 8 sets out the functions of HIQA. These include its standard setting functions for services and its information functions. Under section 8(1)(i), HIQA must evaluate available information in respect of services provided by the Health Service Executive and service providers and the health and welfare of the population. This is a broad provision which is designed to reflect the complex and extensive environment of health information. HIQA is required under section 8(1)(j) to provide advice and make recommendations to the Minister and the Health Service Executive about deficiencies it has identified in this information.
In other words if HIQA discovers that information available on any aspect of services or on the health and welfare of the population is inadequate or incomplete, it must advise the Minister and the Health Service Executive and make recommendations accordingly. The proposed amendment would limit the scope of the information HIQA might evaluate to information on residential places. This is a far more narrow range than that offered under the Bill, and restricts the information evaluation function to evaluation of a single aspect of the services. In view of the wider range offered in the existing provisions, it is not proposed to accept the amendment.
I move amendment No. 8:
In page 15, before section 10, to insert the following new section:
10.—In any investigation under section 9—
(a) the report of the investigation shall be absolutely privileged,
(b) due process and fair procedures shall be observed,
(c) any person called to give evidence, shall be allowed legal representation if he or she so requests, and there shall be a duty on any person conducting an investigation to inform such a person of his or her right in that respect, and
(d) there shall be a duty of cooperation on any member of staff of the service provider save where such a person receives legal advice to the contrary.".
This relates to the procedures observed during an investigation. It provides that the report be absolutely privileged. The amendment also provides for legal representation for people called to give evidence, if they wish it, and that people be informed of their right in that respect. It provides for a duty of co-operation on a member ofstaff of the service provider in an investigation, except where legal advice is suggested to the contrary.
The amendment proposes that the report of an investigation carried out by the HIQA should be absolutely privileged. Absolute privilege gives a complete defence to a defamation action. The legal advice is that absolute privilege applies even where the words complained of are published with knowledge of their falsehood and with the intention of injuring another. Although the Minister has every confidence that reports by HIQA of investigations will be objective, fact based and free of deliberate falsehood, the Minister is reluctant to include such a wide provision as absolute legal privilege in the Bill.
However, in view of the debate on this issue in the Dáil, legal advice was sought in regard to what provisions, if any, might be included. Following this consultation, a new section 78 was inserted in the Bill on Report Stage in the Dáil to expressly provide for qualified privilege in respect of reports or documents prepared by, or communications made by, HIQA, an authorised person, the chief inspector, inspectorate and qualified persons. As is normal in this area, such reports, documents and communications must be made in good faith with regard to the carryingout of relevant functions by the persons concerned.
The Senator's amendment also proposes that due process and fair procedures be observed, that any person called to give evidence shall be allowed legal representation and told of this right and that there shall be a duty on a staff member to co-operate with an investigation, except where the staff member receives legal advice to the contrary. The legal advice on due process and fair procedures is that these are implicit under common law and the specific inclusion of this provision would be redundant and perhaps even result in an unintentional effect on common law. Any person connected with an investigation can have access to legal representation if he or she wishes. If the Bill is silent on this matter, the right to legal representation is part of due process and common law.
With regard to a duty to co-operate save where the staff member receives legal advice to the contrary, the legal advice is that this provision would weaken the Bill. It would be odd if the legal advice was that somebody should not co-operate given the obligations under the Bill for co-operation. In this regard, a person in charge of a premises or service or who possesses or is in charge of relevant records is required to furnish any information required by an authorised person appointed by HIQA to carry out an investigation. There is also a requirement under the Bill to provide an explanation of any record or other information provided or of other matters which are the subject of the functions being exercised by the authorised person. Moreover, section 77 provides that authorised persons cannot be obstructed or impeded when conducting an investigation and that false and misleading information must not be given to an authorised person. Contraventions of these provisions are offences under the Bill.
On the basis of the foregoing, I do not intend to accept the amendment.
Last week in the Pharmacy Bill absolute privilege was extended to what is essentially a private body, the Pharmaceutical Society of Ireland, in terms of its procedures for investigating complaints against pharmacists. I am at a loss to understand why the concept of absolute privilege should apply in the case of the Pharmaceutical Society of Ireland but not in the case of a body established by the State to look after the rights of patients. Nasty and unpleasant threats of litigation by sometimes powerful figures could be directed against well intentioned and conscientious public servants. That is the reason the concept of absolute privilege is necessary in these cases. It is a pity there will be what appears to be two different regimes.
In response to Senator Henry, section 78 provides for qualified privilege to cover reports such as the Leas Cross report mentioned by the Senator. Qualified privilege means the person is protected from defamation proceedings provided they prepared their report or document in good faith. We sought legal advice on this and we are happy that absolute privilege is not necessary in this instance.
The problem with qualified privilege is that there is no absolute way to determine it other than by way of a court case, in which case the individual can be accused of saying something defamatory and, depending on how the court rules, it may or may not be adjudicated upon. A defendant may be left with a substantial legal bill if he or she is not indemnified, whereas absolute privilege means the person cannot be sued. A person cannot bring me to court on the grounds that I defamed him or her in this House because I have absolute privilege. If the privilege extended to me while speaking here was in any way qualified, I could be sued and it would be up to the courts to decide. That is the difference. I do not want to hold up the House unnecessarily. I do not understand why two different regimes are in place.
I share the Senator's concerns. A person of lesser moral fibre and toughness than Professor Des O'Neill might have buckled under the pressure of that issue. I cannot understand why people cannot be afforded absolute privilege. It is very serious for individuals to be sued and it could be a terrible brake on making sure we had proper reports and that people felt confident enough to stand behind what they knew to be the truth.
Senator Ryan mentioned the Pharmacy Bill, which is different. That Bill dealt with fitness to practice hearings, which are privileged and are treated in a similar fashion to hearings of a court. We would be anxious to ensure sufficient protection and, based on legal advice, anyone who publishes a report in good faith on behalf of the authorities should have no cause for concern. We are satisfied that what is proposed is sufficient and there is no need to provide the absolute privilege Members have sought.
Is there something inherently wrong with being a member of a local authority? Are they great big ogres? They are the finest people who give the greatest service to the people in the interest of democracy as they have done since the inception of the State and beforehand. This is unfair and I ask the Minister of State to reconsider it with a view to introducing an amendment on Report Stage. It is totally unjustified. I do not agree with it. It is wrong.
While I am not suggesting elected representatives should be on the board, it is not necessary to specify their exclusion in legislation. There is no crime in being a politician. The same applied with the Pharmacy Bill last week. I would love to see a court challenge under equality legislation, as I am sure the courts might take a different view on the matter. This unnecessary provision has been inserted in all recent legislation. Membership should be based on merit. Guidelines can be drawn up here when members are elected. However, inserting this provision automatically is not appropriate. We are doing our best to discuss the pros and cons of democracy and during the Order of Business today we spoke about how politics won out in the end in Northern Ireland. We are encouraging people to enter politics and take part in the democratic process and yet we insert this provision on a regular basis. I resent it and object to it. There is no need for it. While I do not suggest they should be on the board, it is not necessary to bar people from participation. It flies in the face of all our equality legislation.
On Friday, I spoke on Second Stage of the Bill. I reiterate my opposition to the debarment of local representatives as outlined at section 13(3)(c). I request the insertion of a simple amendment to correct this. I met the Minister of State, Deputy Seán Power, whom I welcome to the House, at Citywest at the end of the very successful ard fheis on Saturday evening. I expressed my view in this regard. I also conveyed my view to the Minister for Health and Children, Deputy Harney, on Friday and I expressed it to her office today. I remind her and inform the Department that on 13 February 2007, the Fianna Fáil parliamentary party unanimously passed a motion calling on the Government to exclude from all future legislation provisions automatically debarring——
——public representatives from membership of national boards and authorities. The Minister for Foreign Affairs, Deputy Dermot Ahern, responded by saying he always searched legislation from his Department to ensure that provision was excluded. The Chief Parliamentary Counsel inserts this provision automatically. Members of the Houses of the Oireachtas and Members of the European Parliament are generally excluded. The Personal Injuries Assessment Board Act 2003 does not have such an exclusion because one of our Members is vice-chairperson of the board.
He is doing an excellent job and there is no reason he should be excluded. The only other people excluded are those serving a term of imprisonment and members of local authorities. Members of local authorities put themselves forward for election. Many of them have numerous qualifications as community workers, social workers, doctors etc., which could be of assistance to the Heath Information and Quality Authority. The provision is debarring quality people from serving in another way on state boards.
I previously have been in the position in which the Minister of State finds himself. I appreciate he is dealing with the Bill in the House as the Minister is not available today. I appeal to the Minister of State, Deputy Seán Power, between now and Report Stage on Thursday, to communicate the view expressed by Senators Browne, Glynn and myself in this regard. We feel that retaining this provision would be prejudicial against the best interests of local authorities. Local authority members have been elected since 1899, which was long before the State was founded. They have served the State very well for more than 100 years. Dropping the provision would not mean local authority members would need to be members of the authority, but would allow it to happen. The provision makes it less attractive for people to become local authority members, as doing so would exclude them from serving on this and many other boards. On behalf of local authority members, I discussed the matter at the Fianna Fáil Ard-Fheis and I conveyed my concern at the provision. I know the Acting Chairman will ask how many times the Fianna Fáil Ard-Fheis has been mentioned.
We must face 833 or 834 councillors to whom we would do a disservice if we did not express our views in this regard in this Chamber. I appeal to the Minister of State and the Minister for Health and Children to exclude the debarment of local authority members from membership of the Health Information and Quality Authority. We will discuss this matter at a meeting of the Fianna Fáil parliamentary party this evening because we feel so strongly about it.
Based on what Senator Leyden said, it is clear how much influence Fianna Fáil backbenchers have over Fianna Fáil policy. It makes no sense to exclude members of local authorities from membership of a body such as this. There is an active citizenship commission travelling around the country trying to persuade people to get involved, and we know that people are reluctant to get involved in politics.
Politics has a bad name and if I was in a cranky humour, I could say who caused it but I will not do so. As I have often said, when my children were in their late teens, they would always say that their father was a lecturer in an institute of technology rather than a politician. That was safer territory because they did not know what they would get into if they said otherwise.
I would love the Minister of State to give me a reason there would be some significant conflict of interest between the role and activities of a member of a local authority and the activities of the body in question. If there is a reason, I will listen to it. I am also intrigued by the fact that, as usual and as noted by Senator Browne, Members of the Oireachtas and the European Parliament cannot be appointed to this body.
However, according to section 14, if a member of the body subsequently becomes a Member of the Oireachtas, he or she does not have to leave office. There is no mention of that in section 14. Reference is made to bankrupts, criminals and all the other things. It is usually bankrupts, criminals and Members of the Houses of Oireachtas, but somebody has found a cleaner way of dealing with it. As it stands, under section 14, the reasons somebody must leave office once he or she is appointed do not include membership of the Houses of Oireachtas. They cannot be appointed to the authority, but once they are members, they do not have to leave and this is also true of members of local authorities. It is partly because these sections are simply being cut and pasted from one place to another. I have missed it but I could not find mention of becoming a Member of the Houses of the Oireachtas in section 14. A person cannot be appointed by the Minister if he or she is a dreadful thing like a Deputy, Senator or councillor, but once he or she is a member of the body, if he or she becomes one of these dreadful things, he or she cannot be removed.
It is worth bearing in mind that many well-qualified people of all persuasions are members of local authorities. One finds doctors, nurses, surgeons and dentists. Need I go on? As has been said, and I think the case speaks for itself, we are not saying that they should become members of the Health Information and Quality Authority, but it should not be enshrined in law that they be debarred. This conveys the impression that if one is a member of a local authority, there is something wrong with one and that one has done something awful.
There is a very famous film called "The Singer Not the Song". There is no reason an individual, irrespective of whether he or she is a member of a local authority, the Dáil, the Seanad, the European Parliament or any other trade or profession, should be excluded from membership of the Health Information and Quality Authority. The fact that it is contained in this Bill is ludicrous. I again appeal to the Minister of State to drop this provision.
As everyone has said, it is difficult enough to get people involved in public and political life at the moment. It is very odd that local authorities have been included in the legislation. The Minister will appoint the people. We do not want it to be said that one simply needs to be a friend of the Minister to be appointed. Nobody wants to see this sort of thing happen.
The chief executive cannot be any of these dreadful people, be it a Member of the Houses of the Oireachtas or the European Parliament or a member of a local authority, but employees can be members of local authorities. As Senator Ryan said, if one becomes a member of a local authority, the Dáil or the European Parliament after one has been appointed to the board, one is all right because, apparently, one will not be dismissed. Does the chief inspector, to whom a section is devoted, fall inside or outside this category? There is nothing in that section to say that the chief inspector cannot be a Member of the Houses of the Oireachtas or the European Parliament or a member of a local authority?
There is very little consistency in this part of the legislation. Perhaps those who wrote it meant that it was fine once one was elected and that one could use it as a platform for becoming an MEP and continue on with what one was doing. It is a great pity that membership of local authorities is involved, whatever about the other two bodies where one might be considered so busy that one did not have time to do anything other than legislate. Is the chief inspector covered by it?
It is well recorded in section 82 that if one is nominated as a Member of Seanad Éireann, elected as a Member of Dáil Éireann or becomes a member of a local authority, one is precluded from membership of the board of the authority or a committee of the board. Senator Moylan brought to my attention the fact that section 82 states that one must resign on the day on which one is nominated, as opposed to the day on which one is elected. I will not jump ahead but will clarify for my colleagues the provisions in section 82 which make this possible. I will not repeat what I said already. I simply ask the Minister of State to consult the Minister before Report Stage on Thursday so that she may decide to leave out that section. There are Independents——
It will be interesting to hear the Minister of State's view on local authority members. Perhaps there is some argument we should hear. I understand why there might be reasons for excluding Members of the Houses of the Oireachtas due to conflicts of interest. Based on my experience with local authority members over the years, I can say that they are people with an ear to ground who are exposed to a considerable amount of relevant experience. I would have thought that an appointment of this kind would be based on merit.
I listened to the other Senators, especially the contribution of Senator Ryan who argued that it could be interpreted that a local authority member is not, for some reason, a quality candidate and is inferior in some way. I cannot find any other logical reason for it. The same prohibition does not exist in other legislation where appointments are in question, especially in sensitive areas.
It is wrong if a lobby group is in some way making the pace on this and saying it does not want local authority members because we are the legislators. No outside group should be entitled to make such a case because we will not be able to cross-examine it. We will not have an opportunity to hear why it is making that case. The Minister's situation is different because she is at our disposal, not just in the Chamber but outside as well. I would be particularly interested because I think there is an implication there which is serious for local democracy. For that reason, it has to be teased out and we must get an explanation as to why it is there in the first place.
I thank Senators for their contributions. This is not the first legislation in which local authority members have been barred from membership of particular boards. I am reminded of a former Member of the Dáil who was critical of such matters. In criticising some legislation he said that when first elected, back in the 1960s, if a postman's job became vacant in his constituency it was only a matter of nominating "his man" and he would get the job. Things had changed so much over the years with the introduction of new legislation, however, he said that if 100 people applied for such a job now, the only way he could guarantee it for his nominee would be to recommend the other 99. I suppose there is some truth in what he said.
I listened attentively to what the Senator said. I will discuss the matter with the Minister, Deputy Harney, and we will consider it for Report Stage.
Section 15(2) states:
A member of the Board ceases to hold office if the member—
(a) is adjudicated bankrupt,
(b) makes a composition or arrangement with creditors,
(c) is convicted of an indictable offence,
(d) is convicted of an offence involving fraud or dishonesty,
(e) is the subject of an order under section 160 of the Companies Act 1990,
(f) is sentenced to a term of imprisonment by a court of competent jurisdiction, or
(g) is removed by a competent authority for any reason (other than failure to pay a fee) from any register established for the purpose of registering members of a profession.
One may as well add to that list — because it is in section 85 — "or becomes a Member of the Seanad, the Dáil or the European Parliament". Some one had the sensitivity to separate them, and I apologise to the House for my mistake in that regard. The fact is, however, that the disqualifications are twofold: either one is involved in a representative role in politics, or one is a crook or bankrupt. I do not like the company into which the Parliamentary Counsel is putting me.
Some Minister will have to attend the House to give a reason for this, other than saying that it is in every other piece if legislation. If there is a constitutional, institutional or "good practice" reason why this should be the case, let us hear it and sort it out with a single Bill. We have a significant body that deals with insurance and people who seek to avoid using the courts to apply for damages. A Member of the Oireachtas is vice-chair of that body, so somebody made an exception in that case, although it is not being made for any other body. I would like to know why a Member of the Oireachtas is on the board of the Personal Injuries Assessment Board. Why is that body different from every other one? It is not really different, except that the Government took another view. I do not want to hold up the work of the House with this matter, but it is not right.
I promise I will sit down for a while after this. Section 17(1)(a)(b)(c) and (d) are fine. However, section 17(2) states
If, in the Minister's opinion, the Board is not performing its functions in an effective manner, the Minister may appoint a person to—
(a) conduct an independent review of any matter giving rise to that opinion, and
(b) submit a report to the Minister on the results of the review.
It does not say that even if the report vindicates the board, the Minister must not then dismiss the board. If the Minister is of the opinion, under subsection (1)(d), that the board "is not performing its functions in an effective manner", and the Minister appoints a person to conduct an independent review, and that independent person comes to the conclusion that it is doing a reasonable job, why does the Minister apparently still retain the right to sack the board? Legislation is increasingly being drafted to ensure that the Minister can do what he or she wishes, rather than what it is appropriate to do.
The Senator is entitled to his opinion but ultimately, we are putting in place a board with a particular job to do. We must insert safeguards to ensure that the Minister can get involved if the board is not operating effectively. There is no desire on the part of Ministers to impose themselves and become involved in the day-to-day running of boards. It is important, however, that when we appoint a board it is run properly.
Senator Dardis could be back again, no doubt. If I fail to be elected, I can then join the boards of such bodies, although I was not chosen by the people. Yet elected candidates who receive a public mandate are excluded from membership of such bodies. It is nonsensical.
I changed my mind. I am irrepressible. Earlier, we discussed the eligibility criteria for membership of boards or committees of boards. Section 19 states:
(1) The Board may—
(a) establish committees to provide assistance and advice to the Board in relation to the performance of its functions, and
(b) determine the membership and terms of reference of each committee.
(2) The Board may appoint persons to a committee who are not members of the Board but have special knowledge and experience related to the purpose of the committee.
That could mean anything because the board could set up as many committees as it likes. However, members of local authorities are also precluded from membership of such committees. That is carrying the matter too far. Under the provisions we discussed earlier, a member of a local authority is precluded from membership of a specialist committee established, for example, to deal with concerns over planning in an area, where such specialists may be required. If the Minister of State wants an additional argument to use with the Minister, Deputy Harney, he should examine the section for establishing such specialised committees. The idea that a member of a local authority would be precluded from membership, when they might have particular expertise, is carrying it too far.
Under section 26, HIQA is required to recruit its employees in accordance with the Public Service Management (Recruitment and Appointments) Act 2004. This amendment allows a transitional arrangement lasting three months, or a lesser time specified by the Minister, where the provisions of the Public Service Management (Recruitment and Appointments) Act 2004 do not apply. Senators will appreciate that HIQA will need to recruit personnel immediately it is established. Under this amendment it will be in a position to do so pending its obtaining a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004. In addition, the interim HIQA has already begun the recruitment process for certain staff with a view to having as much preparatory work carried out as possible ahead of HIQA's establishment. The amendment will allow HIQA to appoint such staff if the recruitment process has not been completed by the interim HIQA before the establishment of HIQA itself.
Section 40 provides for the establishment of the office of the chief inspector of social services as a statutory office within the authority and for the holder of that office, the chief inspector of social services, to be an employee of the authority. Specifically, the section provides that the chief inspector shall be appointed by the authority in accordance with the provisions of section 26 which deals with employees of the authority. The authority will determine his or her remuneration, terms, conditions and period of office with the approval of the Minister, given the consent of the Minister for Finance. It is further provided that the authority may dismiss the chief inspector on specified grounds.
The proposed amendment would make the Minister responsible for appointing chief inspectors, other than the first chief inspector. The Minister believes this to be inappropriate given that the chief inspector will be an employee of the Health Information and Quality Authority, HIQA, albeit an employee with specific statutory functions. For this reason the Minister decided not to accept the amendment.
In addition to statutory responsibilities for inspecting and registering residential centres the chief inspector of social services is given statutory responsibility for other matters under the Bill. These include overseeing the performance of the Health Service Executive, HSE, of its functions under sections 39, 41 and 53 of the Child Care Act 1991 in respect of fostering and preschool services and section 10 of the Health (Nursing Homes) Act 1990 in respect of the boarding of elderly people.
In keeping with these responsibilities it is proposed to clarify the legislation so that the chief inspector will oversee the performance of the executive's functions under sections 40 and 42 of the Child Care Act 1991. These sections both relate to the functions of the Health Service Executive in respect of children in its care.
Section 40 refers to the Health Service Executive's function in the placing of children in residential care, securing their welfare and the form of contract to be entered into by the executive with persons providing residential care. The section also refers to the supervision and visiting by the executive of children in residential care.
Section 42 of the Child Care Act 1991 deals with how the executive should review the case of each child in its care. Given the role assigned to the chief inspector relating to the inspection of residential services for children and the oversight role in regard to the other functions of the Health Service Executive under the Child Care Act 1991 it is, of course, also appropriate for the chief inspector to have an oversight role in respect of sections 40 and 42 of the Child Care Act 1991.
The Bill provides for the chief inspector to inspect residential centres against standards set by HIQA and regulations made by the Minister. Regulations for private nursing homes are currently made under the Health (Nursing Homes) Act 1990 and regulations for children's residential centres are made under sections 38 and 63 of the Child Care Act 1991.
Regulations for private nursing homes will now be made under the Health Bill rather than the Health (Nursing Homes) Act 1990. However, it had been intended that while regulations in respect of the registration requirements for children's residential centres would be made under the Health Bill, regulations in respect of standards of care at children's residential centres would continue to be made under the Child Care Act 1991. Offence provisions relating to the operation of children's residential centres would, therefore, be split between the Child Care Act 1991 and the Health Bill, with prosecutions taken by the chief inspector under both sets of legislation.
Following further consideration of this matter and in consultation with the Parliamentary Counsel, it has been decided that the best approach would be to ensure that all of the relevant regulations on standards are made under the Health Bill. This would result in a more easily understood system of regulation overall. The change in approach advocated by the Parliamentary Counsel necessitated some amendments to the Health Bill and, consequently, some amendments to the Child Care Act 1991 which I will now outline.
Amendment No. 12 is a technical amendment to section 41. Section 41 sets out the functions of the chief inspector of social services, one of whose functions, under paragraph (c), is to assess whether the registered provider of a designated centre is in compliance with regulations made under the Bill or under any other Act that provides for the regulations of such centres. As all regulations in respect of standards will now be made under the Bill, it is proposed to delete the reference made to regulations made under any other Act in paragraph (c).
Amendment No. 14 amends section 45. As Senators may be aware, the Health Service Executive currently carries out inspections of children's residential centres provided by the voluntary sector. The executive also inspects private nursing homes and under section 45 the Bill provides for a transitional arrangement whereby the Minister may require the Health Service Executive to continue to carry out inspections of children's residential centres and private nursing homes. This is intended as a temporary arrangement to facilitate the continued inspection of the relevant services pending the finalising of all necessary arrangements, such as the transfer of staff and resources to the authority. Amendment No. 14 is, therefore, a technical amendment to section 45 to take account of amendments to the Child Care Act.
Section 50 deals with the granting or refusal by the chief inspector of social services of applications for registration of designated centres or applications for renewal of registration. In granting registration the chief inspector must be satisfied that the designated centre complies with standards set by HIQA and regulations made by the Minister. Amendment No. 15 is a technical amendment to section 50 to delete references to regulations made under the Child Care Act 1991 and ensure that all references to regulations in the section are to regulations made under the Bill.
Section 79 provides for offences and subsection (2) of that section sets out the offences committed by a registered provider of a designated centre if the registered provider fails to discharge a duty to which he or she is subject or contravenes a provision of the regulations made in respect of a designated centre. Amendment No. 16 to section 79 is a technical drafting amendment to ensure that all relevant regulations made under the Bill are taken into account.
Section 101 allows the Minister to make regulations with respect to designated centres and amendment No. 18 ensures that such regulations will now be applicable to children's residential centres. The Bill currently deletes those sections of the Child Care Act 1991 that provide for the registration of children's residential centres operated by the voluntary sector as, along with the Health Service Executive residential centres, registration of these centres will now be regulated under the Health Bill.
Amendment No. 19 to Schedule 1 and amendment No. 22 to Schedule 2 are further technical amendments to the Child Care Act 1991 to delete provisions relating to the making of regulations for residential centres and related offences under that Act. These deletions are consequential to changes made to the Health Bill as all regulations relating to residential centres will now be made under the Bill and offences against the regulations will be prosecuted under the Bill.
This is a technical amendment. In view of the significant statutory role of the chief inspector of social services it is important there be no dispute over the validity of registration decisions or other decisions made in respect of designated centres that are made at a time when the chief inspector is absent for a period or the position is vacant. This amendment empowers the authority to appoint an inspector to perform the functions of the chief inspector on a temporary basis in such circumstances.
I wonder if subsection (3) of section 42 is somewhat vague. It would be very easy for the chief inspector to refuse to answer questions on difficult topics if legal cases are pending but these are the topics that will be raised at meetings. Easy questions will not be raised at committees, even if the chief inspector is before the Oireachtas Joint Committee on Health and Children or a sub-committee. The provision is too vague as it would allow the chief inspector to refuse to answer questions on the basis that a matter may at some time in the future come before a court. That is not the intention.
I record my usual objection to the meaningless provision in section 42(8). How could the chief inspector answer a question in an open manner while, at the same time, not questioning or expressing "an opinion on the merits of any policy of the Government or a Minister or on the merits of the objectives of such a policy"? I would love to dig out a manual on quality assurance, of which I have several in my office in Cork, to find out how one can have a genuine quality assurance system in which a senior manager who is part of the quality loop is not permitted to talk freely about another participant in the quality loop, in this case, the Government. Quality assurance in public provision is not possible without Government commitment and it starts at the top rather than bottom.
In my experience, while most public sector managers believe quality assurance is a great idea for the minions, they are reluctant to operate under such procedures themselves. It is a pity the elaborate academic quality assurance system operating in the institutes of technology does not have an equivalent in the non-academic sections, which are obviously staffed by importantpeople.
To be more apposite to the section, the procedure for resolving a dispute through the High Court appears cumbersome. Section 42(3) states: "The chief inspector shall not be required to give an account before a Committee of any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State." While I thank God for the High Court, we demand a great deal of their lordships when we ask them to forecast the future. I have no problem precluding matters from discussion when good legal advice shows they have been or will be the subject of litigation. However, the insertion in legislation of the words, "may at a future time be the subject of proceedings before a court or tribunal", is wrong because courts, by definition and as constitutional agencies, exist at all times.
Does the word "tribunal" encompass the Employment Appeals Tribunal? Given that many tribunals are established to perform a specific function, they do not have a permanent institutional existence. For this reason, I am curious to ascertain what the word "tribunal" means in this context.
How does the Minister of State envisage the courts will adjudicate on what may happen in the undefined future? Instead of the words "at a future time", if we were to specify a timeframe of six or 12 months, I might have some sympathy with the provision. However, I would love to know how the courts will interpret it because it cannot be interpreted and is unenforceable. The courts will send it straight back to the Oireachtas asking us to sort it out.
I share the concerns expressed by Senators Browne and Ryan. I expect section 42(3) will result in more court cases and tribunals because the chief inspector may opt to state he expects a matter to be the subject of proceedings rather than having simple matters settled by giving an account before a committee.
I listened to Senators' criticisms of the section. I believe most people would regard as normal the provision in section 42(3) that a matter before or likely to come before the courts would be——
That is what the subsection amounts to. Its purpose is to ensure a case is not prejudiced as a result of discussions which may take place. Section 42(8) is a standard provision.
It is a matter for Government Ministers to account for Government policy. Officials should not be required to listen to abuse from Members regarding specific Government policies. The chief inspector will have to account for his or her actions, whereas the Minister will defend Government policy.
I cannot permit a Minister to argue that the words "may at a future time" are the same as the word "likely". They do not have the same meaning. I repeat my question to the Minister of State. How will the High Court adjudicate on whether a matter "may at a future time be the subject of proceedings before a court or tribunal"? I am also entitled to an explanation of the meaning of the word "tribunal" in this context.
Matters on which proceedings are initiated do not always come to court. Section 42(3) is a standard provision. I will consider the Senator's point regarding the meaning of "tribunal" because it may require clarification.
(b) 6 months after the date on which evidence first comes to the knowledge of the Authority or the chief inspector that is sufficient, in the opinion of the Authority or the chief inspector, to justify the bringing of the proceedings, provided that the proceedings are commenced not later than 2 years after the date of the offence.
(3) A document, purporting to have been issued by the Authority, in the case of a contravention of section 77 described in section 80(1)(a), or by the chief inspector, in any other case, certifying the date on which the evidence described in subsection (2) first came to the knowledge of the Authority or the chief inspector-—
Proceedings for offences are set out under section 80. The majority of offences under the Bill relate to designated centres and are prosecuted by the chief inspector. However, the HIQA may prosecute in cases where a person appointed to carry out an investigation under section 9 or to monitor compliance with standards set in accordance with section 8 has been refused entry to a premises. Subsection (2) provides that summary proceedings for an offence under the Bill may be instituted within 12 months after the date of the offence. Amendment No. 17 retains this principle but also enables the prosecution of an offence up to six months after the date on which evidence first comes to the knowledge of the HIQA or the chief inspector that is sufficient in the opinion of the authority or the chief inspector to justify the bringing of the proceedings. This allows the chief inspector or the HIQA, as the case may be, to prosecute where evidence of the offence only came to light some time after the offence was committed. However, in line with similar provisions in other legislation proceedings must be commenced not later than two years after the date of the offence.
Amendment No. 17 also provides for the admissibility of certificates certifying the date on which evidence first came to the knowledge of the chief inspector or the HIQA. Again, this is a standard provision.
I have no problem with a prohibition on the disclosure of confidential information but such information should be information which is exempted under the Freedom of Information Act. If we were in earnest about it, we would decide information is confidential if it is exempt information under the terms of the Freedom of Information Act.
I would like the Minister to explain how something could be confidential and yet be capable of being disclosed under the Freedom of Information Act. There is no fit. It seems the existence of the Freedom of Information Act, and its definition of exempt information which is not covered by freedom of information, is not something that has got through to the Parliamentary Counsel, so we have a ridiculous situation where confidential information means "information that is expressed by the Authority to be confidential". That is like Alice in Wonderland where a word means what I say it means.
The Bill ought to state that confidential information is information which is exempt from the provisions of the Freedom of Information Act, in which case the procedures of the Act will adjudicate, not the internal ramifications of the body. That ought to be the operating procedure. I have no objection to genuinely confidential information being confidential. It should be taken seriously and should never be disclosed because it can be sensitive information. However, I have an objection to sloppiness of drafting.
When we are finished discussing this, it might be appropriate to contact Rentokil because there must be fleas in Senator Ryan's seat the way he is hopping up. On the question, information must be released if it is required by law.
I ask the Minister to take cognisance of what I and others have said in regard to section 85(1)(d). The section states: "A member of the Board of the Authority or a member of a committee of the Board of the Authority immediately ceases to hold office on ... becoming a member of a local authority." It is not a reasonable provision and I ask that it be deleted.
Amendment No. 21 is not a minor amendment. As it stands, it is the executive of the body that would make arrangements with suitable persons. It is as well "The Health Service Executive" was inserted instead of "The Executive". I have no problem with that.
The Health (Repayment Scheme) Act 2006 came into effect on 30 June last and provides a legal framework to repay recoverable health charges for publicly funded long-term care. The Act also applies a legislative framework to the operation of patient private property accounts which, at the request of the patient, may be operated by the Health Service Executive. The executive may invest the funds to obtain interest for the patient. Patients at all times have access to the funds and may draw on them as they wish. The system provides the patients with an ability to exercise autonomy towards such activities as choice of clothing, recreation activities and so on.
Section 9 of the Health (Repayment Scheme) Act 2006 is being amended in Schedule 2, Part 7 of the Bill to allow the Health Service Executive to invest such funds with the National Treasury Management Agency on behalf of patients. Previously, under section 9, the Health Service Executive was authorised to invest money with institutions authorised by the Irish Financial Services Regulatory Authority but the provisions did not allow for investment with the National Treasury Management Agency because it is not covered by the Irish Financial Services Regulatory Authority legislation. The National Treasury Management Agency is involved with investing money on behalf of the State and deposits with that agency are not covered by the Taxes Acts provisions which require deposit takers to deduct deposit interest retention tax. Money invested will also be Government-backed, with competitive rates and no fees.
Amendment No. 23 is a further amendment to the Schedule and is a technical amendment to deal with an issue where a patient to whom the Act applies is a ward of court. The Circuit Court has concurrent jurisdiction with the High Court in wardship matters. This concurrent jurisdiction is conferred by section 22(2) of the Courts (Supplemental Provisions) Act 1961. The registrar of the wards of the High Court only has responsibility for wards who have property with a value in excess of €6,350 or an income from interest on savings or investments in excess of €380 per annum. A patient whose property value or income from interest on savings or investments are below either of the thresholds to which I have just referred could only be made a ward of the Circuit Court and the registrar of the wards of the High Court has no authority to act in such cases. The authority in this instance rests with the relevant county registrar. The amendment amends the definition of a connected person in the Act to include county registrars. This puts beyond doubt the right of patients who are wards of the Circuit Court to have the county registrars apply for repayment of funds, in line with the provisions of the Act.