Seanad debates

Tuesday, 3 April 2007

Medical Practitioners Bill 2007: Second Stage


Question proposed: "That the Bill be now read a Second Time."

3:00 pm

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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The Medical Practitioners Bill 2007 updates and modernises the regulation of medical practitioners by the Medical Council. It is acknowledged the current legislative framework, which is almost 30 years old, needs to be revised. The Health and Social Care Professionals Act 2005 provided for the appointment of the new Health and Social Care Professionals Council, which recently held its first meeting. The Pharmacy Bill 2007 will modernise the regulation of pharmacists and I am ensuring that further legislation governing nurses and midwives will be on the legislative agenda in the near future.

The Medical Practitioners Bill is part of a set of legislation aimed at enhancing patient safety, which is at the heart of the health reform agenda, and the accountability of health professionals. The Bill has been the subject of extensive consultation and consideration. When I published the draft heads in 2006, I was pleased many organisations and individuals responded with comments on the proposals. A total of 58 submissions were received from members of the public, patient groups, individual doctors and their representative organisations, the third level sector, medical specialist training bodies, Departments, State agencies and other interests. In addition to that consultation process, the Medical Council and other bodies organised seminars to allow the public to debate and identify the key issues which were to be addressed.

Following a constructive and useful debate in the Dail, I am pleased to bring this long-awaited and much-needed legislation to the Seanad. The need to act decisively is more evident than ever following the publication of the reports of various health care inquiries, including the inquiry into events at Our Lady of Lourdes Hospital in Drogheda. The Bill is consistent with the Government's commitment, as outlined in the health strategy, to strengthen and expand the provisions for the statutory registration of health professionals, including doctors. If we are to maintain the trust of patients in the doctors who treat them, we need to demonstrate and maintain quality at all levels. Patients want to know the service they receive from doctors is based on the evidence of best practice and meets the highest standards. Improving quality involves implementing internationally recognised evidence-based guidelines and protocols and ensuring professionals commit to and engage in ongoing education and updating of skills. The maintenance of trust requires that deficiencies in practice are identified at the earliest possible stage, corrective actions are taken and future progress is monitored. If we are to put people first, we should ensure patients are given more influence and responsibility.

One of the priorities of this legislation is to strengthen and clarify accountability. In April 2006 the Department of Health and Children issued a Framework for Corporate and Financial Governance to all statutory bodies, including regulatory bodies, which operate under its aegis. The provisions of the legislation are in line with the Department's framework. The governance procedures and arrangements outlined in the Bill are accepted as normal by public bodies across the wider public sector. The laying before the Oireachtas of statements of strategy, business plans and annual reports will give the public an opportunity to see how the Medical Council is fulfilling its statutory delegated functions. Some argue these provisions increase the potential for ministerial or political interference in the workings of the council, but that is most certainly not the case. The provisions are about openness, accountability and responsibility which should be embraced by any statutory body undertaking public functions in a modern and democratic society.

I do not doubt doctors are working in a much more demanding environment than they previously did. While evidence-based guidelines, tighter professional standards and increased patient rights and expectations are welcome and necessary, they add to the demands faced by doctors. Such forms of accountability will be strengthened by these legislative proposals.

This legislation will ensure members of the public are guided, protected and informed in order that they can be confident that doctors are properly qualified, competent and fit to practise on an ongoing basis. Importantly, it will support doctors by allowing them to demonstrate the high standards they strive to maintain on an ongoing basis. It will increase the trust doctors have in their own profession and their continuing personal and professional competence.

I am conscious that in the modern world, the regulation of doctors, as with other professions, cannot be solely the remit of the profession itself with minimal input from patients and other professionals. There are many interested parties and stakeholders who have an important role to play in the regulation of the medical profession, including patients, employers and other caring professionals.

Education is key to quality medical practice, as is research. I have endeavoured to ensure the third level sector, as well as those representing the broader science and humanities areas, are represented. I have also included a representative from the Health Information and Quality Authority. The Medical Council's functions under the legislation will be significant in setting and monitoring standards and quality and this new membership will serve only to enhance that role. The council exists to regulate the medical profession, not to represent the interests of that profession or any constituent group within it. The public interest comes first and everything in the Bill, including the membership of the council, is designed with that in mind.

For the first time the legislation imposes a clear requirement on all medical practitioners to register with the Medical Council before engaging in the practice of medicine. The Bill provides for the designation of titles for the sole use of registered medical practitioners or particular classes of registered medical practitioners on the basis of specific criteria. This will help to guide members of the public as to the level of competence of the medical practitioner responsible for their care.

A strong feature of this legislation is the new system of registration, with procedures which will be more streamlined for all. It includes a new, appropriately divided register. Temporary registration for doctors from outside the European Union will be discontinued, in order to allow for those doctors who have given such significant support to our health service to enjoy the same benefits of registration as their Irish and EU-qualified colleagues and peers. For the first time, doctors with suitable non-EU specialist qualifications will be able to gain direct access to specialist registration. Legal registration confers a professional privilege which demands the adoption of a consistent and ongoing high standard of professional conduct for each registered medical practitioner. We are all aware, however, that sometimes things go wrong. Therefore, a comprehensive fitness to practise structure which can act quickly and appropriately in such circumstances is required.

A central feature of the Bill is the adoption of a contemporary approach to fitness to practise issues, which provides for alternatives to the existing complex legal process of a fitness to practise inquiry. A mediation process for less serious complaints by agreement of the parties concerned is provided for. The Bill also includes a means for a complaint to be referred to the statutory complaints process established under the Health Act 2004, or to another body or authority, or for the referral of a matter to competence assurance procedures.

During the years it has been of significant concern that fitness to practise procedures are conducted behind closed doors and that the Medical Council is precluded by the existing legislation from disclosing any details regarding the conduct of inquiries. Arising from these concerns, I have decided that fitness to practise inquiries will be generally held in public. To allow for individual situations where this may not be appropriate, provision is included for the fitness to practise committee to decide to hold in private all or part of an inquiry, depending on the circumstances. In addition, the Bill now specifically provides that the council may, if it is in the public interest, publish the transcript of an inquiry. However, I am also concerned that we should demonstrate our commitment to support medical practitioners. With that in mind, I have ensured that a new health committee is provided to assist individual doctors with health issues.

The support of doctors and the protection of patients also require the modernisation of medical education and training processes. The overall approach is consistent with the broad thrust of the recommendations of the Fottrell and Buttimer reports on medical education and training at basic and specialist level. The Health Service Executive will assume a significant role in the development and co-ordination of medical education and training, in co-operation with the Medical Council and the medical specialist training bodies. However, I consider it important that the Medical Council's role in education and training has been significantly redrafted to provide more clarity on the requirement to set standards and develop guidelines to assist all. It should be clear to all parties that the Medical Council's role is about standards, guidelines and quality in education and training, while the HSE will have a more facilitative, co-ordinating role.

This country has bitter experience of what can happen when appropriate systems and supports for the maintenance of ongoing competence and high standards in medical practice are absent. Isolation of medical practitioners, even when working in a hospital setting, can lead to outmoded and outdated practice being perpetuated. The Lourdes Hospital Inquiry brought such matters into sharp focus. I am determined that we will learn and move on from these matters and as a result Judge Harding-Clarke's recommendations have had a strong influence on the drafting of this legislation. Her recommendations for the reform of education and training and ongoing competence assurance structures have been studied and will be implemented in a number of ways. While we can never guarantee that mistakes will not happen again, this legislation provides an important opportunity to learn from the past and put in place necessary elements to limit the impact of mistakes in the future. I consider it significant and imperative that all employers of medical practitioners, not least the HSE, have been given responsibilities with regard to the maintenance of the professional competence of medical practitioners.

The Medical Council will have a leadership role in ensuring doctors comply with what is a new legal statutory requirement for them to maintain their professional competence on an ongoing basis. This will require much commitment from all parties, individual doctors and the teams within which they work, their employers, the medical specialist training bodies and the Medical Council as the regulating competent authority of the profession.

I have ensured the Bill contains provisions which will allow funding for the administration of competence assurance structures and other matters to be provided for the Medical Council. While the Council will continue to be funded in the main by the medical profession through the payment of registration fees, I recognise that the State must also share the burden of the costs involved in such issues. I consider that these costs will be offset in this case by the benefits of the quality assurance of the competence of medical practitioners.

Given the importance of this legislation, I take this opportunity to highlight some key elements of the new system of regulation. In Part 2, section 6 sets out, for the first time, a statutory objective of the Medical Council, which is "to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among registered medical practitioners".

Section 7 outlines in clear terms the functions of the council which relate to the registration of medical practitioners, the regulation of their education and training at all levels and matters relating to the recognition of qualifications of medical practitioners. The council's functions also include the setting of standards of practice, including advertising, and all matters of ethical guidance for medical practitioners, the handling of complaints and inquiries relating to the conduct of medical practitioners and proactively advising the public on all matters of general interest relating to the functions of the council, its area of expertise and the practice of medicine.

Section 9 provides for the Minister to give general policy directions to the council concerning its functions but it is important to emphasise this standard common provision specifically excludes matters relating to ethical guidance, complaints, inquiries and sanctions. In addition, the provisions of this section make it clear that any policy directions cannot prevent the council from, or limit the council in, performing its functions.

The Medical Council, as a statutory body established in 1978, cannot and does not operate in a completely independent or autonomous way despite the views expressed by some. It is important that it has regard to public policy, particularly in regard to areas such as medical education and training, in which it plays such an important role, along with a range of other stakeholders. Section 11 outlines the council's power to make rules. Rules will be subject to publication in draft form for public comment and all rules of the council must be laid before the Houses of the Oireachtas.

Part 3 provides for the council to prepare a statement of strategy, an annual business plan and an annual report on its activities. A modern public body with powers and responsibilities delegated to it must demonstrate how it plans to undertake its statutory functions and account for its progress and achievements in this regard.

Part 4 includes provisions for the membership, committees and staff of the Medical Council. Section 17 outlines the membership of the Medical Council, which shall continue to consist of 25 members. As I have consistently stated, it is my belief that public confidence in the Medical Council requires that a majority of its members should not be doctors. These members will represent a wide variety of interests and experience. However, I have made it clear that although all members of the Medical Council will receive an appointment order from the Minister in order that they are all appointed on an equal basis, the Minister may not refuse to appoint an individual nominated or elected to serve.

Section 20 outlines the council's power to establish committees to perform any of its functions and provides that persons who are not members of the council may be included in the membership of any of the council's committees. This will allow all committees of the council to co-opt additional expertise, both medical and non-medical, as required. The various sections in Part 5 deal with the accounts and finances of the Medical Council.

Part 6 is concerned with a new modern system of registration of medical practitioners. Medical practitioners who wish to practise medicine in the State must be registered unless acting lawfully in another professional capacity. Sections 39 and 40 provide for the designation of titles which are reserved for use by certain medical practitioners. Offences and significant penalties for breaches of registration requirements are included in this Part of the Bill. Section 43 establishes the register of medical practitioners to consist of four divisions, namely, the general division, the specialist division, the trainee specialist division and the visiting EEA practitioners division. Provisions are included to allow doctors who hold refugee status and who have had difficulties in the past providing the necessary documentation to prove they are in good standing to become registered and to work as doctors in this country. I am pleased medical practitioners with suitable non-EU specialist qualifications will, for the first time, be able to gain direct access to specialist registration.

Section 50 concerns the transposition of relevant articles of Directive 2005/36/EC and relates to temporary and occasional provision of medical services by medical practitioners who are already lawfully registered or legally established in another member state.

Part 7 relates to complaints regarding medical practitioners and the procedures for the handling of complaints. The sections outline the expanded grounds for complaint, what actions the new preliminary procedings committee can and must take and includes new and innovative provisions governing mediation, referral to other authorities and keeping the complainant informed.

Part 8 relates to procedures to be followed by the fitness to practise committee in conducting inquiries, once a prima facie case has been established. The fitness to practise committee must have a majority of persons who are not medical practitioners. It covers the conduct of the hearing which generally will be in public. Part 9 relates to the imposition of sanctions by the Medical Council following a finding against a medical practitioner. The role of the High Court in the confirmation of sanctions imposed is maintained and provision is made for rights of appeal.

Part 10 provides for the roles of the Medical Council and the Health Service Executive with regard to the education and training of medical students, interns and medical practitioners undertaking specialist medical training. The provisions of this Part are influenced by the recommendations of the Fottrell and Buttimer reports on medical education and training. It is clear that medical education and training must be undertaken in partnership by the various stakeholders and this Part emphasises that requirement for co-operation and consultation.

Following the dissolution of the postgraduate medical and dental board under Part 12, the HSE will now be responsible for the co-ordination and development, including funding matters, of medical and dental specialist education and training.

The education and training role of the Medical Council was outlined in a minimalist fashion under the Medical Practitioners Act 1978. Sections 87 and 88 now outline in clear terms the role of the council in setting standards and guidelines on medical education and training and monitoring adherence to those guidelines. The council will continue to be the body which inspects and approves medical training programmes and institutions at basic, intern and specialist level and to approve medical qualifications. The Medical Council will also continue to act as the competent authority for the recognition of EU medical qualifications.

Part 11 is new to the system of regulation of medical practitioners as it outlines new requirements for the maintenance of professional competence of registered medical practitioners. The Medical Council, the HSE and other employers and individual medical practitioners are given statutory responsibilities by this part. An appropriate link to fitness to practise procedures is also included.

Part 13 provides for a number of miscellaneous matters, including a power for the Medical Council to investigate unregistered persons and new provisions regarding licensing for the practice of anatomy.

As I said at the outset, the Bill marks a further significant step in the process of strengthening and expanding provisions for the statutory registration of health professionals as set out in the health strategy. It is further confirmation of the Government's commitment to the delivery of a reformed health service which has as its core objective the maximisation of the level and quality of care provided to patients in the years ahead. Protecting patients and supporting doctors is at the heart of the policy behind this legislation and I urge Members to support the principles it outlines.

I commend the Bill to the House.

4:00 pm

Mary Henry (Independent)
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I welcome the Minister. This is an important Bill not only for the public but also for members of my profession. As the Minister stated, the protection of the public is given prime importance in the Bill, but in regulating the medical profession it is also important to ensure it has confidence in the way it is being regulated.

As the Minister is aware, there has been much criticism of the legislation and she has entertained a considerable amount of it since the heads of the Bill were published six months ago, for which I am very grateful. Like other Members, I am still hearing criticism of it.

The changes to the way the registers are to be set up is one of the most important aspects of the Bill because the registers will show whether people are doctors, trainees, specialists and so on. In the past people could claim to be specialists without having any specialist training and I am glad that has been altered.

I welcome the changes in regard to practitioners from outside the country, particularly doctors with refugee status who, in many cases, find it impossible to get letters of good standing from the countries in which they were registered. It is to be welcomed that cognisance is being taken of offences committed and judgments against doctors in other countries because this has been a cause of great concern not just to members of the public but also to members of the medical profession.

The Minister decided a long time ago that the various professional bodies would be supervised by councils with a lay majority. I have no great problem with this proposal but it will mean a small number of medical practitioners on the council. Even if people are co-opted onto the various committees, there will be inordinate delays as such people are only permitted to sit on one committee at a time.

Senator Feeney served on the Medical Council and will be aware that one of the main complaints about the fitness to practise committees of the current Medical Council was the inordinate delay in bringing forward complaints. I doubt if this situation will be much helped by having such a small number of people on the council.

The Minister is correct in stating that she is not appointing and dismissing the whole council and very strict rules are in place. Only five people will be appointed by the Minister and there is always the concern that these will be political appointees such as friends because this Minister will not always be the office holder, even though we may have her for another few years. Future Ministers might be more prone to making political appointments. I refer to Deputy Boyle's Bill which he has just published in which he proposes various vetting criteria for people who are being nominated for membership of statutory bodies.

I am pleased with the Minister's proposals for the establishment of committees. I was delighted that she has brought mediation into the picture. This is also a part of the Pharmacy Bill and it is a good idea. It is often the case that once the situation is explained and apologies are extended, if that is what is required, it is not necessary to bring the complaints procedure any further.

The Minister suggests that the fitness to practise committees dealing with complaints should be held in public. I expressed my concerns about this proposal during discussion of the Pharmacy Bill and I and other doctors are of the opinion that if public hearings are proposed, it will prevent many people from coming forward with complaints, especially complaints which may be of a sexual nature. I have urged people in two or three cases to complain about the treatment they received because I thought the type of examination they had been given was unnecessary for the procedure for which they were being assessed, but I could not persuade them to go forward even when the complaints proceedings were to be held in private.

I have had interesting correspondence with a woman general practitioner who has been prominent in the area of medical ethics and she has expressed the same concerns. The Minister is aware of complaints against a medical practitioner who had videotaped women whom he was examining. This man went as far as the courts to try to have the proceedings held in public. In even the most atrocious cases of rape people are not inclined to come forward. Those who should complain do not do so.

All the committees except the fitness to practise committees are to have a membership with a majority of doctors. The Minister will need to recruit a fair few doctors. I do not think anyone could object to having a lay majority on the fitness to practise committee because the lay members have been far more lenient and forgiving than peers of the person against whom a complaint is made. The standard of proof required is that of reasonable doubt in the fitness to practise procedure. Will this continue to be the standard because the Bill does not state whether it will? The new council will make its own rules but it is possible that the new council will want to change the standard to one of the balance of probability which requires much less evidence against the person. It might be preferable to follow the courts and have the standard of proof of reasonable doubt but the Minister has not made these suggestions in her legislation. This will be a decision for the council but the rules will be considered by the Minister.

The Minister referred to the Neary case both in this House and in other fora and commented on the reticence of those who worked with Mr. Neary in Our Lady of Lourdes Hospital in Drogheda to come forward and make complaints about the serious malpractice. One of the defences for that dreadful malpractice of Caesarian sections was that the man was doing what were described as compassionate hysterectomies done to sterilise a woman rather than sterilisation by means of tubal ligation which was not allowed within the ethos of Our Lady of Lourdes Hospital. Even after reading Judge Harding Clark's report, I am not sure about the composition of the hospital board or who or what body decided on the rules for the hospital. It is certain these rules were subscribed to by those who worked there and this led to serious consequences for many young women who had unnecessary hysterectomies. That anyone could even carry out such a serious procedure and afterwards explain it was carried out because tubal ligation was forbidden, is shocking.

Those obstetricians who supported Mr. Neary and the court cases to date show that what were described as compassionate hysterectomies were being carried out in other places besides Our Lady of Lourdes Hospital. Such hospitals had lay boards so it was not the medical profession which was laying down these ethics. I would be very careful about considering that lay members would be somehow more righteous than members of the medical profession.

I remember one hospital in particular where the number of hysterectomies carried out to cure menorrhagia, excessive bleeding at the menses, would mean that half the women of Ireland must have been exsanguinating. This practice may be ongoing because there are hospitals where it is difficult if not impossible to carry out sterilisations, even though this is a perfectly legal procedure. These hospitals have lay boards and it must be questioned whether compassionate hysterectomies are still being carried out. I refer to the old days when symphisiotomies were carried out and when Caesarian sections were being carried out, the obstetrician would be inclined to perform a sterilisation or the woman might resort to contraception to avoid another Caesarian section. I do not believe the medical profession is incapable of being its own ethical watchdog. I understand this is the only country which will have a lay majority on its professional regulatory body.

All Members and the Minister have received letters implying that abortion or embryonic research could be introduced by appointees to the Medical Council. Some of them had some kind words to say about me and indicated that I was their last hope in terms of having this stopped. However, the latter is not true because the Minister made it clear in the legislation that she or her successors will not give directions with regard to doctors' ethics, performance, etc. I do not know who decided that this would be a good reason for not having a lay majority on the board. As far as I am concerned, it has nothing to do with it.

I am much more concerned about the relationship between the council and the Health Service Executive in respect of education and training. I am also concerned about the council's position vis-À-vis the promotion of Government policy. If medical practitioners are of the view that a policy is wrong, they have an ethical obligation to say that this is the case. It is difficult to see how anyone could state that there might be something wrong with their doing so.

On the relationship between the council and the Health Service Executive in respect of education and training, the legislation does not indicate in clear terms how they are supposed to work together. The Health Service Executive will be obliged to service the health service, as well as ensuring that education and training take place. If push comes to shove, the services will have to be given priority. As a result, there may be a diminution of education at trainee level. There may, in particular, be a diminution if there is any difficulty regarding funding. Provision should have been made in the legislation in respect of funding for study leave, training courses, etc., for those who will be in training.

There is nothing in place to follow the Postgraduate Medical and Dental Board. The universities that have medical schools — of which there are going to be even more throughout the country — will only be represented by two people on the main council. I would have preferred it if the bodies that provide training and postgraduate education had been dealt with under the legislation and given representation on some sort of committee. Specific provision should be made in this regard, rather than merely leaving matters to the council. The bodies, and places where training will take place, will be inspected. However, the inspectorate is only loosely described and I would have preferred if a more structured provision had been brought forward in this regard.

When the Postgraduate Medical and Dental Board is disbanded, its assets will be taken into the great maw of the Health Service Executive rather than being ringfenced in order that there might be something in place as regards education and training going forward. This is an extremely important area and for as long as I can remember there have been difficulties with it in respect of money.

In the context of competence assurance, I am delighted that assessments will be carried out every five years. From where will the money regarding such assessments, etc., come? Those at the Health Service Executive will have to have their wits about them in order to assure that they will be able to facilitate the maintenance of professional competence because direct provision in that regard is not made in the Bill.

I am concerned with regard to the position in respect of appeals against judgments handed down by the fitness to practise committee. There will be no appeal against anything less than "an advice or admonishment, or a censure, in writing". When the Select Committee on Health and Children debated Committee Stage of the Bill, the Minister informed Deputy McManus that this is because of a case before the courts. This brings us back to the Neary case once again. I fail to understand how legislation relating to the future can affect a court case being judged on the basis of existing legislation. The Minister indicated to the select committee that she had received legal advice on this matter and is awaiting the determination of the case in question. She also indicated that it will have an impact on other legislation. When replying, perhaps the Minister will expand on the explanation she provided to Deputy McManus. It is a matter of extreme concerns that if a person is given a minor admonition or advice, he or she will not be able to appeal against these or in respect of the facts brought forward in the case.

The legislation has been long awaited. I hope it will be as useful as the Minister hopes it will be.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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I welcome the Minister for the debate on this groundbreaking legislation. I am delighted this Bill is being taken.

I am unusual in that I am a former member of the Medical Council. I sat on the council from 1999 to 2004 and on each occasion I entered Lynn House in Rathmines during that period I was greeted by people screaming and wanting to know when the Medical Practitioners Bill would be introduced. I congratulate the Minister, Deputy Harney, on the leadership she has shown in bringing forward the legislation. I have to smile at Senator Henry because many were the days on which we asked each other if we would see the Bill being introduced. We thought that we would never do so. When attending meetings at Lynn House during the period to which I refer, I never thought I would be a Member of the Seanad when the legislation emerged.

I have never been lobbied so much on an item of legislation as I have been in respect of this Bill. Some of the lobbying to which I was subjected was good, while some of it was terrifying. I received items of mail in which I was called horrible names and had terrible things written about me. This frightened the living daylights out of me. However, I decided to put them to one side in the hope that nothing further would happen.

I may be the only person in the House who welcomes the fact that there will be a lay majority on the board. I congratulate the Minister in that regard. I recall that she took similar action when she was Minister for Enterprise, Trade and Employment. I spoke to an accountant at the weekend who informed me that there is a lay majority on the board of his profession's regulatory body. He stated that when this was introduced, those in his profession were not too enamoured of the Minister's actions. However, the profession has turned itself around and those in it are now delighted with the lay majority. The Incorporated Law Society of Ireland introduced a lay majority on its own initiative. I have no difficulty with the putting in place of a lay majority and, in fact, I welcome this development.

When I was a member of the council, there were 25 members on the board — 21 medics and four were lay people. Of the four lay people, one was a GP. The latter spent more time dealing with Medical Council issues than he devoted to his practice because he was so committed to upholding the role of the lay person. The individual in question took that role very seriously.

I have the height of respect for Senator Henry, particularly in the context of what she has to say on medical issues. It is because of some of the points she made that I wish to outline some of the experiences I had when serving as a member of the Medical Council. The Senator stated that not having a majority of medical practitioners on the board would be a matter of concern. I do not believe that this will be the case. When I served on the council, it was difficult to encourage members, particularly doctors, to sit on fitness to practise committees. Lay people were always putting their names forward in this regard. I must have been involved in 80% of the fitness to practise cases heard during my five years on the council.

In the latter half of my time with the Medical Council, I chaired the ethics committee. When I first became a member of the council, there was no question but that a lay member could not chair any of its committees. After two and a half years of service, I had obviously proved myself and I was approached by the doctors and asked if I would allow my name to go forward for election as chair of the ethics committee. I reluctantly said "Yes" and was opposed by only two doctors. When I won that vote by double numbers, the sky did not fall and the ethical standard did not drop. I was a safe pair of hands who carried out my duties as well as any doctor. I make these points to show that a lay majority will not be bad for the council.

It was difficult at times to find a quorum of doctors at meetings of the education, ethics and fitness to practise committees. I say this not as a criticism but to acknowledge that the doctors were very busy in their practices. One of the reasons for their inability to attend meetings was that their work for the Medical Council was additional to the responsibilities of their practices.

With regard to the Neary case, the sterilisation of women and the fact that the board of the hospital had a lay majority, I am very familiar with the issues because I sat on the board at the time and none of the 13 cases I investigated involved sterilisation. The women were robbed of their wombs. Sterilisation was an issue from another world and a different decade to the one with which we dealt. From my understanding of the case, Dr. Neary's colleagues turned a blind eye. The pathologist and the anaesthetist did nothing except write a report. I will not use all my time on a discussion of Dr. Neary but if I were a pathologist who received a diagnosis from a doctor that a fungus or other defect necessitated the removal of a uterus but did not find the problem, I might write a report and say no more. If I received a second diagnosis, bells would start ringing in my head. However, if I received 48 diagnoses, I would be breaking down every door in the hospital to see the man directly rather than send him a report because I would be afraid for my practice. The same would apply in the case of the anaesthetist.

I am not sure whether it is fair to compare this Bill's provisions with a lay majority on the board of a hospital run by nuns, clergy and medics at a time when lay members were too afraid to speak out. I make my argument because I hold Senator Henry in high regard. She is a stalwart on medical issues in this House and has a finely balanced mind which I respect.

This Bill will have ground-breaking effects on the medical profession. It is broadly welcomed by the profession and, while certain issues remain to be worked out, I am sure they will addressed on Committee Stage. I was glad to see that the Bill passed through the Dáil without any major hiccups. The council will continue to carry the responsibilities it did when I served on it. I welcome the Minister's clear explanation of the Bill's main functions in protecting the public and regulating the profession.

Education and training is an important area for the Medical Council, so I was glad to read in an article by the Minister in today's issue of The Irish Times that she would not and could not interfere with the setting of standards in medical education and training. The Bill is drafted to prevent any Minister from interfering in that area. The Minister's article was written in response to an article by Dr. Wann published in a previous edition of The Irish Times which suggested that a Minister could use the Bill to unleash unqualified doctors on patients. The profession is indulging in a degree of disingenuous scaremongering in that regard.

I think this a great Bill, although I probably would not know as much about it if I had not had the benefit of sitting on the Medical Council. The council was one of the best educational experiences I have had. It certainly gave me an experience which knew no bounds and I remain in awe of what I learned during my time there. I will, however, speak tomorrow about the exclusion of local authority members. I was not a local authority member but I was often referred to in the Medical Council as a political hack, as the Taoiseach's eyes and ears or as the yes woman of the Minister for Finance. However, I made my mark and people know me best as Ger Feeney who served on the Medical Council.

When I was appointed to the council, people would ask me to explain it to them. I even asked myself the same question when I was appointed. The public does not really understand the role of the council and I would go so far as to say that the medical profession regards it as little more than the body which takes registration fees and strikes doctors off when they get into trouble. Therefore, I am glad to learn there will be better communications with the public. If a member of the public feels he or she has a grievance against a doctor, it takes him or her a lot to put pen to paper to make a complaint. I can say, with my hand on my heart, that any complaint received by the Medical Council while I served on it was dealt with by the doctors and lay members in a fair way. There were times when I would question whether a prima facie case could be made, even though I always put myself in the position of the patient, but when I might have put up my hand to say there was no case to answer, the doctors would have found one.

Fitness to practise is the area of the council's work with which most people are familiar, mainly because of recent high profile cases. I am glad that section 7 provides for the health committee, which was not established until three or four years ago. Many of the doctors who came before the fitness to practise committee did so on health grounds. Members of the public do not expect alcohol or drug addictions to affect their livelihoods if they seek treatment but if a doctor suffers an addiction or a mental health problem, all hell breaks loose and he or she is brought before the fitness to practise committee. During my time on the council, we set up a health committee and I am glad to say that I continue to sit on that committee to represent the public interest. It is the best committee of the council because it deals with doctors in a humane manner. The worst thing to happen to any of us is to undergo an inquiry by our peers in whatever profession we practise. Even if it is decided there is no case to answer, the stigma remains of being inquired into. That is particularly relevant in Ireland, where we say there is no smoke without fire.

We had to stop recruiting for the health committee because too many people offered to sit on it. A wide range of external expertise will become available if there are insufficient medical professionals on the council. I am also delighted to see provision for competence assurance, peer review and clinical audits. To a certain extent, the doctors who appeared before the fitness to practise committee were victims of their environment because they did not have competence assurance. I have spoken at several medical conferences, where I gave the analogy of a pilot who never upgraded his or her skills. I do not think anybody would feel happy to sit in an aircraft flown by such a pilot in the knowledge that he or she had received no further training since receiving a pilot's licence. I will have a great deal more to state tomorrow. I wish the Minister well with the Bill and I look forward to Committee Stage.

Fergal Browne (Fine Gael)
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I welcome the Minister of State, Deputy Power, to the House. I also welcome the Bill which is ultimately about ensuring adherence to proper medical practices. Unfortunately, as long as human beings are involved in the health system the potential for another case similar to that of Dr. Neary will exist. What shocked me about the Dr. Neary case was not that one person made a mistake and patients were the victims of his malpractice but that he was cleared by his peers afterwards.

As Senator Feeney stated, it takes a great deal of courage and bravery for a patient to query not to mind make a complaint against a medical person and people are slow to do so. They must have been shattered when Dr. Neary's three colleagues gave him the all-clear. Thankfully, it was corrected afterwards and perhaps it resulted in this Bill.

It is a difficult area and I am conscious that one of my late constituents led the campaign to highlight the illegal retention of children's organs. Recently, we had a tragic case where a person died in Ireland and was sent for burial in England where another post-mortem was conducted in which an organ not belonging to the person was discovered in the body. Things can go wrong beyond what any of us can imagine.

Recently, the son of a friend of mine was quite ill and brought to a medical centre where he was wrongly diagnosed. Thanks to my friend's maternal instincts she sought a second opinion and saved her son from being gravely ill afterwards. I do not envy the job of a doctor in having to decide whether a person with chest pains has indigestion or is on the verge of a heart attack. I am sure none of us in the House would like that job.

I welcome the lay majority, a matter which has received much airing. I speak as a former primary school teacher who worked in a school with a board of management made up of the parish priest, teachers and parents. People on the board may also have been parents of former pupils or from the parish. It works well in the Minister of State's constituency in Kildare, Sligo, Carlow, and the constituency of the Acting Chairman, Senator Ulick Burke, in Galway. I do not see a problem with it. If the right people are on the board it can make a great difference.

I will not be a hypocrite. Every day in the Oireachtas I complain about the rate of MRSA in hospitals. I am delighted to be involved with the group MRSA and Families. I attended its first public meeting which was held in Kilkenny and have been with it ever since. I travelled abroad with it and this group of lay people has done major work in raising awareness about the issue of MRSA in our hospitals. If it were up to the medical profession, the issue would not receive the airing it does. At times it is no harm for any of us to look outside the box.

Senator Feeney referred to lobbying. That is the nature of politics now. Aristotle stated that it is through the clash and collision of ideas that matters get sorted and that is how it should be. Having stated that, I do not agree with many of the representations made to me by certain people, particularly with regard to the lay majority. To be fair to the Minister for Health and Children, she addressed the matter in her speech here and in other fora.

In terms of fitness to practise, we must strike a balance between protecting the good name of a medical practitioner and acknowledging a wrong done to a patient while under his or her care. It is a difficult area. Recently, the Minister mentioned 10% of deaths could be due to negligence in hospitals such as wrongly prescribing or administering drugs or other procedures. I am not a great fan of the television programme "ER". I watch it every so often. Genuinely I do not understand how anyone could work in the conditions many people in the Irish health services do. They are under huge pressure and must make vital decisions in life and death situations.

A great deal of lobbying was done on this Bill and I kept all of the correspondence I received. Some of it was sent at the beginning of the year and I know a great deal of consultation took place on the Bill. I will discuss some of the concerns raised, and I assume many of them were addressed either before the Bill was published or when it went through the Dáil.

This morning, I received a letter from the College of Anaesthetists expressing concern about the mechanism for the arbitrary removal from office of individual council members and the replacement of the entire council. With regard to council membership, it is concerned that representation from all 13 training bodies is a minimum requirement for the council to perform its duties adequately. With regard to funding, the point was made that the Bill imposes significant additional duties and responsibilities on the Medical Council and the College of Anaesthetists feels it is imperative to provide the financial resources necessary for the Medical Council to perform its duties to the optimum level.

I was also contacted by numerous GPs including some in my constituency. They are concerned about the ministerial power to control the medical council in terms of policy and membership. They point out correctly the council's original responsibility was as an independent watchdog to safeguard the interests of patients. They feel the Bill will remove its ability to be independent of the Minister and the Department of Health and Children. Will the Minister of State address these concerns?

The Irish Medical Organisation which represents doctors would like a slight majority of medical practitioners on the Medical Council. It wrote to us in February stating that the World Medical Association stated no evidence exists that governments or lay bodies do the work any better than self-regulatory bodies. It claimed ample evidence of the opposite existed. I do not necessarily agree with this view but it is worth raising the issue for clarification by the Minister of State.

The Irish Medical Organisation is also concerned about the democratic deficit in representation of medical specialists and urges that the nominated representatives of psychiatrists come from the Irish College of Psychiatrists and not from the Irish Psychiatric Training Committee. Perhaps this matter was dealt with in the Dáil.

The issue of hearings in public is raised time and time again when we debate health Bills. A fine balance must be struck and I am encouraged by the reference to this matter in the Minister's speech. The option to hold it in private is still reserved both from the patient's point of view and that of the medical practitioner who is in the dock.

I was also lobbied by the Postgraduate Medical and Dental Board which is concerned about the lack of an explicit requirement for the HSE to put in place robust national medical educational structures with ring-fenced funding independent of service pressures. It expressed concern that much of the voluntary good will involvement in self-regulation and training may be lost in the process.

Another person who lobbied me was concerned that if a hospital's training accreditation is withdrawn it can no longer employ non-consultant hospital doctors which could immediately impact on service delivery. The point was also made that although the council's primary and independent role is to protect the public it could now be an extension of the Department of Health and Children, the Minister and the HSE. In such a case a conflict of interest could arise. The introduction of the HSE to the council and the need to meet service demands by the HSE raises a very obvious conflict of interest. These concerns were raised by a general practitioner. We clearly need to separate the role of the Irish Medical Council from the HSE and the Department of Health and Children, and we should ensure patient safety is paramount at all times.

I welcome the Bill and I have taken the opportunity to raise some of the concerns from many people who have lobbied Members on this Bill. I would appreciate it if the Minister of State, in concluding, could indicate whether those concerns were addressed in the Dáil debate, and if they were not, the measures taken in the Bill which make such concerns unfounded.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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I welcome the Minister of State to the House and I welcome this legislation. It is true the medical profession plays a pivotal role in a very important area of life, namely, public health. It is important people in this profession have the optimum training and the best expertise that can be acquired, and this Bill is designed to facilitate just that. It may need to be tweaked, but in the main, it emphasises those areas needing attention. Given that it is the first major legislation of this nature for almost 30 years, it is important we debate the matter on Second Stage in the House.

There have been some amendments to the 1978 Act, but they have been piecemeal. This is the first legislation relating to medical practitioners since that 1978 Act. In general, the Medical Practitioners Bill 2007 provides for an enhanced and modern system of regulation of the medical profession in Ireland. It correctly puts public interest first and modernises regulation of the medical profession. The main objective of the new legislation 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.

Regrettably we have had recent examples — I do not need to refer to them because they are in the public arena — where certain medical practices left much to be desired. This Bill is a significant step in our drive towards assuring standards of patient safety and has been approved as a major reform to support and increase public confidence in medical practice in a structured and sustained manner for the decades ahead. As I have stated, the Medical Practitioners Act dates back 30 years. It is clear that in the interest of patients and doctors alike, a modern, accountable and efficient system of regulation is required.

There have been some amendments to the 1978 Act, but this is the first time in 30 years we have engaged in a total review and modernisation of the statutory regulation of medical practitioners. At this stage, piecemeal change to the 1978 Act is not enough and this new Bill is required. The need for doctors to keep abreast of new developments, the rights of patients to be informed and the expectations of the public have greatly increased since the passage of the 1978 Act. I do not have to remind Members that 20 years ago, if somebody was going to hospital, half the parish would be around moaning, wailing, crying and wringing their hands. An ordinary person may now elect to go for certain medical procedures, including surgery, with nothing thought of it. We have come a long way in that time. The balance between self-regulation and public accountability needs to adjusted to reflect these requirements. It is explicit in this Bill that the purpose of the Medical Council is to safeguard the public interest. In the main, given the terms of reference to date, it has done just that.

The Bill contains many practical new measures towards this goal. For example, both patients and doctors will benefit from a modernised system of continuous competence assurance. Since the Medical Council will have the public interest as its primary goal and objective, its membership of 25 is designed to support just that. Only people with expertise will be elected to serve on the board and no one group will be in the position to exert any dominant interest. As is provided in the Bill, medical practitioners will not be in a majority. There is some disquiet about this point and there is no reason in stating otherwise. I have been contacted by a number of medical practitioners who feel this to be incorrect. It is a matter for debate, and as this process continues, I am sure there will be many comments on it.

These people will work with other people of standing and expertise to advance the interests of patients and the public at large. The fitness to practise committee will also have lay members as a majority, while the new health committee and education and training committee will have a majority of medical practitioners. The latter provision is sensible and practical. To meet today's standards of openness, fitness to practise hearings will normally be held in public unless the committee decides the public interest is best served otherwise. That provision is important and we may have further comments on this on Committee and Report Stages.

The Bill is the latest step in the reform of regulation of health professionals as outlined in the health strategy. It is consistent with the objectives set out in the strategy. We have already debated legislation governing pharmacists. Alongside the Health Bill 2006 and reinforcing standards and enforcement, this Bill demonstrates this Government's commitment to ensuring patient safety in legislation and regulation as well as to the enforcement area.

The Medical Council will continue to consist of 25 members but the balance between medical and non-medical representation has been altered significantly to include a majority of people who are not nominated by the medical profession. As I have stated, questions are being asked about this provision, although many members of the public would support such a position. We will see how the issue evolves in the fullness of time.

Modern governance and accountability arrangements applicable to other statutory bodies, particularly in the health and social care area, will now apply to the council. The Bill includes a statutory requirement for doctors to maintain professional competence on an ongoing basis and the Medical Council, the Health Service Executive and other employers will be required to facilitate this. These and other provisions were central recommendations contained in the Lourdes hospital inquiry report, and I do not have to remind the Acting Chairman or Members what that report was about.

The registration system for medical practitioners will be reformed so patients can be clear on the level of competence of their doctor. I hope steps will be taken so that some of the examples we have had over recent years will not be repeated. A medical specialist with appropriate qualifications and experience from outside the EU will now be able to gain direct entry to specialist registration. This is what I would term professional enrichment of the medical profession, which is a very important measure in the Bill. I am pleased it is included.

Fitness to practise provisions will be streamlined to include a preliminary screening process for complainants which can, if appropriate, be referred to other procedures such as the HSE complaints procedures or to the competence assurance system if required. Provision for mediation in appropriate circumstances is also included, which again is a very important provision.

A majority of people on the fitness to practise committee would not be medical practitioners and fitness to practise inquiries will normally be held in public, unless it is considered not in the public interest to do so. The fitness to practise committee may decide, on application by the medical practitioner or a witness, including the complainant, to hold some or all of the inquiry in private, depending on the circumstances.

Clear responsibility on medical education and training are outlined for the Medical Council and the Health Service Executive, which takes over many of the responsibilities of the Postgraduate Medical and Dental Board, which is also being dissolved by this legislation. I hope this Bill will permanently consign to pasture certain people who have been struck off the register and who have evolved to another area of professional life called alternative medicine. Many examples have been given in this Chamber of such a practice, and I hope the Minister will rule with a heavy hand on the matter. An example near Mullingar of a dear and departed loved one's treatment at the hands of the people in question made for sorry listening.

The Health and Social Care Professionals Act 2005 will be complemented by forthcoming legislation regulating nurses, midwives and dentists. Let us be clear in both Chambers that only those who are appropriately qualified and registered will be able to practise in any profession. If chancers have lost their positions through malpractice or gross professional misconduct and are deemed to be unfit to practise by the medical council, their peers or so on, they should not practise under any guise. I hope the Minister of State will ensure this tenet is pursued to the letter of the law.

The legislative instruments will have a common thread of ensuring robust governance, clarity of procedures and formal systems of accountability. They are aimed at the protection of the patient while recognising the need for due process in respect of the handling of allegations and complaints against health care professionals. I welcome the Bill, which is long overdue. Working at the edges of existing legislation was not the way to go. Hence the advent of this Bill, which I commend to the House.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I wish to share time with Senator Norris.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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How much time?

Photo of David NorrisDavid Norris (Independent)
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Five minutes.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I might take less than ten minutes.


Is that agreed? Agreed.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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The Bill has welcome aspects, as did the Bill we discussed last week to establish the Health Information and Quality Authority and the office of the inspector. I cannot remember the exact title. Was it the "Office of the Inspector of Nursing Homes"?

Fergal Browne (Fine Gael)
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Photo of Joanna TuffyJoanna Tuffy (Labour)
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Yes, but there was also an office of the inspector. A point I made during that debate is appropriate to this one, namely, that more needs to be done in terms of a patient's ability to have his or her grievances with the health system dealt with. There is a need for something along the lines of the proposal in the Labour-Fine Gael document, Patients First: An Agreed Agenda on a Patient Safety Authority, which calls for an independent safety authority with a strong legislative base and patient-focused remit. It would bring together the various regulatory bodies and work in conjunction with the other statutory or professional bodies with a regulatory function in the health system. A patient-focused avenue of complaint is needed.

When the Bill was discussed in the Dáil, Deputy McManus referred to Mary Rafferty's comments on the need for something along the lines of New Zealand's commissioner, who is not unlike an ombudsman in that one can make complaints to an independent body. The system, both as it stands and after the Minister's proposed reforms, involves many diverse bodies such as HIQA, the office of the inspector and the medical council, which deals with complaints about doctors' conduct. In a system without an overall one-stop-shop, such as a patient safety authority to which people can bring all of their complaints in the first instance, grievances or concerns can often fall between the gaps and people do not know where to bring their complaints. The patient safety authority's advantage lies in the fact that if a person complains to it in respect of a body with which it deals, it could refer the person to that body, explain the process or identify any gap in order to have it addressed. However, the Bill does not go that far.

When the Garda Ombudsman Commission begins operating, it will be an obvious place for people to go irrespective of their concerns. For example, they could ask for advice and make complaints. This is what the health system needs. People are confident with the ombudsman commission because it is independent. While lay members will be included on the council under the Bill, it will not be an independent avenue of complaint.

Like Senator Leyden, who raises the matter in the House frequently, Senator Feeney referred to section 17 on the council's membership. Section 17(7) states:

A person is not eligible for appointment as a member of the Council, or of a committee, if the person is-

(a) a member of either House of the Oireachtas or of the European Parliament,

(b) regarded, pursuant to section 19 of the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy, or

(c) a member of a local authority.

Will the Minister of State explain in his response why this subsection is included? An explanation is a common provision in legislation. Has the subsection been included for the sake of it or due to a politically correct idea in the Civil Service that there is something wrong with politicians being on the board? Unless a reason is given, it is not something over which we as politicians should stand. I am not 100% sure about whether it was previously the case that politicians could not be members, but I see no reason for this provision. If it is justified, we should be able to make up our minds.

Photo of David NorrisDavid Norris (Independent)
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I thank Senator Tuffy for making this time available to me. I have an interest in the Bill for a number of reasons. As a matter of principle, I have always supported independent regulation for professions, including the news media and newspapers in particular, which lash out and ask others to be regulated independently, but are not keen on it for themselves.

While I support independence and it is clear that the medical council as constituted is a self-regulating body, the Minister's proposal is a ministerial takeover. That is worrying, particularly in light of this important legislation being railroaded through the House at the last minute. There is not the slightest chance of amendments from this House being accepted. It is an abrogation of our role, as the Seanad is supposed to be a refining and amending Chamber. Second Stage is to be concluded today while Committee Stage is scheduled for tomorrow and Report and Final Stages for Thursday. That schedule does not leave much time and there will be no amendments.

I will examine the situation and express my concern about the ministerial takeover of the medical council, which reflects the concerns of many people in the medical profession. The first question we must ask is what is the medical council for. It can be answered simply, namely, to ensure the quality of undergraduate and postgraduate medical education, the registration and disciplining of doctors and guidance on professional standards. Under the Bill, the Minister is taking unto herself powers to direct the council on matters of education and policy. She is also giving herself powers to appoint and direct — this is an important issue — the majority of the council and to remove appointees who fail to meet her approval. These provisions make the council amenable to political interference. I regard the current Minister as somebody of high ethical standards who would be very unlikely to try to interfere politically. This legislation is opening the door to such interference, however, which is very dangerous.

The Bill basically proposes to remove the autonomy of the Medical Council and the individual doctor. It will damage the ability of the council and of doctors to act as advocates for patients, in circumstances in which such advocacy is in conflict with the Minister's own ends. That is the problem. Like the Medical Council, doctors should be politically independent and should represent the interests of patients. After this legislation has been passed, it will be possible for politicians and their advisers to devise and construct health policy without having to tolerate the nuisance that might be presented by any serious appraisal of it by health professionals.

I would like to read from a statement on the Bill that has been published on its website by the Medical Council, which has to be taken reasonably seriously in this regard:

The Bill as currently worded may end elements of the Medical Council's independence. As worded, it will allow a future Minister for Health to block Council activities that could be in the interests of patients (but) might give discomfort to officials at a local or national level.

In other words, it is possible that professionals — people with expert involvement, understanding and knowledge of this area — will be muzzled in the interests of political convenience. I also refer to a recent editorial in Forum, the journal of the Irish College of General Practitioners, which is a serious and responsible body. The college represents local doctors who meet the public all the time when they are contacted by those who are sick or in distress. The editorial stated:

The unanimous warning from the profession is that the section on ministerial directions to Council heralds the holding of draconian power by future ministers to dictate policy to the Council. It is the view of the ICGP and the other training bodies as well as the IMO that this effectively abolishes self-regulation and the independence of the Council from political interference. This is deemed (to) be a serious step in the wrong direction for the protection of patients.

It is clear that similar concerns are outlined on the Medical Council's website and in an editorial in Forum which speaks on behalf of general practitioners.

It has been indicated to me that the Medical Council has previously lobbied the Minister actively to give it greater powers so it can regulate more effectively. The council felt that the tools with which it was provided were inadequate for the job. The Medical Practitioners Bill 2007 does not provide for such additional powers, however. It allows the Minister to assign functions to the council relating to education, training and the practice of medicine, as I have already said. The Minister is being given powers that might make it difficult for the Medical Council to be critical of the Government's health care policy, or its funding of medical education. An attempt is being made to muzzle what should be a strong professional voice on behalf of patients. There is a danger that State intrusion in the doctor-patient relationship might interfere with the duty of doctors to act as advocates on behalf of their patients. It is obvious that there will always be tension between the State and individual citizens in the provision of health care.

The Department and the Minister are in an unenviable position. I understand they might feel angst in having to allocate resources to one group of patients rather than another. They might not appreciate the criticism they are getting from certain voices. People such as me have been demanding the provision of further services for people with cystic fibrosis. It is scandalous that the life expectancy of people in Northern Ireland with cystic fibrosis is ten years more than that of their counterparts on this side of the Border. It is scandalous that the resources made available there are not provided here. I understand the Department of Health and Children has some difficulties in making resources available. It is terribly important that people with cystic fibrosis should be represented not only by people like me who are briefed by groups which are concerned about these matters but also by people within the medical profession who push the interests of their patients. I accept that there is tension in this respect, but it is healthy and democratic. It underlines the principle that the doctor works for the patient rather than for the health service, the Department or the Minister for Health and Children.

Some really tragic stories were told as part of a recent series of programmes on RTE television. We learned about some wonderful doctors who engage in passionate advocacy on behalf of their patients. We were told about a woman with no private health insurance who did not get treatment in time because she had to wait six months for her smear test to come back. It is shocking that a woman in a country with substantial resources was sentenced to death, in effect, for the crime of being poor. I do not believe that such criticism will be evident if the Medical Council comprises a row of Government appointees. I have consistently opposed the practice of jamming all kinds of boards with political appointees because it is wrong. There have been arguments in the past about the process whereby members of local authorities are appointed to the boards of third level institutions. When there was a big row about this sort of thing during the debate on the Trinity College Bill, we managed to confine the number of appointees to one. That person has been all right so far, as far as I know. Politicians are notoriously susceptible to the creeping disease of thinking they will be all right if they get one of their own boys on these boards. Such an approach is not in the best interests of the medical profession.

If the Medical Council is to be truly independent and to fulfil its duty to protect the public, it must be free of the Government's control and direct influence on policy. In particular, it must be free of any suggestion that it can be politically muzzled. I have considerable hesitation in endorsing this legislation for that reason. I cannot give it the welcome it was given by Senators from the other side of the House. The Minister of State, Deputy Seán Power, who is a decent man, is standing in for the Minister for Health and Children, Deputy Harney. Will he outline to her the concerns I have expressed? Other Senators may have similar concerns. I was not able to be present in the Chamber for Senator Henry's contribution. I assume she made some similar points, but I am not sure. I simply do not know.

Photo of Seán PowerSeán Power (Kildare South, Fianna Fail)
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Senator Henry has a lot in common with Senator Norris.

Photo of David NorrisDavid Norris (Independent)
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That is good.

Fergal Browne (Fine Gael)
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Senator Henry welcomed the Bill.

Photo of David NorrisDavid Norris (Independent)
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Did she really?

Fergal Browne (Fine Gael)
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She did.

Photo of David NorrisDavid Norris (Independent)
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She does not have quite as much in common with me as the Minister of State thought.


If the Senator reads the transcript of this debate when it has been published, he might be in a better position.

Photo of David NorrisDavid Norris (Independent)
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I read nothing other than the reports of Seanad proceedings. I keep a constant supply in the lavatory. I find it extremely moving.


I am sure Senator Henry's speech will make nice bedside reading.

Photo of David NorrisDavid Norris (Independent)
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Excellent. I do not attend to such lower needs in the bed. Perhaps the Acting Chairman does, but that marks another significant cultural difference.

5:00 pm

Don Lydon (Fianna Fail)
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I do not know who could argue with most of the aspirations of this excellent Bill, which represents a comprehensive updating of the legislation regulating medical practitioners, outlines an explicit definition of the role of the Medical Council, provides for increased lay membership of the council, puts new obligations on the council to adhere to the governance arrangements which apply to other statutory bodies, accelerates the relevant investigatory systems, streamlines the process of registration and prohibits unregistered medical practitioners. As the Minister for Health and Children, Deputy Harney, said, the Bill aims to enhance patient safety, which is at the heart of the health care reform agenda. It will safeguard the accountability of health care professionals, which is excellent.

I have no problem with the appointment of a lay majority to the Medical Council. When I started to work in the hospitals sector many years ago, doctors were treated like gods. When ward rounds took place, consultants walked in front and a row of people lined up behind them. One could hardly touch consultants, never mind speak to them. As time went by, they gradually mollified their views and became more human, if not exactly humane. As things are different nowadays, it is no harm to have a lay majority on any professional body to keep the profession in place. It is ridiculous to say, as Dr. Catherine Wan did, that the Minister could introduce unlicensed surgeons under this legislation. That does not make sense at all. All kinds of concerns have been expressed about the appointment of lay people to these bodies. It has been suggested that they will do things that will destroy the ability of doctors to perform correctly. That will not happen in the slightest. It did not happen in any other profession. I do not see why it should happen in medicine. If one has nothing to fear, one has nothing about which to worry. If some of this governance had been established in the past perhaps the Neary case would not have occurred.

Section 17(7) refers to a person being ineligible for appointment to the council if the person is a member of the Oireachtas, the European Parliament or a local authority. If Senator Henry is appointed must she resign her seat in the Seanad? This is ludicrous. For example, Dr. Mary Grehan or Dr. Bill O'Connell would have to resign local council seats if appointed to the Medical Council. I have no idea how this would affect them.

The Minister of State has informed us that the Minister for Health and Children will propose to Government the establishment of a committee to examine legislative provision regarding local authority members on boards of certain public bodies in the future. That does not deal with this Bill. Why do we eliminate these people? A councillor recently commented that being a members of a local council is tantamount to being a member of a subversive organisation. Talented people could serve on the Medical Council as well as on the local council. Maria Corr is a talented person, a psychologist with 20 years experience. Could she not serve on the Medical Council as well as on the local council?

One might as well argue that the health boards, which operated successfully for several years, made no sound decisions because they included local authority members. Some of the good decisions made by health boards are better than those made by the HSE.

Might Oireachtas Members or members of local authorities exert undue influence? Is this not one of the reasons they should be members of the Medical Council? This measure is retrograde, regressive and regrettable. I hope the Minister will change her mind on Committee Stage but I doubt she will. I have no objection to the thrust of this worthwhile Bill, particularly the sections that deal with registration and prohibitions on those who are not properly registered.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I am disappointed the Bill is being rushed through both Houses. I understand the urgency but I am always concerned when we rush legislation.

When I was elected to the Seanad some 15 years ago I was unsure how to handle the Bills that were debated.

Photo of Seán PowerSeán Power (Kildare South, Fianna Fail)
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The Senator has managed it all right.

Photo of Feargal QuinnFeargal Quinn (Independent)
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Drawing on my background, I considered the customer in each Bill. In this case, as Senator Norris has identified, the customer is the patient. I wish to see if this Bill is in the best interests of the patient. I was chairman of a hospital and tried to get the hospital staff to call patients "customers". The medical profession found this difficult to do.

Listening to this debate and reading the debates on the Bill in the other House, I am struck by the similarity that exists between the medical and teaching professions. Both are vocations rather than professions and both are lucky enough to have members who are driven to pursue excellence through idealism rather than profit. Both have a tiny minority of people whose talents are not suited to their chosen profession and who are bad doctors or bad teachers. Perhaps it is a tiny minority but it exists.

The two professions also share a rather undesirable attribute in the way they treat their non-performing members. They have traditionally rallied around their delinquent members and attempted to shield them from outside criticism instead of adopting the commonsense approach and ensuring unsuitable members are not allowed to continue practising or, better still, are weeded out before they qualify. From the point of view of a profession that wants to preserve and encourage the highest standards, this behaviour is not only dysfunctional but suicidal. The days when they could get away with behaving like this are long passed. All learned professions have a tendency to live in the past, which is why we need legislation such as this Bill.

Although I believe in self-regulation, and have argued for it in many cases, it has failed in medicine. In an ideal world self-regulation is the best kind of regulation. However, one cannot continue to argue for self-regulation when that kind of regulation has spectacularly failed. Failures such as the Neary case deal a credibility blow to the medical profession from which it will be very difficult to recover. We must face up to this and deal with the consequences.

At the same time, we must not replace self-regulation with something worse. I am in favour of public accountability but I am less of a fan of political accountability. Those who write our legislation seem to think the only way to ensure public accountability is through political accountability. It is not the only way, nor is it the right way. Methods of public accountability that would not necessarily extend ministerial powers should be considered at official level. If such methods could be devised there would be enough common sense at the political level to see the merit in them.

I wish to highlight once again the shortcomings in how we remunerate the medical profession. We pay our doctors for the work they do, not for the results they achieve. In China the tradition was to pay doctors according to the number of patients they kept alive, rather than the numbers they treated. If one became ill the doctor did not get paid. Our method is the opposite because the doctor does not get paid when one stays healthy. As soon as one is ill the doctor is paid. I am in favour of the Chinese system. I am not sure how we could apply it but I raise it for consideration.

Whether that system still applies in China, we must change the reward systems in medicine to provide practitioners with a strong incentive to invest time in preventative rather than curative medicine. We have a series of medical fire brigades but we need a force of propagandists to prevent fires in the first place. From the point of view of public policy, there is a clear benefit to be gained in purely monetary terms. Money spent on preventative medicine, euro for euro, provides a much greater return than money spent on purely curative activities. The State should take a long-term view of this matter, especially since the State picks up most of the bills.

There is another way we should consider in regard to changing the remuneration of our medical practitioners. To remain effective in a fast-changing world, practitioners need to spend more time keeping themselves informed of the latest developments. However, it seems that, increasingly, other pressures on time conspire against this happening to the extent that it should. One doctor confessed to me that the only reason he keeps up with the latest developments is that, thanks to the Internet, his patients were far more informed than him. In the past patients would simply accept a diagnosis from their doctors, but the first thing they do now is rush to their computers and become experts on the ailments from which they are suffering. It should not be patients who pressurise doctors to keep up with the latest developments in treatment. A strong incentive to devote a sizeable proportion of their working time to professional development should be built into the methods of rewarding medical practitioners

I mentioned my worry about legislation that has been rushed through the Houses and I am, therefore, concerned that the lack of concentration on preventative medicine and the lack of reward for professional development are not addressed in this Bill. The Bill will be passed and I understand the necessity for it but I urge the Minister to give serious consideration to a change in direction in the years ahead.

Margaret Cox (Fianna Fail)
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I am not an expert in this area and have no medical background. I did, however, meet some people who made some points and perhaps the Minister of State would be kind enough to address them.

This Bill is necessary and is supported by the medical profession and the Medical Council as an attempt to reform current procedures. It is important to ensure that existing competence structures are put on a statutory basis so the weight of law is given to the requirements of these assurance structures. It is surprising, however, that the incoming council will be responsible for drafting some of the structures that will be in place within six months of its inception.

The main functions of the Medical Council are to oversee the quality of medical education, to register and license practitioners, to assure itself of European and international qualification standards, to ensure that the Irish standards meet current international standards and vice versa, to discipline and recommend actions to help practitioners whose behaviour or practice falls below an acceptable standard and to set ethical guidelines for the profession. Those are important and give no cause for disquiet.

My query relates to the proposed composition of the council. A total of 25 members will be appointed by the Minister. Of these, 12 will be proposed by the professions — seven elected and two of the remaining five representing colleges for basic medical education and three representing colleges of specialist education — while of the 13 others one will be proposed by the Royal Irish Academy, one by the HSE, one by an Bord Altranais, one by the Health and Social Care Professional Council and seven will be non-medical practitioners, which may include representative of advocacy groups and service users, while two will be proposed by the Minister.

It is possible that this method of appointing people to the council may result in a lay majority and this is the area of concern. Those who spoke to me pointed out that according to the recent World Health Organisation review, there is no need for a lay majority. A recent document on the regulation and licensing of physicians in the European Union reviewed the status of 39 countries' processes for basic licensing and specialist registration, and in 18 countries where a council is responsible for those processes, none has a lay majority. The highest lay representation is in Britain, where 40% of council members are non-medical. It is important to have lay members on the council because the public must have confidence in the processes that govern medical self-regulation. However, if the members of an autonomous profession are defined by specialist knowledge and experience resulting from training and education whose goals and purposes are governed by the principle of ethics and service, why is a lay majority necessary?

The council was established over 100 years ago to protect the public from quacks and charlatans by setting the standards for education for medical students to be doctors and for doctors to be specialists, and acting as judges of their behaviour. As respected representatives of the position, the public and profession had confidence in the council. There is a genuine concern now that a lay majority will not increase confidence in the profession but reduce the respect of the profession for the decisions of the council. That could be a problem in future because the council's role is to protect the public to ensure quality standards are met, so it must be seen as completely independent and responsible in terms of the quality standards it is setting and have an understanding.

It is also important it is not seen to be a body that is at the whim of the Minister. There must be separation between the two. Perhaps the opportunity exists to ensure this will not happen and I look forward to hearing the Minister of State's remarks on that.

The briefing I received from the Department of Health and Children and the legislation did not make it clear how the council will be funded. Who will pay for it? It is currently paid for through the subscription of the medical membership. Will that change? Will the council be paid for by the Government? How will those appointed to the board be recompensed for their expenses or will they work on a voluntary basis?

Brendan Daly (Fianna Fail)
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This is a long and detailed Bill and there will be time on Committee Stage to go into it in depth. It is important to update the legislation in this area, although the current legislation is only 30 years old.

It is daft for there to be 25 people on a board. It is far too large and should be reduced to about 12 people. Other activities of the board should be carried out by subcommittees. A board of this nature will be unwieldy and it will be difficult for it to reach decisions. We should take this opportunity to limit the membership of many of the boards that have been established over the years that have been far too large.

I would also like the board to be established outside Dublin. I cannot understand why every board must be located in this city, which has grown beyond management. Good examples of the relocation of Departments are to be found in the Minister of State's constituency, where they operate successfully. There is no reason such an approach cannot be replicated. When it comes to a decision on this board being relocated outside Dublin, it would not make any difference to me if it were located in Ennis, Shannon or Limerick. No more than my views on its membership, the size of the board etc., this would have no impact on what we are discussing this afternoon.

It is necessary to update the legislation in so far as the system we have operated up to now has left major gaps in the effectiveness of the role of the medical profession. For example, the Department is aware there are difficulties in regard to the training, management and application of orthodontists in the mid-west. Thousands of children are on waiting lists for orthodontist treatment. Can this board resolve those difficulties? Will it have any influence in resolving the difficulties that exist in regard to speech and language therapists and occupational therapists? Hundreds of vacancies for skilled professional people have remained unfilled and now when an effort is being made to fill them speech and language therapists in Ennis and other towns cannot get positions in the service, despite the numbers on waiting lists. We heard of this on national radio this morning.

I pay tribute to the general practitioners in my region, the people with whom I mainly deal from the viewpoint of my constituents. Rarely if ever, over 35 years, have I received a major complaint against any of the GPs in my constituency. They are all exceptional and I want to put on record my appreciation of their dedication, work and commitment to the job. Shannondoc provides an out-of-hours service in the mid-west region. This service had some teething problems, but it now provides a successful and competent service, when most people are relaxing. The highly professional people in Shannondoc should be complimented on the service they provide to the community. This is certainly true in County Clare.

I compliment Limerick University on its recent initiative in developing a medical school. While I am not familiar with the details of that decision, it is important we use the type of expertise that is available at Limerick University to develop a medical school there. This initiative may have been criticised by other colleges, but in so far as the people in the mid-west and I are concerned, since its establishment Limerick University has charted a new course for innovation and education in the mid-west region. It has been an outstanding success and I have no doubt the medical school there will play a significant role in the development, training and organisation of medical professionals to cater for the needs of the people throughout the country. I welcome these moves at the university and compliment the people in the college on the initiative they have shown. I also compliment the Department on working with them in establishing the new initiative.

The Bill is very detailed. I am not sure whether it is necessary to set down in legislation the procedures for running a board meeting and indicating that, when the chairman is not present, the vice chairman should take over, etc. The legislation could be reduced by half, as could the membership of the board, to deliver a very good, more efficient and effective service.

Photo of Seán PowerSeán Power (Kildare South, Fianna Fail)
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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.

Mary Henry (Independent)
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That is fine.

Photo of Seán PowerSeán Power (Kildare South, Fianna Fail)
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Senator Browne raised the matter of funding for medical education and training. Given the dissolution of the postgraduate medical and dental board by this Bill, it is appropriate and necessary for the HSE to take over this role. As the primary health employer in the State, it is in the HSE's interest to ensure an adequate supply of suitably trained medical and dental professionals is available. The Prospectus and Buttimer reports recommended the dissolution of the medical and dental board and the reassignment of its functions to the HSE and the Medical and Dental councils.

Senator Tuffy raised the matter of patient safety. The Minister has recently established a commission on patient safety and quality assurance to bring forward proposals aimed at the development of robust quality and safety systems across the health service. Deirdre Madden, a leading expert on medical law and ethics and who was recently elected by the council to chair its ethics committee, will chair the commission. The commission will report to the Minister within 18 months.

There was some debate on the powers of the Minister to issue policy directions to the council. This provision, which is not unique to this legislation, is necessary in that the council is required to undertake its role within the overall context of public policy. It is important the Minister should be able to give direction in public policy matters, for example, in the area of medical education and training. This section is qualified in several ways. The Minister may not issue such directions in respect of ethical guidance matters, complaints, inquiries and sanctions. In addition, any such policy directions may not be construed to prevent the council from performing its statutory functions. Concerns expressed that the section would allow a Minister to deflect the council from doing its statutory duty are therefore unfounded.

Senators Tuffy and Lydon raised the matter of the standard practice of the prevention of Oireachtas Members from membership of the council. This is a matter I discussed with the Minister last week. She has agreed to have the matter discussed at Cabinet with a view to establishing a commission to decide on what committees are appropriate for local authority members or Oireachtas Members. It is clear there are some committees on which elected members could serve a useful role while there are other committees where it might be preferable for membership to comprise non-elected persons. I take the point made by a number of Members that this almost paints local authorities in a poor light but that is not what any of us in this House would want to do.

Senator Quinn raised the issue of competence assurance. The introduction of a formal system for the maintenance of professional competence is new under this legislation and to the medical profession. While the Bill does not lay down in specific terms what each medical practitioner will have to do, it requires each individual to comply with the rules which will be set out by the Medical Council. With the introduction of any system, we must allow for flexibility to make changes over time with the benefit of experience as to what works and what needs to be adapted. There are many stakeholders involved in ensuring that this can take place. The Medical Council, as the competency regulatory authority for the medical profession, will take the lead and employers, including the HSE, will play their play. Individual doctors will have different individual needs, which must be addressed also.

Senator Cox raised the issue of funding. We have ensured that the Bill contains certain provisions which will allow funding for the administration of competence assurance structures and other matters to be provided for the Medical Council. While the council will continue to be funded in the main by the medical profession through the payment of registration fees, we recognise that the State must also share the burden of the costs involved in such issues. We consider that these costs will be offset in this case by the benefits of the quality assurance of the competence of medical practitioners.

A White Paper on future regulation of health professionals was published recently in Britain. It proposes that all health regulatory bodies should have, as a minimum, equality between lay and professional members. This would also include the UK General Medical Council. Therefore, we are not out of sync with our neighbours in what we are proposing in this legislation. While there might be resistance to it from certain quarters, by and large I believe it will be well received throughout the country and it will give us a better health service, which is what we are all working towards.

I thank the Members for their contributions. It is always nice to listen to them, some were from Members with medical experience but each Member brought their own experience to bear in his or her contribution. I thank them for the sincerity of their contributions. Go raibh míle maith agaibh go léir.

Question put and agreed to.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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At 11.30 a.m. tomorrow.

Committee Stage ordered for Wednesday, 4 April 2007.

Sitting suspended at 5.45 p.m. and resumed at 6.30 p.m.