Seanad debates

Wednesday, 19 December 2007

Health (Miscellaneous Provisions) Bill 2007: Second Stage

 

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

1:00 pm

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I begin by thanking the Seanad for considering this Bill today. Before going into the detail of the Bill, I will explain its urgency and I hope Senators will agree that the Bill is important and deserves positive consideration from this House.

The Health (Miscellaneous Provisions) Bill 2007 is urgent because of the need to address, without any delay, matters concerning bodies established under the Health Corporate Bodies Act 1961 and technical drafting issues identified regarding the Medical Practitioners Act 2007.

Under the 1961 Act, the Minister for Health and Children is empowered to make orders establishing bodies to carry out a range of health services and activities. Currently, there are 19 such bodies established under the 1961 Act playing extremely important roles right across the spectrum of the Irish health system. These include major hospitals, such as St. James's, Beaumont and St. Luke's and other bodies which deal with specific key health care areas, such as the Blood Transfusion Services Board, the Crisis Pregnancy Agency, the National Treatment Purchase Fund and the Drug Treatment Centre.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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On a point of order, will the Minister's speech be circulated?

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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It should be. I apologise to the Senator.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3:00 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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Every time in the past year and also in the run-up to the general election when the subject of co-location was discussed, the Minister and her colleagues said on a number of occasions it was not the intention to dispose of the land in public ownership within the sites of public hospitals and where co-location was being considered. For all this, the Bill as initiated states that a new article is being inserted to amend Article 4 as follows:

(2) The following article shall be inserted after Article 4:

"4A.(1) The Board may, with the consent of the Health Service Executive, enter into an agreement with one or more persons for the provision by any person (in this section referred to as the 'private undertaking') specified in the agreement, on land vested in the Board, of hospital services that are not paid for primarily out of public moneys.

(2) An agreement to which paragraph (1) applies may include provision for—

(a) the construction of buildings and facilities on land vested in the Board for the purpose of the provision of services referred to in that paragraph,

(b) the disposal of land or an interest in land by the Board or the Health Service Executive for the purposes of—

(i) the said construction, and

(ii) the provision of those services by the private undertaking[.]

This seems to be a contradiction of the commitment made by the Minister. She seems to disagree but it appears to me to be a contradiction that private land will now be up for public sale. I refer to the bodies involved in co-location which include the Mount Carmel Group, the Beacon Medical Group, operated by the University of Pittsburgh Medical Centre, which is to be in co-location with Beaumont Hospital, and Synchrony Healthcare, operated by Ramsay Health Care Limited, which is to be in co-location with St. James's Hospital. If this Bill is not giving permission to sell those lands, what is it doing? I ask the Minister to clarify the situation as this is what the Bill's provisions seem to be doing.

A number of issues arise with co-location but one of the concerns at the time of the introduction of this concept by the Minister was the disposal of public lands and this legislation appears to copperfasten that possibility despite the promises made. This is a serious issue regarding co-location.

I regret this legislation is being rushed through the House at the end of the term. There is very little time for real debate to take place on the issues raised by the Bill. While the Minister has assured the House that advice has been sought from the Attorney General, this legal advice has not been published. I call on the Minister to publish the advice because the question arises why this has come to light now. Has it come to light as a result of the co-location issues as opposed to some of the other issues which the Minister raises in the Bill? This is an umbrella-type Bill which deals with the medical practitioners legislation which was only brought to the House a year ago and is already coming back. If this is an example of rushed legislation, it is quite possible that the Bill before us today will also return to both Houses because of the hurried nature of its passage.

The Minister said the Bill is being introduced to deal with a legal anomaly which could result in the 1961 Bill being constitutionally challenged. Is the Minister aware of any possible challenges to any of these 19 bodies named in the legislation and as a result of this constitutional query? Is this the reason for bringing this legislation to the House? We should be provided with adequate explanations for the rushed nature of this Bill as this legislation has been in place since 1961.

I support the need to put on a statutory footing the various bodies associated with the health service. If the need for this emergency legislation is to afford such bodies a statutory basis, however, why not introduce a separate Bill specifically addressing this matter, instead of having it piggy-back, so to speak, on a number of other measures? Why is it necessary to include co-location in this Bill? My colleagues in the other House pursued this issue yesterday and we are still not convinced of any compelling reason this should be dealt with in this legislation.

The departmental note on the matter was somewhat misleading as it outlined that the reference to co-location is merely to put beyond doubt the legal capacity of Beaumont and St. James's hospitals to enter into co-location agreements. The legislation goes well beyond this, however, by establishing the legal capacity for hospitals to enter into co-location agreements and goes further by enabling the sale of public land to private health care operators, many of whom are international operators. This is a shift in Government policy. I question the need for legislation in this regard if legislation was not required in the case of the sale of land at St. Loman's. Why does this legislation need to be brought before the House now when public lands have been sold before in different circumstances which did not require legislation? Is there a difference in the composition of the boards of St. James's and Beaumont hospitals? I ask the Minister to give a clear response on this issue to clear up a number of concerns on this side of the House.

The co-location policy brings us much closer to Boston than to Berlin in our approach to the health service. I know this is the Minister's philosophy and it is another step towards the Americanisation of the Irish public health system. She has not addressed the significant concerns about the impact of co-location on the financing of the public hospital system. There are concerns about training and about how professional teams will move between the two systems. People on the front line have many questions which have not been answered.

I refer to the VHI annual report for 2006 which explicitly stated there was no need for further private beds. The Minister stated in the Dáil yesterday that the new privately managed facilities will be used for public patients to supplement rather than supplant public service provision. In many ways, the Minister's plans in this area will supplant rather than supplement the public service provision and could lead in the longer term to a real undermining of public service provision in the health service. The Minister might be better off providing the 3,000 extra public acute beds which were promised more than six years ago.

I have referred to the Medical Practitioners Act which was rushed through the Oireachtas in 2007. Why was this issue not dealt with at the time? What new information has come to light with regard to the Medical Practitioners Act? Have concerns about the Act been expressed by the Medical Council? Why is there a need to address it one year later?

This legislation proposes a different arrangement for the new children's hospital. I reiterate the concerns expressed by many about the site chosen by the Minister.This issue was recently raised at the Joint Committee on Health and Children where Professor Drumm discussed the transport issues but was far from reassuring to the people of west Dublin and beyond who currently use Tallaght and Crumlin hospitals, both of which are going to close as a result of the decision that was made to locate the new children's hospital on the Mater Hospital site.

I reiterate my concerns about the golden hour, which is a well established principle which states that some children in emergency situations need to get to hospital within an hour in order to have their lives saved. Children's lives are put at risk by the proposal to leave the south west and west side of Dublin and patients from Kildare without an overnight paediatric bed. If the Minister is intent on going ahead with the proposal to open a facility in Tallaght it should be a 24-hour facility, not one that is open from 9 a.m. to 5 a.m. or 9 a.m. to 8 p.m.

The Bill also attempts to address issues within the Health Act 2004. Again, that Act was presided over by the Minister when she established the HSE. In many cases the Minister is replacing the word "Minister" with "HSE". It would have been appropriate to have a discussion about the relationship between the Minister and the HSE in terms of accountability and responsibility. When it emerged that many women were being recalled by the Midlands Regional Hospital in Portlaoise it was evident that there was no line of accountability between the Minister and the HSE. It was very unclear as to who was responsible.

Effectively, what we had in the committee was two groups of personnel, the Minister and her staff from the Department of Health and Children and senior staff members from the HSE. One side clearly did not know what the other was doing. There was no line of accountability or responsibility. It is proposed to make the roles interchangeable in the Bill even though we have not had a debate about who is responsible. That is the key issue. We need more accountability, responsibility and clarity about who is in charge.

It will be difficult to regain the confidence that has been lost, especially in regard to breast cancer facilities. That is not something which is possible to recover easily. A concerted effort is required to build up confidence in the system in order that women feel they can rely on the assessment and diagnosis they receive. One of the key aspects of handling this matter is to answer the question of who is in charge of what issues and where the responsibility lies.

I regret the fact that three different areas are being addressed in the Bill. I also regret the lack of time. As Senator Alex White indicated this morning, it is not just a case of more time in this House, it is also necessary to provide more time in order to allow the media report what is being done so that there can be reaction to it and that those who are interested in this area can have an opportunity to talk to parliamentarians and give their response to the legislation. All of that is being denied by the way the Minister has chosen to introduce the legislation.

The Minister called for a Tallaght strategy-type approach to the health service in certain areas. She has been in a position to introduce the kind of changes she wanted without any Tallaght strategy and that has not been done. Introducing legislation in this manner, without publishing the legal advice and without giving adequate time between the different Stages of the Bill is not treating the Houses of the Oireachtas in the way they should be treated. This is not the way to introduce legislation and expect support for it.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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I welcome the Minister to the House once again and I am pleased to contribute to the Bill. As the Minister pointed out, various bodies associated with the health service are governed by the 1961 Act. Legal advice now suggests that this legislation is faulty and could be unconstitutional. The Bill is sensible and seeks to put right and prevent problems in the future. As the Minister indicated in the other House yesterday, it is comforting to know that all the bodies being dealt with in the Bill were properly and transparently constituted under the 1961 Act and they have operated well to date. However, the Government cannot ignore the Attorney General's advice, which was given last October that a more fundamental review of the 1961 Act was required. No pragmatic or capable Government could ignore legal advice of that nature.

Unlike the Opposition spokesperson who is condemning the Minister, I compliment her and her officials for the speed in which they got the Bill to the Houses, given that the legal advice from the Attorney General was only received six or seven weeks ago. Senator Fitzgerald referred to the need for more time. It is no wonder her party is in Opposition because if it were given all the time it has sought, it would get nothing done. I dread to think in what kind of state the country would be if her party were in power.

The main gripe of the Opposition parties with the Bill is the inclusion of co-location. It is nauseating to hear them griping in this manner all the time. I do not know what the hysteria is about. A general election was held only six months ago. The outgoing Government of the Progressive Democrats and my own party, Fianna Fáil, supported the co-location of hospital facilities. The main Opposition parties opposed it. The people spoke and the Government parties won a resounding victory and we are back in Government. The issue has been dealt with in that co-location has been given the green light by both the Government and the people who voted for it. We should move on.

It is important to refer to the merits of co-location. As the Minister indicated, it will result in the freeing up of 2,500 beds in public hospitals, 20% of the total public hospital bed capacity. However, it is worrying that private elective admissions take up 35% of the total capacity. The Minister is correct and very brave in saying she is not prepared to let these factors lead to a situation where private patients receive priority over public patients. That is not fair and it should not be allowed. Co-location is a wonderful idea. The main Opposition parties are mad not to buy into it and support it. The Minister referred to direct admission to surgical and medical units. One of the best aspects of co-location will be the location of general practitioners on site on a 24-7 basis. These are the kind of measures we have to move towards introducing.

The Minister referred to the legal disposal of sites to allow for the construction of private hospitals. Senator Fitzgerald can rest assured the Minister is not going back on her word and she may get some comfort from this information. I have been told that to dispose legally of an entity means to lease. My understanding of the matter is the lands are not being sold off; they will be leased.

As the Minister pointed out, the amendments to the Medical Practitioner Bills are essentially technical. According to the advice of the Attorney General they are necessary. In the main they relate to the transition period. This will ensure an orderly transfer from the existing council to the new one that will come into force.

It is only nine months since we enacted the Medical Practitioners Act. Senator Fitzgerald is correct that it was introduced in the past year but I disagree that it was rushed through the Houses. That is far from being the case. The Act, which is still in existence, is almost 30 years old and needed changing. Every medical practitioner in the country was screaming out for change. I was a member of the previous Medical Council, on which I sat for five years, and everybody was crying out for a change in this.

I repeat that the Minister was brave. Many of her predecessors would have kicked to touch on it. Nobody wanted to touch it and it was let continue. We are worse the wear for that because cases like the Dr. Michael Neary case, which blew us all apart, made people sit up. The Minister was brave for introducing this amendment to the House and I commend her for that as well. It was in need of reform and it will be changed. I am pleased the Minister expressed her appreciation to the president of the Medical Council for the board remaining in office for a few extra months to facilitate the orderly transfer of powers from the current council to the new one.

The Minister has gone through the main points of the Bill. I will not rehearse them but I look forward to contributing to Committee and Remaining Stages tomorrow.

Photo of Ivana BacikIvana Bacik (Independent)
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With the permission of the House, I wish to share time with Senator O'Toole.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is that agreed? Agreed.

Photo of Ivana BacikIvana Bacik (Independent)
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I echo the concerns expressed by Senator Fitzgerald about the lack of time we have had to review and scrutinise the provisions of the Bill. There has been undue haste with the way in which it has been brought before us, in particular, because there is such a raft of amendments that the Bill purports to make, not just in the sections but also in the Schedules, and particularly in Schedule 1.

Schedule 1 contains a host of retrospective amendments to different statutory instruments some 30 or more years old. Therefore, to consider the Bill as amending legislation one also needs to look at the amendments that are being introduced in this way through a raft of statutory instruments. That involves procedural difficulties and I would like to have had more time to look through those statutory instruments than the way in which this is being done.

On the wording of the statutory instrument, Senator Feeney referred to the issue of disposal, but "the disposal of land or an interest in land", which is the wording used in Schedule 1 referring to the powers of the boards of St. James's and Beaumont hospitals, could clearly be either by lease or by sale, and Senator Fitzgerald's concerns are well founded in that regard.

I wanted to focus my remarks on the implications of the Bill for co-location, about which the Minister has spoken. Clearly, there was a concern that the board of St. James's and Beaumont hospitals would need a more solid legal basis in order to back up the decisions on co-location that the Minister has favoured. It would be of considerable value to us to see the legal opinions on which the Bill, and especially section 7, has been based.

We have not seen the Attorney General's advice. We do not have an outline of it, nor do we have senior counsel's opinion, which I understand was also given in respect of this. It seems that section 7, if passed, would purport to amend a raft of statutory instruments retrospectively, including SI 187 of 1971 relating to St. James's Hospital board and SI 258 of 1977 relating to Beaumont Hospital board.

Leaving aside for a moment this dubious procedure of engaging in such a substantive series of retrospective amendments of statutory instruments, I want to look at the merits of the co-location idea in itself. In her speech, the Minister indicated that co-location is based on what I would describe as a fundamentally flawed premise, that is, first, the Department of Health and Children was looking originally in 2004, as the Minister stated, "to advise on an appraisal framework which would both encourage private investment in the acute hospital sector...". I would suggest that it is driven, first, by an ideological interest in encouraging private investment in health care.

Second, the Minister stated that there was a concern that the level of private practice in public hospitals was exceeding the ratio of 80:20 which has been previously agreed and that more beds were being given to private patients in public hospitals than had been intended. However, the solution to this is to tackle the two-tier health system itself rather than to reinforce it through co-location. It is clear — this is a view shared by many in the health sector — that co-location will only reinforce the two-tier system and will encourage private investment. I would refer the House to an article in the current issue of the Irish Medical Times which describes the co-location initiative as a plan that allows the private health care sector which dominates the American system to get a stronger foothold in Ireland. Clearly, what we will see is private British and US health care providers moving in here and taking over the running of health care services.

The Irish Medical Times has also correctly stated that although most people were seemingly against the idea of co-location last year, the process began under the HSE directed by the Minister to seek out which hospitals would move towards co-location and would have private buildings on site. St. James's and Beaumont hospitals are two of the six hospitals to which co-location is intended to apply.

The cost of co-location has been one big issue and a major area of controversy. It has been suggested that the cost to the State will be close to €70 million a year over seven years, amounting to €490 million, and that the same amount of money, if spent differently in the health system, could provide more public beds at a lesser cost to this principle of equity of access within the health care system.

According to the Irish Medical Times, co-location opponents, of whom I am one, agree it will result in a two-tier system of health care even more reinforced and substantive than exists at present, it will cost the taxpayer more and it will lead to cherry-picking of easier and simpler services from public hospitals and into private hospitals. There is a concern that no widespread informed analysis of the plan has taken place but most patient and doctor representative groups are against co-location.

Important research has been done which shows that patients tend to receive poorer treatment in for-profit hospitals. Clearly, this is a big feature of the US health care system, but I hope none of us wants to see that emulated or put in place here. Research done in the US, and published in the New England Journal of Medicine, found that for-profit hospitals deliver inferior care at inflated prices, and that for-profit hospitals deliver care that is lower in quality than that provided in not-for-profit ones and yet is more expensive.

In terms of quality of care, in terms of value for money and in terms of undermining the principle of equity of access to health care, we must ask whether co-location can really deliver. The clear evidence is that it cannot deliver equity, it cannot deliver value for money and it cannot deliver quality of care for patients. Section 7 should be opposed on the basis that it facilitates co-location going ahead.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I welcome the Minister to the House. I listened carefully to her speech. I will not use this legislation to articulate my views on co-location. I have done that previously and I am sure I can do it again.

I do not know whether I should support or oppose this Bill, and when in doubt, "Vote No" quickly comes to mind. On the Order of Business this morning I stated that this is the anniversary of the week of the rod licence debacle and to me this has all the sense of that, and I will explain why.

Only a month ago in this House I went to the trouble of going through the Health Act 2004. I extracted from that Act a document, which I put together myself, listing the functions of the chief executive, the responsibility of the Minister, the reporting structure in each and what each was supposed to do. I pointed out to Members, and particularly those on the Minister's side of the House, why they should not be critical of the Government in certain situations and why they should in others, which is the principle from which I work.

There are two aspects of the Minister's speech which seriously concern me. The first is her statement that there are technical drafting issues identified regarding the Medical Practitioners Act 2007. I would like to know how that came to be.

More importantly, I have spent a lifetime in this House trying to understand and get a good feel for the difference between statutory instruments, ministerial orders, secondary legislation, regulation, etc. The Minister suggests we could be in breach of Article 15.2 of the Constitution, which gives the right to legislate to the Oireachtas. How did this happen? Senator Fitzgerald said that she would like to see the Attorney General's advice. I would too, but I know there is not the remotest chance of seeing it.

Let me give the Minister the other side of the argument. I do not trust lawyers in this regard. I do not trust lawyers who tell me that we cannot do something by secondary legislation or by regulation. Neither do I trust them when they say we should not have done something by secondary legislation. I have been dealing with legislation for 20 years and like to put my hands in the wounds myself. It is right for the Minister to do what she is trying to do to ensure that matters are brought beyond doubt. She knows that and has the information to come to that conclusion, but I do not. I do not trust lawyers in that regard.

When I say I do not trust lawyers, I am not being dismissive of the profession. I feel they are used to taking one side or the other and are not much good in the middle. Their whole life is either win or lose, but the rest of us have a different role to play as we live in a grey world. I would like to hear what the advice was, to hear the opposing argument and to come to a conclusion. We are entitled to that in this situation. For example, the Minister states clearly with regard to the establishment powers and immediate needs: "The National Paediatric Hospital Development Board is also one of these bodies and, when examining the adequacy of powers of the Health Service Executive to fund the new board ... it was felt there were difficulties". I have looked at the powers of the Health Service Executive under the 2004 Act and see no difficulty whatever. It was given widespread powers to spend money and fund bodies, as long as it was doing so in the interest of improving, promoting and protecting the health and welfare of the public. I cannot imagine anything broader than that.

I recall the legislation going through and I indicated then that the HSE could take on the whole country and nobody could oppose it. I would like to see the legal advice that second guesses that. I do not believe it exists. I know the hardest thing for a Minister for Health to do. I remember saying to one of the Minister's predecessors, Deputy Michael Noonan, whom I defended in the House previously, that he should not have taken legal advice in the Mrs. McCole case. This situation is not parallel, but that was a good example of where a politician should strenuously overrule legal advice when not convinced it is necessary.

I am arguing in a vacuum because I have not seen the arguments of either side. Therefore, I cannot come to a conclusion on the issue. If the same people are advising us on this as advised the Parliamentary Counsel on the Medical Practitioners Act 2007 and the previous Act, who is to know whether they were right the first or second time? I do not feel we have clarity on the issue.

I do not have any difficulty with the Minister's argument. I listened carefully to her. Her objective is laudable and if the bases on which she came to her conclusions are correct, convincing and plausible, I would have to support them. However, I do not know that to be the case, but she is the Minister and I am not. I must make my judgment on the information available to me, but the information is not available to me and I am not convinced by legal advice.

The Minister has spent as much of her life as I have of mine looking at legal advice and being prepared to throw it in the bin if it seemed incorrect or did not fit the need at the particular time. I am not sure this is not one of those cases. The distinction between secondary legislation such as regulation, statutory instrument, order or whatever is sometimes very fine. If it goes over the line, I like to know why. If it went over the line, somebody in the Department, it is probable that whoever drew up the statutory instrument, not the Attorney General, went beyond his or her authority.

What we are doing here is enacting primary legislation to amend a regulation. Primary legislation gave the right to regulate. The regulation was written and now we are returning to primary legislation, not for new primary legislation, but to amend a regulation. I am uncomfortable with that because I do not understand how we find ourselves in that position. More importantly, how am I to know we will not find ourselves in a similar position next month or next year? Could there be other measures we need to look at on this issue?

I do not envy the Minister her job. My comments are heartfelt from the perspective of a legislator, but there are issues here that cause grave discomfort to anybody who worries about the process of legislation and regulation and their relationship with the Constitution.

Photo of Maria CorriganMaria Corrigan (Fianna Fail)
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I welcome the Minister to the House and thank the Chair for giving me the opportunity to contribute to this debate. As the Minister has outlined, the main purpose of the Bill is to put beyond doubt the vires of bodies established under the Health (Corporate Bodies) Act 1961. It also amends the Medical Practitioners Act 2007 and provides for a technical amendment to the Health Act 2004. The provisions in the Bill in regard to the health corporate bodies are required on foot of legal advice from the Attorney General that the constitutionality of the 1961 Act could be open to challenge. I welcome the Minister's assurance that it is not a question of any of these bodies having "no legal basis", but that given their importance no shadow of doubt can be allowed to exist in the matter. Thus, urgent action, as recommended by the Attorney General, is needed to confirm these bodies. I congratulate the Minister on her speedy response.

This Bill has implications for a number of bodies established under the previous legislation. While 40 bodies were established, 19 remain in existence. These include St James's Hospital, Beaumont Hospital, the Drug Treatment Centre, the Irish Blood Transfusion Service and the National Cancer Screening Service. Another of these existing bodies is the National Social Work Qualifications Board, established under the 1961 Act to carry out a range of functions, including the validation of qualifications of social workers. The Health and Social Care Professionals Act 2005 provides for the establishment of the Health and Social Care Professionals Council and registration boards to regulate and register members of designated health and social care professionals, including social workers. Section 83 of that Act provides for the dissolution of the National Social Work Qualifications Board, as its functions will be carried out by the council and the relevant registration board. The new Bill will enable the Minister to dissolve the board, in line with the provisions of the 2005 Act, despite the fact that the board is one of the bodies that will be confirmed under this legislation.

I take this opportunity to welcome the Health and Social Care Professionals Act and the establishment of the Health and Social Care Professionals Council and registration boards. I congratulate the Minister on the work in this area to date. This was an essential measure to provide safeguards for the public and to support competent professionals. I take the opportunity to suggest to the Minister that she should also look to the area of counselling, which remains unregulated and without registration boards. Currently, any individual can hang a sign proclaiming himself or herself to be a counsellor and be available to people in need. There is potential, therefore, for harm to members of the public who are particularly vulnerable at a time when they are seeking such assistance. This remains an area of considerable concern that would benefit from the Minister's input.

The Minister stated that legal advice also indicated that further legislation be drafted to address a wide range of issues identified with regard to the Act, including the retention of the power of the Minister to establish bodies under the Act, the circumstances in which that power should be exercised, the nature and limits of the functions which may be conferred on such bodies, the relationship of such bodies to the Minister, the Health Service Executive and other statutory agencies and the funding of such bodies. The Minister indicated that given the complexity of these issues, the Government will introduce another Bill to deal with them.

I also note that the Bill will allow for the amendment of the function of corporate bodies. In some instances, this will see some functions being transferred to the HSE and others being retained by the Minister. I understand that the functions being transferred are largely those to do with approving budgets and reporting on operational matters. While I understand the desire to ensure the HSE has sufficient capacity and authority to undertake the work it is charged with, I take this opportunity to indicate strongly my concern regarding the HSE's accountability regarding specific expenditure.

A number of recent incidents have increased my concerns in this regard. I understand from organisations that operate in the areas of mental health and disabilities that moneys allocated in Budget 2007 by the Ministers for Finance and Health and Children to these areas were later redirected by the HSE to other areas, including offsetting the overspend. I would appreciate, as a matter of urgency, clarification concerning this and also consideration of the need for the HSE to be held accountable for its expenditure, particularly where specific projects have been identified and are considered of sufficient priority for moneys to be allocated in respect of them.

I welcome the allocation of €50 million in respect of disabilities in the 2008 budget. I seek assurances, however, that every penny of this money will be spent in this area. I would also like assurances that it will be spent in an intelligent and purposeful way and that quality outcomes for the individual will be seen as an essential component of achieving value for money.

Excellent progress has been made in the context of the introduction of the Disability Act and the Education for Persons with Special Educational Needs Act and also the agreement of the national disability strategy and its incorporation as one of the components of the new social partnership agreement, Towards 2016. I am concerned, however, that as I consider developments in other countries in the context of quality service innovations that are person-led, we are not making the progress in the practical delivery of services that would ensure the best quality outcomes for individuals with disabilities. Achievement of this requires the HSE's full delivery of moneys allocated but also a mindset shift on its part that would allow new boxes to be included on service funding application forms. It is not just about spending the money, rather it is about meeting the needs of individuals in a way that ensures the best possible improvement of their quality of life and provides them with opportunities to realise their full potential in a way that maximises the limited financial resources available.

Under the Bill, the approval of the HSE will also be required in respect of certain functions such as those relating to the recruitment of staff and pay and remuneration. However, this approval can only be given with the consent of the Minister and the Minister for Finance. While I would not request and do not expect the Minister to become involved in micromanagement, I am strongly of the view that we must consider the introduction of some mechanism to ensure the accountability of the HSE regarding funding designated for specific purposes and not just that relating to its overall Vote.

I welcome technical amendments to the Medical Practitioners Act 2007 because these will facilitate the phased commencement of significant provisions in that Act and the move from the old regulatory system to a new improved one. In light of the progress made in providing for a modern, efficient and transparent system for the regulation of the medical profession which will benefit members of the public and the profession and ensure also all medical practitioners are appropriately qualified and competent, it is essential that the transition to the new Medical Council should take place on a phased basis to ensure the objectives of the Act are realised. I wish all involved well.

Photo of Phil PrendergastPhil Prendergast (Labour)
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I welcome the Minister. The Labour Party accepts that, in light of the reported advice from the Attorney General, it was necessary legally and constitutionally to introduce primary legislation to confirm the 19 bodies purportedly created under the Health (Corporate Bodies) Act 1961. We also realise the Oireachtas had to move quickly to close off the existing loophole. However, questions arise whether doubts exist regarding the legal status of similar bodies.

Section 3(1) of the Health (Corporate Bodies) Act 1961 states: "The Minister may from time to time by order (in this Act referred to as an establishment order) establish a body to perform functions in, or in relation to, the provision of a health service or two or more health services." Similarly, section 3(1) of the Local Government Services (Corporate Bodies) Act 1971 states that the Minister for the Environment, Heritage and Local Government may "whenever with the agreement of the Minister for Finance he determines that it is expedient to do so, by order (in this Act referred to as an establishment order) establish a body to provide for the Minister, the authorities therein specified, being authorities to which this Act applies, or the Minister and the authorities so specified, as the case may be, such services as may be specified in the establishment order". The bodies established under this legislation include the Local Government Computer Services Board, the Fire Services Council, the Dublin Transportation Council, the Irish Water Safety Association, the National Safety Council, the Local Government Staff Negotiations Board, the Local Government Management Services Board and the Environmental Research Unit. Is it possible to make the same interpretation in respect of those bodies as that which gave rise to the need for the Bill? I would like to see the advice of the Attorney General in this regard.

I have a difficulty with and object to the inclusion in the Bill of measures to facilitate the development of co-located private hospitals on the grounds of public hospitals. The Labour Party is fundamentally opposed to this measure, which seeks to take the health service further along the road of dividing public and private patients so that soon sick people who arrive at the hospital campus could be directed left or right, some to a spanking new facility, supported by tax breaks to its wealthy developers, and others to the older public hospital. I do not believe that the separation of the sick into rich and poor hospitals is anything other than ideologically based. This aspect should not form any part of emergency legislation. Such legislation should be confined to matters that constitute a genuine emergency and should not be used by the Government as a vehicle of legislative convenience.

I also have a difficulty regarding the restricted time we have been given to debate this issue. My concerns have been echoed by many other colleagues in the Houses. While it is necessary to introduce legislation to ensure we make the position politically sound, I do not understand the need for the provisions relating to co-location. I have a serious problem with the latter and I await the Minister's reply.

Photo of Déirdre de BúrcaDéirdre de Búrca (Green Party)
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I welcome the Minister. I intend to make only a brief statement regarding the Health (Miscellaneous Provisions) Bill 2007, particularly because a great deal has already been said and owing to the fact that the legislation is technical in nature. I accept, and the Minister acknowledged earlier, that there is a sense of urgency regarding the introduction of the Bill which is, in a sense, emergency legislation. It is far from ideal that we are rushing the Bill through in this way but there is a strong rationale behind the need to do so.

In future, legislation should be drafted in such a way that there will not be a need to revisit it. Difficulties arise from time to time, however, and the advice from the Attorney General is that primary legislation is needed to confirm the orders which established 19 bodies under the Health (Corporate Bodies) Act 1961. If the Bill were not introduced, those bodies could be vulnerable to legal challenge. It is important for that reason to support the legislation. The 19 bodies established under the 1961 Act include the former Blood Transfusion Services Board, now the Irish Blood Transfusion Service, the Health Research Board, the Crisis Pregnancy Agency and the boards of St. James's, Beaumont and St. Luke's hospitals.

Another major reason for supporting the legislation is because it will address what have been perceived as inadequacies or shortcomings in the Medical Practitioners Act 2007 and the Health Act 2004. The Medical Practitioners Act 2007 was welcomed by all parties because the intent behind it was to improve patient safety through improved regulation of the medical profession. The Act introduced welcome new measures such as a lay majority on the Medical Council and also new measures to assess doctors' competence on an ongoing basis. There is, however, as others stated, a need to implement the provisions of this Act on a phased basis. The Bill will enable such a phased implementation to be carried out.

For the reasons I have outlined, the Green Party supports the Bill. Claims have been made with regard to what the Bill involves. The legislation is not concerned with ushering in any other policy, it is largely technical in nature and the Green Party supports it.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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It is a major change in policy for the Green Party to support co-location in such clear terms. If one strips away the issue of co-location and the changes to the Medical Practitioners Act 2007, the legislation contains very little. A constitutional issue arose and the Minister was obliged to introduce the Bill to deal with it. I would love to know what happened between the National Children's Hospital development group and the HSE that necessitated the intervention of the Attorney General, especially as said intervention led him to discover a problem with legislation introduced 46 years ago. The background to this matter would certainly be interesting and I ask the Minister to impart it to us.

The Government has a fairly healthy disregard for the Constitution and our democracy. That is why we end up going back and forth to the Supreme Court. Senator Feeney made the rather simplistic remark that Fianna Fáil won the election because it supports co-location.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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That was one of the reasons.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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I do not believe grassroots Fianna Fáil supporters want the health care system to be based on the making of a distinction between those who have money and those who do not. Fianna Fáil has always prided itself on the idea that all people should be treated equally. It has never before subscribed to an ethos of discriminating between poor people with low incomes and wealthy people. It has been enlightening to observe the change in the way Fianna Fáil considers the general public. It is no longer the democratic and republican party of old.

The Minister for Health and Children has not yet signed the commencement order for the Medical Practitioners Act 2007, which was rushed through the Oireachtas in April. She has argued that the substance of the Bill remains unchanged, but it has not been implemented. The Minister knows as well as I do that the existence of a lay majority on the Medical Council will not protect patients in our hospitals. While such a majority is good for the general ethos of the health service, it is of no consequence unless it is accompanied by the other changes we supported in the Act. I have asked the Minister on many occasions when she intends to make medical competence assurance, which is to be put in place on a phased basis, part of the ethos of the health care services. She has done nothing about it, to be quite honest. All we have is a voluntary process whereby doctors can ask 25 of their patients to write to the Medical Council stating whether they think the doctor is good or bad. As a doctor, I am in a position to participate in that process. I do not believe that is transparent, given that doctors are unlikely to choose patients who do not get on with them.

Photo of Fiona O'MalleyFiona O'Malley (Progressive Democrats)
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I am sure the Senator could not find 25 patients who do not get on with him.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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One would never know. One might be surprised. I have had a long career.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The Senator might find 25 people in the Oireachtas who do not get on with him.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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That is right. I might be in trouble if the Minister got to them before I had a chance to do so.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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Senator Twomey is a popular doctor — he does not need to worry.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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It is Christmas time, so we will be generous.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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The most important aspect of the Medical Practitioners Act 2007 is the provision relating to competence assurance, as it will change the way doctors and patients interact within the Irish health service. That is what the Minister should be talking about. It is rubbish to talk about introducing competence assurance on a phased basis because it will not protect patients.

I will speak about co-location, which was raised by the Minister. We have had more than enough rows on this issue. I do not like co-location because I think it signifies the Government's failure to implement the reform of the health care service. The public health care system, which is costing the taxpayer €15 billion per year, is not working. The Government's solution is to establish a private health service alongside the public health service, to be paid for by taxpayers and private patients. Patients are not getting the benefits the Minister should be achieving. She should forget about co-location because it is a very bad policy that discriminates against patients. The Government has decided to establish separate hospitals for rich people and for paupers, and to wash its hands of the consequences.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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Not at all. Approximately half of Irish people have private health insurance.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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If the Government is serious about this, it should focus on reforming the public service and making it work. The Minister and I had many discussions on the consultants' contract. I got a lot of grief from some of my colleagues in the medical profession, as long ago as January 2006, when I backed the Minister's approach to this issue. I suggested to her that if agreement could not be reached on the contract, she should bring in her own contract. I proposed at that time that a deadline of Easter 2006 should be put on it. Negotiations on the contract have not yet been concluded as we approach 2008, as a consequence of the Minister's failure to do anything about it. The Minister needs to reform the public health care system by making changes which will ensure that porters no longer refuse to take patients to X-ray departments, for example. We need to ensure that nurses cannot refuse to treat a patient because he or she is not in the ward to which they have been designated.

The Minister knows in her heart that the administration of the health service is a disaster. These problems are caused by the Government's failure to implement the necessary changes to the manner in which the €15 billion is spent. The Minister has opted out of the reform process, preferring instead to get taxpayers to pay for the establishment of private hospitals on the lands of public hospitals. Everyone knows that is not the correct policy. Fianna Fáil Ministers seem to have a huge difficulty with this. Senator Feeney seems to have conveniently forgotten that two days before this year's general election, most Fianna Fáil Ministers had no idea how much co-location was going to cost. That is the problem.

Some of the Government's health policies are contradictory. It intends to build private hospitals next door to public hospitals. I do not want Senators to think I have something against private hospitals, because that is not the case. I am happy to refer my patients to private hospitals, as long as I am satisfied that the standards in those hospitals are acceptable. I have a problem with the private and public sectors being mixed so closely together, because I know what will happen in the long term. It will not be good for patients or those who pay for the health service. I will spell out the contradiction to which I referred. One of the major Bills to be debated in the Dáil before this year's general election was the legislation that established the Health Information and Quality Authority. The staff of the authority are not allowed to go into private hospitals. When things go wrong in the private hospitals which are to be built next door to public hospitals, the authority will not be able to investigate. It will be able to go into public hospitals but not private hospitals. The Minister has said that public and private consultants will serve both types of hospital, although those of us who know what really happens in the health service think they will spend most of their time in the private hospitals. The Health Information and Quality Authority will not be allowed to go into private hospitals to find out what is going on there. There is a complete lack of clarity in relation to how the health service is supposed to work.

If Fianna Fáil Senators want to examine these matters some more, they should consider the Government's failure to put in place a consultants' contract that serves the Irish people. They should ask why the Health Information and Quality Authority, which is supposed to be able to protect patients in health institutions, is not able to go into private hospitals. They should try to explain why they accepted such a daft notion in the first place, instead of reforming the public health system in a way that will ensure it works for patients. The Minister has brought in Professor Drumm and Professor Keane for a few nice press conferences. A few media commentators have said she is a "can-do" Minister. I hope that is the case, but the time for dealing with these big issues is running out quickly.

The Minister cannot just pay the consultants what they want — she must make reforms to the public hospitals so they work for patients. Too much money is at stake to do otherwise. More importantly, lives are at stake. I ask the Minister not to blame the HSE simplistically for the problems which have been encountered over recent months. Many of the problems have been built into the system by the way the reform process has gone so far. I am afraid that process will not be successful in the future unless we are quite serious about what we must do.

Photo of Ciarán CannonCiarán Cannon (Progressive Democrats)
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This Bill is a testament to the thorough and prudent approach of the Minister for Health and Children, the Government as a whole and the Office of the Attorney General. The normal work of government involves ongoing legal analysis of how current primary and secondary legislation is being used to implement policy on a wide range of issues. As the Minister has said, the primary legislative basis for funding the new national paediatric hospital, which is to be developed by the HSE, was analysed in the normal way. The Minister, Deputy Harney, has confirmed that arising from those considerations, the Office of the Attorney General decided in mid-October that a more fundamental review of the constitutional status of the health Acts needed to be undertaken. The Minister was advised on 26 October that the legislation being considered today was needed. I do not accept that there has been a delay since then. Any fair-minded person who examines this legislation will see that considerable work has been done quickly to produce a Bill that will make technical amendments in a number of areas. This Bill will set a proper modern standard for the legal underpinning of various health bodies. I congratulate the Minister, the Office of the Attorney General and their officials on the work they did to address this issue as soon as it was identified.

Most of those who have spoken during the debate on this Bill today and yesterday have glossed over the considerable and valuable work that has been done. Some Senators have preferred to focus on the issue of co-location. I am pleased to have an opportunity to remind Senators of the benefits of this policy initiative. I have the utmost confidence that co-location will be proven to be in the public interest in every respect. Public representatives have been asking for years for new acute hospital beds to be provided more quickly. It has taken many years to complete certain major hospital projects, at a time when great progress was made with other construction projects in the private and public sectors. The co-location initiative will free up 1,000 new public beds over the next three or four years in a cost-effective and efficient manner. It has been scrutinised and tested by numerous legal and financial advisers, including officials in the National Treasury Management Agency and the Departments of Finance and Health and Children. We already have public and private health care providers in this country, including within our hospitals. There are 2,500 private beds in public hospitals. These are not available routinely to public patients in the same way as to private patients, despite that taxpayers' money built them and continues to fund them. Is it not time we changed this? It is time at least we made a start. I cannot believe people would still argue it would be best to leave things as they are with no reform whatever. Co-location will free up 1,000 of these beds. This means a massive and, more importantly, rapid increase in hospital bed capacity for public patients. It is a significant step towards ensuring our publicly funded hospital capacity will be used solely on the basis of medical need.

We already have a public and a private system. That will not change. Neither is there much demand for a monopoly of public health sector provision. There is no case for that. All the trends internationally are towards using a diversity of health care providers, public, private and voluntary. The real task ahead is to make public and private work together in new ways to provide more capacity and better health services. That is exactly what co-location will do. Public and private health care providers will work together as never before. As the Minister has said, we will be able to use the new privately managed facilities for public patients to supplement, rather than supplant, public services. We already do this with the National Treatment Purchase Fund, which has systematically opened up the gates of private hospitals to public patients. It gets on with the job of buying treatment for patients.

Let us be honest. Patients do not care who runs or finances a hospital as long as the care is good and they are treated without long delays. The Minister is right, and in agreement with most patients, in saying that all hospital capacity that meets standards and offers value for money should be usable by all patients. She is also right to insist that under this policy and the new consultants' contract, access to publicly funded care must be based on medical need alone. She is passionately committed to this and, as we all can see, she has the full backing of the Government side in this House.

There are, none the less, constant and sometimes vicious distortions of her motives and commitment to equity in the health services. Some people wilfully ignore her spoken words, repeated many times on the record, and claim to know better than she does herself what is in her mind. It is happening again today. This cannot be explained away as normal politics or fair commentary. It goes well beyond that. The Minister is a better woman to ignore it, as she does. I am confident, as is the public, that she is totally focused on achieving what is fair and best for all patients. Anyone who knows Deputy Harney knows that.

There are Members of this House and others who accept the Minister's motivation but still query the co-location policy. I invite them to examine it again in detail and consider the real protections of public interest set out by the Minister yesterday in the Dáil. She stated, for example, that there would be only one accident and emergency department on each site. She also stated that the co-located private hospitals would facilitate medical training and research and development, accept direct admissions to medical and surgical units from primary care centres and general practitioners on a 24-hour, seven-day basis, comply with physical design requirements to fit in with the existing public hospitals, and share clinical governance, information, records management, performance management provisions and documented service level agreements with the existing public hospitals where these are undertaken. They will participate in the public-hospital inpatient inquiry scheme and case mix information systems. These are all new developments and new ways of ensuring public and private hospitals work together. For all these reasons and others, the co-location policy will deliver real benefits to our health services and, for many years to come, provide a platform for further ways in which the public and private sector can work together for the benefit of all patients. I commend this Bill to the House.

Photo of Paschal DonohoePaschal Donohoe (Fine Gael)
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I join others in welcoming the Minister to the House. I will focus on two different areas. The first is, as others have mentioned, the time we were given to consider this legislation, and the second is the nature of the co-location proposals before us, which has been mentioned by all previous speakers. However, I will first respond to some of the points made by Government speakers, particularly Senator Feeney. Since I joined the Seanad only a number of months ago, I have been struck by the consistently high quality of contributions from Senators on all sides of the House. If the repetition of sincere views by people on this side of the House is found to be nauseating by the Senator, that is the kind of attitude that makes me even more suspicious of the legislation before us.

Photo of Alex WhiteAlex White (Labour)
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Hear, hear.

Photo of Paschal DonohoePaschal Donohoe (Fine Gael)
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The Members of this House hold sincere and genuine views. I suspect many of them are shared by the Senator's colleagues. If Senator Feeney finds the public articulation of these views sickening, as she said a few moments ago——

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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The public did not reject co-location. That was my point.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Senator Donohoe, without interruption.

Photo of Paschal DonohoePaschal Donohoe (Fine Gael)
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——it does all of us, and the Senator in particular, a disservice.

Photo of Alex WhiteAlex White (Labour)
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The Green Party did, and it is now in Government with Fianna Fáil.

Photo of Paschal DonohoePaschal Donohoe (Fine Gael)
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If we move on to the nature of what we are discussing——

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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The public spoke.

Photo of Alex WhiteAlex White (Labour)
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The Green Party campaigned against it.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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They said it would undermine the economy and that the Government would make a mess of it.

Photo of Paschal DonohoePaschal Donohoe (Fine Gael)
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Although I welcome some of the points being made in the interruptions, I will go on. I tried to take some time, as did everyone else, to read the Bill, but I did not have enough time so I put more attention into the explanatory memorandum. This Bill is designed to correct another law that has been in existence for 46 years. Correction of the legislation has suddenly become urgent, apparently, but the advice that necessitated this has not been made available to people on this side of the House. If we consider the bodies that will be affected by this change and their importance to Irish life, to patients and to the people who work within them, we must agree it is vital that people on this side of the House demand to see the advice available to the Minister.

We must demand time to consult people outside the Houses to understand their views so that we can better do our job and articulate a range of views on this legislation. We have not had the time nor the capacity to do this. I agree with the point made by Senator Alex White earlier. It is not a matter of getting additional speaking time; it is about having the time and ability to prepare so that we may make good use of that speaking time. That has been denied to us up to this point.

I have no qualms about raising the issue of co-location as every speaker on the Government side has already mentioned it. During the hurly burly of the general election——

Photo of Pat MoylanPat Moylan (Fianna Fail)
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There are to be no mobile phones in the House, please.

4:00 pm

Photo of Paschal DonohoePaschal Donohoe (Fine Gael)
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——it was difficult for people to get their minds around and understand this issue. This summer I was delighted to see a book review in The Irish Times, written by the Minister, of The Other Invisible Hand by Julian Le Grand. This book sets out the theoretical and policy foundations upon which the idea of co-location is based. Professor Le Grand published another book called Motivation, Agency, and Public Policy: Of Knights and Knaves, Pawns and Queens, which expounded these views in more depth. I took some time to read these books to understand the policy framework of the co-location concept. The idea is that a diversity of providers can come together within a policy framework to deliver a better outcome for citizens, whether they be patients, pupils or elderly people.

Professor Le Grand lays out four criteria required for this to work, which are missing from the current co-location framework. The first is that the State, rather than the person accessing the care, must bear the cost of this care. In the case of health care provision within the UK and elsewhere, this is happening within a general health insurance model. If a patient in the UK accesses a foundation hospital, for example, which is the equivalent of a co-located hospital, he or she does not pay because it is paid for out of his or her tax contributions. There is a general health insurance model within which the idea of providing diversity of service is embedded. If a private patient uses a co-located hospital in Ireland, his or her health insurance premiums will increase over time because he or she will eventually be charged the full economic cost of the care. This is in opposition to the idea of ensuring service provision is free at the point of use.

Regulation is strongly advocated in this system. It will ensure that everybody operating within the service is adhering to the standards and protocol set out by the Government but as my colleague, Senator Twomey, said earlier the very organisation charged with doing that in the health service, the Health Information and Quality Authority — the Minister must be congratulated on setting up that organisation and it must be congratulated on the quality of its recent report — will be unable to go into these new hospitals. How will we ensure the quality of care is maintained in respect of all people using these services?

Professor Le Grand emphasises the importance of avoiding cherry-picking to ensure hospital services or skills are not only available to wealthy people or to those already in fairly good health and to avoid the need for institutions having to deal with the very sick or those unable to afford care. As everybody on this side of the House has pointed out, that will not be the case with co-located hospitals because the majority of those who will use them will have private health insurance, which I welcome — I have private health insurance, as does nearly half the population — as opposed to those who do not.

Professor Le Grand stresses the importance of ensuring that citizens have all the necessary information on the services they use and that they can use that information to pick the service. I had to make a choice regarding a hospital I had to use recently and the only information I had to go on was one or two reports from HIQA and local information, rumours and feedback from my neighbours. That is not good enough when one is deciding which hospital to use. We are talking about hospitals which are using €15 billion in funding.

Those of us on this side of the House are right to oppose the Bill because we do not have enough time to do our job properly. The co-location idea, which will be brought in under this Bill, will drive a nail through the proposal to bring in a diversity of people to provide policy services to people here. The co-location model does not meet the criteria other countries use to make a policy like this one successful. These views have not been generated in an insincere manner to curry favour with the electorate or whoever. We have taken the time to examine the idea and to articulate these views here and elsewhere, which is our job.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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The Senator has eight minutes.

Photo of Alex WhiteAlex White (Labour)
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I welcome the Minister to the House. Nothing Senator Donohoe has just said could be remotely interpreted as being vicious or anything other than a thoughtful analysis of the issue.

I am a little perplexed about the urgent nature of this legislation. I want to tease out that aspect and perhaps the Minister will respond on it. The Minister indicated that it arose when the powers of the Health Service Executive to fund the new national paediatric hospital development board were being examined and that when the Attorney General was examining the various orders that have been made under the 1961 Act the issue arose as to whether they might be in breach of Article 15 of the Constitution, which essentially states that sole legislative power rests with the Oireachtas. I am surprised by that because we are all familiar with primary legislation but we are also familiar with secondary legislation, and Ministers make orders every month of the year, some of considerable substance. Although I have seen statutory instruments and regulations being challenged on different occasions, this is a serious statement by the Attorney General and the Government, drawing into question decades of orders made under the 1961 legislation. If they are so infirm, and the Minister indicated earlier today that the Government discussed the issue of the local government orders yesterday and will come back to that in the new year, where does that leave the powers of the Minister for Education and Science to set up bodies? What about the range of delegated powers of considerable substance that Ministers exercise every day of the week and month of the year? Are they all open to question? If they are, that is a very serious issue for these Houses and for the public.

If it is urgent to resolve the issue in the context of the 1961 Health (Corporate Bodies) Act with which we are dealing with here, and if there is now a question mark over the orders relating to local government bodies, why would the resolution of that issue not be urgent also? Why can that wait until 2008 whereas this one must be done now? I am genuinely perplexed about the urgency of this issue, not in a vicious sense — I say that to Senator Cannon or anybody else — but in a genuinely inquiring sense.

I ask the Minister to consider giving us more information and publishing the Attorney General's opinion as to the basis upon which it has now been concluded that questions arise about the constitutional status of all these orders because it has wider implications. Did the legal advice the Attorney General got from the counsel he instructed also range into the other areas of local government bodies, and possibly education bodies? How were the wider implications of this very serious issue treated by whoever gave the advice to the Attorney General? It is clear that advice, and the Attorney General's opinion, should be published on a matter of such huge import.

I do not agree with Senator de Búrca and others who said this is simply a technical Bill. There are technical aspects to it but it is not technical if the Houses of the Oireachtas are being asked to take a view that a range of orders extending back almost 50 years have questionable constitutional validity and to put that right. That is not simply a technical question; it is a matter of huge import and one we must take seriously. It relates to the issue of time being afforded to the debate on this Bill, a point made earlier by a number of colleagues. It is not just a question of whether the Houses will sit all night. That is reducing the issue to a question of time on the floor. This is a matter of interest to the public. We are here on the trust of the public. It is not just a question of the time I, Senator Twomey or anybody else has to analyse a Bill. It is a question of the constitutional job we are doing on the part of the public and one week is not enough time between the publication of this Bill and the final Stages being reached in both Houses of the Oireachtas. That undermines the trust the public is entitled to have in these institutions. I think twice about using the word "abuse" but it is an abuse of the system we have set out in the Constitution for dealing with issues such as this.

The Bill is also about co-location, at least in part, and perhaps that explains the urgency issue.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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The Senator has one minute remaining.

Photo of Alex WhiteAlex White (Labour)
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What happened to the seven minutes?

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The Senator made many points, and I listened carefully.

Photo of Alex WhiteAlex White (Labour)
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I want to endorse what Senator Donohoe said. I accept the Minister has been in the House previously and always has been prepared to debate the issue of co-location but that does not mean I agree with her. We are consolidating a two tier system in this principle of co-location. In terms of the direction people take when they come into a hospital we are saying that people with resources will turn left while those without resources will turn right.

Senator Feeney made the point earlier that we had the election and that is over and done with, as if we cannot have any further debate now. I do not wish to offend members of the Progressive Democrats but I will quote from a statement which refers to them and they will have to live with it. It states:

The Progressive Democrats and their ideologically flexible allies in Fianna Fáil are intent on intrenching inequality. We do not agree on the promotion of a two-tiered health system where treatment is given on the basis of ability to pay rather than medical need. Fianna Fáil, in the past, has committed itself to equal access of all patients. This latest move by the PDs runs in the face of that.

I draw attention to this final sentence, which states:

If Fianna Fáil continues to support the PDs in these moves then it can no longer say it is committed to social justice.

Who said that and when? It was the Minister for the Environment, Heritage and Local Government, Deputy John Gormley, on 20 March 2007, only a few months ago. If the Green Party continues to support the Progressive Democrats in these moves, I can no longer say it is committed to social justice.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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We are. That is why we are on the Government side of the House and Senator Alex White is on the Opposition side.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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The Minister was dazzled by the lights of the ministerial Merc.

Photo of Pearse DohertyPearse Doherty (Sinn Fein)
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Following the Attorney General's advice to the Government that primary legislation must be enacted as a matter of urgency to protect the 19 existing bodies established by Ministers by statutory instrument under the 1961 Act, we need to give some leeway. If the legal advice, which should be made available to the Opposition, is correct, then to ensure the continuation of the work of these bodies this legislation is necessary and should be supported.

However, several unanswered questions must be addressed. One major element of the Bill that cannot be supported by Sinn Féin is the extension of the powers to the boards of St. James's and Beaumont hospitals to facilitate the Government's infamous private for-profit hospital co-location plan. It is ironic that the first reference in legislation to co-location should come in a Bill designed to protect the State from a constitutional challenge on the grounds that an Act gives too wide-ranging powers to the Minister. There has been neither a thorough debate or legislation on co-location. It will lead to a significant change in our health care and hospital system that will reinforce the system's two-tier nature and swing State policy towards privatisation. For all this, no Oireachtas approval has been sought for co-location.

The lesson from the Bill's introduction is the danger that arises when the power of Ministers and the Cabinet is taken too far. On many occasions concerns have been raised about Bills which give extensive powers to Ministers through ministerial orders. The role of the Oireachtas in democratic decision-making and scrutiny of legislation has been weakened.

When important bodies are established and funded to the tune of many millions of euro by the State, they must be established by legislation with the entailing checks and balances and democratic accountability. The record of the Government, and the Minister, on accountability is lamentable, however. The Government established the Health Service Executive, HSE, as a buffer against accountability in two directions — from Oireachtas Members and communities.

The Government has signalled its refusal to remove the sections it inserted in the Bill designed to facilitate co-location. The Schedule proposes to amend ministerial orders and give them legislative force. This will mean giving powers to the boards of St. James's and Beaumont to proceed with co-location. Therefore, Sinn Féin cannot support the Bill.

Only one word applies to the minds who came up with the private for-profit hospital co-location scheme — the title of Michael Moore's latest film, "Sicko". These are the people who set the agenda for health care policy in the State. They are the Minister for Health and Children, Deputy Harney, and her advisers, fully backed by their Fianna Fáil and Green Party colleagues in the Government.

Protestant and Catholic organisations — the Adelaide Hospital Society and the Jesuit Centre for Faith and Justice — joined forces in June 2007 to warn against the trend in health care policy that co-location represents. Their jointly published report stated co-location "sends out a powerful message about Government backing and support for the existing two-tier hospital system". It continued:

[It] represents a significant threat to the fundamental values of care and justice, which require that health provision is seen first and foremost an essential service, which should be available on the basis of need.

A Government which sponsors such a scheme can never be relied upon to deal with the underlying inequalities which contribute significantly to ill health in society.

Authoritative opinion in the front line of hospital care claims 3,000 additional hospital beds are needed to replace beds taken out of the system in the 1980s and to cater for the 25% population increase since then. The Government claims it will increase bed numbers by 1,500 but no fewer than 1,000 of these are to come from the co-location scheme facilitated by this Bill. The Minister claims 1,000 private beds will be transferred from public hospitals to the private co-located hospitals, thus freeing up that number of public beds. She has never answered the parliamentary question of my colleague, Deputy Ó Caoláin, on how many beds will be transferred at each hospital site. Co-location cannot provide the additional beds required.

The Doctors Alliance for Better Public Healthcare has stated:

[I]n general, private medicine does not provide emergency or urgent care which makes up the overwhelming majority of cases treated as in-patients in public hospitals ... Most patients admitted as in-patients to public hospitals are not suitable for care in a private hospital, including most patients admitted via A&E. That is why there are patients with top level health insurance on trolleys in public A&E departments while there are beds empty in nearby private facilities.

Co-location has been opposed across the political spectrum and the health services. It is driven not by patient need but by private profit, reinforcing the public-private apartheid in our two-tier health care system. It introduces corporate medicine on a large scale into the State and will have profound and damaging long-term consequences for the health system.

The Government is abusing the good will of the Opposition by introducing these measures to facilitate co-location. Sinn Féin therefore cannot support the Bill as it stands unless the Government removes the offending sections.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I thank the Seanad for its consideration of the Bill. People are often suspicious of that which is regarded as urgent.

On 27 May 2006, a senior departmental official, Mr. Barron, sent me a detailed note on the proposed national paediatric hospital which I will synopsise for the House. In it, he stated it has been and remains our intention that the hospital's board will be funded by the Health Service Executive rather than directly by the Department of Health and Children. His note continued that the legal adviser queried this and pointed out there are no provisions in the 1961 Act to enable the Minister, by regulation, to confer powers or impose duties on the HSE that it does not already have under primary legislation.

The note stated the Health Act 2004 contains two sections which enable the HSE to fund third parties. Section 38 allows the HSE to enter into a funding arrangement with a person or body for the provision of health or personal social services by that person or body on behalf of the executive. The legal adviser pointed out that as the new board will be building the new hospital under its statutory remit, there is a difficulty in regarding it as doing so on behalf of the executive. Section 39 allows the HSE to give assistance to a body that provides a service, similar or ancillary, to a service the HSE may provide. While at first sight this would appear to cover the new board, the legal adviser considered it was not clear it could be relied upon in this instance. The language of the section would not seem to have envisaged it being used by the HSE to fund the building of a hospital. The section refers to the HSE contributing to the expenses incurred by a body rather than, as in this case, meeting all the expenses of that body. In the final analysis, the note concluded, it would be a matter for the HSE to be satisfied in this regard.

It was on foot of that advice that the Attorney General's office became involved. Subsequently, his office believed the HSE had the power to fund the children's hospital but that there was a much larger issue. It is somewhat similar to an old bridge requiring its steel to be reinforced. The legal test is different today than the one applied in 1961. The powers of the Minister under section 3 of the 1961 Act are regarded as so sweeping and significant, one could create any body by way of statutory instrument. The Attorney General believed if this provision were constitutionally challenged, there was a doubt it would survive. He took outside advice from Mr. Maurice Collins Senior Counsel and his advice was confirmed.

There is case law in this area which the lawyers in this Chamber will find interesting. A decision in the Cityview Press case in 1979 is particularly significant. It set out the principles and policies test in regard to the validity of statutory instruments and according to the then Chief Justice, Mr. O'Higgins:

[T]he test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution.

We obtained the advice because the bodies spend more than €900 million a year and employ thousands of people. Between the two hospitals alone they would employ between 6,000 and 7,000 people if not more. The amount of money, the numbers of people employed and the number of contracts these bodies have is so significant we had to act urgently. Furthermore, the Attorney General advised we could not give public notice because although we are not aware of any litigation pending against any of these bodies, if we gave notice, one body, person or entity could litigate which would damage the public interest. That is why we set about amending this legislation as quickly as possible.

We considered marrying the implications of the Local Government Services (Corporate Bodies) Act 1971 to this legislation in an omnibus Bill but that would have delayed this legislation. Although I am not running down the bodies under the 1971 Act, they are not as significant in terms of their powers, the extent of their remit, the public moneys they spend, the number of people they employ or the contracts they have. They are important bodies but not as significant financially or legally as the other bodies. Through my officials' great work we were able to prepare this legislation. None of the statutory instruments can be interfered with once the legislation is passed. They will be legally frozen. We will need another Bill next year giving the Minister powers to establish bodies of whatever kind. We must do a great deal of work on that, take legal advice and be specific. From here on the existing bodies are frozen and none can be given new powers.

Photo of Joe O'TooleJoe O'Toole (Independent)
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Is that lack of flexibility not equally bad?

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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Yes. We must have a new Bill which will specify the kind of principles needed to guide the establishment of statutory instruments. We cannot give ourselves these broad, extensive powers to establish almost anything by way of a statutory instrument. The law develops and the legal test today is very different from that which obtained 46 years ago.

Senator Frances Fitzgerald made a valid point about disposal and lease. It was the first matter I raised when I saw the word "disposal". The Attorney General's office advises me that in a legal context disposal is to facilitate lease or whatever. None of these lands will be sold. They will all be leased.

Co-location will proceed at eight hospitals. There is no issue with the other six proceeding because either the HSE owns the land or their boards are not established under the 1961 Acts, such as St. James's and Beaumont hospitals' boards are. Those two have been advised that there is no issue. Beaumont Hospital wrote seeking my permission to proceed with co-location. It did not need my permission because this was a policy we had initiated but we believed the hospitals needed permission to lease land which we were going to give them by way of amending the statutory instrument. Given the doubt about everything under the 1961 Act, we could not do that either. We are facilitating this legislation to remove any doubt.

The Medical Council brought to our attention a problem in the Medical Practitioners Act that it is necessary under the Act to have a new register to elect a new council but to have a new register the new council must consult. The council's lawyers identified that loophole and we are availing of this Bill to close that off as quickly as possible. I agree with Senator Twomey that we should put the new regulatory regime in place which facilitates a lay majority. While this is not the be all and the end all, it is an important signal to inspire public confidence and confidence in the profession that we will not self-regulate. This is the first country in the world to do so and two others are following suit since we did it a few months ago. It will facilitate fitness to practise inquiries being held in public in normal circumstances. It will provide competence assurance for which we are providing money.

This is not a question of patients deciding whether someone is a nice or good doctor but a question of peer review. Senator Twomey was perhaps talking about the College of General Practitioners' pilot project. Dr. Neary could have selected a couple of hundred of his patients——

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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He selected 55.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I still meet his former patients. The man did much good, the story is not all bad but there is no doubt that is not the way to decide on somebody's competence to practise. We pay a heavy price for not having competence assurance. I do not wish to speak about inquiries except to say that in the past we never inquired. People knew for 25 years that something was wrong in Our Lady of Lourdes Hospital in Drogheda but nobody did anything about it. The director of nursing in Portlaoise last August drew the attention of the HSE to what was happening there. The HSE acted urgently and immediately when it was brought to its attention.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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Did the surgeon there not also write to the Department?

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The surgeon wrote to me about the need for consultants, which was acted upon, but the consultant there never wrote to the HSE to say there was something wrong with the false positives. The director of nursing did and that led to the suspension of the mammography service.

The health system over which I preside has been in place for a considerable time. It is a public hospital system in which 20% of the beds, funded 100% by the taxpayer are available only to private patients. It is fundamentally wrong that there are 2,500 beds in our public hospitals which only some people can access. Contracts of employment, however, have been signed with consultants on that basis which I cannot break without generously compensating people. Insurers have been involved in contracts with the hospitals for resources based on that fact. I want to convert those beds and make them available to every citizen on the basis of medical need. I prefer the term patients who access services on the basis of medical need to the terms "public" and "private". That has been the cornerstone of our approach to the consultants' contract. If we were prepared to allow unfettered access to private activity in our public hospitals, we would have had a contract of employment two years ago.

Almost half the elective procedures two years ago in one of the hospitals in this city were for private patients even though that bears no resemblance to the catchment area of the hospital. Only 24% of the accident and emergency activity was regarded as insured patients, yet the elective work was almost 50%. That is wrong and to deal with it we established the National Treatment Purchase Fund to take the patients who could not access these beds to be treated in private hospitals. That is crazy. It costs €300 million a year in salaries to staff these beds of which the insurers pay €74 million, so the State subsidises those beds every year to the tune of €226 million, yet only some people can access them.

The co-location initiative was put forward not because of the book referred to by Senator Donohoe, which I read only last summer, but because several doctors in Waterford, Beaumont, St. James's and other hospitals wanted to build private hospitals on the grounds. Several private hospital projects were being initiated and some private hospitals were being built away from public hospitals. I believe that having the two together, with doctors on site, is preferable to the situation that prevails in the city at the moment that can see doctors working in three, four or five hospitals.

One third of consultants have category 2 contracts; that amounts to about 700 doctors and 650 of them are in Dublin. It is not unusual for many of these consultants to work in three or more hospitals; some work in four or five. The contract allows them to do this, although it is good in terms of time management or patient management. Hospital management has informed me it may receive a call in the afternoon from a consultant saying he or she will do his or her round at 7 p.m. or 8 p.m. This means the patient will be kept in the hospital all day and junior doctors will be paid overtime to carry out the round with the doctor. These are crazy practices that are not in the public interest and not in patients' interests. I want to keep doctors on the site rather than have them driving all over the city, which seems to be the Opposition's policy.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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That is not what we are suggesting. Is the Minister going to build a private hospital for consultants?

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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The Senator said he has no problem with private hospitals that are not co-located.

Photo of Donie CassidyDonie Cassidy (Fianna Fail)
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The Senator is not allowed to interrupt the Minister during her response.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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The Minister is not thinking of the patients.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I will not engage in a partisan row, I am simply responding to the debate.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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This is how we should debate and the Minister is making up her response as she goes along.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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People have spoken of the health care system in the United States but I do not like it. It is fantastic if one has money but bloody awful if one does not. I do not favour such a system.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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That is the system the Minister is trying to create.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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I am trying to convert private beds to public use. Co-location has been very successful in Australia and in many other countries the issue of funding health services is being examined in an innovative and imaginative way. Senator Twomey is a general practitioner and general practice is a good example of co-location at work. When one enters a doctor's surgery in this city one cannot tell medical card holders from those paying fees and that is how things should be.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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I tend to them in the same building; I do not send private patients to one end and public patients to another.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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That is exactly the point I am making.

Photo of Liam TwomeyLiam Twomey (Fine Gael)
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I do not have a contract that sees me discriminate against patients.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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These facilities will be funded at no cost to the taxpayer, except for tax forgone, which is about 41% of the investment plus pay related social insurance, PRSI, and come to less than half the traditional cost of such facilities. They must make their services available to the public hospital at discounted prices. There will be a single clinical governance, training and research and development, which do not occur in the private health care system at the moment. In addition to the lease of the land, in some cases there will be profit sharing arrangements to the benefit of the public hospital

I did not foist this policy on anyone but we initiated it and the option existed for hospitals to avail of it if they so wished. Contrary to what has been said about the Adelaide Hospital Society and other religious organisations, representatives of Tallaght Hospital are very enthusiastic about this project and have often contacted me asking when it will proceed.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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That is because they did not get money for public beds.

Photo of Mary HarneyMary Harney (Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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We have not signed off on it yet. Senator Fitzgerald will be interested to know they welcomed the paediatric element and the ambulatory care centre in the statement released last week.

There are no inspection processes for the public and private health care systems at the moment, though I would love to have given the Health Information and Quality Authority a role with regard to the private sector. It has a role when the State procures public services. I cannot legally do this until there is a licensing or accreditation regime. If there are no rules by which one establishes a service one cannot send in a person to inspect it; what criteria would they apply to it? This is why we established a patient safety commission, with many patient representatives, and others, chaired by Dr. Deirdre Madden, that is due to report in June 2008. After that report I envisage legislation to establish in Ireland a long overdue licensing or accreditation regime for health provision. Anybody can build and run a hospital in this country and that is not satisfactory.

For the first time HIQA will inspect the private and public nursing home sectors. Heretofore we only inspected private nursing home facilities but not public facilities. There must be a one for all policy whether it applies to admission to the public hospital system or standards of care. There should be only one system in place and patients are entitled to expect that the Minister for Health and Children and her Department will set up a regime that guarantees quality and safety will drive service provision. They must trust that, regardless of who funds provisions, it will be monitored and enforced on the same basis.

I regret that we have rushed this legislation and admit this is never a good idea. As a legislator, I like to give a good deal of time to legislation and we rarely see guillotined motions relating to health provisions, although it has happened occasionally when it was important to establish organisations. However, this Bill has only been prepared since 26 October and went before Cabinet for approval on 4 December. This was the timeframe facing me and it would have been irresponsible of me to ignore the Attorney General's legal advice, putting at risk €900 million of expenditure, thousands of jobs for people employed in these organisations and many contracts that these organisations have. Only on the day we published the legislation, when I briefed the Opposition, did we inform the relevant organisations because we knew if we had informed them 24 or 48 hours earlier many people would have been worried. Staff would have worried about the status of their employment and contractors and patients would also have worried. Sometimes it is necessary to do things this way, as longstanding Members of this House will understand. It is not desirable but sometimes things must be done quickly to protect the public interest.

I thank the Senators for an interesting debate and look forward to Committee and Remaining Stages tomorrow.

Question put.

The Dail Divided:

For the motion: 26 (Dan Boyle, Martin Brady, Larry Butler, Ivor Callely, Ciarán Cannon, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Tony Kett, Terry Leyden, Lisa McDonald, Brian Ó Domhnaill, Labhrás Ó Murchú, Francis O'Brien, Fiona O'Malley, Ann Ormonde, Kieran Phelan, Shane Ross, Mary White, Diarmuid Wilson)

Against the motion: 19 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Pearse Doherty, Paschal Donohoe, Frances Fitzgerald, Dominic Hannigan, David Norris, Joe O'Reilly, John Paul Phelan, Phil Prendergast, Eugene Regan, Brendan Ryan, Liam Twomey, Alex White)

Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Maurice Cummins and Paschal Donohoe.

Question declared carried.

Committee Stage ordered for Thursday, 20 December 2007.

Sitting suspended at 4.50 p.m. and resumed at 5.30 p.m.