Seanad debates

Thursday, 21 November 2019

Regulated Professions (Health and Social Care) (Amendment) Bill 2019: Second Stage


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

10:30 am

Photo of Jim DalyJim Daly (Cork South West, Fine Gael)
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I am pleased to have the opportunity to address the House on the Bill, which was initiated in the Dáil last February and passed on 6 November. The principal aim of the Bill is to improve registration and fitness to practise processes in the health professional regulatory bodies and to amend their Acts in accordance with the modernised professional qualifications directive.

While the Bill was widely supported by the parties in the Dáil, Deputies raised concerns on Committee and Report Stages about the mandatory publication of all sanctions and the additional cost and publicity associated with High Court confirmation of minor sanctions. On Report Stage, a commitment was given to review this and I am pleased to advise that significant progress has been made. Officials from my Department have been liaising with the unions, the professional representative bodies and the health regulators. While these discussions have not yet concluded, proposals are at an advanced stage and I intend to introduce a number of amendments on Committee Stage. As Senators will appreciate, I must balance the necessity to achieve public protection and enhanced transparency in professional regulation with the legitimate concerns of registrants who receive a minor sanction. I am confident that this balance can be achieved and I look forward to discussing the finalised amendments in more detail with Senators on Committee Stage.

This is largely a technical Bill containing seven Parts and 179 sections. The Bill amends the five health professional regulatory Acts, which are the Dentists Act 1985, the Health and Social Care Professionals Act 2005, the Pharmacy Act 2007, the Medical Practitioners Act 2007 and the Nurses and Midwives Act 2011. Many of the Bill's provisions are intended to be common across the five regulatory Acts. The Bill also makes some minor amendments to the Health Act 1953, the Health Act 2004, the Health Identifiers Act 2014 and the Children and Family Relationships Act 2015.

The Bill contains a number of measures intended to improve and streamline the fitness to practise procedures employed by the five regulators. With the increased mobility of health professionals, the importance of maintaining patient safety, while supporting professional mobility, is ever important. Additional grounds of complaint are being introduced. These additional grounds will mean that a complaint can be made against a person who has a restriction or prohibition on the provision of one or more than one kind of health or social care service in Ireland or in another jurisdiction. This will mean, for example, that a complaint can be made against a person who has had a restriction or prohibition on his practice as a doctor, but who may be practising in the State as a dentist by virtue of his separate qualifications and registration in that field.

Amendments are also being made to the fitness to practise provisions of the five Acts to provide that regulatory bodies can use disciplinary information from other countries in fitness to practise cases in Ireland. Currently, the modernised professional qualifications directive provides important mechanisms for alerting health regulators across Europe when a sanction has been applied. However, under the directive there is no obligation on third countries to share information on restrictions or prohibitions on the practice of health professionals in their jurisdictions. It is important that the regulators are aware of such restrictions or prohibitions on the practice of any registrant or applicant for registration, including those from third countries. This will be especially important in respect of the UK post Brexit. The Bill, therefore, provides that all regulated health professionals will be required to make declarations at registration and annually thereafter regarding any restrictions or prohibitions on their practice in this State or another state, as well as any relevant proceedings that are pending or in process. It is important to note that the health regulators have been actively engaging with their UK counterparts to ensure that robust mechanisms will be in place for the exchange of information post Brexit, and the Bill includes provisions to ensure compliance with data protection legislation.

The five Acts also provide that information on sanctions is notified to the Minister, the HSE and the employer, where known. The Bill is removing the requirement for the Minister to receive such notifications, as the Acts specify no function or legal powers associated with receipt. Notification to the HSE and employer will remain. Currently, information on sanctions imposed by each of the five regulators is published if the regulator is satisfied that publication is in the public interest. The Bill sought to change this and, when initiated, it provided that all sanctions imposed in the State would be published. Concerns were subsequently raised by the health professions' representative bodies about vulnerable registrants and on Committee Stage an amendment was introduced to provide for publication unless the court determines otherwise. The provisions on the publication of sanctions continued to be a matter of debate during the Bill's passage through the Dáil and, as I indicated earlier, it is intended to address these in detail on Committee Stage.

The Bill includes a number of amendments intended to increase the effectiveness of the fitness to practise processes. Currently, under the Medical Practitioners Act 2007 and the Nurses and Midwives Act 2011, complaints are directed to the preliminary proceedings committee for investigation, and progress on investigations is dependent to an extent on the scheduling of committee meetings. To expedite investigations, the Bill provides that complaints will be made to the chief executive officer, CEO, and will be investigated prior to being referred to the preliminary proceedings committee for decision. This will shorten the time to process complaints and will mean the preliminary proceedings committee's time can be used more efficiently in making decisions on complaints. This will be of benefit to the regulator, the complainant, the registrant, witnesses and, ultimately, the public.

Another important provision is the separation of qualification recognition from registration in those Acts where it is not currently provided, namely, the Dentists Act 1985 and the Medical Practitioners Act 2007. These Acts currently provide that a professional whose qualification has been recognised must be registered. Separating qualification recognition from registration will allow these regulators to introduce language and fit-and-proper person checks prior to registration and will enable the regulators to take the appropriate action where these checks are not satisfactory. Additional changes provided by the Bill include an amendment to the Health Act 1953 to remove specific requirements regarding the composition of interview boards for medical consultant posts. These requirements are an unnecessary burden and do not lend themselves to efficient recruitment processes.

A number of amendments were made to the Bill during its passage through the Dáil. These include changing CORU's fitness to practise process from three stages to two stages to bring it into line with that of the other health regulators. This additional step generates a significant cost and delay and places an administrative burden on the regulator. Its removal will significantly improve the fitness to practise sanction process for CORU registrants.

A Committee Stage amendment was also sought to create an eligibility for registration on the specialist division of the Medical Council's register by a small cohort of medical practitioners who were correctly appointed to consultant posts prior to 2008. These medical practitioners, for various reasons, did not avail of a grandfathering provision provided for them to register in the specialist division when the Medical Practitioners Act 2007 was enacted. The amendment provides that a consultant must have been correctly appointed to his or her post under the terms in operation by the HSE in 2008 and must satisfy competency requirements for registration by the Medical Council. This amendment benefited from close examination on Committee Stage in the Dáil and I am pleased to advise Senators that suggestions proposed by the Opposition spokespersons were taken on board and agreed on Report Stage.

Following publication of the Bill, concerns were notified to my Department about some possible unintended consequences relating to the composition of committees of the Nursing and Midwifery Board associated with the Bill's drafting. These were addressed by amendment on Committee Stage in the Dáil. The Bill was also amended to give the Minister the power under the Health Act 2004 to designate the HSE as the competent authority under the professional qualifications directive to compare the equivalence of non-Irish qualifications to the qualifications the HSE sets. This applies for certain health professions which are not regulated on a statutory basis, but which are regulated for the purposes of the directive. The professions which currently come within the scope of the directive are those of audiologist and environmental health officer.

These are the Bill's key provisions and the changes since its initiation in the Dáil. I look forward to discussing the Bill in more detail on Committee Stage. I commend the Bill to the House.

Photo of Robbie GallagherRobbie Gallagher (Fianna Fail)
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I welcome the Minister of State. Fianna Fáil will support the Bill. It seeks to offer patients reassurance by allowing public access to all sanctions handed down to medical practitioners. This is to ensure the public has access to information about disciplinary sanctions that have been imposed on doctors, nurses, midwives, pharmacists and other regulated health professionals. The Bill will also give health professionals the right to appeal minor sanctions. The measures to speed up processes to recruit consultants are also welcome, but the main barrier to tackling the 479 consultant vacancies is the discriminatory pay practices against post-2012 recruits.

The Bill amends the five health professional regulatory Acts, particularly with regard to fitness to practise and registration. At the most basic level, the Bill will ensure clinicians will inform patients of previous professional issues, which is to be welcomed. It will ensure that doctors, nurses, midwives, pharmacists and other health professionals will, by law, have to supply details of sanctions imposed on them. It also means that any allegation of wrongdoing in another country can be used as evidence in fitness to practise proceedings in Ireland. Crucially, patients will have more access to information on the people treating them as all the details will be made public. Patients will also be able to look up the history of their treating clinician, which is very welcome.

There has always been an imbalance of power in Ireland, and elsewhere, between doctors and patients. Sick patients are vulnerable and worried. They attend medical professionals whom they hope have all the information and knowledge. It is a completely unequal relationship. In some cases, the doctors involved have been struck off in other jurisdictions and should never have been practising in this country. In other cases, the doctors involved had numerous complaints made against them over many years. This tiny number of people were going about their business destroying people's lives.These people found out afterwards that there had been complaints against these doctors for decades but nobody ever knew and they had no way of finding out. We cannot be sure that, if people knew in advance, they might not have gone near those doctors in the first place and the doctors would have been removed. Thankfully, this is only about a tiny number of people but a tiny number of people can cause extraordinary pain.

Nonetheless, I am glad the Bill provides for clinicians to appeal against minor sanctions and this aspect can be further improved. My understanding is that they must go to the High Court, which is a pretty high bar for anyone and will include God knows what legal expense along the way. Is it possible to find a way for such appeals to happen with a lower bar than the High Court, although still with the highest level of scrutiny? I believe the High Court is too burdensome. Let us do that but let us also find a way to ensure the money and scarce resources that should be spent on healthcare is not flittered away on the legal profession. It is critical that scarce resources are spent where they should be spent, which is on the patients, as I am sure the Minister of State will agree.

Photo of Maire DevineMaire Devine (Sinn Fein)
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The Bill relates to the transposition of an EU directive on the recognition of professional qualifications, which was agreed under the Irish Presidency of the European Union in 2013. It is important that we transpose these directives, especially with the looming prospect of Brexit, as referenced by the Minister of State, and that we provide the mechanism for the recognition of professional qualifications. Within the context of the recruitment and retention crisis in our health services, this will be all the more important given the system and staff are under stress and there are staff shortages. Therefore, we are looking to employ many more people from within the country and outside it, and we need to make sure they are who they say they are.

When working in my profession, I had experience of some difficult situations where unions and staff were involved. It can be quite traumatic within a smaller setting if somebody is believed not to be professionally qualified but has slipped through the net. I am probably talking about one person in tens of thousands but it has happened. Hopefully, we will get the correct professionals to do the right job in a very professional manner.

I recognise our colleagues in the Lower House have done a lot of work on this Bill and I welcome the joint effort. The strengthening of registration and regulation of health professionals gives the roles, and the people who do them with such integrity and service, the respect they deserve. I am happy to support this Bill, although I have a few points to raise and I would appreciate a response from the Minister of State.

During the Bill's progression through the Dáil, there was major debate around the publication of minor sanctions. I know many representative bodies are not happy with the automatic publication of minor sanctions and, obviously, this is a big change as it does not happen currently. The worry is not so much about the increased transparency but there is a balance to be struck between public interest and protection of a worker's privacy. I represented people at fitness to practice hearings from a trade union perspective. It was little old me and the nurse against a boardroom-full of An Bord Altranais people with a barrister and a lawyer for each individual on the board. Facing that, there was little old me and I did not know too much about the law, although I was willing to fight for somebody in order to ensure due process. I do not make a comment on whether I believed that person has done right or wrong and that is up to the fitness to practice hearing. However, it does seem overwhelming. If we allow these minor sanctions to be publicised, we know what trial by media is like, including social media and the ordinary media such as the newspapers. Even if the person is found not to have infringed on professional practice and there is no case to answer, there is always the reputational damage within the medical circle, which is small and cosy enough for a lot of that stuff to go around.

There needs to be room for more discretion where publication might not be in anybody's interest and we need to define what those areas would be. Has the Minister of State considered this point since the debate in the Lower House? I may table amendments at a later stage and we can perhaps work together on that.

I take the opportunity to reference the plight of professional pharmaceutical assistants, who face an uncertain future due to changes to be brought forward by the implementation of new rules restricting the amount of time they can cover for a temporarily absent pharmacist to one hour per day. The livelihood of 248 women, mostly in their 50s, with an average of 35 years' experience, are at risk because of these proposed new rules. The best way to address the concerns of the professionals is for them to be registered by the relevant body and to have oversight and regulation by that body, which means any issues can be overcome. The relevant bodies have maintained they could not properly regulate for assistants because of the 2007 Act as it stands, so the inclusion of amendments to the Bill could rectify the assistants' position under the Act.

Under section 29 of the Bill, which amends section 38 of the Health and Social Care Professionals Act, the title of "physical therapist" is effectively left unprotected until December 2021. I note the Irish Society of Chartered Physiotherapists has been in contact with the Minister of State's office on this matter and has expressed its frustration and concern at the title being exposed for such a length of time. There are very few people, it would seem, who have yet to register with that Physiotherapists Registration Board. Could those people be reached out to directly and instructed to register with the board as soon as possible so the title can be protected in a much shorter time than slightly more than one year? All those entitled to register thereby would be re-registered. A small bit of outreach work in this regard would ensure all those who need to register with the board as physical therapists could do so within a short time. Will the Minister of State consider this? Such outreach work could be co-ordinated by the necessary organisations and the Department.

In the Dáil, Deputy O'Reilly tabled an amendment on Report Stage which would ensure that, as part of preliminary proceedings or the fitness to practice committees, there would be a member of the profession on which the adjudication is being made. For example, there would be a nurse where the adjudication was on a nurse and a midwife where the adjudication was on a midwife. I have just related my story of what seemed to be the little people going in to an execution, with an overbearing jury of highly trained, well paid legal individuals advising each individual member of the board. It seems unbalanced and lopsided, and if a person felt they had a small friend on one side, or not even a friend but somebody who understands the mechanisms of what nursing is on a day-to-day basis and the context of alleged misdemeanours or unprofessional acts, it would be more balanced and fairer. The Minister gave assurances this would be dealt with. I wish to reiterate the point and ask if he has worked on this issue since the debate in the Lower House.

Overall, the Bill is to be welcomed. I am happy to see this work progress and I look forward to working with the Minister of State to get the Bill through Committee Stage and the remaining Stages over the coming weeks. The priority is safety and safe practice by all healthcare staff, which is paramount for those seeking treatment in our health services. While I cannot emphasise that enough, we also need due process and fair practice when dealing with the situations and issues that may arise.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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I welcome the Minister of State and thank him for attending and for this important legislation. It is about ensuring we have enhanced scrutiny, transparency and public protection. All of us who have dealt with the health system understand the importance of what we are doing here in terms of patient safety, access to information and records, and sanctions. There is a balancing of rights that we have to get, which is a fair point by Senator Devine.It is about ensuring there will be recognition. This is very important legislation which is about ensuring there will be standards. It is about public safety and access to information. It is also about people being able to have confidence in the health system. If we look at the bodies about which we are talking such as the Nursing and Midwifery Board of Ireland, the Dental Council and the Medical Council, we can see that they are important. If we are honest, many of us are contacted by health professionals who have issues with registration and other matters and the Medical Council. It is about publicising information. If a doctor has a conviction in a different country, I do not see anything wrong with making that information known as people have a right to information. Senator Devine has said we must take into account the need for privacy in the case of a minor misdemeanour or event. We must be careful because we cannot whitewash everybody, but it is about ensuring information will be provided as we are all for transparency. It is also about ensuring people will have confidence. Giving regulatory bodies such as the Nursing and Midwifery Board of Ireland and the Medical Council a role in that regard is important. Equally, we should look again at the role and remit of the competency committee. I welcome the commitments given by the Minister, but there is a need for more regulation in dealing with certain issues. I will speak next week about cosmetic surgery. During the course of the autumn term Senator Lawless emailed some of us about Athletic Rehabilitation Therapy Ireland and the certification of its members in the context of being available for work. We can look at that issue on different Stages. The Bill is a good one which I am happy to support. I commend the Minister.

Photo of Jim DalyJim Daly (Cork South West, Fine Gael)
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I thank Senators for their contributions. I have noted the points made by them. It is difficult to address them satisfactorily on Second Stage. As they will appreciate, they are more for consideration on Committee Stage. We have had these debates on Committee Stage in the Lower House.

Senator Gallagher spoke about the appeals process. My concern is that it would introduce another layer on the journey and lengthen it because, ultimately, in having an in-between layer of appeal matters would end up being challenged and going to the High Court and the Supreme Court, if necessary. I am concerned about lengthening the period of time involved in the vindication of somebody's good name. It would be an additional layer of cost. The difficulty is if the substantive issues involve points of law, they must be appealed to the court. I am willing to engage further with the Senator and his party in both Houses between on the point, but I wish to flag my concerns in that regard.

I am familiar with the three issues raised by Senator Devine involving pharmacists and psychotherapists and the publication of information. We will continue our engagement with her, her party and Deputy O'Reilly. I know that my officials have been engaging with her and the representative bodies and I am very confident that we can resolve all three issues to our mutual satisfaction and to achieve what we are trying to achieve.

I take on board the Senator's point about getting the balance right. That is what we are struggling with. We do not want information on a tiny misdemeanour to be publicised and published willy nilly. We want to provide safeguards and for discretion at the time of appeal as to whether the information should be published. We can beef up the system in place in that regard and I am sure we can provide comfort for the Senator on that front.

We will continue to consider the issue of pharmaceutical assistants. The interpretation of "physical therapist" is causing more concern than is necessary, but through dialogue with the Minister, officials, the Senator and the representative bodies, we can allay the fears expressed. It will be easier to move back and forth on Committee Stage when the Senator can question me further. I know that she supported some of the points made.

I thank Senator Buttimer for his comments. I acknowledge the constructive approach taken by all parties. Each Senator has acknowledged that this is genuinely important legislation. I know that we say that about lots of items of legislation, but this legislation will make the difference between life and death when something goes wrong. Let us not make no bones about it. As people are also entitled to their good name, we intend to get the balance right to ensure we provide protection for employees in the health service who are delivering a fantastic healthcare service. I thank Senators for their co-operation and the contructive approach they have taken to the Bill. I look forward to engaging further with them on Committee Stage.

Question put and agreed to.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Next Tuesday.

Committee Stage ordered for Tuesday, 26 November 2019.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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When is it proposed to sit again?

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Next Tuesday at 2.30 p.m.

The Seanad adjourned at 1.15 p.m. until 2.30 p.m. on Tuesday, 26 November 2019.