Wednesday, 18 December 2019
Regulated Professions (Health and Social Care) (Amendment) Bill 2019: Committee Stage
This is an example of politics and engagement on an issue working. A number of concerns were raised in the other House about the issue of minor sanctions. The Bill as drafted provides that so-called minor sanctions of advice, admonishment or censure will require confirmation by the High Court before they take effect, as is the case with the more serious sanctions provided for in the Bill, which include removal from the register and the attachment of conditions to registration. Concerns were raised in this House on Second Stage and during the Bill's passage through the Dáil that this measure would impose an unnecessary additional cost, delay the finalisation of proceedings and bring an additional degree of publicity to registrants receiving the most minor of sanctions. Having to go to the High Court for what in the Bill is envisaged to be a minor sanction was seen as quite an undertaking. I therefore undertook to examine this issue and, having consulted with the health regulators, the professional representative bodies and the unions, as I was asked by Senators, I have now decided to remove the requirement that the minor sanctions of advice, admonishment or censure be confirmed by the court. This has been welcomed by those I consulted, including the representative bodies. I thank Senators on all sides of this House for their constructive input on this change.
I acknowledge what the Minister is after saying. I thank him for taking on board the concerns that were raised about the cost involved for those who would have to seek a solution to the High Court and about the timeframe involved in that process. I welcome and fully support the Minister's contribution.
As with the previous set of amendments, we had quite a discussion on this here and in the other House. This is similar to the High Court confirmation of minor sanctions. Senators will recall that concerns were raised in this House about the mandatory publication of minor sanctions. It was suggested in particular that this measure would have a disproportionate impact on those receiving even the most minor of sanctions. I was therefore asked by this House to consult with key stakeholders such as those I mentioned earlier, including regulators and representative bodies. I have now decided to introduce amendments to provide that the publication of minor sanctions will be subject to a public interest test to be applied by the regulator. This will allow regulators to exercise their discretion and to publish information relating to minor sanctions only where they are satisfied that it is in the public interest to do so. Again, I am very pleased to say these proposed changes have been welcomed by the representative bodies and are considered, I think, to be a balanced approach to the treatment of minor sanctions. When this group of amendments is read with the previous group in the context of the removal of the need to go to the High Court for confirmation, plus the removal of the provision for mandatory publication of a minor sanction and its replacement with a public interest test, this is a more proportionate and balanced approach.
I welcome these amendments. I think we all know what it might be like to be in the public spotlight following, say, an allegation of medical malpractice or neglect of duty of care. I have been in the offices of An Bord Altranais several times to represent nurses, sometimes for really minor misdemeanours. However, their reputation goes before them, even if they are found not guilty or not having a case to answer. Obviously, they then find it quite difficult to expand their careers, find jobs somewhere else or increase their professionalism in the areas they have been deemed guilty of misdemeanours. I welcome these amendments because this can often be very trying. Obviously, we need to protect the public interest, but not for the sake of small errors in perhaps recording something or anything else that does not directly impact the health and well-being of the patient. Well done on these amendments.
Under Part 3, specifically section 30, an effort is under way to move competent authority status from the Department of Health to the HSE. Such a move has been raised with us by the environmental health officers. They have stated it would give huge power to their employer in determining what constitutes what an environmental health officer, EHO, is. EHOs have a wide range of further concerns about this proposed change and feel it would seriously affect their credibility and, more importantly, their independence as a profession. The chairperson of the Environmental Health Association of Ireland has expressed frustration that the association was not consulted on the movement of competent authority status from the Department of Health to the HSE. The move outlined in the Bill presents a blatant conflict of interest whereby the employer, namely, the HSE, can essentially dictate the constitution of the profession of one of its employees, namely, the EHOs. The move would also greatly diminish the independence and credibility of the profession, and it is very questionable from an industrial relations standpoint. Furthermore, a growing number of EHOs work within local authorities, including Dublin City Council, DCC. Many EHOs in Dublin City Council work in the areas of housing, public health protection, air quality management and noise control. Is it not odd that one public employer of EHOs, namely, DCC, must defer to another public employer of EHOs, namely, the HSE, to ascertain whether a potential employee is deemed qualified for the position? I ask the Minister to table an amendment on Report Stage to address this matter. We in Sinn Féin will propose our own amendment to this end on Report Stage.
I thank Senator Devine for raising this matter. The Bill, as the Senator correctly says, amends the Health Act to give me, as Minister, the power to designate the HSE as the competent authority to compare the equivalence of non-Irish qualifications to the qualifications it sets for certain health professionals. These are professions which are not regulated on a statutory basis but which are regulated for the purposes of the EU professional qualifications directive. The professions which currently come within the scope of the directive and which are being considered for transfer are those of audiologist and environmental health officer. I am aware that in recent days concerns have been raised that a potential conflict of interest might arise, with the HSE acting as both the competent authority and the employer. In light of these concerns, my Department sought the advice of the Attorney General's office. The advice received was that providing an independent unit within the HSE to sign off on the qualification approval process would eliminate any such potential conflict of interest. It is my view that the body that sets the qualification requirement is best placed to compare foreign professional qualifications against the requirement and is perhaps much better placed than the Minister for Health of the day in this regard. However, the Senator has indicated her intention to table an amendment on Report Stage, so I will undertake to engage with her on the matter in advance of Report Stage to see if we can provide further information on this.
I move amendment No. 9:
In page 47, between lines 24 and 25, to insert the following: “53. Section 7 of the Act of 2007 is amended in subsection (1)—(a) by the insertion of “and pharmaceutical assistants” after “pharmacists” in paragraph (d), and
(b) by the substitution of the following paragraph for paragraph (e):“(e) to—(i) supervise compliance with this Act, and
(ii) supervise compliance by pharmacists, pharmaceutical assistants and pharmacy owners in their respective capacities as such, with—(I) the Poisons Acts 1961 and 1977,and”.”.
(II) the Misuse of Drugs Acts 1977 to 2017,
(III) the Animal Remedies Acts 1993 and 2006,
(IV) the Irish Medicines Boards Acts 1995 and 2006,
(V) the Health (Pricing and Supply of Medical Goods) Act 2013,
(VI) any statutory instrument made under any of those Acts, and
(VII) the European Communities (Animal Remedies) (No. 2) Regulations 2007 (S.I. No. 786 of 2007),
I welcome the Minister to the House. I also welcome the members of the Registered Pharmaceutical Assistants' Association who are in the Public Gallery, particularly its chair, Ms Rita O'Brien, and all those who have done so much work on this amendment. I thank them for proposing it. I also thank the Minister for indicating that the Government will not be opposing this amendment.
I am pleased about that and grateful to many of my colleagues for supporting this amendment. Senator Devine and others have been very supportive.
I will give some brief background to the amendment. My own interest in this area is due to my mother, Rina Bacik-----
-----who is a registered pharmaceutical assistant, although she is now retired. There has been as much lobbying on this in my family as anywhere else and I am very aware of how long this has been a live issue which is of real concern to so many registered pharmaceutical assistants, of whom there is now only a contained grouping. The Minister is well are of this.
Amendment No. 9 would insert a new provision relating to registered pharmaceutical assistants into section 53. Pharmaceutical assistants have a long history and tradition. They are professionals who carried out a course which has been discontinued. The course ceased in 1982, although the profession of pharmaceutical assistant was originally regulated under the 1890 Pharmacy Act. No new pharmaceutical assistants have qualified in the State since 1986. The Registered Pharmaceutical Assistants' Association has written to Members about this issue and so they will be aware of it. There is no current pathway for qualification to this historic qualification. However, the Pharmacy Act 2007 recognises registered pharmaceutical assistants, and section 2 defines a pharmaceutical assistant as a person who is competent under the prior 1890 Act to "transact the business of a pharmacist in his or her temporary absence". Section 30 of the 2007 Act also provides for the saving for temporary cover by a registered pharmaceutical assistant and section 13(1) enables the council to set up the register of registered pharmaceutical assistants. I lay that out to illustrate for colleagues the long history and existing statutory framework for the regulation of registered pharmaceutical assistants.
Over the many decades during which this qualification existed, pharmaceutical assistants have carried out enormously important and valuable work and made a huge contribution to the work of pharmacists, many of whose pharmacies could not continue in business without the cover provided by pharmaceutical assistants. I speak from personal experience of seeing my mother working in this role. There has never been a statutory definition of "temporary absence", although section 30 of the 2007 Act provides for it and gives it a statutory basis. However, it has been interpreted relatively widely over many years and there have been various codes and ongoing negotiations with the Pharmaceutical Society of Ireland, PSI, on how to regulate it. As the Minister and colleagues are well aware, in recent years the PSI has sought to curtail the practice of pharmaceutical assistants. Proposed rules, which have not been signed by the Minister, would reduce the level of cover pharmaceutical assistants could provide, reduce the interpretation of "temporary absence" to one hour per day and limit what a pharmaceutical assistant could do, if enacted. This would have huge implications for the pharmaceutical assistants - mostly women - who qualified under this historic four-year apprenticeship, training and education pathway. They are now a contained group of about 305 persons, although there are many like my mother who are retired. We think that about 97% of people who hold this qualification are women. If passed, those rules would have a catastrophic effect on the livelihoods and earning capacities of these women as well as having a devastating effect on the many pharmacies which have relied on the cover provided by pharmaceutical assistants for so long. That is the background on why this amendment has been put forward by the Registered Pharmaceutical Assistants' Association, with the huge support of colleagues across the House.
The amendment would delete section 53 and insert a new provision into section 7 of the 2007 Act. The amendment is twofold. First, it would include pharmaceutical assistants in section 7 of the 2007 Act. That section provides for the functions of the society, which are currently to regulate the profession of pharmacy, to which the amendment would add "and pharmaceutical assistants". Second, subsection (b) of the new section 53 would substitute a new paragraph enabling supervision of compliance with the Act by pharmacists, pharmaceutical assistants and pharmacy owners in their respective capacities. It would lay out and clarify the position of pharmaceutical assistants, thereby addressing the purported reason given by the Pharmaceutical Society of Ireland as to why it appears to be seeking to curtail the work of pharmaceutical assistants. The amendment seeks to address the concerns expressed by the Pharmaceutical Society of Ireland, although it has never put forward an evidential basis for why it is seeking to curtail the level of temporary cover pharmaceutical assistants can provide.
I will not speak any further on this amendment, as I am aware and very grateful that the Minister has indicated the Government will not be opposing it. I look forward to working with him and other colleagues between now and Report Stage to see if further work can be done to strengthen the amendment. I acknowledge that the Minister is appreciative of the position of pharmaceutical assistants but this is effectively a legacy issue and we need to ensure a legal mechanism and statutory framework are in place in order that pharmaceutical assistants can continue to do their important work and provide an important service to pharmacists and members of the public, and to ensure their own livelihoods are protected as well. I am grateful to the Minister and my colleagues for their support. I am particularly grateful to the Registered Pharmaceutical Assistants' Association and Ms Anita Finucane, who drafted the amendment, for all the work they have put in to ensure this amendment received such support. It was done on very short notice because we did not think the Bill would come to us on Committee Stage until the new year.
I thank Senator Bacik for her comprehensive outlining of the issue. Senators Norris, Devine, Reilly, Byrne, McDowell, Nash and Gallagher have all indicated they want to speak on this, but I might let the Minister come in now rather than having everyone repeat themselves. Perhaps the Minister might outline his position and then everyone else can follow. The Minister can come back in at the end as well.
I will be brief as I am conscious that we are endeavouring to make as much progress on Committee Stage as we possibly can today. First, I sincerely thank pharmaceutical assistants across the country. It is important that I as Minister for Health say that, because I know the job they have done and currently do, as well as the difference they have made to pharmacies and communities in towns and villages the length and breadth of our country. I know how valued they are by pharmacists, but more importantly by the people who come into contact with them as patients interacting with our health service.Pharmacies are very much a part of our health service. Today I formally thank pharmaceutical assistants for the role they have played in our health service. It is important to say this in light of the uncertainty and stress that I know many of them have endured, as I have had the opportunity to meet a number of them on many occasions. I very much welcome those who are in the Gallery to the Oireachtas.
I thank Senator Bacik for bringing forward these amendments with Senator Devine and others across the House and note the significant support for them. As is often the case, when one engages with Senator Bacik it is hard to dispute her logic.
It can be frustrating at times but it is hard to dispute her expertise when it comes to the law and her knowledge of these matters. As the Senator knows, because I articulated such comments to her earlier, I have a concern about the practical implications of some of these amendments. Having said that, however, I do not intend to oppose them. I intend to engage with Senator Bacik and interested colleagues in my party and the Opposition between now and Report Stage to ensure we get the best possible outcome. This House is trying to ensure that those who are pharmaceutical assistants today will be able to continue practising in their career, using their qualification for their livelihood, knowing this is a legacy issue and there are not new pharmaceutical assistants being trained in Ireland and the numbers are declining year on year. They should also know that out of respect, dignity and an acknowledgement of the major contribution they make, they should be allowed to continue and finish their careers with certainty.
One of the frustrating aspects of being a Minister is that on occasion I am precluded from really saying much more about this. There is a legal case, a regulatory structure and regulations in my Department. I hope those people can take where I stand from my words of thanks and gratitude, and the fact that I do not intend to oppose the amendments today. I will engage further with Senators between now and Report Stage as to whether this amendment is the best way to achieve the same outcome. It is certainly the view of Seanad Éireann and my view that the sensible thing to do is allow the amendment pass on Committee Stage and engage further between now and Report Stage.
I very much welcome the Minister's comments. It is a very good day for the Seanad that this amendment has been accepted in principle. Pharmaceutical assistants have done great work and there has never been any dissatisfaction expressed in them. I do not see any reason they should reduce their hours. There are approximately 300 pharmaceutical assistants in the country, predominantly women in their mid-50s and upwards. If the position remained unaltered, a temporary absence would be limited to one hour, which is absolutely ridiculous and a complete and utter nonsense. It would make quite a large number of these 300 people unemployed.
I will put on the record a couple of statements from people who have written to me, as they will let the Minister know how these people feel. One states:
Please stand by us as I feel we need all the help we can get. We are all pushing on a bit but do not deserve to be dumped on the rubbish heap at this stage of our lives.
That is the language used. It is "dumped on the rubbish heap a this stage of our lives.". Another states:
Since qualifying in 1984 I have worked all my life in a pharmacy as a qualified assistant, aware of the limitations of my certificate that I may act in the temporary absence of the pharmacist but that I could not own or manage a shop on my own account. It has been custom and practice for qualified assistants to cover pharmacists' absences ranging from annual holidays [which is a hell of a lot more than one hour] to sudden emergencies, illness, death etc. This is since our qualification came into being in 1890. "Temporary absence" remains undefined by statute to this day. When the Pharmacy Act 2007 was being proposed, we attended information meetings on the subject and we were reassured that where the Act reads "pharmacists" we could take it that it covered us as well but that did not happen. So now I have no job in pharmacy and no prospect of returning to work in a job that I love and have worked at all my life. At 60 years old I am one of the youngest qualified assistants and in a few short years the qualification will be no more as we retire.
I am very grateful to the Minister for the positive attitude he has shown towards this amendment and I look forward to it being passed.
Most people have covered the purpose of the amendment. The Minister sought to sign into law new rules pertaining to pharmaceutical assistants. Sinn Féin tried to rectify this in the Dáil but, unfortunately, our Report Stage amendment was ruled out of order by the Ceann Comhairle.
These proposals extend the right to undertake continuing professional development to pharmaceutical assistants and subject them to a code of conduct, thus addressing in a more proportionate manner a perceived public safety matter related to the profession. There are other similar and ongoing issues within nursing - I refer to the introduction of or the increase in the nursing assistant grade - with concerns related to regulation, accountability, responsibility and a code of conduct in that respect. It is great to see something positive happening at this end, especially for a profession that is 90% female.
Pharmaceutical assistants are very knowledgeable as locals will go into pharmacies and chat to them, seeking advice and getting information on common or everyday ailments. A person would be guaranteed that the advice would work and not do any harm. Demand will increase on pharmacies and pharmaceutical assistants because of the paucity of GPs and what is often a long wait for GP appointments. I am delighted this Bill will go through and it looks like everybody will support it across the Seanad.
With that in mind, I will keep my contribution as short as possible. I welcome the members of the Registered Pharmaceutical Assistants Association to the Gallery. As I stand today in favour of these measures, I should say that patient safety comes first. I see nothing but improved patient safety coming from the role of the pharmaceutical assistant, who is there to help in terms of giving advice, helping with compliance and knowing patients over a long period. We have all been told how long most of these people have been practising. They have a right of expectation when they qualify and get a title that they would be allowed to practise and not be deprived of that livelihood. We have plenty of precedent across medicine, architecture and many other professions of grandfather clauses. In this instance, it might be more appropriate to call it a grandmother clause but on a serious note, had the Minister decided otherwise, I believe it would have resulted in litigation, as there is a right of expectation in the contract.
I thank the Minister for taking the approach he has. We are all aware that sometimes, when we put down amendments with the best will or intention, some tweaking must be done to get the result we want. It is very clear from the Minister and everybody here that we want to see this title maintained. While there will not be any more pharmaceutical assistants, people have a right of expectation to finish their careers with dignity, as the Minister pointed out, and with certainty, which is very important. In no way should anything we do be seen to undermine or demean the excellence of service that this title and grade of assistant has delivered in communities right across the country.
As a GP, I know that when people come to me I am not the first person they have consulted. They may have consulted mammy, granny, the pharmacist and the public health nurse before they bother coming to see me. The role we are discussing today is very important and without it, the health service would be in serious trouble.
I thank the Minister for his commitment today and answering the many phone calls during the week about this. I also thank him for meeting me and other colleagues. When contacted about this, he was very forthcoming in saying he would see what he could do about this. As there are four pharmacists and a pharmaceutical assistant in my family, I suppose at this stage I have a vested interest. Many of these people went to college, as eloquently described by my colleague, Senator Bacik.I commend Senator Bacik on putting down the amendment and on the work she has done in getting the amendment before the House today.
Pharmaceutical assistants have a valid role to play. As was said by Senator Reilly, patient safety is what we are all concerned with. These people have saved many lives. They have given great advice to people over the years. To turn around and tell them now they can only work one hour per day unsupervised makes no sense. I know a pharmacy where there is a pharmacist and an assistant in the practice. If the pharmacist gets sick, the assistant has to take over. It is not easy to get a locum at short notice. There are many knock-on implications. If this was not accepted today, it would affect the running of pharmacies. I thank the Minister.
I wish to namecheck Francis Campion Cassidy in Limerick. He has been part of the Minister's group and to the forefront in bringing this to our attention. I thank the other members of the Minister's group who are from the Limerick area. I have had considerable contact from them over a lengthy period.
Senator Bacik referred to continuing professional development. Many of the pharmaceutical assistants currently participate in CPD but making it compulsory is encouraging because it will ensure that everyone is up to speed with everything.
I thank the Minister for accepting the amendment today. It is most welcome.
I support the amendment. I welcome the pharmaceutical assistants to the House today. I welcome also the Minister's decision to accept the amendment. Finally, I commend my colleague at the Bar, Ms Anita Finucane, on her excellent drafting.
We are obligated in the House to legislate in the public interest but it appears we are legislating in the interests of Ms Bacik and other family members of all of us. I am jesting; this is absolutely in the public interest.
In fact, I have some proximity to pharmaceutical assistants myself. Some people say the Seanad is not representative. I find that bizarre given the testimony from Senator Byrne. It seems we all have relationships with pharmaceutical assistants and we are only too well aware of the important work they do in our community.
There has been extraordinary frustration among members of the Registered Pharmaceutical Assistants Association in recent years since this issue first came to light. I took a keen interest in it from day one. I thank the Minister for his pragmatism and the perspective that he articulated today.
The amendment is tightly drawn but if we can secure the same outcome with improvements to an amendment on Report Stage, I know Senator Bacik, myself, as a co-sponsor of the amendment, and many others would be happy to work to try to achieve the objective.
We know the strain our acute medical services are under. We know too that it has been the ambition of successive Governments to ensure pharmacists and the pharmacy sector can contribute more to community-based interventions and primary care interventions in terms of wellness and well-being and the general health of our population. To remove a cohort of highly professional qualified and experienced individuals from this sector would have been disastrous for healthcare in this country.
Senator Reilly is right. We have a long history of grandfather clauses in professional titles, including in architecture, for example. In a previous life I worked with the Royal Institute of the Architects of Ireland before I came to these Houses. We have a tradition and history of doing that. That is the pragmatic thing to do. I thank the Minister. I look forward to working with him on Report Stage. We will ensure the Minister delivers on his commitment - I know that he will. We want to work with him in the interests of the pharmaceutical assistants and all who depend on pharmacies throughout the country, which is everyone.
I welcome our friends to the Gallery this afternoon. I wish to put on the record that Fianna Fáil was supportive of the pharmaceutical assistants. I know other members of our party have been in contact with me on the matter. Senator Davitt and yourself, Acting Chairman, were keen to ensure that we supported the amendment.
I compliment Senator Bacik on her contribution and on her work in putting down this amendment. She eloquently laid out all our thoughts on this particular issue.
I was scratching my head in many ways when trying to see where this surfaced from and what the motivation behind it was. As outlined previously, I understand only 300 people are involved throughout the entire country. As someone else said, most of them are female. It was disappointing for them to think that in the autumn of their careers their professionalism would be down-graded by this regulation. I am delighted that common sense has prevailed and that the Minister is now accepting the amendment. I am happy about it and I look forward to it passing on to the next stage.
These are essentially technical amendments. I am proposing amendments to the sections of the Nurses and Midwives Act and the Medical Practitioners Act which enable the relevant bodies to make rules.
The Bill as passed by the Dáil inserts a new subsection (15)(c) into section 20 of the 2007 Act. Section 20 of that Act deals with membership functions and procedures of the committee and council and sub-committees of the council. The new subsection provides that sub-committees of the fitness to practise committee may perform any of the functions of the committee as if they were the fitness to practise committee.
Section 11 of the Act sets out the powers of the council to make rules. I am concerned that the rule-making power of the council does not reflect the breadth of functions intended by subsection (15)(c). I propose replacing the wording "into different groups founding a complaint" with the wording "into complaints referred to that committee". I am also making an identical amendment to the Nurses and Midwives Act. These are essentially technical amendments.
These are simply typographical or minor drafting errors in the Bill, the majority of which relate to the internal numbering of section 71 of the Medical Practitioners Act 2007. They are also intended to flag that as a result of Committee Stage it may be necessary for me to introduce further correcting amendments on Report Stage.
This also is effectively a technical amendment. Section 38 of the Medical Practitioners Act 2007 addresses areas that overlap between the practice and other health professions. Under existing legislation where a person holds a dual qualification in medicine and in another profession, for example, dentistry, this section allows that person to lawfully practice those areas of dentistry which overlap with medicine without having to be on the register of medical practitioners. Section 37 provides that a person must be registered with the Medical Council in order to practise medicine in the State. This amendment, recommended by the Office of the Attorney General, clarifies that the requirements of section 37 do not apply to a person registered as a dentist, nurse and so on, who is practising medicine when carrying out tasks in the context of other specified health professions.
125. Section 73 of the Act of 2007 is amended by the substitution of the following subsection for subsection (2):
“(2) Where the Council has decided to impose a sanction on a registered medical practitioner (other than a sanction arising from measures referred to in section 71(2) or 71A(2)), the Council shall give notice in writing to the practitioner of the practitioner’s entitlement, under section 75, to appeal to the Court against the decision.”.”.