03 April 2007
Dr. Henry: I welcome the Minister. This is an important Bill not only for the public but also for members of my profession. As the Minister stated, the protection of the public is given prime importance in the Bill, but in regulating the medical profession it is also important to ensure it has confidence in the way it is being regulated.
As the Minister is aware, there has been much criticism of the legislation and she has entertained a considerable amount of it since the heads of the Bill were published six months ago, for which I am very grateful. Like other Members, I am still hearing criticism of it.
The changes to the way the registers are to be set up is one of the most important aspects of the Bill because the registers will show whether people are doctors, trainees, specialists and so on. In the past people could claim to be specialists without having any specialist training and I am glad that has been altered.
I welcome the changes in regard to practitioners from outside the country, particularly doctors with refugee status who, in many cases, find it impossible to get letters of good standing from the countries in which they were registered. It is to be welcomed that cognisance is being taken of offences committed and judgments against doctors in other countries because this has been a cause of great concern not just to members of the public but also to members of the medical profession.
The Minister decided a long time ago that the various professional bodies would be supervised by councils with a lay majority. I have no great problem with this proposal but it will mean a small number of medical practitioners on the council. Even if people are co-opted onto the various committees, there will be inordinate delays as such people are only permitted to sit on one committee at a time.
Senator Feeney served on the Medical Council and will be aware that one of the main complaints about the fitness to practise committees of the current Medical Council was the inordinate delay in bringing forward complaints. I doubt if this situation will be much helped by having such a small number of people on the council.
The Minister is correct in stating that she is not appointing and dismissing the whole council and very strict rules are in place. Only five people will be appointed by the Minister and there is always the concern that these will be political appointees such as friends because this Minister will not always be the office holder, even though we may have her for another few years. Future Ministers might be more prone to making political appointments. I refer to Deputy Boyle's Bill which he has just published in which he proposes various vetting criteria for people who are being nominated for membership of statutory bodies.
I am pleased with the Minister's proposals for the establishment of committees. I was delighted that she has brought mediation into the picture. This is also a part of the Pharmacy Bill and it is a good idea. It is often the case that once the situation is explained and apologies are extended, if that is what is required, it is not necessary to bring the complaints procedure any further.
The Minister suggests that the fitness to practise committees dealing with complaints should be held in public. I expressed my concerns about this proposal during discussion of the Pharmacy Bill and I and other doctors are of the opinion that if public hearings are proposed, it will prevent many people from coming forward with complaints, especially complaints which may be of a sexual nature. I have urged people in two or three cases to complain about the treatment they received because I thought the type of examination they had been given was unnecessary for the procedure for which they were being assessed, but I could not persuade them to go forward even when the complaints proceedings were to be held in private.
I have had interesting correspondence with a woman general practitioner who has been prominent in the area of medical ethics and she has expressed the same concerns. The Minister is aware of complaints against a medical practitioner who had videotaped women whom he was examining. This man went as far as the courts to try to have the proceedings held in public. In even the most atrocious cases of rape people are not inclined to come forward. Those who should complain do not do so.
All the committees except the fitness to practise committees are to have a membership with a majority of doctors. The Minister will need to recruit a fair few doctors. I do not think anyone could object to having a lay majority on the fitness to practise committee because the lay members have been far more lenient and forgiving than peers of the person against whom a complaint is made. The standard of proof required is that of reasonable doubt in the fitness to practise procedure. Will this continue to be the standard because the Bill does not state whether it will? The new council will make its own rules but it is possible that the new council will want to change the standard to one of the balance of probability which requires much less evidence against the person. It might be preferable to follow the courts and have the standard of proof of reasonable doubt but the Minister has not made these suggestions in her legislation. This will be a decision for the council but the rules will be considered by the Minister.
The Minister referred to the Neary case both in this House and in other fora and commented on the reticence of those who worked with Mr. Neary in Our Lady of Lourdes Hospital in Drogheda to come forward and make complaints about the serious malpractice. One of the defences for that dreadful malpractice of Caesarian sections was that the man was doing what were described as compassionate hysterectomies done to sterilise a woman rather than sterilisation by means of tubal ligation which was not allowed within the ethos of Our Lady of Lourdes Hospital. Even after reading Judge Harding Clark's report, I am not sure about the composition of the hospital board or who or what body decided on the rules for the hospital. It is certain these rules were subscribed to by those who worked there and this led to serious consequences for many young women who had unnecessary hysterectomies. That anyone could even carry out such a serious procedure and afterwards explain it was carried out because tubal ligation was forbidden, is shocking.
Those obstetricians who supported Mr. Neary and the court cases to date show that what were described as compassionate hysterectomies were being carried out in other places besides Our Lady of Lourdes Hospital. Such hospitals had lay boards so it was not the medical profession which was laying down these ethics. I would be very careful about considering that lay members would be somehow more righteous than members of the medical profession.
I remember one hospital in particular where the number of hysterectomies carried out to cure menorrhagia, excessive bleeding at the menses, would mean that half the women of Ireland must have been exsanguinating. This practice may be ongoing because there are hospitals where it is difficult if not impossible to carry out sterilisations, even though this is a perfectly legal procedure. These hospitals have lay boards and it must be questioned whether compassionate hysterectomies are still being carried out. I refer to the old days when symphisiotomies were carried out and when Caesarian sections were being carried out, the obstetrician would be inclined to perform a sterilisation or the woman might resort to contraception to avoid another Caesarian section. I do not believe the medical profession is incapable of being its own ethical watchdog. I understand this is the only country which will have a lay majority on its professional regulatory body.
All Members and the Minister have received letters implying that abortion or embryonic research could be introduced by appointees to the Medical Council. Some of them had some kind words to say about me and indicated that I was their last hope in terms of having this stopped. However, the latter is not true because the Minister made it clear in the legislation that she or her successors will not give directions with regard to doctors' ethics, performance, etc. I do not know who decided that this would be a good reason for not having a lay majority on the board. As far as I am concerned, it has nothing to do with it.
I am much more concerned about the relationship between the council and the Health Service Executive in respect of education and training. I am also concerned about the council's position vis-à-vis the promotion of Government policy. If medical practitioners are of the view that a policy is wrong, they have an ethical obligation to say that this is the case. It is difficult to see how anyone could state that there might be something wrong with their doing so.
On the relationship between the council and the Health Service Executive in respect of education and training, the legislation does not indicate in clear terms how they are supposed to work together. The Health Service Executive will be obliged to service the health service, as well as ensuring that education and training take place. If push comes to shove, the services will have to be given priority. As a result, there may be a diminution of education at trainee level. There may, in particular, be a diminution if there is any difficulty regarding funding. Provision should have been made in the legislation in respect of funding for study leave, training courses, etc., for those who will be in training.
There is nothing in place to follow the Postgraduate Medical and Dental Board. The universities that have medical schools - of which there are going to be even more throughout the country - will only be represented by two people on the main council. I would have preferred it if the bodies that provide training and postgraduate education had been dealt with under the legislation and given representation on some sort of committee. Specific provision should be made in this regard, rather than merely leaving matters to the council. The bodies, and places where training will take place, will be inspected. However, the inspectorate is only loosely described and I would have preferred if a more structured provision had been brought forward in this regard.
When the Postgraduate Medical and Dental Board is disbanded, its assets will be taken into the great maw of the Health Service Executive rather than being ringfenced in order that there might be something in place as regards education and training going forward. This is an extremely important area and for as long as I can remember there have been difficulties with it in respect of money.
In the context of competence assurance, I am delighted that assessments will be carried out every five years. From where will the money regarding such assessments, etc., come? Those at the Health Service Executive will have to have their wits about them in order to assure that they will be able to facilitate the maintenance of professional competence because direct provision in that regard is not made in the Bill.
I am concerned with regard to the position in respect of appeals against judgments handed down by the fitness to practise committee. There will be no appeal against anything less than "an advice or admonishment, or a censure, in writing". When the Select Committee on Health and Children debated Committee Stage of the Bill, the Minister informed Deputy McManus that this is because of a case before the courts. This brings us back to the Neary case once again. I fail to understand how legislation relating to the future can affect a court case being judged on the basis of existing legislation. The Minister indicated to the select committee that she had received legal advice on this matter and is awaiting the determination of the case in question. She also indicated that it will have an impact on other legislation. When replying, perhaps the Minister will expand on the explanation she provided to Deputy McManus. It is a matter of extreme concerns that if a person is given a minor admonition or advice, he or she will not be able to appeal against these or in respect of the facts brought forward in the case.
The legislation has been long awaited. I hope it will be as useful as the Minister hopes it will be.
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