Thursday, 27 July 1961
Seanad Eireann Debate
Minister for Health (Mr. MacEntee): Ministers for Health have from time to time arranged for the establishment of limited liability companies under the Companies Acts to provide health services which, because of their nature, the territory over which they were operated or some similar cause, could not be provided conveniently and economically by a local health authority as at present constituted. The  practice has been for the Minister to invite a number of individuals to form themselves into a company to perform functions specified in a general way by the Minister. After incorporation, the company would provide the required service in accordance with its memorandum and articles of association as agreed with him.
Usually, the members of these companies and their boards of directors were all nominated by the Minister who invariably appointed the chairman. The bodies established under this procedure are the Medical Research Council of Ireland, the National Blood Transfusion Association, the National Mass Radiography Association, the National Organisation for Rehabilitation, the Dublin Rheumatism Clinic and St. Luke's Hospital, all of which are now operating. To a varying extent, depending on the method of financing the particular company concerned and the sources of its funds, the Minister, through their several memoranda and articles of association, exercises a degree of control over the financial and other operations of all these bodies I have mentioned.
All these bodies have contributed, and continue to make a considerable contribution, to the development of the health services. I must emphasise, therefore, that the introduction of this Bill is not to be taken as reflecting on them or their work. Nevertheless, it cannot be gainsaid that the use of the Companies Acts for the purpose which I have described was not contemplated by those who framed the Companies Acts. Company law is designed to facilitate individual persons who, for industrial or commercial purposes, may wish to form themselves into a corporate entity with limited liability. The Companies Acts were not drawn with a view to the use to which they have been put in the fields which I have outlined.
The acceptance of that opinion makes it necessary to provide a more appropriate statutory basis for the provision and administration of that type of health service which cannot be readily placed within the framework of our existing scheme of local government. The Bill now before the House is designed to provide this more  rational, and, I may say, more consistently constitutional, procedure for setting up corporate bodies to administer health services. Under Section 3, the Minister for Health will have power to make an order setting up an organisation to provide a special type of health service. A body so set up will be a corporate entity with all the usual powers of a corporation to enter into contracts, employ officers and servants and so on. The entire procedure will be simpler, speedier and less expensive than the current practice of using the Companies Acts, which, as I have said, were not designed for this purpose. There will be an additional advantage which I shall mention in connection with Section 10.
Section 4 relates to the membership and staff of a corporate body established under the Bill. Special provision has been made under which the machinery of the Local Appointments Commission may be used in the making of appointments to offices under the body. It is proposed also that the code of superannuation applicable to local officers may be applied, with such modifications as may be necessary, to such a section. Furthermore, under the section, if an officer of a corporate body transfers or is transferred to the service of a local authority, service reckonable for superannuation purposes under the corporate body may be allowed in calculating superannuation benefit under the local authority in due course.
Sections 5 and 6 contain detailed provisions in relation to the functions of a corporate body and its administration. Section 7 is included to meet circumstances under which a body established under the Bill may no longer be needed, so that its dissolution becomes desirable. The dissolution of a body might be occasioned by the fact that the service to provide which it had been set up was no longer required, or by the fact that the service had expanded to the extent that it had become practicable to require that each health authority should provide and administer its own such service. With these possibilities in mind, the section provides that, where a corporate body is dissolved, its assets,  liabilities, officers and equipment may be transferred to other corporate bodies or to local authorities, as the Minister might consider appropriate.
There seems to be a certain amount of misconception about Section 8. Consequently I would like to emphasise that it is not intended that any of the existing companies which I enumerated earlier will automatically become a corporate body under this Bill. All Section 8 does is to provide a means by which a company can become a corporate body, without having to go through the complicated formalities of the Companies Acts. This, however, can only happen where the Company passes the necessary formal resolution prescribed by subsection (2) of the section.
Section 9 provides for meeting the expenses of the Minister in administering the Act. These expenses should be nominal as they will cover only the administrative costs involved in the making of establishment orders. Section 10, in addition to providing for the laying of Orders under the Act before the Houses of the Oireachtas, requires that a copy of each Order will be sent to each member immediately after it is made. There is also provision for annulment, within seven sitting days after presentation. In other legislation this period is 21 days but Senators will readily appreciate that if a corporate body established for a particular purpose is to get on with its job, it cannot do so if the threat of dissolution by reason of annulment of the relevant establishment order is hanging over its head for the long period which might be represented by 21 sitting days. Under the new procedure the making of the Order will have been brought immediately to the notice of every Deputy and Senator and the period of seven sitting days is not an unreasonable time in which to enable a Senator or a Deputy to make up his mind to move to secure annulment if he wishes to do so.
I mentioned earlier, in relation to Section 4, that there was a merit in the proposed procedure for establishing these special bodies other than convenience, speed and lower cost.  It is that under the existing dispensation a Minister for Health can set up any company he thinks fit for the performance of any health function and it is only fortuitously that the fact would come to the notice of members of the Oireachtas. Under the proposed procedure, he must not alone make the Dáil and Seanad, as entities, aware of what he is doing by tabling the relevant Orders but he must put each Deputy and Senator personally on notice. I recommend the Bill to the House for Second Reading.
Mr. MacEntee: I said that the bodies established under the procedure of the Companies Acts were the Medical Research Council of Ireland, the National Blood Transfusion Association, the National Mass-Radiography Association, the National Organisation for Rehabilitation and the Dublin Rheumatism Clinic.
Professor Hayes: I think the Bill is to be welcomed and I agree that it will make for a simpler and speedier procedure. I am inclined to agree with the Minister in regard to Section 10 where not only is the order laid before both Houses, where it will be available, and which really means in the Library, but he intends sending copies to each member of the two Houses. The seven sitting days, which cover a period of more than a fortnight, is a reasonable period instead of the 21 sitting days, where no copy is sent. I think the Bill is quite desirable.
Dr. O'Donovan: The Minister made one statement which I think was a slip. I made a note of it at the time. He suggested that this was a procedure by which a company can become a corporate body. I take it that he meant an association or a council might become a corporate body. A company is a corporate body.
Professor Quinlan: I find that this Bill passed through the Dáil only yesterday. We are without any copies of the report of the Dáil debate on it. Consequently, it is just an example of shotgun legislation or slot machine legislation and probably a combination of both. As an Independent, I want to protest strongly against such procedures. I hope we will not be treated to a double dose of these procedures next week. It seems that we are giving extraordinarily wide powers in the Bill and then we find it being rushed through on 24 hours notice.
I do not think we can regard Seanad Éireann as doing its duty in rushing to adopt this procedure and I for one protest in the strongest possible fashion against it. In fact, ever since the increased allowances were given to the Seanad, there is a tendency to do less and less work. We are setting a very bad headline for the country as a whole in regard to the hours of our working. We find that many important items have been on the Order Paper for nine months without being taken, and even in regard to a Private Member's Bill——
Professor Quinlan: This Bill is another dose of State control. It comes from the same Department as sent us in recent weeks the Nurses Bill and others. Consequently, we are right if we feel that this is a Bill that should be scrutinised very carefully. I cannot at this short notice see what the full implications of the Bill are. I will retain my right to put down amendments on Committee Stage. We are taking the Second Stage but I will protest in the strongest manner against the Bill going any further.
Mrs. Dowdall: Might I be permitted to ask the Minister a question about this? We have an excellent branch of the national blood transfusion service in Cork. They are certainly working very well on a voluntary basis with a paid officer in charge. I should like to ask the Minister, without any of the protestations of my friend from Cork that anything is being taken away from anybody, whether the character of the blood transfusion organisation in Cork, which I consider to be an extremely well-run one, is being changed by this Bill and, if so, is there any need for such change?
Seán Ó Donnabháin: The point raised by Senator Mrs. Dowdall is one of the points in connection with this Bill to which I wish to refer. I have other questions which I should like the Minister to clarify also. In connection with the blood transfusion service, I should like to avail of this opportunity to compliment the organisation, both in Dublin and Cork. I have experience of the Dublin organisation. In passing, I might say that it is from the country people that we get the best service in Dublin and I presume the same applies to the Cork organisation I should also like to pay tribute to the  staffs of the factories in Dublin who have contributed to such an enormous extent towards the provision of blood for transfusion purposes.
As far as I know, there are only the two services—the Cork service which covers the southern area and the Dublin service. I am just wondering whether there is any other organisation providing a system of blood transfusion. Does this legislation indicate now that we will have one national blood transfusion service? Will Cork amalgamate with Dublin or vice versa? I feel that the one organisation might possibly be the better.
I read the Bill and were it not for the explanatory memorandum, I would not really know what the purpose of the Bill was. In the explanatory memorandum, two services are indicated—the blood transfusion service and the mass radiography service. I am wondering whether it is intended that in the future there will be no local authority radiography service. At present, we have in Dublin the headquarters of the mass radiography service but we have also the service which was instituted by the Dublin Corporation before we had the mass radiography service. It is still functioning. I presume that the two are co-operating in their activities in the Dublin service.
The Minister mentioned several other services and organisations, such as the Medical Research Council, which is a very important body. Then there is the rehabilitation service which covers both the rehabilitation of extuberculosis patients as well as patients who have recovered from other disease. My interpretation of the rehabilitation service is that it deals with the rehabilitation of extuberculosis patients. The rheumatism clinic is a service I can also pay tribute to because I have had personal experience and they are doing very satisfactory work there. St. Luke's, I think, is a special hospital like any other public hospital but it is information to me to find that it will be taken over.
My final query is in connection with the other hospitals and services for the public which apparently do not derive any benefit from the Hospitals' Trust— the orthopaedic services and the poliomyelitis services to which we are asked so often to contribute. I wonder could these also be brought into a national scheme by which they could be provided with funds from the Hospitals' Trust? Perhaps they are. I do not know, and that is why I asked the Minister could these services be classified as hospital public services and get funds from authorities, outside the collections and bazaars and functions they organise for their support.
I do not know if the Baldoyle orthopaedic service is classified as a hospital, and if it were incorporated to some extent like the blood transfusion organisations, could it serve a greater section of the country than possibly it does at present? I know that many citizens help considerably towards the transport of patients for the cerebral clinics and poliomyelitis clinics. I may be asking the Minister a question which is outside the scope of this Bill, and he will enlighten my ignorance, because I should like to get clarification of the position in which these other services stand, apart from the several mentioned by the Minister and the two mentioned in the explanatory memorandum.
Mr. Tunney: I should like to pay a compliment to the Minister for the way he has dealt with the Health Act and tried to put every point of it into operation as well as possible. I am sorry to say that the managers in certain places do not carry out the wishes of the Minister or what the  Minister stated his intentions were in the same manner. I am speaking as vice-chairman of the Dublin Health Authority.
Mr. Tunney: I believe in starting with first things first. I want to refer to the Health Authority as it is established and as it was mentioned by Senator Ó Donnabháin. What I want to impress on the Minister just in a few words is this: There are 27 members on the Dublin Health Authority and they have no authority. I think it is most unfair to elect representatives of the people who have to face the electorate, and to see the blame for the failure of the Dublin Health Authority put on those elected representatives. As one point to illustrate that the Dublin Health Authority has no power, I will just mention that at their very first meeting, they recommended to the manager that the nursing staff, both men and women, employed by the Authority should be given a substantial increase and a betterment in hours and conditions.
Mr. Tunney: I agree, but I take this opportunity to impress on the Minister that the Health Authority of Dublin has no authority. The manager is the authority and is not carrying out the wishes, either of the Minister or of the elected representatives in connection with its servants and employees and dealing with certain items of health.
Mr. MacEntee: Let me, first of all, point out that this Bill is designed to deal with functions which ordinarily the health authorities are not in a position to deal with. The Bill relates to bodies which are set up outside the general system of health organisation and administration in this country. They are specialised bodies.
With regard to the Cork Blood Transfusion Service, to which Senator Dowdall referred, I want to say that this Bill does not affect its position in any iota. It will remain as it is at present, an independent locally-based organisation, and we cannot interfere with it or with any other private special health service that exists at the moment. Therefore, what Senator Ó Donnabháin fears in respect to either the National Blood Transfusion Association, St. Luke's Hospital, or any other of the existing companies established for the provision and operation and administration of health services does not arise. The Senator can put it out of his head immediately that there is anything in the Bill which would give the Minister power to compel an existing limited company to become an established body under the order. It is not necessary for me, therefore, to go in detail into the points raised.
Mr. MacEntee: I do not know what leg the Senator wishes to stand on— whether he wishes the Minister for  Health to preserve his powers which at the moment he enjoys. I do not think he ought to, because I have some regard to the Constitution of our country and to the responsibility which Ministers bear to the Oireachtas. But as things stand at present the Minister for Health has powers to establish bodies to discharge subsidiary functions which are limited only by the financial resources the Minister has at his disposal, and these, as the Senator may know, amount to something like £6,000,000.
I recognise that when the Department of Health was established, it was decided that the local authorities should become health authorities for the purpose of administering the Health Act. It became apparent that provision ought to be made, ad hoc provision, if you like, for special services which had never before been provided by health authorities. It then became necessary to make this ad hoc provision. This was an empirical solution and outside the broad framework of local government. The only way in which the Minister of the day could deal with that problem was by availing of the powers which existed under the Companies Acts to establish a corporate entity the liability of whose members would be limited only by guarantee to provide and operate these services.
My predecessors availed of the facilities that were provided to do this. I think, in the circumstances of the day, they were quite justified in doing so. It has now become apparent that the need to establish these special services, if I may put it that way, will grow. I think the time has come when the Oireachtas should be made aware of what is being done by a Minister for Health in relation to services of the type to which I have referred.
The purpose of this Bill is to make it quite certain that, whenever a Minister finds it desirable or essential to establish a special type of health service, all the members of the Oireachtas will be made aware of what he proposes to do. I put it even to Senator Quinlan that this is not to give the Minister any further power. In fact, it is imposing shackles upon the Minister  and making him responsible to the Oireachtas for what he does. That is the sole purpose of this Bill.
Every one of the bodies to which I have referred, which I enumerated earlier, has been established under the Companies Acts. Some of them, at their inception, received very substantial grants out of moneys at the personal disposal, almost, of the Minister for Health. At the present moment, some of them continue, even today, to be financed in their operations by the Minister for Health, again out of funds at his disposal.
My personal opinion is that that is not a desirable situation. Therefore, I have been responsible for initiating this Bill which will inform the Oireachtas of what the Minister is doing and make it possible for any member of the Oireachtas, if he so wishes, to put down a resolution questioning the manner in which these bodies are conducting their affairs and which can bring the Minister responsible for them into the Dáil—because the Minister is responsible only to the Dáil—to answer for their conduct. That is what this Bill proposes to do. I think the Senator has misinformed himself about the purpose of this Bill.
Professor Quinlan: I suggest that we need at least a week to look over what the Minister has said. Two wrongs do not make a right. I am simply aghast that a body of the importance of the Medical Research Council should be set up by order under this measure.
Mr. MacEntee: The Medical Research Council was set up prior to 1939—I forget the exact date—by the Minister for Local Government and Public Health of the day, without the matter coming to the Dáil at all.
Mr. MacEntee: The Research Council itself was set up as a company limited by a guarantee. Provision was made, it is quite true, in one of the Acts amending the original Public Hospitals Act of 1933, to make it possible to provide funds. The Act was passed only when it became apparent that the Act as originally drafted could not cover the Medical Research Council. So, as I have said, it was set up and established without the formal and official cognisances of the Oireachtas. The Minister who set it up found he could not finance it and therefore he had to get special powers to deal with it. All the other bodies which I enumerated, some of which have received grants of almost £400,000, have also been set up under the Companies Acts procedure. I do not think that is proper. Senator Quinlan would appear to think that is quite all right.
Professor Hayes: To Senator Quinlan, I would say that the unfortunate thing is that we have to acknowledge the facts of life. I protested on several occasions here, at the opening of business, against the enormous programme of the Government. If it is any consolation to Senator Quinlan, when I was on the other side of the House, I put through a similar programme, with a certain amount of skill, I hope. But, here we are. We intend to adjourn next week.
Professor Hayes: There is not an unlimited time about this. The Bill does not look to me to be very capable of amendment. Senator Quinlan may have resources that are not open to me. Even if we pass an amendment to any Bill, the truth is that the Dáil will not sit to discuss it.
Professor Hayes: It does absolve us. I think all this procedure is bad. There are several remedies. One is to bring in legislation through the Seanad. But here we are with this back log of legislation at the very end of the term and we cannot help it. The simplest thing is to do it. When I find a Bill to which I see no objection, I am inclined to let it through all its Stages. If anybody wants to postpone it to next Wednesday, well and good. I should like to make a prophecy that it will not take any time next Wednesday.
Professor Quinlan: We have now got an admission that a body of the importance and scope of the Medical Research Council could be set up under the section without any debate here. I am shocked by what the Minister has revealed of past legislation and the powers under the Health Authorities Act. The Bill is an improvement and this section is an improvement on the past but that is not good enough. Take the example of the recent Institute for Industrial Research and Standards. According to the Minister, a body of comparable scope could be set up under the section and the best we could do is to drag the order made through the House for approval. That is a very cumbersome and ineffective way of doing this. If this had applied to the Institute of Industrial Research and Standards, we would not have the five valuable amendments which we got through.
There is too much power in the section. It should be limited considerably either in the scope of finance or by some other means which I cannot think of right now. We have got to be careful of such sections. There is far too much centralisation, too much government by order, in this country and too little work or sense of duty by us here in the Seanad when we see the most important Bill of the year, the Appropriation Bill, going through without a single contribution from the Government benches and a motion on the E.E.C. and the Common Market going through without a single idea, good, bad or indifferent, from the Government side.
Mr. MacEntee: I want to make it quite clear that nothing I have said could possibly suggest that it would be the intention to establish a body of the importance and character of the Medical Research Council by order. In fact, my mind has been running the other way. I would like to give that body a definite statutory basis and impose on the Government of the day a definite obligation to finance it.
Senator Quinlan should not let his imagination run away with him. He is afflicted with one or two phobias, one of which is this cant about government by order. This country could not be run if the responsible Ministers had not power to make orders to deal with situations with which it would not be practicable to deal by legislation. Every country has got an administrative system. Every country does by order things which experience has taught them would involve terrific waste of public time, energy and money, if they were done by legislation.
I do not want to get into an argument about that but nothing—again, I repeat nothing—which I have said could possibly suggest that I intended —I cannot speak for my successors but I am perfectly certain that they would be of the same mind as I—that a body of the importance and character of the Medical Research Council should be established in this way. But should it ever happen that the exigencies of the time demanded that such a body should be established by order, it would  be possible for a Minister to make an establishment order and bring the body into being. He must, however, come to the Oireachtas to defend that establishment order.
The Senator need not shake his head. He is a neophyte in these matters and he should learn from those who are experienced as to how a legislature has to work. A Minister must defend that order in exactly the same way as he would defend proposals on the Second Reading of a Bill. I think that perhaps there would also be this: people would feel freer on both sides of the House, on the Government as well as on the Opposition side, to express their views regarding the order the Minister had made.
Professor Quinlan: On the question of Government by order, the Minister does not prove his case by a reductio ad absurdum, by suggesting that I am advocating that Ministers should have no power to make orders. What I am advocating is a very different thing. What I am saying is that the modern tendency to make orders upon orders is a substitute for efficient legislation. We might all take as our motto and the Minister might take as his motto: “All power corrupts but absolute power corrupts absolutely.”
The Minister mentioned his good intentions. Again that is not legislation. I am not such a neophyte in this business that I do not know what is good legislation. I perhaps have read as much about it as any of the members or as most of the members of this House. I do know that the essence of good legislation is that it could not depend on the good intentions of the Minister or a Department. We are legislating not for today or tomorrow but for as long as the statute remains on the book. Consequently, though the Minister denies that he would set up a body of the importance of the Medical Research Council, at the same time, he is putting through a Bill that gives him power to do it. If that is not an  example of bad legislation, I do not know what bad legislation means.
He mentioned the substitute of the Minister having to come and defend his order in the House. I want to know whether that means that the House could change details of those orders. Even if it does, it is a poor substitute for the full play of debate.
Mr. MacEntee: Yes, they can. As the section reads, the order may be annulled but the point is that the Minister may make an order amending an establishment order and while the original order may not be annulled, he may be compelled to give a guarantee that he will bring in an amending order.
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