Susan O'Keeffe (Labour) | Oireachtas source

I welcome the Secretary General and his officials. We appreciate them being here. I also commend the fact that they are in the process of restructuring the Department and have made that appointment as a liaison point for the Office of the Ombudsman. All of us present would agree that improving relationships between the Department and the Office of the Ombudsman is key and is, in effect, why we are here. No one on this committee chooses to pull out anything here, as it were.

As a committee, we are responsible for responding to the observations made by the Ombudsman when she appeared here in December. I am sure the Secretary General will have read very clearly the statement the Ombudsman made that day. She was not disputing the progress that has been made in respect of the care given and the reforms the Department may be making. Her concern was the lack of care she felt the Department showed towards the law. As Dr. McLoughlin will recall, she went through three examples of she believed was the Department's tradition of care that was not so good. I know Dr. McLoughlin noted the three things in his response today and has given us the good side of that. If one reads the Ombudsman's explanations and observations, one can see an entirely different picture. She talks about legal advice being reiterated by the Minister's legal advisers and how the Department gambled for six years that it would get away with something it knew was illegal. In respect of the Travers report, the Ombudsman makes it very clear that the breach that occurred cost the State €500 million. I accept that is in the past and Dr. McLoughlin said his ambition is to improve that, which is good.

In respect of the Who Cares? report, the Ombudsman said this was a continuing case and while there may have been 48 complaints per year, they had accumulated to more than 1,000. That adds up to a lot of people who complained because they did not receive the care they believed should have been provided to them by the health boards or the HSE. In her investigation, the Ombudsman decided that this was the case but she did not say that they should all be compensated. As I understand it, she recommended a much smaller form of redress. In her statement, she said that this was ignored or not responded to, which I thought rather odd because Dr. McLoughlin repeatedly made the point that the Ombudsman does not seem to understand the cost of this to the State.

She stated clearly that she understands the larger compensation matter would cost the State an enormous amount of money but when she offered a form of redress she did not receive a response. The witnesses may be able to clarify that.

I refer now to a point which appears to have caused a particular problem in respect of the litigants. Dr. McLoughlin indicated that he was reluctant to discuss this issue. I do not know who is right or wrong but the Ombudsman stated clearly to this committee that she inquired specifically about the various cases. She wanted to know how many cases are awaiting settlement and how many were settled out of court, how much they cost and why they were settled. She stated that the Department was obliged to disclose this information to the Ombudsman. That is her interpretation but I doubt she would have come here just to have a go at the Secretary General. The Ombudsman is a serious office, as Dr. McLoughlin has acknowledged. We are still in the dark on these questions. I understand that 30 cases have been settled at an estimated cost of approximately €3 million. A footnote to one of the Department's documents suggests that 347 cases are awaiting settlement. That is not a small number and these cases are serious matters for those who are waiting to fight for what they believe they should have been given. The Ombudsman offered them an opportunity for redress but that was not followed through and they are now bogged down in a legal system which we all know is exhausting and lengthy. If the Department is not obliged to disclose this information to the Ombudsman, to whom is it obliged to disclose it? As far as I am aware, it is not the Comptroller and Auditor General. Who is aware of the amount of money spent on this matter and how much we may spend on it? After all, this is taxpayers' money.

The Ombudsman went further to ask whether the Department was being obstructive in its approach. She suggested this in her 2010 report but by 2012 she became more clear about it, stating that the approach appeared to involve intentional tactics to delay cases coming to a hearing. She also stated that when a particular case reaches the point where an order of discovery is made, the State side offers a settlement which is subject to a confidentiality clause. On the one hand, we know nothing about these cases in terms of their quantity, quality or amount of money involved and, on the other, the Ombudsman accuses the Department of Health of obstructive tactics. That is a serious allegation and this committee is obliged to ask Dr. McLoughlin and his officials what on earth is going on.

Ultimately, they need to improve their relationship with the Ombudsman. However, the Department appears to be calling into question her role and her right to investigate. She received more than 1,000 complaints, but the Department argues she does not have the right to go about her business in this way. They cannot both be right. She argues that she is obliged under her statutory remit to ask those questions and to investigate, but the Department disagrees. That is the crux of the matter. The position is untenable into the future but I do not know how it can be resolved. It would be more appropriate for the Ombudsman to fold her tent and leave if she cannot ask those questions. I am sure she has taken serious legal advice on the nature of her remit and is not acting on a whim. Clearly, she believes she is acting within her statutory remit. While all of us would wish this to be part of the past, for those who are still awaiting a settlement it is very much in the present. The matter is still on the Ombudsman's desk and she saw fit to raise it with this committee on 6 December 2012. I am afraid it is very much a live matter.