Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

I thank Dr. McLoughlin for appearing before us again. He is very busy, but it is a matter of grave importance that we tease these issues out. I am returning to the Ombudsman's statement to us. She felt she should inform the committee that:

The Department of Health has a long history of, to put it mildly, carelessness with regard to the law. This has been the case irrespective of which political party or coalition has been in government.

She is not the only one who said that. She and her predecessor as Ombudsman have seen this at close quarters and she recalled a number of different issues. She also said, and I will tie these up together:

It seems clear that the Department is involved in a careful strategy of risk management. This risk would not exist if the Department had had proper regard to the legal obligation on health boards to provide long-stay care. If, by any chance, one or more of these cases comes to a hearing and judgment in the High Court and if ... that judgment goes against the State parties, the financial implications would be truly horrendous in terms of the amount of compensation likely to be payable to thousands of claimants.

In her final comment she said:

As the Department represents it, the recommendations I have made are almost reckless from the perspective of the public finances ... What I am pointing out is that the Department of Health - because of what appears to be a culture of prevarication, disregard for the law and an inability to take hard decisions - has already caused the State to incur enormous costs and looks set to continue on that path.

We have had a number of Ombudsmen in here and they are very careful with their words. My understanding of this Ombudsman is that she is very careful and would not say something like that very lightly. It is very hard to match what the Department of Health and the Ombudsman are saying, but it is clear, and Dr. McLoughlin said this, that there were fundamental differences of opinion and because of resource limitations the Department could not implement what the Ombudsman said.

The specific cases alluded to and talked about do not affect this committee. This committee's role is to examine systemic issues. We are asking what are the powers and role of the Ombudsman vis-à-vis the Government and the Departments under it. That is the fundamental issue here. There has been a similar situation with An Coimisinéir Teanga, with whom we have had hearings, and the Department of Social Protection, where it has said it is not going to follow the Ombudsman's advice because its legal advice says differently. We need clarity on that.

Under the Ombudsman Act, what is Dr. McLoughlin's understanding of the Department of Health's situation if it does not agree with the Ombudsman's ruling? Can the Department challenge that in the High Court? Under the Official Languages Act, if a Department does not agree with the ruling of An Coimisinéir Teanga, who is an ombudsman, the next step to take is to challenge it in the High Court. No Department has ever challenged that. What is the situation with the Department of Health and the Ombudsman if the Department does not agree with a ruling? Under the Act what is the next step of redress? Is it non-engagement, choosing not to agree, and making statements to committees like ourselves that the Department does not agree with it and non-implementation the Ombudsman's findings?

Some of the cases go back 20 or 30 years and I understand the view of the Department and the Government is totally different from that of the Ombudsman. This is a wider situation. The Attorney General and Government have been involved. Decisions have been made by numerous Governments. Did officials in the Department in any of the cases the Ombudsman cited suggest changes to the legislation so they would be in compliance with the Ombudsman's rulings? Have officials suggested changes to each of the three different schemes so the Department would be in compliance?

I was going to ask about the cost of settlements but that has been addressed. I appreciate that Dr. McLoughlin said he wants to move forward. Can he outline the mechanisms that have been put in place so that this cannot happen again? Most of the issues raised relate to the Equal Status Acts and equality. What equality-proofing measures has the Department in place that were not in place that will ensure this does not happen again? When a piece of legislation comes before the Department is it being equality-proofed? If so, who is doing that? What measures is the Department using? Is it the nine grounds of equality? From what I read, the Ombudsman's advice is that a piece of legislation that was brought forward created a potential liability on the State. She outlined what she saw as flaws in that legislation, which were not addressed. How can we ensure that does not happen again? What mechanisms does the Department have, or what changes have been put in place, to ensure that does not happen in the future?