Mr. Tony O'Brien:

Thank you, Chairman. That is what I mean.

That contact, in 2014 and 2015, through Resilience Ireland, was part of the "tracing and look-back" inquiry of the other 46 service users. Part of this contact involved the development of an agreed protocol whereby no contact would be initiated with the families of the 46 service users until An Garda Síochána, AGS, had completed its interviews. The HSE continued to receive updates on the live investigation from many channels, including AGS, local health staff and also through other official channels.

For the information of the committee, a schedule of engagements between local management and AGS, from 2011-2015, was enclosed with the letter as Appendix 1.

The committee will also be aware that the Dignam report, paragraph 3.3.5, confirms ongoing liaison and engagement between the HSE and AGS where he states the following:

There was clearly ongoing contact between the HSE and An Garda Síochána in which members of the Inquiry Team were centrally involved. For example, on the 27th March, 2014, Ms. O wrote to the relevant Superintendent in relation to a meeting arranged for the 1st April 2014, the purpose of which was stated to be "to ensure that all relevant information available to the HSE is provided to Gardaí in the context of the known investigation which you are currently undertaking in the context of a foster ... family in [named location].

At the commencement of the committee meeting on 9 March 2017, the Chairman referred to media reports indicating that communication between the HSE and AGS commenced in 2015.

As to the full extent of HSE-AGS liaison and engagement on this important matter, certain media reports over the past number of weeks have been incomplete. The genesis of the media reports was information provided in response to a freedom of information, FOI, request. The request was quite specific and sought, "all correspondence between the HSE Social Care Division and the HSE Director General's Office and An Garda Síochána on the subject of the publication of the Conal Devine and Resilience Ireland Reports" from December 2014.

As set out in the schedule mentioned above, the liaison and engagement with An Garda Síochána between 2011 and 2015 was through the HSE's local office. This correspondence did not come within the scope of the FOI request and therefore would not have been included in the material released. Had the requester included the years 2011, 2012, 2013 and 2014 and included HSE services at local level the information sought and provided would have allowed a more complete picture of the situation, and could have avoided some incorrect media headlines.

While much of the media coverage dealt with HSE contact with AGS surrounding the publication of the Devine report, for completeness it is important to state that the HSE, while aware of ongoing live investigations surrounding the former foster home, did not seek formal clearance to publish the two reports until February 2015.

The convention and standard practice throughout the HSE and the former health boards was that such reports would not be published while live Garda investigations were under way, in order to avoid interfering with AGS processes. In the case of the Devine report, given that the HSE was made aware that live AGS investigations were under way, convention and standard practice was followed by the local HSE.

For specific reasons, in early 2015 the HSE chose to depart from this convention and standard practice in relation to these matters and, notwithstanding knowledge of a live AGS investigation, decided to proceed towards publication of both Devine and Resilience. This decision was progressed for the following reasons: the HSE's awareness that AGS investigations were at that stage well advanced; the Resilience Ireland "tracing and look-back" inquiry report was close to completion and the considerable benefits of publishing both reports together; and an awareness of a significant public interest in the publication of both reports.

In this context, following considerable deliberation on the matter, on 24 February 2015 the HSE requested in writing that our legal advisers commence, on our behalf, the process of publication of both reports through formal engagement with AGS and other relevant bodies including the Information Commissioner and Wards of Courts Office. In this regard, our legal advisers wrote to AGS on 6 March 2015 informing them of our intention to publish both reports in April 2015. AGS responded to the HSE, through our legal advisers, on 14 April 2015 requesting us not to publish the reports.

Conor Dignam SC in his report, at paragraph 2.5.4.7, notes that in many cases reports should not be published if AGS are of a view that publication is likely to interfere with investigations. He says, "It is correct and proper, therefore, that the HSE and, indeed, the Minister, should afford considerable deference to the views of An Garda Síochána when deciding whether the Reports should be published or not and it will properly be the case in very many, if not almost every case, that if the Gardaí are of the view that a matter should not be published because it will interfere with a criminal investigation then it should not and will not be published by a public body."

At paragraph 2.5.4.0, Dignam notes that AGS would likely have taken a position against publication of these reports even if the HSE had sought approval at an earlier stage. He states:

However, it is only fair to point out that matters were not straightforward. It is likely that even if the HSE had asked the Gardaí at an earlier stage the Gardaí would have expressed a concern at the impact on ongoing investigations.

Turning to the second area, the reference to the persons involved in the decision to leave Grace in the former foster home, in responding to questions I was doing my utmost to provide as much clarity as possible on this matter. However, I was somewhat constrained as to the extent of information that I could provide on the basis that AGS had not - at that time - provided approval for the reports to be published and the risk of interfering with a live Garda investigation. I was also conscious of not prejudicing individuals who may be subject to a HR process.

On many occasions during the course of hearings before the PAC, I highlighted the fact that I was constrained as to how much information I was in a position to provide at that time.

In responding to the specific question, I took into consideration two relevant sections of the Devine report, sections 4 and 5, in particular, section 4.4.15. Consideration of both sections is important in order to have a full understanding of the significance of each person's role in the key decision events in 1996, in particular, the case conference that occurred in October 1996.

Section 4.4.15 on page 32 of the Devine report sets out the detail of the October 1996 case conference; those involved in same - numbering five people, the decisions made and the actions to be undertaken on foot of those decisions by the responsible professionals - numbering three people.

The information, as set out in section 4, confirms the decision that Grace was (a) to remain in the foster placement, (b) to continue in her day service, (c) responsibility for her care was to transfer to the adult disability services, and (d) a new key worker - from adult disability services - was to be assigned to her case as she would no longer be in the care of the foster care team. The case conference also decided that any change in her circumstances would be reviewed by the adult disability services and that, significantly, they would progress making Grace a ward of court, the implementation of which was to be followed up by the new key worker.

What is important to note here is that of the five-person case conference, three people had an important dual function: (a) participation in the decision to leave Grace in the former foster home, and (b) carrying out a series of eight actions that needed to be taken in order to make the environment safe for Grace to remain there.

The following sections in the Devine report, that is, page 32 onwards, identify how these key actions were not followed up by some of the three individuals who were tasked with making Grace's environment safe. In effect, this meant that the young woman was not made a ward of court, nor was her care appropriately followed up. She remained with the family until she was removed in 2009.

When I mentioned "a three-person panel, for want of a better word" - that is on page 9, paragraph 8 of the transcript of 2 February 2016 in response to a member's question - it was the three individuals who had this important dual function: decision role and implementation of actions. For the sake of clarity, this refers to H7, H3 and H12.

I went on to say: "This was made by a three-person panel, for want of a better word, and those three persons are no longer in the public service to be clear about that." It is the same section of the transcript.

The three persons to whom I referred - H7, H3 and H12 as per the Devine report - had all retired from the HSE on the date that I made this statement. The HSE payroll system indicates that all three are in receipt of full HSE pensions. This indicates that all three are retired from the public service. It was on this basis that I stated, and believed, that the three persons - H7, H3 and H12 - were no longer in the public service.

On foot of the examination that I initiated, I would like to correct the record of the Committee in respect of H3 as follows: H3 retired from the HSE in 2012 and is in receipt of a full HSE pension that is recorded on HSE’s pension-payroll system. It was on this basis that I stated that H3 is retired from the public service also. I have now established that H3 provides some specialist clinical services to Tusla on a part-time contract basis. H3 provided a similar service to the former children and families service - part of the HSE until the end of 2013. On the formal creation of Tusla in January 2014, any relationship between the HSE and H3 would have ceased.

This information came to my attention yesterday, Wednesday, 22 March, by way of the examination process that I initiated. This examination was not straightforward as H3 possesses a number of payroll numbers, both pay and pension, across two organisations, within a financial-payroll system that is not sufficiently integrated to allow the many payroll numbers to be attributed to one person. In light of information that I now have, I wish to correct the record of my information to the committee dated 2 February 2016 at page 9. H3, while retired from the HSE, is currently in public service on a part-time basis in Tusla. I wish to apologise to the committee for not being in a position to have had more complete information at the time in February 2016.

As stated by me during the course of that meeting:

There are many people who were involved in different ways in those processes. One of the features of this is the disagreements that occurred at different times as to what should have occurred and different people were on different sides of those disagreements. Some of those people are still working in either the HSE or Tusla.

That is from page 13.

I further commented at the same meeting: "There are people who are referenced in those reports in many different ways who are currently employed either in the health service or in Tusla, as I said earlier". In stating this, I was acknowledging that there are other people who were involved in aspects of decisions around Grace, both in 1996 and at other times, who currently work in the HSE or Tusla and who may face disciplinary action now that both reports have been published.

Finally, I refer to level of funding to the voluntary provider. During the course of my opening statement last year on page 6, I discussed levels of funding for the voluntary provider for the years 2009 to 2015, inclusive. The budget for the voluntary provider involved was set out together with a comparison of the percentage increase or decrease in budget relative to the percentage increase or reductions across the area and nationally. Following the committee meeting, the figures were disputed by the voluntary provider in question. As part of an engagement with that organisation, I gave a commitment that I would undertake an independent external review of funding to which it was agreeable. This independent external review by Deloitte is now nearing completion. That concludes my opening statement.