Oireachtas Joint and Select Committees
Thursday, 23 March 2017
Public Accounts Committee
Correction of Record of Meeting of 2 February 2016
9:00 am
Seán Fleming (Laois, Fianna Fail)
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Before beginning, I ask everybody in the room to turn off their mobile phones or switch them to aeroplane mode, as putting them in silent mode only does not work. Messages or e-mails may be received and this disrupts the recording procedures. There may not be an accurate record if there are interruptions from mobile phones.
Catherine Murphy (Kildare North, Social Democrats)
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One can have Wi-Fi on with aeroplane mode and it would not interfere with the process.
Seán Fleming (Laois, Fianna Fail)
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It will not work. When I put my phone in aeroplane mode, the Wi-Fi shuts down.
Catherine Murphy (Kildare North, Social Democrats)
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The Wi-Fi can be put back on and messages can be received without interference.
Seán Fleming (Laois, Fianna Fail)
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The Deputy should switch it to aeroplane mode in any event. That is as much as I know.
This afternoon we are dealing with matters relating to the appearance of witnesses from the Health Service Executive, HSE, before the Committee of Public Accounts on 2 February 2016. At our meeting two weeks ago, certain matters were raised relating to Grace, the case of abuse that was the focus of RTE's "This Week" programme of 5 March 2017. These matters apparently conflict with evidence given by the HSE to the Committee of Public Accounts on 2 February 2016. The committee has asked the HSE to correct the record, if necessary, and to explain the reason for the apparent conflict arising from the programme. I am glad a delegation from the HSE has joined us today to do so and Mr. O'Brien is welcome.
This is not an opportunity to reopen consideration of all matters discussed on that occasion. I have received a copy of the statement proposed to be made and I am satisfied that it confines itself to the purpose of the meeting. Having regard to the fact that a commission of investigation has been established by the Oireachtas, the Grace case must be regarded as sub judiceand is effectively under a judge to examine at this point. I repeat that we are not here to reopen the Grace case and the Oireachtas has established a commission of investigation to deal with it. We are not a parallel commission of inquiry or examination of the Grace case. I must be very clear about that. It would not be in order to go beyond the very limited purposes of this session and put forward questions to witnesses, except to the extent to which they relate directly to the statement made and they are clearly necessary in order to clarify the context of today's statement. In these circumstances it is my responsibility, as Chairman, to seek to ensure that questions asked are consistent with the purpose of the meeting, genuinely seeking clarification, and do not in any material way otherwise encroach or impinge upon the functions of a commission of investigation. Accordingly, I expect members who may wish to ask questions to clearly identify the part of the statement from last year to which the question relates and the reason they believe clarification is necessary.
Before going any further I welcome Mr. Tony O'Brien, director general of the HSE, who is here along with Mr. Ray Mitchell and Mr. Dara Purcell. I thank them for coming and I acknowledge that a commission of investigation has been established. They may have been within their rights not to come in view of the fact that the Oireachtas has established that commission of investigation. We appreciate them coming before the Committee of Public Accounts to deal with matters raised at a previous meeting.
I advise witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity, by name or in such a way as to make him, her or it identifiable. Members are reminded of the provisions in Standing Order 186 that the committee shall also refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policies. Finally, members are reminded of the long-standing ruling of the Chair to the effect that members should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.
Before asking Mr. O'Brien to make his opening statement, I should indicate that the sequence for questions will be Deputy Cullinane, Deputy Catherine Murphy, Deputy Madigan and then Deputy Connolly. I will confine each Deputy to a ten-minute slot because it is not fair on other members if people go on at length. If questions are not covered in the slot, there will be another opportunity to come back in. I will be rigid on that time limit today.
Mr. Tony O'Brien:
I thank the Chairman and members of the committee. I am joined by Mr. Ray Mitchell and Mr. Dara Purcell, who are not witnesses but who will assist me with the documentation. I have reviewed the transcript of my evidence to the committee on 2 February 2016 as requested. I note the clarification from the Chairman to the effect that the focus of my contribution should be only on those areas where the record needs to be corrected.
In the interest of garnering as much information as possible to respond to the committee, I initiated an examination of the two matters referred to by the Chairman in his letter to me. Whereas this examination had not fully concluded when my initial letter was sent to the committee on 16 March, in the interests of providing as much information and clarity to the committee as possible, the examination continued after my initial letter was sent. Consequently, the committee will note that I sent a second letter to it on foot of further and better information. I have sought to expand on those aspects of my contribution where issues were raised by the members of the committee as per the Chairman’s letter. I have limited my reply to the specific issues identified by the Chairman and I will focus my contribution on those matters. Arising from my review of the transcripts, there is one other matter, while not raised specifically by the committee, that I wish to include in this response by way of providing additional clarity. I wish to stress that the evidence provided by me to the Committee of Public Accounts on this matter has been given with the utmost of good faith and with the sole purpose of assisting the committee and its members in as much as I possibly could at those individual sittings.
As I highlighted to the committee on a number of occasions, the evidence I provided at three sittings in 2015 and 2016 on this matter was somewhat restricted for reasons outside my control. Given that neither of the two reports - the Devine and Resilience Ireland reports - had been published at that time, I was attempting to answer questions and provide information to members while constrained by the fact that I could not speak openly on matters. This, as Deputies are aware, was to avoid interfering with a live Garda investigation. Consequently, words or phrases chosen by me during questioning by members to explain matters would not necessarily have been ones that I would have chosen had I had complete freedom to discuss the information contained within both reports.
I will turn to the question of liaison with An Garda Síochána since 2012 on the matters concerned. The HSE has been aware since 2011 of live Garda investigations into a number of cases relating to this former foster home. Since that time, HSE staff at local level have been involved in ongoing engagement and liaison with senior members of the Garda Síochána who have been leading the investigation into this matter. Liaison and engagement between the HSE and the Garda Síochána involved many forms, including meetings, the exchange of relevant correspondence and the provision of additional information and files to the Garda Síochána, as live investigations proceeded throughout 2012, 2013, and 2014. By way of example, the Conal Devine report was provided to the Garda Síochána in July 2012 to further assist it with its ongoing investigations at that time. In April 2013, HSE staff at local level were advised by the Garda Síochána that they would retain files pertaining to Grace as there were, at that point, three further investigations being conducted as a direct result of the investigation into the case.
Later in August 2013, further files were sought formally in relation to these investigations.
Furthermore, throughout the years 2014 and 2015 there was considerable contact between AGS and the HSE------
Seán Fleming (Laois, Fianna Fail)
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I take it AGS is An Garda Síochána. People are not used to the AGS term. So that everybody understands, AGS is An Garda Síochána.
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.
Seán Fleming (Laois, Fianna Fail)
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I thank Mr. O'Brien. Speakers have indicated in the following sequence: Deputies Cullinane, Catherine Murphy, Madigan, Connolly, Kelly and Burke. We are doing ten-minute slots each to give everybody an early slot and if somebody wants to come in a second time, there will be an opportunity because I do not want people going on for 20 or 25 minutes.
I remind members that we are not reopening the Grace case. A commission of investigation has been established to do that and we have to show respect to that. We are dealing specifically with the record of last February's meeting.
David Cullinane (Waterford, Sinn Fein)
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I welcome Mr. O'Brien and his team. He said that the evidence he presented to the committee in the past was given "with the utmost of good faith". He will be aware that at the previous sitting of the committee that he attended, a number of allegations were made - first, that he misled the committee when he was before it previously and, second, that there was, and still is, a cover-up within the HSE in respect of how the issues surrounding Grace's involvement in the foster home were dealt with. Does he accept that he misled the committee and does he accept the charge that there was a cover-up?
David Cullinane (Waterford, Sinn Fein)
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I am sorry, the first part is important. The question I asked was: does Mr. O'Brien accept that he misled this committee?
David Cullinane (Waterford, Sinn Fein)
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Yes.
David Cullinane (Waterford, Sinn Fein)
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And we will test that. However, Mr. O'Brien agrees that he gave inaccurate information to the committee
David Cullinane (Waterford, Sinn Fein)
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Could Mr. O'Brien respond to the allegation of a cover-up?
Seán Fleming (Laois, Fianna Fail)
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I have to come in here. An issue of a cover-up will be investigated by the commission of investigation. Mr. O'Brien is here to correct the record of the previous committee meeting. If the Deputy can show me in the transcript where he believes-----
David Cullinane (Waterford, Sinn Fein)
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I was clarifying two issues - one, that charges were made, not by me but by members who were on the previous Committee of Public Accounts - and they were made in the Dáil - that there was a cover-up, and, two, that the witness misled the committee. If the Chairman does not want to deal with that, that is fine. I will move on to the other issues.
Seán Fleming (Laois, Fianna Fail)
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I am clear.
David Cullinane (Waterford, Sinn Fein)
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I am clear as well.
Seán Fleming (Laois, Fianna Fail)
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What was said in the Dáil is not our business here.
David Cullinane (Waterford, Sinn Fein)
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It was said here. Serving members of this committee alleged that there was a cover-up and Mr. O'Brien is obviously saying he does not believe there was a cover-up and we can just move on from that.
David Cullinane (Waterford, Sinn Fein)
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If Mr. O'Brien wants to take the opportunity then to answer the question-----
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien had the floor.
David Cullinane (Waterford, Sinn Fein)
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So Mr. O'Brien will not answer the question.
David Cullinane (Waterford, Sinn Fein)
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Absolutely.
Mr. Tony O'Brien:
I have come here to respond to the request from the Chairman. I have made a statement and I will answer any question that relates to evidence I have previously given to the committee. If the Deputy would like to ask me about evidence I have previously given to the committee, I will happily answer those questions.
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien will not answer that question.
David Cullinane (Waterford, Sinn Fein)
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I will move on the first topic that I wanted to deal with, which is the liaison with An Garda Síochána and the issue Mr. O'Brien addressed in his opening statement, which was the centre of controversy in terms of what he said when he was before the committee in the past. I sent a one-minute video clip to the secretariat where a question was put by Deputy Deasy, a former member of the committee, to which Mr. O'Brien responded and it sets the context. Perhaps we could hear that first.
David Cullinane (Waterford, Sinn Fein)
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We can see in that clip that Mr. Tony O'Brien was asked a straightforward question as to why the report was not published-----
Seán Fleming (Laois, Fianna Fail)
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To be helpful to people who are watching, we have just viewed that one-minute section of the transcript on our screens of the meeting of 2 February 2016. The public may not have seen it. I just want the public to know what is going on.
David Cullinane (Waterford, Sinn Fein)
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A straightforward question was asked of Mr. O'Brien as to why the report was not published. He said the only reason why the report was not published was because he had been given advice or instructions from An Garda Síochána not to publish the report.
In his evidence here today, Mr. O'Brien said that advice was given in April 2015. Is that correct?
David Cullinane (Waterford, Sinn Fein)
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Why did Mr. O'Brien not say that when he was asked that question by Deputy Deasy last year?
Mr. Tony O'Brien:
Because I had in prior testimony to a previous committee actually read out the correspondence from Arthur Cox - sorry our legal advisers I should say, as I should not name them - at the time. I felt Deputy Deasy was well aware of what I was referring to. Nonetheless, on the date that I said those things, they were absolutely true.
David Cullinane (Waterford, Sinn Fein)
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When did the HSE receive the Devine report?
David Cullinane (Waterford, Sinn Fein)
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So a decision was taken not to publish the report in 2012, in 2013, in 2014 and up to April 2015 before the HSE got any opinion from An Garda Síochána. Why was that decision taken? Who made the decision not to publish the report-----
David Cullinane (Waterford, Sinn Fein)
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-----up to the point when the HSE did get confirmation from An Garda Síochána? Who made the decision not to publish the report?
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien is talking about standard procedures.
David Cullinane (Waterford, Sinn Fein)
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Yes. What Mr. Tony O'Brien is telling me here today is that there were standard procedures and processes in place in the HSE that while a live investigation was ongoing, it would not publish reports of that nature. In other words, what Mr. O'Brien is telling me is that it was the HSE which made the decision up to April 2015 not to publish the report. It was not because of any advice from An Garda Síochána. Would that be fair?
Mr. Tony O'Brien:
If at any point prior to that there had been an affirmative decision to proceed to publication, then what happened in February 2015 is exactly what would have happened then. There would have been an application for guidance from An Garda Síochána via our lawyers, in particular because it would have been necessary to agree the exact form of redactions required.
David Cullinane (Waterford, Sinn Fein)
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With respect, a decision was only taken in February 2015 to trigger a process in which the reports would be published. Mr. O'Brien says that in the middle of 2012 his Department had received the report. From the middle of 2012 up to February 2015, no action was taken to publish the report.
What I am hearing from Mr. O'Brien is that the reason for that was because he was adhering to standards, processes and procedures within the HSE. My point is that the decision not to publish the report was based on that and not on any advice from An Garda Síochána.
Mr. Tony O'Brien:
It was based on first principles, which would apply to any public sector body, not just the HSE. These are recited and given considerable credit by Dignam in his report. I quoted the relevant sections in my opening statement.
Yes, that consideration was one that took place within the HSE in the context of-----
David Cullinane (Waterford, Sinn Fein)
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Prior to March 2015, had Mr. O'Brien sought an opinion from An Garda Síochána on whether the HSE could publish the report?
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien is not answering the questions I am putting to him.
David Cullinane (Waterford, Sinn Fein)
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He is not.
David Cullinane (Waterford, Sinn Fein)
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Listen, we have had enough stonewalling on this issue and I have to insist on the questions being answered.
Seán Fleming (Laois, Fianna Fail)
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Hold on.
David Cullinane (Waterford, Sinn Fein)
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No. I asked a straightforward question. I am putting the questions fairly but Mr. O'Brien is answering them in a way he wants to answer them.
The question I am asking is this. Prior to March 2015, did anybody in the HSE or the head of the HSE contact An Garda Síochána to seek advice on whether the reports could be published?
David Cullinane (Waterford, Sinn Fein)
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The decision not to publish the report - that was only taken in February 2015-----
David Cullinane (Waterford, Sinn Fein)
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I understand what happened in 2015. In February 2105, the HSE got advice from its legal team. In March 2015, the HSE wrote to An Garda Síochána. In April 2015, the HSE got the advice.
David Cullinane (Waterford, Sinn Fein)
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Yes, I am aware of all of that. Mr. O'Brien is not answering the question I am putting to him. He has made it clear that the HSE only triggered that process in terms of getting advice from An Garda Síochána in February 2015. From the report landing on the HSE's lap in 2012 up to February 2015, the reason for not publishing a report was not any advice from An Garda Síochána but was, as Mr. O'Brien said, down to standard procedures in terms of how these matters are normally dealt with. Is that correct?
David Cullinane (Waterford, Sinn Fein)
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I do not believe-----
David Cullinane (Waterford, Sinn Fein)
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If we were to play back that clip again, that would not be clear, with respect. The inference and the narrative from that clip was that the only reason - Mr. O'Brien was very clear - the report was not published was because of Garda advice. That is now not the case.
Mr. Tony O'Brien:
If the Deputy looks at the totality of that meeting rather than just one clip, he will see there was a strong narrative throughout the course of the meeting that I should there and then be publishing the reports. At many times I sought to explain - the Chairman may have been present - that I would find it much easier if I were in a position to give the committee the reports. I would not have to be seeking to explain things that I knew and the committee did not. At that point in time, there was a live, in-writing, repeated-many-times objection from An Garda Síochána in response to advices from it which had been sought at my initiation. There was no question at that point in time that I could publish them. The comments I made were contemporaneous and relevant to the dates in question. I have to insist that this is the case.
Seán Fleming (Laois, Fianna Fail)
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I will allow Deputy Cullinane come back in.
To clarify, a question has been put. Mr. O'Brien has answered it but from Deputy Cullinane's perspective it has not been answered. Is it correct that February 2015 was the first occasion on which the HSE contacted the Garda Síochána about publishing the report?
Seán Fleming (Laois, Fianna Fail)
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It is the first one you are aware of.
Mr. Tony O'Brien:
That was the time when I would have initiated through the social care division the formal steps that said let us see if we can get agreement from An Garda Síochána to a redacted version of these reports that can be published. I cannot preclude that there was ever any previous discussion. I am not claiming there was either, however.
Seán Fleming (Laois, Fianna Fail)
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Questions are being put. If members are not satisfied with the answers, this committee will have no problem in sending the transcripts and the views of the committee members to the commission of investigation for its consideration in due course. The commission will ultimately be the adjudicator on what is said or not said here today. If we are not satisfied, we will pass on our concerns. This is not the end of it. The process is only starting in another forum.
I call Deputy Catherine Murphy.
Catherine Murphy (Kildare North, Social Democrats)
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The reports were initiated and concluded. The Garda investigation commenced after the completion of the reports. Is that correct?
Catherine Murphy (Kildare North, Social Democrats)
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At what point did the HSE formally engage with the Garda about publication of the reports?
Catherine Murphy (Kildare North, Social Democrats)
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And the reports were at what stage at that point?
Catherine Murphy (Kildare North, Social Democrats)
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Why was the Devine report not published before the Garda investigation was initiated?
Catherine Murphy (Kildare North, Social Democrats)
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Was there formal engagement and correspondence with the Garda? Is that available?
Catherine Murphy (Kildare North, Social Democrats)
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Between the HSE and the Garda. What is the first point at which there is formal engagement?
Mr. Tony O'Brien:
The formal engagement, as distinct from the items referenced in the schedule that I gave to the committee, goes from February 2015. There was other dialogue around the carrying out of the reviews. At various stages, for example, there were requests from An Garda Síochána for the Devine process to be halted, at one stage early on. There was ongoing dialogue and communication, as per the schedule that was attached to my letter of the 16th last, circulated to the committee. All the dates are there as well.
Catherine Murphy (Kildare North, Social Democrats)
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I find it quite difficult to figure out the different individuals, H7, H6 and H4. Who was actually on this panel; was it H7, H3 and H12? It does matter because it is about who actually made the decision or was on the panel that made the decision. Originally it was said that there was a three-person panel, none of whom remained in the public service. Obviously we know different now. This week it was amended to a five-person panel and it was claimed it only referred to three persons who had a dual function. I am not clear about that. Can Mr. O'Brien name those in question? He may well have made reference to it. It is at variance with the people who have been identified in the Devine report.
Catherine Murphy (Kildare North, Social Democrats)
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Yes.
Mr. Tony O'Brien:
The information I have provided is absolutely consistent with the Devine report. I need to stress that when I was here last year, I referred to them as a panel "for want of a better word." I was making it clear that "panel" was probably not the better word. I could have said "group." I could have said "set of people." I was very clear that it was for want of a better word. The three persons who were in my mind at that time were H7, H3 and H12.
David Cullinane (Waterford, Sinn Fein)
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That is not what Mr. O'Brien was asked.
David Cullinane (Waterford, Sinn Fein)
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That is not what Deputy Deasy asked Mr. O'Brien at the time.
Seán Fleming (Laois, Fianna Fail)
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Mr. O'Brien should deal with Deputy Murphy.
Catherine Murphy (Kildare North, Social Democrats)
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For me, that is not at all clear. It is the people who actually made the decision. I was not on the Committee of Public Accounts at that point and Mr. O'Brien is trying to go back in retrospect.
Mr. Tony O'Brien:
No, I am not going back to anything in retrospect. What I am telling the Deputy now is exactly consistent with what I told the committee then. While I know it is difficult, because I was part of that conversation and Deputy Murphy was not, and I recognise that, the persons that I referred to as a three-person panel "for want of a better word" were those persons whom the Devine report identifies as having responsibility for carrying out the eight actions. It is very clear from a reading of the Devine report that those are H7, H3 and H12.
Catherine Murphy (Kildare North, Social Democrats)
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Mr. O'Brien has come back to us with clarifications this week and has explained why he did not identify one of the individuals as still working within the public service. He relied on the information within the system, which is not a reliable mechanism given that, as he told us, a different staff number is allocated each time somebody has a new engagement. Is the system capable of searching for a name? I know there can be duplications in names but it certainly seems to be a very flawed process if one just looks at an original payroll and at whether somebody has retired. It should be presumed that there is a possibility of re-engagement, particularly if people have retired early, for example.
Mr. Tony O'Brien:
Obviously I asked the relevant personnel to carry out the necessary searches to provide me with the information. I asked a separate set of personnel to carry out more recent searches and they have uncovered better, different information. One of the complications is that we did not have the agreement of An Garda Síochána to provide the key - that is to say, the document that sets out who H3 actually is, or H7 or H anybody else - to Tusla until January of this year. That was another complicating factor.
Catherine Murphy (Kildare North, Social Democrats)
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Was that a data protection issue?
Mr. Tony O'Brien:
An Garda Síochána was concerned that we should not provide the key that identified the individuals outside of the HSE, including to Tusla. The Garda agreed to that happening in January of this year and it was provided on foot of that agreement.
Catherine Murphy (Kildare North, Social Democrats)
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It is a key issue to identify the individuals, particularly if, had they been identified, HR disciplinary action would have followed. Each of the individuals named would have been given a copy of those reports prior to their publication. I presume it is the case that they would have had sight of the report.
Catherine Murphy (Kildare North, Social Democrats)
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In respect of best practice in this matter, the production of the reports has identified very significant shortcomings. It seems that those significant shortcomings were then put into cold storage, by virtue of the fact that there was a Garda investigation, of which they were not the subject, although they may well have been an ancillary part. That prevented the HSE from taking the individuals through a disciplinary process. Does that not put other clients at risk? It may well be best practice from the point of view of the personnel but is it best practice in respect of the subject? I am asking about this in a general way, not necessarily in connection with Grace but in terms of a process being flawed. How can the organisation possibly act on something if it takes that particular approach?
Mr. Tony O'Brien:
To answer in a general way, because the Deputy emphasised that she is asking in a general way, in any situation where there are parallel potential criminal law issues and HR issues - we have had this in other situations more recently - it is always the case that the criminal law issues must take precedence over the internal HR issues. That is problematic at times, I agree.
Catherine Murphy (Kildare North, Social Democrats)
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If there is a failure, there is a prospect of that failure continuing into other cases, for example.
Seán Fleming (Laois, Fianna Fail)
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I will have to move on to Deputy Madigan. Deputy Murphy will get back in but I am going to stick to the ten minutes for everybody.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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I thank Mr. O'Brien for coming in this afternoon. Forgive me if I am confused about this and I ask the Chair to correct me if I am wrong - I think Mr. O'Brien said earlier that the Garda was first contacted in February 2015. Is that not correct?
Mr. Tony O'Brien:
No. What I said was the first formal approach, seeking agreement to the publication of redacted versions, was from our office or from someone in the HSE to our legal team on 24 February 2015.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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That is about the reports.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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I am sorry to cut across Mr. O'Brien but what about Grace? When was that case reported to the Garda?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Am I correct in saying that it was as a result of a protected disclosure made to the previous Committee of Public Accounts, of which I was not a member, on 5 March 2016, that on 6 March 2016 the Garda was contacted about the treatment of Grace?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Is Mr. O'Brien saying there was no contact with the Garda on 6 March 2016?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Was there any contact with the Garda as a result of the protected disclosure that was made to this committee on the previous day, 5 March 2016? Did the HSE contact the Garda about Grace on 6 March 2016?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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It is just that the timing seems to be coincidental.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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My apologies if I was not clear.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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No, I am not asking that. Forgive me if I am wrong, Chairman, I am only a member of this committee for seven months but my understanding is that a protected disclosure on Grace was made to this committee on 5 March 2016.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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And then the Garda was contacted by the HSE the following day.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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The Garda was not contacted at all.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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That does not tally with the information I have but if that is the evidence Mr. O'Brien is going to give to the committee today then I have no option but to accept it. Is Mr. O'Brien saying that there was absolutely no contact?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Yes.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Was there any contact at all by the HSE on 6 March 2016 with the Garda?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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No, I think we are talking about this particular issue.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Mr. O'Brien mentioned that already. If he is saying there was no contact then there was no contact. If he believes there was, he might come back to me about it.
Seán Fleming (Laois, Fianna Fail)
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Is it 2015 or 2016?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Apologies, it was 2015.
Seán Fleming (Laois, Fianna Fail)
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In 2016 it was a week after a general election and there was no Committee of Public Accounts.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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I meant 2015. My apologies. I am sorry if I confused Mr. O'Brien. I will correct the year. It was 5 March 2015 and 6 March 2015. I want to know if the HSE had any contact with the Garda on that day because my understanding is there was a protected disclosure made to the previous Committee of Public Accounts on 5 March 2015 and the timing seems quite coincidental.
Mr. Tony O'Brien:
It would be interesting to know when there was contact made between the previous committee and the HSE. I do not have that information. I do not know how quickly the information was transmitted but from a schedule I have here I can tell the committee that the firm of solicitors to which I referred earlier was in contact with An Garda Síochána by letter on 6 March 2015.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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So it is exactly the day after the protected disclosure was made to the previous Committee of Public Accounts.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Does that seem coincidental to Mr. O'Brien?
Josepha Madigan (Dublin Rathdown, Fine Gael)
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It is a big coincidence.
Alan Kelly (Tipperary, Labour)
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There are 365.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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I will move on.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Does Mr. O'Brien not think when we are trying to look at this objectively it is a small ravine between the two days? One event happened the day after the other.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Mr. O'Brien can come back to us about that. I just want to move on because I am very conscious of the little time I have.
Seán Fleming (Laois, Fianna Fail)
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Yes, to be helpful. I will give Deputy Madigan more time to allow Mr. O'Brien to look through the documentation. Mr. O'Brien said that on 24 February 2015 he requested his legal advisers to initiate a process with the Garda Síochána and two weeks later on 6 March contact was made. This process was in train before the protected disclosure was made.
Seán Fleming (Laois, Fianna Fail)
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Could Mr. O'Brien say that slowly again?
Catherine Connolly (Galway West, Independent)
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I missed that.
Seán Fleming (Laois, Fianna Fail)
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We missed that.
Catherine Connolly (Galway West, Independent)
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Is that in schedule in the appendix that Mr. O'Brien gave us?
Seán Fleming (Laois, Fianna Fail)
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No, it is in his opening statement.
Catherine Connolly (Galway West, Independent)
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I know that. I refer to the appendix of correspondence. I do not see a reference to 24 February. It seems to start with 6 March.
Mr. Tony O'Brien:
That would be because what is on there relates to communication with the Garda. I am giving the full sequence. On 24 February a letter was sent to the solicitors re the publication of the Conal Devine report. A second letter was sent on the same date regarding the Resilience report. On 1 March a letter was sent from the solicitors back to the HSE re legal advices regarding publication of the CD report. On 3 March-----
Seán Fleming (Laois, Fianna Fail)
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What report?
Seán Fleming (Laois, Fianna Fail)
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Conal Devine, yes.
Mr. Tony O'Brien:
On 3 March a letter was sent from the solicitors back to the HSE. Similarly it contained legal advices on the Resilience Ireland report. On 6 March there was a letter from the solicitors to An Garda Síochána, AGS.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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So there is confirmation that the HSE contacted An Garda Síochána on 6 March 2015, directly after the protected disclosure. I just wanted to confirm that for the record.
Mr. Tony O'Brien:
Yes, but I do need to say to Deputy Madigan that the HSE was not informed of the disclosure to the PAC until 10 March. The date of 6 March was triggered by 24 February, which in turn-----
Josepha Madigan (Dublin Rathdown, Fine Gael)
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So it is just a coincidence.
Mr. Tony O'Brien:
-----was triggered by questions asked at the Joint Committee on Health and Children – written questions – in respect of its meeting on 12 February, and some follow-up meetings in relation to that which led to our decision that we should push for the publication because we found ourselves constrained in relation to answering questions by the Joint Committee on Health and Children and also because of the reasons I stated in my opening remarks regarding our knowledge that the Garda investigation was reaching a conclusion and so was Resilience Ireland.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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I appreciate Mr. O'Brien's elaboration but from our perspective the timing seems quite coincidental.
I will move on. I wish to refer to Mr. O'Brien’s opening statement. He referred to the fact that he did not want to interfere with the live investigation being conducted by the Garda. Is he aware of the correspondence with Commissioner O'Sullivan, dated 23 December 2016, and a letter concerning deputy commissioner Eugene Corcoran dated 15 July 2016? They have a different version of events from the one made by Mr. O'Brien in his meeting of 2 February. They both state clearly that the Garda has no objection to the publication of the relevant reports in circumstances where the interests of the affected parties and-or the overall public interest require it. Mr. O'Brien has corrected the record in relation to some matters in his report but he might just give us his views on that please?
Mr. Tony O'Brien:
I have nothing to correct here because the letter Deputy Madigan is referring to, which was addressed to me, in response to inquiries I made of the Garda Commissioner was not until 23 December. It referenced a letter that had been sent earlier to Conor Dignam by another senior officer, Eugene Corcoran, which was on 15 July 2016. We have provided it to the committee as part of the FOI file, which was never given to the HSE until it was attached to the letter of the Commissioner, but even after the letter of 15 July we were still receiving written correspondence from elsewhere in An Garda Síochána continuing to request us not to publish the reports.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Is Mr. O'Brien saying one section of An Garda Síochána was asking the HSE not to interfere, while another was stating it should?
Mr. Tony O'Brien:
Yes. In the letter dated 23 December the Garda Commissioner referred to the fact that the Garda position had not previously been expressed to the HSE with sufficient clarity. As noted by the Deputy, that is a nice way of saying one part of An Garda Síochána was stating one thing to Mr. Conor Dignam, while another was stating the opposite to the HSE.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Was Mr. O'Brien aware of what was happening at the time, that two pieces of advice were being given?
Mr. Tony O'Brien:
Only when the Dignam report was published. I forwarded it immediately to the Garda Commissioner with a request that she provide me with the definitive position. I believe we have given that correspondence to the committee. It led to the letter dated 23 December and, in turn, to meetings in early January when redacted versions of the reports were cleared for publication.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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The commission will probably look into that matter further as it is quite worrying if Mr. O'Brien is saying one part of An Garda Síochána is giving advice which is in direct conflict with that given by another.
Josepha Madigan (Dublin Rathdown, Fine Gael)
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Okay.
Seán Fleming (Laois, Fianna Fail)
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The Deputy will have an opportunity to come back in.
Catherine Connolly (Galway West, Independent)
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I should preface my remarks by saying I have read the report and that I am absolutely sickened. I know that it is not relevant, but I would not be human if I did not say I was absolutely sickened. I cannot imagine what it is like for those affected, having read the report more than once. I will start with a practical question on the independent external review. When did it start? When will it be completed and what will it cost? It is referred to in the final paragraph of Mr. O'Brien's opening statement.
Catherine Connolly (Galway West, Independent)
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Yes. As I have difficulty in pronouncing it, I am avoiding the word.
Catherine Connolly (Galway West, Independent)
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It is okay. I am not going to use the few minutes I have available discussing how it arose. My question is: when did it start? When will it be completed-----
Catherine Connolly (Galway West, Independent)
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I did not hear the answers. When precisely did it start? When will it be completed and how much will it cost?
Catherine Connolly (Galway West, Independent)
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Okay.
Catherine Connolly (Galway West, Independent)
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Very good.
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien is expecting to receive it. Was it not set out in the terms of reference?
Catherine Connolly (Galway West, Independent)
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Was a period set out within which the report should be completed?
Catherine Connolly (Galway West, Independent)
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My question-----
Catherine Connolly (Galway West, Independent)
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I am taking it directly from Mr. O'Brien's statement. I am very conscious of what the Chairman told us. He is perfectly right on what we should stick to. I am very conscious there is an ongoing inquiry.
Catherine Connolly (Galway West, Independent)
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Lovely. Therefore, I will be told when it started, when it is to be completed and what it will cost.
Catherine Connolly (Galway West, Independent)
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Good. That is great.
Seán Fleming (Laois, Fianna Fail)
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Could it be sent promptly, within a day or two?
Catherine Connolly (Galway West, Independent)
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I will move specifically to the other question which relates to the three people identified by Mr. O'Brien who is here to clarify his evidence given to the Committee of Public Accounts in February 2016. He pointed out that there was "a three-person panel, for want of a better word." Although it is not in the evidence, it was in Mr. O'Brien's mind. Is it right that it was H6? Who were the three people in Mr. O'Brien's mind?
Catherine Connolly (Galway West, Independent)
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They were the three people who were in Mr. O'Brien's mind. When he gave evidence that they had all left the public service, he inadvertently made a mistake with one of them. Is that correct?
Catherine Connolly (Galway West, Independent)
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Okay. I will put my question in order that Mr. O'Brien can answer it. They were the three people who were in his mind. He told us that they were, but he did not say who the three people were. He confirmed they had all left the public service but one of them had not. Is that correct?
Catherine Connolly (Galway West, Independent)
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Good. That person has been identified in letters as H12. Is that right?
Catherine Connolly (Galway West, Independent)
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I thank Mr. O'Brien. He has clarified the position. He said there was "a three-person panel, for want of a better word" and referred to the Devine report. Let us look at that report. As Mr. O'Brien knows the paragraph by heart, he might guide me.
Catherine Connolly (Galway West, Independent)
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I think Mr. O'Brien does.
Catherine Connolly (Galway West, Independent)
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That is correct.
Catherine Connolly (Galway West, Independent)
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I will guide Mr. O'Brien and thank him for finding the page. H3 is identified in it, with H7 and H12. They are identified between points Nos. 1 and 8 in the middle of the page. Is that right?
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien identified them as being part of a panel. That word is never used.
Catherine Connolly (Galway West, Independent)
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It is a word Mr. O'Brien used.
Catherine Connolly (Galway West, Independent)
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Very good. Who else was there on the day? Mr. O'Brien spoke about five people.
Catherine Connolly (Galway West, Independent)
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Yes, I can read that, but I asked who else was there.
Catherine Connolly (Galway West, Independent)
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The Chairman might bear with me for an extra minute or two as we go through the report.
Catherine Connolly (Galway West, Independent)
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Is Mr. O'Brien telling me that they were there and make up the five?
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien identified H7, H3 and H12 as the three who had a dual role. Is that right?
Catherine Connolly (Galway West, Independent)
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If Mr. O'Brien keeps saying the words "as per the report," I will open it up and refer to a lot of other stuff. Things can be taken out of a report. I will put the matter in context. Mr. O'Brien referred to the three as having a dual role.
Catherine Connolly (Galway West, Independent)
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Yes.
Catherine Connolly (Galway West, Independent)
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I thank Mr. O'Brien. Why is he identifying three people as having a dual role as opposed to the five who possibly made the decision?
Catherine Connolly (Galway West, Independent)
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What were they?
Catherine Connolly (Galway West, Independent)
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Okay.
Catherine Connolly (Galway West, Independent)
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It is stated on page 88: "The Inquiry Team would also be of the view that the decision taken at October's case conference to effectively reverse the outcome of the April case conference was taken by the professionals concerned, including ... (H7), ...(H6), and ... (H4)". Has Mr. O'Brien read this?
Catherine Connolly (Galway West, Independent)
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Good. There was no mention of H12.
Catherine Connolly (Galway West, Independent)
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I have and underlined them.
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien, please. I am sticking strictly to this and have underlined the various parts. Paragraph 5.4.2 reads, "The Inquiry Team would also be of the view...". It proceeds to identify those who took the decision to "effectively reverse the outcome" as H6, H7 and H4. There is no mention of H12. Is that correct?
Catherine Connolly (Galway West, Independent)
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There is no mention of H12 as one of the individuals who made the decision as identified by the inquiry team. Mr. O'Brien's colleague is shaking his head. Does Mr. Purcell agree?
Catherine Connolly (Galway West, Independent)
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I have done that.
Catherine Connolly (Galway West, Independent)
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Absolutely.
Catherine Connolly (Galway West, Independent)
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I want to be fair to Mr. O'Brien. He introduced the word "panel" and the term "dual role". This inquiry, at paragraph 5.4.2, identifies three people, none of whom is among the persons Mr. O'Brien identified. He can disagree with me if he wishes. I am highlighting this point.
Catherine Connolly (Galway West, Independent)
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I will come to how it relates to the evidence. Does Mr. O'Brien accept what I am saying about paragraph 5.4.2?
Catherine Connolly (Galway West, Independent)
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I did not do that.
Catherine Connolly (Galway West, Independent)
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I did not do that. I will refrain from saying that it might be appropriate for me to interpret that that is what Mr. O'Brien has done but I will not make that interpretation. I will stick with the facts.
Catherine Connolly (Galway West, Independent)
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No, I am not.
Seán Fleming (Laois, Fianna Fail)
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Please address remarks through the Chair. I ask Deputy Connolly and Mr. O'Brien to speak to the evidence.
Catherine Connolly (Galway West, Independent)
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Mr. Purcell can answer if he likes. Mr. O'Brien stated the three individuals were in his head when he gave evidence.
Catherine Connolly (Galway West, Independent)
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He inadvertently stated they had all left the public service. He has clarified this and identified those three people as three people who made a decision and had a dual role. If we take the five individuals, H6 is mentioned. Is H6 still employed by the Health Service Executive, Tusla or anywhere else in the public service?
Catherine Connolly (Galway West, Independent)
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Okay. Let us look at the word "others". The others still in public service include H6.
Catherine Connolly (Galway West, Independent)
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Okay. That is to the best of Mr. O'Brien's knowledge.
Catherine Connolly (Galway West, Independent)
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Could that change?
Catherine Connolly (Galway West, Independent)
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Yes, depending on searches or more digging or-----
Catherine Connolly (Galway West, Independent)
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Let me use up the few seconds left to me because this is a very serious issue. The others to whom Mr. O'Brien refers-----
Catherine Connolly (Galway West, Independent)
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Great.
Mr. Tony O'Brien:
Let us be clear about why we conducted a search. We conducted a search to see if we could be absolutely certain that the evidence I gave - that the three people had left the service - was correct. Where we are aware of people who are continuing in the service, there is not a whole lot of searching required.
Catherine Connolly (Galway West, Independent)
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I am sticking rigidly to the point. Mr. O'Brien came and gave evidence. He had three people in his head and it turns out that one of them had not left the service. I am moving on because the Chairman has asked me to do so. I am identifying and speaking now about H6. Mr. O'Brien is putting H6 among the others who are still employed. By whom is H6 employed? Does Mr. O'Brien know where H6 is as we speak in terms of the position he or she may have?
Catherine Connolly (Galway West, Independent)
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Great. Will Mr. O'Brien clarify the position for us?
Seán Fleming (Laois, Fianna Fail)
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It is very important that Mr. O'Brien does not identify the person.
Catherine Connolly (Galway West, Independent)
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I do not want the person identified. Mr. O'Brien is here to correct the record. He inadvertently made one mistake. I am just identifying H6 - there are other people - who was identified by the inquiry as one of the key decision makers. Is that person currently with Tusla, the Health Service Executive or any other public body? I ask for a "Yes" or "No" answer.
Catherine Connolly (Galway West, Independent)
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Good. Is Mr. O'Brien in a position to clarify what position the person holds, where he or she is employed and whether he or she has been promoted?
Catherine Connolly (Galway West, Independent)
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That is fine. I accept that.
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien has already identified, in the case of H3, that the person is working for Tusla. Given that he has made that leap in respect of one individual, I do not see why he cannot do so for somebody else.
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien did so in the case of H3.
Catherine Connolly (Galway West, Independent)
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Is H6 working for Tusla?
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien can say "No" if he wants.
Seán Fleming (Laois, Fianna Fail)
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He should not identify the person.
Catherine Connolly (Galway West, Independent)
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I am entitled to ask the question.
Catherine Connolly (Galway West, Independent)
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Absolutely
Seán Fleming (Laois, Fianna Fail)
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Is H6 employed in the public service?
Seán Fleming (Laois, Fianna Fail)
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To go further might potentially identify that person.
Catherine Connolly (Galway West, Independent)
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We have "might" and "may". When Mr. O'Brien gave evidence in February 2016 it was in the context of a general question by Deputies who were asking questions about what happened to the people who made these decisions and where they went afterwards. I have read the transcript and that was the general context. In that context, I am asking Mr. O'Brien the same question today because he has now identified somebody in terms of a panel that did not exist. He has confirmed three persons that he had in his mind and he is not looking at the inquiry which indicated that H7, H4 and H6 made the decision to leave Grace in the home. Where are these people working now? That is my simple question to Mr. O'Brien.
David Cullinane (Waterford, Sinn Fein)
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This is more stonewalling and it is unacceptable.
Seán Fleming (Laois, Fianna Fail)
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I will move on.
Catherine Connolly (Galway West, Independent)
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The Chairman may make a ruling on this matter but I certainly believe it has not been helpful. I have not tried to identify anyone. I am simply-----
Seán Fleming (Laois, Fianna Fail)
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That is good.
Catherine Connolly (Galway West, Independent)
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Please, we are here today to clarify matters. It would be helpful, therefore, if Mr. O'Brien clarified matters. The reason he is back before the committee is because of the lack of clarification on the previous occasion or the inadvertent giving of the wrong information.
Seán Fleming (Laois, Fianna Fail)
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What is the essence of the question regarding H6?
Catherine Connolly (Galway West, Independent)
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The questions were asked by the Chairman at the previous meeting with regard to what happened to the persons who made the decision to leave Grace in her home. That was the context.
David Cullinane (Waterford, Sinn Fein)
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That is not what the-----
Catherine Connolly (Galway West, Independent)
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Where did these people go and what happened in terms of whether they are still working for the public service? That is the context and Mr. O'Brien said all three that were in his head were not working for the public service. It turns out that not only is one of them still in the public service, but H6, who has been identified by the inquiry, is also in the public service. Mr. O'Brien is saying he cannot clarify whether this means Tusla, the Health Service Executive or another public body, although, as Deputy Cullinane pointed out, he has clarified the position in respect of the other person. It seems-----
Seán Fleming (Laois, Fianna Fail)
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He clarified the position regarding the other individual because it was necessary to do so in terms of clarifying-----
Catherine Connolly (Galway West, Independent)
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The word "sophistry" was used yesterday in the Dáil.
David Cullinane (Waterford, Sinn Fein)
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If I can be helpful, we are now dealing with the Devine report. A specific question was asked by Deputy Deasy at the time in relation to the three people who made the decision. The Devine report states the three people in question were H7, H4 and H6, not H3 or H12. If Mr. O'Brien can point to anywhere in the report where it says H3 or H12 made the decision Deputy Deasy talked about, perhaps he will point to the relevant page.
Seán Fleming (Laois, Fianna Fail)
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I will revert to Deputy Connolly before moving on to Deputy Kelly.
David Cullinane (Waterford, Sinn Fein)
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I ask Mr. O'Brien to point to the relevant page, please.
Seán Fleming (Laois, Fianna Fail)
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Everybody knows the purpose of the meeting is to correct the record, not to interrogate the Devine report.
David Cullinane (Waterford, Sinn Fein)
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If Mr. O'Brien is unable to point to anywhere in the Devine report where H3 or H12 were seen as having made the decision, it would, in itself, correct the record because it would show that he misled the committee.
Seán Fleming (Laois, Fianna Fail)
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I will move on.
David Cullinane (Waterford, Sinn Fein)
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We cannot move on unless Mr. O'Brien is given an opportunity to point to the report.
Seán Fleming (Laois, Fianna Fail)
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Deputy Cullinane will be able to contribute shortly. I am taking speakers in sequence.
Catherine Connolly (Galway West, Independent)
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I do not like the use of the word "interrogation" in this context. The Chairman may have been making a general comment but I have been factual and asked factual questions. My final question concerns contact with the Garda. Mr. O'Brien stated contact was made on 24 February 2015.
Catherine Connolly (Galway West, Independent)
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What triggered this contact? Mr. O'Brien stated the Health Service Executive triggered it.
Mr. Tony O'Brien:
Yes, the decision was made by the HSE and it was made, as outlined in my opening statement, by the fact that the Resilience Ireland report was nearing its conclusion and that knowledge that the Garda investigations were at an advanced stage. Also, we were finding ourselves in a particular difficulty in being able to provide full answers in regard to inquiries made of us by the Joint Committee on Health at that time.
At that point, we decided that it would be appropriate to push on and proceed to publication-----
Catherine Connolly (Galway West, Independent)
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The members are being rude. I cannot hear.
Seán Fleming (Laois, Fianna Fail)
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Deputy Kelly is in. Deputy Connolly will come back in.
Catherine Connolly (Galway West, Independent)
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I was interrupted three times. Mr. O'Brien has clarified it. He states it was the health board.
Catherine Connolly (Galway West, Independent)
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That will tell Mr. O'Brien where I am, with the health board still in my head. Mr. O'Brien states it was the health executive. I put it to him that it followed on from a statement by Deputy McGuinness in the Dáil in relation to the situation. That simply requires a yes or a no.
Catherine Connolly (Galway West, Independent)
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Before 24 February.
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien asked me when. I cannot go on. Sorry, was it 24 February?
Seán Fleming (Laois, Fianna Fail)
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Deputy Kelly is the next speaker. I call Deputy Kelly.
Alan Kelly (Tipperary, Labour)
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I am sorry, I waited long enough. Apologies for being late. My legislation was going through the Dáil. That is why I was not here but I have read Mr. O'Brien's statement.
Seán Fleming (Laois, Fianna Fail)
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There is a phone buzzing.
Alan Kelly (Tipperary, Labour)
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That is not me now. I am innocent. Maybe I have this radiation. It is not me.
Seán Fleming (Laois, Fianna Fail)
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I am not saying it is. I do not know who it is. Phones must at least be on aeroplane mode. Okay, we will try again.
Alan Kelly (Tipperary, Labour)
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Is it coming from over there.
Alan Kelly (Tipperary, Labour)
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All right, I will try.
I note what we are doing here today. We need to have confidence in the HSE, obviously, under Mr. O'Brien's jurisdiction. Mr. O'Brien is not an island. I accept that he cannot know everything that went on in the HSE historically. I accept errors can happen. Obviously they should not, but they can. I accept that Mr. O'Brien is relying on others. He is managing a massive organisation, the largest employer in the country. Mr. O'Brien must have confidence in the information being provided to him at all times, particularly when he comes before the committee. In fairness, Mr. O'Brien is so often before committees here that he is here almost every week.
We are here analysing the statement Mr. O'Brien made to the committee and the subsequent statement he made. On the previous occasion Mr. O'Brien was here, there was a delegation with him which included Mr. Pat Healy. This committee made requests that Mr. Healy be here again today for the purposes of accuracy on what happened at the last meeting and the statement Mr. O'Brien made, which, obviously, was influenced by Mr. Healy because Mr. Healy is responsible for that area. Mr. Healy also was not out on radio a couple of weekends ago when Dr. Cathal Morgan, who is an excellent individual and who, in fairness, is only new into the job, was put out. Why is Mr. Healy not here today with Mr. O'Brien?
The issue for me is that this is the person responsible. They are a team. Mr. Healy reports to Mr. O'Brien. In order to get the accuracy required on the information that we need, surely, given the request by the Chairman, he would be here with Mr. O'Brien. Why is he not here with Mr. O'Brien?
Seán Fleming (Laois, Fianna Fail)
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To clarify, the Deputy asked yesterday. We made a phone call yesterday evening to see would he attend.
Alan Kelly (Tipperary, Labour)
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I understand that. My point is this.
Alan Kelly (Tipperary, Labour)
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Mr. Healy is responsible. Is he not responsible for this area?
Mr. Tony O'Brien:
If the Deputy reads the transcript of the first part of the last time I was here, I took it, pretty literally, from what was said, that the inference was that it was my evidence that needed to be clarified. All the correspondence reaffirmed that. The last time I was here - the time that we are now talking about - I came in here with a team with less than two days notice and we answered questions for hours and hours and hours, and some of those words are now being parsed over. I was not going to bring anyone in here at 15 hours notice to answer questions about anything because that would simply be daft.
Alan Kelly (Tipperary, Labour)
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Okay, but does Mr. O'Brien not accept we asked?
Alan Kelly (Tipperary, Labour)
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We did ask for him yesterday.
Seán Fleming (Laois, Fianna Fail)
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Only in the past 20 hours.
Alan Kelly (Tipperary, Labour)
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I disagree. In fact, I believe that in order to provide the information we require here which is quite detailed, Mr. Healy is obviously the person who is in possession of the knowledge and the person who is in possession of the knowledge should be sitting with the chief executive.
Seán Fleming (Laois, Fianna Fail)
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In fairness, not wishing to contradict the Deputy, when the HSE was in on the other issue a couple of weeks ago we raised this entire issue about the commission of investigation. Every one of the 13 members of the committee were clear.
Alan Kelly (Tipperary, Labour)
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Is it okay to continue?
Seán Fleming (Laois, Fianna Fail)
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No. I will give Mr. O'Brien a moment because information is being passed to him.
I am merely saying I am clear that when we were here two weeks ago all 13 members of the committee directed their questions for Mr. O'Brien to clarify the record, for Mr. O'Brien to clarify his evidence, for Mr. O'Brien to send us a letter and for Mr. O'Brien to appear in person within two weeks, and this is exactly two weeks later. What was asked on that day by this committee has been complied with to the spirit and the letter. In the past day, we made a supplementary request but it was not the original request. That is all I am saying.
Alan Kelly (Tipperary, Labour)
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I will move on because that is splitting hairs. It was necessary for Mr. Healy to be here. I think most of those present believe that.
In fairness, Mr. Healy, working through Mr. O'Brien, accepted responsibility for the fact that information came out that was inaccurate and that needed to be corrected. We all know that. That is fair enough. There is no doubt in acknowledging that.
I am sticking strictly to the evidence. As a result of the evidence which was given here and the evidence given by Mr. O'Brien in a subsequent letter which was subsequently amended, has Mr. O'Brien confidence that the information - I will narrow it down - being provided to him by this HSE division has always been given to him in an accurate fashion at the time at which it was given? I am not getting into the terms of the investigation. I am asking a deliberate question because this is the Committee of Public Accounts. This is about the linear consistency of information being given to Mr. O'Brien. That is what I am asking about, not the actual information.
Alan Kelly (Tipperary, Labour)
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Which is what?
Seán Fleming (Laois, Fianna Fail)
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A teddy bear.
Alan Kelly (Tipperary, Labour)
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I do not know how to react to that one anyway. Maybe we should get into a room together. That was a joke and it was not a compliment.
Alan Kelly (Tipperary, Labour)
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I was only joking.
Alan Kelly (Tipperary, Labour)
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Through this whole process there have been errors made in information in relation to the apology for Grace, in relation to the apology to her mother, in relation to the apology to this committee. Has there been any accountability or fallout as a result of what has happened at the Committee of Public Accounts on this issue? Has there been any fallout within the HSE?
Mr. Tony O'Brien:
The Deputy himself mentioned some of the changes that have occurred in the social care division of the HSE. That is partly a response to some of the issues that we faced in the early part of last year.
Alan Kelly (Tipperary, Labour)
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Has anyone been disciplined?
Mr. Tony O'Brien:
No, and I will tell the Deputy why, in relation to the specific matter the Deputy is asking me about which is the rather extraordinary mess that occurred around the apologies.
In relation to the content of the letter of apology which I rejected once I saw it, I withdrew it and replaced it with a proper apology, which I discussed with the committee the last time I was here. I felt there had been a failure, but I did not think it was an act of badness. In relation to the apology that was never given to Grace and those who cared for her, as I outlined in my evidence, I met all of the people involved. It was an extraordinary series of mistakes, but, having looked at them in the whites of the eyes on the Friday before coming here on the Tuesday, I accepted that it had been "monumental cock-up".
Alan Kelly (Tipperary, Labour)
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Absolutely. Can I just-----
Seán Fleming (Laois, Fianna Fail)
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The Deputy should let Mr. O'Brien finish.
Alan Kelly (Tipperary, Labour)
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Fine. Was the amendment Mr. O'Brien had to make to the statement given to us last night another honest mistake?
Alan Kelly (Tipperary, Labour)
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I am not being personal, but there is a consistent series of errors. From the perspective of the general public and the taxpayer, some of the people in question are paid serious money, a lot more than people sitting on this side of the table, not that it matters. They are paid serious money, but there is no accountability for errors occurring at this level. Can Mr. O'Brien see why the public are pretty mad about this?
Alan Kelly (Tipperary, Labour)
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That is actually positive to know. Has an apology been made to the whistleblower?
Alan Kelly (Tipperary, Labour)
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In relation to the evidence given by the whistleblower. It was stated it was false and there were letters to the High Court. It was stated she was not going to be responsible enough in charge.
Alan Kelly (Tipperary, Labour)
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Wait one second. The issue has been raised here as part of the process. Did Mr. O'Brien tell anybody in the HSE, for instance, to make an apology? Did they refuse and, if so, why?
Alan Kelly (Tipperary, Labour)
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I do not accept that.
Seán Fleming (Laois, Fianna Fail)
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If it is mentioned in the transcript, this topic-----
Alan Kelly (Tipperary, Labour)
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Obviously, the issue of the whistleblower comes up in the transcript.
Alan Kelly (Tipperary, Labour)
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I do not have it right here this second. Perhaps I will ask the officials to look at it.
On the statement made here on the funding of the agency which was spoken about as part of this process-----
Alan Kelly (Tipperary, Labour)
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Mr. O'Brien did. As part of that process, obviously, there is a review taking place. It is being conducted by a very credible agency for a long period. It is quite incredible that it is taking this length of time. Has Mr. O'Brien received a draft report from Deloitte?
Alan Kelly (Tipperary, Labour)
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Has nobody in the HSE laid his or her eyes on a draft report from Deloitte, on a screen or otherwise?
Alan Kelly (Tipperary, Labour)
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No. That is going to be interesting. Why do we not follow it up?
On the Garda side of things, I might be able to help Mr. O'Brien. Deputy Josepha Madigan went through the chronology of letters to and from legal people, etc. Mr. O'Brien is saying that on 24 February there was a process whereby the HSE wrote to the solicitors to ask about engaging in publishing the report. Was there correspondence some years earlier from the Garda stating there was no reason this report should not be published in the first place? Yes or no.
Mr. Tony O'Brien:
I think the Deputy is referring to the original correspondence on the initiation of the Devine report, at which point Garda support or agreement - or whatever the correct term is - was sought for or on the terms of reference for the Devine report. At that stage, they were happy that it would be proceeded with and proceed to publication. What happened subsequently was that they went into live investigation mode.
Alan Kelly (Tipperary, Labour)
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Mr. O'Brien is saying the reason the Garda was happy for it to be published-----
Alan Kelly (Tipperary, Labour)
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Mr. O'Brien is saying the difference is it was felt it could not be published when it went into investigation mode.
Alan Kelly (Tipperary, Labour)
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I was, actually. I was here for all of Mr. O'Brien's discussion.
Alan Kelly (Tipperary, Labour)
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As I was here, Mr. O'Brien does not need to go back over it.
Mr. Tony O'Brien:
The Deputy will recall, therefore, that I said I was not claiming that the Garda had offered an opinion one way or the other. I am saying what was followed, as outlined in the Dignam report, was the convention, the normal practice, for public bodies, which the Dignam report has, as it were, confirmed and that the first-----
Alan Kelly (Tipperary, Labour)
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I am not sure Mr. Dignam has confirmed it.
Alan Kelly (Tipperary, Labour)
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I do not think so. I will leave it at that.
Can I get back to the date of 24 February? Prior to my contribution, Deputy Catherine Connolly was going down a road I would like to go down a little further. There is considerable interest in the dates of 5 and 6 March. I accept that there could be a one in 365 chance of it being the day after. Deputy Josepha Madigan referred to this also. I do not believe the issue of the two dates is the really important one. I believe the events of 6 March happened because of the article in Sunday Independenton 22 February. That was also around the same time Deputy John McGuinness raised the issue of the disclosure in Dáil Éireann. That is what prompted the writing of the letter on 24 February. There is no credible reason for there being such a delay in asking the Garda whether the report could be published. This should have been a request that was ongoing, or one being made all the time. Because it had taken this length of time, all of a sudden, the heat was on in Dáil Éireann and it was coming from the Sunday Independent. In fairness to both the print and broadcast media then and now, we would not be sitting here were it not for them. They have done us all a good service. That was the motivation. Mr. O'Brien said quite diligently and proudly that he had not received the information on the disclosure until 10 March. I will check the record, but I am sure it was 10 March. If I am wrong, I will apologise, but it was around then. The fact is that these two happenings occurred literally just before the HSE decided to ask the Garda whether the report should or could be published.
Alan Kelly (Tipperary, Labour)
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Yes. What prompted the action of 24 February?
Alan Kelly (Tipperary, Labour)
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We will get to Resilience Ireland at around 8 p.m. Do not worry.
Alan Kelly (Tipperary, Labour)
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Okay. I will ask the questions and you will give the answers.
Seán Fleming (Laois, Fianna Fail)
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Through the Chair, please.
Alan Kelly (Tipperary, Labour)
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That is the way it works.
Alan Kelly (Tipperary, Labour)
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Of course, but my point is that I said we would ask questions about Resilience Ireland later. That is what I was referring to. I ask Mr. O'Brien to go ahead.
Mr. Tony O'Brien:
That is fine. That question was answered and led to a desire to engage further with the committee. The relevant Minister of State, the relevant officials of the HSE and two members of that committee met.
In preparation for that, it was clear that there were significant issues with the publication of Resilience, which was nearing completion, and that it made sense to publish it together with the Devine report.
Alan Kelly (Tipperary, Labour)
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Genuinely for accuracy, who are the two committee members to whom Mr. O'Brien refers?
Mr. Tony O'Brien:
Deputies Wallace and Daly. The question was asked by Deputy Daly. As a result of the preparations to answer the question of the committee, the person to whom Deputy Kelly referred, Mr. Pat Healy, spoke to me of his concerns that these reports would be published, so that we could give fuller answers; and that we were feeling constrained in our engagements with the Oireachtas and Ministers by being unable to publish. It was for that reason that I asked him to initiate a process of dialogue with the Garda Síochana to do one of two things: ideally to get us into a position of publication, or at least to be clear why we could not publish. That was the trigger.
Alan Kelly (Tipperary, Labour)
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I know I am moving on, Chairman.
Seán Fleming (Laois, Fianna Fail)
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We will come back a second time.
Alan Kelly (Tipperary, Labour)
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I could be back a third or fourth time, yet. To be fair to the witness in relation to this, Mr. O'Brien is accepting that was the trigger, in his mind. The committee meeting of 12 February -----
Alan Kelly (Tipperary, Labour)
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The committee meeting was on 12 February, there was Deputy John McGuinness's contribution in the Dáil, and the Sunday Independent article. At this time there had also been a disclosure. There was all of that. Subsequently, the Committee of Public Accounts happened, then the HSE wrote to the Garda.
Alan Kelly (Tipperary, Labour)
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Well sorry, the solicitors acting on the HSE's behalf wrote on 6 March. Basically, that package of activity was very much in the public domain and as a consequence, then the solicitors acting on the HSE's behalf went to the Garda after years to ask to publish this. Is that fair?
Alan Kelly (Tipperary, Labour)
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What is inaccurate? What did I say there that is inaccurate?
Mr. Tony O'Brien:
There was no passage of years in relation to Resilience because it was just being completed at that stage. It would have been difficult to get sanction or agreement to publish something which was not complete. The Deputy is correct that a number of years had passed in relation to Devine but not on Resilience.
Alan Kelly (Tipperary, Labour)
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I am talking about Devine specifically. The issue in relation to the health committee, what was happening in this committee, the stuff that was appearing in the media after a period of years, these all pressurised - that is the only way it can look here - the HSE into finally asking the Garda. Something must have happened. Why did this not happen three, or two or six months earlier? Why?
Seán Fleming (Laois, Fianna Fail)
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I call Deputy Burke and we will return to Deputy Kelly.
Seán Fleming (Laois, Fianna Fail)
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We will come back. I call Deputy Burke.
Peter Burke (Longford-Westmeath, Fine Gael)
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I thank Mr. O'Brien for his evidence.
Seán Fleming (Laois, Fianna Fail)
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Before Deputy Burke starts, Deputy Kelly just mentioned the issue of whistleblowers. We have done a search on the transcript and there are several mentions of whistleblowers during the meeting. It is all by members of the committee. I do not think Mr. O'Brien used the word once.
Alan Kelly (Tipperary, Labour)
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To be fair, we are splitting hairs here, while there was only mention of this from the committee - and I have read the transcript - to be fair while those on the other side did not mention the whistleblower they were still answering questions that we all knew what they were talking about. That does not really matter.
Peter Burke (Longford-Westmeath, Fine Gael)
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I want to focus on what exactly was on the record of the meeting of the Committee of Public Accounts because that is very important. I understand on 5 March a disclosure of non-publication of the report was issued to the Committee of Public Accounts. The next day the HSE wrote to the Garda seeking to publish the report. At that stage, the report in question was the Conal Devine report. My concern on this is that subsequently, when the HSE gave evidence to the Committee of Public Accounts and was questioned on procurement issues surrounding the report, the HSE said there were no procurement issues. When Dignam later reported, he said there were considerable issues around procurement. I am concerned about a process where we are spending public money and, in a very sensitive issue such as this, looking to get independent advice which is very clear and objective. Does Mr. O'Brien believe there were procurement issues surrounding that?
Mr. Tony O'Brien:
It is true that we provided information on this subject to a series of meetings of the Committee of Public Accounts. The information we provided was that the procurement complied with the EU directives, that is true. However, as the Dignam report pointed out, there was not provision in the HSE's internal procurement regulations to avail of those directives. Consequently we have accepted the conclusions of Mr. Conor Dignam SC, that it would be appropriate to ensure that what had been custom and practice was properly reflected in the internal regulations. He also accepted that the circumstances in this case were such as to amount to exceptional circumstances within the meaning of the procurement policy and the National Financial Regulations Act of the HSE, thereby permitting a derogation from normal procedures. He then says:
It does seem to me that the HSE was justified of derogating from the normal process and in those circumstances was not obliged to engage in a tender process. Indeed I agree with the HSE submission that such a tender process would probably have been inappropriate and unworkable given the subject matter. There was therefore no inadequacy in relation to complying with the relevant procurement rules, arising from the fact that the contract was not the subject of an open tender. One can readily see why such a process would have been wholly inappropriate.
He also says later on, and I cannot quote the precise words right now, in relation to Dignam that it represented fair value for money.
Peter Burke (Longford-Westmeath, Fine Gael)
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On reports that have stayed on the shelf and were not acted on in any respect, I want to focus clearly on this -----
Peter Burke (Longford-Westmeath, Fine Gael)
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I do not want to stray into -----
Peter Burke (Longford-Westmeath, Fine Gael)
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There was no publication until after a disclosure was made to the Committee of Public Accounts on 5 March.
Mr. Tony O'Brien:
Let us go back. There is a difference between non-publication and staying on the shelf. This is important. There is a general view that somehow the report was suppressed. It was not published but it was provided to the Garda Síochana which to my mind does not equate to suppression. Deputy Kelly and I have just had a discussion on the sequence of events, what triggered the process by which I asked Mr. Healy to initiate contact between our solicitors and the Garda Síochana to seek its agreement to publication, agreement which at that time was not forthcoming in any event.
I would go back to what I said in the opening statement. It was primarily because the Resilience Ireland report was drawing near. We were also finding that in the absence of publication, there were a number of processes that we could not proceed with. That would include HR, as we discussed earlier. In particular, issues were arising in the political space where it would clearly be in the public interest for us to be able to provide those reports.
For that reason, we sought the agreement of AGS. There was much engagement over the course of that summer, including the provision by our solicitors of suggested redactions, to which An Garda Síochána did not agree at the time.
Peter Burke (Longford-Westmeath, Fine Gael)
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I will focus on the tender process, or lack thereof, for both reports. In terms of the outflow of moneys in the HSE, was it a significant sum for the Resilience Ireland and Conal Devine reports?
Peter Burke (Longford-Westmeath, Fine Gael)
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That is fair enough. I accept that. However, one imagines it is a significant amount of money for both reports.
With regard to the regulations within the HSE and transparency, it is hard to see how Mr. O'Brien can say procurement rules were followed. Let us be clear. There was a departure in the process within the HSE. This is all about a process and it is very important for this committee, with respect to a public body that is obviously required to adhere strictly to tender rules, to ensure the spending of public moneys, particularly in such a sensitive area, is objective and independent. That is important. It is the rationale for tendering.
Mr. Tony O'Brien:
Yes. I need to be clear. This is not the way I would have wished for it to proceed. When I looked back at it, I found that it was in compliance with the directives and that there were exemptions that could be availed of. There was a great deal of custom and practice in the HSE from the outset with which it was consistent but not the written regulations which the HSE had adopted. We now have a different procedure in place. Through open procurement, we have established panels. Some of this has been reported to the Committee of Public Accounts on previous occasions. If there is a requirement for short notice and urgent acquisition of investigative capability, there are pre-procured panels and processes by which that can be done. They mirror some of the processes in place for medical cases.
Peter Burke (Longford-Westmeath, Fine Gael)
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This is where I have a concern. If somebody is taking that route, obviously it would be prudent to carry out a risk assessment and conduct various discussions if a significant report is to be produced, if it is sensitive and certain exemptions need to be availed of. However, what appears to be happening is that Mr. O'Brien is presented with a situation where he has a result - two reports - and is now trying to make the process fit the regulations.
Peter Burke (Longford-Westmeath, Fine Gael)
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That is what concerns me. Mr. O'Brien said, "looking back on it," to use his own words.
Peter Burke (Longford-Westmeath, Fine Gael)
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As head of the HSE, Mr. O'Brien must be clear. If the position the HSE adopted at the time was not correct and if proper procedures were not gone through in complying with its regulations, it is incumbent on Mr. O'Brien to say that, rather than trying to make something fit now.
Peter Burke (Longford-Westmeath, Fine Gael)
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I did not hear Mr. O'Brien say it in terms of procurement.
Mr. Tony O'Brien:
I have said clearly that it did not comply with internal financial regulations. It was consistent with what was then custom and practice. From my view, having looked at it prior to this and more recently in the context of the Dignam report, it was consistent with the exemptions available under EU directives but they were not translated into financial regulations. However, in this space we have fully accepted the recommendation made in the Dignam report and such practices will not occur in the future.
Peter Burke (Longford-Westmeath, Fine Gael)
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Mr. O'Brien has made changes in that respect to ensure that will happen.
Mr. Tony O'Brien:
Yes. We have gone through an open procurement process to establish panels of investigators. It is what is known as prequalification. It was done in a way that was absolutely consistent with public procurement requirements and on an open basis. We now have panels established from which we can rapidly draw in a manner that is totally consistent both with value for money and procurement requirements, while also taking account of the fact that sometimes these things must be done in an expeditious and speedy way and sometimes in a way in which one cannot publish a specific tender notice for a particular set of circumstances. It would not have been appropriate to do so in this case.
Peter Burke (Longford-Westmeath, Fine Gael)
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It would have been more helpful if this had been said initially in hearings of the Committee of Public Accounts, instead of going back to it when the Dignam report raised issues in that regard. That is my concern. The HSE should be able to identify for the committee if there are tender issues or if it did not comply with its regulations or did not have a certain level of transparency which it should have had but which it now has as it has changed the regulations. It should be made clear to the committee at that juncture.
Mr. Tony O'Brien:
I do not disagree with the Deputy. That is the way it will be in the future. We have changed a series of processes in this regard. The last time we were discussing this issue with the committee in February last year we did not get into the procurement process in a significant way because the Dignam report was already in train. The view was taken to let it conclude. We have accepted that recommendation. Prior to the conclusion of the Dignam review, we had already started the process of putting in place appropriate panels of investigators.
Peter Burke (Longford-Westmeath, Fine Gael)
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Would Mr. O'Brien accept that during the time before the commission of both reports the process in place in the HSE to comply with transparency and tendering was deficient?
Catherine Murphy (Kildare North, Social Democrats)
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I wish to return to the questions regarding disciplinary action. Mr. O'Brien has said he looked into the whites of their eyes and reckoned it had been a monumental cock-up. To whom was he referring? I am not asking him to name people.
Catherine Murphy (Kildare North, Social Democrats)
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Was any disciplinary action taken against the ten or 11 people who would have been the decision-makers in the provision of services for Grace? Obviously, she was almost tortured over a protracted period.
Catherine Murphy (Kildare North, Social Democrats)
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Yes.
Catherine Murphy (Kildare North, Social Democrats)
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Was there disciplinary action?
Mr. Tony O'Brien:
Disciplinary procedures have been instigated following the publication of the Devine and Resilience Ireland reports. The national director of human resources is the commissioner for that HR process which is now under way in respect of HSE personnel. In respect of personnel working for Tusla, the key to enable Tusla to identify the H numbers relevant to its personnel was provided on 17 January with the agreement of An Garda Síochána which prior to that had not been forthcoming.
Catherine Murphy (Kildare North, Social Democrats)
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The HSE identified all of those people and potentially there will be disciplinary action.
Mr. Tony O'Brien:
To be clear, given the publicity that is likely to attach to anything I say in this regard, disciplinary action simply means a process to enable any case that may have to be answered to be answered in a fair way in accordance with established procedures. My referring to disciplinary procedures should not be taken as an inference that I believe persons are guilty of a disciplinary offence at this stage.
Catherine Murphy (Kildare North, Social Democrats)
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I understand there is a process.
Catherine Murphy (Kildare North, Social Democrats)
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If they were all identified, could they not have been asked at the time if they were still working in the public service or Tusla? There was an exhaustive search through the payroll system. Would it not have been better just to ask people directly?
Catherine Murphy (Kildare North, Social Democrats)
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I will move on. I have a question about the budget for the voluntary provider. The voluntary provider disputed the figures. I presume the dispute was not due to them getting too much but that they did not get enough.
Catherine Murphy (Kildare North, Social Democrats)
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Would there have been significant additional costs?
Catherine Murphy (Kildare North, Social Democrats)
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Would that have made the provider being viable in providing the services an issue?
Catherine Murphy (Kildare North, Social Democrats)
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It would matter very significantly because Mr. O'Brien would not want there to be continued failures where there has been a demonstrated history of failures. By not providing adequate resources to the people who are directly responsible, there is the potential of failures continuing. That would be completely unacceptable so I presume Mr. O'Brien looked at that.
Mr. Tony O'Brien:
The inference is that decision-making on funding for the voluntary provider had not been fair or objective. This report will help to answer that question. If it is clear from the report that the service provider was adversely treated, we will put it right. I have made that very clear. It is the basis upon which the review is taking place.
Catherine Murphy (Kildare North, Social Democrats)
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I presume that in a real-time situation, Mr. O'Brien would not have wanted a situation to continue in which inadequate funding was provided to look after someone who was going to be the subject of a public inquiry. Has anything happened in the interim to make sure the provider has adequate resources?
Catherine Murphy (Kildare North, Social Democrats)
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Mr. O'Brien clarified that he changed the system of procurement and that there is now a panel. Is anything other than financial issues included by the panel? I presume the suitability of people and groups is considered. Are potential conflicts of interest included? The Resilience Ireland report highlighted a potential conflict of interest with an individual who was a former HSE employee who worked in the area.
Mr. Tony O'Brien:
One of the criteria in establishing the panel is to ensure there could never be a perception of a conflict of interest. What we wish for, apart from the pure procurement issues, is a situation where we can speedily put in place persons, whose independence is beyond question, to carry out reviews.
Catherine Murphy (Kildare North, Social Democrats)
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Mr. O'Brien said he expects to receive the Deloitte report next week or sooner. Is the report looking specifically at this provider? If it shows up shortfalls, how soon after that will it be remedied?
Mr. Tony O'Brien:
On the assumption that the provider is content with the findings of the report - clearly we will need to hear whether they are satisfied with what the report says - we will seek to move very swiftly. To go back to the Resilience Ireland issue, in the interests of fairness, Dignam says under the heading "Procurement":
I do not believe that there is any basis in the documentation for finding that the party eventually engaged, Resilience Ireland, or any of its personnel, lacked independence. However, I believe, on the basis of the documentation, that the procurement process adopted by the HSE cannot be seen as having been adequate ...
What we are doing is making sure the processes are adequate but without an inference that there was any lack of independence on the part of Resilience Ireland based on that finding from Dignam.
Catherine Murphy (Kildare North, Social Democrats)
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I presume Mr. O'Brien would not have changed the rules on procurement if he felt they were adequate. Presumably, he would have accepted there were failures in how these reports were sought and not tendered for.
Mr. Tony O'Brien:
To repeat what I said earlier, we accept the conclusions of Dignam and the recommendation. It is clear the procurement process did not comply with the HSE's national financial regulations and consequently we have put in place a different process that complies both with those and with procurement directives that have been transposed into Irish law.
Catherine Murphy (Kildare North, Social Democrats)
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I asked Mr. O'Brien in a more general way earlier about when the report went to the Garda. Did that mothball the prospect of initiating a HR process - not necessarily in the Grace case - that would deal with it? Did it postpone any disciplinary action or potential disciplinary action that would come out of such a process? Is there anything Mr. O'Brien has done, or thinks should be done, to overcome that if the same set of circumstances arose again?
Mr. Tony O'Brien:
In more recent times, we introduced what is known as the safeguarding policy in the area of adult disability. It can, and often does, result in the placing on administrative leave of a range of staff on a protected basis without an inference of guilt and without prejudice to criminal investigations or HR processes. That policy was not in place when these issues arose.
Catherine Murphy (Kildare North, Social Democrats)
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Okay.
David Cullinane (Waterford, Sinn Fein)
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The witness can disagree but I found him to be very frustrating today. He was a hostile witness in many ways, which is very unfair to us because he was asked to come here today to bring clarity where confusion had reigned. He has not done that; I am offering my opinion on that. I will bring Mr. O'Brien back to the reference to the persons involved in the decision to leave Grace in the former foster home. Deputy Connolly dealt with it earlier. I want to bring Mr. O'Brien back to the question he was asked on 2 February. Had Mr. O'Brien read the Devine report prior to coming into the Committee of Public Accounts on 2 February?
David Cullinane (Waterford, Sinn Fein)
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Deputy Deasy asked Mr. O'Brien a question. I will quote from the transcript of the Committee of Public Accounts. I do not know if the secretariat can get it up on the screen; I signalled earlier that I would raise this. The first question he asked is "Who made the decision to leave Grace in the foster home?" It is a very clear, explicit question. Page 88 of the Devine report talks about H7, H6 and H4 being the three individuals who made the decision. Does Mr. O'Brien accept the question Deputy Deasy asked was "Who made the decision to leave Grace in the foster home?" He then asked about the whereabouts of those individuals who made the decision and whether or not they were still in the public service. The Devine report talks about H7, H6 and H4. Does Mr. O'Brien accept that?
David Cullinane (Waterford, Sinn Fein)
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Deputy Deasy put a very straightforward, explicit question to Mr. O'Brien. He asked who made the decision to leave Grace in the foster home and if those individuals were still working in the public system. When one looks at the Devine report on page 88, it references three individuals, H7, H6 and H4 having made the decision. Does Mr. O'Brien accept that when the Devine report referenced the people who made the decision in the October conference call or before or after it, they were H7, H6 and H4?
David Cullinane (Waterford, Sinn Fein)
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Does it reference H3 or H12?
David Cullinane (Waterford, Sinn Fein)
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Does it mention anywhere else that they were involved in the actual decision? When Deputy Deasy asked Mr. O'Brien who made the decision to leave Grace in the foster home, it was very clear exactly to whom he was referring. Mr. O'Brien said he had read the report. If he had, he would have known that the only reference to, in particular, the actual decision in October was H7, H6 and H4.
David Cullinane (Waterford, Sinn Fein)
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As such, it is reasonable for us in asking Mr. O'Brien to correct the record to have answered today the question asked then. Mr. O'Brien was asked earlier whether H7, H6 and H4 were still in the public service, specifically H6, and he said he was not minded to answer. He then said he would be guided by the Chair. I ask the Chair to ask Mr. O'Brien to answer the question because it is important that it be answered today. Mr. O'Brien has acknowledged that H3 is still working with Tusla and acknowledging that H6 still works for Tusla, if that is so, would not identify the person in my view. I ask Mr. O'Brien to answer the question as it was put to him when he last appeared before the committee.
Mr. Tony O'Brien:
I will ask the guidance of the Chair in a moment. I let Deputy Cullinane know that I will do that. If one looks at paragraph 4.4.15, it describes in greater detail the case conference on 24 October and goes beyond the "H" references in the other paragraph, so let us be clear that the meeting had participants other than the three Deputy Cullinane listed. Also, to be clear, the interaction with the Deputy to which Deputy Cullinane has referred was quite difficult. When one follows the transcript, it is quite difficult because of the number of interruptions and the question appeared to change quite a lot as we went through. I was very mindful of that when rereading the transcript. I am very clear that what I was explaining to the committee - in circumstances where I could not use any H numbers or share the document - who, in my opinion based on reading the report, I had the greatest concerns about. A reading of the transcript will bear that out. However, if the Chair is of the opinion that I should tell the committee where H6 works, I will.
David Cullinane (Waterford, Sinn Fein)
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I am asking that Mr. O'Brien does that. I am asking if the Chair will allow him to do that.
Seán Fleming (Laois, Fianna Fail)
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Once Mr. O'Brien does not disclose the person's identity, that is the overriding instruction.
David Cullinane (Waterford, Sinn Fein)
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I am not asking for a rank or name. We are simply asking if the person is working for an agency of the State and, if so, which one.
Seán Fleming (Laois, Fianna Fail)
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Is the person still in the public service outside of the HSE?
David Cullinane (Waterford, Sinn Fein)
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This is H6. Is it also correct that H6 made an added intervention in 2001 in respect of Grace being in a foster home?
David Cullinane (Waterford, Sinn Fein)
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I am asking if Mr. O'Brien is aware.
David Cullinane (Waterford, Sinn Fein)
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Yes and I am asking if Mr. O'Brien is aware that in 2001, H6 made an added intervention on Grace's presence in the foster home.
David Cullinane (Waterford, Sinn Fein)
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I do not know whether it is in the Devine report.
Catherine Connolly (Galway West, Independent)
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It is on page 38 at paragraph 4.6.14.
David Cullinane (Waterford, Sinn Fein)
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That is not the question I asked. I asked if Mr. O'Brien was aware. I asked him the question and he asked me to further clarify it. I am asking if it is the case that this individual, H6, made an added intervention in 2001.
David Cullinane (Waterford, Sinn Fein)
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Which is?
David Cullinane (Waterford, Sinn Fein)
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Please, yes.
Mr. Tony O'Brien:
It states:
[Redaction] H14 convened a professionals meeting which took place on 22ndFebruary 2001 and which was attended by a range of professionals including the previous [redaction] H6 who would have been involved in decision making around SU1 in 1996. The [redaction] of the ID1 Day Services also attended. The minutes of the professionals meeting noted that the former [redaction] H6 stated with regard to the previous case conference held on 24ndOctober 1996, she advised that:"...Previous allegations were dealt with and cannot now be resurrected as grounds to justify any decisions made in relation to planning for (SU1's) long term care. (SU1's) present circumstances and long term best interests need to be assessed independently."The professionals meeting also heard reports from the [redaction] Day Services re SU1 around her frequent absences for long periods in her early days and her regression when she returned from periods away from Day Services. The [redaction] also reported that the [redaction] never availed of respite care and SU1 had never been sent on the annual holiday arranged by the Day Service. A profile was also provided of the [redaction] including their age and Mr. [redaction] illness. The recommendations of that meeting are as follows:
The text continues from there.
David Cullinane (Waterford, Sinn Fein)
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I am glad Mr. O'Brien clarified that. He has at least clarified the original question he was asked by Deputy Deasy, notwithstanding Mr. O'Brien's contention that he had a view that the Deputy was talking about other people or at least that Mr. O'Brien had different people in his mind, which is hard to understand. Anyway, we have dealt with that now. I have two simple, direct questions for Mr. O'Brien before I conclude, as I want to let other people in. I still find it hard to understand and it beggars belief that so much time passed from the point the Devine report was furnished to the HSE and the time Mr. O'Brien says today a decision was made in February 2015 to put in place or in train a query to An Garda Síochána as to whether the HSE could publish the report. It is incredible it was not done before then. From 2012 to that date, the report sat on a shelf. The reason it sat on a shelf is because the HSE let it sit on a shelf. That chimes with what many people allege, which is that there was a cover-up within the HSE, because they cannot understand why the report was not published. Mr. O'Brien says the report was not published because of standard practice but that is not what he said when he was before the committee in the past. I want him clearly to answer the question as to why he did not seek the advice of An Garda Síochána prior to March 2015 and why the report was left sitting on a shelf for that time period.
My second question relates to the funding issue that was asked about recently. My understanding is that there has been no contact within the local office of the HSE and the service providers. If that is inaccurate, can Mr. O'Brien point out the level of interaction and engagement with the local office and the service providers in question with regard to funding and whether there is still an outstanding issue or dispute regarding the funding? Specifically, I ask about the contact between the local office and the service providers. Those are two clear questions and I will finish on that.
Mr. Tony O'Brien:
I will answer the Deputy's questions. I preface that by saying it is not accurate to say the Devine report has sat on a shelf. It was provided to the Garda at the time and the recommendations within it were being implemented even while it was not published. As I told the Deputy earlier in respect of the period before the approach to An Garda Síochána in February 2015, the HSE was doing exactly what it and the health boards had previously done in situations where there were live Garda investigations. It is often described as "first principles" that one would not expect to publish a report which might have an adverse bearing on a Garda investigation. I remind the Deputy, if I may, of the extracts I quoted from the Dignam report which described that approach in particular in the context of the advice received as a perfectly reasonable one. Also, the view was put forward that if any earlier request for the written advice of An Garda Síochána had been made, it was reasonable to suppose that exactly the same response would have been received.
When I gave evidence here in 2016, I was referring to the reality, which is documented, that from the point at which I initiated proceedings to get the formal advice of An Garda Síochána, it was strongly objecting to the publication of the report.
David Cullinane (Waterford, Sinn Fein)
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Can I make one point? I want to give Mr. O'Brien leave to answer the question. With all due respect, Mr. O'Brien offers up as an excuse as to why the HSE did not contact An Garda Síochána prior to March 2015 the excuse that if the HSE had asked, An Garda Síochána would have said "no". The HSE did not ask and that is the point.
Mr. Tony O'Brien:
To be very clear, and I need to be very direct with the Deputy, I ask him not to accuse me of offering up excuses that I have not offered up. I was very clear about the reason contact had not been made and I have been very clear that it had not been made. To quote from a distinguished senior counsel commissioned by the Minister of State to review these issues and to-----
David Cullinane (Waterford, Sinn Fein)
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Mr. O'Brien said in his opening statement-----
Seán Fleming (Laois, Fianna Fail)
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Allow Mr. O'Brien to finish his sentence.
David Cullinane (Waterford, Sinn Fein)
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That is Mr. O'Brien's opinion.
David Cullinane (Waterford, Sinn Fein)
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It is not wrong. With respect, Mr. O'Brien is not offering facts.
David Cullinane (Waterford, Sinn Fein)
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No, he is not. With respect, what the witness is doing is offering his view as to why he did not contact An Garda Síochána. He said that one of the reasons was that if he had asked - he then cites references to a third party - it would have said "no". What I am saying is that this is an excuse because he did not ask. If he had asked, he might have got a different outcome. We will never know that.
Mr. Tony O'Brien:
Equally, when we did ask, we know what the outcome was - two years of solid opposition to publication. The reports have only been published in circumstances where An Garda Síochána has signed off on an redacted version. Even today, post-publication, the HSE still has not published reports in circumstances where An Garda Síochána has maintained a position that they should not. Let us be clear. If the Deputy wants to go backwards, let us go forwards.
David Cullinane (Waterford, Sinn Fein)
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I am not going backwards at all.
David Cullinane (Waterford, Sinn Fein)
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I am not the one who is obfuscating.
Seán Fleming (Laois, Fianna Fail)
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Through the Chair
David Cullinane (Waterford, Sinn Fein)
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I am not the one who had landed us in a situation where Mr. O'Brien is back here today. I was not even a member of the committee.
Seán Fleming (Laois, Fianna Fail)
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He has fulfilled what the committee requested two years ago in respect of the transcript.
Seán Fleming (Laois, Fianna Fail)
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However, I did make clear early on that if this committee is not happy with the answers it is receiving today, we will make our views known directly to the commission of inquiry. We all know today is not the end of the process. The real process is about to commence. What is on the record is on the record. The committee's views-----
David Cullinane (Waterford, Sinn Fein)
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The witness can have whatever opinion or view he wants and state whatever he believes are facts. I am entitled to my opinion and I have put my opinion. Could the witness answer the second question I put, which related to the levels of contact, if any, between the local office and the service providers regarding their funding?
Mr. Tony O'Brien:
What I said earlier in response to Deputy Murphy or Deputy Connolly - forgive me if I am confused - is that at the time, I had asked the local office to engage in respect of current funding issues. I cannot tell Deputy Cullinane what it has or has not done in the intervening period. I will be receiving the Deloitte review and acting upon it. Given what Deputy Cullinane said to me, I will also ensure that we look at the intervening period.
Seán Fleming (Laois, Fianna Fail)
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Could Mr. O'Brien give us an approximate indication of when he asked Deloitte to do that? I know he does not have the date. Was it last week, last month or six months ago?
Seán Fleming (Laois, Fianna Fail)
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So it is quite a while?
Catherine Connolly (Galway West, Independent)
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Following on from that, I will ask Mr. O'Brien three or four questions. Was any special provision made for Grace after all this? Was any extra money, therapy or psychological help provided to her because of the trauma she had been through? Mr. O'Brien does not have to answer. He might tell me it is not relevant today.
Mr. Tony O'Brien:
This relates directly to the issue of the appropriate level of funding received by the service provider. Let us be clear. I am aware from the discussions I have had with the service provider of the extent it has gone to ensure that Grace was very appropriately looked after. The question is whether the costs incurred by the service provider were appropriately met by the HSE.
Catherine Connolly (Galway West, Independent)
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I agree with that but that was not my question. My question was whether given what the HSE knew about what Grace had gone through when she was finally removed in 2009, anybody in the HSE said "Oh good Lord, good Jesus, we need to do something here. We need to provide extra care - extra help." It is a "yes" or "no" question.
Catherine Connolly (Galway West, Independent)
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That is okay.
Catherine Connolly (Galway West, Independent)
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I am conscious that the Chairman will probably say it is outside of this so I will leave it at that. I am not sure what Deputy Kelly wants.
Seán Fleming (Laois, Fianna Fail)
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Could the Deputy proceed with her question?
Catherine Connolly (Galway West, Independent)
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I cannot. It is very difficult. Perhaps it is because I am tired and we have been here since 9 a.m. I think the report was given to An Garda Síochána in July of the year in which it was finished. Is that correct?
Catherine Connolly (Galway West, Independent)
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I have read through it. Mr. O'Brien can come back and tell me if I am wrong. Was An Garda Síochána given a copy in July 2012?
Catherine Connolly (Galway West, Independent)
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That has been said a few times, which is why I am coming back.
Catherine Connolly (Galway West, Independent)
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Why was there a delay between March and July 2012?
Catherine Connolly (Galway West, Independent)
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I can draw a conclusion from this that there was a delay between March and July 2012. I accept if Mr. O'Brien cannot answer that but there was clearly a delay between March and July 2012.
Catherine Connolly (Galway West, Independent)
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That is the date on it - March 2012.
Catherine Connolly (Galway West, Independent)
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I do not know that and neither does Mr. O'Brien. I have not seen anything except a gap.
Mr. Tony O'Brien:
I will read this into the record. The correspondence refers to a meeting on 13 March 2012 with AN2, who would be a senior official locally. It states that there was a meeting with AGS where it was advised of the HSE wish to have the three service user cases reviewed to determine whether further actions were necessary. There were various discussions about that and there was follow-up correspondence requesting details of HSE staff who had yet to make statements to AGS on the index case so there was correspondence related to matters that were the subject of the Devine report.
Catherine Connolly (Galway West, Independent)
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I am conscious that the Chairman will give me a certain amount of time. A good few minutes have gone. My question is awfully specific.
Catherine Connolly (Galway West, Independent)
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Great.
Catherine Connolly (Galway West, Independent)
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There were legal challenges to the report from March 2012 until July 2012.
Catherine Connolly (Galway West, Independent)
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I have only read the report twice. I would expect Mr. O'Brien to know this. This is his job - to come in and be able to tell us-----
Catherine Connolly (Galway West, Independent)
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Let me finish.
Seán Fleming (Laois, Fianna Fail)
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Mr. O'Brien is doing his best.
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien has brought this up. He said the report was given to An Garda Síochána immediately or words to that effect-----
Catherine Connolly (Galway West, Independent)
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Yes, okay. That is very good. I will do it through the Chair.
Catherine Connolly (Galway West, Independent)
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It was completed in March 2012. I will ask my question through the Chair. How did it take from March 2012 to July 2012 to give it to the Garda? I am asking that question because Mr. O'Brien said it was given when it was completed. If I cannot pick up on that, we might as well pack up and go home.
Seán Fleming (Laois, Fianna Fail)
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The Deputy is asking about a three-month period.
Catherine Connolly (Galway West, Independent)
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I have no difficulty with that, but the answer has been given. We have been told it was given to the Garda when it was completed. That is what we were told. We were told this report was given to the Garda when it was completed. It has been confirmed that this was in July. Now Mr. O'Brien is asking for more time. I am asking factual questions.
Seán Fleming (Laois, Fianna Fail)
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I just want to be helpful to the process.
Catherine Connolly (Galway West, Independent)
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It is only the process, Chair.
Seán Fleming (Laois, Fianna Fail)
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No, the process-----
Catherine Connolly (Galway West, Independent)
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Okay.
Seán Fleming (Laois, Fianna Fail)
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Clearly, there is an indication.
Catherine Connolly (Galway West, Independent)
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All right.
Seán Fleming (Laois, Fianna Fail)
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The committee believed the report was handed over to the Garda promptly when it was completed. That was our reasonable interpretation. Mr. O'Brien is explaining that there was a reason. We are asking for that reason. He has not come specifically prepared with that reason. If it is given to us in writing, we will pass it on to the commission.
Seán Fleming (Laois, Fianna Fail)
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Is that okay?
Catherine Connolly (Galway West, Independent)
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Yes.
Seán Fleming (Laois, Fianna Fail)
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We do not have the answer today.
Catherine Connolly (Galway West, Independent)
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That is okay. It is difficult to remain focused. I am asking very specific questions that are factual. Was the report changed in any way as a result of the legal challenges?
Catherine Connolly (Galway West, Independent)
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All right. I would like to ask about the disciplinary procedure. Mr. O'Brien has given us two letters and an opening statement. He has said that there "may" be a disciplinary process. Is that right?
Catherine Connolly (Galway West, Independent)
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There "may" be such a process. When Mr. O'Brien gave evidence subsequently, he said that it has started. He can correct me if I am wrong.
Catherine Connolly (Galway West, Independent)
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When did it start?
Catherine Connolly (Galway West, Independent)
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In February.
Seán Fleming (Laois, Fianna Fail)
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I am not arguing over a day or two.
Catherine Connolly (Galway West, Independent)
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Okay. Why could the disciplinary procedure not have started earlier than this?
Catherine Connolly (Galway West, Independent)
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All right. Does that not invite a judgment on my part? I am not attributing fault when I speak about the process being delayed. I am simply talking about a delayed process here now. Grace was removed in 2009. We had our first report, separate from an internal review, in 2012. We are now in 2017 and the disciplinary process "may" start. Is there not an inbuilt self-serving idea that if there are sufficiently long delays for one reason or another, no disciplinary procedure will be possible?
Mr. Tony O'Brien:
It is true that it is more difficult to proceed in complicated processes where time is lost. I can tell the Deputy that where significant adverse occurrences have occurred more recently, certainly during my time, we have seen much swifter processes. I would cite the example of Áras Attracta in that context. That would be the standard I would wish to see.
Catherine Connolly (Galway West, Independent)
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I would like to raise two more items. Deputy Kelly mentioned the whistleblowers. I can tell him what page this is on. Mr. O'Brien is quoted on page 44 of the transcript. I think it is important for us to do this publicly. I am quoting Mr. O'Brien's words:
It is clear that the whistleblowers have done a significant service through their protected disclosure in 2009, which has led to the Devine and the Resilience Ireland reports, led to the removal of Grace from the setting that she was in and ultimately led to the removal of Ann. I am absolutely certain that they have done significant service.
Does Mr. O'Brien stand by that?
Catherine Connolly (Galway West, Independent)
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I think it is very important that we say that. Would there have been any inquiry without the whistleblowers?
Catherine Connolly (Galway West, Independent)
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Yes.
Mr. Tony O'Brien:
I do not know the answer to that. I can say that this is a series of cases with more than one whistleblowing event. I think it would be foolhardy to use the retrospectoscope to try to figure out what might or might not have happened if there had not been whistleblowing back in 2009.
Catherine Connolly (Galway West, Independent)
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Okay.
Catherine Connolly (Galway West, Independent)
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The comments I have quoted from the transcript were made after the involvement of the whistleblowers was raised by Deputy Mary Lou McDonald, who said:
I shall ask my final question. The whistleblowers have been fairly damning in their description of the HSE. They feel that they were ignored, set aside, undermined and their professional credibility called into question. That was their experience of dealing with you. How does Mr. O'Brien respond to that?
To be fair to Mr. O'Brien, I am highlighting that section of the transcript for three reasons. First, I want to ensure that what the whistleblowers have done for Grace and for the process is on the public record. Second, it is relevant in the context of Mr. O'Brien's remark about not looking back retrospectively. Third, I want to highlight what they have suffered over the period of time from 2009 onwards. Is there anything to apologise to them for? Again, Mr. O'Brien does not have to answer if he does not want to. It is entirely up to him.
Catherine Connolly (Galway West, Independent)
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Okay.
Catherine Connolly (Galway West, Independent)
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Okay.
Catherine Connolly (Galway West, Independent)
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We will leave that for another day. I will conclude by going back to what I started with. Deputy Cullinane picked up on this. I asked Mr. O'Brien who was still in the service. We finally got around and Mr. O'Brien identified that they have gone on to Tusla. It has taken quite a process to establish that.
Mr. Tony O'Brien:
Actually, no. I was clear when I was here last year that a variety of staff were involved in the HSE or Tusla.
Catherine Connolly (Galway West, Independent)
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Mr. O'Brien said there were "some". I grant him that. He identified three people and said that one of them had left. That is why he is back here today. I am finishing on this.
Catherine Connolly (Galway West, Independent)
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All three had left. I beg Mr. O'Brien's pardon. The lead-in to that by the various Deputies who asked questions and were very attentive to the whole process - the background to all of that - was an effort to reassure the public that those who made the decisions were not still making decisions with the HSE or Tusla. Does Mr. O'Brien accept that his remarks, as recorded in the transcript, were made in that context?
Catherine Connolly (Galway West, Independent)
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Yes.
Catherine Connolly (Galway West, Independent)
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Does Mr. O'Brien accept that that was their purpose in the context-----
Catherine Connolly (Galway West, Independent)
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Okay. Mr. O'Brien gave those who were seeking that reassurance a reassurance that the three people who made the decision were no longer with the public service.
Catherine Connolly (Galway West, Independent)
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No.
Catherine Connolly (Galway West, Independent)
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I have done so.
Mr. Tony O'Brien:
When I re-read them, I was surprised to discover that I had been interrupted in my information-giving 79 times - so much so that in one exchange, I could not quite figure out what the question was and what the answer was either. I was very clear. I said that the three persons about whom I had most concerns - I had three people in mind based on the information I had at that stage - had left the service. I was not correctly informed about one of them. I was equally clear that a range of other people who were also involved were still employed in the public service. In that case, I was clearly referring to the HSE and Tusla. It actually took me quite some time to get back to saying it. Another Deputy gave me the opportunity to complete my answer much later on in the proceedings. At no stage did I ever give this committee a reassurance that nobody involved in this process was still working in the public service. I think there is a view that I gave such a reassurance. The transcript simply does not bear that out.
Catherine Connolly (Galway West, Independent)
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Okay. I would like to refer to page 9. I am finishing my point.
Seán Fleming (Laois, Fianna Fail)
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This is the Deputy's final question.
Catherine Connolly (Galway West, Independent)
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I accept that Mr. O'Brien was interrupted and so on.
Catherine Connolly (Galway West, Independent)
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On page 9 of the transcript, Mr. O'Brien said "If I was unclear in my first answer, I need to restate it." He got an opportunity to restate and clarify his point. He continued:
I know the Deputy will allow me to do so. I referred in my first answer, when the Deputy asked me for what I was apologising, to a specific decision that was made to leave Grace in the foster home in the 1990s. 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.
We have gone through all of this.
I can see Mr. O'Brien was interrupted but he clearly gave a message following on from the lead-in that the people who made the decision were no longer working. We know that is not accurate for the one he corrected today. We now know it is not accurate for the second person who has been identified and a question remains over how many others there are for whom it is not accurate.
Mr. Tony O'Brien:
Let us be really clear. I sought to be clear in my opening remarks and I want to be absolutely clear. The term "panel, for want of a better word", is me saying "panel is not the right word". Okay. There were five people involved; three of them had a decision-making and implementation function. The Devine report makes clear that there was not sufficient follow-through on the agreed actions. Having read the report and re-read it in the interval between 10 a.m. on Friday morning and 12 noon on Tuesday, which was the amount of notice I had on that occasion, the view I formed was those were the three I would have had most concerns about. When I asked the question of my staff, "Where are those people?" the assurance I was given was that they were retired. They were retired but that was not the whole story; one of them had been rehired on a part-time basis and that is what I have corrected today.
Alan Kelly (Tipperary, Labour)
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Two of the Deputies have spoken about the panel and the five people. I will not get into it because they have asked all the questions I would have. I do not think it adds up. It seems that evidence was given and as a consequence of that evidence, retrospectively an argument has to be put forward. Looking at the Devine report, it does not add up for me and, I believe, for all members of the committee. We have outlined that fairly clearly.
I want to go into four different areas, staring with procurement. I acknowledge that Mr. O'Brien is answering questions on matters, some of which preceded his time in the role and some of which did not. In 2015 the committee received a disclosure. Mr. O'Brien came in. He came in in 2016 again. He told the committee initially that there was no issue regarding procurement. He told the Minister for Health there was no issue regarding procurement. Now, in fairness, Mr. O'Brien has come and outlined in some detail that there were issues regarding procurement. I am paraphrasing in saying that if he had his way again, things would be done differently. Is that fair enough? They would have been improved.
Alan Kelly (Tipperary, Labour)
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I understand that. However, in the past they just did not work to the level required.
Alan Kelly (Tipperary, Labour)
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I agree with Mr. O'Brien. I am just summarising. In fairness, procurement simply did not work 100% the way it should have in the past. My concern, which is for another day and not for this, is that there is a cultural issue here. If it happened here, it obviously happened across the board in other cases, where work or investigations had to be done quickly.
Alan Kelly (Tipperary, Labour)
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That did not make it right.
Alan Kelly (Tipperary, Labour)
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Mr. O'Brien is being very open. I appreciate this.
Alan Kelly (Tipperary, Labour)
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It happened elsewhere.
Alan Kelly (Tipperary, Labour)
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Okay, fair enough. That is very honest of Mr. O'Brien.
Let us consider what Dignam said about the report. In 2009 the HSE set up the Devine inquiry to investigate the case of Grace, omitting the other 46 allegations. The Dignam report stated "the adoption of Terms of Reference by the HSE which led to this focus, means that the approach adopted to the Inquiry by the HSE was inadequate in all the circumstances." These inadequate terms of reference were designed by the designated person from the serious incident management team in line with procedure. This person was referenced previously in other evidence; his name is Ger Crowley. He helped set up the terms of reference for the Devine inquiry into the Grace case and was centrally involved.
He then retired from the HSE and set up Resilience Ireland. That organisation then got a contract to do a desktop review of the 46 others left out of the terms of reference of the Devine inquiry for which he was already involved in setting up the terms of reference. He subsequently retired, which is fine, and then was part of an organisation, as a director. He got the contract to do the work. He recommended a further review, that is, visiting the other 46 cases. Then, subsequently, his company got the contract to do this work. However, the Dignam report found that there was no reason not to get three quotes. Of course, the argument Mr. O'Brien made and will subsequently make after answering this question, I am sure, is that this was because the HSE was in a hurry etc. While the HSE might not have got three quotes - Mr. O'Brien outlined the culture that existed - did it get even one quote for the work? The Chair should note this is directly related to the evidence given at the time.
Seán Fleming (Laois, Fianna Fail)
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Previously.
Alan Kelly (Tipperary, Labour)
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Previously.
Alan Kelly (Tipperary, Labour)
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Could Mr. O'Brien answer the question, please?
Alan Kelly (Tipperary, Labour)
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Was there one quote given, yes or no? It is a simple question. I will assume the answer is "No" unless Mr. O'Brien says "Yes".
Seán Fleming (Laois, Fianna Fail)
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He does not have the answer here. We will get it.
Alan Kelly (Tipperary, Labour)
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Mr. O'Brien is basically saying he does not know the answer, which is fair enough.
Alan Kelly (Tipperary, Labour)
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That is fine. If Mr. O'Brien does not know the answer, that is fine by me.
It is great to be on your own; we could be here all night, lads.
Alan Kelly (Tipperary, Labour)
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We will probably crack open beers after what went on in the Dáil.
Mr. O'Brien's colleague, Pat Healy, told the Committee of Public Accounts that when he was in the HSE the person in Resilience Ireland, which got the contract, did not have a huge role in the terms of reference. However, Dignam found that the person involved, Mr. Crowley, was the person appointed by the serious incident management team to deal with this disclosure and he was actually centrally involved. He therefore knew about the other cases.
At the time the evidence given here was that Mr. Crowley did not have a central role. According to what Dignam was saying, he not alone knew there was a case - a disclosure - but he also knew about the other cases. For a start that evidence seems to be different. How does it happen that the person, who was centrally involved and who had knowledge of this, suddenly ended up with the contract to go and visit the 46 other cases?
Alan Kelly (Tipperary, Labour)
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I have follow-up questions, but I presume the witness will say the same thing so I will not even bother with them and will move on to the other-----
Alan Kelly (Tipperary, Labour)
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I know that.
Alan Kelly (Tipperary, Labour)
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I said earlier that the people who were here for that evidence should be back here today. It should not just be Mr. O'Brien.
Alan Kelly (Tipperary, Labour)
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I accept that, though we tried to change it. My committee made an error in the way we worded it and it was my fault - I blame nobody else for that. The evidence was given by Mr. Healy. The Dignam report is accurate so these things do not add up. There may be a valid reason but we need it to be explained so I ask Mr. O'Brien to get back to us with that.
Alan Kelly (Tipperary, Labour)
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I am not asking Mr. O'Brien to make any judgments but I am asking him to ask Mr. Pat Healy for an accurate statement of what happened.
Seán Fleming (Laois, Fianna Fail)
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If there is something to be said by an individual it should be said to the commission. We had a big debate two weeks ago on the terms of reference, when we adjourned for approximately two hours. We were give absolute assurances in the Dáil that the terms of reference under phase 1 went up to March 2016 to specifically cover the Committee of Public Accounts. Everything the Deputy refers to is included in phase 1.
Alan Kelly (Tipperary, Labour)
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I understand that. In a previous meeting of the Committee of Public Accounts there is a difference of evidence, which is why we are here today. The original evidence came from an earlier meeting and there is a chronology. At meeting of the Committee of Public Accounts in April 2015, Deputy John Deasy said, "At a workshop held by Mr. Crowley in September 2014, he said that Mr. Healy had phoned him directly in May 2014 and asked him to write the policy." This related to the new safeguarding policy, among other things. Mr. Pat Healy replied, "That is a different issue and concerns safeguarding policy." He did not deny that that phone call happened and that it was procured in this way.
I was very much taken by what was said on discipline and, in fairness to Mr. O'Brien, there was a level of genuine frustration in his answers at being limited in what he could do. He was probably furious yesterday at having to send in a subsequent letter. If there were no illegal issues after July-----
Alan Kelly (Tipperary, Labour)
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I think it was July 2015. When did legal issues-----
Mr. Tony O'Brien:
The reference to "July" was in a letter sent by an assistant commissioner in An Garda Síochána, in response to an inquiry from Conor Dignam SC, which stated that the gardaí withdrew the objection. The problem was that this was not communicated to the HSE.
Alan Kelly (Tipperary, Labour)
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Why was that? It seems strange.
Alan Kelly (Tipperary, Labour)
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This was five and a half or six months later.
Mr. Tony O'Brien:
Yes. More important, even after the letter to Conor Dignam we were still receiving correspondence locally on Garda notepaper from the persons in charge of the inquiry, maintaining the objection. Even though the objection ended it was still necessary for us to engage in a very detailed process to agree exactly what could be released.
Alan Kelly (Tipperary, Labour)
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This is interesting new evidence about which we have not heard.
Seán Fleming (Laois, Fianna Fail)
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It came out earlier while the Deputy was out of the room.
Alan Kelly (Tipperary, Labour)
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Excuse me. There was a gap but there were also two different levels.
Mr. Tony O'Brien:
Once we had the letter from the Commissioner clarifying the issue it also clarified the need for two teams to sit down and work their way through the documents to agree the redacted versions to be published. The Deputy will see that there are redactions in what has been now published. They were agreed line by line by the publishers, ourselves and a team representing An Garda Síochána at national and regional investigative levels. That is why there is an interval between the correspondence from the Commissioner and the publication date. They had to agree what was to be published and then put in place a process relating to all those who were named. Having regard to the particular circumstances of many of the clients who were affected, they also needed a more accessible version.
Alan Kelly (Tipperary, Labour)
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I was very much taken by Dignam saying that everyone in the Devine inquiry was provided with an extract of the final report and given the right to reply. In other cases, certain legal findings meant the process was not followed but Dignam gave the right of reply to everyone.
Alan Kelly (Tipperary, Labour)
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Why could disciplinary proceedings not continue?
Mr. Tony O'Brien:
The Dignam report shows that very few of the participants participated in a solo capacity. There were many events in which many people were involved and in any disciplinary investigation it would be necessary for those individuals to access the totality of the report. In the absence of that, one could not successfully pursue a disciplinary process without falling at the first hurdle. People got extracts from where they were mentioned, a paragraph from here and a paragraph from there.
Alan Kelly (Tipperary, Labour)
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Is it fair to say that Mr. O'Brien disagrees with Dignam on this?
Mr. Tony O'Brien:
No, I do not. I agree that what Mr. Dignam says is what happened but that did not amount to publication. It did not allow person A to see what was said about person B or to see the totality of the report. Publication is a different standard altogether, whereby the entire report would be put into the public domain, and that was the issue that needed to be squared.
Alan Kelly (Tipperary, Labour)
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Prevarication and long timelines raise other issues relating to fair process. The likelihood of anyone being disciplined for what happened reduces with time.
Mr. O'Brien acknowledges the mess created over apologies when he appeared before the Committee of Public Accounts last year. It should not have happened and must have been one of the most embarrassing days for him, as head of the organisation if not personally.
Mr. Tony O'Brien:
To be honest, I was angrier about that than I was yesterday. The information I received yesterday put me in an invidious position, one day before coming in here, and it gave me doubts about what I could rely on. That was as nothing, however, compared to saying you have apologised to someone when you have not, and issuing letters which purport to be apologies but are not.
Alan Kelly (Tipperary, Labour)
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At the meeting of 2 February 2016, Mr. O'Brien was asked if he would apologise to the whistleblower and said he would meet the whistleblower. Did he do that?
Alan Kelly (Tipperary, Labour)
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Mr. O'Brien knows where I am going with this as well as I do. Did Mr. O'Brien ask somebody else to apologise and did they refuse? This is all part of the evidence.
Alan Kelly (Tipperary, Labour)
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This is evidence that was given here on 2 February 2016.
Alan Kelly (Tipperary, Labour)
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Hold on a second - I am trying to establish the following. Commitments were given there. Questions were asked about an apology. Apologies were given and acknowledged in that meeting. They all happened. Mr. O'Brien apologised to the committee. He was asked if he would go and meet with the whistleblower as part of that. I am asking if the meeting took place because it was part of the process here and - I ask this straight-up - if an apology occurred on that date or if Mr. O'Brien asked anyone to apologise, whether that person refused. If so, why?
Mr. Tony O'Brien:
The question on whether I would meet the whistleblower was not if I would have that meeting and apologise. I advised the committee that there was a prior arrangement to meet the whistleblower, although we had run on so long that the arrangement had to be rearranged. We intended to meet near to here. We met very briefly but not in a substantive way. We arranged to meet near to where I work and near to where the whistleblower works. We had both of those meetings. A range of concerns was expressed by the whistleblower about things that occurred in their area as far back as 2009. I am not the type of person who ritually apologises.
Alan Kelly (Tipperary, Labour)
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I know that.
Alan Kelly (Tipperary, Labour)
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It lacks value if that is done.
Mr. Tony O'Brien:
Exactly. Where we still need a process to determine some of those things, I am not going to ritually apologise for things when I do not know the ins and outs of what actually happened. I know what the whistleblowers are saying happened, and I am not questioning their sincerity at all in saying this, but there is no point in me ritually apologising if I am not certain of what happened.
They certainly have grounds for concern, grievance and when I get the report, if it is clear to me that the service provider was either not properly supported in giving the care I know it provided to Grace, or was in any way discriminated against with regard to funding as a result of being a whistleblower, or even before being a whistleblower, raising concerns about the activities of various persons, I will have no hesitation in apologising, and it will be a sincere and real apology, but not a ritual one.
Alan Kelly (Tipperary, Labour)
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I am not into rituals either, but let me just say this. We are in the Committee of Public Accounts and concluding in the next minute or two. We meet many whistleblowers as members of this committee. When it comes to evidence, we would not be here on this level except for the evidence put forward by the whistleblower about one of the most disgraceful things that has happened in our State. We simply would not be here today except for that person. It is one of the most disgraceful things that has ever happened and has shocked the nation, and was the responsibility of an organisation of which Mr. O'Brien is now head, even though it happened long before him, and we accept all of that. While I accept Mr. O'Brien's issue on ritual, I believe that there is an onus on someone in the HSE to apologise for the manner in which that person has been treated over the past several years.
Seán Fleming (Laois, Fianna Fail)
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Yes. We are finishing now.
Mr. Tony O'Brien:
While there was discussion with An Garda Síochána on the detail of the redactions in the published reports, its position was that the redactions were for us to handle, and therefore they were agreed with our own legal advisers. What I said earlier would have implied something different, and I did not intend to imply that.
Seán Fleming (Laois, Fianna Fail)
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Did Mr. O'Brien ever direct anyone in the HSE to apologise to the whistleblower at any level?
Mr. Tony O'Brien:
Part of the messed-up apology was to have been an apology. If I were to say what I am about to say, it could amount to a breach of protected disclosure legislation, so I have to stop short of it. I hope the Deputy will accept my bona fides on that, and the issue if I were to answer that question fully, and I need to not do that.
Alan Kelly (Tipperary, Labour)
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I thought a book was coming there.
Alan Kelly (Tipperary, Labour)
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Let me just put-----
Seán Fleming (Laois, Fianna Fail)
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We take Mr. O'Brien's point.
Alan Kelly (Tipperary, Labour)
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It is a "Yes" or "No" answer, and I do not mind if Mr. O'Brien wants to reflect on it and let the committee know afterwards. I would like to know if Mr. O'Brien ever directed anybody, orally or in writing, in the HSE in any way at any point to ever issue any form of apology to any whistleblower in this case.
Seán Fleming (Laois, Fianna Fail)
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If Mr. O'Brien feels he can answer that legally, he might send us a note on it rather than answering it here. There are legal provisions that protect whistleblowers as well. To put the last question in context, when Mr. O'Brien was here the last time, he said he looked forward to meeting with whistleblowers and discussing issues with them. This conversation has all been in the context of his direct evidence on that, in case anyone thinks we were straying into commission work. We were directly confirming the evidence given by Mr. O'Brien that this actually subsequently came to pass. That is why we have had that line of questioning.
On behalf of the Committee of Public Accounts, I thank Mr. O'Brien and his colleagues for attending and participating in our meeting. There are one or two items of correspondence that they said they would get to us in the coming days. We would ask to receive those within seven days. The Committee of Public Accounts will submit the full transcript of this evidence, together with the witnesses' accompanying correspondence, to the commission of investigation in seven days' time. I know they will facilitate us by meeting that timetable.
Seán Fleming (Laois, Fianna Fail)
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In conclusion, members of the committee may have expressed views and opinions. They are the views of individual Members. They are not the views of the Committee of Public Accounts, which has not drawn a conclusion. The evidence was presented. We are passing it on without comment and without conclusion, as we got it here today. We will send it on to the commission. The Committee of Public Accounts is making no conclusion, good, bad or indifferent on what happened here today. We are not doing a report on it. We are just passing information on.
Alan Kelly (Tipperary, Labour)
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That is probably thanks for the future.
Seán Fleming (Laois, Fianna Fail)
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That could be a double-edged sword, from where I am sitting.