Mr. Brian McEnery:

I thank the committee for the invitation to appear before it. In May 2013, I was appointed chairperson of the board of HIQA. It is a great honour to chair the board of the authority because its work is important in improving quality in our health and social care sectors. Since the authority's formation, I have been enormously impressed by the impact it has had on service improvement. As a student, I worked as a care assistant in the UK and saw, at first hand, the positive impact of regulation in that health system. I am enthusiastic about the role of Ireland’s regulatory body in our health service.

The board has in recent times been particularly focused on ensuring that there are prudent and effective controls which enable risk to be assessed and managed. We have devised a new and more comprehensive risk management suite of tools in the authority and these are aimed at ensuring that risks to the delivery of the authority's agenda are managed and mitigated. The board and its committees are also focused on ensuring that the resources of the authority are used optimally. Some of the key work undertaken by the board in recent times includes: approval of annual budget and corporate plan; approval of the annual report of the authority and its financial statements; and the assessment of performance of the CEO.

I am conscious that the committee wishes to address issues of conflict of interest and a recent report in the media surrounding a meeting of nursing home operators that I attended. I will address both of these issues in this statement. I suspect this is what committee members wish to ask me about so I am more than happy to address it directly. I am also happy to inform committee members about the exact nature of my contribution to the event.

First, just to set out the background to my appointment, I applied for the position of chairperson through the Public Appointments Service system. I displayed current and comprehensive experience of the health care arena garnered throughout my professional career. I have at all times before, during and since my appointment tried to ensure that I maintain the highest ethical standards in accordance with the code of practice for the governance of State bodies and, indeed, the code of governance of my own professional body, the Association of Chartered Certified Accountants. In that context, I have been clear at all times that I am currently a partner in BDO Ireland and head of health care in that practice. I indicate openly and transparently on the HIQA website that I am one of the firm's health care consulting partners. I additionally outline on the HIQA website that I have been an adviser in the older person care sector for the past 17 years and that I edited the Nursing Homes Ireland annual nursing home survey. I further outline that I produced the report A Fair Price for Care - Ireland on behalf of Age Action Ireland. I also outline on the HIQA website that I worked as a care assistant in a UK older person dementia care home in the past. In addition, I outline that I have acted as financial adviser to primary care centres, acute care facilities and older person care centres throughout Ireland and that I have a broad range of health care sector experience from both a financial and operational perspective. In a sense of openness about my professional life, I believe I could not have made it more transparent that I am a financial adviser to the health care sector and in particular to nursing home operators. This comprises a significant portion of the professional work which I do and I have never tried to hide or deny that.

When I came before the Joint Committee on Health and Children as a new chair to present my credentials in 2013, I outlined then that I have specialised in the area of advisory services in health care. I went on to state that for the past ten years or more, I have provided financial, operational and strategic advisory services to acute, older person and primary care services throughout Ireland. In my annual declaration of interests to the Standards in Public Office Commission, I state my professional capacity within BDO. Finally, the BDO website states clearly that I negotiate rates for nursing homes with the National Treatment Purchase Fund, NTPF, and work in health care advisory. It is clear that I advise nursing homes, hospitals and primary care centres. In 2015, I believe I spoke at six conferences on the topic of nursing homes, the financial implications impacting the sector, the fair deal as it impacts on nursing homes and the statistics of the industry. In the middle of 2015, BDO launched the nursing home survey, Ireland's most in-depth nursing home research publication, which analysed the financial performance of the sector. This was launched by the then Minister of State, Kathleen Lynch. At the time of launch, I spoke extensively to the press and media about the report and its findings.

I was invited by Tadhg Daly, the CEO of Nursing Homes Ireland, to attend an operator meeting in my professional capacity on 23 October 2015 to speak about the sector. I spoke about financial matters and answered questions that were asked of me based on my professional experience. I was there as an invited speaker and participated when invited by the meeting. I left the meeting before it concluded as my professional advisory input was no longer required. In that respect, I left prior to the attendees discussing next steps or actions. It was not unusual for me to speak at conferences relating to nursing homes as I had, by 2015, given a number of presentations to the pillar banks and a commercial conference provider for nursing home operators and at the formal launch of the nursing homes survey. This was the context in which I came to speak at the event on 23 October 2015. I accepted an invitation, was there as a financial expert and spoke about financial matters.

I would like to set out what I said at the meeting and to show that my contribution was based on advice for the sector in general. I am of the view that advice was entirely appropriate to the audience and was good advice for the sector in general. I outlined the following in answer to questions put to me after I was welcomed to the meeting by Tadhg Daly. I spoke about the finances of the industry and the fair deal scheme.

I spoke about the genesis of the scheme and the criteria the NTPF applies when agreeing rates with nursing homes. I also spoke about the financial impact of the NTPF reducing fair deal rates and about labour rate inflation and staffing shortages. In response to a question, I said that the NTPF acknowledged that nursing home costs were increasing. It often accepted that these costs were reasonable and prudently incurred and that it would like to be able to give a better fair deal rate but the budget simply was not there. I relayed to the meeting that the NTPF negotiators often stated to me and to operators during negotiations that it was important that there was a voice calling for an increased budget for the fair deal to back up its own requests. I outlined that the NTPF frequently stated to operators that the fair deal budget was reduced as a result of austerity and that increases in the fair deal rates to cover cost increases would not be forthcoming to any great extent until the fair deal budget increased.

In response to a question about the four criteria used to determine the fair deal rate, I outlined to the meeting that the NTPF, in meetings with me and my clients, recognised the criteria it uses are somewhat arbitrary and need to change. In response to a question about the first Deloitte report on the fair deal scheme, I stated that in my opinion it failed to recommend sufficient changes to the scheme’s methodology, changes which I believed the NTPF may have also wanted. In response to another question about the criteria for pricing care, I stated that the scheme lacked sophistication and outlined that as a financial adviser, I believed setting a rate for a home was wrong. I suggested that it would be much better to have a rate pertaining to the resident and their needs rather than to a building.

When responding to a question about the appeals process, I outlined to the meeting that my experience was that operators were better off not just accepting the rate offered by the NTPF off the bat and that engagement and challenge around their case was likely to be better than not negotiating. When asked about the need to provide more beds, I said I believed that different parts of Government were sending different signals to the sector. The EIIS scheme, for example, was extended to nursing homes to encourage new developments, but simultaneously fair deal rates were being cut, which was a contradictory message.

On a final question to me about the possible direction of travel, I suggested there should be engagement with the NTPF and good communication channels between providers and commissioners, that the cost of care should be a consideration and not just an arbitrary pricing mechanism, and that there should be some equality between providers with similar circumstances, that is, blatant inconsistencies in the scheme should be focused on and removed. I suggested an independent appeals process should be sought in future enhancements of the fair deal scheme and that operators should not be afraid of engaging in the appeals process, as I had found it useful in a number of instances. However, I suggested the appeals process can, if it goes the full way, take as long as nine months and this is too long. Beyond answering the questions posed to me, I did not contribute to discussions surrounding strategy. As the guest attendee, I left when the questions and answers session finished and before the attendees went on discuss follow-up actions.

On the board and governance, the role of the board of HIQA is to be the governing body of the authority. I am the non-executive chairperson of the authority’s board and I, or other board members, do not have operational involvement in the workings of the authority. I want to outline this to the committee for a few reasons. Section 42 of the Health Act states the chief inspector is accountable to the Oireachtas in his or her work. The chief inspector is not accountable to the board and so the board and I, as chair, do not have any remit over the regulation of nursing homes or other facilities regulated by HIQA. Legislatively, this is the case.

The board does not get involved in executive decision-making. The chief executive is the accountable person under section 24 of the Act and so, in operational matters, he is the person who runs the authority and has the responsibility and accountability. Operational matters are not brought to the board for decisions because that is not its role. The way HIQA is legally constituted means that I, as board chairperson, cannot, do not and would not intervene or even have information relating to HIQA inspections. I have, on one occasion, been asked to intervene personally by a nursing home operator who sought that a HIQA report would not be published on the HIQA website. I refused to intervene. In the follow-up correspondence, I was informed that the disappointed party intended to inform Oireachtas Members of my professional role. I say this as I wish to provide members with all of the relevant information regarding my role.

I welcome the opportunity to be present at this committee. There is no conflict of interest in providing nursing home owners with financial advice, including advice on negotiating with the NTPF, and being chairman of the regulatory authority. This is because of the unique way HIQA is legally constituted. Clearly this was established at the point of me being appointed to the role of Chairman from the very outset.