Tim O'Malley (Limerick East, Progressive Democrats)

My legal advice is that absolute privilege, which is a complete defence to a defamation action applies even where the words complained of are published with knowledge of their falsehood and with the intention of injuring another. While I do not believe that reports of investigations will contain deliberate falsehood or be slanted in any way I am reluctant to include such a wide provision on privilege in the Bill. The Minister stated on Committee Stage that the legal advice available to her was that a person undertaking an investigation or inspection and making a report would have qualified privilege. He or she would have a defence in a defamation case where statements were made in good faith.

In view of the Deputy's concerns in the matter, further legal advice was taken in regard to what provisions, if any, might be included. Accordingly, having consulted further and concerned to ensure that there is no ambiguity or lack of clarity on this important issue, I am tabling amendment No. 32 which expressly provides for qualified privilege in respect of reports or documents prepared by, or communications made by HIQA, an authorised person, the chief inspector, inspectors and qualified persons. As is the norm in this area, however, such reports, documents and communications must be made in good faith and in carrying out relevant functions by the persons concerned. The legal advice available to me on due process and fair procedures is that these are implicit under common law and that specific inclusion of this provision would be redundant and perhaps even result in an unintentional effect on common law. Any person connected with an investigation can have access to legal representation if he or she so wishes. If the Bill is silent on this matter the right to legal representation is part of due process in common law. I am reluctant in any event to accept the amendment as inclusion of this provision in the Bill immediately begs the question of who is to pay for the legal representation. In any event, the legal advice is that it would not be appropriate to include the provision.

With regard to the duty to co-operate, save where the staff member receives legal advice to the contrary the legal advice is that the proposal in this regard would weaken the Bill. It would be odd if the legal advice were that somebody should not co-operate given the obligations to do so under the Bill. In this regard, a person who is in charge of a premises or service, or who possesses or is in charge of relevant records, is required to furnish any information required by an authorised person appointed by HIQA to carry out an investigation.

There is also a requirement under the Bill to provide an explanation of any record or other information provided or matters which are the subject of the functions being exercised by the authorised person. Moreover, section 76 provides that authorised persons cannot be obstructed or impeded when conducting an investigation and that false or misleading information must not be given to an authorised person. Contravention of these provisions is an offence under the Bill. On this basis I do not intend to accept amendment No. 15 but hope the Deputy will be reassured that the Minister's amendment, together with the legal advice I have outlined, is sufficient to meet his concerns.

A GP trainer or GP trainee who is acting inappropriately could be reported to the Medical Council and the person making the report would be protected under the legislation.

The purpose of the provision is to ensure that proper procedures are put in place to enable employees to make reports in good faith. It follows the principles set out in whistleblowers legislation in other jurisdictions, which legislation in general provides that the relevant organisation establish procedures and appoint officers to whom reports can be made. This Bill provides for both. The authorised person, by virtue of being a statutory officer, is independent in the performance of his or her functions. The Minister's amendment, therefore, provides the legal framework for making such disclosures.

On Deputy Twomey's point, it should be remembered that it was to the North Eastern Health Board's solicitors that the midwives made their initial complaint. This new statutory framework will mean that, in future, there should be no reason an employee would feel the need to report the matter to a legal representative. The two midwives would be protected as employees.

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