Alan Shatter (Dublin South, Fine Gael)

I will start by dealing with the general issues that arise under the Bill and I will then deal with the review that is to take place into the deaths of children in the care of the State.

This Bill is a monument to the total failure of the Government, through the Health Act 2004, when it created the HSE, to put in place a body that was democratically accountable and over which Ministers had a capacity to exercise any degree of oversight. It is quite extraordinary that the HSE was created as an entirely autonomous body based on a perception that it was the role of Ministers to develop policy and the role of the HSE to deliver services, and that never the twain do properly interact. What we have since the year in which the HSE was created, not just in the child care area but right across the health service, are proclamations of policies from Ministers around a broad range of areas that sounded worthy and reformist and as if things were going to get better in some shape or form. The announcements were usually made in a flurry of publicity and praise was given to Deputy Harney, the Minister for Health and Children, or the succession of Ministers of State who have occupied positions in the Department of Health and Children since the HSE was created. What the Minister and successive Ministers of State concealed from the House until the debacle over the death of children in care was that, in truth, half the time neither the Minister nor the Ministers of State had one whit of knowledge as to what was going on in the HSE. Far too many medical scandals only came to ministerial notice when the victims of medical failures went public or the broadcast or print media published or broadcast revelations of failure.

In the child care area, a broad range of issues and disasters were never brought to the Minister's attention. Let me give one classic example. We are waiting for the results of the inquiry into what has become known as the Roscommon incest case. We know the family at the centre of that case first came to the notice of the health boards in 1989 and again in 1996, and that social and child care services were involved with the family from 1996 onwards until 2000, in which year a court case was taken to try to prevent the children from being taken into care or oversight by social services. In 2004, the children were finally taken into care and some years later there were horrific revelations of the brutality and sexual abuse those children suffered from both of their parents. The first time the Minister learned of any of this was in January 2008, when the mother was prosecuted.

There was reportage in the newspapers which then forced the HSE to respond and ultimately resulted in the Minister requiring that there be some sort of inquiry into what occurred.

However, if the health boards did not know in 2000, certainly from 2004 onwards it was known by them, and then by the HSE from 2005 when it was formed, that there had been an appalling systemic failure yet again of the child care service to protect those children but no one told the Minister, either the senior Minister, Deputy Harney, or the then Minister of State, Deputy Brian Lenihan. A succession of Ministers of State with responsibility for children, including Deputy Barry Andrews, knew nothing about it until the matter was published because the body, the HSE, which the Government created, and those at managerial level within that body, felt that there was no obligation on them to inform the Government of a massive failure of that body with regard to children.

It is incredible that a body with the budget given to it by Government could have been created which had no specific legal obligations in the main statute to report to Government on major issues of concern when things went wrong. It also does not appear from that 2004 legislation that there was any specific obligation on that body to properly respond within any timescale to issues raised by Ministers, and hence the problem in which the Minister of State, Deputy Andrews found himself.

There have been misleading statements made inside and outside this House by members of the Fianna Fail, from the Taoiseach down, as to why we are where we are with the issue of children who died in the care of the State. That issue was first raised in a Dáil question in this House in February 2009, and then in March 2009 in an Adjournment debate when the Minister of State, Deputy Moloney, quite properly replied to me based, I presume, on the information available to him. I was looking for the numbers who had died in the care of the State and the Minister of State, Deputy Moloney, told me the matter was being investigated. Nothing happened. In July 2009, when everyone went on holidays, the HSE announced it had formed a group to look into the issue, and again nothing happened.

Finally, when Fine Gael published the report into the tragic death of Tracey Fay, and all hell broke loose and this issue was again raised, we were told that the Minister of State, Deputy Barry Andrews, finally asked the HSE for that information. I do not believe that because Deputy Barry Andrews, in fairness to him, is not that negligent. No doubt he sought it earlier and no doubt he found he had insurmountable difficulties in getting it and that he had a lack of co-operation from the HSE. The way the system works is Ministers do not disclose that because it makes it look as if they are not competent. The Minister of State's difficulty derived directly from the provisions in the 2004 Act which meant when he asked for something from the HSE, he was a mere supplicant and he had no control or power over it or its failures. With the different pieces of information, we were, first, told 20 children died in the care of the State, then it became 21, then it became 23 and then it became 37 and eventually, we got to the figure of 188. The truth is the Minister of State, Deputy Barry Andrews, despite what he says, to this day is not quite sure he can rely upon these figures.

On why the group was appointed, under Mr. Geoffrey Shannon and Ms Nora Gibbons, two good and decent competent persons, by my recollection - I am sure the Minister of State will correct me if I am wrong - it was appointed when the figure had reached 23 and he did not believe the HSE, and he decided to put in an independent group to try to ascertain the real figures. That is indicative of system failure, not only within the HSE, a body or quango formed by the Deputy Barry Andrews' senior Minister which, essentially, was responsible to no one, but within the Department responsible for children which, lacked sufficient powers to obtain vital information within a short period of time.

The Bill, in so far as it tries to address some of these issues, is welcome. It is a recognition of the reality of the ludicrous position in which the Government put itself and this Parliament when the legislation was enacted to create the HSE. The Government essentially removed all concept of parliamentary accountability for the running of the health services and tried to immunise Ministers from ever being held accountable to this House for anything that went wrong. It was a case of, "What I do not know cannot hurt me and, presumably, if I do not press to look for it, it still will not hurt me" until we had the scandal of not even being able to ascertain the numbers of children in the past decade who died in the care of the State.

Of course, the HSE is an obsessively secretive organisation and I suspect that part of the reason the Minister experienced difficulty in getting that information, and part of the reason some of the information I sought first in the spring of 2009 is still missing, is because if we got the full information, it would be a commentary on the gross negligence of the HSE and the utter failures of middle management within the HSE to put in place proper systems to ensure the delivery of a child care service which implemented the child protection guidelines. We now know the number of children who died in the care of the State or the number of children about whom, to use HSE speak, there were "concerns" after reports that they were at risk, but what we still do not know and what the HSE states it cannot calculate is the number of children who died having been reported to be at risk in circumstances in which no action of any description was taken by the HSE, or where there was some sort of brief assessment in which the conclusion was there was no reason to have "concerns" and then a child subsequently died.

There is a considerable volume of information missing, which will not be reviewed and which, I believe, is ascertainable and may exist within the HSE but is there a line manager within the HSE who wants to publicly admit that because of his or her failure to ensure application of child protection guidelines, hundreds more children died in the past decade? Is there anyone in the HSE at the most senior level or junior level of management who wants to acknowledge that? Essentially, we still have a cover-up of the real extent to which children, reported to be at risk who the State failed, have died. We do not know the numbers.

Before dealing with the provisions of the Bill I want to say something else. On the assumption that what the Minister of State, Deputy Moloney, told the Dáil on 4 March 2009 was true, which is that the HSE was going to provide information about children who were reported to be at risk who died and children in care who died, I assume that when the HSE failed to produce that information to the Minister of State to facilitate him providing the information he had promised to this House, there was activity within the Minister of State's office and something was done to find out what the reason for the delay was, and at the same time there was activity on other issues. The Minister of State was under pressure to publish from me. He was under pressure to publish, not only the report into the death of Tracey Fay but also the report into the death of David Foley. The Minister of State promised, at one stage, the reports would be published in October, and they were not. Then Fine Gael published the Tracey Fay report in March and, subsequently, a truncated or censured version of that report some six weeks later was published by the HSE, which published also a completely unsatisfactory report into the death of David Foley.

I felt it was of some importance to find out the extent to which the Minister pursued the HSE on these important issues of public concern and the extent to which the HSE either failed to co-operate with the Minister or obstructed the Minister, and I submitted a freedom of information request to the Minister's office on 27 May 2010. In that request, I sought copies of all correspondence, e-mails and records of any communication exchanged in the past two years between the Office of the Minister for Children and the HSE relating to the children who had died since 1 January 2000 and either were in care or had been reported to the HSE or the former health boards as being at risk. I was seeking to gain access to correspondence of a basic nature that would have revealed no confidences about identifying individuals. Rather, it would have detailed what had been done and what difficulties the Minister of State had experienced.

On 9 June 2010, I received an extraordinary reply. I was told that I was being written to in order to be advised of the costs involved in my request. The response reads:

One such cost is that of locating and gathering together from within this Department the records you have sought. This process is called "search and retrieval" in the Act.... I have been in contact with the Child Welfare and Protection Policy Unit, who takes responsibility for looking after your request. They have given us an estimate that it will take over 50 hours to efficiently complete the "search and retrieval" work on your request. The prescribed amount chargeable for each hour is €20.95, this results in an overall fee of €1,089.40.

I was provided with a breakdown of the fee. To get the information, I was requested to pay an initial deposit of €544.70.

Were the Minister of State or his officials to focus on finding information about children who had died in care, I would expect a simple process. Either a file within the Department would contain all of the relevant communications or, were we really computerised, it would be inside a computer programme whereby it would all come out upon a button being pressed.

I want to read into the record of the House my response to the freedom of information unit, sent on 15 June 2010. It reads:

I refer to your letter of 9 June 2010. It is unbelievable that the information maintenance system within the Department of Health and Children is so shambolic that officials cannot readily identify and locate the correspondence-e-mails and records requested in my Freedom of Information application of 27 May 2010.

After this, I recited what I was seeking:

Due to the importance of the subject matter it would be expected that a file would be maintained either manually or on computer which contained all of the relevant information. The charge proposed is outrageous and unacceptable. I wish to appeal your decision to impose the fee detailed in your letter.

We have heard about the incapacity of the HSE to contain coherently information on children at risk, assessments undertaken and those awaiting assessments. Much has been stated about the new computer system that will be sanctioned by the Minister for Finance when someone finally regards this matter as a priority.

Is the Minister of State informing the House that his Department is so disorganised that information such as this, something on which I presume he has been keeping a watchful eye, cannot be retrieved easily from e-mails or correspondence between himself and the HSE seeking the number of children in care or reported to be at risk who died? Would it take 50 hours of work? Is he suggesting that, if he asked his officials about whether he could review the file, he might get it 2.5 days later after people spent 50 hours trying to find out where they put all the stuff? This is extraordinary and I ask that the information be made available. It is outrageous and I am seeking an explanation as to how it could take 50 hours to find it.

The Bill seeks to impose certain obligations on the HSE. According to it, the HSE shall:

(a) monitor and keep under review occurrences and developments concerning matters relating to its object and functions, and

(b) without delay, furnish the Minister with information regarding---

(i) any such occurrence or development that, in the opinion of the Executive, the Minister is likely to consider significant for the performance of his or her functions

It confers an obligation on the executive to furnish that information. This applies to all of the Ministers of State and the Minister. Is it not extraordinary that, until now, there was no obligation on the HSE to inform the Minister of State of occurrences or developments in the HSE or the child care services that would be considered significant for the performance of his functions? Is this not an absolute condemnation of a structure, responsibility for the creation of which lies with this Government and its immediate predecessor? The Minister for Health and Children has tolerated this structure since 1 January 2005. A pretence is made that she knows what is going on in the health service when, in truth, she has no clue on a day-to-day basis. What she is told is dependent on the whim of officials in the HSE. Unfortunately for the Minister of State, Deputy Barry Andrews, he was put in exactly the same position where child care services were concerned.

The HSE will now be obliged to inform the Minister of "any other occurrence or development that falls within a class of occurrences or developments of public interest or concern that has been specified in writing by the Minister". We know why this provision has been included. Even with the first provision, the Minister does not trust the HSE to keep her informed. On her behalf and on behalf of all of the Ministers of State, she will need to detail in writing the class of occurrences or developments of public interest or concern about which she must be kept informed. Under the legislation, there does not seem to be an obligation to publish the information. There is a reference to the effect that the Minister may publish guidelines, but I do not know whether they and the list she must give the HSE are one and the same. When will that list be furnished to the HSE, what work, if any, has been done on it to date, will it be published and will it be laid in draft form before this House for consideration by Deputies so that it might be amended? Should the legislation not be amended so that the list would be presented as a statutory instrument to which Members of this House could have regard?

The same should apply to the guidelines. Under the Bill, the "Minister may issue guidelines in relation to the furnishing of information under subsection (1) and, if he or she does so, the Executive shall comply with those guidelines". Will they simply go from the Minister's office to the HSE, will they be published and will they be laid before the House? If they are inadequate, will there be any mechanism for Deputies to amend them? It does not appear as if this issue has been addressed in the Bill as published. It is one of myriad defects in legislation that is deeply and seriously flawed.

The Bill states the HSE must furnish information to the Minister "without delay". What does this mean? What timeframe constitutes "without delay"? In HSE speak, "without delay" could mean five years based on the length of time it has taken to fulfil other functions following Ministers' requests. The Bill reads: "The Minister may, where he or she considers it necessary in the public interest to do so for the performance of his or her functions ... require the Executive to furnish him or her with such information or documents as he or she may specify." What is meant by "the performance of his or her functions"? I would suggest that this provision be amended to read "his or her functions, including political accountability to the Oireachtas". The only function she has currently appears to be in the area of policy, not in the delivery of services. If something goes wrong in the delivery of service, the HSE is exempt from its obligation to furnish information and documentation. Will exchanges simply be about policy issues the HSE is considering or a policy communication from the Minister on which the HSE has a view? The woolly drafting of this legislation is another fundamental flaw in the manner in which it is being dealt with.

Section 40C(3) states: "Nothing contained in an enactment, and no rule of law, relating to the non-disclosure or confidentiality of information or documents, shall operate to prohibit the Executive from furnishing the Minister with information or documents under this Part, or render such furnishing unlawful." This allows information to go from the HSE to the Minister in a broad range of circumstances but there is no reference to how the Minister can publish information. This is a major problem and one we have seen in the child care and medical areas.

I recognise the individual's entitlement to privacy and to preserve confidentiality but we must balance that and making available information that, in the public interest, should be in the public domain. This issue is not adequately addressed in the Bill. The HSE can be required to provide information to a Minister and the Minister is supposed to be accountable to this House but the information given to the Minister may have to be kept secret. Information of a critical nature, relating to events in our health or child care services, can still be given while preserving confidentiality with regard to the identity of individuals affected. This has not been adequately teased out and there is no purpose in the Minister having information of public importance if the information cannot be properly communicated to the Dáil pursuant to the Minister's constitutional duty.

I refer to the provisions with regard to inquiries, which are not confined to the review group into the deaths of children in care. These are broad provisions that allow the Minister to request information and documentation the inquiry team needs from the HSE, where an inquiry must be conducted. The HSE will be obliged to provide the information. Taking the example of the review group, I agree with the critique of the Ombudsman for Children. This is an unnecessarily circuitous route for obtaining information. If individuals are appointed to conduct an independent inquiry into a particular matter affecting our health or child care services, those individuals should determine the information and documentation they require. The HSE, or any other body involved in the delivery of services on behalf of the State, should be required to furnish the information and documentation to the individuals at their request. There is no reason for the circuitous route proposed. It is not appropriate and undermines the independence of any inquiry that might be conducted.

The most incongruous provision is listed under "use of information and documents": "Where information or a document has been furnished under section 40B or 40C, nothing in this Part is to be taken to permit publication, in whole or in part, of the information or document if such publication would not otherwise be lawful." The Minister of State got into all sorts of hassle with the HSE over the concept of confidentiality in carrying out family assessments and, in the case of the senior Minister, confidentiality with regard to medical issues and, in respect of children, the operation of the in camera rule in court proceedings. If a review group conducting an inquiry is to have access to information to facilitate its work, how can the group properly publish essential information if part of the information it receives is incapable of being published? We return to the lunacy of what occurred with the Monageer report, with seven recommendations blanked out and sections of the report blanked out. In the case of the report into the death of Tracey Fay, one can contrast the document laid before this House by Fine Gael and the truncated, edited, unsatisfactory document the HSE subsequently published. In no circumstances can it be suggested there is public accountability or transparency adequate to address what needed to be addressed.

I will conclude in two sentences. This is an important Bill and we need to get it right. Substantial amendments are needed. I have no difficulty taking the debate on Committee Stage tomorrow but I ask the Minister of State not to take Report Stage until next week so that we have a real, considered debate on the Bill on Committee Stage in order to give the Minister of State time to reflect on what was said, to give this House time to ensure rushed legislation is not inadequate legislation, that we have an opportunity to ensure the Bill addresses all of the issues and others I will address on Committee Stage and that the inherent flaws are tackled and resolved so that we finish with a robust item of legislation enacted in the public good.

See this speech in context