Alan Shatter (Dublin South, Fine Gael)

These are important amendments and this particular section with which we are dealing, which is the new section 40B to go into the Health Act 2004, is very important because it starkly illustrates the disconnect between the Minister for Health and Children, the Ministers of State in that Department, the Department itself and the HSE.

Deputy Jan O'Sullivan is absolutely right that, as other speakers have also said, it is quite ludicrous that in circumstances of a constitutional democracy, where there is a Minister responsible to this House for our health services, that special emergency legislation - this is what this is - needs to be enacted to compel the HSE to simply keep the Minister informed of important developments in the health service and in the child care services.

It is quite extraordinary that we have in government a Minister for Health and Children who steered the legislation which established the HSE and who has been intentionally blind to the defects in that legislation for five years. Frankly, and I mean no disrespect to the Minister of State for whom I have a great deal of time, despite the difficulties I give him on occasion, we have a senior Minister who has so little respect fro the Dáil that she is not present for this Bill, which is not just about children. It is about the political and accountability disconnect between the Minister and a quango, the HSE, which was deliberately established to immunise government from responsibility for things that go wrong.

With regard to Deputy O'Sullivan's amendments, I can sympathise with her wish to replace the word "guidelines" with the word "direction". Initially, it was my view that we should do that as well because I am conscious, as I have no doubt the Minister of State is, that we have the Children First child protection "guidelines", which he never fails to tell us are robust. However, they are only as robust as they are implemented. They have been in place since 1999 but they are still not implemented and applied by the HSE. The executive has an appallingly scandalous and catastrophic record of failure to implement guidelines. It is a consequence of its failure to do so that so many children in the care system died, particularly those who did not die from natural causes, and so many children about whom many concerns were expressed died. If the child protection guidelines had been uniformly applied and properly followed, many of the children who are now the subject of the inquiry by the review group might still be alive.

The guidelines produced about child protection services, despite my calling for them to be made statutory many years ago, have never been anything other than a wish list from the Department of principles and approaches to be applied in protecting children. A statutory obligation was never imposed to comply with the guidelines. Where subsection (2) in the new section 40(B) differs is a statutory obligation is imposed on the Executive. It states: "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". The nature of the statutory obligation that should long ago have applied to the child protection guidelines and I presume this will feature in the legislation promised before the end of the year in regard to them. I am not sure whether it makes any difference whether they are called "directions" or "guidelines" because what is important is there is a statutory obligation to comply with them.

What happens if the Executive fails to fulfil its statutory obligation and fails to comply? This is one of the lacunas in the Bill. If the Minister issues guidelines and the HSE fails to comply with them, what happens next? There is nothing in the Bill to indicate what happens next. Will people lose their jobs? It is highly unlikely based on the many scandalous failures within the HSE, which, to date, have not resulted in anyone being rendered unemployed. Will a fine be imposed on the HSE? Will the person or individuals who did not comply with the guidelines be the subject of inquiry? Will there be a statutory process? This is one of the many reasons this Bill is flawed.

This is a well intended provision. It is an outrage that we enacted legislation to create the HSE without these obligations being imposed on it but there is no point in saying someone is obliged to do something if there is no sanction if he or she fails to do it and no procedure to come to terms with such failure. If guidelines are not complied with, there is not even a guarantee that anyone will ever be told because there is no provision in the Bill for publication of the guidelines. We will not know when guidelines have issued or what their content is and no member of the House or the public will have a reason to know whether there has been a failure to comply with them unless there is another catastrophic revelation of that failure having a serious impact on the lives of one or more individuals. There is no transparency in this and that is another defect. This is not an issue about which one needs confidentiality. If there are guidelines about the furnishing of the type of information specified in the legislation, which relates to occurrences and developments in the health service of importance and of public interest and in the child care services, at the very minimum, they should be published and, for example, if they are breached and if we had time to do it in the context of this legislation, there should be an annual report to the Joint Oireachtas Committee on Health and Children and it should be laid before this House detailing the areas in which the HSE in any particular year failed to comply with guidelines issued. This would bring transparency but that is not in the Bill.

Amendment No. 4a seeks to insert two subsections following section 40(B)(2). The first states: "(3) Any guidelines issued by the Minister pursuant to this section shall be laid before both Houses of the Oireachtas upon issuing and shall be the subject of debate in each House and amenable to amendment by a motion passed in each House within 3 months of being so laid". That would bring transparency to the guidelines. It would ensure their publication and that Members have an input into them. I assume they will be carefully prepared by the Minister for Health and Children or her successor and most times will be simply accepted in the House. However, there may be occasions that Members could valuably contribute to beefing them up and that should be open in a parliamentary democracy to some form of discussion in the national Parliament because this relates to the running of our health service. The guidelines are principles to be applied by the HSE.

I believe it is reasonable that the guidelines be published and laid before both Houses of the Oireachtas in order that Members of both Houses have an opportunity to proposes amendments, which the Government of the day may accept depending on the nature of the amendments proposed. That would be to the advantage of the Minister. It is important that what is in these guidelines is publicly known. For example, to whom will the Minister give the guidelines? Will they simply go to Professor Brendan Drumm and be put in a drawer in his office or will they go to his successor? How widely will they be distributed within the HSE? Will they go to middle management? Will they go to every employee of the HSE? Will all the medical, nursing, social services and other personnel working within the executive be furnished with copies of the guidelines in order that if there is an occurrence of importance about which the Minister should be informed within their area of responsibility, that is communicated to someone in an appropriate management position in the HSE for communication to the Minister? How will he or she ever know whether proper communication is operating in this context? What will be the line of communication? We know that, within the HSE, communications are seriously dysfunctional.

I say this because, in principle, I welcome the legislation, but I want it to be more than just decoration and headlines. I ask the Minister to give serious consideration to accepting amendment No. 4a, which would result in the addition of subsections (3) and (4) to section 40B of the principal Act. The proposed subsection (4) states: "Any specification by the Minister in respect of an occurrence or development pursuant to subsection (1)(b)(ii) herein shall be laid before both Houses of the Oireachtas by the Minister within 7 days of being furnished to the Executive."

The current section 40B(2) makes provision for requiring the HSE not only to monitor and keep under review occurrences and developments concerning matters relating to its objects and functions, which are basically to provide a health service and a child care service, but also to furnish the Minister with information without delay. It also allows the Minister to obtain information regarding any other occurrence or development that falls within a class of occurrences or developments of public interest or concern that have been specified in writing by the Minister.

There are two routes here: the Minister publishes guidelines with which the HSE has an obligation to comply - although, if it fails to do so, it does not appear to me that a whole heap happens - and, if there are other occurrences or developments that could be of public interest or concern, the Minister can specify these to the HSE to require, essentially, that she be kept up to date with what is going on. Under my second amendment, any such specifications should be laid before both Houses. In other words, there should be transparency, with the Minister making known to the general public and elected Members of both Houses the matters of concern about which she has asked to be kept informed.

This Bill entirely lacks such transparency. That is another reason it is defective. It should be about more than private communications between the HSE and the Minister; it should provide for people to be kept informed and for the Minister to be facilitated with regard to political accountability to the House. This is the ideal expressed for the Bill in the explanatory memorandum, which states: "The purpose of the Bill is to strengthen the legislative base for the provision of information by the Health Service Executive to the Minister for Health and Children so as to enhance the Minister's ability to fulfil his or her role and functions (including political accountability to the Oireachtas) and to create a 'safe channel of communication' for sensitive information between the HSE and the Minister." However, nowhere in the Bill are the words "political accountability" used. Political accountability means that the Minister has an obligation to tell Members of the House - and, through Members, the general public - about events that have occurred that are of concern and about information that has been sought from the HSE.

I promise I will not speak at such length on other issues, but this is a fundamental aspect of the Bill, which I believe is well intentioned. However, no matter what work is being done behind the scenes, this Bill has been rushed out with the ultimate intention of forcing the HSE to keep the Minister and her colleagues in Government informed about what is going on in the health and child care services. With all the disasters over which this Government and its predecessor have presided, the one lesson it has taken five years to learn is that the HSE does not keep Ministers informed about what is happening in the health and child care services; that, far too frequently, issues the Government believes are being addressed are not; and that disasters that occur are often concealed from the Government. This is a direct consequence of the catastrophic failure to ensure proper lines of communication and accountability when the legislation was first enacted in 2004 to create the HSE.

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