John Deasy (Waterford, Fine Gael) | Oireachtas source

I commend the Tánaiste and everyone who was involved in bringing this Bill to the floor of the House. It updates many of our laws on sexual offences, many of which affect children in particular. I will make some general remarks on the administration of sexual offences legislation to lay the groundwork for remarks specifically on the Criminal Justice (Sexual Offences) Bill 2015 and sexual offence statutes in general. In doing so, I will refer to the work just completed by Conor Dignam, senior counsel, into the foster home abuse issue. I will make some comments at the end about where I think the gaps are when it comes to sexual offences legislation.

It is fair to say that the foster home abuse issue began in earnest when I met two members of a local family in my office in Dungarvan in 2014. It is important to repeat what they told me. That is not purposefully to shock people but to remind them of why Deputy John McGuinness and I pursued this issue so strongly. They told me that their daughter-sister ended up in the foster home for respite reasons. To make a long story short, they discovered that their daughter-sister, who is not verbal, had been raped anally with implements over a prolonged period of time. All of this had been medically attested and confirmed. The young woman cannot be operated on today because so much damage was done that to do so would threaten perforation of her bowel, which might kill her. This is not Grace. This is another individual.

It is worth repeating what we are dealing with here, because much of the verbiage Mr. Dignam uses is, understandably, very legalistic. It is complex. The report is 300 pages long. I do not wish to oversimplify his work but, generally, he outlines the grounds for an inquiry - in fact, the inquiry will be quite broad - and affirms the work conducted by the Committee of Public Accounts on this issue. To be honest, it goes further than what we considered. What he did not, and could not, deal with were the human elements of the foster home issue, the political ramifications or the relevant criminal statutes, which I will mention later.

One question that has arisen is whether the HSE misled or misinformed the Committee of Public Accounts and the Ministers dealing with the issue. The head of the HSE informed the Committee of Public Accounts that the three people who were responsible for making the decision to leave Grace in the foster placement, even when it had been decided no other children should be placed there, had all left the health service and were no longer in the public service. I question now whether that is true. I am informed that one of the individuals is still in the public service and works at a senior level for Tusla.

One of the big issues is what, if anything, will happen to those responsible for leaving Grace in the foster placement in the 1990s, those responsible for failing to act subsequently to protect her and others and those responsible for attempting to cover up the HSE's failings in this regard. The HSE's view is that it is powerless to discipline, dismiss or sanction those responsible. Those individuals were investigated in the Conal Devine report but the HSE operates differently from every other organisation in the country, whereby it can only issue sanctions against employees if the report is available publicly. We know that the Devine report is not subject to any legal challenge and the HSE continues to emphasise that it has not waited for the publication of the report to act on its recommendations. Here is where the contradiction occurs. It is really problematic that all of the findings except those relating to HSE personnel being disciplined can be implemented without the report being published. I believe I am not the only person to have a problem with that.

I refer to the whistleblower. It is the main point of what I wish to convey, and I believe the Tánaiste and Minister for Justice and Equality has a role in this. The whistleblower received a letter in July 2014 from the HSE's authorised person informing her that the file related to her protected disclosure was "closed". She had alleged that the HSE had covered up its failings with regard to 47 children and adults who had been left at risk. The HSE launched two inquiries, neither of which investigated the allegations of a cover-up. The first inquiry was conducted by a former HSE official. The same person wrote the terms of reference for the second inquiry. The HSE then wrote to the whistleblower to say that the file was closed. The head of the HSE assured the Committee of Public Accounts that the protected disclosures received in 2009 and 2010 had been investigated. He refuted the assertions that there had been a cover-up, explaining that neither inquiry found evidence of a cover-up. Of course, he chose not to mention that neither of the inquiries had this included in its terms of reference. Allegations of a cover-up were never investigated.

Another issue has come to light. The HSE refused to make Grace a ward of court, even after her removal from the placement. I believe its reasons were that it would probably have to tell the court she had been left at risk and that she would take a civil action. The whistleblower then personally petitioned the High Court on the matter. The HSE tried to stop her. It referred to the funding it gave to her organisation. It contacted the chairman of the board she worked for and put as much pressure as it could on the whistleblower. The HSE managers involved wrote letters, including several solicitor's letters, to the whistleblower's manager, the board of directors and the High Court. She claims these letters contained fabricated information alleging misconduct by her in the course of performing her duties.

This is important for every whistleblower now and in the future. What I am about to say is critical and must be dealt with in the interim before this inquiry happens. The letters to the High Court were drafted by HSE solicitors at the request of a HSE senior manager. They alleged serious misconduct and requested that, owing to this misconduct, the whistleblower be removed as a court-appointed representative for her client. The letters suggested that the whistleblower was not a fit person to represent her client and, as a result, the HSE could not be expected to work with her. What is interesting is that another HSE manager has since provided the whistleblower with a signed statement that the information contained in those letters had been fabricated. Why? The strong suspicion is the HSE management, about which she had made certain allegations, did not want her to have information to which she was legally entitled and did not want her to continue to expose its failures.

She was required to get legal advice and send solicitor's letters on her own behalf in an effort to ensure she was not removed from her position. No protections were afforded her by the protected disclosures office in the HSE. She will give full details of this and the supporting documentation to the commission of inquiry. None of this has been investigated by either of the previous reviews of these matters. According to the whistleblower, the HSE manager who fabricated this information and sought to destroy her career has been promoted to a new post in Tusla. No disciplinary action has been taken against him. It is worth pointing out that she briefed the head of the HSE, Mr. Tony O'Brien, about all of this last February. Neither Mr. O'Brien nor anybody in the HSE has contacted her in the interim or apologised to her for their conduct.

I will quickly discuss the legislation governing this area. In 2010, allegations were made, a Garda investigation ensued and it ended in June 2015. Five files were sent to the Director of Public Prosecutions, DPP, and no charges were directed. Of course, this does not mean there was no criminality. The primary alleged abuser was deceased at that point. Gardaí repeatedly made the point to the whistleblower that none of the alleged victims could give evidence in a trial or be cross-examined. She asked them what they did in a murder trial when the murder victim cannot be cross-examined or give evidence in court. They had no response, so I think she made her point.

She decided then to walk into a Garda station and make a new statement of complaint. Under existing statutes it is an offence if a person is left at risk of sexual abuse. It is not just an offence if the person suffers sexual abuse. The Garda is now investigating whether the HSE recklessly endangered these people and left them at risk of sexual abuse. The investigation is well under way but the fear is that our existing legislation is not robust enough to secure a conviction. I will explain that.

While there is legislation that protects children from abuse and neglect, which is what the Bill is all about, there is no corresponding legislation for adults. It is not an offence to neglect, emotionally abuse or starve a vulnerable adult unless the result is significant harm or death. If what happened to some of these people had happened to a dog, there would be a greater chance of securing a conviction, given that Ireland, in some circumstances, affords greater protections to animals than to adults with disabilities. It is easier to secure a conviction for animal cruelty, and those responsible can receive legal penalties which include prohibition from caring for animals. There is nothing in the Statute Book that could have prevented certain individuals from continuing to care for people with disabilities for 20 years after the allegations came to light, or to prevent them from doing so today.

If one asked ten people in the Chamber who are the most vulnerable people in our society, one would get ten different answers, and they might all be reasonable. Somebody might say it is the elderly.

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