Liam Twomey (Wexford, Fine Gael)
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Question 78: To ask the Tánaiste and Minister for Health and Children if legislation will be introduced to protect whistle-blowers in the health services; and if she will make a statement on the matter. [35723/05]

Mary Harney (Dublin Mid West, Progressive Democrats)
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Statutory provisions exist in respect of governance in the health services which deal, inter alia, with the issue of confidential information. Section 35 of the Health Act 2004 obliges the Health Service Executive to draw up a code of governance which will include guiding principles applicable to the executive as a public body. Earlier this year my Department issued a framework document for corporate and financial governance for the HSE and requested the executive to draw up a code of governance in line with the framework. Under the section dealing with codes of conduct and quality customer services, the framework document specifically highlights that the Government approved in 2001 a code for the governance of State bodies under which such bodies need to set out objectives for maintaining proper standards of integrity and disclosure of confidential information. Under the 2004 Act, the HSE is obliged in its annual report to indicate its arrangements for implementing and maintaining adherence to the code. The executive is working on drafting its code and I understand that it intends to submit it to me for approval in the near future.

In addition, professionals within the health services are governed by their own codes of conduct. The Medical Council has a guide to ethical conduct and behaviour which deals with matters of confidentiality and consent including circumstances where there are exceptions to the rules on confidentiality and where doctors should report on the behaviour or competence of other doctors. An Bord Altranais has a code of professional conduct for nurses and midwives which provides that any circumstances which could place patients or clients in jeopardy or militate against safe standards of practice should be made known to the appropriate persons or authorities. Under the Health and Social Care Professionals Bill provision is being made for the registration boards for each of the professions to give guidance concerning ethical conduct and support to those registered with the boards concerning the practice of their profession. These codes of conduct and ethics will be enforceable by the health and social care professionals council.

In addition section 25 of the Health Act 2004 provides that members of the board of the Health Service Executive, members of any committees of the board, employees of the executive or any person engaged by the executive as an adviser shall maintain proper standards of integrity, conduct and concern for the public interest. To ensure the implementation of such standards, the executive is obliged to draw up a code of conduct for employees not covered by standards applied by the Ethics in Public Office Act 2001 and advisers and their employees. The code must indicate the standards of integrity and conduct to be maintained by them in performing their functions. Such a code should more than adequately cover the rights and obligations of employees, advisers, consultants etc.

Given the range of provisions which I have just outlined governing the issue of confidential information, it is not my intention to introduce such legislation such as that referred to by the Deputy. However, I will review this position when I have seen the formal code of governance and code of conduct which will be adopted by the HSE shortly.

Liam Twomey (Wexford, Fine Gael)
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Would the Tánaiste not admit that codes of conduct and the guidelines she has outlined have failed patients? Let us consider two major ongoing events. The consultant medical oncologist in Cork University Hospital, Dr. Seamus O'Reilly, wrote to the Tánaiste outlining his serious concerns about the treatment of cancer patients at that hospital. Does she agree that if he had published that letter in the local newspaper, he would have been brought before the hospital's management and reprimanded for discussing such issues in a public forum? Under the codes of practice mentioned by the Tánaiste, he would not have been protected from highlighting concerns about the care of patients for which he is responsible.

In two weeks the report into the activities of Dr. Neary will be published. We will need legislation to protect patients from what was carried out by Dr. Neary in Our Lady of Lourdes Hospital in Drogheda. The same codes of conduct mentioned by the Tánaiste and the same guidelines issued by the Medical Council were in place when many of these events occurred. The people who want to protect patients in the system need the protection of the Oireachtas through legislation. Does the Tánaiste agree people trying to protect patients should have that protection? Codes of conduct have failed and anything else proposed by the Tánaiste will not give the type of people about whom we are talking, whistleblowers, the protection whistleblower legislation or any legislation properly passed through the Oireachtas would give them.

Mary Harney (Dublin Mid West, Progressive Democrats)
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I have been in the House many years, but I have never known of a case where medical staff, whether doctors or other professionals, were shy about voicing their concerns in any forum. Dr. O'Reilly, the man to whom Deputy Twomey referred, worked in Waterford and then moved to Cork. His post was advertised, but I did not get anybody suitable for it and a locum was appointed in the meantime. I do not believe legislation has prevented him or anybody else from voicing their concerns, including in a public forum.

We must distinguish between those that may, from time to time, express concerns on behalf of patients and those that may have their own perspective on matters. I have not yet received the Neary report, but from what I know of the situation issues will arise with regard to clinical governance. The reality is that nobody at clinical governance level has statutory backing to take action. That is a very different issue. Neither the professional ethics of the Medical Council nor others give protection in this situation. Neither does the board of the hospital give protection. Every hospital has a chairman of its medical board or council, but that person does not have adequate protection in law. I think legislative issues will arise in that regard. Also, contract issues will arise with regard to time that can be assigned on a full-time basis to these important issues.

It is only somebody at the Deputy's peer level who could intervene in the interests of patients. It is not reasonable to expect people who are not medical personnel to be able to take action when they feel something is inappropriate in a hospital. The Neary report will, I hope, provide a basis for legislation in this area.