Dáil debates
Wednesday, 26 May 2010
Leaders' Questions.
10:30 am
Enda Kenny (Mayo, Fine Gael)
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Monday of this week marked the third anniversary of the re-election of Fianna Fáil to Government and it has been 13 years in office. During that time the Taoiseach has served in many major ministries, including the Department of Health and Children, the Department of Foreign Affairs, the Department of Finance and now as Taoiseach. We are now in a situation where the national debt is of the order of €100 billion, there will be a deficit of €20 billion this year and, in the past few days, some children have been rejected by the State. The Fianna Fáil Party in Government set up the bureaucratic structure that is the Health Service Executive and the members of that party now describe it as a Frankenstein and a monster. This system has not delivered accuracy and clarity in respect of children dying in the care of the State. Yesterday, I asked the Taoiseach the number of children who had died in the care of the State in the past decade. The Taoiseach was not in a position to answer the question.
Just two days ago, the Minister of State at the Department of Health and Children stated that in his view section 3 of the Child Care (Amendment) Act 2007 allowed for the HSE to transmit the information necessary to determine the numbers of children who died in the care of the State without any legal obstacle.
We were informed yesterday that it was not possible to give this information to a review group set up by the Government to determine the numbers who died in the care of the State in the past ten years without introducing emergency legislation. In view of the fact that he was a central figure in the Governments which set up and oversaw the bureaucracy of the HSE, will the Taoiseach indicate what happened in the past 48 hours which now requires legislation to be introduced to give accuracy to the numbers of children who have died in the care of the State? Does the Taoiseach accept that within the structure of the system set up and supervised by his party in Government something is radically wrong, whereby when children die in the care of our State the facts cannot be known in terms of the numbers involved?
Brian Cowen (Laois-Offaly, Fianna Fail)
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I made the point yesterday that the numbers sought to be validated not only relate to those who died in State care, but were widened to include those people who were brought to the attention of services and who may have passed away subsequently and, also, people who had passed the age of 18 years but who had passed away between that age and 21 years and who may have required after care services. Considering that at any one time there are 5,500 people involved in the provision of these services, whether through foster care, institutional or special care, a further look back must be undertaken.
I have not suggested I am happy with the fact that it is taking some time to provide the figures and validate them but I am bringing the issues to the attention of the House. I refer to the question of the legal issues that arose. In the setting about of the collation of the information, the HSE took legal advice in respect of these matters and informed the Minister on Monday last of difficulties identified which related to section 31 of the Child Care Act 1991, the in camera rule, data protection legislation and the issue of consent to disclosure of personal or confidential information including, as appropriate, the consent of surviving relatives. That information, having been given to the Minister on Monday, was discussed by the Cabinet on Tuesday morning. We decided to bring forward changes in legislation as necessary to deal with that situation to ensure an adequate sharing of information between the HSE and the Department of Health and Children so that those tasked with the job under the review group could get on with that job and, hopefully, do it within the timeframe set out. In the meantime, factual information will be made available to the review group by the HSE by Friday next to enable it to get on with its job.
Enda Kenny (Mayo, Fine Gael)
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The Taoiseach is well aware that when anyone dies it is a sensitive and tragic matter for those involved. The ways of life are such that when tragic incidents occur in regard to the State, unfortunately, there may well be claims involved. I contend that in asking the Taoiseach the question yesterday as to the numbers of children who died in the care of the State, he should have been in a position to provide the information and I will explain why.
The National Treasury Management Agency (Amendment) Act 2000 went through the House during the Taoiseach's time as Minister of Health and Children and later when he moved ministry. Section 11 of the Act requires that, in adverse incidents where children or persons are involved, the relevant State authority, in this case the HSE, shall report any adverse incidents to the agency as soon as may be. As the Taoiseach is aware, the clinical indemnity scheme is run by the National Treasury Management Agency. Where the scheme may have to deal with a claim, the relevant agency, that is the HSE, is bound by law under section 11 of the Act to report information of adverse incidents to the clinical indemnity scheme, which has a team of qualified risk managers to assess the reasons these things happened.
Séamus Kirk (Louth, Ceann Comhairle)
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Please ask a question, Deputy.
Enda Kenny (Mayo, Fine Gael)
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This is too important for your intervention now, a Cheann Comhairle.
We are now informed by the Government that legislation will be necessary to transmit the same information from the HSE to the review group, set up by the Government and consisting of Ms Norah Gibbons and Mr. Geoffrey Shannon. I asked the numbers who died in the care of the State. The section of the 2000 Act clearly says the authority shall furnish to the agency, in relation to any such incidents, such information as an authority considers relevant and shall permit the agency or any other person to investigate it if necessary.
In requiring the information about the numbers who died, emergency legislation is not necessary. It is not necessary to have a review group because the National Treasury Management Agency (Amendment) Act 2000 obliges the HSE, in all its areas, to report adverse incidents to the clinical indemnity scheme. The Taoiseach should have been able to inform the House of the numbers who died, because that information would have been transmitted to the clinical indemnity scheme, by law. These powers have existed since 2000.
Either the Taoiseach did not know, and that is incompetence, or he did know, and that amounts to a cover-up. Which is it?
Brian Cowen (Laois-Offaly, Fianna Fail)
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It is neither, because Deputy Kenny's premise is incorrect. As usual, he brings forward some unrelated section of another Act and suggests that we should do the same in this case, as if all circumstances are the same. The clinical indemnity scheme relates to adverse incidents in hospitals, where clinicians are involved. They have to refer it on to the State Claims Agency. The issues we are dealing with here relate to child care legislation. Not only that, but many cases are the subject of in camera court proceedings where, under court order, those proceedings and the circumstances relating them cannot be made public. That is a totally different issue.
Enda Kenny (Mayo, Fine Gael)
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My question refers to anybody in the care of the HSE.
Brian Cowen (Laois-Offaly, Fianna Fail)
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Yesterday, Deputy Gilmore raised a legitimate query and asked if a section 4 direction would be possible. A direction under the Child Care Act would not be possible because it is not possible to give a ministerial direction contrary to the law.
Brian Cowen (Laois-Offaly, Fianna Fail)
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Other legal provisions impinge upon the privacy of the individual. There are certain consent requirements for guardians, and so on. This is not a simple area of law. It must be dealt with properly.
The best way to give legal certainty and provide the necessary information for the review group is to bring forward a change in the law that would allow for the exchange of information between the HSE and the Department of Health and Children that would enable the group to get on with the work for which it was set up. That is the best way to deal with this matter. The work is under way and will be dealt with as a matter of urgency. I ask Deputy Kenny to accept this.
Clearly, the collation of information has been inadequate in the past. The fact that we have not been able to present the numbers quickly is a matter with which I am just as unhappy as anybody else.
Enda Kenny (Mayo, Fine Gael)
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The Taoiseach has been the supervisor of the system for the past ten years.
Brian Cowen (Laois-Offaly, Fianna Fail)
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I must make sure we have the legal means to enable the review group to do the job for which the Minister set it up-----
Enda Kenny (Mayo, Fine Gael)
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Does the Taoiseach know the figures?
Brian Cowen (Laois-Offaly, Fianna Fail)
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-----and meanwhile, that we get all necessary information, not just about those who died in State care but also those who were brought to the notification of the services and who subsequently passed away, or those who between 18 and 21, having reached the age of majority, may have required after-care services. That look-back over the past ten years has to take place.
Bernard Durkan (Kildare North, Fine Gael)
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Why does the HSE not answer the question?
Eamon Gilmore (Dún Laoghaire, Labour)
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I understand the Government has concluded that legislation is required to allow the HSE files of the cases of children who died in care to be handed over to the investigation by Ms Norah Gibbons and Mr. Geoffrey Shannon. Why is the Government still not in a position to say how many children died in the care of the State over the last ten years?
When did the Department ask the HSE to hand over the files to the two investigators? The Taoiseach says the HSE, on Monday last, raised the legal difficulty which the Government then considered. Was that the first response given by the HSE to the request that the files be handed over? What, if any, response was the HSE giving between the time it was first asked for the files and last Monday morning? Has the HSE told the Taoiseach, or the Minister of State with responsibility for children, how many files are involved? It is one thing to say the files cannot be handed over for legal reasons but quite a different thing that we still do not know how many are involved. A Sunday newspaper reported that there may be as many as 200 files. Yesterday, I expressed some surprise at this figure and pointed out that it shows a level of mortality among children in care which is ten to 12 times the rate in the wider child population. That would be an extraordinary state of affairs. What also surprises me is that since that story was published last Sunday, I have not heard anyone, in the HSE or in Government, challenging the figure of 200.
When did the Department ask for the files, how many are there and what response was the HSE giving before last Monday about the numbers involved?
Brian Cowen (Laois-Offaly, Fianna Fail)
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The review group was set up on 8 March and in a subsequent letter to the chair of the HSE on 12 March, the Minister asked him to nominate a HSE employee to liaise with the review group in order to facilitate the work of Ms Norah Gibbons and Mr. Shannon. That person was nominated. The HSE had indicated to the office of the Minister of State with responsibility for children that it had met the review group and that requests for information were being responded to. During the collation of information, the HSE sought its own legal advice, which suggested there were difficulties in passing actual case files to the review group.
Pádraic McCormack (Galway West, Fine Gael)
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It did not want to.
Brian Cowen (Laois-Offaly, Fianna Fail)
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The HSE first shared this legal advice with the Department of Health and Children on Monday of this week. The difficulties identified relate to section 31 of the Child Care Act 1991, the in camera rule, data protection legislation and the issue of consent to the disclosure of personal or confidential information, including, as appropriate, the consent of surviving relatives.
Having discussed the matter, having had discussions with legal advisers to the Department of Health and Children and the HSE and having spoken to the Attorney General's office yesterday, the Government has decided the more comprehensive solution is to develop proposals for a legislative amendment which would facilitate the exchange of information between the HSE and the Minister of State in cases such as this, to ensure the system could learn from events while, at the same time, protecting the rights of the children involved and, as applicable, their families. It is important that we get the information the people are requiring.
Brian Cowen (Laois-Offaly, Fianna Fail)
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Really, Deputy McCormack's remark is ridiculous. It is not appropriate to throw out that sort of comment although it is a usual remark from him. I do not know why I reply to him because he should never be taken seriously.
Everyone here is committed to getting the necessary information so that the people can carry on their task. That is why the review group was set up. It was the Minister of State's initiative that we would look back, learning from the Tracey Fay situation, over the ten years since the Children First guidelines were first brought into being. That is the issue being undertaken at present.
To answer the Deputy's question, the number identified by the HSE to date is 23. The HSE is validating the figures, and not only of those who died in State care. The remit has been widened to include those who came to the notification of the services and who may have subsequently died while no longer in State care. There is also the question of looking back through all these files and contacts regarding people who may have required after care services beyond the age of 18 and who subsequently died. Those are the categories or circumstances that are now being investigated. The data thereon are being examined and collated. I would like to have the information as soon as practicable and possible so the team can get on with its work. In the meantime, there is available to us information of a general character that does not present a legal difficulty and which is being transferred to the review group personnel before Friday of this week to enable it to begin its work.
That is the full and comprehensive reply to the questions the Deputy asked. If there are other questions, I will answer them.
Eamon Gilmore (Dún Laoghaire, Labour)
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I still do not understand why the transfer of the files and the consequent legal difficulty are still causing difficulty in identifying how many people are involved. The Taoiseach said the HSE says there are 23 "at present" - I think that was the phrase used by the Taoiseach. I would have believed the actual number of deaths that occurred would have been relatively easy to establish. In any event, it should be known to the HSE already without it having to engage in the process of validating. I do not know what "validating" means.
Why is the option the Government has taken, namely, to introduce legislation, necessary? If Ms Norah Gibbons and Mr. Geoffrey Shannon were to be appointed to investigate under the Commissions of Investigation Act 2004, there would be no necessity for new legislation. The Act would give investigators the power to overcome any legal difficulties such as those cited by the Taoiseach. Why was that route not taken rather than the introduction of new legislation?
The Government introduced the Coroners Bill 2007 in April 2007. It got as far as Second Stage in the Seanad but has not been heard of since. It would require the reporting to the coroner of any death of a child in care. At least that would have dealt with the circumstances that obtained from 2007 onwards. Why has the Bill not been progressed?
There were two legislative routes open to the Government rather than introducing completely new legislation to deal with this matter. One was to deal with the matter under the Commissions of Investigation Act, which is already the law of the land. If Ms Gibbons and Mr. Shannon were appointed under that Act, they could simply go ahead and override whatever legal difficulties exist. Second, if progress had been made on the Coroners Bill, which has been lying in the Seanad unattended for the past three years, it would not be necessary to introduce new legislation.
Brian Cowen (Laois-Offaly, Fianna Fail)
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On the substance of the Deputy's arguments, there is a requirement under the nursing homes Acts to notify the coroner in the event of a death of a person in care. There was a provision in the Coroners Bill in that regard also. That would not deal with the look-back situation; it is not retrospective in any event. There has been a new system in place since January. There were 23 deaths up to the end of 2009, according to the HSE, and there were six deaths since then, including that of Mr. McAnaspie. The latter will be dealt with under the new arrangements put in place this year. HIQA is involved and there are three people from the 15-person panel investigating individual cases.
The terms of reference of the national review panel have been drafted. Its role is to review serious incidents, including deaths of children in care, in compliance with the Guidance for the Health Service Executive for the Review of Serious Incidents including Deaths of Children in Care. It sets outs the various instances in which it will report. The six individuals who have, unfortunately, died since the beginning of this year will be dealt with under the new procedures established under the new regime that has been in operation from January of this year.
On the question on the Commissions of Investigation Act, the procedure would probably take longer and be more costly than what we are suggesting at present. It would not bring as quick a solution as we are offering. The Minister asked that the process applicable to Mr. Shannon and Ms Gibbons under the review group be time limited. We will be trying to work within the guidelines over the coming months so as to have the full report and look back completed. Obviously, the legal difficulty that has arisen is holding up the exchange of information. Factual information is to be exchanged by the end of this week. Legislation is being prepared and will be before the Cabinet in the next couple of weeks and will be introduced in the House as a matter of urgency to ensure that whatever other information is required will be provided.
We are seeking to achieve the fastest possible resolution to the problem and to ensure the objectives of the review group are met. As I stated, both Mr. Shannon and Ms Gibbons, who are eminent persons in this area, have been apprised of the work to be undertaken and are in favour of it as a way to solve the problem.
Legal issues arise over privacy and consent from guardians. Issues arise under child care legislation and in respect of the provisions pertaining to in camera proceedings in the courts. We want to address these in a way that maintains the privacy of the children while obtaining the information that the authorities require to carry out an effective look back and get a full picture of the circumstances in all relevant cases. That is the purpose of the exercise.
We are doing all we can. The House is not divided in any way in trying to get this matter resolved as quickly as possible. The legal difficulties must be overcome. In this regard, we have proposed a solution and, in the meantime, information of a factual nature can be exchanged. This information should be with the group by the end of this week.
Charles Flanagan (Laois-Offaly, Fine Gael)
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A record of the cause of death is never private.