Dáil debates

Tuesday, 22 June 2010

Health (Amendment) Bill 2010: Second Stage

 

8:00 am

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

In bringing the Health (Amendment) Bill before this House, I do so on the basis that all Members share the common view that the work of the independent review group on child deaths is of the utmost importance and urgency. The publication of the Bill last Friday fulfilled the Government's commitment to act decisively to progress the work of the group through enabling legislation. I am now seeking the support of Deputies for the Bill to ensure that it is passed into law before the summer recess.

The Bill is short and focused and has been referred to in this House and elsewhere as emergency legislation. It certainly is the case that its principal purpose is to make certain that the work of the independent review group can proceed in an expeditious manner by addressing the legal difficulties that constrained the handing over of case files by the Health Service Executive. There is also a more general information dimension to the Bill and that relates to ensuring that the HSE keeps the Minister fully informed on all matters of which he or she needs to be aware in a timely and appropriate manner. I will set out the specific measures in the Bill, in greater detail, later in this statement.

How we care for our children helps defines us as a society. It is the hallmark of a caring society that it strives to do the best it can for all its children. Within the Government, I carry a particular responsibility to protect and advance the rights of children. This is especially so when, for whatever reasons, vulnerable children become known to the child protection services or are placed in care. The death of any child is never a statistic. It is a tragedy and an emotional and deeply upsetting time for the family. When such a death occurs while the child is in the care of the State, there is an onus on the State to act. The circumstances surrounding the death must be comprehensively examined not simply out of respect to the young person concerned and his or her family but also to prevent, wherever possible, similar tragic occurrences and to improve our overall care and protection arrangements.

The House will be aware that I established the independent review group on child deaths on 8 March 2010. The group is comprised of Ms Norah Gibbons and Mr Geoffrey Shannon. A third person of international standing will be appointed when the existing members have completed an initial examination of documentation provided by the HSE. The group was asked by me to examine existing information on deaths of children in care and first to validate the categorisation of children who died from natural and non-natural causes. In respect of those children who died from non-natural causes, the group has been asked to examine existing reviews and reports prepared by the HSE or others on their behalf and based upon this information to provide, on an anonymised basis, key summary information regarding each child and the circumstances leading up to his or her death. The review will focus in particular on the relevant involvement of State services with the child and his or her family and examine the strengths and weaknesses of such involvement. The group is also to make recommendations on how child protection services can be strengthened in so far as learning can be identified from the reports and reviews completed. I consider this review to be very necessary and it is imperative that the group be in a position to fully discharge its remit.

To date, the group has been furnished with some preliminary information by the HSE regarding the deaths of children in care over the past ten years, young adults up to 21 years of age who were in the care of the HSE in the period immediately prior to their 18th birthday or who were in receipt of aftercare services under section 45 of the Child Care Act 1991, as well as on a third category, children known to the child protection system. However, to complete its task, the review group needs access to individual case files. This has not proven possible to date in light of legal concerns identified by the HSE relating to the provision of information to the group.

The Taoiseach outlined to the House on 26 May 2010 the nature of the legal advice to the HSE. Concerns were identified regarding the in camera rule, which in child care proceedings is concerned primarily with the protection of the identity and privacy of the individual child, section 31 of the Child Care Act 1991, which imposes a prohibition that can be lifted with the approval of the courts on the publication or broadcasting of matters which might lead the public to identify a particular child that has been the subject of proceedings under certain parts of that Act, data protection legislation which regulates the collection, use and disclosure of personal information relating to living identifiable individuals and categorises health information as sensitive and therefore deserving of additional protection and finally, the issue of consent to the disclosure of personal or confidential information, including, as appropriate, the consent of surviving relatives.

In order to address the legal issues concerned, which are complex in nature, the Office of the Attorney General has worked closely with the Department of Health and Children in preparing the Bill to ensure that the legislation meets its policy objectives. The point is sometimes made that the legal problems and delays encountered with the release of files to the independent review group could have been avoided if the review had been carried out by the HSE itself or under its auspices. While the delay is very much regretted, I have no regrets about establishing an external independent review. Indeed, since I established the group, events have demonstrated clearly that only an independent and transparent review process offers any possibility of rebuilding public trust in our child care system. We now for the first time have national data from the HSE to indicate how many children died while in State care or where they had been in contact with the care system. We need the review group to examine this information more closely to establish the facts and to ensure that the learning from reviews conducted is shared.

The overall 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 from the HSE to the Minister. It does this in the following ways. First, it places a duty on the executive to provide information on its own initiative and without delay to the Minister. Second, it gives the Minister power to require in the public interest detailed information and documents from the executive free of legal prohibition and to use such information and documents as necessary for the performance of his or her functions. Third, it also allows persons appointed by the Minister to undertake reviews etc. to similarly use such information and documents. Before going into the detailed provisions of the Bill, Members will be aware that the legislation will cover the entire remit of the executive. This is to make certain that a similar situation to the present one could not arise in providing information to the Minister or persons conducting reviews etc. on behalf of the Minister in any area of health and personal social services covered by the executive, such as, for example, the care of the elderly.

The Bill contains two sections. Section 1 is the substantive provision and section 2 sets out the Short Title and collective citation. Section 1 of the Bill inserts a new Part, Part 7A, furnishing of information and documents, into the Health Act 2004. This explains the numbering of the provisions in the Bill, that is, it is proposed they become sections 40A to 40F of the Health Act 2004. Section 40A provides a definition of "document" so as to ensure that it is wide-ranging enough for the purposes of the Bill. A "document'" means a book, record or other written or printed material, a photograph, any information kept in a mechanical or electronic device, and any audio or video recording.

The Minister for Health and Children requires a range of accurate, timely and quality information to discharge her functions to formulate policy and assess the performance of the health system as well as ensure that she can provide appropriate political accountability to the Oireachtas. Provisions are already in place under the Health Act 2004 that require the HSE to provide information and allow the Minister to issue directions requiring the provision of information. However, in preparing the Bill, the opportunity was taken to strengthen the existing situation in a particular way.

The intention of section 40B, the duty of executive to furnish information, is to ensure that the Minister is appropriately briefed by the HSE on all matters that she needs to be aware of in a timely and appropriate manner. It requires the executive to monitor and keep under review occurrences and developments concerning matters relating to its object and functions. The HSE must inform the Minister, without delay, of any occurrence or development that, in the opinion of the executive, the Minister is likely to consider significant for the performance of her functions. In addition, it must similarly inform the Minister of any other occurrences or developments that fall within a class of occurrence or development of public interest or concern that has been specified in writing by the Minister. This power to specify will ensure that the Minister can be kept fully informed of important issues relevant to the public interest or concern. There is also provision for the issue of guidelines by the Minister on how the information under this section is to be provided by the HSE and where those guidelines have been made the executive must comply with them. That will help make certain that the information is provided in the manner required.

Section 40C, a requirement to furnish information and documents, and section 40D, the Minister may share information and documents in certain circumstances, are the ones that are most relevant to the work of the independent review group. The purpose of section 40C is to require the executive to provide information or documents to the Minister. It provides that the Minister can, where he or she considers it necessary, in the public interest, for the performance of his or her functions, require the executive to provide him or her, with any information or documents in its possession or control that he or she specifies. The section lifts existing legal prohibitions in any enactment or rule of law which would prevent the provision of the information and documents concerned in areas such as consent requirements, non-disclosure or confidentiality provisions and in camera rules. The requirement must be complied with by the executive within the time specified by the Minister and in any event without delay. The Bill only lifts the in camera rule for the purposes of allowing information to flow from the HSE to the Minister which means that the rule continues to be of full force and effect on the Minister in terms of publications. The requirement to satisfy the public interest test is a further safeguard. That is why we see this provision as creating a "safe channel of communication" for sensitive information to pass from the HSE to the Minister.

Sections 40B and 40C are modelled to some extent on sections 40 and 41 of the Garda Síochána Act 2005. While each section is independent of each other, it may well be that following on from information provided under section 40B by the executive the Minister may consider it appropriate or necessary to require further information or documents under section 40C. That could arise, for example, where the HSE provides information on a matter under section 40B but indicates that it is constrained in providing further details, for example, personal sensitive information, due to privacy issues. In such a scenario, the Minister could exercise his or her powers under section 40C to ensure that full details are made available to him or her.

Consequently, while section 40C is critical for the work of the independent review group, its application goes much further. Essentially, section 40C will enable the Minister for Health and Children to require from the HSE, in the public interest, any information or documents he or she needs for the purposes of performing his or her functions. While it should not be necessary to use this power frequently, it will ensure that the Minister will have the information and documents he or she needs for his or her role and functions. In the same way, section 40D is about ensuring that where the Minister has appointed a person or persons to examine or inquire into a matter and he or she considers the information or documents received under section 40B or 40C are relevant to the examination or inquiry that he or she can give access to that material to the persons concerned. That will enable them to use the information and documents in line with the terms of reference of their appointment.

As Deputies will note, section 40D does not give the persons appointed by the Minister the power enjoyed by the Minister under section 40C to require information or documents directly from the executive. That is because the relationship in the Health Act 2004 is between the Minister and the HSE and, therefore, it is appropriate that the power to require information or documents under section 40C should be confined to the Minister. Where there are difficulties in investigations and reviews, as in the review of child deaths, the Minister can require the information and documents from the executive and arrange for its use by any review or investigation team appointed by him or her.

Section 40E, use of information and documents, provides that the Minister may use information and documents provided under the Bill as he or she requires for the performance of his or her functions. Taken together with section 40C, this acts as a safeguard to ensure that the Minister can only request and use information and documents under this Bill for the performance of his or her functions.

Section 40E also addresses the publication of such information and documents and provides that the current legal position is unchanged, namely, that nothing in the Bill permits publication, in whole or in part, of information or documents received if such publication would not otherwise be lawful. That is in keeping with the general objective of the Bill, which is about correctly balancing the public interest with the individual's legal and constitutional rights, including the right to privacy.

Section 40F, saver, makes it clear that nothing in the Bill limits or otherwise restricts the power of the Minister under the Health Act 2004 or any other enactment to issue directions to or require information from the executive. Similarly, nothing in the Bill affects, except to the extent required by the Bill, the functions of the executive or the Minister. That means that the Bill does not affect the operational independence of the executive as set out in the Health Act 2004.

As there is no commencement provision in the Bill, it will become law on being signed by the President. I am considering whether to seek to have an early signature motion moved in the Seanad to have the Bill signed quickly by the President upon enactment.

In the course of preparing the legislation, officials from my office met with the Ombudsman for Children, the Data Protection Commissioner and senior officials from the Ombudsman's office. As always, those discussions were constructive and helpful. The Data Protection Commissioner was concerned that any release of sensitive personal information should be consistent with data protection principles, in particular, that any disclosure of such information without consent should have a necessary public interest dimension. I share the commissioner's view. My objective throughout the Bill is to have a proportionate response to correctly balance the public interest and respect the individual's legal and constitutional rights, including the right to privacy. That is why there is an express public interest criterion in section 40C.

Both the Ombudsman and the Ombudsman for Children raised issues about the consistency of application of the in camera rule by the HSE in releasing information to them for the performance of their functions and the general operation of the rule. The Ombudsman has stated that the in camera rule is complex and wide-ranging and that some modification would be helpful. The Ombudsman for Children has called for the rule to be flexible enough to allow reasonable access to information, where such access would serve the public interest, while ensuring that adequate safeguards are in place to respect the rights of children and the privacy of the parties. She has also called for legislation to clarify the law with regard to the sharing of information in the best interests of the child.

The matters raised by the Ombudsman and Ombudsman for Children are important and it is appropriate that they receive the time and attention they deserve. That would not have been possible given the timeframe within which this Bill had to be prepared. Moreover, the in camera rule has implications beyond the health sector. The current position in regard to the in camera rule is that strictures are put in place by way of the Child Care Act 1991 that prohibits the publication or broadcast of material that may lead to the identification of a child who is in care or who has been in care. This restriction is in place for sound policy reasons and there is no intent on the part of Government to dilute that right to privacy.

I am mindful, however, that there is a need to examine proceedings under the 1991 Child Care Act to ascertain how cases are decided in normal circumstances. These cases are heard in the District Court where judgments are rarely written and there is no facility for recording such judgments. The third report of the Joint Committee on the Constitutional Amendment on Children makes such a recommendation. A valuable piece of research was carried out by Dr. Carol Coulter in respect of family law reporting and was published in October 2007 by the Courts Service. I would very much support a similar approach to child care proceedings and will examine opportunities to undertake such research. Legislation already exists that enables the publication of anonymised information in respect of children. Section 3 of the Child Care (Amendment) Act 2007 amends section 29 of the Child Care Act 1991. Section 3 (7) states:

The Minister may, after consultation with the Minister for Justice, Equality and Law Reform, make regulations specifying a class of persons for the purposes of subsection (5) if the Minister is satisfied that the publication of reports prepared in accordance with subsection (5)(a) by persons falling within that class is likely to provide information which will assist in the better operation of this Act, in particular in relation to the care and protection of children.

I will give consideration to making regulations in order to specify persons to conduct such research and analysis that will assist in the operation of child care legislation, specifically in regard to child protection.

Deputies will also have read in the press today the comments of the Ombudsman for Children on the Bill. By way of background, I should explain that, given the important role that the Ombudsman for Children plays in the child care area, I arranged for her to have a copy of the draft Bill and my officials offered her a briefing also in advance of publication. I received her detailed comments last week and they have been considered carefully in my office. As her paper makes clear, she acknowledges that some of the issues she raised were never intended to be addressed in the Bill. However, the Ombudsman for Children made certain points relevant to the Bill and the independent review group that I wish to address directly. She queried the independence of the review group in the sense that it is the Minister rather than the review group which sources information and documents from the HSE.

From the outset, a key to the review process was to provide a mechanism that was independent and also external to the HSE. The appointment of Geoffrey Shannon and Norah Gibbons to the review group and their standing in the child care community is an indication that the Government is committed to a robust and independent approach to the review.

The reality is that the review group is free to source any information it wishes from the HSE. However, as we are all aware, certain individual case files that it needs from the HSE could not be made available to the review group, or even the Minister, because of legal concerns previously outlined. As already stated, one of the key purposes of the Health (Amendment) Bill and the reason the Government has attached such urgency to it is to ensure that the review group can access the individual case files that it needs to undertake its work fully.

As a result of the Bill, the Minister for Health and Children will be able to require from the HSE, without legal prohibitions and in the public interest, any information or documents she needs for the purpose of performing her functions. The way this will work for the review group is that it will advise the Minister of information or documents that it needs which might have legal issues associated with them. The Minister will be able to require the HSE to provide those documents directly to the review group under the terms of the legislation.

It is appropriate that it is the Minister who requires the HSE to provide the information to the review group because it is effectively an agent of the Minister. When such information is provided to it, it can use the information in the same way as the Minister can without any need to revert to the Minister for approval. Accordingly, there is no question of the Minister being able to tell the review group how to use the files or otherwise dictate how it does its work.

There is no perfect way to achieve independence in inquiries and reviews and, in that regard, I am satisfied that the arrangements under which Geoffrey Shannon and Norah Gibbons are carrying out their review are appropriate, reasonable and independent.

The Ombudsman for Children also raised the matter of publication including that it is the Office of the Minister for Children and Youth Affairs that would publish any report from the independent review group. As I stated, the decision was taken from the beginning not to interfere or amend the present law on the publication of reports. Moreover, it is the Minister of State at the Office of the Minister for Children and Youth Affairs who has public and political accountability for child services. Consequently, it is reasonable that he should publish any report commissioned by him and undertaken on his behalf. I have already given a commitment that the report on the independent review group will be published.

I have read the comments of the Ombudsman for Children in respect of the perceived lack of institutional independence of the child death review panel established by the HSE. It is important to put the establishment of this panel in context. The death review mechanism precisely follows the HIQA Guidance for the Health Service Executive for the Review of Serious Incidents including Deaths of Children in Care. That guidance, according to HIQA, is intended to create a standard, unified, independent and transparent system for the review of serious incidents, including deaths of children in care in Ireland. The guidance outlines the purpose of national review, the national review panel and team and the review process. The guidance also addresses the timing of review, benchmarks for individual reviews, publication and external reporting and monitoring of the review process.

The process that will guide future reviews of child deaths was not drafted by me but by HIQA following my request last July for such guidance to be produced. The HIQA guidance is instrumental in providing a transparent and accountable death review mechanism.

As regards the independence of the process, I place my faith in HIQA and the approach that body has recommended. The guidance provides that in the event that HIQA or the Minister believe that a review process has not been completed satisfactorily, HIQA can carry out a statutory investigation under the Health Act 2007. Section 9.10 of the guidance reads:

The Authority may decide, or be requested by the Minister, to conduct a review or investigation under the Health Act 2007, if the review process has not been completed satisfactorily or the findings are indicative of wider concerns. The findings of this review will be published by the Authority.

The guidance also states: "SSI [the social services inspectorate of HIQA] will monitor all reports to ensure that the review process is in compliance with this guidance."

Although a system or process should not be dependent on the composition of its membership to assert its independence, it is important to look at the names that comprise the review panel. Few will doubt the independence and rigour that the respective individuals will bring to the process. I thank them for their willingness to co-operate.

The policy decision was taken at an early stage that the Health (Amendment) Bill should deal only with the relationship between the Minister and the HSE. The sole focus and purpose of this Bill is to cover the provision of information and documents by the operational arm of the health service, the HSE, to the person who has political and other accountability for the health service, the Minister for Health and Children, in a way that is necessary for the Minister to fulfil her role and functions. However, the present Bill in no way affects the current rules applicable to the HSE in supplying information to statutory bodies and persons. They remain unchanged and the Minister expects the executive to co-operate fully and consistently with such bodies in the performance of their functions.

It is recognised that this legislation will involve, in some instances, the disclosure to the Minister of very sensitive personal information by the HSE. However, it is the view of the Government that the measures in the Bill are balanced and essential if the democratic imperative of ministerial accountability to the Oireachtas for the health system is to be met and public confidence in the HSE is to be improved. More immediately, of course, the Bill is necessary for the work of the independent review group.

I want to make a point I have made before, namely, I am committed to learning from shortcomings that are identified through reviews and reports into our services in order to make improvements for children and families. This Bill is an important element in that process. I commend it to the House.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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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.

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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I refer to the issue on which Deputy Shatter finished, that this Bill is rushed legislation. It is very important legislation and we want to ensure we get it right. We are talking about the deaths of children in care and trying to have the report produced by two respected people, with broad knowledge and compassion in this field. I know they will do the best job they can but we want to give them the tools to do the best they can. This legislation is designed to ensure they can get the relevant files in the possession of the HSE on the deaths of children in care. On behalf of the Labour Party, I have no wish to obstruct or delay the legislation. However, I want time to debate the amendments the Labour Party proposes. We must ensure we get this right. We have had many investigations on a range of issues in the health area that have affected people's lives deeply. We must ensure we get the widest amount of information in these reports. These should be transparent in so far as the public understands it will be told the full information available so that we can learn from the reports and have faith that we found out everything.

This requires balancing of rights. The in camera rule is an attempt to balance the rights of privacy with the right of information so we can learn from what happened. I received an e-mail containing the report of the Ombudsman for Children last night. I had an opportunity to read it and I share the concerns expressed by the Ombudsman for Children in respect of the process undertaken here. I am not sure the legislation allows us to do what we should do in the best interests of children. The two people concerned should be able to instigate the retrieval of the information they need rather than the cumbersome process presented in this Bill, whereby the Minister requests it from the HSE, the HSE gives it to the Minister and the Minister decides what the group will need and then gives it to them.