Monday, 29 March 2021
Reports on Department of Health Policy in RTÉ Investigates Programme: Statements
I feel and understand the heartache, worry and disgust that has been raised by the "RTÉ Investigates" programme last Thursday. As any parent knows, we would go to any lengths to protect out children's rights. That is why it was like a kick in the stomach to learn that a Government body appeared to be impeding this process of parents fighting for their children. I was alarmed and outraged, as so many Members were. Since Thursday's broadcast, families have been left to question whether they have been impacted. Work is now under way in the Department to assess all files and to see what contact may be needed so that families can be informed.
I cannot believe a policy like this has been in place in the Department for more than a decade. I have only been in government as the Minister of State with responsibility for disability in the Department since last July and this is not a process I was aware of, nor had I been informed that a senior counsel had investigated the matters raised by the whistleblower, Shane Corr. I thank Shane for bringing this to the public's attention. That was a brave and courageous thing to do. I have not spoken to Shane but I am sure he felt this was in the public interest and needed to be reported. I tend to agree.
The Taoiseach's announcement on Friday that a multidisciplinary team will conduct a policy review is the correct way forward. This will allow us all to understand what legal basis was used to underscore this system and what alternative is needed. I share the anger of the Ombudsman for Children, the public and many of my Government colleagues. I am sure there was no malice intended on the part of the Department, but the public needs to be able to trust the systems in place because they are in place to protect the rights of children, particularly our most vulnerable.
I understand the Department and, indeed, other Departments and State agencies need to have policies and procedures in place to manage litigation and the public understand this. There is a reality that the Minister for Health, the Minister for Education and the HSE are named from time to time as defendants in cases. It is the role of the Office of the Chief State Solicitor to provide litigation services to Departments under the direction of the Office of the Attorney General and it regularly jointly represents State defendants in litigation.The Department has told me that, in these circumstances, it is normal practice for defendants to litigation to co-operate and share appropriate information with each other where they have a common interest. I am informed that service information related to the cases is periodically received or sought by the Department from the HSE. The Department has always understood that it has a clear, legal basis for obtaining, sharing and retaining this information. The Department of Health is clear that it does not routinely seek clinical reports on plaintiffs from clinicians. I am also told that sensitive information related to cases always comes directly from plaintiffs as part of the advancement of their cases and that this information is provided by senior solicitors on their behalf with their consent.
We must acknowledge, however, that while what happened may have been lawful, it does not mean it was right. Driving without a seat belt used to be lawful but it does not mean it was right. My view is that the system lacks transparency. It appears shady even if that is not the case. The State should never even give the impression of operating in any kind of cloak-and-dagger way. I simply cannot stand over this particular system. It needs to stop now, and a new, more transparent method of managing the kinds of legal cases in question needs to be developed. Only then will it be trusted and will trust be restored.
I was so dismayed after watching the programme that I met senior officials in the Department on Friday with a series of questions so I could try to understand this policy. I am sure viewers of the programme and Members of the House have had similar questions. I will share some of the questions I put forward. How many open cases are there? How many impacted families will need to be contacted? When did this practice of case management start? Was other legal advice on this practice sought from other senior counsel, data protection specialists or the Attorney General's office over the years? If so, what was it? How regularly did the Department seek updates on these cases from the local HSE community health organisations, CHOs, and who sanctioned it on each occasion? How much of the material received came from the litigants for the family? When was the senior counsel hired? Why was the Minister not informed that the report had been received, or informed of its findings? How many people had access to the information over the years? What is the plan for the spreadsheet referenced, and is it still being used? Are there similar case management protocols in place elsewhere in the Department?
A multidisciplinary team is now going to investigate these matters further. It will also develop a more appropriate policy framework. We must ensure the system is transparent and patient-focused and advocates for what is best for the child and family. I have seen the hard, Trojan work done by the staff in the Department of Health and I have noted how child-centred they are. Every day, I meet several officials who genuinely ensure the rights of the child are the focal point of our work. Even in the midst of the pandemic, they are always working towards the more equitable provision of healthcare. My fear, however, is that this issue will have dented the great work across the health service.
Before I came into the House this morning, I received a telephone call. I was informed by the Secretary General that the intention is to publish the senior counsel's report. The Department is just receiving legal advice on it. I am referring to the senior counsel's report that was ordered by the Department last year and concluded in November, at a cost of €10,000 to the Department. Legal advice is now being sought on its publication.