Friday, 2 July 2010
Health (Amendment) Bill 2010: Committee and Remaining Stages
I move amendment No. 1:
In page 4, line 20, after "functions" to insert the following:
"including political accountability to the Oireachtas".
Only this morning, we have become aware of the details of the Ombudsman for Children's annual report and her damning description of a HSE which operates in a parallel universe, suffers from excessive secrecy and presides over a system that has something rotten within it. From reading the explanatory memorandum of the Bill, one would have trusted some of these problems would be addressed and that real, political accountability would be restored to the system. The term "political accountability to the Oireachtas" is used in the explanatory memorandum but cannot be found in the Bill. There appears to be some disconnect between what the explanatory memorandum sets out and intends for the Bill and what the Bill actually contains. The Bill only addresses part of the problem in that there will be a requirement on the HSE to keep Ministers and Government informed of how service delivery is being affected. However, where there are problems in the context of political accountability the Minister should be accountable to the Dáil to inform it of such information. We seek to amend this section to insert a reference to political accountability. Where the Bill states "the Minister may where he or she considers it in the public interest to do so for the performance of his or her functions", we wish to add the phrase from the explanatory memorandum "including political accountability to the Oireachas".
The Bill must do more than simply provide a channel of communication between the Minister and the HSE, which has until now been either closed or defective. That channel must be open to the extent that the Minister can account to both Houses of the Oireachtas for the running of health and children's services.
Political accountability is one of the core functions of the Minister in his or her relationship with the Oireachtas and, therefore, the intention of the amendment is captured by these functions and it is not necessary to make an amendment. While in its original draft, the Bill referred to the child deaths review group, the new section provides for the HSE to be proactive in furnishing the Minister with information considered to be important for the discharge of his or her functions and this new power will increase the accountability of the executive to the Oireachtas. It probably should have been included in the 2004 Act but we have learned from experience. It is timely to ensure that the HSE is under this proactive obligation and that the Minister will have the opportunity to set down guidelines as he or she thinks fit to ensure the executive provides the information to the Minister so that the Minister can be accountable to the Oireachtas. It is all about trying to address the issue, which has been commented on widely by Deputies, Senators and councillors throughout the country.
The Bill was drafted carefully by the Attorney General's office and I acknowledge the speed with which his staff turned it around and the care and attention and many drafts they made. They are satisfied that political accountability is fully captured by the functions outlined in the section. That it is mentioned in the explanatory memorandum proves the point but one cannot argue that because something is in the explanatory memorandum it should automatically be in the legislation.
I move amendment No. 2:
In page 5, between lines 35 and 36, to insert the following:
"40E.—Where the Minister has appointed a person or persons to examine or inquire into any matter and the person or persons so appointed consider that any information or document may be relevant to that examination or inquiry the Health Service Executive where it is in possession of said information or document or has access to it shall upon request furnish that information or document to the person or persons who requested that information or document.".
The Minister recently established the two-member independent review group and while the amendments might seem pedantic, they simply seek to ensure that at no point in the future could somebody working against the interests of the State or children in care invoke the word "person" to prevent any member of such a review group gaining access to information or, having gained access to it, be prevented from disseminating it to others. It might be pedantic but we do not want hostages to fortune this early in the process. I hope the Minister of State will see fit to make the amendments.
This matter was also raised in the Dáil. The Attorney General was firm that the Interpretation Act 2005 permits the understanding of plural when a word is given as singular. It is a pedantic point but he is convinced that "person" is satisfactory to capture the Senator's intention.
I move amendment No. 5:
In page 5, to delete lines 41 to 45 and substitute the following:
"(2) Where 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 document if such publication would not otherwise be lawful save that there shall be no inhibition on the publication of information relevant to any matter subject to examination or inquiry by a person or persons appointed to examine or inquire into any matter by the Minister.".
I referred earlier to the veil of secrecy within the HSE and I have concerns that the section has the potential to offer once again the option of a legally-based veil of secrecy that is beloved of some officials within the executive. I refer again to the Ombudsman's report where she states she was led on an "Alice-in-Wonderland trip around the legal system" as the HSE effectively tried to prevent a report being published. The amendment sets out to allow any person or persons appointed by the Minister to carry out an inquiry to allow them the option of publishing any information relevant to that inquiry. This is a reasonable amendment and if accepted, it would give a strong indication that the Minister of State is serious about an open and transparent inquiry process. If the persons appointed by the Minister believe it is in the public interest to publish any information, they should be allowed to do so.
There was no intention to amend the law on publication. The same principles that apply prior to the enactment of this legislation regarding the ability of the HSE to publish will still apply to the Minister. The Bill is about creating a safe channel of communication to get the files from the executive to the Minister, who, in turn, can furnish them to persons appointed to investigate an issue. There was never any intention to address the publication issue and if there had been, it would have taken significant effort and consultation. There are specific legal grounds limiting publication in this area. With regard to child law, the UN Convention on the Rights of the Child is clear that when we consider the best interests of the child, his or her privacy and the fact he or she was in care must be respected.
However, the problem then we are faced with is how to balance the public interest in having this information in the public domain against those privacy rights. Being able to publish something is a challenge because that balance is not easily achieved. If one wants to hold a non-statutory inquiry that is quick and not costly to avoid tribunals and lawyers, that is a difficult balance to achieve. There was never any intention to amend the law on publication because it would have been complex and I am not sure there is a great deal of merit in the arguments to do so. However, it is crucial for public consideration of the child care system that we produce timely and publishable reports. That will not be easy and that is why the independent review panel under the chairmanship of Dr. Helen Buckley has been set up. Its members are independent, professional and the panel has been set up so that we can get this information into the public domain. I am not willing to accept the amendment for that reason.
I move amendment No. 6:
In page 5, before section 2, to insert the following new section:
"2.—The Independent Review Group on Child Deaths established by the Minister for Children may interview any person the group believes could be of assistance to them in the examination and inquiry they are to undertake into Child Deaths and require any person they wish to interview to attend at such interview and to fully cooperate with them with regard to the examination and inquiry they are conducting.".
Those carrying out an inquiry should have the power to compel people to appear before them to ensure the inquiry functions effectively and efficiently. Any of us who has worked in the public service - I did for 14 years - will be well aware of the mountain of documentation that can accumulate overseveral years on minor matters. The manner in which paperwork accumulates is always extraordinary. However, the information required to carry out a meaningful and complete inquiry may not often be found within the dusty pages of thousands of files and much could be learned from an interview process. For example, if during an inquiry, the review group reaches a dead end during its examination of files and it is obvious to those carrying out the inquiry that the only method of continuing this trail of investigation is to interview staff members, it should have the power to do so. Without that power, the inquiry has to be rendered weak and ineffective.
Amendment No. 7 seeks to amend the Commissions of Investigation Act 2004 while amendment No. 6 appears to seek to give the independent review group power conferred by section 16 of that Act in regard to compelling witnesses. This Bill is not concerned with that Act. There are 51 closely interrelated sections in that Act concerned with establishing and operating a specific structure for carrying out an inquiry in a particular way. Section 16, for example, has to be seen in the context of the scheme of that Act. If amendment No. 6 were accepted, the question of penalties for non-compliance and the issue of relevant legal rights and legal rule would have to be fully explored, as it is in the 2004 Act. However, the independent review group on child deaths is not an inquisitorial inquiry. It is being asked to examine existing information, including reviews and reports completed by the HSE or others on behalf of the HSE and the issue of formal interviews should not, therefore, arise. It is expected that staff in the HSE and persons providing services on its behalf would assist with providing any necessary clarification on information or documents provided. Furthermore, the Bill does not set out the procedures for holding inquiries and, as stated previously, is quite limited and specific in its remit.
The policy objectives of this Bill are very focused. The purpose is to address a particular situation, namely, the provision of information by the HSE to the Minister and to allow for the use of that information by persons appointed by the Minister to undertake reviews and inquiries. That is what the Bill achieves. Accordingly, I will not accept the amendments.
If we have learned anything from the Ombudsman's report published yesterday it is that co-operation from the HSE officials mentioned by the Minister might not be forthcoming. The Ombudsman said she was led on an Alice in Wonderland-like trail around the system to try to get information to which she is entitled. She remarked that there is something rotten within the system. To deny the inquiry the power to compel people to appear before it and to ask them questions pertinent to the inquiry renders it toothless. On that basis, we will press the amendment.
The Senator has the right to do as he wishes. The difficulty with this is that if one compels attendance and creates an inquisitorial situation, a person will present his evidence and, naturally, that evidence will most likely be adverse to somebody else. That person would then have to be asked about his position. Inevitably, lawyers will become involved and whatever is found by the review group will have to be put to the two people for their review and feedback. Let us bear in mind that we are dealing with 188 cases here. With compellability of witnesses it would take years, at least, for the review group to report. My intention is to have timely reporting. If one uses a statutory type of inquiry, which is inquisitorial and compels witnesses, one goes down a cul-de-sac if one's primary aim is timely reporting, as we have learned from the tribunals.
The review group is free to invite people to meet it, if considered necessary, but it is not the principal focus of the work. In my experience, in previous inquiries of a non-inquisitorial and non-statutory nature there has been no resistance on the part of HSE staff to co-operate.
The Dail Divided:
For the motion: 19 (Ivana Bacik, Paddy Burke, Jerry Buttimer, Ciarán Cannon, Paudie Coffey, Maurice Cummins, Frances Fitzgerald, Fidelma Healy Eames, Michael McCarthy, Nicky McFadden, Rónán Mullen, Joe O'Reilly, Joe O'Toole, John Paul Phelan, Phil Prendergast, Feargal Quinn, Eugene Regan, Shane Ross, Brendan Ryan)
Against the motion: 22 (Dan Boyle, Martin Brady, James Carroll, Donie Cassidy, Maria Corrigan, Mark Dearey, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Lisa McDonald, Paschal Mooney, Niall Ó Brolcháin, Brian Ó Domhnaill, Labhrás Ó Murchú, Fiona O'Malley, Jim Walsh, Mary White, Diarmuid Wilson)
Tellers: Tá, Senators Ciaran Cannon and Maurice Cummins; Níl, Senators Niall Ó Brolcháin and Diarmuid Wilson
Amendment declared lost
Acting Chairman (Senator Fiona O'Malley:
It is beyond the scope of the Bill because it has to do with issues of freedom of information. The Bill deals particularly with the Health Service Executive. It would not be appropriate to accept something outside the scope of the Bill. I understand the Senator received a written communication to that effect.
I thank Senators for their contributions. It is clear from Senator Cannon's contribution and the amendments tabled by him, as well as the debate in the Dáil and the Seanad, that all Deputies and Senators share our desire to have the Bill passed as quickly as possible. I thank, in particular, the Office of the Attorney General for the speed and efficiency with which it turned around the Bill within the very short time available.
I thank the officials involved, particularly Mr. Peter Lennon and Ms Amanda Younge, also Mr. Denis O'Sullivan and Ms Frances Spillane, and, indeed, others who contributed significantly. I thank the Whip's office for affording us the time and thank all of the Senators who contributed.