Michael McGrath (Cork South Central, Fianna Fail)
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174. To ask the Minister for Health further to Parliamentary Question No. 160 of 14 June 2018, and in view of the recent settlement that has been agreed, the role his Department played in the sanctioning of the use of private investigators to monitor the work of hospital consultants in the context of a current pay claim; the nature and extent of the surveillance; the duration and number of consultants involved; the other departments or State agencies involved in the decision to undertake such surveillance; the role of the HSE in the matter; if the HSE approved the method; and if he will make a statement on the matter. [27204/18]

Simon Harris (Wicklow, Fine Gael)
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I welcome the opportunity to clarify the position in relation to the use of private investigators in defending the legal cases taken by consultants. I am aware that there has been some criticism of the Departments approving the use of private investigators as part of the defence. The use of these services is not unusual where legal proceedings are in train and where evidence is being gathered.

Arising from the High Court proceedings taken against the State for alleged breach of Consultant Contract 2008, the Government made a decision to vigorously defend these cases. Examination of possible non-compliance with the terms of the plaintiff’s contract was part of the defence strategy mounted against the plaintiffs; particularly in relation to the level of private practice undertaken. Under the 2008 Contract, consultants with certain contract types may engage in off-site private practice, others are limited to on-site private practice up to specified levels and others are not allowed engage in private practice. Of the ten lead-cases, three were subject to particular scrutiny.

Gathering data in relation to off-site private practice is more difficult than on-site practice and to do so in a thorough manner required the services of a private investigator in order to establish if excessive off-site private practice work was being undertaken by the consultants and the extent of such work. The HSE instructed private investigators to gather evidence to support the HSE's counter-claim in relation to non-compliant consultants. This approach was approved by the Departments of Health, Finance, and Public Expenditure and Reform and was reaffirmed by the Departments as appropriate in the lead-up to the hearing date in conjunction with the State’s legal advisors. It should be noted that no consultants outside of the lead cases were subject to surveillance by a private investigator.

The settlement agreement reached between the parties provides that by accepting the settlement, eligible consultants who settle under this agreement affirm the terms of the Consultants Contract 2008. This is a positive commitment that the HSE and the Department can use to strengthen monitoring of compliance and sends a strong signal that there is renewed commitment by all sides to ensuring adherence to public/private practice ratios as set out in the contract.