Health (Amendment) Bill 2010: Second Stage

Friday, 2 July 2010

Seanad Éireann Debate
Vol. 203 No. 14

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Question proposed: “That the Bill be now read a Second Time.”

Minister of State at the Department of Health and Children (Deputy Barry Andrews): Information on Barry Andrews Zoom on Barry Andrews Senators are familiar with the reasons for and the purpose of the Health (Amendment) Bill. They share my view that the work of the independent review group on child deaths is of great importance and urgency. The Bill is necessary so the review group can complete its task. Accordingly, I ask for Senators’ support.

I acknowledge that taking all Stages today is not ideal but the matter is urgent. Should this House pass the Bill, it is envisaged that there will be a motion for earlier signature by the President so it can come in to operation quickly. This will ensure the work of the group can then proceed as expeditiously as possible.

It is important to point out that the Bill is quite short, and its substantive provisions are focused on achieving particular and clear objectives. The aims of the Bill can be summarised as strengthening the legislative base for the provision of information by the Health Service Executive to the Minister for Health and Children to enhance the Minister’s ability to fulfil her role and functions, including political accountability to the Oireachtas, and creating a “safe channel of communication” for sensitive information from the HSE to the Minister.

The Bill achieves its objective in three 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 her functions. Third, it allows persons appointed by the Minister to undertake reviews etc. similarly to use such information and documents.

Senators will be aware the legislation covers the entire remit of the HSE. This is to make certain that a situation similar to the one encountered by the review group could not arise again, for example, in a review or inquiry relating to the care of the elderly.

I will elaborate on the provisions but will first provide some context. All children deserve a good childhood and how we care for them, especially those who are disadvantaged, vulnerable or at risk, characterises us as a society. A caring society strives to do the best it can for all its children. In doing so, it must be willing to acknowledge problems and learn lessons so necessary and desirable improvements can be made.

Within Government, I bear a particular responsibility to protect and advance the rights and welfare of children. This is especially so where, for whatever reason, vulnerable children become known to the child protection services or are placed in care.

The death of any child is a tragedy and a deeply upsetting time for the family. Where such a death occurs while the child is in the care of the State, there is an onus on the State to act. Such a death is a tragedy and it is deeply upsetting for social workers who act in loco parentis. The circumstances surrounding the death must be comprehensively examined, not just 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. The group was asked by me to examine existing information on deaths of children in care and firstly to validate the categorisation of children who died from natural and non-natural causes.

[948]With regard to 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 its behalf and, based upon this information, to provide on an anonymised basis key summary information regarding each child and the circumstances leading up to its 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 to make recommendations on how child protection services can be strengthened in so far as learning can be identified from their examination of reports and other information. I consider this review to be very necessary. It is imperative that the group be in a position to discharge fully 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 who were in the care of the HSE in the period immediately prior to their 18th birthday or were in receipt of aftercare services under section 45 of the Child Care Act 1991, and children known to the child protection system. However, in order 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 legal concerns identified related to 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, which can be lifted with the approval of the courts, on the publication or broadcasting of matters that might lead the public to identify a particular child who has been the subject of proceedings under certain parts of that Act; the Data Protection Acts 1988 and 2003 which regulate the collection, use and disclosure of personal information, manual or electronic, relating to living identifiable individuals and categorise health information as sensitive and therefore deserving of additional protection; and the issue of consent to the disclosure of personal or confidential information including, as appropriate, the consent of surviving relatives.

When these difficulties came to light in late May, the Government considered the options available to address them and concluded that the best way was to introduce legislation. The Office of the Attorney General has worked very closely with the Department of Health and Children in preparing the Bill to ensure 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. I chose people for the group who were eminent in the child protection field and respected by their peers for their expertise, professionalism, commitment and independence.

Events since I established the group demonstrate very clearly that only an independent and transparent review process offers any possibility of rebuilding public trust in our child care system. We now have, for the first time, 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.

The Bill contains two sections. Section 1 is the substantive provision and section 2 sets out the Short Title and collective citation. Section 1 inserts a new Part, Part 7A, which pertains to the furnishing of information and documents,into the Health Act 2004. This explains the numbering of the provisions in the Bill, sections 40A to 40F of the Health Act 2004. The 2004 Act is the one that established the HSE.

[949]Throughout the relevant sections, there is reference to the Minster’s functions under the Health Act 2004 and other enactments and it may be helpful, therefore, if I outline briefly the nature of the Minister’s functions.

The Minister is concerned with policy making, but that is only part of the picture. The Minister’s functions also include monitoring the performance of the HSE and holding it to account for the performance of its functions. This is clear from the Health Act 2004. For example, Part 7 of that Act deals with the accountability of the HSE to the Minister. Section 10 of the Act provides that the Minister can issue general directions to the executive for any purpose relating to that Act or any other enactment and concerning any matter referred to in the 2004 Act as she may specify. The section also provides that the Minister can issue specific directions requiring reports on any matter relating to accountability or the performance of the executive’s functions.

More generally, in so far as any issues arise in regard to the powers and functions of the Minister, it is important to examine the Health Acts 1947 to 2009. The Health Act 1970 is fundamental legislation providing for the availability of health services in the State. In that regard, the Minister has functions regarding the provision and maintenance of hospitals, the acquisition of land for voluntary bodies, the administration of the Central Mental Hospital, full eligibility, inpatient and outpatient services, the provision of ambulances, home nursing and home help services, medical and midwifery care for mothers and, generally, in regard to making regulations applicable to the HSE and the extent to which the HSE shall make services available under the 1970 Act.

Another example is that under the Health Act 1947, the Minister has the function of making regulations on the prevention of the spread of infectious diseases.

Section 40A provides a definition of “document” to ensure 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 intention of section 40B on the duty of the executive to furnish information is to ensure that the Minister is appropriately briefed in a timely manner by the HSE on all matters of which she needs to be aware. The Minister 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 to ensure 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 said provision. However, in preparing the Bill, the opportunity was taken to strengthen the existing situation by placing a proactive duty on the HSE. The section is modelled on section 41 of the Garda Síochána Act 2005, which similarly places a duty on the Garda Commissioner to keep the Minister for Justice, Equality and Law Reform informed of significant developments.

Section 40B requires the executive to monitor and keep under review occurrences and developments concerning matters relating to its objects and functions. The HSE must inform the Minister of any occurrence or development that, in its opinion, the Minister is likely to consider significant for the performance of her functions. It must similarly 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. For example, this could relate to matters affecting public confidence in the HSE, patient safety or public health. This power to specify will ensure the Minister can be kept fully informed of important issues relevant to the public interest or concern.

[950]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. The guidelines apply to the information that the HSE believes should be forwarded to the Minister and to the areas the Minister specifies. Where guidelines have been made, the executive must comply with them. The Minister may issue different guidelines in respect of different types of occurrence or development. The reason for the guidelines is to ensure the HSE knows what to provide and how it should be provided. However, there is deliberately no requirement to make guidelines. The Minister has discretion in this and it may be that guidelines will not be made for a few months after the provision is up and running so that they can be better framed against a background of experience.

It was considered useful to place an explicit duty on the HSE in this regard. At times, there have been difficulties in obtaining information from the executive. It is a large organisation and the explicit duty in the Bill aims to increase the awareness of all staff in the organisation of the Minister’s political accountability for the health services. Section 40B is intended to stimulate a culture change that should see the HSE becoming more proactive in keeping the Minister informed of important issues relevant to her accountability role and other functions.

It will be noted that section 40B provides that the executive must provide applicable information “without delay”. Given the requirement to monitor and keep under review occurrences and developments concerning matters relating to its objects and functions, there should be no reason for the HSE being tardy in informing the Minister of relevant occurrences and developments. However, if the Minister had any reason to suppose that the HSE was being slow in providing information under the section, the Minister could invoke section 40C and require it to provide the information within such period as she may specify.

Section 40C on the requirement to furnish information and documents and section 40D, under which the Minister may share information and documents in certain circumstances, are the sections 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 she considers it necessary in the public interest and for the performance of her functions, require the executive to provide her with any information or document within its procurement, possession or control that she specifies. The section lifts existing legal prohibitions in any enactment or rule of law that 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. This requirement must be complied with by the executive within the time specified by the Minister and in any event without delay.

While it is envisaged that any requirement issued by the Minister will be in writing, that does not need to be the case. This could occur where the Minister is briefed orally on an issue by the executive and determines in the public interest that particular sensitive information or documents must be provided without delay. As Senators will appreciate, the key consideration in some cases will be speed. The Bill only lifts the in camera rule for the purpose 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, and so on. The requirement to satisfy the public interest test is a further safeguard. This is why we see this provision as creating a safe channel of communication for sensitive information to pass from the HSE to the Minister. The information or documents required under this section may or may not include in every case information and-or documents that would need to rely on the legal exemptions. However, in every case, there must a public interest dimension to the requirement and the extent to which that must be applicable is related to the sensitivity of the information involved.

[951]While sections 40B and 40C are 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. For example, this could arise where the HSE provides information on a matter under section 40B, but indicates that it is constrained in providing further details due to privacy issues. Consequently, while section 40C is critical for the work of the independent review group, its application goes much further. Section 40C will enable the Minister for Health and Children to require from the HSE in the public interest any information or document she needs for the purposes of performing her functions. While it should not be necessary to use this power frequently, it will help to ensure the Minister has the information and documents she needs for 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 she considers the information or documents received under section 40B or 40C are relevant to the examination or inquiry, she can give access to that material to the persons concerned. This will enable them to use the information and documents in line with the terms of reference of their appointment.

As Senators will note, section 40D does not give the persons appointed by the Minister the power that the Minister has under section 40C to require information or documents directly from the executive. This 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 specific 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 their use by any review or investigation team appointed by her. However, the review group on child deaths is free to request any information it wishes from the HSE. Where there is a legal difficulty, it can advise of that and the Minister will be able to require the HSE to provide the information or documents directly to the review group. When such information is provided to the group, it can use the information and documents in the same way as the Minister can without any need to revert to the Minister for approval. Accordingly, there is no question of anyone being able to tell the review group how to use the files or otherwise dictate how it does its work.

Section 40E provides that the Minister may use information and documents provided under the Bill as she requires for the performance of her functions. Taken 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 her functions. Section 40E also addresses the issue of 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. This 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. The purpose of the Bill has never been about publication. Rather, it is about providing a safe channel of communication between the HSE and the Minister. This is what the Bill achieves. However, I am aware that differing views exist on whether the Bill should have taken another course on publication. For this reason, it might be useful to set out legal and policy considerations relevant to the publication of reports.

Many legal issues arise in considering whether a report can be published, such as the constitutional right to privacy, the right to fair procedures, the right to a fair hearing and, in some cases, the right to cross-examine witnesses. The law on defamation must also be considered. A further issue that can arise is whether publication would result in contempt of court and, in particular, that aspect of the law known as the sub judice rule. Several policy elements would [952]also be relevant to any consideration of amending the current law on publication. Where a Minister decides to launch a review or inquiry into a particular matter, he or she has usually considered his or her options of establishing a statutory inquiry or a tribunal. This option may be decided against for various reasons, perhaps because it might take too long and get caught up in formalities and is usually quite costly. Where a non-statutory review or inquiry is established, such as the independent review group, the review or inquiry team is usually given a relatively short period, depending on the issue under scrutiny, to conduct its review, which may sometimes be paper-based, and report to the Minister.

In the child care area, the rights of children currently in care and the public interest in maintaining the integrity of the child care system, which requires the co-operation of family members and members of the public to report incidents of concern, would weigh heavily against mandatory publication of all reports identifying the individual involved. It seems to me that in relation to children currently in care, it is extremely important that they do not feel that everything they tell their social worker and is placed on their file could be published. If the situation was otherwise, children in care would have a concern about their privacy and about the nature of their relationship with their social worker. It could deter young people from seeking help and, as a result, the integrity of the system could be greatly compromised.

Similarly, in terms of family members and members of the public who make disclosures to social workers, which are essential to the proper working of the system, they may be discouraged from doing so if it is felt that a report into the child’s case file which identified “informants” might be published. I believe it is best that each report can continue to be assessed on its merits as presented to the Minister. To quote Norah Gibbons at the time of her appointment to the review group:

Children and families have a right to have their privacy maintained and it is crucial that this is honoured. They must be able to trust that their family details will not be exposed in public in such a way that violates their privacy.

I very much agree with that view for the reasons I have outlined.

Further, where a review or inquiry is launched with the express intention on the part of the commissioning Minister to publish a report that will identify persons, it is reasonable to expect that anyone likely to be affected by the events under scrutiny, especially anyone who expects he or she might be criticised or blamed, either directly or by implication, will be very concerned to protect his or her legal position and rights. This may see him or her engaging legal advisors and or displaying a reluctance to co-operate with any review.

By their nature and objectives, all inquiries are different. However, where the principal objective is to learn from the experiences of the past and to use that learning to change the way things are done it seems the course we have adopted with the Bill is the right one.

Section 40F 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 legislation, the functions of the executive or the Minister. This means 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.

On the matter of sanctions for possible non-compliance by the HSE, the Bill does not provide for sanctions because the Health Act 2004 already does so. Specifically, section 14 provides that the Minister may remove the board if it does not comply with a direction or requirement [953]imposed on it by statute or if she is satisfied the board’s functions are not being performed in an effective manner. In the latter instance, she may appoint a person to conduct a review into the matter and the board must co-operate with the review. However, post-enactment, when the Minister writes to the HSE she will make it clear that she expects a positive and constructive attitude to the Bill.

In the course of preparing this legislation, officials from my office met 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 and in particular that any disclosure of such information without consent should have a necessary public interest dimension. I share the commissioner’s view. Indeed, my objective throughout the Bill is to have a proportionate response to balance correctly 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 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 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.

However, Senators will be aware that the third report of the Joint Committee on the Constitutional Amendment on Children noted there is a lack of access to source information relating to cases under the Child Care Act 1991. These cases are heard in the District Court where judgments are rarely written and there is no facility for recording such judgments. The committee commented that it did not have access to any records that could assist in ascertaining how these cases are decided in normal situations and recommended that facilities are established to enable reporting of District Court cases on the same basis as is available in general family law cases. In that scenario, reporters are permitted to sit in and take notes of family law cases, so a general picture of how they are determined can be presented to interested bodies and persons. This information can be disseminated without putting in jeopardy the anonymity and privacy of the parties involved.

I agree with the committee that a similar arrangement could be put in place for District Court cases and, in particular, cases under the Child Care Act 1991. I intend to examine this matter further to see how it can be progressed.

Senators will also have read in the press the comments of the Ombudsman for Children on the Bill. By way of background, I should explain that given the important role 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 in advance of publication. I received her detailed comments two weeks ago 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 [954]the independent review group that I should like 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.

The Ombudsman for Children also raised the matter of publication including the fact that it is the Minister of State with responsibility for children and youth affairs who publishes any report from the independent review group. Again, as I said earlier, the decision was taken from the beginning not to interfere or amend the present law on the publication of reports. Moreover, the Minister of State with responsibility for children and youth affairs has public and political accountability for children’s services. Consequently, it is reasonable that it is the Minister of State who should publish any report commissioned by him and undertaken on his behalf. I have already given a commitment that the report of the independent review group will be published.

I have also read the comments of the Ombudsman for Children in respect of the perceived lack of institutional independence of the 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 in 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. I believe that the HIQA guidance is effective in setting a transparent and accountable death review mechanism for the future. As regards the independence of the process, I place my faith in HIQA and the approach that body has recommended. I also point to the fact 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:

Social Services Inspectorate/HlQA will monitor all reports to ensure that the review process is in compliance with this guidance.

Though 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 and 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 [955]of the 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, namely, the Minister for Health and Children, in a way that is necessary for the Minister to fulfil her role and functions. However, I want to take the opportunity today to make it clear that 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 Health Service Executive is to be improved. More immediately, of course, the Bill is necessary for the work of the independent review group.

I want to conclude by making a point I have made before, namely, that 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 into the future. This Bill is an important element in that process. I commend it to the House and look forward to the debate.

Senator Ciaran Cannon: Information on Ciaran Cannon Zoom on Ciaran Cannon The tragic deaths of children in the care of the Health Service Executive may not have been in vain if the veil of secrecy and self-interest at the heart of the HSE since its inception is finally lifted. That the Government feels obliged to put in place the Health (Amendment) Bill 2010, however, is a monument to its failure to create a national health executive that is democratically accountable and over which Ministers have a capacity to exercise any degree of oversight.

Through the creation of the HSE, which in itself was a reasonably laudable concept, the Government succeeded in removing all parliamentary accountability for the running of the health services. It created an executive with no legal obligations to report to the Government on major issues of concern in an acceptable timescale. The stark and sad reality is the HSE has become an obsessively secretive organisation which prioritises self-protection over the protection of children.

It is worthwhile to briefly recap on the sequence of events that led to the introduction of this legislation, if only to highlight the drip-feed of information from the HSE and its deliberate attempts to conceal the real truth about the suffering of children in its care.

On 5 March 2009, the Minister of State at the Department of Health and Children, Deputy John Moloney, stated there was a total of 21 deaths of children in the care of the HSE in the past ten years. On 4 March 2010, the Minister of State with responsibility for children and youth affairs, Deputy Barry Andrews, stated 23 children had died. On 28 May, the HSE stated the figure was 37 children. On 4 June, it then confirmed a further 151 children and young people known to the social services or who had been previously in care died in State care. In total, 188 young people who were in care or in contact with social services have died in the past ten years. Finally on 8 June this year, the Minister of State, Deputy Barry Andrews, indicated that number could rise.

What confidence can one have in a Government and a health executive that took more than a year to produce an accurate figure on deaths of children in its care? One can only glean from this litany of incompetence on the HSE’s part that every iota of information had to be dragged from it. The story does not end there.

[956]In recent days we learned HSE managers were planning not to publish highly critical reports into the deaths of Tracey Fay and David Foley, two of the children who died in State care. The reports published earlier this year disclosed a litany of failures by social work and child protection services, including inexcusable delays in providing essential services, chaotic case management and systemic failures. However, despite recent assertions by HSE officials that there was no deliberate suppression of reports, newly released internal documents, however, paint a much different picture.

We have learned that a letter from a senior HSE manager to the Minister of State, Deputy Barry Andrews, in April 2009 stated there were no plans to publish the reports into David Foley’s and Tracey Fay’s deaths. These findings are disturbing but not surprising. The HSE’s reluctance to publish these reports is part of a wider culture of excessive secrecy and unwillingness to confront failure at a senior level within the service. We can now only conclude the only reason the reports were eventually published was due to political and media pressure.

Since her appointment in 2003, time and time again, we have seen the immense value of an independent and committed Ombudsman for Children. While Ms Logan has welcomed the publication of this legislation, she does have some serious reservations about it. If the Minister of State, Deputy Barry Andrews, is serious about reform of the HSE, and I believe he is, he should take on board her suggestions.

For example, she recommended a Government-appointed independent review group — similar to the one set up recently by the Minister of State — should be empowered to directly source information and documents from the HSE. However, under this Bill the Minister will determine what information is relevant and who has the power to demand it. The Ombudsman for Children described this provision as regrettable, suggesting it may weaken public confidence in any report as a result of the independent group’s work. A properly constituted statutory inquiry should have its own means of compelling documents and information rather than relying on the power of the Minister to do so.

Furthermore, the independent review group is not authorised by this Bill to publish any report it may issue. A properly constituted independent inquiry should be able to publish its own report rather than the Minister doing so. The Bill also does not address the issue of documentation or information derived from in camera proceedings which the independent group believes, following careful consideration, should be published in the public interest. The use of such information or documentation in a report by an independent group should be possible without the necessity for a court application. The Bill, however, does not allow the Minister or the independent group to do this.

The Ombudsman for Children concluded her observations:

While this legislation addresses a specific problem that has arisen and is welcome to ensure co-operation in that context, it will do little to address the wider culture of co-operation required from public bodies in the context of children’s rights address.

Earlier this year, in a debate about the proposed children’s referendum I remarked there was an ethical obligation on us as law-makers to put the interests of our children at the heart of our Constitution. When our children’s ombudsman tells us we still have a culture of non-co-operation in our public bodies with children’s rights, we simply cannot allow any further delay in the holding of this badly needed referendum.

The valuable work done by the Joint Committee on the Constitutional Referendum on Children cannot be left indefinitely on the shelf. If the Minister of State, Deputy Barry Andrews, [957]wants to look back with some degree of pride and satisfaction on his time in this Ministry he needs to make this referendum an absolute priority.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White I welcome the Minister of State and his officials from the Department of Health and Children. I compliment them on the excellent review contained in his speech which gave the reasons this important and urgent legislation has been introduced.

The Bill is necessary so that the child death review group can complete its task. The Minister of State accepts taking all Stages today is not ideal but because the matter is so urgent it is necessary to bring the legislation into operation quickly. This will ensure the work of the group can be expedited as quickly as possible.

Some weeks ago I visited the site of the Letterfrack industrial school to absorb what had happened to the children there under State care. Much cosmetic work has been done around the old building. Looking at it today, it is very difficult to imagine what happened there until one goes to the graveyard where children are buried. It sends a shiver down my spine now to think about the neglect of thousands of children who were psychologically, physically and sexually abused while under State care. As the Minister of State said, we must learn from the past and move fast so as not to allow it to be repeated.

The children in the industrial and reform schools all came from poor backgrounds. There is no doubt the system treated them as if they had no feelings or emotions like the rest of us. There was a cold bureaucratic and class-conscious attitude to these children. There was a lack of feeling on the part of the bureaucracy to these children in care as if they had no ambitions or dreams and no feelings of sadness or hurt. As the Minister of State noted in his speech, we should not blame the individuals in the bureaucracy who work but who are not 100% engaged in the responsibilities. However, there is an inability for a person doing his or her job to take responsibility and for it to be acknowledged when he or she does a good job. I have worked there twice in my lifetime. One gets on in a bureaucracy because one obeys the rules and tows the line. It is not the same if one is out in business and trying to survive there. Those who break the rules and do something different get along in such cases. I believe those who work in the public sector, whether the HSE or any Department, have a great deal of ability to be entrepreneurial and passionate about the work they do on a day-to-day basis. It breaks my heart as spokesperson on children’s affairs in the Seanad for Fianna Fáil to know the lives of thousands of children have been ruined forever.

As a younger person, I was always very impressed by people in the Department of Education and Skills and the senior civil servants. They showed a lot of brainpower to get those jobs over the years. However, when I reflect on it now, I am not impressed and I will never again be impressed because of the coldness shown to these children. Those involved had no empathy when they visited these institutions. I refer to the judges who spoke in such an authoritarian way and with such class distinction as well. This attitude was shown because these children were poor and the same applied to children in care. The view was taken that they did not seem to deserve what every other child deserved. I realise the Minister of State has a passion for progressing this issue and seeks to create transparency. I wish the Minister of State and his executives from the Department the best of luck and I congratulate him on the Bill. It is worthy and it is my pleasure to be here to support it and to bring it into being as quickly as possible.

Minister of State at the Department of Health and Children (Deputy Barry Andrews): Information on Barry Andrews Zoom on Barry Andrews I thank the two Senators who have kindly contributed to the debate. Senator Mary White has drawn on her interesting visit to Letterfrack. This frames the discussion we have held in the past 12 months, what we have discovered about the failures of the past and, in many ways, it [958]informs my thinking about how we deal with children in care today. If we repeat the mistakes of the past then we are completely derelict in our professional duty.

The Bill and the independent review group deal with transparency but not simply for its own sake. It has a specific purpose, that is, to try to ensure that good practice in the area of social work is properly supported, recognised and acknowledged. We will find that in many of the cases of unnatural deaths, social workers did everything they could. It will be found that in many cases the causes of the tragedy were external to the HSE. In this way, we will learn what we are not doing correctly. There are likely to be situations from which we will learn something and I suspect this will have much to do with how the HSE interacts with other agencies and where we have fallen down in such circumstances.

I look forward sincerely to the outcome of the independent review group and its views and I believe it will also serve the purpose of restoring some confidence in the HSE. At the moment that confidence is not of the highest regard in spite of the fact that almost anyone who has any experience of the HSE in a personal level has a very positive experience. There is a strange disconnect in this regard with a greater than 90% satisfaction among those who have interaction with the HSE but so little public confidence. Why is this the case? We must admit honestly that there will always be media interest and, therefore, try to ensure there is a degree of transparency, not only to restore public confidence, but to inspire and support a culture of good practice where it is found and highlight and underline bad practice. This is essential to improve professional standards.

I agree with the views expressed by Senator Cannon on the constitutional referendum. This is not for any reason of personal or professional satisfaction, although that may be the case. Rather it is something we must do and it is timely we should do it. It is 17 years since Catherine McGuinness first called for a referendum following the Kilkenny incest case. Since the Joint Committee on the Constitutional Amendment on Children reported last February we have worked on an ongoing basis to try to match what was intended by the committee with the appropriate constitutional wording and to try to eliminate unintended consequences which can, inevitably, occur.

It is very important for this legislation to get through quickly because we went through a very bad period during the past six or eight weeks. Senator Cannon provided a timeline which excluded several important issues. He is correct to state that we started with a figure of 20 and ended up with 37. That is absolutely not satisfactory and the Senator is correct to say as much. The Government recognises there is a deficit in this area and that previously a different standard applied whereby review reports were not put in the public domain in a timely and publishable form and, therefore, a doubt will always hang over what went on. Once we move to the new national standard for all future cases and once we complete our review of cases in the past, we will be in a far stronger position to say we have a child protection system that is fit for purpose and that the reviews of serious incidents and deaths are as good as anywhere in the world.

Question put and agreed to.

An Cathaoirleach: Information on Pat Moylan Zoom on Pat Moylan When is it proposed to take Committee Stage?

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson Now.


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