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• 15 July 2010 - Gagging the Ombudsman? - Aftermath of an Investigation by the Ombudsman of the Health Service Executive

15 July 2010 - Gagging the Ombudsman? - Aftermath of an Investigation by the Ombudsman of the Health Service Executive

Conclusions

The issues dealt with this in this report have some resonance with more recent events in which the HSE has, apparently, refused to provide child care records for the purposes of the inquiry being conducted into the deaths of children while in HSE care. This inquiry is being conducted on behalf of the Department of Health & Children by Ms. Norah Gibbons and Mr. Geoffrey Shannon. Arising from this situation, the Minister for Health & Children brought the Health (Amendment) Bill 2010 before the Oireachtas in June of this year. This Bill was given priority in the Dáil and Seanad and was signed into law, as the Health (Amendment) Act 2010, by the President on 3 July 2010.

I understand that the immediate issue of the HSE's capacity to provide information to the inquiry is provided for in law already under the provisions of section 40 of the Civil Liabilities and Courts Act 2004. The HSE does not, apparently, accept that this is the case and has represented the fact of this new legislation having been enacted as evidence that it was correct in its refusal to co-operate with the inquiry. I do not believe that the HSE is correct in this. I understand that the Minister for Health and Children took the opportunity presented by the present impasse to deal with wider matters of information sharing by the HSE with the Department. The Explanatory Memorandum accompanying the Bill explained that its purpose 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 between the HSE and the Minister."

Arising from these very recent developments, however, there is one general observation I would make: the actions of the HSE which have prompted the recent Health (Amendment) Act 2010 appear to reflect the same rather perverse approach as it demonstrated in its dealings with my Office in the aftermath of my investigation of the guardians' fees complaint.

I use the word "perverse" advisedly in relation to my own experience. The HSE's actions, as described above, were unwarranted and contrary in the sense that my investigation had nothing to do with "in camera" proceedings other than that the service provided by the complainant agencies involved children who had been the subject of court proceedings. The complaint had to do with money, not with any aspect of the service actually provided to the children or what had happened in court. The HSE zoned in on an issue which was quite irrelevant to my investigation and then used that irrelevant issue as the basis, not just for rejecting my report, but for involving me in the futile and expensive proceedings described above.

The HSE's approach also suggests a major lack of ordinary common sense and a poor sense of priorities. There are many areas of health entitlement in which, at present and indeed historically, the HSE (and its predecessor health boards) has failed to meet its statutory obligations. These failures span the entire range of health and social services - child protection, dental services and nursing home care for the elderly to mention but a few. In the next few months I will be reporting to the Oireachtas on failures in the specific area of  nursing home services for the elderly. It is hard to credit that the HSE would choose to engage my Office on a wasteful and ultimately futile escapade, as described above, when it has so many pressing and very real problems with which it should be engaged. I am not at all persuaded that its actions arose from a genuine belief in the need to show respect for, and to protect the integrity of, the courts.

A striking feature of my experience, as described above, is the extent to which engagement on the issues was delegated by the HSE to its legal advisers. Correspondence from my Office to the HSE was passed on to its solicitors for reply. There were occasions when it appeared that nobody at management level within the HSE was actually aware of all of the developments and, at times, it was difficult to know with whom, within the HSE, matters could be discussed. At times, one wondered whether the delegation of responsibility to the legal advisers was a conscious device to prolong matters and to maintain the confusion which the entire episode was engendering. At one point, the HSE's solicitors expressed irritation that my Office (quite consciously) sought to communicate through the usual official-level channels rather than, as they would have it, confine all communication to the legal channel.

In summary, therefore, it was a frustrating, wasteful, dispiriting and, ultimately, useless process in which the HSE caused my Office to be involved in the aftermath of the completion of the particular investigation in July 2008. I cannot say with certainty that the HSE's behaviour was designed deliberately to block publication of my investigation report; but I can say that this possibility has to be considered.

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