COMMITTEE OF PUBLIC ACCOUNTS debate -
Thursday, 9 Feb 2023

Chapter 12 - Financial Impact of Cyber Security Attack

Mr. Robert Watt (Secretary General, Department of Health) called and examined.

Chairman

Members and witnesses attending from within the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19. Members of the committee attending remotely must continue to do so from within the precincts of Leinster House due to the constitutional requirement that, in order to participate in public meetings, members must be physically present within the confines of the place where Parliament has chosen to sit. The Comptroller and Auditor General, Mr. Seamus McCarthy, is a permanent witness to the committee. He is accompanied by Mr. John Crehan, deputy director of audit at the Office of the Comptroller and Auditor General.

This morning we engage with officials from the Department of Health to examine the Appropriation Account 2021: Vote 38 - Health; and the Report on the Accounts of the Public Services 2021, chapter 12: financial impact of cyber security attack. The committee has expressed particular interest in the following matters: expenditure on emergency departments; charges levied for the provision of nursing-home care; charges levied for the provision of nursing-home care for persons with disabilities, those resident in section 38 and 39 voluntary community disability services; and disabled persons maintenance allowance. At a meeting last week, the Department was asked to prepare the following information for today's meeting: the number of cases settled in relation to nursing-home charges; the specific cost of litigation for cases related to nursing home charges and how much has been paid out in respect of claims related to long-stay charges levied on clients of disability services. In relation to the issue of nursing charges, I remind members that it is the role of the committee to examine accounts and expenditure and that should be the focus of our considerations. The Joint Committee on Health will be examining policy matters.

We are joined by the following officials from the Department of Health: Mr. Robert Watt, Secretary General, Ms Louise McGirr, assistant secretary, Ms Siobhán McArdle, assistant secretary, Mr. Kevin Coleman, principal officer, Ms Laura Casey, principal officer and Mr. Daniel Curry, assistant principal. From the Department of Public Expenditure, National Development Plan Delivery and Reform we are joined by Mr. Daniel O'Callaghan and Mr. Eoin Dormer. We are also joined by Mr. Fran Thompson, chief information officer, from the HSE. They are all very welcome. I just overlooked Mr. Derek Tierney, assistant secretary in the Department of Health. My apologies. He was added on late.

I remind all those in attendance to ensure that their mobile phones are switched off. Before we start, I wish to explain some limitations to parliamentary privilege and the practice of the House as regards reference they may make to other persons in their evidence. As witnesses are within the precincts of Leinster House, they are protected by absolute privilege in respect of presentations they make to the committee. This means that they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege and it is my duty as Cathaoirleach to ensure that this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Members are reminded of the provisions of Standing Order 218 that the committee shall refrain from inquiring into the merits of a policy or policies of the Government, or a Minister of the Government, or the merits of the objectives of such policies.

Members are also reminded of the long-standing parliamentary practice that they should not comment on, criticise, or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I call the Comptroller and Auditor General to make his opening statement.

Mr. Seamus McCarthy

The appropriation account for Vote 38 - Health records gross expenditure of €21.7 billion in 2021. Almost all of this, just over €21.3 billion, was paid to the HSE and was spent across 14 of the Vote subheads. This includes €2.2 billion in respect of Covid-19 actions. A further €100 million was allocated to the National Treatment Purchase Fund.

Receipts into the vote in 2021 totalled €482 million. Those receipts comprise mainly of €270 million recovered in respect of the cost of providing health services to EU nationals under EU regulations and receipts of €168 million from the proceeds of excise duties on tobacco products.

At year end, net expenditure under the Vote was €498 million less than provided for. With the agreement of the Minister for Public Expenditure and Reform, €104 million in unspent capital allocations was carried over for spending in 2022. The remainder of the surplus for the year, amounting to €394 million, was liable for surrender to the Exchequer.

I issued a clear audit opinion in relation to the appropriation account.

As signalled in advance, a specific area of interest for this meeting is claims for reimbursement of long-stay nursing home charges. Members may wish to note that such claims are not specifically referred to in the appropriation account for Vote 38.

Subhead D of the Vote provides for expenditure in respect of “statutory and non-statutory inquiries and miscellaneous legal fees and settlements”, in respect of which a total of €11.155 million was incurred in 2021.

Note 6.2 provides more detail about compensation and legal costs incurred and how this breaks down between compensation, legal costs and other costs. These amounted to €9.4 million in 2021, across a range of claim types. The accounting policies for appropriation accounts do not require that information to be disaggregated by type of case.

The accounting policies require Accounting Officers to include a note on any contingent liabilities, unless it is considered that to do so could prejudice the Exchequer's position in court cases or other negotiations. In this appropriation account a contingent liability disclosure in general terms is included at note 2.11.

Chapter 12 of my report on the accounts of the public services examined the impact of the cyberattack in May 2021 on the Health Service Executive and other health bodies. As a result of a malware attack and encryption of servers and workstations, HSE staff were unable to access affected HSE systems and patient information. The attackers were also able to access and to undertake the exfiltration of data relating to patients. In order to contain the spread of the ransomware infection, the HSE shut down its information and communications technology network. Subsequently, the attackers provided the HSE with a tool which was used to decrypt the systems. The process of restoring the HSE systems continued until September 2021.

The Department of Health also identified suspicious activity on its systems around the same time as the attack on the HSE but was able to take prompt action to contain the impact on its systems. The statement on internal financial control at the front of the appropriation account outlines the steps the Department has taken in response to the attack.

The impact of the cyberattack across the health service was severe and immediate, impacting the provision of health services and the recording of patient information. At the time of reporting, the full financial impact of the attack had not been quantified. As well as the direct costs relating to the attack, there are costs relating to the improvement of systems and the impact on clinical care and patients, which will continue into the future. A plan has been prepared which envisages significant investment to improve the HSE's ICT systems, with initial estimates of actions expected to cost more than €600 million over seven years.

Chairman

Thank you, Mr. McCarthy. Mr. Watt, as outlined in the invitation, you have five minutes. I will not be so rude as to cut you off at five minutes, but try to keep your opening statement to that if you can.

Mr. Robert Watt

I am pleased to be here to deal with the 2021 appropriation account and the issues raised by the committee. I am joined by my colleagues, whom the Cathaoirleach has already mentioned. I will now set out the main points of the 2021 accounts as they pertain to Vote 38.

The initial 2021 net provision, both current and capital, for Vote 38 was €21.765 billion, which consisted of a gross provision of €22.19 billion and appropriations-in-aid of €433 million. This represents a 21% increase in the allocation compared with the initial 2020 allocation and reflects the substantial investment made by the Government in combating the Covid-19 pandemic throughout that year. Some €1.66 billion was originally provided for Covid expenditure, but extra costs, including an earlier-than-anticipated roll-out of the vaccine programme, saw expenditure on Covid-related measures total €2.193 billion in that year.

Higher levels of Covid-related activity than projected in 2021 drove higher levels of expenditure. In particular, the budget of €200 million for the vaccination programme was an initial allocation to allow for purchase of the vaccines and did not factor in delivery of the vaccination programme, planning for which was concluded post the 2021 Estimates. Total expenditure on the highly successful vaccination programme totalled €530 million in 2021. The higher-than-projected incidence of infection throughout the year also drove a surge in test and trace activity, with a resulting higher level of expenditure than initially anticipated of €706 million.

The increased funding provided was not just for direct Covid responses such as those previously mentioned but also designed to develop extra permanent capacity within the public health system. Funding of €426 million was provided in 2021 for additional beds in line with the Health Service Capacity Review 2018. The additional beds funded included 1,146 acute beds, 66 critical care beds, 139 subacute beds and 1,250 community beds. While Covid had an impact on some expansion during 2021, most of the planned targets had been met by the end of 2022, and the plan to deliver on any remaining funded additional capacity is set out for this year.

A significant proportion of the extra funding secured in 2020 was to provide for the recruitment of extra staff across the health system. Since the beginning of the Covid-19 pandemic, the HSE has been committed to ensuring sufficient staffing levels to meet both Covid-related and long-term healthcare demand. The years 2020 and 2021 saw the largest annual increases in the workforce since the foundation of the HSE. A total of 12,506 whole-time equivalents, WTEs, were hired across those two years. The total number of HSE staff at the end of 2021 was estimated at 132,323 WTEs, an annual net increase of more than 6,100. It should be noted that these recruitment figures are additional and do not include the replacement of existing staff who retire or leave during a given year. Increases in staff numbers were seen across all categories in 2021. Nursing and midwifery staff increased by 1,660 WTEs, health and social care professionals by more than 1,100 and medical and dental staff by 352, with 150 of those additional staff at consultant level. While these increases in staff numbers were unprecedented, they fell short of meeting the ambitious recruitment targets for the year, with difficulties experienced due to both Covid and an overall shortage of healthcare workers. These recruitment underspends affected community settings in particular. The savings realised by not reaching these recruitment targets were used to offset the overruns in respect of Covid expenditure and, married to a strong opening cash position held by the HSE, saw no Supplementary Estimate required during the year. Indeed, the Vote was in a position to surrender €394 million to the Exchequer at the end of the year.

As well as responding to Covid - and you, Chair, and the Comptroller and Auditor General mentioned this - 2021 saw the Department deal with an unprecedented cyberattack on the HSE and the Department of Health itself. The Comptroller and Auditor General has referred to this attack in his special report on the matter. The impact on the Department was minimised due to the security measures already in place. However, a review of ICT controls and countermeasures led to an expenditure of just under €1 million. The HSE incurred additional costs of €51 million in its immediate response to the attack, which impacted the delivery of services for a time, as colleagues will be aware.

The Department has continued to discharge its functions. We continued to invest in Sláintecare reforms, with over €7 million disbursed in support of over 123 projects through the Sláintecare integration fund, for example. We also support the Minister and the Ministers of State in their work, including their legislative priorities and their public and parliamentary accountability. For example, in 2021 the Department processed over 15,000 parliamentary questions, a significant increase on the number for 2020. I look forward to continuing our work, including with the committee. I am very happy to take any questions colleagues may have.

Chairman

The first committee speaker today is Deputy Carthy, who has 15 minutes. There are ten minutes for everyone else.

Deputy Matt Carthy

I thank the witnesses for their attendance. As the Chair said, we are on a tight lock. I would appreciate it if we could try to keep the exchanges as brief as possible.

Mr. Watt mentioned that 15,000 parliamentary questions were submitted to his Department. Just as a matter of interest, of those, how many were deemed to be operational matters and not actually answered by the Department?

Mr. Robert Watt

From recollection, about half the questions, I think, are referred to the HSE. If they refer to operational matters, the HSE, on behalf of the Minister, answers the questions. Then they are forwarded back to the Department and we in turn forward them on to Deputies. That is the relationship and the standing position on that.

Deputy Matt Carthy

I asked out of only my curiosity.

Mr. Robert Watt

It is about half, I think. Somebody will tell me if I am wrong.

Deputy Matt Carthy

I want to talk about some of the issues that have been prominent in public discourse over recent weeks. As for the issue of people in institutional care homes who were denied their disabled person's maintenance allowance or disability allowance after their first eight weeks of care, from and until precisely what years did that practice continue?

Mr. Robert Watt

The Deputy is referring to the disability payment, whereby people who were in receipt of it in the community went into care and the payment was withdrawn.

Deputy Matt Carthy

Yes.

Mr. Robert Watt

I do not think we shared a detailed note with a committee because it is incredibly complex. There is a detailed report by the Attorney General, which came out this Tuesday, that sets out chapter and verse on this. There are three periods from 1983 to 1996 when that practice was in place. Subsequently, it was established that the practice was ultra vires and the proper legislative basis was not there for it. There were changes then from 1996 to 1999 and then the disability allowance came in subsequently. There were different rules for people who were new to disability allowance compared with those people who already received it. It depends on the period. There are different periods-----

Deputy Matt Carthy

Let me then try to be more specific in my question. In respect of each of the periods, does Mr. Watt’s detailed note suggest the numbers of people affected?

Mr. Robert Watt

The number that has been quoted is around 12,000 people who could have been affected in different ways. They are not all affected in the same way, depending on the period and the nature of the payment, when they would have benefitted from it and when they went into care. As the Deputy knows, it is very complex.

Deputy Matt Carthy

I saw the estimate of 12,000 and the report of the secret 2009 memo that advised the Government against conducting a trawl of HSE records, as it could result in media attention. Considering that there is now clearly media attention on the matter, is that trawl and full in-depth review of the numbers of cases going to be conducted or has that commenced?

Mr. Robert Watt

The Government decided and I think made an announcement that there is a review now. Our Minister is looking at the whole question of the nursing home charges, which is related to the issue.

Deputy Matt Carthy

I will come to that. On this specific issue, has the Minister asked for that particular trawl to take place?

Mr. Robert Watt

On the issue of the disability payments, that question is being looked at by the Department of Social Protection. Because the payments were administered by the health boards pre-1996, our Department and the HSE will be involved in assisting our colleagues in such a project in respect of that.

Deputy Matt Carthy

The Taoiseach has pre-empted that discussion in some ways. He said that the Government does not have a leg to stand on in respect of the legal cases in respect of this particular aspect. Would Mr. Watt agree with him?

Mr. Robert Watt

The Attorney General has set out the position on this. Clearly, from 1983 to 1996, the State, at the time, relied on regulations - secondary legislation - in relation to the permanent legislation in the 1970 Act. It transpired that was ultra vires, so that was incorrect. Therefore, they did not have a lawful basis to withdraw those payments from 1983 to 1996. The advice on this evolved over time. The original advice said that the State had a poor case – I do not know exactly how it was described and what descriptor was used. However, it was not a strong case. Subsequent advice on foot of further Supreme Court cases that are related to exactly this matter - analogous cases - suggested that the State may have a stronger case. Different legal advice has been given and the Attorney General set that out in his note. This matter has now been examined by the Department. We will work with it and we provide it-----

Deputy Matt Carthy

When Mr. Watt said the matter is being examined by the Department, does that include analysing precisely how many people were impacted and what their financial loss was as a result of the Government operating ultra vires, which is a way of saying it operated illegally?

Mr. Robert Watt

We now know, given the ruling since then, that from 1983 to 1996, it acted ultra vires. It is not clear what that means in terms of remedies; it depends. There is not an automatic entitlement to a remedy when the Government or anybody acts ultra vires.

Deputy Matt Carthy

Mr. Watt has not been instructed by Government to start putting in place the process of identifying and fully compensating all of those people who might have been-----

Mr. Robert Watt

The Government asked the Department of Social Protection to review the matter and come back within three months. We will co-operate with our colleagues in respect of that.

Deputy Matt Carthy

I raised an issue with the HSE last week in respect of a third strand of the nursing homes issue. Essentially, we had the public nursing homes, which fell as neatly as possible within the repayment scheme, as it was envisaged. There were the private nursing homes, where, of course, there are many deliberations. There was then a third strand, which are long-term facilities for people with disabilities operated by section 38 and 39 companies. Through the accounts and secret memos, we learned that many people were essentially told there was no point in applying for the repayment scheme because they would not qualify. Some applied anyway. A minority of about 500 people appealed the decision to deny them. That appeal was upheld. The Government decided to appeal that, but then subsequently withdrew the appeal and paid those 515 individuals, as I understand. Mr. Watt can correct me if that did not happen. What happened in respect of the other two cohorts, that is, those people who applied but did not appeal who their decision and those people who did not apply in the first place because the HSE had essentially advised them that there was no point in doing so?

Mr. Robert Watt

I think the Deputy’s summary is accurate. There were people who were residents in section 39 facilities who fell outside the scope of the redress scheme. They appealed that. The Government side contested the appeal and then decided not to follow through with it and settled the cases. People who went through that process accessed the redress scheme that was set up. They availed of part of the, I think, €440 million in payments that were made under the 2006 redress scheme. Are there other categories of people who were in those? We need to come back to the Deputy on that. I am not entirely sure. There are people who were in section 39 facilities who were charged, some of whom appealed and received their money and there were others who did not appeal.

Deputy Matt Carthy

Precisely. Do we know-----

Mr. Robert Watt

We do not. This also happened in respect of the mainstream nursing home and the main issue in terms of the 2006 Act, where there are people who, for whatever reason, did not apply or applied subsequently, and they were then settled as part of the cases. They are part of the 500 plus other cases more generally. We need to check on the others. I am not exactly sure-----

Deputy Matt Carthy

Can I just clarify this? We know why many people either did not apply or applied and did not appeal. We know that from the secret 2011 memo that was circulated. It stated very clearly why they did not. It stated that it was probably on the basis from the HSE that the payments did not come within the definition of the recoverable health charges. The Government conceded that 500 people who appealed actually did fit within the criteria of the scheme.

Mr. Robert Watt

Yes.

Deputy Matt Carthy

We know that there were thousands of others who, therefore, would have. Can anybody tell me what was done in respect of that? The issue was raised with the HSE last week very prominently. I do not accept that the answer is not available.

Mr. Robert Watt

We will come back to the Deputy on that. I believe the HSE is looking at that and I think its officials told the Deputy last week that they would come back to him within two weeks. We will check with them on that. On the numbers involved, I do not know whether it is thousands. I do not know if that is correct or not. We will come back to the Deputy on that.

Ms Siobhán McArdle

Specifically in relation to section 39 organisations in the Dublin area, when the health boards changed in their structure, a number of organisations went through a level of change. The HSE has advised us it is looking in that and will come back both to the committee and the Department.

Deputy Matt Carthy

What exactly is the HSE looking into? We know that there were three homes where appeals were made. We know that there were similar, if not identical, other homes all over the State. Is the work the HSE is currently doing involving identifying all of those other institutions, finding out who among them applied and who among them did not apply on the basis of advice from the HSE?

Mr. Robert Watt

Let us come back to the Deputy. We do not want to give him information that is not correct. I think it relates to the three homes in Dublin. I think it is because they changed their status from section 39 to section 38. They are unique circumstances related to those three homes. I do not think it has relevance outside of those three. Let us check and come back to the Deputy. I am not exactly sure.

Deputy Matt Carthy

I was told last week that people would revert to me, but we have not received further information.

Mr. Robert Watt

I believe they said they would revert within two weeks.

Deputy Matt Carthy

No. Absolutely not. I was looking for the information on the day. We were of the view that it would be received by today.

Mr. Robert Watt

We will check during this meeting.

Deputy Matt Carthy

We know from the 2011 memo. This is not new information that was brought to the Department in the past week. It was well known across the Department that there was a potential outlay of €360 million. That figure had to be identified somewhere. It was identified because someone assessed the number of institutions concerned. Does Mr. Watt have available for us today that information on the number of institutions as well as the number of patients who, had they known and applied, would have been awarded payments? These are institutions for people in care who in many instances have profound disabilities and were essentially robbed by Governments of their moneys. Governments subsequently accepted that but did not let them know, which is the most scandalous aspect of the nursing home revelations of recent weeks.

Mr. Robert Watt

We will revert to the Deputy.

Deputy Matt Carthy

As a matter of interest, has the Minister asked the Department to carry out this work in the past week or so?

Mr. Robert Watt

The Government met on Tuesday and we have been busy making our input into the Attorney General's report, which was published on Tuesday. The Minister is answering questions in the Dáil this afternoon and colleagues have been involved in that. I am at this committee today and will appear before the Joint Committee on Health next week. Once we finish with our Oireachtas commitments, we will set out where to go in terms of the commitment the Government has given. The work has started. The team will work on this and will work with our colleagues in terms of their input into the work of the Department of Social Protection and our own work that we-----

Deputy Matt Carthy

No. Just deal with this specific issue. These are people with disabilities who were in long-term residential care and who should have fallen under the remit of the repayment scheme. The scheme's appeals officer accepted that. The Government technically accepted it because it withdrew its appeal to the High Court and paid approximately 500 people. There is a serious question, one that has not been answered, about whether efforts have been made to identify people with severe disabilities whose money was taken from them. I want to know by the end of this meeting how many people were impacted by that and whether measures are being put in place to ensure they are compensated for that loss. Will Mr. Watt assure us we will have that information by the end of this meeting?

Mr. Robert Watt

I will check. I cannot give an assurance that others are in a position to answer the question, but we will endeavour to do that and revert to the Deputy as quickly as we can.

Deputy Matt Carthy

That is unacceptable. This issue was well flagged. Anyone who took even a cursory glance at the transcript of last week's meeting would have seen this was an area of concern to the committee. I do not accept it is simply a case that the Department does not have the information. I think it is stonewalling, to put it frankly.

Chairman

I hope we get that information by the end of the meeting, but the HSE official said last week that it would be within two weeks.

Mr. Robert Watt

And the Chairman agreed. He asked: "If that is the case, can we have a reply within two weeks?" The officials said "Yes".

Chairman

That was the answer given, but we will try----

Deputy Matt Carthy

I would have considered-----

Chairman

It is to be hoped the Secretary General-----

Deputy Matt Carthy

-----this to be of such importance that the information would have been provided.

Chairman

Okay.

Deputy Matt Carthy

I believe the HSE has this information. That it has not shared it with the Secretary General, by his own account, or with this committee raises further questions.

Chairman

A number of officials are present. I hope the Secretary General will deploy someone to try to get us an answer before the end of the meeting.

Deputy Verona Murphy

I welcome the witnesses. Is it fair to say that Mr. Watt is not the Secretary General of the Department of Health who presided over any of this historical nursing home or disability issue?

Mr. Robert Watt

It depends on which issue-----

Deputy Verona Murphy

I think that is a yes-no question. Mr. Watt did not preside over them. How long has he been in his current position?

Mr. Robert Watt

These are matters that date back to 1953. I have not been around for that long.

Deputy Verona Murphy

No. For how long has Mr. Watt been Secretary General of the Department of Health?

Mr. Robert Watt

It seems longer-----

Deputy Verona Murphy

I am sure it does.

Mr. Robert Watt

-----but two years.

Deputy Verona Murphy

Was Mr. Watt instrumental in preparing the brief for the Attorney General's new report? Who was involved in it?

Mr. Robert Watt

Colleagues in the Department would have made inputs into the report.

Deputy Verona Murphy

Did Mr. Watt?

Mr. Robert Watt

I was not directly involved with the Attorney General, but I was involved with colleagues over the weekend, in particular Ms McArdle, in terms of-----

Deputy Verona Murphy

Is that brief available?

Mr. Robert Watt

The Attorney General's report was published on Tuesday.

Deputy Verona Murphy

Not the report. Is the brief that was provided to the Attorney General available?

Mr. Robert Watt

There is ongoing engagement between officials in our Department and the Attorney General's office in respect of this legal issue of many years.

Deputy Verona Murphy

I asked whether the brief that was provided to the Attorney General for this report – he probably received it in the past fortnight – was going to be made available publicly, to this committee or to elected representatives. I do not have much time. I am being cursory and candid. I am asking a binary question. Is the brief, as provided to the Attorney General, available to elected representatives?

Mr. Robert Watt

There is a brief that was made available to the Minister. I believe he will publish it. He is giving a statement this afternoon and I believe he will publish the brief afterwards.

Deputy Verona Murphy

Is the brief that was provided to the Minister the same brief that was provided to the Attorney General in the advice that was then provided in the report?

Mr. Robert Watt

No. There is ongoing management of this issue between our Department-----

Deputy Verona Murphy

Does Mr. Watt not understand the question?

Mr. Robert Watt

There is no one brief. There is ongoing discussion between officials in our Department and the Attorney General's office.

Deputy Verona Murphy

Okay. The Attorney General's report is 192 paragraphs long, so I find it extraordinary that the issue we are discussing – people who paid for private nursing home care because they could not get public beds – is not addressed in it. This is the real issue. What is addressed is the strategy that was employed to avoid repaying the illegal charges or, as Mr. Watt says, for having acted ultra vires. Normal people's interpretation of this – it has been said to me by a constituent – is that governments stole money and did not give it back. A strategy was developed in order not to give it back. The Attorney General addresses how people made a choice to go into private nursing homes, but not once in any shape or form in the 192 paragraphs does he mention the fact that that choice had to be made on foot of public beds not being available. Does Mr. Watt agree with that?

Mr. Robert Watt

Is the Deputy asking whether I agree with what she just said? No, I do not.

Deputy Verona Murphy

With which part does Mr. Watt not agree?

Mr. Robert Watt

Most of it.

Deputy Verona Murphy

Mr. Watt is saying that people went into private nursing homes by choice.

Mr. Robert Watt

The Deputy made a number of comments. The ultra vires question was addressed in the context of the redress fund and related to people in public nursing homes.

Deputy Verona Murphy

It was not really addressed. All that was addressed was the fact it was ultra vires. The actions following that were to have seen people be repaid. That was the recommendation.

Mr. Robert Watt

The people who were-----

Deputy Verona Murphy

We will move on because they were not, which is why we are here. I want to question-----

Mr. Robert Watt

I am sorry, Deputy. Just-----

Deputy Verona Murphy

No. I have five minutes left, Mr. Watt. I am asking the questions.

Mr. Robert Watt

Okay, but I-----

Deputy Verona Murphy

Fintan O'Toole published an article. In 2004, a letter was prepared by the then Department of Health and Children - by its board, as it is put in the newspaper - that its Secretary General was supposed to send to the Attorney General asking for advice. The minutes of the meeting record that it was signed and sent by the Secretary General of the time, but it never happened in 2004. Mr. Watt was not around at the time but what is the answer to that question?

Mr. Robert Watt

I understand there were issues around different views as to what advice was sent or not-----

Deputy Verona Murphy

No. There were not issues. There is a minuted record from the Department's management committee, which prepared a letter for the Attorney General asking for a definitive ruling.

The draft was sent to the Secretary General for his signature and the committee's minutes record in March of 2004 that the letter had been signed and sent. It was not, and nobody has ever explained it. May I have an explanation? Why do the minutes differ from the actual facts? I ask because this goes to the heart of transparency, what is real and what is not, and what is concealed and what is not. Why are the minutes different from what actually happened?

Mr. Robert Watt

Is the Deputy asking me to comment on an email that was sent or was not sent 19 years ago?

Deputy Verona Murphy

No, I am not. I am asking why the minuted record from the Department differs from what actually happened and no explanation has ever been given. That is what I am asking.

Mr. Robert Watt

I do not recall.

Deputy Verona Murphy

I do not know how Mr. Watt could recall as he was not there, but I am sure the matter has come up in all of the briefings that have been prepared. Remember that the media-----

Mr. Robert Watt

Sorry, this was the matter that was dealt with in the John Travers report of 2005.

Deputy Verona Murphy

That is correct.

Mr. Robert Watt

Okay, yes. I remember. I have not read the report in a while. I do not recall exactly, but there was some-----

Deputy Verona Murphy

It is not about the report.

Mr. Robert Watt

There was a disagreement then or there was uncertainty about what happened. I do not know what happened; I was not there.

Deputy Verona Murphy

There was not uncertainty. There was a minuted record. We take minutes to justify in the history what actually happened. Is that not correct? Is that not what minutes are for? They tell us what actually happened a month on, a year on or, in this case, 25 years on, you could say. The minuted record says that the Attorney General was sent a signed letter by the Secretary General. That is what the minute says, but that did not happen, did it?

Mr. Robert Watt

If that is what the Deputy says. I have no understanding of what the question-----

Chairman

Can we seek clarification on that?

Deputy Verona Murphy

We do not need just clarity. It goes to the heart of transparency because what is in the media and the issue here for the public is what we are calling concealment. How do we have a Secretary General in a Department preparing a brief for the Attorney General and that Secretary General does not have all the facts and is not clear that this did or did not happen?

Mr. Robert Watt

If I understand that the letter was in relation to seeking advice from the Attorney General on nursing home charges and the legal strategy, there has been a great deal of correspondence between the Department Secretary General on this over-----

Deputy Verona Murphy

Would the minutes often be wrong? Is that what Mr. Watt is saying - that the minutes are often wrong and it never gets clarified?

Mr. Robert Watt

I do not know the minutes. I have not read the minutes and I do not know exactly what the Deputy is referring to, so I am not going to comment on it. I could not really comment on it.

Deputy Verona Murphy

When minutes are agreed, they are agreed. Is Mr. Watt saying that it is possible the minutes were wrong-----

Mr. Robert Watt

No, I never said that.

Deputy Verona Murphy

-----and they are often wrong and nobody bothers?

Mr. Robert Watt

I never said such a thing, no.

Deputy Verona Murphy

Why would Mr. Watt not be aware?

Mr. Robert Watt

It happened 19 years ago.

Deputy Verona Murphy

If the minutes of a Department are wrong, it goes to the core of transparency within the Department itself. Clearly, the minutes had to be made up. If the letter was never sent, somebody was under the illusion or disillusion at the end of it. Why was the minute wrong? More to the point, why was it never corrected?

Chairman

Please give the witness an opportunity to respond.

Mr. Robert Watt

I do not know. I do not really know and I do not know why it is-----

Deputy Verona Murphy

Would Mr. Watt consider it serious?

Mr. Robert Watt

I do not know the circumstances of it so I am not going to comment.

Chairman

We ask for clarification on that and for a reply.

Mr. Robert Watt

It would be unfair to the people involved for me to comment 19 years later.

Deputy Verona Murphy

I did not ask Mr. Watt to comment on that. If the minuted record was incorrect and never corrected and never explained, would Mr. Watt consider it to be serious? If what Mr. Watt says here today is not recorded properly and somebody said he said something, would he not consider that serious?

Mr. Robert Watt

I do not really know, Chair, what I am being asked here. I do not wish to be disrespectful.

Chairman

It is a direct question.

Deputy Verona Murphy

Mr. Watt is being asked why a Department would stand and preside over incorrect records and not be accountable or explain same.

Mr. Robert Watt

These matters were addressed in detail by the Travers report in 2005.

Deputy Verona Murphy

They were never addressed and never explained.

Mr. Robert Watt

They were addressed.

Deputy Verona Murphy

In the same way, the report goes on to state-----

Mr. Robert Watt

They were addressed in the report.

Deputy Verona Murphy

-----that there were briefs withheld from the Ombudsman when that report was commissioned. For me, there is an awful lot of explanation required. I understand Mr. Watt did not preside over this but, as the now Accounting Officer in the Department, this has to be explained.

Mr. Robert Watt

We are happy to explain, Chair.

Deputy Verona Murphy

That is what I am asking.

Mr. Robert Watt

We are happy to explain any matter.

Chairman

The Deputy has gone way over time.

Deputy Verona Murphy

We are, Chair, so what we need is an explanation as to why the minuted record in 2004 that was prepared was completely at odds with what actually happened. The article states it was never explained and no one was held accountable. I am sure no one is going to be held accountable but we want it explained.

Mr. Robert Watt

Sorry, which article are we-----

Deputy Verona Murphy

The article that Fintan O'Toole wrote in The Irish Times. I am pretty sure that if it is an incorrect article, there will be a defamation case lodged by somebody. Clearly, it is set out as fact that the minuted record was incorrect and never explained, and nobody was ever held accountable as to why the facts were incorrect.

Mr. Robert Watt

I cannot comment on that because I do not know if the Deputy's description of what happened is correct or not, but I will check.

Chairman

Yes. Perhaps Mr. Watt could revert to the committee with a detailed note on that.

Mr. Robert Watt

I will come back to the committee.

Chairman

Thank you.

Deputy Alan Dillon

I welcome Mr. Watt and thank him for joining us this morning. Has the full cost of the cyberattack and its long-term impact on patient care been determined by the Department?

Mr. Robert Watt

In terms of the cost, the immediate response in the Department was about €1 million and it was €53 million for the HSE. The attack had a significant impact on services and I understand the HSE executive set out the impact. It lasted a number of weeks. Depending on the nature of the service or facility, some services were impacted for longer than others. Mr. Thompson from the HSE is here. He might be able to set out if there is more evidence on the impact. The impact was significant but varied by service.

Deputy Alan Dillon

Before we move to Mr. Thompson, will Mr. Watt explain what the €1 million cost comprised?

Mr. Robert Watt

As was set out at the start by the Comptroller and Auditor General, in terms of the attack on our Department, our defences managed to repel the attack. After that the IT lead in the Department did a full review and examined the systems, in conjunction with Mr. Thompson and our colleagues in the cybersecurity unit. We went through and checked to see if there were any improvements we could make to firewall the system. The cost was checks, consultancy work and a whole variety of different issues.

Deputy Alan Dillon

Will Mr. Thompson give us a breakdown of the €53 million incurred by the HSE?

Mr. Fran Thompson

I can give a breakdown of that. Infrastructure costs were about €3 million. There were revenue and capital pieces, so €23 million was revenue and €13 million was capital. Most of the capital was on infrastructure. On the breakdown of the costs, there would have been vendor support and partner support. We would have also improved our cybersecurity.

To answer the earlier question, the implication of the cyberattack for the HSE was around our ability to deliver all of the IT services we have across the totality of the organisation - community care, hospital care and on the corporate side of things. That impacted a number of the voluntary hospitals as well because we provide systems to them, for example, the likes of BloodTrack, the national integrated medical imaging system, NIMIS, renal care or cancer care. For people on the ground, the impact was significant because they had no access to any of the IT systems that were available and had to return fully to manual records.

The other impact was on the integration of services between general practice and acute hospitals. We would provide things like the e-referrals programme, which would allow automatic referrals to go in, the integration of messages, which would allow GPs to order and receive messages from laboratories, and radiology on services.

Deputy Alan Dillon

I thank Mr. Thompson for that update. We are aware that the personal data of patients, clients and staff were stolen as part of the cyberattack. How many individuals have been affected? How many of these individuals have been informed to date?

Mr. Fran Thompson

There is a notification process under way.

Approximately 100,000 notifications are due to be made. They will be completed by April 2023. According to the latest figure I have, just over 32,000 notification letters have been issued. We have a technology-assisted process and a manual process for people to receive the notification and the data. A notification letter issues and people can then register on a portal or go back to a support desk and request the data that was stolen from them. To date, about 220 people have requested further information.

Deputy Alan Dillon

Has any individual taken any legal case against the State regarding his or her personal data being released?

Mr. Robert Watt

Mr. Tierney may have the details on that.

Mr. Derek Tierney

We have not received any pre-litigation action letters yet but I will confirm that in a note. Six cases are in front of the European Court of Justice in terms of cyberattack liability in the context of criminal motivation and quantum of any costs apportioned. There will be a period of time when we see how the court rules on the matter.

Deputy Alan Dillon

Was the fragility of the ICT infrastructure in St. James's Hospital and Beaumont Hospital flagged with the Department in advance of the cyberattack?

Mr. Robert Watt

I do not know. I might let Mr. Thompson take that question and we will do a wraparound in terms of the next steps and investment.

Mr. Fran Thompson

There was significant investment in St. James's Hospital down through the years.

Deputy Alan Dillon

Were there weaknesses in the hospital's system that were identified to the Department or the HSE prior to the cyberattack?

Mr. Fran Thompson

Not particularly in St. James's Hospital. We have had discussions with the Department about Beaumont Hospital-----

Deputy Alan Dillon

Was it risk assessed regarding the weaknesses in the system in terms of a potential cyberattack?

Mr. Fran Thompson

Not for a potential cyberattack. Regarding the fragility in the hospital's system, one of the oxymorons of cyber is that the system is so old that the chance of a cyberattack is quite limited because it is on technology that is not normally subject to a cyberattack. There is other technology - this is the front of it - that is relatively modern.

Deputy Alan Dillon

What work has been completed to date on both of these systems?

Mr. Fran Thompson

Last week, I was on a call with the CEO of Beaumont Hospital. We are progressing a range of solutions for the hospital.

Deputy Alan Dillon

But to date, no work has been completed or upgraded regarding its systems.

Mr. Fran Thompson

The hospital has done a significant number of upgrades on its solutions. We will be providing it with our patient administration system and a laboratory system that are modern and fully supported. The hospital has already sought and got approval for an order communications system for which it is now going to tender.

Deputy Alan Dillon

Is the Department satisfied to date that the systems in place in terms of infrastructure and operations systems will prevent any further exposure to cyberattacks?

Mr. Derek Tierney

No organisation can give a 100% assurance. We can see that with the attack on Munster Technological University and other organisations. What we can say is that post incident, PwC was commissioned by the board and did a very thorough investigation post response. We have responded with an investment case and working with our colleagues in the Department of Public Expenditure, National Development Plan Delivery and Reform, we are increasing the investment year on year. Following 2021 when €55 million was expended in direct response, 2022 saw €43 million recurring investment allocated to the HSE and ring-fenced for cyber purposes. In 2023, we added to that with €40 million once-off funding to allow us necessary time to understand what the longer-term needs are. There is a stated investment requirement of just north of €675 million over seven years. We have just reached that but we need to do some further work to analyse that in the context of where we are.

Mr. Fran Thompson

It is a real arms race between the attackers and the defenders. Cybersecurity companies are helping and supporting us and we have "best in class" cyber companies supporting what we do. A huge number of attacks daily are notified to us. Some of them are benign but must be followed up. I think we received about 40,000 notifications last year. We followed these up and produced reports on a number of them. We then take action where required. Part of this is around the speed of the response and how we deal with it. It is not just about the notifications. It is also about having all the processes and procedures in place to deal with the response very quickly.

Deputy Catherine Murphy

My question concerns the long-stay charges and the issue that has arisen in the past couple of weeks concerning the legal strategy. Did the Department get any advance warning from the Minister that three months would be required to review this? Did the Department have any input into that? Was there an indication that it would take that length of time? How did that arise?

Mr. Robert Watt

That is a matter for the Government.

Deputy Catherine Murphy

So this is a political decision. Do we know if it will take three months?

Mr. Robert Watt

The Government decided.

Deputy Catherine Murphy

So I take it that it is a political decision rather than a-----

Mr. Robert Watt

It is a Government decision whichever way the Deputy wants to characterise it.

Deputy Catherine Murphy

Okay.

I will move on to the management of the clinical indemnity scheme. I got a reply to a parliamentary question in 2018 that informed me that funding is allocated to the Department on the basis of costs that will be incurred during the year and is not allocated for possible future funding liabilities. It stated that on that basis, materially contingent liabilities funding will only be allocated when the cost associated with it crystallises and as such, the Department of Health would engage with the then Department of Public Expenditure and Reform regarding funding for the actual cost incurred by the Department. It stated that there had been no crystallisation of contingent liability for the Department in the previous ten years.

The HSE appeared before the committee last week. I do not see where this crystallises. The State Claims Agency routinely appears before this committee. In fact, it was quite useful the last time. The agency told us that during Covid, when the courts were not available, mediation was the route by which it was trying to get to open disclosure where you cut down on legal costs. However, there is another side to it, namely, where you reduce the possibility of damage being done by having a very good overview of where issues have arisen. There will always be issues, particularly around cerebral palsy, and that is where the large amounts arise. I do not see where this crystallises. I was told it had not arisen in ten years and we were told last week there was nothing in the HSE's accounts but at the same time, we are seeing people routinely coming out of the courts with heart-breaking stories. I do not see where that is very visible. Can Mr. Watt tell me where that is?

Can he also address the issue of the information that becomes available? From 2012, the outstanding liability and the number of claims have generally been trending upwards. In 2012, the estimated outstanding liability was €1.1 billion. By the end of 2021, that had increased to €4.5 billion. We need to understand why it is trending upwards and how damage limitation can happen because obviously that is the optimum for everyone. Where do we see that crystallising?

Mr. Robert Watt

We see it crystallising when the State Claims Agency settles the cases. Those costs can be incurred in the year in which the case is settled or there might be payments over a number of years. The account sets out an estimate each year of what we think will be the liabilities that will actually arrive at the Exchequer through the State Claims Agency.

In some years the estimate is closer to the outturn and in others there is a bit of a gap, depending on various factors. What happened during Covid is quite interesting, in terms of the rush to settle. One can speculate as to the reasons for that. Other income people were relying on might have dried up and therefore there was an urgency in settling with the State because then they would get their money.

Deputy Catherine Murphy

It did appear that was driven by the absence of the courts and the solicitors were actually the ones-----

Mr. Robert Watt

It was driven by many factors and it will be interesting to hear the State Claims Agency view, as it is close to these cases. There were a number of different factors that led to more mediation.

Deputy Catherine Murphy

We did have that engagement with the State Claims Agency. What about damage limitation?

Mr. Robert Watt

On the Deputy's specific question, when the State incurs the spending that is on the account. The contingent liability amount is an estimate of the likely liability of the cases we know of. Obviously these case can take a long time to settle, so the State Claims Agency sets out-----

Deputy Catherine Murphy

We are seeing those cases settled. We are seeing them on the 6 p.m. news. They have obviously crystalised if they have been settled.

Mr. Robert Watt

They have been paid. It is on the account, yes.

Deputy Catherine Murphy

How exactly do the cases get from the State Claims Agency settling it into the particular Department? The clinical indemnity scheme will involve the Department of Health, which will then engage with the Department of Public Expenditure, National Development Plan Delivery and Reform.

Mr. Robert Watt

It goes out of subhead K4. In effect, the agency will seek a payment and then we will issue the payment under the relevant subhead within the Vote. The agency manages its payments through the year and then we issue money from the Exchequer through the departmental Vote under subhead K4.

Deputy Catherine Murphy

How did I come to get a reply to a parliamentary question - the most recent one I have had on this is from May 2018 - which said, "There has been no crystallisation of a contingent liability for the Department in the last ten years"?

Mr. Robert Watt

I am sorry but I missed that. There is no what?

Deputy Catherine Murphy

It said, "There has been no crystallisation of a contingent liability for the Department in the last ten years".

Mr. Robert Watt

I am not quite sure I understand.

Deputy Catherine Murphy

I am just reading the reply to a parliamentary question.

Mr. Robert Watt

Elements of that contingent liability crystalise each year when cases are settled so I do not quite understand. I do not know if the Comptroller and Auditor General has a view. We try to estimate what it will be, like we do with lots of contingent liabilities of the State. Public private partnership, PPP, contracts are an example. There are future payments the State must honour as part of PPPs and they are set out as a liability in the accounts.

Deputy Catherine Murphy

I just do not-----

Mr. Robert Watt

This is also an estimate of the liability because under the public finance procedures we must have a-----

Deputy Catherine Murphy

Maybe I will ask-----

Mr. Robert Watt

-----reasonable stab at what we think the outstanding liability will be, based on various assumptions about the number of cases-----

Deputy Catherine Murphy

I am sorry but I have very little time. I will ask the Comptroller and Auditor General.

Chairman

The Comptroller and Auditor General may come in briefly on that.

Mr. Robert Watt

Just before the Comptroller and Auditor General comes in, the big policy question the Deputy is raising is the increase in these costs and the challenge it faces and-----

Deputy Catherine Murphy

It is about the damage to people.

Mr. Robert Watt

Absolutely. For us to try to reduce the incidence of these is the first priority. The patient safety Bill is going through the Houses now and other protocols are being put in place to manage the cases efficiently and as quickly as possible. Then there are questions of the overall cost of the damages-----

Deputy Catherine Murphy

I have very little time. I need to have a response.

Mr. Robert Watt

The Government agreed last week to set up a group on medical negligence to look at this-----

Deputy Catherine Murphy

Chair, can we manage the time a little bit here?

Chairman

Okay, we will get the Comptroller and Auditor General in.

Mr. Seamus McCarthy

I have not seen the parliamentary question. I might look at it in the break. There is certainly a charge in the HSE where it reimburses the State Claims Agency because the settlements have been made. In 2021 the figure was €461 million. That is funded then through the Vote. That is how the HSE gets the money. I do not understand any kind of reference that there is not a crystallisation of those liabilities. In the latest year we have reported on, about 10% of that has crystallised in a single year, so it is crystallising year-by-year; that is an expense that will be met.

Deputy Catherine Murphy

It is just to have transparency and to have the early reporting. If issues of damage minimisation are flagged at an early stage, we might actually see a system in place. We could have the same problem arising in one particular location repeatedly. If we do not have that full overview, we are not getting to the origin of the problem. Is that happening?

Mr. Robert Watt

We have put in place protocols and improvements on patient safety issues. I mentioned the Bill going through the Houses. The key focus of the Department and the HSE is on trying to reduce the incidence of harm when those tragic events happen, to support families as best we can and to move through the legal process as quickly as we can. We all accept this is an enormous societal issue. The Government has asked Dr. Rhona Mahony to chair a group to look at how we can manage this increasing liability and how we can reduce the incidence of harm, which I guess is the priority.

Deputy Catherine Murphy

It would have been self-evident there should have been a system for damage minimisation, without even the need for the legislation. Is this happening because there is an increase in the financial liability? Is that what has prompted this? What was the purpose of not having this in place all along?

Mr. Robert Watt

It has arisen from a concern about the events that happen and from a desire, when the system does harm to people, to try to reduce the incidence of those events. There are obviously concerns from a financial point of view about the overall costs of this to the State, which are going up every year. Some of the projections suggest further significant increases in the costs. If we look at the contingent liability number the Deputy mentioned, it suggests the €461 million the Comptroller and Auditor General referenced will go up and up every year. It is a question of the system trying to be as safe as possible for patients and then when incidents happen to manage it as best we can on behalf of individuals and the State.

Chairman

Deputy Hourigan is next.

Deputy Neasa Hourigan

This might be a question for Mr. Thompson. In 2018 the State received an infrastructure loan from the European Investment Bank, EIB, for digital investment in health. Given the context of the cyberattack, what is the status of that? How much is spent and how much applied to particular projects?

Mr. Derek Tierney

I assume this is the national recovery fund. Is it?

Deputy Neasa Hourigan

2018.

Mr. Derek Tierney

The only EIB loan was directed towards the national children's hospital.

Deputy Neasa Hourigan

Okay.

Mr. Derek Tierney

That goes to part-fund, I suppose, cash flow on the project itself, and the finance system.

Deputy Neasa Hourigan

Okay. We heard last week from the HSE that in its estimation - we are talking about digital services right now - the National Paediatric Hospital Development Board, NPHDB, would mostly be doing the equipping. I do not know if we fixed on a time for substantial completion of the hospital. I think we decided that the middle of next year was probably realistic.

Mr. Derek Tierney

All I can tell the Deputy is the contractor's own programme suggests substantial completion around March next year and then a period of commissioning to follow. That has not changed yet.

Deputy Neasa Hourigan

A period of commissioning being about six months.

Mr. Derek Tierney

Which is Children's Health Ireland, CHI, mobilising its service, effectively.

Deputy Neasa Hourigan

By my reading of the documents, the NPHDB will do most of the equipping during that commissioning stage.

Mr. Derek Tierney

It will provide a functioning facility to CHI, which will then mobilise its services, so there will be a necessary-----

Deputy Neasa Hourigan

Overlap.

Mr. Derek Tierney

-----overlap. There probably is overlap. We see that in every contract where you have a defects notification period.

Deputy Neasa Hourigan

Okay. CHI is going to do the digital commissioning.

Mr. Derek Tierney

CHI has responsibility to implement both the ICT network infrastructure and the electronic health record, EHR, for the hospital.

Deputy Neasa Hourigan

I noted its press release last week after the Committee of Public Accounts.

Mr. Derek Tierney

Good.

Deputy Neasa Hourigan

It is going to be fantastic to have a digitally literate hospital; nobody is arguing with that. What I am trying to get at is the timeline. CHI has €4.3 million to do that work.

Mr. Derek Tierney

On the EHR, CHI has signed a contract with the vendor for €47 million and that is matched with revenue funding to mobilise its own support around that, so deployment of the EHR is probably around €80 million, all in. Mr. Thompson might come in on the ICT.

Mr. Fran Thompson

There is matching infrastructure funding to go with that as well. We are starting a hospital from absolute scratch. There is a network and a whole series of IT equipment required.

Deputy Neasa Hourigan

Yes. The figure I am being given now is €83 million but Mr. Tierney is saying there is matched funding somewhere.

Mr. Fran Thompson

There is additional funding. Mr. Tierney gave the Deputy the EHR funding.

Deputy Neasa Hourigan

Okay.

Mr. Fran Thompson

There is additional funding on the infrastructure as well.

Mr. Derek Tierney

I will give the Deputy a note on that afterwards.

Deputy Neasa Hourigan

That EHR funding specifically refers to systems within the hospital that are not equipping. They would be mostly-----

Mr. Derek Tierney

Correct.

Deputy Neasa Hourigan

Okay. Are the officials be able to give figures for that additional funding?

Mr. Derek Tierney

Yes, we will get the Deputy a note on that.

Mr. Fran Thompson

I can. On the infrastructure programme, the total spend on infrastructure is 51, with 48 capital and 9.4 on revenue.

Deputy Neasa Hourigan

Okay. The roll-out of that is a significant project. When would the witnesses expect to be able to do some post-occupancy commissioning so as to know that system is working?

Mr. Derek Tierney

I do not understand the question.

Deputy Neasa Hourigan

In complex buildings after commissioning, somebody goes back and checks that everything works. I am not an ICT specialist but at what point with a digital system would the witnesses be confident in saying this works?

Mr. Fran Thompson

We would be quite confident fairly early on-----

Deputy Neasa Hourigan

What does that mean? Is that two weeks or three months?

Mr. Fran Thompson

It would be a small number of months.

Deputy Neasa Hourigan

Can we say three?

Mr. Fran Thompson

I would say two to three. With any commissioning, there is always a substantial optimisation that takes place afterwards.

Deputy Neasa Hourigan

That is calibrating the systems to make sure they work the best.

Mr. Fran Thompson

Yes. As people go into a new building with new processes and procedures, they are calibrating. They may be changing things. People may have good ideas that were not put in at the start but now need to do that. They might look at the way the patient flow is working and decide they need to optimise and change the system. With any solution we do, the optimisation takes a bit of time to get humming correctly but we would expect it to be in and functioning or working. Normally there is something called hyper-care, which is additional or extra support that goes in for a period of, say, four months, but you will know-----

Deputy Neasa Hourigan

That means everything turns on and everything talks to everything else. How long is the optimisation phase - two years?

Mr. Fran Thompson

Optimisation in reality goes on all the time. It never stops because there are always new things that happen and new updates that go on. It is a lifelong optimisation commitment.

Deputy Neasa Hourigan

I want to go back to the timeline. According to the HSE's words at last week's meeting, we are talking about substantial completion some time next year and then maybe six to eight months if we are being a little bit conservative. That brings us into 2025 for commissioning to be largely complete and the hospital to open sometime around then. We are adding on another three to four months for all the computers to turn on and talk to each other. Now we are in mid-2025 or the third quarter. The reason I asked about the EIB loan is that when that was announced in 2018, there was an announcement from the Minister that there would be a huge roll-out nationwide of the digital health record. The witnesses probably watched the meeting last week and meetings of the Committee on Health in previous weeks. The roll-out nationally of digital health records has been linked to the national children's hospital. The Department of Health has not revised the business plan for digital health records. It is one of the key recommendations of Sláintecare that those kinds of records be rolled out. The then Department of Public Expenditure and Reform rejected the digital health records business case in 2018 on the basis that we needed the children's hospital. Can somebody explain where we are with all of that?

Mr. Derek Tierney

Let me walk the Deputy through the timeline. The Sláintecare-----

Deputy Neasa Hourigan

I think I understand the timeline.

Mr. Derek Tierney

Let me put some more detail behind it.

Deputy Neasa Hourigan

Can I add a question before Mr. Tierney does that?

Mr. Derek Tierney

Yes.

Deputy Neasa Hourigan

Has the Department started to revise the business plan?

Mr. Derek Tierney

Yes. We have started to revise what we have already learned. Let me just step it out for the Deputy. In 2017, the Sláintecare report was published. It called for a national electronic health record, EHR. The Sláintecare report was approved by the Government in 2018. That allowed us and the then Department of Public Expenditure and Reform-----

Deputy Neasa Hourigan

When in 2018?

Mr. Derek Tierney

I do not know. I will come back to the Deputy on that. I think it was the summer.

Deputy Neasa Hourigan

It is important because the announcement from the Minister was in October 2018.

Mr. Derek Tierney

I think it was before the summer recess in 2018.

Deputy Neasa Hourigan

That is meaningful then.

Mr. Derek Tierney

That allowed us and the then Department of Public Expenditure and Reform to engage on a business case for a national EHR deployment, as we are required to do under the public spending code. There was an engagement around scale, complexity and affordability. We do not have a blank cheque. We have to live within our own constraints and funding is one of our constraints. Part of that discussion was understanding that the ambition was to deploy EHRs in the children's hospital. We needed to look for a way not to necessarily decouple but to stage a phased implementation or deploy EHRs in the children's hospital and then understand what the bigger picture looks like. Since then, we have had a pandemic and a cyberattack. We have not necessarily or slavishly followed the advice to wait. As to what we have done, we have deployed EHRs in maternity settings. Today, 40% of all new births are captured and registered with an EHR.

Deputy Neasa Hourigan

Mr. Tierney, I have two minutes-----

Mr. Derek Tierney

Can I just finish?

Deputy Neasa Hourigan

I have two minutes left.

Mr. Derek Tierney

We have also deployed EHRs-----

Deputy Neasa Hourigan

If they have been deployed in other hospitals, why is the business case for a nationwide digital health record linked to the children's hospital, which will not be complete until the middle of 2025?

Mr. Derek Tierney

Can I answer the question? What we have learned is that I could count on one hand the instances - probably three - where there has been a single national instance roll-out worldwide, even with a single vendor. We have to understand that interoperability is always going to play a part in linking our systems. Rolling out a national EHR will take time, necessarily. We need to understand-----

Deputy Neasa Hourigan

Every time I ask about this in a parliamentary question I get an answer that implies this is working in a number of hospitals already. Why is it linked to the children's hospital particularly?

Mr. Derek Tierney

It is because the scale of investment for a national EHR roll-out is probably north of €1 billion. That takes consideration in terms of how we deploy that resource.

Deputy Neasa Hourigan

Is it still the position of the Department of Public Expenditure, National Development Plan Delivery and Reform that the business case from 2018 for digital health records stands and will be required to be linked to the national children's hospital?

Mr. Eoin Dormer

By way of context, the engagement we had with the Department of Health was giving the feedback we would normally give on cost and risk elements of the business case but ultimately it would be the Department of Health itself that would make the decisions about proposals to bring in the EHR-----

Deputy Neasa Hourigan

So when the HSE and the Department of Health come in here and say they could not move ahead on health records because the then Department of Public Expenditure and Reform vetoed the business case on the basis that they could not prove it works because of the children's hospital, that is not the case. Mr. Dormer is saying it is the Department of Health that decided those were the parameters for making a business case.

Mr. Eoin Dormer

As Mr. Tierney said-----

Deputy Neasa Hourigan

Do I have that right?

Mr. Eoin Dormer

Ultimately, the Department of Health is responsible for policy on EHRs. Our Department provides our views and feedback on the cost and risk issues.

Deputy Neasa Hourigan

I thank Mr. Dormer. It might have been useful in 2018 for the Department of Health to point out to people that in reality digital health records would not be in place for at least ten years.

Mr. Derek Tierney

I cannot answer that today with certainty because there is a funding question that we have to ask and answer. That is the reality.

Deputy Neasa Hourigan

Is Mr. Tierney saying the Department does not have the money to do digital health records?

Mr. Derek Tierney

We have no allocation for a full national roll-out. That is an engagement that has to take place.

Deputy Neasa Hourigan

That might be a matter for the health committee.

Deputy Imelda Munster

I just want to follow up on some questions from my colleague Deputy Carthy on the Attorney General's report on Tuesday. It conveniently slotted the two issues into those in private nursing homes and those in public nursing homes but it made no mention of probably the most vulnerable in our society, that is, those in long-term residential care settings. It made no reference to them whatsoever. My colleague Deputy Carthy asked if the Department had attempted to trawl through those care settings or to find out the number of people who could be affected or would have been affected by that.

Mr. Robert Watt

Yes, we are doing that work. Our colleagues in the HSE are doing that work now. We are committed to coming back to the committee as soon as we have the information. We want to make sure the information we give is accurate. We do not want to come out with estimates that we have to subsequently revise but we are doing that work.

Deputy Imelda Munster

I am sure Mr. Watt would be aware of that secret memo in 2011.

Mr. Robert Watt

All memos are secret.

Deputy Imelda Munster

He would have had sight of it, would he not? I am referring to the one that made reference to a potential liability of some €360 million at that stage. It had allocated the €20 million for the 500 people who did receive payments. That was an estimate at the time of what the potential liability was. Mr. Watt would be aware of that.

Mr. Robert Watt

I am aware from the briefings but I am not in a position to comment, as the Chairman will be aware, on secret memos. Memos are secret, as are all notes to Government and all conversations with the Government.

Deputy Imelda Munster

Mr. Watt would be aware, as head of the Department, that there was a liability estimated at around €360 million based on the €20 million that was paid out.

Mr. Robert Watt

I am aware of the broad number.

Deputy Imelda Munster

He would be fully across that.

Mr. Robert Watt

I am aware of the number, yes.

Deputy Imelda Munster

He is aware of that. On how many people being affected was that estimate based?

Mr. Robert Watt

I do not know. We can check that.

Deputy Imelda Munster

How was Mr. Watt made aware of that memo? Did he request it? Was he furnished with it?

Mr. Robert Watt

I am not in a position to talk about secret memos. Memos that go to the Government-----

Deputy Imelda Munster

It is not that secret now, in fairness. It is out there. There was €360 million of liability.

Chairman

Deputy Munster is not asking about the content. The Deputy is asking how Mr. Watt was made aware of it. That is the question the Deputy is asking, if Mr. Watt could answer it.

Mr. Robert Watt

I read the briefing papers over the weekend on the matter.

Deputy Imelda Munster

Before the weekend and before it came to light in the public domain, Mr. Watt was totally unaware of it.

Mr. Robert Watt

I was unaware of it, yes.

Deputy Imelda Munster

Does Mr. Watt think he was kept in the dark about it?

Mr. Robert Watt

No, I was not aware of it. It is not the same thing.

Deputy Imelda Munster

However, Mr. Watt was aware of the fiasco as it stands. He was aware that people had an entitlement and of the whole history of the events that has unfurled in the past fortnight or so.

Mr. Robert Watt

I am aware of the history, yes.

Deputy Imelda Munster

Based on that €360 million liability, how many people would have been affected?

Mr. Robert Watt

I do not know. I do not have that figure.

Deputy Imelda Munster

Did Mr. Watt request it? Was he not interested in finding out how many of the most vulnerable in society would have been involved?

Mr. Robert Watt

We can come back, Chair, with-----

Deputy Imelda Munster

Come on. Is Mr. Watt seriously telling us that he suddenly became aware very recently of the €360 million liability and, in his position as head of the Department of Health, he did not think "Hold on a second" or bother to ask how many of our most vulnerable citizens we were talking about here? If he seriously saying that? That would flag two issues, one of which is that he could not give a hoot.

Mr. Robert Watt

Is the Deputy talking about the disabled person's maintenance allowance, DPMA?

Deputy Imelda Munster

I am talking about the 2011 memorandum. I have said it now three times.

Mr. Robert Watt

Sorry, I do not know what number the Deputy is referring to. Which of the issues is that in relation to?

Deputy Imelda Munster

It is the liability in relation to the long-term residential care. The Attorney General's report made no reference to it whatsoever. This liability was set aside maintaining that this could be the money that would be required if we were to settle with everyone who was entitled to it.

Mr. Robert Watt

That is a reference to the 12,000 people who, we think, could have been eligible for that payment from 1983 to 1996. That estimate is in relation to 12,000 people, if, as I understand, that is what the Deputy is asking.

Deputy Imelda Munster

Is Mr. Watt saying that the Department and HSE are only now looking to gather all that information and source people who would have been denied those payments?

Mr. Robert Watt

The Government has asked the Department of Social Protection to spend three months going back. We will assist our colleagues. Pre-1996, this was an issue for the health boards. We will make an input into that work from our colleagues in the Department.

Deputy Imelda Munster

Mr. Watt referred to the Government. Did he meet the Minister directly on this issue in the past fortnight?

Mr. Robert Watt

I meet the Minister on every issue every day.

Deputy Imelda Munster

No, on this issue.

Mr. Robert Watt

Of course, yes.

Deputy Imelda Munster

Did they sit down?

Mr. Robert Watt

Of course we did.

Deputy Imelda Munster

The Minister is making a statement this afternoon.

Mr. Robert Watt

He is.

Deputy Imelda Munster

I am not asking Mr. Watt to pre-empt any announcements, but will the Minister be making that statement based on information Mr. Watt furnished him?

Mr. Robert Watt

The Minister will have the information that is based on what we have provided him with, yes.

Deputy Imelda Munster

Mr. Watt would have all the necessary figures and data the Minister would need.

Mr. Robert Watt

The Minister has his brief and speech for this afternoon based on inputs that we have provided him with. Absolutely, yes.

Deputy Imelda Munster

Mr. Watt is across all of it. In relation to this, has the Minister asked for a specific meeting with Mr. Watt? Has Mr. Watt sat down, as head of the Department, with the Minister? Did the Minister request a meeting?

Mr. Robert Watt

I have met the Minister-----

Deputy Imelda Munster

Was the meeting on this issue?

Mr. Robert Watt

-----on this whole issue.

Deputy Imelda Munster

Mr. Watt has met him on it. Earlier on, he did not quite clarify to my colleague that the Minister had requested a meeting with Mr. Watt and the two of them had sat down to discuss this issue.

Mr. Robert Watt

We discussed this matter on Tuesday face to face after many conversations over the weekend.

Deputy Imelda Munster

If the Department is basing that €360 million liability on 2011 figures, would it not cost the State a bit more now?

Mr. Robert Watt

Sorry, Deputy.

Deputy Imelda Munster

Based on an estimated liability of €360 million in 2011 to deal with the 12,000 people who were denied their payments, would the costs, including inflation, etc., not be substantially more now?

Mr. Robert Watt

I am not in a position to comment. I do not know.

Deputy Imelda Munster

Would the Comptroller and Auditor General be able to comment on that?

Mr. Seamus McCarthy

It depends on whether there would be interest or inflation to preserve or restore the real value of the money at the point where it was deducted. However, that falls into a policy space.

Deputy Imelda Munster

The Department and the Government would like to class this whole scandal of elderly people being ripped off and denied their entitlements as historical and deliberate - the policy decision was deliberate - but there is one issue that is ongoing. It also relates to the most vulnerable, namely, people in nursing homes. I have raised the issue with the HSE numerous times and with Mr. Watt at this committee. When I raised it with Mr. Watt, it related to elderly people in private nursing homes who are entitled to a medical card and who are being charged for items that would be ordinarily free of charge if they were in the community. In 2021, Mr. Watt said he was not aware of the issue. Last week, the HSE, despite the committee corresponding with it several times, indicated it was not aware. Mr. Watt followed up with the committee in February 2022 stating that the Department was aware of a number of issues in relation to additional charges and was requesting additional information. The HSE does not seem to have acted on that. However, a freedom of information, FOI, response I received from the assistant national director for primary care reimbursement services stated the primary place where an intervention could be put in to ensure that nursing home clients are not charged for items that would be covered under the medical card scheme would be via inserting a clause in the document between the HSE and residential care settings or nursing homes stating the requirement not to charge. What has come to the fore in the past fortnight is no surprise given that these days the HSE still could not give a damn. Despite the fact that I have raised this matter numerous times with the HSE, it still did not act. Does Mr. Watt agree with the statement by the assistant national director for primary care reimbursement service that a clause should be put in the document instructing the private nursing homes? If so, why is that not being done? We can talk about historical scandals.

Chairman

The Deputy is over time.

Deputy Imelda Munster

In the here and now, this scandal continues with patients being charged for wound dressings, ointment creams, physiotherapy, speech and language therapy and other basic entitlements. The Department has done nothing. Neither the Department nor the HSE has acted and this is ongoing on a daily basis. Does Mr. Watt agree with the proposal set out in that FOI response? What will he do? The HSE could not give a damn. If it did, it would have acted. It is back to the elderly and the most vulnerable being ripped off. In fact, families, when they raised the issue with nursing homes, were told they could take their mother or father elsewhere if they did not like it. That is what they are up against. They expect either the HSE or policy to protect them. The Department has failed again. This is happening today and it will happen tomorrow and the day after that. What will be done about it, finally?

Mr. Robert Watt

I might ask Ms McArdle to respond. We do not agree with these additional charges. We have made that clear and I made it clear the last time we spoke about it.

Deputy Imelda Munster

There is no action.

Mr. Robert Watt

I wrote a letter to the Deputy about the matter. We do not believe it is appropriate for these additional charges to be imposed on residents in private homes.

On the role that we have, it is a question about the HSE role. However, we are looking at a complaints process. Ms McArdle might outline more on this.

Ms Siobhán McArdle

We are establishing regulations which will mean that it will allow HIQA to respond to complaints and allow residents-----

Deputy Imelda Munster

There is the problem. The Department is putting it back on the most vulnerable. I have just said that when patients in nursing homes or family members complain, the family are told they can take their mother or father elsewhere. The assistant national director to whom I referred suggested that a clause be put in the contract. Why is there reluctance to do that? Why is there reluctance to do something concrete that would afford the most vulnerable protection?

That is my question. The witness should not say they are putting in regulations, as that puts it back on the elderly mothers or fathers in a nursing home who have been told, or even their children have been told, to take them out if they do not like it.

Chairman

Why is there not a clause in the contract?

Deputy Imelda Munster

Why has that not been done?

Chairman

The Deputy and some others on the committee have raised this issue consistently. I am open to correction but I think we had this in one of our reports in terms of our engagements with the HSE.

Deputy Colm Burke

Correct.

Deputy Imelda Munster

It is an ongoing scandal that could be sorted.

Chairman

If it is recommended by the national director, and the Department has been at this for two years, then why at this point is it not in the contract?

Ms Siobhán McArdle

We will have to take that away.

Chairman

The buck stops with the Department on this one.

Ms Siobhán McArdle

Yes.

Deputy Imelda Munster

This was two years ago but an official says they will have to take that away. For goodness sake.

Ms Siobhán McArdle

We will come back to the committee within a week.

Chairman

Yes, can the Department come back to us?

Ms Siobhán McArdle

We will, yes.

Chairman

Please give us a clear answer.

Ms Siobhán McArdle

Yes. .

Chairman

Tell us why the provision is not in the contract and when it will be included.

I have been told by an official that it is impossible to police the contract as it stands. Deputy Munster and members of the committee have sought this provision before. I ask Mr. Watt to come back with a clear answer as to why this has not happened and when we can expect to see the clause in the contract.

Mr. Robert Watt

As I understand it, this is a contract between the family and the private nursing home.

Deputy Imelda Munster

No, it is under the fair deal scheme.

Mr. Robert Watt

So it is a contract between-----

Deputy Imelda Munster

It is the initial contract.

Mr. Robert Watt

A contract between the HSE-----

Deputy Imelda Munster

Between the HSE-----

Mr. Robert Watt

-----and the service provider.

Deputy Imelda Munster

Yes, and the clause should be in that.

Mr. Robert Watt

Yes. We have made it very clear, Chair, that this should not happen. We have said this consistently but we will come back and see if there is something.

Chairman

I think that has been accepted, Mr. Watt.

Deputy Imelda Munster

The assistant national director recommended this and said that was the only way that they could see.

Chairman

We will check.

Deputy Imelda Munster

Why has this not been done?

Mr. Robert Watt

It might be that they cannot retrospectively change it. I do not know but we will check.

Chairman

Yes, for contracts already signed.

Mr. Robert Watt

In future, short contracts. Yes, we will check.

Chairman

Make sure that options are included.

Mr. Robert Watt

I think that might be the issue we will change.

Chairman

We are going to break for ten minutes.

Sitting suspended at 11.02 a.m. and resumed at 11.14 a.m.

Deputy Colm Burke

I thank everyone present for making themselves available for dealing with this issue. First, I will make a declaration that I was wearing a different cap in 2004, in that I acted in a legal capacity against both the health boards and the Department of Health. It is important I declare that in respect of these nursing home claims. As I said to the Chair in a private meeting last week, I was seeking legal advice as to whether I could participate. I received legal advice internally here and have been advised that I can participate and ask questions regarding this matter.

I will open by saying the concern I have is about the delay in the Department dealing with issues. The Ombudsman published a report in 2001 dealing with nursing home charges. In fact we can go back as far as 1976 to the Maud McInerney case, where the Supreme Court decided that nursing home care came under the definition of medical care. Yet going forward to 2000, no action had been taken by the Department and in October 2004, my legal office identified clients who were in both public and private nursing homes and who were being charged. My legal office and another legal office commenced a series of correspondence and by December 2004, more than 50 letters had been written both to the health board and the Department of Health but still no action was taken. My colleague applied to the High Court for a judicial review on the second week of December. The High Court judge held we had not given sufficient time to the health board or to the Department of Health and decided to not give consent for the judicial review to go forward. The following day, the Department announced that all public nursing home charges were to stop and at the same time, a Bill was published to try to regularise the issue, while also making sure that anyone who had charges deducted previously could not reclaim the funds. That Bill went through the Dáil and Seanad, the President refused to sign it and sent it to the Supreme Court. We continued with our High Court proceeding and it led from there as regards the decision to put in place the repayments for the public nursing home charges. More than €450 million was repaid. There was one bit of satisfaction that there were two small legal practices taking on the State where the State was sitting idly by in not doing something about an issue that was within the knowledge of the Department for quite some time.

My question in relation to this. Looking at it now, why does it take so long for a Department, and this has since happened in other issues, to come to a decision about where something is hovering around and it takes until such time as there is a legal challenge before action is taken? Are there other issues out there that we are not aware of but that the Department is aware of and on which it is still delaying the making of decisions?

Mr. Robert Watt

I do not think there is a specific question for me there, Chair.

Deputy Colm Burke

It is one of the issues that is happening, where the Department seems to have a particular problem making decisions on issues until such time as there is a challenge and then we are all on deck trying to resolve the issue. Likewise, on the issues relating to the private nursing home cases, none of them were actually dealt with other than that they were settled. There was not an overall decision by the Department as to how they would deal with it. It was a case of prolonging the process rather than trying to come to a conclusive decision on it.

Mr. Robert Watt

There is no question there, Chair.

Chairman

To clarify, I think the question Deputy Colm Burke is asking is whether there are other cases or other areas of which Mr. Watt is aware where this may arise? Is the Department aware of any other areas? Is that correct, Deputy?

Deputy Colm Burke

Yes. Are there other areas the committee should know which are within-----

Chairman

It is yes or no.

Deputy Colm Burke

-----the Department's knowledge where there are delays? This was 18 years ago. The nursing homes issue was going on long before 2004, long before the applications to the High Court were made and yet it took the challenge to the High Court to start the process about the Bill and about putting in place the repayment of the public nursing home charges.

Mr. Robert Watt

I am sorry Chair, there is no question for me here.

I do not know what the Deputy is suggesting here. There are other cases. There are legal cases against the State all the time with the Department of Health and other organisations.

Deputy Colm Burke

The issue arises where the Department seems consistently to delay arriving at decisions, which then costs the State. I put it to Mr. Watt that surely a process must be put in place that can expedite the decision-making within the Department rather than the way it is now dealing with particular issues. This is one case in particular where there was a huge delay in dealing with the issue, and here we are 18 years later with the issue back on the table again.

Mr. Robert Watt

The issue was dealt with extensively by Dáil debates and legislation, as the Deputy has outlined, when these matters came to light in 2004. A Bill was enacted in 2006 and a redress scheme was put in place.

Deputy Colm Burke

It did not deal with any of the issues in 2006. It dealt only with the public nursing homes.

Mr. Robert Watt

Exactly. Yes.

Deputy Colm Burke

It did not deal with the issue where the person who had a medical card looked for a public bed in a public nursing home but ended up in a private nursing home. It did not deal with that issue. The Department was aware there were still ongoing cases against the Department and it did not deal with that issue.

Mr. Robert Watt

There are ongoing cases in respect of private nursing homes. The Attorney General has set out the State's strategy on this. Some of these cases have been settled, some of them are dormant and some are seeking discontinuance. The strategy has been set out by the Attorney General. I have nothing further to add to what the Attorney General has said.

Deputy Colm Burke

In relation to particular issues arising in the Department, why does it take so long? Surely there must be some co-ordination where there is a risk to the Department and to the HSE? The decision-making process seems to drag on ad infinitum and it ends up with the State having to pay out substantial sums of money rather than actually dealing with the issue. It is my understanding the Department of Health was given an opinion on this from a senior counsel on behalf of the Eastern Health Board long before 2004 and it failed to act on it.

Mr. Robert Watt

Is the Deputy referring to public nursing homes or to private nursing homes?

Deputy Colm Burke

Yes. Public nursing homes.

Mr. Robert Watt

I believe this is all addressed in the report by the Attorney General. I have nothing further to add to the matter.

Deputy Colm Burke

The question I am still asking is why does it still take so much time-----

Mr. Robert Watt

I do not agree with the premise of the question. The State has a right to-----

Deputy Colm Burke

The proof of it is there. We are back dealing with an issue 18 years later which is still not fully resolved.

Mr. Robert Watt

Whether it is fully resolved or not is a view the Deputy has, which he is entitled to. The State resolved the matter in relation to public nursing homes 17 years ago, I believe, if my maths is correct. There are cases related to the private homes. The Deputy knows better than anybody on this committee that I am not talking about the ongoing cases taking place, some of which are subject to litigation. The Attorney General has set out a strategy. The Attorney General has not waived privilege in respect of these. I will not say anything more about matter. It is totally inappropriate for me to be questioned on this. I am very uncomfortable. The Deputy may have got his legal advice, and I have legal advice too in terms of what I can say. The Attorney General has set it out very clearly in his report this week. I am not going to go any further than what he has said.

Deputy Colm Burke

I accept that. I will move on to the issue of medical negligence claims. The report refers to maternity cases running at about 61% of all claims for medical negligence. I am aware we have reviewed this in the context of how we deal with that, in fairness to Department, the HSE and State Claims Agency. Do we now need to look at other jurisdictions to see how we can better manage and deal with claims that are arising rather than cases dragging on for quite a period of time? I am aware there is a legal issue and the Department is not directly involved in the management of those cases, but do we now need to do a review? When we consider the figures, which is more than €4 billion in claims in real terms if we had to settle every one of them in the morning, do we now need to look at that? The amount being paid out each year is increasing and there is no-----

Chairman

I thank Deputy Burke. We will allow Mr. Watt to respond.

Mr. Robert Watt

Obviously, with regard to negligence cases, individuals who feel harm has been done to them by the system are entitled to take cases. The Deputy is aware of that. The State is then in the position to make its case. A report into the management of negligence cases by Mr. Justice Charles Meenan, published I believe in 2019 - I cannot recall the exact date - set out recommendations. The Government announced last week a further review into the question of medical negligence and how we can address the rising costs of these cases. Dr. Rhona Mahony is chairing that group for the Government. The Deputy's suggestion is being followed up.

Chairman

The Deputy also asked if we are looking at other jurisdictions.

Mr. Robert Watt

Yes. The Meenan report did look at other jurisdictions and looked at the possibility of no-fault schemes, which was not recommended in the report. Certainly, as part of this review, we will look again at other jurisdictions and whether we can do better at reducing the instances of these events and at managing cases and settling them faster with a lower cost to the Exchequer. It is absolutely a very significant issue for the State.

Chairman

Staying on the nursing home scheme, there are now 70,000 individuals who were eligible for the nursing home scheme. The average cost of a settlement is €22,600 per claimant. If all 70,000 individuals were to be successful and if this all carried through, the State is looking at a figure of more than €1 billion. Does Mr. Watt agree with that figure?

Mr. Robert Watt

In terms of the redress scheme, the numbers quoted by the Chairman are correct. That scheme is now closed.

Chairman

The figure would actually be €1.58 billion, as I calculate it.

Mr. Robert Watt

Yes, if that includes all the people who had sought it. I believe it includes the 5,000 people who are in nursing homes.

Chairman

What is the position of the Department of Health with regard to the vulnerable people who may have been entitled to redress? Is it the de facto position of the Department that it would not generally notify people or go trawling to notify people who were wrongly charged? Is that the position of the Department?

Mr. Robert Watt

With the public nursing homes, the Government established clearly the liability and then people who were in nursing homes over that period would have been aware. I am not sure if the State actually wrote to those people and identified them.

Ms Siobhán McArdle

There was a communications campaign in the public media at the time, in newspapers and on radio, informing people about the scheme and inviting them to make an application. A total of 35,000 people made an application in that period of time.

Chairman

That is great. With regard to those who did not and who would fit into the category of those who would be entitled, at this point has the Department prepared a strategy for informing those people or the estates of those people that they may be entitled to compensation or redress?

Mr. Robert Watt

There is no such strategy in place.

Chairman

Okay. In the case of the private nursing homes, how many cases were settled for those who were medical card patients in private nursing homes?

Mr. Robert Watt

Between 50 and 100 cases are settled.

Chairman

Is that under review? May there be more?

Mr. Robert Watt

As the Attorney General set out in his report, there are a number of cases. Most of the cases seem to be dormant but there are live cases and discontinuance is being sought in others. There are still cases that are-----

Chairman

If the State settles cases with those who had medical cards and who had been in private nursing homes, does this not infer that everyone else who was in a private nursing home and had a medical card at that point has a case and is legally entitled to it? Obviously, what is sauce for the goose is sauce for the gander.

Mr. Robert Watt

No, it does not. Each case is different and each case is argued on its merits.

Chairman

How could they be different?

Mr. Robert Watt

Each case is argued on its merits. The plaintiff makes his or her case and makes a statement of claims in most cases. In some cases there is no statement of claims. There are different stages where different arguments are made.

Chairman

If person A and person B were in a private nursing home and both of them were in possession of a full medical card, which was the case at that time as I recall it because there was no GP-visit card then-----

Mr. Robert Watt

Yes, they all had medical cards.

Chairman

Therefore, they were in private nursing homes and the same charges applied. If people were in the same types of nursing home, will Mr. Watt explain why there would be a difference in the cases? Why would there be a variation? They had gone through that medical card entitlement gate. They did not have to go back and walk through it again. What is the difference?

Mr. Robert Watt

There are many different cases here, and people's circumstances are different and arguments are made in respect of the circumstances by which they ended up in a private nursing home. They make a case around circumstances.

Chairman

They all had medical cards.

Mr. Robert Watt

Yes, they all had medical cards.

Chairman

Legally, it has been established that 50 to 100 cases, which is Mr. Watts' figure, have received that. Why would the others not? What is the difference?

Mr. Robert Watt

In settling the cases, there is obviously a compromise and an agreement. The State reached an agreement and did not admit liability in those cases.

Chairman

It is a compromise then.

Mr. Robert Watt

Yes, Chairman, it is a compromise.

Chairman

It is a compromise reached without going into court.

Mr. Robert Watt

Exactly.

Chairman

This is a compromise reached without going to court so these matters have never been teased out.

Mr. Robert Watt

They have never been teased out in court, no.

Chairman

The bar people have to reach is to have had a medical card. That was tested in court. Mr. Watt and I cannot determine that now.

Mr. Robert Watt

No-----

Chairman

Is it not likely then that they would be entitled to-----

Mr. Robert Watt

I do not think there is any dispute that they had a medical card. I do not believe the legal issues-----

Chairman

That is not what I am disputing. What I am asking Mr. Watt is this. Having reached that bar by virtue of having a medical card, which is the ground on which the Department and State settled, why, if Mr. A received redress, would Mr. B, who had not yet claimed it, not also get it?

Mr. Robert Watt

It is because each circumstance is different, not in respect of their medical card position but in respect of the circumstances where the citizen ends up in a private nursing home.

Chairman

The basis upon which the State proceeded was that these were medical card patients in private nursing homes. Do we accept that?

Mr. Robert Watt

The State has never admitted or acknowledged that there is an entitlement to private nursing home care on the basis of somebody receiving a-----

Chairman

I accept that but the grounds on which patients were given redress was that they were medical card patients in a private nursing home. Does Mr. Watt accept that?

Mr. Robert Watt

As I understand it, all of the cases involved people who had medical cards but the grounds for settlement were on the basis that the Government at the time, the State, reached a compromise because it has a strategy of discussing each case and over a long period of time it has reached settlements.

Chairman

Surely, what this looks like is that these people were not aware or did not have the wherewithal to pursue a case and make a claim because the other cases were settled outside of court. Is that not the case? These cases were settled privately before they reached the public forum of the court.

Mr. Robert Watt

None of these cases have been tested in court. The Chair is right, yes.

Chairman

In relation to what has happened in the past fortnight, does the Department expect an influx of cases involving nursing homes claims relating to the period in question?

Mr. Robert Watt

We do not have a view on that. We have not had a case initiated since 2013. These are historical issues but who knows? People have their rights and the right to challenge.

Chairman

As Secretary General of the Department, Mr. Watt is obviously watching what is happening and how this is playing out.

Mr. Robert Watt

I do not wish to speculate on that.

Chairman

Would Mr. Watt be concerned that it could be a large number?

Mr. Robert Watt

No.

Chairman

Mr. Watt does not think so, okay.

The matter of this issue being flagged up in financial statements has come up and many people find it odd that it was not in the HSE’s financial statements. In fairness to Mr. Watt, this was before Mr. Watt’s time in the Department. He was in the Department of Public Expenditure and Reform at the time. The committee addressed this issue at a hearing in September 2011. It was flagged up by committee members who found it odd that a potential liability of €1 billion was not in the financial statements. They outlined their concern about that in respect of public accountability, etc. The then Comptroller and Auditor General, Mr. John Buckley, was asked what his opinion was on this by the Chair. When asked to comment Mr. Buckley stated:

There is really nothing to add. The policy has been set by the Minister. The accounts are framed on the basis of the Minister's directions and accounting policies.

Mr. Watt is charged with overseeing the HSE whose financial statements he would scrutinise. As a former Secretary General in the Department of Public Expenditure and Reform, does he have a view of this? Would it be normal that a liability of that size would not be in the HSE's financial statements?

Mr. Robert Watt

Looking back, that was a reasonable position to be adopted by the Comptroller and Auditor General in 2011.

Chairman

Was that reasonable?

Mr. Robert Watt

Yes.

Chairman

Mr. Buckley said was that this was on the direction of the Minister. Would it be normal for Ministers to give such a direction?

Mr. Robert Watt

No, it would not be that normal but in relation to specific matters, it might be.

Chairman

The policy-----

Mr. Seamus McCarthy

The direction that is being spoken of there was in relation to making a provision for the clinical indemnity schemes and it is a direction of long standing in relation to it.

Chairman

From the point of view of the Committee of Public Accounts doing its work, the previous committee was of the opinion that it was being denied the opportunity to scrutinise. That is evident from the transcripts of the meeting. The €1 billion liability was apparently added as a footnote. That is what was referred to in the transcript. I would find it odd that this would not be included. I thank Mr. Watt.

Deputy Carthy has six minutes.

Deputy Matt Carthy

Gabhaim buíochas arís leis an gCathaoirleach. I will follow on from a point made by Mr. Watt, which has been repeated by several officials and Government Ministers. It relates to the Government having accepted the legal basis of medical card holders in private nursing homes. We can have a debate in respect of that. That is not the case when we are dealing with the long-term residential care homes operating under sections 38 and 39 organisations because, essentially, the State did make payments to 515 people. In essence, that means the Government and Department have accepted the legal basis for their claims. Would it be correct to say that?

Mr. Robert Watt

Yes, in the end the State did not challenge the ruling of the appeals officer so, yes, we ultimately accepted those claims.

Deputy Matt Carthy

This is an important distinction because this is not the case of some people being paid as a result of a legal negotiation and a settlement. People made an appeal. Their appeal was upheld. The Government, of its own volition, was then challenging that.

Mr. Robert Watt

Yes.

Deputy Matt Carthy

Those people, then, essentially received a cheque for the amount of their claim without having to enter into any negotiations. They received their entitlements essentially.

Mr. Robert Watt

They received their entitlements under the redress scheme, yes.

Deputy Matt Carthy

If we then focus, our concern then is in respect of those people who would have been similarly entitled, had they appealed. Apart from the three houses mentioned where a group of appeals were made, were any other institutions involved and were any subsequent payments made to people who qualified under these criteria either as a result of their own legal action or as a result of, for example, an Ombudsman’s complaint being made by people in that situation?

Mr. Robert Watt

Not that I am aware of but if that is not the case, we will get back to the Deputy.

Deputy Matt Carthy

With regard to the questions I asked earlier, Mr. Watt said he would try to provide answers before the meeting concluded. The first of those questions was whether we know the number of people who applied who fitted the criteria but did not appeal. Do we have that number yet?

Mr. Robert Watt

We do not have the numbers yet but we will come back to the Deputy.

Deputy Matt Carthy

I take it there are not yet numbers for the people who would have qualified but did not apply.

Mr. Robert Watt

Yes, exactly.

Deputy Matt Carthy

Does Mr. Watt have a timeframe for getting those figures?

Mr. Robert Watt

No. We will come back to the Deputy. We will check with our colleagues in the HSE again later.

Deputy Matt Carthy

Is there somebody working on that at the moment?

Mr. Robert Watt

Yes, there is somebody working on it.

Deputy Matt Carthy

At our meeting last week, the CEO of the HSE used a particular phrase which I found interesting when I looked back at it. He described the health repayments scheme as “not quite closed but is largely closed”. The question that arises is whether the Department, the Government and the HSE collectively envisage a scenario where new people will be paid under that scheme?

Mr. Robert Watt

I believe the 2006 scheme is closed.

Ms Siobhán McArdle

Technically, it is still open but----

Mr. Robert Watt

There are no payments from it.

Ms Siobhán McArdle

There are no payments from it and there have been no applications to the scheme for many years. It has not formally closed but there are clear terms as to who would have an entitlement to apply for redress under that scheme. We can certainly make that information available to the committee.

Deputy Matt Carthy

The point is that we now know that there are, at a minimum, several thousand people who would have qualified had they appealed because they met the same criteria.

Mr. Robert Watt

No, that is just a number and there is no basis to that number. We will come back to the Deputy if we believe there are others.

Deputy Matt Carthy

I want to read into the record again an extract from the 2011 secret memo from the Government:

In addition, there are other institutions similar to St. Michael’s, Cheeverstown and the Daughters of Charity with residents who would have similar potential claims. [In their cases] Claims rejected under the repayment scheme were not appealed or no claims were made under the scheme, probably on the basis of advice from the HSE that the payments did not come within the definition of recoverable health charges. If these cases were to materialise they would have to be dealt with outside the scheme which is closed. This could result in further litigation and settlement on a case-by-case basis or, depending upon the number of claims that might emerge, it might require further legislation. On a worst-case scenario, the HSE estimates a potential liability of some €360 million.

That was in 2011. We are now in 2023. The question needs to be asked again. It was clear there was a Government strategy here. The best case scenario from their perspective is that all these people who had their money taken off them would be unaware of the fact they had legitimate claims that had been accepted by the Government as having a legal basis. Will that remain the de facto position or will we actually inform these people they were entitled and were denied access to the scheme, either through disinformation or false information? Will we address that issue? If so, how will we do that? Will we do it under the scheme, by forcing people through litigation or, as this memo indicates, through the introduction of a separate scheme or strand to the scheme?

Chairman

I ask Mr. Watt to give concise answers.

Mr. Robert Watt

If there are other cases beyond the 550 I have identified in the three section 39 bodies, we would have to look at them. If there are large numbers of people who should have fallen under the terms of the redress or were in a position to have-----

Deputy Matt Carthy

It is not now. This was accepted back in 2011.

Mr. Robert Watt

I am not sure about getting into a debate on what a secret memo stated or did not state. We have committed, as the HSE committed last week and we have spoken about, to going back to see if there are others who did not fall within those three section 39 bodies. If there are large numbers, it is legitimate to ask what the Government is going to do about those. It is a fair question about whether they will be treated under the scheme, which is now in abeyance but which, I presume, could be activated, or with some other mechanism that is available. That has to be considered. We would look at the date and the evidence and see what the position is.

Deputy James O'Connor

I thank the Chair for the opportunity to ask a couple of questions. I want to pursue an issue that arose last week relating to the GP shortage in the country. We learned from information provided to the Committee of Public Accounts that there is a shortage of approximately 1,000 doctors in the country from the number necessary to have a sufficient GP service capable of catering to the needs of the population. I want to put this to the Secretary General. The HSE is receiving €21 billion in public money, yet we still do not have a staffed health service and there is no sign of that being addressed. I have asked Mr. Watt about this on a number of occasions. I ask him again what he will do to try to solve the issue. It is a mixture of conditions and wages.

I hear time and again from young graduates, many around my age, who have completed their medical studies but have no desire to work in the Irish health service. They want to travel abroad and leave the country, for good in the majority of cases of those I spoke to. They have no desire to work within the HSE or our health system. This has to be addressed if we are going to be serious about bringing down waiting times and fixing queueing in emergency departments. The ramifications at a local level in many parts of the country, including my own constituency, are that the out-of-hours services are at breaking point and a number of important vacancies cannot be filled. I want to ask that from the outset. With €21 billion of expenditure, does Mr. Watt think the situation is good enough? I do not and I would like to know what he thinks.

Chairman

What is being done to address the situation with the shortage of GPs?

Mr. Robert Watt

We have a record number of people working in the HSE. In the past three years-----

Chairman

Just stick with the GP issue. Deputy O'Connor has limited time. What is being done-----

Deputy James O'Connor

With respect, I asked the question quite clearly and would like Mr. Watt to answer. I think he knows what I am asking him.

Mr. Robert Watt

The issue with GPs is that we all know a number of GPs are trained every year.

Chairman

What is being done?

Mr. Robert Watt

We have increased the number of training places from 120 five years ago to 250 or 260. Every year, new GPs are trained and are in a position to enter practice. As the Deputy knows, people are leaving, with older cohorts leaving the profession. The number of GPs and the number of people trained is increasing. We are doing everything we can to put more training places for medical graduates in place for the future. Last week, the Minister spoke about the need to increase the number of places. We increased the number of places for EU graduates by 60 last year. We are hoping to increase it by 120 this year. We are looking at all possible options. Those are longer term impacts because it takes five or six years for people to do their training. In the short run, we have increased the number of GPs that are on the-----

Deputy James O'Connor

Taking that figure of 120, looking at the age profile of GPs, we know that the vast majority are over the age of 50. They are closer to retirement than to graduation. It causes a serious situation where, in ten or 15 years, we will be in a far worse position than we currently are. There is a shortage of approximately 1,000 doctors. Replenishing that with 120 per year is not sufficient. That will take just shy of a decade to fix. Does Mr. Watt have a figure for how many are retiring per annum? Does he have a loose indication of that? The 120 figure is meaningless unless it is compared with how many people are leaving being doctors in their communities. Surely the point of Sláintecare is to go back to communities and to provide the grassroots care in communities that prevents people from having to end up in an emergency department or hospital. Does Mr. Watt not see my point? I cannot understand why, time and again, this issue has not been resolved despite the massive budget the HSE and Department of Health have. They seem unable to address something quite simple. There are significant medical schools in this country with an output of graduates who could sort this problem if common sense was used in the Department of Health. I cannot understand it. A total of 120 is just not enough. Tell me if I am wrong. Maybe I am, but I think this will get much worse. Has Mr. Watt anything to say in response?

Mr. Robert Watt

Last year we increased the number of undergraduate places by 60 and the Minister has committed to increasing the number of places by 120, which will be a total increase of 180 over two years, from a starting position of 750. That is quite a significant increase of over 20%. The Minister would be supportive of going even further. That issue is a question for the medical schools and their capacity. We would welcome any support this committee can provide to convince medical schools to increase output. We do not-----

Deputy James O'Connor

The retention of graduates is a bigger problem. It is not necessarily just about the output capacity of medical schools in Ireland. There is one in University College Cork, the University of Limerick, National University of Ireland Galway, the Royal College of Surgeons in Ireland, Trinity College Dublin and University College Dublin. There are enough medical schools in Ireland to fulfil the demand for general practitioners in Ireland.

Mr. Robert Watt

Half the places in medical schools are for non-EU students and a debate is taking place.

Deputy James O'Connor

How do we retain them in the country to work in the service? They do not have to stay here for life. We know and accept that, in medical practice, people travel, particularly those who want to become consultants and go on to advanced areas of practising medicine. They need to get international experience. I would argue that, as was exposed in the "RTÉ Investigates" programme recently, a high proportion of young Irish graduates just do not have any desire to work for the HSE. That is a massive problem and we will not solve this problem until that is addressed.

Mr. Robert Watt

There are issues relating to retention and, at the start of their careers, younger people going away. The data underpinning the "RTÉ Investigates" report were not correct. Graduates go away for a period and tend to come back. Some stay away for a variety of reasons. One of the push factors is the conditions in the system and issues in certain hospitals, which are well documented. The Minister is committed with regard to non-consultant hospital doctors. He has put in place a working group to look at their working conditions. The Minister has just negotiated a new public-only consultant contract, which we will publish this month.

The Minister has increased the number of undergraduate places and GP-training places. He has managed to secure record funding for the highest number of people in our health system. He has negotiated a new consultant contract and is taking strides to improve the conditions for NCHDs which should over time address the concerns the Deputy raised.

Deputy James O'Connor

The critical point is retention. The next time Mr. Watt appears before the Committee of Public Accounts I will ask him about that. If we do not deal with it, we will not deal with the problem.

Chairman

It would be helpful to the committee if Mr. Watt came back with the number of graduates expected to come out of training over the next three years and the number of GPs due to retire. Many of those working in the community now are in their late 50s or early 60s. I am sure Mr. Watt is aware that two adults are now working in the same house. When I was growing up, the doctor was a male and was the only person working in the household. He was a full-time doctor working 80 hours a week, including being on call all night. That is not happening now because both people in a household are working.

The Deputy outlined what is happening when people graduate, but there are also other reasons. Many of them want to work a 39- or 40-hour week. What is the situation regarding employing salaried GPs in the community? As I recall, that was supposed to happen as part of Sláintecare. At the moment, we are dealing with people in private business. That is the way it is, and I am not arguing against it. Surely we need a cohort of salaried GPs in the community. I ask Mr. Watt to come back to us with answers to the questions on how many are due to retire and how many are due to graduate from training over the next three to four years. I also ask him to come back with an answer on salaried GPs for primary care in the community, not in the hospitals.

Mr. Robert Watt

Absolutely.

Deputy Verona Murphy

I have some binary questions. They are not binary in requiring "Yes" or "No" answers, but just figures. What was the total figure for the settlement of the 515 claims?

Mr. Robert Watt

Those 515 were through the redress scheme; they were not settled.

Deputy Verona Murphy

Through the redress scheme, what was the figure?

Mr. Robert Watt

We can give the Deputy the average figure. What was the average figure?

Ms Siobhán McArdle

We know there were 80 cases. This is in relation to private nursing homes.

Mr. Robert Watt

No, this is not. It is section 39 organisations.

Deputy Verona Murphy

Mr. Watt just said there were 515 cases. What was the cost?

Mr. Robert Watt

Those are the 515 cases relating to section 39 organisations that were then settled within the context of the redress scheme.

Deputy Verona Murphy

Do we have a figure?

Mr. Robert Watt

The average payout was €22,000. The Chair mentioned that figure a moment ago. I have no reason to believe the 515 cases would be any different from that average figure.

Deputy Verona Murphy

Do we not have a figure for the total settlement? What was the total cost for all of those?

Mr. Robert Watt

The total settlement was €440 million in respect of the 22,000 cases that were settled under the redress scheme. There were legal costs of €30 million or €40 million on top of that. So, that cost was €480 million.

Deputy Verona Murphy

So, it is the legal costs. There was €30 million or €40 million-----

Mr. Robert Watt

Some €430 million.

Deputy Verona Murphy

No. Hold on one second and we will get this right. We must not have it confused. What was the total cost without the legal fees?

Mr. Robert Watt

Some €453 million was the amount. The total cost of the scheme, which would include administration costs and so on, was €486 million.

Deputy Verona Murphy

We know that the legal fees for cases that never went to court cost €486 million.

Mr. Robert Watt

No, redress.

Deputy Verona Murphy

Redress, yes. Regardless of what it was, the fees pertaining to them was €486 million, or was it €453 million and the balance was legal fees?

Mr. Robert Watt

The €453 million would be the cost of settlement. That would include legal costs and the payment to the individual recipient. The difference between the €453 million and the €485 million was the overall administration of the scheme, the staffing of the scheme and the advertising of the scheme - all the administration costs.

Deputy Verona Murphy

It was €33 million.

Mr. Robert Watt

It was €32.591 million. There might be other costs, but that is the general cost.

Deputy Verona Murphy

I accept that this was before Mr. Watt's time. That €32.5 million is taxpayers' money being spent, not to mention the €453 million in redress, based on someone making a mistake and putting charges on people that were ultra vires. Therefore, it should never have arisen. Is that not the case? It is very simple. Somebody made a mistake and that is the cost to the State. Is that not right?

Mr. Robert Watt

The legal-----

Deputy Verona Murphy

No, Mr. Watt. The public are watching. Mr. Watt's integrity has an answer to this; he needs to uphold it. I am asking a question.

Mr. Robert Watt

My integrity is not on trial here, with all due respect to the Deputy.

Deputy Verona Murphy

Mr. Watt's integrity will be in question if he tries to fudge this answer.

Mr. Robert Watt

No, it will not.

Deputy Verona Murphy

It is a simple question.

Mr. Robert Watt

No, it is not.

Deputy Verona Murphy

Does Mr. Watt understand my question?

Mr. Robert Watt

No, it is not.

Deputy Verona Murphy

Does Mr. Watt understand the question?

Chairman

Deputy, just put a question.

Deputy Verona Murphy

I am asking Mr. Watt if he understands the question. Does Mr. Watt understand the question?

Chairman

Outline the figure again.

Mr. Robert Watt

The position is very clear. It has been set out by the Attorney General that there was legal advice given that-----

Deputy Verona Murphy

I am not asking that question.

Mr. Robert Watt

-----this-----

Deputy Verona Murphy

Someone made a mistake by instituting charges that were ultra vires-----

Mr. Robert Watt

In the 1970s.

Deputy Verona Murphy

-----and the cost to the Exchequer of correcting that mistake to date without legal challenge is €486 million.

Mr. Robert Watt

People-----

Deputy Verona Murphy

Is that "Yes" or a "No"?

Mr. Robert Watt

It is not "Yes" or a "No". On the 1976 regulation based on the 1970 Act, advice was given at the time that it was sufficient legal basis to charge people. The advice subsequently in cases established that it was not and that it was ultra vires. Yes, back in the 1970s there were legal mistakes made.

Deputy Verona Murphy

The point is that the first set of legal advice was incorrect. The second set is what deemed it to be ultra vires. The result is that while officials are supposedly watching for taxpayers' money, we paid out €486 million, which could have been €1 billion. The reality is that it was down to someone's mistake and it was not a member of the public, was it?

Mr. Robert Watt

Most-----

Deputy Verona Murphy

Was it?

Mr. Robert Watt

Most of the-----

Deputy Verona Murphy

All right, we will move on because Mr. Watt is not going to-----

Chairman

Allow Mr. Watt to answer the question.

Mr. Robert Watt

I am allowed to answer the question. The majority of the €480 million referred to contributions that people made. It was subsequently established there was not a legal basis for making those. The policy intent was clear, but the legal basis for implementation of the policy intent was wrong.

Deputy Verona Murphy

It was an illegal charge.

Mr. Robert Watt

That was established 20 years ago.

Deputy Verona Murphy

What is Mr. Watt's point? I said that somebody's mistake cost the Exchequer €486 billion. Is that a fact?

Mr. Robert Watt

The legal advice provided in the 1970s was wrong.

Deputy Verona Murphy

That is a binary question requiring a "Yes" or "No" answer. Somebody's mistake has cost us €486 million and that person, whoever it may be, was not a member of the public. Is that not correct?

Mr. Robert Watt

They were-----

Deputy Verona Murphy

Would Mr. Watt disagree with what I am saying?

Mr. Robert Watt

They were officers of the Attorney General's in the 1970s-----

Deputy Verona Murphy

Is Mr. Watt disagreeing with the fact?

Mr. Robert Watt

-----or senior counsel opinion.

Deputy Verona Murphy

I cannot understand how somebody at Mr. Watt's level cannot answer that question with a "Yes" or a "No". I am sure everybody else in the country will have the same view.

Chairman

We have gone over-----

Mr. Robert Watt

It is clearly the case.

Deputy Verona Murphy

It is clearly a Secretary General's position to be able to say "Yes" or a "No". Somebody within the public service made a mistake. There was mistaken legal advice. The advice changed. We ended up with a redress scheme that definitely left people out, but it has cost the Exchequer €486 million to date. Is that not the case?

Chairman

The Deputy-----

Mr. Robert Watt

Chair, may I make a point here? The Deputy has questioned my integrity.

Deputy Verona Murphy

Mr. Watt is going back to that, but-----

Mr. Robert Watt

I resent-----

Deputy Verona Murphy

-----he cannot answer the question.

Mr. Robert Watt

Sorry, the Deputy needs to withdraw that remark. She is questioning my integrity. What basis does she have for questioning my integrity?

Deputy Verona Murphy

The fact that he cannot answer "Yes" or "No" to a simple question.

Mr. Robert Watt

I have answered all the questions.

Chairman

Sorry, I want the two of you to stop.

Deputy Verona Murphy

But, sure-----

Chairman

I will suspend the meeting if you do not stop.

Deputy Verona Murphy

You might as well; we are not-----

Chairman

The answers he has given-----

Deputy Verona Murphy

-----getting anywhere without it.

Chairman

First, the Deputy is not supposed to question the integrity of a witness. I think the answer to the question is that the legal advice was incorrect. That is it.

Mr. Robert Watt

Yes.

Deputy Verona Murphy

I asked for "Yes" or "No" answer as to whether somebody in the public service made a mistake.

Chairman

The answer I heard given to that is that the legal advice was incorrect.

Deputy Verona Murphy

The legal advice came from a member of the public service.

Chairman

The Attorney General's office.

Deputy Verona Murphy

The Attorney General.

Thus, the Attorney General back then was wrong, but the current Attorney General, in terms of his report, is right.

Chairman

The Deputy is correct in that it was a mistake. It was wrong.

Deputy Verona Murphy

That is all I asked.

Chairman

We have established that. Deputy Dillon has six minutes.

Deputy Verona Murphy

Hold on a second. That took up two minutes of my time, and I did not get an answer. I will be coming back in.

Chairman

There will be a third round of questions. I ask the Deputy to bear with us.

Deputy Alan Dillon

I will focus on emergency care and the capacity review. Will Mr. Watt outline the delivery targets for additional bed capacity in 2021 and 2022 and the associated costs?

Mr. Robert Watt

There is a plan for increasing the number of beds from 323 to 450. The increases in beds for this year are set out in my statement.

Deputy Alan Dillon

How many beds were delivered in 2021? What was the cost associated with those beds?

Mr. Robert Watt

Approximately 1,000 beds were delivered from the beginning of 2020 to 2022. I think the overall cost of the 1,300 beds which were to be included was €426 million. I might be mistaken in that number.

Deputy Alan Dillon

With regard to the provision of beds as per the capacity review, given the increase in population throughout our island, what is the future expectation on the number of beds we will need in the next decade?

Mr. Robert Watt

A report compiled in 2018 had an increase in the number of beds. I think 3,500 was the number we were to get to and we have increased by approximately 1,000. Plans are now in train for a further 1,200 to 1,300 beds. They are at different stages of being in construction, confirmed and so on.

Deputy Alan Dillon

If we take it on an annual basis, are there sufficient beds available to support our population? Does Mr. Watt have a ratio of the beds per head of population?

Mr. Robert Watt

There is a need for further increases in public capacity.

Deputy Alan Dillon

Does Mr. Watt have the ratio of beds per population at present?

Mr. Robert Watt

We do. There are 12,000 public beds and we have a population of 5 million. We can work out that number. The number in the public system is lower than the OECD figure and it is-----

Deputy Alan Dillon

How many beds-----

Mr. Robert Watt

-----lower than we would want.

Deputy Alan Dillon

How many additional beds have been delivered since the capacity review?

Mr. Robert Watt

Approximately 1,000 beds.

Deputy Alan Dillon

One thousand.

Mr. Robert Watt

Yes. Those are acute beds. There are issues with community beds, which is different. As the Deputy is aware, during the various capacity issues in accident and emergency departments, access to a community bed can be as valuable as access to an acute bed. This is because we have delayed discharges of 500 or 600 people.

Deputy Alan Dillon

On the basis of Mr. Watt's opening statement, the Department provided €426 million in 2021 for additional beds. I will give him a breakdown in that regard: it is 1,046 acute beds at a cost of €205,933 per bed.

Mr. Robert Watt

Yes.

Deputy Alan Dillon

Is that value for money? How is that broken down?

Mr. Robert Watt

As the Deputy is aware, beds are expensive. There is an awful lot that goes with a bed within the system. There are capital costs and there is the staffing cost, which is a significant ongoing cost. Beds are expensive. There is a considerable amount of technology and diagnostics associated with each bed now.

Deputy Alan Dillon

The figure is €205,000. Does the Department do a value-for-money review on each of the beds that have been delivered?

Mr. Robert Watt

Not on each bed, but the HSE would look at reviews after the event to see how much the beds cost; the construction costs and so on-----

Deputy Alan Dillon

Would the Department review that?

Mr. Robert Watt

With the HSE, we periodically look back at the programmes of delivery to see what was delivered and how the beds delivered, versus the cost.

Deputy Alan Dillon

Does the Department have a process to do that?

Mr. Robert Watt

There is an ongoing process.

Deputy Alan Dillon

Maybe the Department can furnish that for the committee.

Mr. Robert Watt

We will share it with the Chair.

Deputy Alan Dillon

There was a budget of €32 million for 66 critical beds. Each bed cost €787,878. Is that a figure the Department can stand over?

Mr. Robert Watt

ICU beds are more expensive.

Deputy Alan Dillon

Will Mr. Watt give me an understanding of how €13 million was allocated for 139 sub-acute beds? Are they for step-down facilities?

Mr. Derek Tierney

The 2018 health service capacity review identified two scenarios-----

Deputy Alan Dillon

Sorry, I am talking about the sub-acute bed situation.

(Interruptions).

Mr. Derek Tierney

We have acute beds and day beds.

(Interruptions).

Deputy Verona Murphy

It is highly irregular that the Chair be approached by a witness. If a witness wishes to say something, it must be said to the committee.

Chairman

Sorry. Continue. I do not want this meeting interrupted.

Mr. Derek Tierney

What was the question the Deputy asked?

Deputy Alan Dillon

I asked for a breakdown with regard to sub-acute beds. Some 139 sub-acute beds were delivered. Will Mr. Tierney give us an understanding with regard to the delivery of sub-acute beds and the 1,250 community beds at a cost of €125 million? I just want to get an understanding. More than 2,601 beds were delivered in total. Is that additional to what is currently in the public domain of 12,000 beds?

Mr. Derek Tierney

As of the middle of last year, there were 11,600 available inpatient and day beds. Acute beds, or hospital-based beds, are more expensive, because there is a blend for other ancillary functions within that rate, such as theatre expansion or other ancillary functions. Hospital-based beds are driven primarily by the ancillary function. That is why they are more expensive than community-based beds.

Deputy Alan Dillon

What is the target for 2023 for additional beds required?

Mr. Derek Tierney

We have profiled 209 acute-based beds to be opened in 2023.

Deputy Alan Dillon

How many critical care beds?

Mr. Derek Tierney

Twenty-nine critical care beds this year. That will bring the total critical care capacity by the end of this year to 352 beds, which means we have already eaten in to phase 2 of the critical care beds strategy published in 2020.

Deputy Alan Dillon

How many community beds?

Mr. Derek Tierney

Community beds are a mix of what the private sector contributes and what we build publicly. Currently, we are at approximately 31,000. Our investment is around refurbishing or keeping beds to standard, which means avoiding bed closure. The challenge ahead of us in how we add additional stock. We started a policy review of how we could do that. It will mean involving the private sector as a delivery partner, because we have a gap that persists.

Deputy Alan Dillon

I refer to the Department's capital and estates division and the capacity for it to deliver on this. There is a real challenge in the hospital group in my own area with regard to the resources available to deliver projects across all hospital groups and regions. What is the Department doing to strengthen its division with regard to these types of projects? There are considerable budgets, but it comes back to the delivery.

Mr. Derek Tierney

It is true. There is an allocation of just over €1 billion towards capital infrastructure. I will give the Deputy a breakdown to put that in context. Some 84% of that is already contractually committed before we start into a year, which means there is approximately 16% to prioritise across that estate. The estate comprises 4,000 buildings. It is the largest estate footprint in the country. Therefore, when hospitals or hospital groups have proposals, that 16% has to be prioritised. That is the reality.

Deputy Alan Dillon

Yes, but there is frustration with regard to the timeline from the approval of a capital project to when it delivers. I will bring up the emergency department at Mayo University Hospital again. We have a timeline of 60 months for delivery, which is just unacceptable.

Mr. Derek Tierney

We have a strong pipeline. We are ready to go with regard to planning and what we need to do. Part of our challenge is as to how we can fund it.

Deputy Alan Dillon

Any project of less than €50 million should be delivered within five years.

Mr. Derek Tierney

We are rule-takers. There is public procurement rules, statutory planning-----

Deputy Alan Dillon

Five years.

Mr. Derek Tierney

-----and the public spending code.

Deputy Alan Dillon

Does the Department stand over the period of five years for a public project?

Mr. Derek Tierney

I can only tell the Deputy about the constraints within which we have to work.

Deputy Alan Dillon

Does the Mr. Tierney think five years is acceptable?

Mr. Derek Tierney

I will not comment on how we apply public frameworks.

Deputy Catherine Murphy

I wish to return to the issue of the considerable contingent liability and the reply I got to parliamentary questions. I refer to a question from 2018. The Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris, would have been Minister for Health at the time. Would the Department stand over the reply that I received? We need transparency in all of this. There has been no crystallisation of a contingent liability for the Department in the past ten years. Is that inaccurate?

Mr. Robert Watt

I do not have the parliamentary question in front of me. I will check and come back to the Deputy, but as-----

Deputy Catherine Murphy

It was looked at by Mr. Watt's colleague during the break.

The Comptroller and Auditor General looked at it.

Mr. Robert Watt

To me, it does not sound accurate that there is no crystallisation because there would be crystallisation, in effect, each year when the cases are settled and the liabilities then accrue.

Deputy Catherine Murphy

We can see them crystallising on the steps of the courts. On the other matter, cost containment was one of the key issues referred to repeatedly in the Comptroller and Auditor General's report. There is delay-and-deny potential with some of this. It is a matter of trying to have transparency. If Mr. Watt is not in a position to answer, the Comptroller and Auditor General might answer on the impact on how something is reported.

Mr. Robert Watt

Before the Comptroller and Auditor General comments, I will comment. I will look at the parliamentary question and check. On the face of it, it does not seem as if it is entirely accurate.

Deputy Catherine Murphy

It is not right.

Mr. Robert Watt

I will check and come back to the Deputy. I do not want to say something now when I have not had a chance to-----

Deputy Catherine Murphy

It is completely wrong, and Mr. Watt knows it.

Mr. Robert Watt

It does not sound correct. Obviously, the liabilities crystallised each year. As the Deputy mentioned, that is the case.

Deputy Catherine Murphy

Mr. Watt says they crystallise each year but I am told there was no crystallisation over the past ten years. How can that be anything other than wrong?

Mr. Robert Watt

I do not know when the parliamentary question was answered, so I will come back to the Deputy after I look at it.

Deputy Catherine Murphy

Can I ask the Comptroller and Auditor General about the matter?

Mr. Robert Watt

We will correct it if need be.

Deputy Catherine Murphy

On transparency, I am trying to make sense of this. That was my motivation for asking the parliamentary questions at the time. Having regard to transparency, Mr. McCarthy has had an opportunity to see the parliamentary question responses. Would he regard the information, particularly the last paragraph, as correct in terms of how it makes its way into the accounts and the impact it would have?

Mr. Seamus McCarthy

As I said already, in my view there is crystallisation of the contingent liability on an ongoing basis. The accounting policy in the HSE is to recognise only the liabilities on a pay-as-you-go basis. Therefore, as the bills are presented from the State Claims Agency, they are met by the HSE. There is a specific line in the HSE accounts that indicates the amount paid. There is quite a detailed note in the HSE accounts - I would not regard it as a footnote; it is a significant disclosure - that does give information on the aggregate liability that has yet to be met over an undetermined number of years. We are always trying to push for more appropriate disclosure that will ensure transparency around what is happening with State claims. That is why I have produced at least two reports on the clinical indemnity scheme. I think my predecessors would have reported on it as well.

Deputy Catherine Murphy

It was a subject that the previous iteration of this committee paid some attention to.

The conflation of cost containment and the public interest was something we saw in the document the Attorney General presented. Presumably, that is the same approach as that taken where there are cases of significant injury. The biggest cost in regard to the €4.5 billion concerns damage from maternity cerebral palsy. This comprises the biggest group according to Chapter 20 of the Comptroller and Auditor General's report. Dr. Rhona O'Mahony is now carrying out the review. I would have expected a constant in relation to identifying where these cases are. Was the review prompted by the escalating number of claims or the damage done to the individuals? Is there a larger number of people who have been impacted?

Mr. Robert Watt

The motivation is both the fact that damage has been done to people in the health system and the question of what can be done to reduce the incidence. Obviously, there is also the fact that it costs such a significant amount of money - money that could be spent on other services within the health system rather than on settling cases and meeting legal costs, which are significant. It is motivated by two factors but primarily the focus is on trying to reduce the number of catastrophic events that take place, which, as the Deputy rightly states, account for a significant proportion of the costs.

Deputy Catherine Murphy

People walk out of the courts and say no amount of money would compensate them. There are lives that could have been very different. There will always be a cohort who suffer from the kind of damage in question but I am concerned about the legal approach taken to open disclosure when something happens and how it sits with the kind of advice that was given by the Attorney General. The approach is almost the opposite of the kind of open-disclosure culture one would require when there is an event, whereby that event would not be hidden or denied and would be dealt with at the time without delay. I do not see how the two sit side by side. Does Mr. Watt see the contradiction?

Mr. Robert Watt

I do not really. The Attorney General was dealing with particular legal cases. The open-disclosure matter relates to medical issues. I refer to the whole culture of disclosing something quickly when it happens, identifying it, informing the family and learning from the incident. The whole culture of disclosure involves learning from mistakes and supporting the family. The Attorney General was looking at a different issue, so I do not really see the contradiction.

Deputy Neasa Hourigan

We might stay in the arena of transparency and accountancy policy. It is super helpful when we have a member of the Department of Public Expenditure, National Development Plan Delivery and Reform present. I raised the issue of virements with the Department of Housing, Local Government and Heritage on the last occasion when we had a member of the then Department of Public Expenditure and Reform in the room. Virements are where the Department, to my mind, sidesteps the process of bringing a Supplementary Estimate to the relevant committee. In previous sessions, we talked about the fact that there were 249 virements in 2021, to the value of €1.5 billion. That is almost 2% of gross voted expenditure, a very considerable amount. We are three years into the term of this Government but, as a relatively new politician, I am advised this is not normal. I understand that Covid happened but, still, we are talking about incredibly large sums of money.

My first question is in the context of health. The Department of Health decided to push through €594 million in virements in 2021. Could Mr. Watt state why the public financial procedures were not followed?

Mr. Robert Watt

I do not accept that they were not followed. I think they were followed.

Deputy Neasa Hourigan

But the Department effectively sidestepped the relevant Oireachtas committee that provides budgetary oversight to the Department, the amount being to the tune of nearly €600 million.

Mr. Robert Watt

How did we do that?

Deputy Neasa Hourigan

Because it did not lay it before the committee.

Mr. Robert Watt

Yes, we did. The virement happened. It was-----

Mr. Seamus McCarthy

The Department did not apply for sanction.

Deputy Neasa Hourigan

Could I ask the Comptroller and Auditor General to give his opinion?

Mr. Robert Watt

Sorry, I now understand what the Deputy means. The issue is about the formal application for sanction by the Department of Public Expenditure and Reform. We had a very clear understanding throughout the year that we would try to meet any costs related to Covid from any savings that materialised, and that they would be vired across. That was a very clear understanding that I understood existed.

Deputy Neasa Hourigan

The understanding is not the issue; it is the process by which the Department progressed with that.

Mr. Robert Watt

We assumed within the Department that what was done was sufficient to meet the sanctioning procedures.

Deputy Neasa Hourigan

Why did Mr. Watt assume that? Was he informed of it by the Department of Public Expenditure and Reform?

Mr. Robert Watt

There was a clear understanding as we were dealing with all the crises in relation to expenditure-----

Deputy Neasa Hourigan

How did Mr. Watt reach that understanding? I am just trying to make it clear.

Mr. Robert Watt

Because conversations took place between people in the finance unit and their colleagues in the Department of Public Expenditure and Reform.

Deputy Neasa Hourigan

So the Department of Health officials had a meeting with those in the Department of Public Expenditure and Reform, and the latter said-----

Mr. Robert Watt

I think they have many meetings with the Department of Public Expenditure and Reform. There was an understanding.

Deputy Neasa Hourigan

On the issue of the virements, a meeting was had and Mr. Watt said, "Work away."

Mr. Robert Watt

I do not think that is what I am saying. We understood that there was a very clear understanding that virement was understood to be happening because of the significant under-expenditure in some areas-----

Deputy Neasa Hourigan

Why did the Department of Health choose to use virements rather than a Supplementary Estimate?

Mr. Robert Watt

We did not think a Supplementary Estimate was needed because there were sufficient savings in the relevant subhead – J.1, I think. That was the understanding.

Deputy Neasa Hourigan

I will bring in representatives from the Department of Public Expenditure, National Development Plan Delivery and Reform in a second but I now want to bring in the Comptroller and Auditor General. With regard to oversight and scrutiny, is he happy with the level of virement usage?

Mr. Seamus McCarthy

Obviously, I am following public financial procedures, and these do not envisage virement in a situation where the transfer of the amount would significantly change the level of expenditure under the new subhead.

In this case, there was €527 million transferred into subhead J2 from subhead J1, which does significantly change the level of expenditure there.

Deputy Neasa Hourigan

What do we mean by "significantly"?

Mr. Seamus McCarthy

I think in this case it would have been about 33%, which is very significant in regard to a subhead. Obviously, it is a judgment call for the Department of Public Expenditure, National Development Plan Delivery and Reform but if the Department is not formally asked to sanction it, that does not seem to comply with public financial procedure principles.

Deputy Neasa Hourigan

Why are we setting aside the public financial procedure in that way?

Mr. Eoin Dormer

I suppose in 2021, as the Secretary General of the Department of Health said, there was a formal meeting of the health budget oversight group and there was a discussion on the issue of the virement that would be requested for the amount referenced. That was minuted at the meeting, so there was a clear understanding.

Deputy Neasa Hourigan

But why was there an understanding? The process of Supplementary Estimates is not particularly onerous, so why did we do it this way? Why did we set aside the public financial procedures that are in place? I know that the country was under pressure in that era, but that is when procedures and formal oversight are important. That is why we have formal oversight, for those moments of pressure, so that we do not come back in a few years' time and ask how did that all work. I am still not clear why that process was followed instead of the very accessible and widely used Supplementary Estimate process, which I assume we all accept is best practice.

Mr. Eoin Dormer

Yes, I suppose. To take up the latter point, following on from the report of the Comptroller and Auditor General this year, steps have been taken to make sure that going forward sanction is clearly sought and given in advance for approval in principle of virement before it happens.

Deputy Neasa Hourigan

Is the Department of Public Expenditure, National Development Plan Delivery and Reform going to put in place working guidelines for when virements are not acceptable?

Mr. Eoin Dormer

Guidance was issued in November from the Government accounting section.

Deputy Neasa Hourigan

In November 2022?

Mr. Eoin Dormer

Yes, that is correct.

Deputy Neasa Hourigan

I am probably pointing out something that everybody is aware of, but Mr. Watt was previously Secretary General of the then Department of Public Expenditure and Reform, so he was fully aware that this was a significant step outside of the public financial procedures.

Mr. Robert Watt

No, I do not accept that. There was a clear-----

Deputy Neasa Hourigan

On what basis does he not accept that?

Mr. Robert Watt

As Mr. Dormer has set out, there was a clear understanding at the meeting which was minuted-----

Deputy Neasa Hourigan

The Comptroller and Auditor General has just set out that it was a significant change to the Vote.

Mr. Robert Watt

I heard what the Comptroller and Auditor General said.

Deputy Neasa Hourigan

Does Mr. Watt accept what the Comptroller and Auditor General said?

Mr. Robert Watt

Absolutely. I could not possibly not accept it.

Deputy Neasa Hourigan

But if Mr. Watt accepts it and he says he understood it-----

Mr. Robert Watt

A judgment call was made in the context of what was an unprecedented period for the Department of Health and the then Department of Public Expenditure and Reform in managing the bills that were coming through in the middle of a public health crisis.

Deputy Neasa Hourigan

Does Mr. Watt not accept that during an unprecedented period is when one needs one's procedures to work? However, we set them aside.

Mr. Robert Watt

I think the procedures worked perfectly well.

Deputy Neasa Hourigan

But Mr. Watt sidestepped them.

Mr. Robert Watt

No, I do not believe I sidestepped them.

Deputy Neasa Hourigan

Is it fair to say that this process pushes us outside the standard public financial procedures?

Mr. Robert Watt

No, I do not accept that.

Deputy Neasa Hourigan

Okay.

Deputy Colm Burke

The previous conversation I had with Mr. Watt was not a criticism of him over what happened between 2000 and 2004. I say that just in case he might be thinking I am trying to blame him for what happened at that time.

I want to raise the management structure of the 19 maternity hospitals. The big issue is claims in regard to maternity hospitals. The three maternity hospitals in Dublin have a master who is appointed for seven years but what is the structure in the other 14? Who actually is in overall charge or how does it fit into the HSE service? There seems to be a significant difference between the management of the three units in Dublin - the Rotunda, Holles Street and the Coombe - and the other 14 units around the country.

Mr. Robert Watt

There are different traditions in the three maternity hospitals in Dublin that have a mastership role. I guess the master is in effect the CEO of the hospital while also being a practising-----

Deputy Colm Burke

We do not have one person in charge in each of the other hospitals, or do we?

Mr. Robert Watt

I think we do. It is the CEO in the other hospitals.

Deputy Colm Burke

But the chief executive is the CEO of the overall hospital, not of the maternity unit.

Mr. Robert Watt

I hear what Deputy Burke is saying. Absolutely.

Deputy Colm Burke

Is that an area we need to look at? Given the level of claims, do we need to have a more structured management in place? I am just raising the question.

Mr. Robert Watt

I do not know enough about the management of the maternity units within the hospitals the Deputy mentions. There are significant protocols in place-----

Deputy Colm Burke

Given the level of claims, would it not be appropriate to look at that?

Mr. Robert Watt

These are protocols and clinical judgments and so on.

Deputy Colm Burke

Yes, I accept that, but an overall person in charge is what is in place in the other 14 units. At least we are not aware of what the structure is.

Mr. Robert Watt

I do not know if that is the case. Somebody must be in charge of the hospital. I accept that there is a maternity unit within a larger hospital, but within that, there would be clinical leads who are responsible for the delivery of services at senior consultant level. We can come back to the Deputy with the information.

Deputy Colm Burke

I would appreciate if Mr. Watt would come back to us with the information, in particular who is specifically in charge in the 14 units and what is their status in terms of how long they are in place.

Mr. Robert Watt

I am sure there is a consultant lead who is appointed.

Deputy Colm Burke

Yes, but is there a structure for the appointment-----

Mr. Robert Watt

There would be.

Deputy Colm Burke

-----and is it the same as the other three units in Dublin for a limited time period, or is it unlimited? Mr. Watt might clarify that.

Mr. Robert Watt

Yes.

Deputy Colm Burke

The other issue that I wanted to raise also relates to maternity units. It is the IT system. My understanding is that four of the 19 maternity units have an IT system up and running whereby it is all computerised. How come it has not been developed in the remaining 15 units and when is that likely to occur?

Mr. Fran Thompson

We are rolling out the newborn and maternal systems. We got approval to do that on two additional sites, namely, in Limerick hospital and in the Coombe. If my figure is correct, that would cover approximately 70% of all births nationally when we add the other hospitals in. For anybody who needs neonatal care, approximately 90% of those units are covered. That will happen between 2023 and 2024. Once we do that successfully we will then look and see what the best solution is for the other hospitals. The reason we say that is because some of the hospitals are quite small-----

Deputy Colm Burke

I am sorry but could Mr. Thompson clarify what units are completed?

Mr. Fran Thompson

I am sorry. The units that are currently live are Cork University Hospital, University Hospital Kerry, which is a maternity unit within the hospital, the Rotunda Hospital and the National Maternity Hospital. When we complete that, the Coombe will be added to that and University Hospital Limerick. Galway already has a solution in Ballinasloe. It is not the national system, but it does use a system.

Deputy Colm Burke

Mr. Thompson says it is not the national system in Galway, but will it be coming in under the national system? What is the proposal in that regard?

Mr. Fran Thompson

Once we do the two additional units, we will put a proposal together to go back to the HSE and then on to the Department of Health to see if we can expand it further or whether we will leave the systems that are there at the moment.

Deputy Colm Burke

Does Mr. Thompson think that by the end of 2025 or 2026 we will have all of the maternity units completely computerised?

Mr. Fran Thompson

No. By the end of 2024 we will have two additional large units fully computerised. We will then do a review and look at where we go next.

Deputy Colm Burke

I thank Mr. Thompson.

Chairman

I wish to ask about budgets and delivery. I have addressed this previously with the HSE and with Mr. Watt. The figure that has been mentioned already in terms of the spend is €23 billion this year for the health service. I do not raise any argument in that regard, but the problem we have is that we must figure out what is happening between the delivery of the budget and the delivery of services. We know it is complex and there are myriad reasons the services do not transfer at the other end.

I will give one example. I do not expect the witnesses to have the detail on it. In response to a parliamentary question on 20 October, I asked about the school dental treatment scheme and the PRSI-based one for the dental treatment services scheme, DTSS. The witnesses will be familiar with them.

In 2021, there was a budget in community healthcare organisation, CHO, 8 of €4.86 million for the DTSS and €4.2 million for the school scheme but at the other end of it there was no service. I presume other counties are the same but there just is not a service in County Laois. I think I mentioned the schools scheme to Mr. Thompson before. I am very familiar with one student who has just turned 17. Some of her pals are almost 18. They have never ever seen a school dentist. The reason for this is that there are no private dentists participating in the scheme and there does not appear to be a HSE dentist either. When I ask the HSE about this, I get opaque answers. I do not want to go away today without asking about it again. We have the information officer from the HSE, Mr. Thompson, here. I do not expect him to know the detail of it but I expect an answer as to why this is the case. If we provide the budget and there is no service at the other end, what is happening in between? It is totally unacceptable. I know it is a difficult ship to turn around but if one looks across the health service, this can be replicated in other areas where there is a budget going in. We all want substantial funding for health but other European countries that are putting in lesser amounts have top-of-the-range dental schemes and health delivery. Their waiting times are far shorter than ours. None of them are perfect because nobody ever created a perfect system. I accept that; I am a realist. However what is happening here? Who is addressing this? I have discussed this before with Mr. Thompson. I will bring in the representatives from the HSE in a minute.

Mr. Robert Watt

In fairness to Mr. Thompson, it is not his area. There are issues here, as the Chair will be aware, around private dentists opting out of the scheme. As he referenced, that means in certain parts of the country the coverage is not there. There may not be publicly employed dentists. The Chair will be aware of the changes we have made in terms of increasing the allocation to the polish and scale scheme and keeping the dentists involved. I will come back to the Chair on the specific parliamentary question he asked and on the exact position in the area he is referring to.

Chairman

The problem for Deputies is that budgets are passed and there are arguments about them, but the money goes over to the scheme.

Mr. Robert Watt

There is a delivery issue then.

Chairman

If we put €10 million more into the scheme on top of the €10 million that is going into it this year, thereby increasing the funding for it by 50%, we will still wind up with no scheme because of how it is constructed. I am asking direct questions. What is the budget for the dental scheme in CHO 8 this year? How much of that would relate - in terms of population proportion - to Laois and Offaly, separately? Who is supposed to be providing this? Trying to get to the bottom of this is a problem. Are private dentists supposed to be providing it? Are there public dentists and how many of them are there? In answer to another parliamentary question, I was told that there are three dentists operating the DTSS in Laois. There is actually only one, and that practice is not taking customers or patients because they come to my office, and I am sure to other Deputies' offices, asking how they can get into the scheme. Nobody is providing the services under that scheme at the moment. The number is zero. The DTSS has collapsed. There are zero dentists. People cannot get into it. As regards the school dental scheme, I told Mr. Watt before that I saw a dentist in third class in primary school. He probably did too. He was in a better area maybe, so he might have seen one in second class.

Mr. Robert Watt

I do not know about that.

Chairman

Maybe not. The point I am making is that here we are now, many years later, and we have regressed this much. I want direct answers. What is the budget for the scheme this year? Who is to provide it? Is it to be provided by private or public dentists? Who is in charge of it? What is being done to address this issue? Will Mr. Watt clarify this in his answers? He might answer my next question now on the hoof. Is it a policy of the Department to say to the HSE that where it cannot get a private dentist to engage, it should directly employ a dentist? Is there any direction from the Department in that regard?

Mr. Robert Watt

I think that is the case because ultimately we want the service to be provided-----

Chairman

Is the Department of Health saying that?

Mr. Robert Watt

-----but let me come back and check that for the Chair.

Chairman

I get a variation of answers from others on that. I want to know what the position is.

Mr. Robert Watt

It is clear that the scheme is not working as it is envisaged. It is not a question of money; it is a question of actually getting the staff in to provide the service. That is the issue and it varies across counties. I will come back to the Chair on the specific questions he has raised.

Chairman

We are telling the public that there is more money going in, and we are going to and fro and back and forward. They are saying that is all fine but they still cannot get the service. Those are the four questions. Will Mr. Watt come back to me on those?

Mr. Robert Watt

I will.

Deputy Verona Murphy

I am not sure who this question is for. Recently, a case was settled with St. Luke’s General Hospital in Kilkenny in relation to a patient who died while waiting for a gall bladder operation. Is Mr. Watt aware of this case?

Mr. Robert Watt

Yes, I saw something in the newspapers about it.

Deputy Verona Murphy

Mr. Watt saw something about it in the newspapers. Does the Department of Health just pass such a case to the State Claims Agency? If Mr. Watt saw the story in the newspaper, how do we stop it from happening again? Is that the extent of his awareness?

Mr. Robert Watt

I am not going to comment on that situation. I do not know the details. Obviously a tragic situation took place recently. There are protocols in place which the HSE will initiate. There will be a review of that. The HSE will engage with the family in terms of-----

Deputy Verona Murphy

Will Mr. Watt hold on? To be fair, he just said he saw something in the paper.

Mr. Robert Watt

I am aware of the case, yes.

Deputy Verona Murphy

Okay. That is fine. There are protocols. I have emailed St. Vincent's University Hospital every day for two months for someone who is in the same position waiting for a bed. The pre-op assessment was carried out on 29 November and a final assessment with a scan was done in December, but no bed has been made available since then. Where is the protocol that changes what happened in 2017 to prevent this patient - the constituent I represent - from getting a bed? What is going wrong there? What should be happening there? From the individual's perspective, it is serious that she is getting no response from St. Vincent's University Hospital in relation to a bed other than the same email coming back every day.

Mr. Robert Watt

I cannot comment on individual cases. I do not know the case but we would certainly be happy-----

Deputy Verona Murphy

Can Mr. Watt tell us what protocol has been put in place to prevent a reoccurrence of the fatal incident involving Mr. Doyle, who unfortunately died.

Chairman

Has the protocol changed? Is there a protocol in place now?

Mr. Robert Watt

I do not think the protocol has changed in the recent past. There are protocols in relation to serious incidents within the hospital system and those are activated by the HSE.

Deputy Verona Murphy

If I were to refer the personal details to the Department, would it look into the case?

Mr. Robert Watt

We would certainly refer it, absolutely.

Deputy Verona Murphy

We will leave that as it is because it does, as I said, involve private details. That is fine.

Chairman

It is an individual issue.

Deputy Verona Murphy

My other question follows on from Mr. Watt's statement that the number of doctors being trained has been increased. I put a parliamentary question to the HSE which was answered by CHO 5. The question related to how our primary care services are operating in areas like disability and mental health. The answer that came back was really disturbing. In Wexford alone, we have 20 physiotherapy vacancies, 17 occupational therapy vacancies, 17 speech and language vacancies, and 11 psychotherapy vacancies. That is in Wexford. The whole services sector is dysfunctional because children's disability network teams, CDNTs, child and adolescent mental health services and adult mental health units are not working. They cannot be staffed. Mr. Watt spoke about doctors. The Chair has addressed dentists. Can Mr. Watt tell me what fundamental thing the Department is doing to ensure we can get the CDNTs or the other services up and running?

Mr. Robert Watt

The issues mainly relate to staffing and getting the staff in place. There are issues around staff retention, which we discussed earlier. There are issues around attracting the staff into the service and training more staff in particular areas. The Department is working away on all those different aspects. Different parts of the country have particular difficulties in certain specialties. We have a detailed workforce plan in which we are recruiting and identifying the gaps.

Deputy Verona Murphy

Will Mr. Watt share that plan with the committee?

Mr. Robert Watt

We have shared it with the health committee but we can share the plan and set out the position.

Deputy Verona Murphy

That is the same answer we got from Mr. Mulvany in relation to the HSE. I am aware that there are clinical governance issues within certain parts of the service. I do not really want to identify any sector or service but there are certainly clinical governance issues.

In my own CDNT in New Ross, the manager left. Both speech and language therapists are gone. There seems to be a structure in the governance that is not the equivalent across the sectors and the staff are feeling at risk. This was broadcast yesterday on national radio airwaves, how staff in the HSE are feeling very vulnerable, and that instead of staying in the job, they are either going through the Workplace Relations Commission, WRC, or they are just leaving. Now that is a retention issue without a doubt and I want to see exactly what we are doing to prevent it from happening and how we are supporting the current workforce. Has the €1,000 that was promised to the front-line workers been rolled out to everybody or what is the update on that?

Mr. Robert Watt

Yes, I think all the HSE staff have received the €1,000 payment and there are other groups but in the main yes, the payment has been made.

Deputy Verona Murphy

Is the Department responsible for the payment to everybody who is entitled to it?.

Mr. Robert Watt

The Department and the HSE are responsible for it.

Deputy Verona Murphy

Could we have an update? Please write to the committee because it is a significant question.

Has the Department of Health received a proposal for a 96-bed ward block for Wexford General Hospital?

Mr. Robert Watt

Not that I am aware of, Deputy but-----

Deputy Verona Murphy

When Mr. Watt says he is not aware of such a proposal, I am assuming that he would in fact be aware or is there someone else with him-----

Mr. Derek Tierney

We have not received the proposal yet. It has to come from the hospital to the hospital group and then it is reviewed by HSE estates. That is where it is within the process at the moment.

Deputy Verona Murphy

That would mean it is not on the horizon for the near future.

Mr. Derek Tierney

The expectation is we will receive, arising from the public spending code, a strategic assessment report within the next quarter.

Deputy Verona Murphy

Will the witness repeat that please?

Mr. Derek Tierney

Under the public spending code, that will be a proposal greater than €100 million, so we will receive a strategic assessment report for review.

Deputy Verona Murphy

Is the witness expecting the report?

Mr. Derek Tierney

Yes, we are expecting it.

Deputy Verona Murphy

It is imminent, in that case?

Mr. Derek Tierney

Well in the next months I understand.

Deputy Verona Murphy

So if the Department does not receive it, we are going to miss that.

Mr. Derek Tierney

When we receive it, we will review it.

Deputy Verona Murphy

It will be reviewed and what budget would it come under or what is the likelihood of it being sanctioned?

Mr. Derek Tierney

It will require capital funding so the question is whether there is capital funding available

Deputy Verona Murphy

Is there a current budget for that or would it have to come through the next one?

Mr. Derek Tierney

That is in the pipeline

Deputy Verona Murphy

But that is what I mean. Is it in this year's pipeline or next year's?

Mr. Derek Tierney

Absolutely not.

Deputy Verona Murphy

So if the proposal is received, the budget for it is way out. It is next year's proposed budget.

Mr. Derek Tierney

As I previously said, this year's budget is already allocated.

Deputy Verona Murphy

So that is that matter clarified. I thank the Chair.

Chairman

We are all being contacted regarding the €1,000 payment and the unions are on to it as well. In relation to the agency workers, there is a problem where people moved employment from one agency to another. It is a bit more complicated than it looked. Has the money been transferred into the accounts of the agencies at this point, because some of the agencies were saying that it had not been. At this point do the agencies have the cash to pay the workers?

Ms Louise McGirr

From 31 January, 39,114 stuff have been paid from the non-public sector. Those are the agency workers

Chairman

That would be section 38s and 39s

Ms Louise McGirr

The section 38s are covered in the HSE stack; it is the section 39s and the private nursing homes. A very significant proportion of them have been paid. KOSI is the provider running that process.

Chairman

Are the private nursing homes within that?

Ms Louise McGirr

Yes they are.

Chairman

Have they got the cash?

Ms Louise McGirr

Yes, many of them have but not 100% of them because KOSI gets back the applications from the employer. We are reliant on them for information coming through. As that comes through, we pay. A significant number of payments have been made. We cannot say the full total of people who are covered by it because it is reliant on the employer identifying them. The process of verification is very important. We found up to 90% of the applications have errors or duplication in them and double claims in some cases because of people moving around. It is important from a governance and a financial perspective that we have those procedures. The number of claims being paid is growing quickly.

Chairman

This is in relation to Sláintecare and eHealth and Mr. Thompson may wish to comment on this also. In 2018, the Department of Public Expenditure and Reform made the decision to refuse funding for the electronic record system until after the children's hospital was completed. Mr. Watt, in your role as Secretary General of that Department, was that the correct decision to make?

Mr. Robert Watt

To defer the roll-out of the electronic record system? Yes, it was.

Chairman

Does Mr.Thompson feel that this will create problems for commissioning and having the IT system in place in the national children's hospital?

Mr. Fran Thompson

We sought and were successful in obtaining a separate procurement process for the children's hospital. That will not delay it in any way, shape or form. An electronic health record has been selected from a commercial company. The procurement is completed and the project plan is now under way. It is in the process of being delivered in tandem with the physical hospital,

Chairman

A patchwork had to be put in place to try to address that.

Mr. Fran Thompson

It is a separate procurement for that EHR. The people at the children's hospital were probably quite pleased with the result. They got an EHR that really suits a children's hospital, and they are able to configure it in a way that really suits them.

Chairman

What funding has been allocated for the children's hospital to implement this system?.

Mr. Fran Thompson

There is a capital allocation and a revenue allocation. The capital allocation for the EHR is €44 million and its revenue allocation is €48 million. For the infrastructure, because there is infrastructure associated with that, it is €41 million for the capital side of it, and €9.4 million for the revenue. That is in the ICT capital plan going forward. There is an understanding between the Department of Health and us on the capital plan being funded.

Chairman

The commissioning period is set for six months. Is the IT system expected to be operational in that timeframe?

Mr. Fran Thompson

The current plan is that the ICT system will be live and available when the hospital requires it, for the services that it requires.

Chairman

Okay. The overall cost is €41 million for the IT system?

Mr. Fran Thompson

The overall cost for the EHR is €44 million on the capital and €48 million on the revenue. A total of 106 staff have been allocated to the children's hospital for the implementation. Of those, 41 will be retained for the running of the solution set.

Chairman

It has been suggested here today that the building work will be completed in early 2024. When is it expected to be commissioned? Obviously the information part is a big part of this project.

Mr. Fran Thompson

The development board are really around the handover and the hospital on the commissioning. What we are doing on the ICT side and working with the CHI team, is making sure that the information systems are aligned with that and that they in no way delay the hospital. It's very difficult to align things to make sure they land at the very same time but I am confident.

Chairman

By 24 September?

Mr. Fran Thompson

I am confident that the ICT systems will not delay the opening of the hospital.

Deputy Verona Murphy

When does Mr. Thompson expect the training on the new system to take place? Will it be within the commissioning period when the hospital opens?

Mr. Fran Thompson

The plan would be around the commissioning period but the reality for training on all IT systems that we have ever deployed can be different. There is never enough time. People always say they want more training. What tends to happen is that there is initial training for people, which will probably be during the commissioning side. Then, as the system goes live, we speak about hyper-support. That involves putting people in place to train people as they are utilising the system, in addition to the formal training they get,

Deputy Verona Murphy

Okay, that will be significant.

We will have people alongside medical professionals being trained in IT as they are practising.

Mr. Fran Thompson

We have done that. That is the norm for deploying IT systems. It is not unique to the HSE. We have done that for the newborn and maternal. It works extremely well and staff like it because when they have an issue and are not sure what to do, there is somebody walking the floors available to answer that question for them.

Deputy Verona Murphy

Okay. This question is for Mr. Watt. Last week the HSE told us there were 6,349 children - which I am sure has increased in a week - awaiting an assessment of need in order to receive a statement for services. Is that not very concerning?

Mr. Robert Watt

Absolutely.

Deputy Verona Murphy

Since that interaction, a number of queries have been raised. They are all due for assessment. Some have been waiting for three years and some have been told they will be waiting three to four years. I cannot remember her name, excuse me, but the lady in charge of this in the HSE said she expected all of them would require services. How are we planning for that, if those children were to be assessed in a timely fashion as they are entitled to be? Unfortunately, some have to go to court and end up getting the assessment that way. If we were to have those children assessed in the morning, what plan have we in place? Our services are already overwhelmed with need and underwhelmed with staff. If we were to introduce 6,500 children in the morning, what plan is in place for autism units in schools, for CDNT services and so on?

Mr. Robert Watt

Clearly, the services are under pressure and people are waiting for assessments. People can access some services in advance of getting their formal assessment. We are trying to increase the availability of services all the time and to increase the number of staff doing assessments and providing services. It is an ongoing challenge and many services are under pressure but-----

Deputy Verona Murphy

I know that and so does everybody, particularly the parents of the children. What plan have we in place for if they were to receive the assessment in the time when they are entitled to it, which is tomorrow or actually yesterday? I understand there is a pressure point but what is the plan?

Chairman

Will the witnesses answer briefly on the plan to meet that need?

Ms Siobhán McArdle

The role of CDNTs across the country is to support both assessment and intervention. As Mr. Watt pointed out, we know we need to increase staff numbers and there have been allocations of funding to ensure there are physiotherapists and speech and language therapists.

Deputy Verona Murphy

That is the point. I do not mean to interrupt because I know Ms McArdle is trying to answer but we have a €54 million underspend in one section of the Sláintecare programme. There is not much point in having the money if we cannot spend it. The Department of Health is sanctioning that money into the HSE. We are 20 physiotherapists and 17 speech and language therapists short. That is at the current rate, leaving aside the 6,350 children who have still to be assessed. It seems we are near disaster here. The CDNT is not yet up and running and is already at crisis point.

Chairman

There are statistics for the gaps in the services across the various teams. That is established.

Deputy Verona Murphy

The statistics will not cut it. We need a plan.

Chairman

We have asked the HSE before about this matter. Will the Department come back on populating those empty positions? It is over one third. The HSE confirmed that to us. We know that from the figures. My party colleague got the figures about two months ago and they showed huge gaps. It is roughly between 30% and 40%. That is accepted. Trying to fill those positions is a challenge. Will the Department come back to us on the direction and oversight being given in terms of filling those positions?

Deputy Verona Murphy

I ask Mr. Tierney about the update on the MRI scanner in Wexford General Hospital.

Chairman

Will Mr. Tierney give a very brief answer?

Mr. Derek Tierney

I will get the Deputy a note on it.

Chairman

Before we conclude, there was a issue the witnesses were to come back with before the end of the meeting. It concerned the number of section 38 and 39 residents impacted by wrongful long-stay charges. How many applied for redress but did not appeal? How many were impacted but did not apply for the redress scheme? What measures were put in place to asses how many were impacted and compensate them?

Mr. Robert Watt

We do not, unfortunately, have answers now but will come back to the committee as quickly as we can.

Chairman

Will the witnesses come back within a week?

Mr. Robert Watt

We will endeavour to do that.

Chairman

Thanks for that.

Deputy Verona Murphy

Can I ask another question?

Chairman

No.

Deputy Verona Murphy

What is the problem?

Chairman

The Deputy has to be back for 1.30 p.m.

Deputy Verona Murphy

I can be back. I can stay here.

Chairman

I want to be fair to the other members.

Deputy Verona Murphy

There is no other member here. I have one quick question.

Chairman

The Deputy can ask one quick question. We could all ask one more question.

Deputy Verona Murphy

In relation to the nursing home-----

Chairman

Very briefly.

Deputy Verona Murphy

It cannot be brief. I will be brief but the answer probably will not be.

Chairman

I will make sure they are.

Deputy Verona Murphy

How much money, in total, was gathered illegally from the nursing home scenario? In total, private and public, do we know the figure?

Chairman

A yes-no answer to that.

Deputy Verona Murphy

No. I need the figure.

Chairman

Do they know it, first?

Mr. Robert Watt

I do not know.

Deputy Verona Murphy

Okay, so you will provide it.

Mr. Robert Watt

We know the amount of the settlement.

Deputy Verona Murphy

The other question is this: why did the Department not collect the moneys outstanding from people who did not pay?

Mr. Robert Watt

Are these people who were to make a contribution but did not make a contribution?

Deputy Verona Murphy

We know it was an illegal contribution-----

Mr. Robert Watt

Yes.

Deputy Verona Murphy

-----but they did not pay it anyway. Why did the Department not follow the money it was owed?

Mr. Robert Watt

Historically, in the 1970s and 80s-----

Deputy Verona Murphy

Yes.

Mr. Robert Watt

I do not know what money was owed. It was a matter for the health boards.

Deputy Verona Murphy

I want to know the figure and I want to know why it was not collected.

Mr. Robert Watt

I do not think we know why money was not collected in the 1970s. I do not think we are-----

Deputy Verona Murphy

Is it the strategy that if someone does not pay, that is it?

Mr. Robert Watt

That is not the strategy.

Deputy Verona Murphy

That is the question.

Chairman

Okay. We do not have that information at this point.

Deputy Verona Murphy

Can we have that information, Chair?

Chairman

They confirmed they have not got it.

Deputy Verona Murphy

I ask the Secretary General whether we can have an explanation as to why, historically, the money not paid by those in nursing homes was not collected by the Department. Can we have an answer to that question, even if it has to be in writing?

Mr. Robert Watt

We will come back. I do not know if there was money not collected.

Deputy Verona Murphy

We know there was money not collected from the Ombudsman's report.

Chairman

They have given a commitment to come back. That is acceptable.

I thank the witnesses and staff of the Departments of Health and Public Expenditure, National Development Plan Delivery and Reform and the HSE representatives for attending and preparing for the meeting. I thank the Comptroller and Auditor General and his staff for attending and assisting the committee. Is it agreed that the committee will seek any follow-up information on top of what I mentioned already and carry out any agreed actions? Agreed. Is it agreed we note and publish the opening statement and briefings for the meeting? Agreed. I remind members not to make charges regarding the integrity of witnesses at the meeting.

The witnesses withdrew.

Sitting suspended at 12.58 p.m. and resumed at 1.40 p.m.