COMMITTEE OF PUBLIC ACCOUNTS debate - Thursday, 10 May 2018

Vice Chairman

We are discussing matters related to the CervicalCheck revelations. In particular, we will examine the management of legal costs and the policy on open disclosure. These matters were included in the work programme of the Committee of Public Accounts to be considered in July, but as a result of the matters that have come to light, members agreed that they should be dealt with more urgently.

We are joined from the Department of Health by Mr. Jim Breslin, Secretary General and Accounting Officer for the HSE; Dr. Tony Holohan, chief medical officer, and Ms Mary Jackson, principal officer. From the HSE we are joined by Mr. Tony O’Brien, director general; Mr. Damian McCallion, national director, national screening service; Dr. Philip Crowley, national director, quality improvement division; Mr. Liam Woods, national director, acute hospital services; and Ms Maura Lennon, head of legal services. From the State Claims Agency we are joined by Mr. Ciarán Breen, director; Mr. Cathal O’Keefe, head of clinical risk; and Ms Ann Duffy, senior clinical risk manager. We also invited representatives of the National Cancer Registry. It was done at short notice earlier in the week, but its director is not available and it was not in a position to send anybody else.

The registry will be invited to join us again next week.

I welcome the witnesses. I remind members, witnesses and those in the Public Gallery that all mobile phones must be switched off. I advise the witnesses that, by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the provisions of Standing Order 186 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. While we expect witnesses to answer questions put by the committee clearly and with candour, witnesses can expect to be, should be and will be treated fairly and with respect and consideration at all times in line with the Oireachtas witness protocol. I will ensure that happens.

There were to be a number of opening statements from Mr. Breslin, Mr. Breen and Mr. O'Brien, but we will take those documents as read in order to save time.

Deputy Catherine Connolly

Is there a statement from Mr. O'Brien?

Vice Chairman

No, sorry.

Deputy Catherine Connolly

I was just asking for the record.

Vice Chairman

The statements are only from Mr. Breslin and Mr. Breen. I have seen so much of Mr. O'Brien this week, I thought there was a statement. Is it agreed that we will take Mr. Breslin and Mr. Breen's statements as read? Agreed.

The director general of the HSE and Mr. McCallion will have to leave in an hour and a half, as the cervical cancer issues with which we are dealing are live ones and they must travel to Limerick. Now that the meeting has commenced, we will allow a round of questioning for the first hour and a half to the Deputies who are present. There is an order in which they will ask questions. They can ask questions of any of the witnesses, but they should be aware that Mr. O'Brien and Mr. McCallion will be gone in an hour and a half. The first two members will get seven minutes each. Thereafter, members will get five minutes each. Once the hour and a half is concluded, we will proceed to our normal routine of asking questions within the time slots normally afforded Deputies. The first batch of questions will come from Deputy MacSharry.

Deputy Marc MacSharry

I welcome the witnesses and thank them for taking the time to attend. Did Mr. O'Brien listen to today's edition of "Morning Ireland"?

Mr. Tony O'Brien

I am afraid I was not in a position to listen to it. I will listen to it later on the RTÉ Radio Player.

Deputy Marc MacSharry

I appreciate that. When the serious incident management team did its review of the audit it established that there were 208 women who should have been communicated with and that 175 cases received an interpretation different from the original smear result. Based on the opinion of the review team, this would have led to a different clinical escalation. My problem with Mr. O'Brien is that he is putting up a straw man argument that this process in not infallible, a fact which we all accept. He is putting up a straw man argument that he cannot be held to account because of the actions of individuals in his organisation. He accused Deputy MacSharry of trying, in the case of Emma Mhic Mhathúna, to create the impression that the false diagnosis had some consequence on her being diagnosed with cervical cancer.

Mr. Tony O'Brien

If I can just be clear, it is important to note that I was not referring specifically to any individual case because I do not have the information to do so.

Deputy David Cullinane

The issue here is that these 208 women were not told. That was a systemic decision taken by the HSE. Mr. O'Brien is responsible for systemic decisions taken within his organisation. The real scandal here was the response to that systemic failure and that women were not told. Mr. O'Brien has heard that Ms Mhic Mhathúna was on "Morning Ireland" this morning. It was very harrowing interview. This is a woman who had to tell her five children that she is going to die. Obviously she is very emotional. She told Teachta Mary Lou McDonald, who raised this issue in the Dáil yesterday, that she is more angry than she is worried about her death. It is a very personal tragedy for her.

There is an important difference between system failure and systemic failure. Had I been party to any such decision------

Deputy David Cullinane

I did not state that Mr. O'Brien was party to the decision.

Mr. Tony O'Brien

Had I been aware of any such decision and failed to act, I would take responsibility and accountability for it. However, I was not aware of it.

Deputy Catherine Murphy

I wish to bring to the attention of Mr. O'Brien that in an interview on RTÉ Radio 1 this morning, Emma Mhic Mhathúna stated that her obstetrician, of whom she was very complimentary, told her that had the false negative been communicated at the time, it is likely that she would not be in the position in which she now finds herself. I acknowledge that Mr. O'Brien has not heard that very powerful interview. We can discuss these failures as though they are academic but the situations in which this woman and others find themselves is far from academic. It is a catastrophic failure for her and the Health Service Executive as a consequence.

I acknowledge the realities of population-based screening. We understand that screening gives indications. When one gets an indication of something that requires further scrutiny, one is referred on. The people who chose whether to communicate or not communicate the information made a decision not to do so. Those people, who are clinicians, were playing with people's lives in not so communicating. What has Mr. O'Brien done about that in terms of the chain of command?

Mr. Tony O'Brien

As I stated, I will listen to the interview when I have an opportunity to do so. An obstetrician or any treating clinician would be correct to say that had the test that was reported negative been reported positive at the time, there would have been a referral and earlier treatment and the outcome may have been very different. That does not relate to the failure to communicate and does not imply that the outcome would have been different but for that failure. The failure to communicate only arose after the diagnosis of cancer because it was that diagnosis which triggered the review that was subsequently not communicated.

I am advised by treating clinicians that receiving knowledge of a prior false negative after a person has been diagnosed and is in treatment would not change the course of that treatment. However, it is clear that had the screening programme picked up an individual's cancer three years earlier, the programme would have done what it is designed to do and has done in 50,000 other cases and brought the person into a treatment pathway which could have prevented cancer or further consequences from developing. What the obstetrician stated is correct.

Deputy Catherine Murphy

Part of the reason for Mr. O'Brien being in attendance at the committee today is the issue of open disclosure, which is on the committee's work programme. We were considering it in a very cold way because we are looking at the contingent liabilities. However, we are examining those because they show the culture in an organisation. What we are being told about open disclosure and what is happening in practice are very different. According to the document provided by Mr. O'Brien, in January or February approximately 20,000 of the 140,000 HSE staff had been trained in open disclosure. Not all staff will directly impact on patients because there are many ancillary staff and sections 38 and 39 organisations and so on. Do we have open disclosure or not? What is Mr. O'Brien's viewpoint on voluntary, as opposed to mandatory, open disclosure?

Mr. Tony O'Brien

I have not refused. The Deputy is putting words in my mouth. I will put it to the Deputy a slightly different way. Public organisations are one of the few places where all accountability passes upwards. I do not seek to run the organisation that way. The entire time I have been there, in accordance with Government policy, I have been trying to create accountability at the appropriate levels. I am not about to give everyone a get-out-of-jail-free card but I am accepting-----

Deputy Jonathan O'Brien

That is fair enough, but I am not about to give Mr. O'Brien a get-out-of-jail card. I have one final question. I know other members want to come in.

I will get in again.

Vice Chairman

We are going to try to get around again.

Deputy Peter Burke

I thank the witnesses for appearing. Obviously it has been a very difficult two weeks for the health service. On the national screening programme, from the HSE accounts, if we look at CervicalCheck, it seems to be operating in isolation. It has its own website and its own register for all the details, the patients, etc. When I look at the accounts for the HSE, I cannot see what the costs of outsourcing to laboratories are or what the cost of running the programme is. That goes for the other screening programmes. Are they all bulked into one area or what way is that derived from the accounts?

Mr. Tony O'Brien

I will ask Mr. McCallion to answer the Deputy's question.

Mr. Damien McCallion

The national screening service has an overall budget of €77.8 million. That is split up across the four programmes and there are some common elements to that. One of the things that undoubtedly will be looked at, either through myself or through the other review process, will be whether there are opportunities for the programmes to perhaps work together more closely. There is a common piece. Approximately €5 million of that is the national screening service as a whole and then each of the programmes has a budget underneath that. The laboratory costs are in the order of about €6.9 million per year spread across the different laboratories that provide the services. At the moment, there is an overall national screening programme and there are four programmes underneath that. Each of those has a budget but there is an overall budget of €77.8 million.

Deputy Peter Burke

How can you and your colleagues stand over the cervical controversy. We are inundated with requests for smears with no formal guidance even how to process them, how to claim remuneration. We cannot offer any form of reassurance to any patient so all smears need to be repeated. Can we trust the results of repeat smears? What's the lab they will be sent to?

I think this captures for me the reality here. Mr. O'Brien has taken no action against any member of staff. He has admitted he was not told things when he should have been. We know there were system failures. In calling for Mr. O'Brien's resignation, I have to say it may well go to Ministers, taoisigh and the head of the State Claims Agency for further calls of resignation. Mr. O'Brien and the Ministers are commentators on a national crisis. We have no leaders. That is crystal clear. Mr. O'Brien has admitted that no action has been taken against anybody. There is nobody accountable. Three weeks into the crisis, Mr. O'Brien is not even in a position to tell us who was supposed to tell him but did not do so. There is a policy of sitting back and letting everything take its course. The people and accountability come last.

Deputy Kate O'Connell

Mr. O'Brien referred to the memo as "reassuring" and said the figure of 209, out of 1,400 plus, would not alert. What is that based on? Is it based on clinical knowledge? Without knowing what the actual rate should be, how can he read a memo in his position and make that assumption?

In the data reconciliation process, the two-way data does not seem to have been transferred from the National Cancer Registry, in this case to the CervicalCheck people. It seems that when the audit process started, for the first two years the audit data were used for education and training purposes and they were only used for patient purposes subsequently. There is a definite swing to a focus on academia, education and data, rather than the patient. We spoke last week on this. There is an issue when one does not have clinicians in positions of management. If a clinician was in charge, I firmly believe patients' needs would have been to the fore.

Mr. O'Brien talked about there not being a joined-up process when the systems kicked in. That is a very serious admission to make because it says that the process did not work when it kicked off. If Mr. O'Brien is admitting that the HSE cannot even communicate in a joined-up way to serve a population the equivalent to that of Manchester, he is admitting that it is not fit for purpose. Mr. O'Brien also spoke about the corporate knowledge of the team. I agree that just firing everybody who was in charge would get us nowhere but the way the corporate management team did its business does not seem to be the gold standard. I am not sure how much value its corporate knowledge is; can Mr. O'Brien elaborate on this?

Mr. Ciarán Breen

I did not read it in that detail. I looked at it for all of the various clauses setting out, for example, who the contract was between, the duration of the contract and the ordinary terms of the contract in relation to the duties and obligations on the parties arising from it to include insurance, indemnities and so on.

Deputy Marc MacSharry

Is there anybody here from the HSE with authority over CervicalCheck? I ask those senior personnel who remain from the HSE make contact with CervicalCheck and ask that the contract be made available to the Committee of Public Accounts, if necessary on a confidential basis, but ideally on a public basis, so that we can examine a number of issues related to value for money, reporting, communication and so on which may or may not have been reflected in it.

Given that we are all on the one team, perhaps we could conspire together to come up with a view on whether there is recourse, whether it is the HSE, the State Claims Agency, CervicalCheck, all of the above or whoever. If the witness could give us a note on it between now and the next meeting, that would be fantastic.

Acting Chairman (Deputy David Cullinane)

I will come to Teachta Alan Farrell, even though I am next to speak. He wants to come in as he has somewhere to go.

To follow on, Mr. Woods stated there was a disciplinary procedure in place in the HSE which was overseen by HR. Teachta Marc MacSharry asked what sanction was in place. The sanction is a procedure.

Can Mr. Woods or another HSE official numbers - not names - of how many people were sanctioned as a consequence of disciplinary procedures within the HSE going back over a three or four years to give us an indication of whether people are held to account and sanctioned? If he cannot do that, he might ask the person who can to furnish the committee with that information.

Mr. Liam Woods

I will ask our HR colleagues how has there been such data.

Deputy Alan Farrell

Deputy David Cullinane

Voting is about to begin in the Dáil so we will adjourn until 2 p.m., in the hope that voting is finished by then. Deputy Catherine Murphy will have the floor when we resume.

Vice Chairman

Before we resume, a copy of the memorandum that was sent to the director general, Mr Tony O'Brien, in early 2016 was requested before we resumed after lunch. Is that available?

Mr. Liam Woods

Mr. Ciarán Breen

Deputy Catherine Connolly

Deputy Jonathan O'Brien

Prior to that there was nothing specific.

Ms Ann Duffy

There was nothing specific to cervical services.

Deputy Jonathan O'Brien

I might come back to this issue later.

Deputy David Cullinane

Deputy Catherine Connolly

I was most interested in the first version of March 2016, which the director general had. Having read it, I am shocked and it is not manufactured shock. This reads like a letter of containment. It states that screening "is not 100% accurate" and that CervicalCheck "cannot give a 'yes' or 'no' answer". I have a problem with the statement that there is, "always a risk that in communicating individual case reports to clinicians of an individual patient reacting by contacting the media if they feel that 'screening did not diagnose my cancer'." The memorandum continues: "Most importantly during the course of the clinical audit to date no systematic quality problem of concern has been identified." That is a concern.

The document subsequently states: "One of the cytology laboratory providers has sought legal advice into the right of the programme to communicate audit outcomes." The laboratories obviously had an issue with anyone being told the truth.

The memorandum continues:

The programme is liaising with legal team. This is not an impediment to moving forward with formal communication of audit outcomes.

It then sets out the next steps - this is frightening stuff - which are as follows: "await advice of solicitors"; "Decide on the order and volume of dispatch to mitigate any potential risks"; and - here we go - "Continue to prepare reactive communications response for a media headline that 'screening did not diagnose my cancer'." CervicalCheck was concerned about media reaction rather than individuals who had been falsely informed they were healthy when they could have taken remedial steps such as those we have heard about in recent weeks. The director general stated earlier he found the memorandum reassuring. If that is reassuring, it is the clearest indictment the committee and perhaps the House more generally has heard of the culture of containment, bury, suppress and protect ourselves at all costs.

I did not bother to read the two follow-up memorandums but I scanned them. The memorandum issued in March 2016 and, according to his own testimony, the director general did nothing about it from that date until he heard about it on the news. The policy of continuing "to prepare reactive communications response for a media headline that 'screening did not diagnose my cancer'" was very successful for two years because everybody, including the media, were kept in the dark for two years until the director general heard it on the news. Frankly, this is an indictment of the Minister, the Taoiseach, the Secretary General, the HSE director general and everyone else associated with this issue and are taking wages paid by the income tax from the people. The absence of humanity, compassion and accountability is a disgrace and I hope Mr. O'Brien, wherever he is en route to meetings in Limerick today, hears loud and clear that he should resign and allow us to reflect on whether the Minister, the Secretary General, I am afraid to say, and others also have to go. This memorandum, which has been in circulation for two years, indicts many more people than its author. I am disgusted. I have no further questions because what we need now are actions from so-called leaders who, in reality, are nothing more than commentators.

Vice Chairman

I am due to speak next but I will ask Deputy Cullinane to contribute now to allow me to take a note of some questions I wish to ask. He will be followed by Deputies Connolly, Murphy and O'Brien in that order.

Deputy David Cullinane

Members have just received the memorandum and are still going through it. We need time to read the full detail and reflect on its content before calling for resignations. However, I share Teachta MacSharry's view that the memorandum crafted in 2016 was a letter of containment.

It was a policy of containment. It strikes me that if I were one of the women reading the memo prepared for the director general and read by him, I would be absolutely livid. What jumps from the pages is that the authors of the memo were basically saying to the director general that he needed to be concerned about the media reaction; not about patients or the women, but about the media reaction. Even in terms of the next steps, nowhere does it say all women should be informed, nowhere does it say anything about open disclosure, and nowhere does it express concern for the welfare of women and patients. Next steps include to pause all letters, await advice from solicitors and decide on the order and volume of dispatch to mitigate any potential risks. I imagine, given the next line, that the potential risks are not risks to individuals but risks to the corporate body which is the HSE. The next step is to continue to prepare a reactive communications response for a media headline that "screening did not diagnose my cancer". It is profoundly shocking that this was the issue which was uppermost in the minds of the people who wrote that memo. Is there anyone from the HSE here - Dr. Crowley, Ms Lennon or Mr. Woods - who can give any response on behalf of the HSE to this memo?

Mr. Liam Woods

I am only seeing the memo and just reading it, no more than the members.

Deputy David Cullinane

Who prepared the memo?

Vice Chairman

It was Stephanie O'Keeffe and John Gleeson. John Gleeson prepared it on behalf of Stephanie O'Keeffe. To be fair, John Gleeson's title is CervicalCheck programme manager, national screening service, health and wellbeing division, and he prepared this on behalf of Stephanie O'Keeffe, national director, health and wellbeing. That is just so that everyone knows who we are talking about.

Deputy David Cullinane

On three occasions, I have called for John Gleeson to appear before this committee. I hope very much that he will be before the committee next week. He should have been here today. My understanding is that John Gleeson was one of those who was central to the circular we had a lot of discussion on, which was then sent to consultants. He is also central to drafting this memo. We have gone beyond expressing outrage at this point. I do not think when I look across at some of the people here that they really understand why we are outraged and concerned. I get blank responses when I look across. I will finish on this because I do not really have anything more to say; if I were any of the women who suffered because of this scandal and who are shocked, fearful and angry, I would be absolutely disgusted by the mindset within the HSE. Writing this memo was about containment and concern about the media reaction rather than for the welfare of the women. Shame on those who did that. Absolute shame on them.

Vice Chairman

I will jump in with a few questions here. I will not be long. I appreciate that HSE colleagues here have only just seen this and we do not know if the Department of Health had a copy of this at the time, albeit we will find out in the coming days. There are three versions. Without putting words in his mouth, the Secretary General said it was likely it was sent on. What jumps out most to me from what we have just read is on page 2 of the memo. It continued on the previous version. It refers, using inverted commas, to "a communications protocol" prepared for consulting clinicians to address their questions. It says the spokesman on matters related to this audit was Dr. Gráinne Flannelly, clinical director of the CervicalCheck programme, who we know has now moved on.

Unless I was chairing a different meeting, I understood earlier from the director general of the HSE that the communications he took to be in the memo and the programme of communications work was obviously with the patients first through the clinicians. This is not how that reads. Anybody reading that can see it does not use the word "patient" anywhere. It says a communications protocol has been prepared for consultant clinicians to address their questions. What about the questions of the women?

The spokesperson on matters related to the audit was named as Dr. Gráinne Flannelly, clinical director of the CervicalCheck programme. I say to all of those here that this should not give comfort that there is a communications process in place with the people that matter the most, namely, the women. It does not. It says, more or less, that there will be a protocol in place to ensure the clinicians are being told.

This is almost as if within the politics of health, it was intended to ensure that there was a protocol to tell the clinicians what was going on here and to name the spokesperson. If that is the memo written by John Gleeson on behalf of Stephanie O'Keeffe and sent to the director general, is it any wonder that the women affected were not told for years in some cases? Is it any wonder? This memo has nothing to do with communications to the patients. It only goes down as far as the clinicians. That is the most devastating part of this. It actualises what we have all been thinking and talking about for the last week and a half. That one paragraph is a communications process being put in place from the HSE through the screening programme for clinicians, not the affected women. It sums up where we are today. That is at the bedrock of where this issue lies.

Chairman-----

Vice Chairman

No, sorry. Deputy O'Brien has been waiting for some time.

Deputy Catherine Connolly

I am not going to allow anyone to speak for the director general because he should speak for himself but cannot speak for himself. A lot of people are making excuses for people who are not here. When Teachta MacSharry is finished, I will come to the witnesses we hope to have in next week, who will shed more light on this because there are a lot of outstanding questions for individuals. Could the Deputy be as brief as possible, please?

Deputy Marc MacSharry

Before we conclude, it is important to review what we have agreed for next week. Before I do that, I believe I can speak on behalf of all members on this issue. Today started for me with the "Morning Ireland" interview with Emma Mhic Mhathúna. Since then, I have spent hours at this meeting and I have found this to be one of the most depressing exchanges the committee has had because of the absolute lack of information forthcoming. There is still serious confusion and nobody wants to take responsibility for anything. This is a source of great irritation to me and I am deeply shocked.

I will make a final point on the first briefing note of March 2016 and the statement in that note that there "is always the risk that in communicating individual case reports to clinicians of an individual patient reacting by contacting the media". The concern was that the women might go to the media and that women should not be trusted. That is the message I get from the briefing note. This is beyond shocking when one considers how this day started for most of the people in the room.

To take up the point made by Teachta MacSharry, it is important that the director general of the HSE appears before the committee again next week. Dr. Holohan tried to do his best to interpret elements of these briefing notes but we have only an interpretation. We need to hear from the people who wrote the notes and the HSE director general who is responsible for overseeing all of this. The correct course of action, therefore, would be to invite Mr. O'Brien to appear again and if he cannot attend, the person who is next in charge, whoever that may be. Mr. O'Brien should, however, make himself available. The Department also needs to be represented and I hope Mr. Breslin, when he returns next week, will have found the correspondence he indicated he started to look for today. It would be great if he had that material next week in order that members could discuss it. He can send it on to the committee at any time. If he does not have it, that would indicate to me that it was never sent. We will find out next week.

The other witnesses we hope to have before the committee next week are Mr. John Gleeson, Dr. Stephanie O'Keeffe, representatives of the National Cancer Registry who, I understand, have confirmed they will attend, the national director of human resources in the HSE and a representative of the Medical Council. All the relevant invitations will issue.

Deputy Jonathan O'Brien

A representative from the National Cancer Screening Service should also attend.

Acting Chairman (Deputy David Cullinane)

Yes. My understanding is that our meeting with representatives from the National Treatment Purchase Fund and nursing homes to discuss the 2016 financial statements will proceed. As a result, there will be two elements to next week's meeting. While it is a matter for the Chairman and clerk to sort out times, I expect the more lengthy of the two sessions will be the follow-up discussion with the HSE. I hope the individuals to whom I referred will be able to make the meeting. It would also be useful to have Mr. Breslin attend.

Mr. Jim Breslin

I have not checked my diary but unless there is something absolutely immovable, I will be here next Thursday.

Acting Chairman (Deputy David Cullinane)

While I am aware that this has been a long day for witnesses and that many of the questions have been robust, they will understand that members have a job to do and must put questions. I thank them for their attendance.

COMMITTEE OF PUBLIC ACCOUNTS debate - Thursday, 10 May 2018

2016 Financial Statements of the HSE

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COMMITTEE OF PUBLIC ACCOUNTS debate -
Thursday, 10 May 2018