Dáil Éireann debate -
Thursday, 29 Jan 1998

Vol. 486 No. 2

Ceisteanna—Questions. Priority Questions. - Action Against Health Board.

Alan Shatter

Question:

1 Mr. Shatter asked the Minister for Health and Children if he regards it as appropriate for a health board to invoke the Statute of Limitations in civil actions in which it is alleged that a health board was negligent in providing protection for children at risk; if he will issue a direction to each health board in the State not to invoke this statute in these cases; if he will arrange for the holding of an independent inquiry into the manner in which a family (details supplied) was treated by the North-Western Health Board in the period from 1978 to 1993 and that the terms of reference of any inquiry include a consideration of the legal strategy adopted by the health board in the court proceedings brought against it and the failure of the Department of Health and Children in the period from 1978 to 1993 to ensure that guidelines issued by it on child abuse comprehensively prescribed the appropriate steps to be taken by health boards in providing proper protection to children at risk. [2257/98]

Minister for Health and Children (Mr. Cowen)

I express my sympathy for the McColgan family on the trauma suffered by the wife and children and express the hope that no child or woman in this country will ever have to endure the suffering they endured. I am pleased the case they took was settled to the satisfaction of all parties. It is important to stress that the settlement was without admission of liability on the part of the health board or the medical practitioner involved.

Deputy Shatter has asked why I did not issue a direction to the North-Western Health Board. Each health board under the relevant health Acts is the body with statutory responsibilities for child care and protection. In the discharge of these responsibilities, each board must act in accordance with the relevant legislation and take full account of the legal advice which is given to it. It must also have regard to its contractual obligations, including those which it has entered into in relation to public liability insurance. In this regard the North-Western Health Board is bound in accordance with normal practice by a clause which gives the sole control and conduct of all claims to the insurer. In the discharge of its functions and the conduct of its business generally, each board is also subject to audit by the Comptroller and Auditor General. Having regard to these considerations and, in particular, the statutory role of the health board, it would be inappropriate for the Minister to issue a direction to the health board in relation to the conduct of a legal case.

The independent review group, established by the chief executive officer of the North-Western Health Board to examine all aspects of the board's involvement in the case, will now conclude its work which was suspended pending the court hearing. I expect the group will be in a position to report within a short period. It is the board's intention to make the findings of this review group public.

The terms of reference of the review group are: to review the board's involvement in the case and to assess its response in the context of both the then current service and the likely level of response today, and to make recommendations to the chief executive officer as the group deems appropriate, to ensure that in any such case the board's response is effective.

Pending the report of this review group, it would be inappropriate for me to comment further on the matter or to pre-empt the outcome of the work of the group.

Mr. Shatter

Is the Minister saying when it came to defending the proceedings brought by the McColgan family, the health board had no input into the legal strategy adopted, that it was dictated by the health board's insurers and, if so, what was the name of the relevant insurance company?

Mr. Cowen

I do not have the name of the relevant insurance company on the file but I will supply it to the Deputy when the hearings are concluded. The advice available to me from the Department is that, in accordance with normal practice, there is a clause which gives the sole control and conduct of all claims to the insurer. I understand it was the insurer who dictated the strategy adopted.

Mr. Shatter

Will the Minister agree, in the context of the family and the four people who suffered such tragedy, it is completely unacceptable that it is an insurance company which dictates the manner in which a State body responds to allegations of gross negligence in its care of children? Will the Minister agree that the strategy deployed in the case could have done nothing except add to the stress, strain and hurt endured by the four individuals who suffered abuse for so many years? Will the Minister accept that legislation should be introduced to prevent health boards seeking to rely on the Statute of Limitations or other legal technicalities, at the insistence of insurance companies, to prevent the truth being known as to the manner in which the welfare of children was addressed by a health board?

Mr. Cowen

As a general rule the proposal that I should issue a direction to each health board not to invoke such defence in all civil actions in which damages are sought against a health board by a victim would have major implications for the handling of all civil actions against State bodies. That is not something with which I can agree. As I said the insurers had the responsibility and adopted a legal strategy. Members will recall that the statute of limitations was invoked in the McCole case.

Under the Acts, the health boards have statutory responsibility. The relationship between the Department and the BTSB is different in that under the Health (Corporate Bodies) Act, 1961, that body was established by order of the Minister and can be amended by order of the Minister whereas the health boards were set up under Acts of the Oireachtas so that there is not the flexibility that may have existed beforehand. The other difference is that the insurers revoked cover in the other case and, therefore, the taxpayer will be the ultimate payer. To that extent, a different situation existed in terms of the Minister's involvement.

In the McColgan case the initial letter to the board from the solicitors acting on behalf of the McColgans stating that a claim was being lodged was received on 21 November 1995. The High Court summons initiating proceedings was received on 13 November 1995. The statement of claim was dated 25 May 1996 and the health board defence was dated 21 January 1997.

The independent counsel I employed to look at the use of the statute of limitations as part of the defence in the McCole case stated then that:

To a lawyer this suggests that the State defendants in the McCole case were not precluding the plaintiff from recovering compensation but putting her advisers on notice that the date of accrual of the plaintiff's cause of action ought to have been included in the statement of claim.

That is an approach which is strictly legally correct. However, to a lay man it may have suggested that the State defendants were attempting to preclude the plaintiff from recovering compensation. That is a reminder of the independent counsel's view of that claim.

Under the clause which deals with these matters so far as the North Western Health Board is concerned, the people who had sole control over the case were the insurers. That was a line of defence that was invoked. I am not suggesting it was justified or appropriate in this case. I am simply saying the decision to do that lay with the insurers.

An Leas-Cheann Comhairle

I call the Deputy for a final supplementary.

Mr. Shatter

This is a very serious issue and has wide implications. Will the Minister acknowledge that a health board determining whether children should be taken into care and the action to be taken when there is a suggestion that a child or children are being abused, is exercising its responsibility in this area on behalf of the State, as devolved to it by the Oireachtas? In those circumstances does the Minister regard it as appropriate that if the health board fails to adequately comply with its obligations and if due to the gross negligence by a health board children continue to be tortured and abused and the health board is subsequently sued, neither it nor the State is accountable for its failure? Will he agree the responsibility to determine how such allegations should be dealt with in court proceedings should not be abdicated to insurance companies and acknowledge that the strategy deployed in this case by whoever was responsible — the insurance company or the health board — was inappropriate, based on the tragedy which befell the family, and that, if successful at an early stage, the truth would never have been discovered that there was adequate information available to the health board as early as 1979 that would have facilitated the bringing of care proceedings under existing law?

Mr. Cowen

On the specific issue of the statute of limitations, the defendants in this case claimed that a statement of claim had not been lodged within three years of Miss McColgan reaching the age of majority. The plaintiffs argued that she had sought an exemption on the basis of incapacity. This issue was not resolved by the court as the defendants decided to settle. We are all glad about that.

On the general issue, I agree health boards are responsible under statute for the provision of child care services. It has been admitted in cross-examination that these services were in their infancy during the period in question. This in no way mitigates or justifies what happened to the McColgan family who have been rightly compensated. Monetary compensation will not compensate them for the loss of their childhood but it is an acknowledgement that compensation was due in this case.

It is clear the health board is accountable. A group has been established to review the matter. It will review the health board's involvement in the case, assess its response in the context of the adequacy of the services then in place and the likely response today to see what lessons have been learned, and make whatever recommendations it deems appropriate. I expect to receive its report in mid-February or early March. We can then assess how the gaps should be filled. That is where the matter stands in terms of the response of the health board.

Mr. Shatter

It is clear I will get no satisfaction from the Minister on this issue. Is he saying the strategy employed in this case was an appropriate one and would be an appropriate one if a further case emerges in which a health board was in gross dereliction of its duties? In the context of the fallacy or myth to which the Minister is contributing that what occurred to the McColgan family is due to the fact that child care services were in their infancy during the period in question, will he agree it is desirable there should be a wider inquiry ordered by him which would be concerned not alone with the approach taken by and the failures of the health board but the approach taken by and the failures of his Department throughout the 1980s to properly address issues relating to child care and children at risk?

The difficulties in this area and the inadequacies of child care services were well known in 1981 when three children died at the hands of parents who had come to the notice of health boards which failed to take appropriate action. Is the Minister aware that in 1982 when his colleague, Deputy Woods, was Minister for Health an entire Question Time was devoted to the adequacy of child care services? I asked the then Minister if he would agree there was grave disquiet and lack of confidence in the procedures then in place for the protection of children. He assured the public that everything was in order and made comments similar to the comments made by the Minister that no other family should be so affected.

Will the Minister agree the strategy deployed in this case was indefensible and should not be deployed again? Will he agree the wider issue of why the McColgan children suffered so greatly and were treated so negligently by the health board should be dealt with as well as the degree to which the Department has monitored properly the child care duties of health boards during the past 15 years and the correctness of the advices given by it with regard to child care guidelines under a succession of Ministers?

Mr. Cowen

I am not here to defend the strategy employed by the insurers in this case, rather I am outlining the available facts.

Mr. Shatter

The Minister can override the health boards and ensure they do not abdicate their responsibilities to insurance companies.

Mr. Cowen

The reality is that sole control rests with the insurer. That is normal practice.

Mr. Shatter

Normal practice can be changed.

Mr. Cowen

I do not regard it as appropriate but the claim of negligence was not made against me. People devise strategy based on legal advice. From a layman's point of view, the strategy was objectionable.

Mr. Shatter

The Minister is in a position to do something about it; he can change practices which are outdated and inhuman.

Mr. Cowen

The Deputy is a legal practitioner. If someone brings a case to him and he can see there was a failure to take all courses of action to defend it, he would probably be the first to advise whether the previous adviser was competent or negligent. The issues are clear. I wish to ensure in so far as I can that this does not happen again. This is a horrific case and many of the things that happened are unmentionable. There is no question of anyone seeking to understand the behaviour which gave rise to the action——

Mr. Shatter

Or the strategy deployed in response to the proceedings.

Mr. Cowen

I have explained what independent counsel advised me to do in relation to an issue I investigated in a previous case. I share the view that this is an appalling case. I would not deem as appropriate anything that would stop the family getting their rights.