Leaders' Questions

We learned from Ms Susan Mitchell in the Sunday Business Post last weekend that the Government hired private investigators to spy on hospital consultants as part of a strategy to fight a pay claim pursued by these consultants, which is currently before the High Court. As part of a Government strategy, it seems that Ministers or their Departments authorised the hiring of private investigators to follow about ten consultants and place them under surveillance in their daily lives to try to collect and gather evidence against them regarding alleged non-compliance with their contracts. At a Cabinet meeting on 14 February 2017, apparently, the Government decided on a strategy to defend these cases and specified that non-compliance by consultants with the contract should be a particular line of defence.

When senior HSE management heard about this practice and objected, an attempt was made to stop it. The executive's solicitor wrote to the Office of the Chief State Solicitor stating that it was inappropriate. However, the Department of Health wrote back and stated that it had the backing of the Departments of Finance, Public Expenditure and Reform and Health, that the surveillance must continue and that, in the context of the consultants and the High Court case, any evidence of non-compliance must be gathered.. It is my sincerely held view that, irrespective of the issues on the pay side, this sets a very sinister and dangerous precedent. Ministers and or their Departments should not order surveillance on citizens or on employees of the State. Without question, this is wrong and a potential abuse of power. Who is next? Will it be ESB workers who are pursuing a pay claim? Will it be bus drivers and rail drivers? Is anybody else out there pursuing a pay claim fair game?

Will the Taoiseach confirm that the Cabinet decided on such a strategy and that it was aware of the strategy pursued and of the hiring of private investigators? Does he accept that the constitutional right to privacy of these consultants may have been breached? Will he guarantee that patient data was not breached? How is one to check as to whether on-site activity is public or private without potentially breaching the files? Was a contract entered into between the Departments concerned - or their agencies - and the private investigators? What guidelines and protocols governed the behaviour of these private investigators while they carried out this surveillance of doctors, of which the latter were unaware? I would appreciate very specific answers to these questions I have asked. In particular, will the Taoiseach confirm whether the Ministers involved authorised, and were aware of, this surveillance?

I thank the Deputy. As he is aware, a court case on this matter is under way and even today there are negotiations on the possibility of settling the case to the satisfaction of consultants and the Government which, of course, is tasked with protecting taxpayers' money and money that should be going towards providing a better health service for patients. This case is active and negotiations are under way and, as a result, I am obviously limited in what I can say in response to the question.

What I can say is a huge number of consultants in the country work very hard and work well beyond the hours for which they are contracted. They deserve our thanks and respect. We also know, not from the Government but from "RTÉ Investigates" that there are other consultants who breach their contracts and who work full-time in private and public practice, which is impossible. We have seen from "RTÉ Investigates" that there are consultants who breach their contracts and who work in private hospitals when they should be in posts in public hospitals and who see more private patients than they are supposed to see. This is a serious issue because it is money and time that should be dedicated to public patients, many of whom have been on waiting lists for a very long time and who are facing overcrowded conditions. Let us not forget that the case the consultants have made is that the State breached their contract. What sort of case do they have if it turns out they actually breached their own contract? If their case is that they deserve money, compensation, hundreds of thousands of euros - or perhaps millions - for each individual at the expense of the taxpayer and if it is based on the idea that the State broke their contract, they do not have a case if they broke their own contract also.

It is not unprecedented for the State or its agencies to use investigators or inspectors when it comes to issues of this matter. We have, for example, welfare inspectors who check to see that people are genuinely disabled if they are in receipt of disability benefit or invalidity benefit. We have people who check on individuals to ensure that they are not claiming welfare while also working in the black economy. We have tax inspectors, part of whose role is to check up on people in all parts of society to see whether they are compliant in the context of paying tax. We had Revenue inspectors, for example, counting the number of chip bags that come out of a chip shop to see whether the owner is complying with the law.

This should not be considered an unprecedented action.

To answer some of the specific questions asked by the Deputy, the HSE's legal representative, Philip Lee, engaged private investigators to examine the practice of these three individual consultants. The Departments of Health, Finance and Public Expenditure and Reform were aware of this approach-----

-----and had no particular issue with it as it was being done to gather evidence to support the HSE's counterclaim relating to consultants not compliant with their contract.

Were the Ministers aware?

Philip Lee wrote unexpectedly to the Office of the Chief State Solicitor on 6 April seeking confirmation that this approach was appropriate. Both the Departments of Health and Public Expenditure and Reform confirmed it was appropriate and that it should continue. There was, however, no Cabinet decision on the matter. A letter to that effect issued from the Department of Health on 19 April to Philip Lee.

Were the two Ministers aware of this and did they authorise it? Will the Taoiseach give me a straight answer when I ask specific questions? I did not ask about the pay claim but I am aware of it. If the Taoiseach consulted the report by the director of the HSE to the health committee in December last year, he could have seen fully his position on the public-private split.

I asked the following question: a strategy was approved but were the Ministers aware of his and did they authorise this? The Taoiseach is fundamentally wrong. Is he aware of the Data Protection Acts? Does he think the Government and Ministers can wilfully violate and ignore those Acts? I asked if any legal contract had been entered into with the private investigators because such a contract would at least indicate some attempt to ensure compliance with the Acts. Is the Taoiseach aware of Mr. Justice Herbert's comments in the High Court about covert surveillance of employees in Sweeney v. Ballinteer Community School, where he said it amounted to malicious harassment of the individual concerned? The Data Protection Commissioner has articulated quite significantly on this matter over the past two to three years. The Taoiseach is cavalier and he articulated to The Irish Times on Monday the idea that because RTÉ does it, the Government can do it. Is the Government's new ethical code that whatever the media can do, it can do so as well? Social welfare inspectors are governed by a legal code and successive statutory provisions over the years governing those activities, which balance the rights of citizens versus the rights of the State. I want honesty from the Taoiseach and he should be straight up.

The Deputy's time is up.

It is unacceptable, irrespective of who is involved. The Taoiseach might take the view, as he often does, that consultants are fair game and we can take chances or risks with their constitutional rights. Sure nobody will worry about consultants because we all know, etc. That is despite Mr. Liam Woods saying the opposite in his testimony to an Oireachtas committee. If the Taoiseach sets a precedent with one group of citizens, other citizens will be vulnerable.

Please, the Deputy's time is up.

The Taoiseach cannot play fast and loose with our Constitution, and he cannot play fast and loose with people's rights under the Data Protection Acts.

I asked about data protection for patients and I got no assurances from the Taoiseach in that regard.

"RTÉ Investigates" did the country a service by using private investigators to follow some of these consultants who were in breach of their contract. A consultant or anybody working in the public service receives taxpayers' money-----

I am talking about the Government's actions.

They receive public money that they are supposed to use in the interests of patients, students in schools and the people they are supposed to look after. Any person in breach of a contract such as a consultant moonlighting in a private hospital when he or she is supposed to be working in a public hospital is damaging the interests of patients who are not seen and is also taking money from the taxpayer in a wrong way.

The Taoiseach is judge and jury now.

I have no reason to have any concern that patient data were compromised in any way.

I do not know if there was a legal contract with the private investigators. The Cabinet agreed that compliance with the contract should be part of the defence but there was no ministerial involvement in the execution of the strategy.

It is a Cabinet without Ministers.

On a point of order-----

There are no points of order.

Were they aware of the strategy? Yes or no?

Please, Deputy Martin.

We are not getting the answers.

The Department of Health maintains the view it was necessary to pursue all avenues in the gathering of material relating to non-compliance in order to put forward the strongest possible defence in line with the Government decision. The use of private investigators and surveillance work is not unusual in defence and prosecution cases before the courts.

I thank the Taoiseach. He is over time.

The Department's legal adviser for the cases has confirmed this.