I welcome the opportunity to address the committee on the handling of the nursing home charges by the Department of Health and Children and the issues raised in the Travers report. I have refrained from any comment in public until this meeting, and out of respect for the work the committee is doing. Some points have been made in public and I wish to avail of this opportunity to respond to them in my presentation. Apart from responding to the content of the report I will also respond to some of the comments made in public since its publication.
As Secretary General of the Department of Health and Children from January 2000 to April 2005, I accept responsibility for the corporate performance of the Department, including any failings over that period. In reaching judgment on that performance I ask the committee to take account of the many positive achievements of the Department in that period, despite the ongoing acute pressure on the health system and the Department, as well as the issues under examination in this report.
The health system, including the Department, is recognised as a high-risk environment. One of the ongoing aims of legislators, policy makers, managers and practitioners is, in the context of providing a high-quality service, to try to limit that risk and to manage the residual risk as best they can. This requires that judgments are constantly made on the best course of action at any time. In regard to legal matters, particularly, public officials would by instinct err on the side of caution.
In understanding the background to the nursing home charges issue it is helpful to ask why public officials in the Department and in health boards, would put themselves in the position of collecting charges from older people and other high-dependency groups in the knowledge that there were doubts about the legal basis of doing so. Why would people willingly put themselves in this position? They would not elect to do so.
As the Travers report points out, it is a position that has evolved over a long time based on a particular interpretation of the law, made almost 30 years ago. In my mind the main issues that confirmed people in their belief that prevailing practices were in order were the chronic pressure on available resources as reflected in a significant level of unmet demand in each of the service sectors concerned, services for older people, people in the mental health area and those with a disability — a deficiency that continues to this day — along with an ingrained desire to do the best they could for people in their care, coupled with an inherited belief that this was settled policy.
This is not to excuse the practice of raising charges without a sound legal basis but rather an attempt to explain why it could have continued on this basis for so long without being fundamentally questioned and changed. It is necessary to think about the context and the exact circumstances in which these events occurred over that period. It is not sufficient to look in a mechanical way at facts A, B, C, D and E without considering the wider context in which these things occurred.
In regard to the most recent period, since the legal opinion obtained by the South Eastern Health Board was made available to the Department in early 2003, the Travers report sets out the chronology of relevant events in the Department. I made a statement to Mr. Travers setting out my understanding of key events in respect of the period December 2003 to October 2004. That statement appears at paragraph 4.57 of the report. I stand over all aspects of that statement setting out the relevant facts as best as I can recollect them. I will give all possible additional assistance to members of the committee in providing any additional clarification I can on the content of that statement.
Following publication of the Travers report several statements have been made which I interpret as casting doubt on my bona fides in providing information or briefing to the Tánaiste on this matter. I take these allegations seriously given my track record of, as I see it, professionalism, my strong sense of integrity and the value I place on my reputation and good name.
On the matter of briefing, the Tánaiste has rightly pointed out that she was not briefed by the Department on this matter until after it was raised with her in the Dáil. As a matter which had been recognised as of serious significance by me and others in the Department in January 2004 this calls for explanation. The explanation is twofold. First, for a variety of reasons the response to the nursing home charges problem had gone off the boil in my mind, and in the Department generally, during 2004. I am not excusing that, I am simply setting it out as a matter of fact. This reflects the fact that officials of the Department saw current practice as a settled policy, believed the matter was receiving attention and that minds were concentrated on other white heat pressures on the Department during 2004.
It is also the case that prior to receiving the advices of the Attorney General on 5 November and 8 December the legal certainty of the issues facing the Department was not recognised. While the Department had concerns about the legal position it was not working at that stage on the assumption that the charges were illegal. The subsequent receipt of the legal advice from the Attorney General in November and December changed this position radically. In my own case, the fact that the folder containing the submission and covering letter to the Attorney General, prepared in January 2004, was not returned to me, combined with the extreme pressure I was under on other issues of obvious high political priority, are the underlying reasons for this particular issue not being followed through. I do not excuse this but I am trying to explain the facts around it.
I believe, however, the arrangements for providing detailed briefings to the Tánaiste and Minister for Health and Children, on the Department's overall business are also a factor. The Tánaiste has described a two-hour briefing meeting on 4 October 2004 as the occasion in which this item ought to have surfaced. I believe the reason it was not raised at this meeting was because it was intended as an introductions meeting to provide only a high level flavour of the main business issues and priorities then facing the Department across the broad expanse of its responsibilities. That expanse has been adequately described by Mr. Travers in his report.
This was the first occasion in which the Tánaiste and advisers met most members of the top team in the Department. The meeting was attended by 18 people and lasted approximately two hours. At my request each member of the management advisory committee, MAC, ten in all, prepared a one to two-page summary of key business issues in bullet point format. I deliberately insisted each member should confine his or her coverage of issues in this way so that the Tánaiste would have the opportunity to hear a quick summary of the most pressing business agenda items across the Department. Out of necessity, this and the brief discussion on 4 October concentrated solely on high priority and urgent policy questions and service pressure points. As the significance of the nursing home charges, prior to receiving the formal legal advice of 5 November, was not then seen in that light, it did not surface at this brief introductory meeting designed to provide an initial high level overview. It is of significance that this was never intended as the detailed briefing for the Tánaiste.
By agreement with the Tánaiste I had arranged that each member of MAC, with his or her team of principal officers, would meet the Tánaiste as quickly as possible to provide a detailed briefing on all relevant issues in his or her respective areas of responsibility. These meetings were set up and scheduled to fit in with the Tánaiste's diary. Had they proceeded, I am confident that the nursing home charges issue would have been raised in the briefing by the planning and evaluation unit.
All these detailed briefings, however, were subsequently cancelled by the Tánaiste's private secretary, presumably on the Tánaiste's instructions. They were subsequently rescheduled, although some have only taken place within recent weeks. I believe this followed a memo I sent to the Tánaiste's private secretary in early January, setting out my serious concerns about the lack of detailed briefings taken up by the Tánaiste to that point. I asked that this matter be raised with the Tánaiste on her return to the Department on 19 January.
I believe the full explanation for the absence of briefings to the Tánaiste lies in the combination of the two factors above. In fairness to the professional reputations of the members of the MAC and quite apart from my own, I believe it would have been helpful to a full understanding of the position regarding briefings if the full facts around it had been presented in earlier public statements on this matter.
At the Tánaiste's request, I prepared a report on the nursing home charges which was circulated to the Government meeting of 14 December. It was appended to the Tánaiste's statement to the Dáil on 16 December 2004. The context in which this report was prepared, was one where the primary political focus had already moved to taking the urgent legislative and administrative steps, adjudged to be needed to rectify the problem, in light of the advices from the Attorney General on 5 November and 8 December 2004. The Tánaiste had emphasised to me, and other officials, that she was not concerned with the "blame game" and the concentration should be on working out the best solution for the future. That is the spirt in which my report of 13 December was prepared. The request to prepare the report arose in a telephone call I received from the Tánaiste at around 6.30 p.m. on Friday, 10 December. The request was for a short report setting out the chronology of recent events, particularly following on the receipt of legal opinion by the South Eastern Health Board.
I agreed that I would work on the report over the weekend of 11-12 December. Given the timing of this request, the absence of key officials who would have been familiar with the relevant papers and the concentration of other key staff over that weekend on the preparation of the draft Bill, regulations and covering memorandum for the Government for the following Tuesday, 14 December, I worked unaided on its preparation. This involved a search of whatever papers I could gain access to over the weekend and preparation of a draft report on that basis. Owing to other urgent business commitments on the following Monday morning, 13 December, it was late in the morning before I could resume the task of refining the report for presentation to the Tánaiste later that evening.
In the course of preparing the report, I found I could reasonably and confidently track events up to the point of what happened to the January 2004 submission after my consideration of its content. While my recollection was that it had gone to the then Minister to see before issue, I could not find documentary evidence to support this. My own recollection was not absolutely clear.
A question has been raised in the statement by the Minister for Enterprise, Trade and Employment, Deputy Martin, at paragraph 458 of the Travers report why the submission would have been referred to the Minister given that the letter to the Attorney General was for my signature. I believe this question reflects a very mechanical and simplistic approach to the relationship between a Minister and Secretary General of a Department. In practice, the relationship is usually more dynamic. My approach would have been to alert a Minister in advance to any issue that I believed had the potential for significant, legal, financial and political implications. My experience of working with the then Minister for Health and Children, Deputy Martin, suggested he also saw the relationship operating in this manner. It is also my experience from working at senior levels with other Ministers in the past that they would also have expected to be alerted in advance to issues of this kind.
In explaining subsequent events and contacts, it is necessary to explain the working relationship I had with the then Minister for Health and Children, Deputy Martin. This relationship had developed over five years and was built on mutual respect and trust. It operated at both formal and informal levels. There had equally been informal and constructive business relationships in place with the then Minister's advisers. In these circumstances and in a context where the declared purpose of the report was to explain what had happened rather than apportion blame, it seemed perfectly natural to seek clarification from the then Minister, Deputy Martin, as to his recollection of relevant events. I did not see anything unusual or untoward in seeking his assistance given that he was the responsible Minister over the period in question.
My meeting with the former Minister, Deputy Martin, took place in his office at the Department of Enterprise, Trade and Employment on the evening of 13 December. My recollection is that some but not all of the meeting was attended by one of his advisers. At the meeting I explained the nature of the report I had been asked to prepare and recounted my recollection of events, including my belief that I would have referred the folder to him to see before issue. I pointed out the incongruity of my having taken urgent steps involving significant effort on the part of the Department to seek definitive legal advice in January 2004 and then not following through, particularly against the background of the detailed discussion and decision taken at the Minister's MAC-CEO meeting in December 2003. The Minister, Deputy Martin, indicated that while he was not doubting my integrity, he had no recollection of having previously seen the January 2004 submission and covering letter. He also pointed out that as the letter had been prepared for my signature, there was no obvious reason for sending it to him. The discussion finished on this note and I indicated that I would finalise my report in light of the discussion.
I returned to my office and resumed work on finalising the report. Given the inconclusive result of my inquiries, the limited time available to complete the report and the nature of the report, that is, seeking to explain rather than attribute blame and high level rather than detailed, I did not address the reasons for the non-referral of the January 2004 position paper to the Attorney General but simply recorded that it was not issued until October 2004, following intervention by the Tánaiste. This was a judgment call I made in the specific set of circumstances facing me at that time, in particular given the time constraints within which I believed the report had to be finalised.
The key facts as I saw them were that the South Eastern Health Board had obtained and shared with the Department the legal opinion it had obtained. The Department along with the chief executive officers group considered the implications of this advice over a period, culminating in the decision to seek a definitive legal view in December 2003 and January 2004. Despite obvious intent to do so and for as yet unexplained reasons, this had not been done until October 2004 following the Tánaiste's intervention. I finalised my report on this basis. In doing so, it was my intention to follow up with my own further inquiries seeking hard information on the reasons for the Department not acting on its own openly stated intentions. It had also been my intention to discuss the report with the Tánaiste, particularly with regard to the difficulty in pinning down the fate of the January 2004 submission, but for a variety of reasons the opportunity to do so did not arise between the time my report and other documentation were completed at 10 p.m. on 13 December and the Government meeting the following morning, 14 December. After that meeting, the immediate short-term concentration in the Department switched exclusively to preparations for the introduction of the relevant legislation and settlement of the arrangements for the ex gratia scheme.
With the benefit of hindsight, I have to concede that the judgment I made on the drafting of my report left my actions open to misinterpretation. On reflection, the better course to have taken would have been to indicate that further time was needed to complete the report, which would have enabled more extensive inquiries to be made more widely within the Department. For example, I was not aware at the time of my report that there was third party evidence to corroborate my own belief that the relevant folder had been referred to the Minister's office. I hope that in the context of this statement, my true intentions, the tight time constraints involved and the lack of support available to me have been made clear. This is the first opportunity I have had to provide an explanation of that particular incident.
Earlier public comments by the Tánaiste have identified the deliberate withholding of information by me as the reason for her view that my position as head of the Department is no longer tenable. I wish to take this opportunity to make clear my position on this very serious allegation. I am doing so in light of my earlier comments on the content of my report of 13 December. In particular, I emphasise the nature of the report I was asked for, the no-blame context of that request, the limitations within which I worked in terms of people, time and access to papers over the weekend of 11-12 December, the inconclusive nature of my inquiries regarding one aspect of that report and my acknowledgment that the broad-brush treatment of the non-referral of the January 2004 submission, though done with the best of intentions, is, with hindsight, open to misinterpretation. It is possible to take either a benign or malign interpretation and in this case the interpretation taken has not been benign.
At all times, I and other officials of the Department have been open and above board in dealing with this matter. The discussion in December 2003 was an open one, involving a large group of people from the Department and the health boards as well as Ministers and advisers. The agenda and briefing documents for the meeting were formally prepared and widely circulated, as were the minutes of the meeting. The subsequent work undertaken in the Department in January 2004 involved a group of eight people and led to a formal submission, again reflecting a very open and participative working method. Copies of all documents were kept on file and that file was available to anyone who wished to view it. The Travers report makes specific reference to the open, co-operative approach taken by all members of the Department staff with whom Mr. Travers had contact.
The withholding of information in the manner suggested would be totally out of character with the Department's overall approach as reflected consistently by the actions as noted. It may be that the reference is to the fact that much of the detail regarding practice by health boards or in some of the legal opinions provided over the years was not made available at the time the Government was making its decision on the legislation. However, the explanation for this is straightforward. I was asked to prepare a report, within a very tight timescale, on the chronology of events in 2003-04. I was not familiar with this aspect of policy or the earlier background to it. That fact was established by Mr. Travers early in his examination.
The information that emerged under the headings above did so as a result of an extensive discovery of documents undertaken by a team of Department staff over a number of months in preparation for the reference to the Supreme Court and the Travers examination. This was a huge task and involved the identification and search of 657 files and a scheduling of 3,555 documents. A search was also undertaken by the Department of Finance, which yielded further documentation previously undiscovered in the archive of the Department of Health and Children. This discovery process yielded a huge volume of additional information about previous consideration by a number of different divisions in the Department at various times over the past 30 years of the legal issues surrounding the nursing home charges. However, I had no previous reason to be, and was not, in December 2004, in possession of knowledge of the detailed content of these past exercises, neither had I examined the various legal advices dating back to the 1970s. Any suggestion that I knowingly withheld information in this context does not stand up to scrutiny. In order to knowingly withhold information it is first necessary to be in possession of that information. That was not the case.
In developing and understanding what led up to the political decision to seek to legislate retrospectively, I have reviewed the relevant documentation, including legal advices, and I am quite clear that the motivation for doing so was financially led, and that the legal advice being offered was consistently in favour of legislation with retrospective effect. I acknowledge that all this was prior to the rigorous discovery of documents I have referred to, and that in light of some of the documents so discovered, the legal view seemed to be less resolute at later stages. It is a fact that none of the key actors involved in the decision taken in December 2004 to opt for legislation with retrospective effect could have been in possession of the facts which later emerged as a result of the discovery of documents in January and February 2005.
I was not personally involved in the process of consultation with the Office of the Attorney General but my expectation would be that all relevant facts, documents and so on, in so far as they were then known, and regarded as relevant by the officials concerned, would have been made available to the Office of the Attorney General as required. I am not aware that any allegation of withholding information which was knowingly in its possession at any point in time has been made against the Department corporately in regard to this process.
The report I prepared for the Tánaiste followed on the receipt of legal advices from the Attorney General. With regard to the legal issues involved, it set out my understanding of the relevant issues at that time. It also took account of the advices received up to this point from the Office of the Attorney General. I draw the attention of the committee to one sentence in particular in paragraph 3(3) of that report. It reads: "While the legal basis for this practice has now been questioned, the Department and health boards have stood over the practice in the bona fide belief that it was legally defensible." The practice referred to was the removal of medical cards in accordance with the terms of circular 7.76. The reference to "bona fide belief" was, I believed, consistent with a view already expressed in advice from the Attorney General that the 1976 circular incorrectly stated the law, but that it appeared to have been a bona fide interpretation of the law.
I emphasise again that this view was expressed prior to the extensive discovery of documents to which I have referred. I believed that this sentence from my report accurately reflected the state of mind in the Department and in health boards generally, notwithstanding the legal opinion obtained by the South Eastern Health Board. As the Travers report has outlined, there were many considerations apart from the legal opinions obtained by different parties over the years behind the belief that the practice of charging was justified and could be defended if opened to serious legal challenge.
It has been suggested that the policy of settling rather than defending cases where the charges were challenged would not be consistent with the view that the practices around charging were defensible. I have not been directly involved in any of those cases but I have to assume this was based on a weighing of the level of risk and quantum of financial exposure in individual cases. More recently, any such judgments would have been made in a context where it was clearly intended that the entire legal framework around charges would be rationalised and put on a sound footing in the context of an overall review of eligibility legislation. Against the background of the legal advices obtained in November and December 2004, and the judgment of the Supreme Court, this long-held belief is now shown to be legally unfounded. However, in describing what I believed to be the position prior to both of these events, I stand over the position outlined in my statement of 13 December in this regard.
There is a series of findings and recommendations in the Travers report, some of which I fully agree with and some with which I completely disagree. I would be more than happy — although I will not do it right now — to discuss each of those individually with the committee if that is required.
However, I would like to make several general points about the Travers report. As Mr. Travers acknowledges in his report of March 2005, staff at all levels of the Department of Health and Children responded to his inquiries in an open and professional manner. They did so on the assumption that a fair view would be taken of the Department's actions regarding the matter in question over the past 29 years. I should make it clear at this point that neither I nor any other member of staff of the Department was given an opportunity to read or comment on the report in its entirety before presentation to the Tánaiste. Given its overall tenor, set against assurances provided by Mr. Travers at the outset, and the fact that those underpinned the basis on which departmental staff co-operated with Mr. Travers, I have difficulty accepting the assurances given were honoured, particularly in my own case. I will return to that point later.
I cannot, in light of the judgment of the Supreme Court, argue with the central thesis that the judgment made on the matter at senior level in the Department over the years, including my own period of stewardship from 2000 to 2005, was mistaken, and that the failure to act on the legal doubts expressed reflected a form of maladministration. However, that judgment is now being made on the basis of 20-20 hindsight. The actions taken or judgments made must all be judged by reference to their context and the circumstances prevailing at the time. While I believe that the report is strong on describing the main facts of what happened, I am less convinced about the depth of understanding portrayed of either context or circumstances.
The report succeeds in drawing together a series of events and views that occurred or were expressed over a period of 29 years by different generations of departmental officials in a variety of its divisions. It also provides a lucid description of the somewhat complicated issues surrounding eligibility for health services. This is a worthwhile exercise in itself, but it is of significance in appreciating the depth of knowledge about the past that informed recent decision-making in the Department that this, to my knowledge, is the first time that it has been undertaken on such a comprehensive scale.
While that certainly points to a weakness in the Department's approach to analysis of policy questions with such a long history, it is a fact that such depth and breadth of investigation of all possible references to charging over the past 29 years had not previously been undertaken. Therefore, the detailed knowledge required of issues with such a long history was not readily accessible to officials of the Department, or to me, in putting forward any views offered before January 2005. The basis on which Mr. Travers was enabled to put so comprehensive report together was that a rigorous discovery of documents was undertaken by the Department to support both the reference to the Supreme Court and the Travers examination. That involved a team of 35 officials working over a period of 12 weeks, from 16 December 2004 to 9 March 2005, and involved an examination of over 650 files and the scheduling of almost 4,000 documents.
It was as a result of that discovery of documents that much of the history of the matter during the 1970s, 1980s and early 1990s was charted. That point is vital in appreciating the state of knowledge and mindset of officials of the Department, including myself, in offering any views up to and during the period of the discovery process. The significance of that point has been overlooked or discounted in judgments that have been made and applied in public statements already made.
While the report is strong on probing the actions of officials, mainly by reference to the presence or absence of formal documentation, it seems to employ much less rigour in analysing political action and inaction over the years. It is clear to me from the papers I have read that there had been strong political undercurrents relating to this issue since 1976. It is a fact that Ministers are not in the habit of expressing their views or reasons for action or inaction on paper. It is therefore no surprise that the documents reviewed by Mr. Travers are largely silent on that score.
However, subtle clues are easily discernible. They can be readily interpreted by readers with experience of how the subtle relationships between the political and administrative levels in a Department such as the Department of Health and Children have operated over the years. I believe that political reluctance was an issue in 1976 and 1979, and in 1987. The report's assessment that a simple technical amendment to correct the defect in the Health Act 1970 would have encountered little public or political resistance is naive. The need to address this issue was clearly articulated in the report of the Commission on Health Funding of 1989, the health strategy of 1994 and in Quality and Fairness: A Health System for You in 2001. I am not aware of any Minister, other than the late Deputy John Boland, having shown wild enthusiasm to get on with this legislation until there was no other option. Ultimately, it is the Minister who proposes the legislative programme for the Department.
Among the criticisms of the Department set out in the Travers report is a failure to recognise and act on what are termed "issues of singular importance". While I can readily accept the principle behind that, I do not believe it has the relevance attributed to it by Mr. Travers to in this context.
First, let me offer a view informed by the perspective of having actually performed the role of Secretary General of a Department such as the Department of Health and Children for a period of five years. There is no difficulty in identifying such issues in the Department of Health and Children, since they arise with great frequency and varying levels of urgency. Today's urgent problem may well be overshadowed and pushed down the agenda by what the following day or week throws up. Given the broad span of the Department's responsibilities, the nature of its business and the close political and media attention it receives — all acknowledged in the Travers report — crisis management in this sense places ongoing demands on the management and staff. Therefore, identifying issues of so-called "singular importance" is not the challenge. Being able to address all the issues of such importance all the time with limited resources presents great ongoing challenges, however.
In examining the specific matter of nursing home charges, an explicit decision was taken that it would be dealt with in the context of the overall commitment set out in Quality and Fairness: A Health System for You to update and clarify the entire eligibility framework. That position was agreed by the then Minister. I continued to believe that it was the appropriate way to deal with the matter. The reasons are twofold. First, a fundamental policy issue such as eligibility and entitlement should ideally not be approached on some piecemeal basis. Arguably, it is that type of approach that produced the very problem being examined in the Travers report. As a professional policy-maker, therefore, I would have argued strongly for taking a unified look at all relevant aspects of the eligibility framework, and that was the process set in train in the Department in 2002.
There are also other reasons for such an approach. In my various discussions with the former Minister for Health and Children, Deputy Martin, about what needed to be done regarding eligibility following the health strategy commitments thereon, I pointed out the degree of ambiguity and anomaly reflected in the current provisions, particularly regarding community-based services. In the context of the strategic move towards a health system centred on primary care, coupled with a clearer expression of entitlements, the pressure on resources would all be in the direction of expansion. The review of eligibility arrangements is likely to lead to a clearer statement of entitlement for a larger group of service-users, for a broader range of community-based services. If that was to be manageable regarding overall expenditure levels, it was possible that further adjustments might be required in such areas as institutional services, the rationalisation of drugs schemes and the charging regime generally.
I am mentioning these as issues that would have been in my own mind as part of an overall construct regarding eligibility. My belief was that a balanced package of reform on eligibility providing some overall improvement would find stronger public acceptance than if particular aspects were treated in isolation. My recollection is that the former Minister for Health and Children, Deputy Martin, and I were in agreement that that was the better approach.
That remained the position up to December 2003, when the question of a stand-alone amendment on charges was reopened. I would therefore not agree with the Travers analysis and findings on this aspect of the report. However, I am in full agreement with many of the other parts of the analysis and findings. In particular, I agree that the culture of the Department over the years has leaned too far in the direction of facilitating ease of manoeuvre at political level. Policy decisions that go against the weight of evidence and the underlying reasons and differences of view should be formally expressed on paper.
The unreserved acceptance at political level of the conclusions and recommendations of the report should also generate welcome new momentum in being seen to fully meet both the spirit and letter of freedom of information legislation. The change in expectations now apparent at political level will bring considerable relief to many civil servants who feel torn between their public service obligations and their professional need to maintain a constructive working relationship with the political level.
The report is also useful as regards the position of special advisers. Notwithstanding the relevant legislative provisions in this regard, it is the case that relationships had developed in practice which reflected a degree of authority being invested in advisers which was excessive relative to their formal role as set down in legislation. It had become commonplace for decisions and directions by Ministers to be conveyed through advisers. In my own experience this position obtained on significant policy issues in the Department of Health and Children up to very recently. Civil servants in the Department of Health and Children, and probably more generally, will welcome the new clarity around these key relationships The report also provides an opportunity to examine more closely the role of Ministers of State assigned particular areas of responsibility. I do not wish to offer any further comment on that.
Apart from the content of the Travers report, the process in place around its presentation and in the follow-up to its presentation to the Tánaiste, left much to be desired. The practices followed did not meet, in a number of respects, the standards required of good public administration — or indeed, the requirements of natural justice. In the opening stages of his examination, Mr. Travers met with me on a number of occasions and we established a positive working relationship, acknowledged in the report. At that time I was also approached by staff representatives and unions, inquiring about how the legitimate rights and interests of staff members would be protected in the course of the examination. Among the issues raised by staff was their right to be accompanied by a union, legal or other representative at meetings with Mr. Travers and that the normal requirements of natural justice should be met. In particular, there was an understandable anxiety that aspects of the report which had direct implications for any member of staff would be shown to that person who would be provided with an opportunity to defend his or her position in advance of publication. Mr. Travers gave such an assurance, reflected in my memo to staff of 3 February 2005.
In my meeting with Mr. Travers on 25 February 2005 I argued that as Secretary General of the Department, I believed that the report in its entirety would reflect on my performance and that I should be afforded an opportunity to review it and respond as necessary, prior to its presentation to the Tánaiste. Mr. Travers refused this request point blank and informed me that the Tánaiste would be the only person to see a copy of the entire report. Given the nature of the report produced and its specific and generalised criticisms, I cannot accept that the assurances given at the outset were honoured.
I have serious difficulty with the process followed by Mr. Travers in the publication of the statement made by me at a late stage in the examination. I am also surprised at the explanation given by Mr. Travers — if I understand it correctly — for doing so, in his evidence to this committee last week. That statement was prepared at Mr. Travers's request and to facilitate his completion of the task assigned to him. That request followed a number of attempts by Mr. Travers to draft the particular section of the report dealing with third party evidence by an official of the Department confirming identification of the relevant folder in the outer section of the Minister's office early in 2004. I regarded this as a particularly significant development since it involved a clear recollection by an official of the Department, pinpointing the last known location of the folder containing the January 2004 submission and covering letter to the Attorney General. I was shown selected pages of this section of the report and was unhappy with what I perceived to be a dilution of the significance of this third party evidence in the manner in which it was being presented in the drafts shown to me.
Mr. Travers wrote to me, on 25 February 2005, and asked me to review his draft of this section of the report or, preferably, to prepare my own statement. I readily agreed to prepare my own statement and Mr. Travers asked that I have it ready by the evening of Friday, 25 February 2005, so that he could complete work on the report over that weekend. During Friday, 25 February, I prepared a rough draft of my statement. It was being typed as I met with Mr. Travers late that evening. As soon as it became available, I handed Mr. Travers a copy, informed him that it was a rough draft, that I would be refining it over the weekend and would give him the final version later, on Monday 28 February. Mr. Travers accepted the rough draft on that basis. In view of intense pressures on other fronts on Monday, 28 February, and the need to consult a third party to ensure the accuracy of one aspect of the statement, I was not in a position to supply the refined statement until the morning of 1 March 2005. On discussing the statement with me, Mr. Travers suggested that the position as outlined by the third party was contested by another official who worked in the Minister's office. I indicated that I had not spoken to that official but was prepared to do so, for completeness, and that I would reflect the outcome in a final draft of the statement. Mr. Travers agreed that I should and I followed up by discussing matters with the official concerned and reflecting the outcome in my statement.
As far as I am concerned, I prepared one statement which went through a number of iterations in its preparation, all designed to facilitate Mr. Travers in completing his report. On being presented with the report by the Tánaiste on 7 March, I was shocked to find the various unfinished drafts of my statement as appendices to the report. In my experience this is unprecedented. At the very least I would have expected to be asked for my agreement to this course of action. Publishing the various drafts without consent seems to me to violate the assurances given at the outset and would not, in my mind, meet the test of good public administration. The point may seem trivial in the context of the very significant issues discussed in the report. I do not see it as trivial and I believe that it is important that those who preach should also practise the principles they seek to promote. Despite Mr. Travers's comments on the matter to this committee, I cannot accept that there was any benign motive for the publication of these drafts as appendices.
In my concluding remarks I want to make some reference to the performance of the Department. I ask the committee to bear with me on this. It is important that we put this particular issue in the broader context of the work which the Department has been undertaking over recent years. On my appointment as Secretary General in January 2000, in addressing the staff of the Department for the first time I described my feeling of being honoured at being appointed to such an office and I undertook to do my utmost over my term to meet the standard of performance, professionalism and integrity expected of me. I can honestly say that these were the sentiments which guided all of my actions during the time I held that office. Over time, though, I felt equally honoured to lead the team of people working in that Department, because I could sense their commitment, esprit de corps, resilience in the face of ongoing policy turmoil and resource pressures and their tangible desire to make things better for people, particularly those dependent on the public system for their health and child care needs. I have the utmost respect for the people I have worked with and led over the past five years. I do not accept that the generalised criticisms of the Department and the way it does its business, which have been a feature of the public commentary on the Travers report, are in any way a fair reflection of the standard of performance delivered. The same goes for the patronising references to the possibility that the Department may realise excellence only at some point in the future. This broad brush approach does a great disservice to the enormous effort invested by so many people over the past number of years. It is both deeply offensive and seriously misleading.
This is a Department that has produced many excellent examples of good public management over the years. Given the spread of its responsibilities, the sensitive nature of the services it was responsible for and the obvious gap between what is needed and what can be provided in many service areas, it is an organisation that is constantly under pressure and a soft target for ongoing critical commentary. People there work in an environment where every success can quickly be turned into a statement of what is not yet provided. Despite this negative environment, it is an organisation that is very committed to its mission, and acts accordingly.
I was proud to lead the team I did and I take great pride in its many positive achievements over the past five years. Among these I would include the development of a widely shared view about how the health system should develop in the form of the health strategy, quality and fairness; the radical restructuring of the entire system, including the establishment of the Health Service Executive and Health Information and Quality Authority; the opening stages of implementing the primary care strategy; the first phase of the acute hospitals review group and the provision of additional acute bed capacity; service improvements in mental heath; services for older people and persons with disabilities; the smoking ban in the workplace — working with the Office of Tobacco Control and the Health and Safety Authority; the growth in training places to address the chronic supply problems in therapy grades; the transformation of nursing and midwifery education and training; numerous developments in information systems and e-health applications; the rapid development of services for cancer and cardiovascular diseases; and the management of the health budget without supplementary Estimates over recent years. There are many more.
While the report pauses to make occasional reference to the fact that nursing home charges occupy a tiny place in the overall agenda of the Department, I do not believe that the utterly negative image of the Department's performance conveyed in the report bears any resemblance to the organisation I led for the last five years. This examination was concerned solely with the handling of a single atypical issue over a period of 29 years. Any more generalised findings do not have a valid basis in the work done. There are many examples of well documented analyses of policy options and well articulated business cases by officials for a wide variety of policy initiatives. This is the bread and butter business of the Department. In the case of services specifically for older people, there is a range of policy documents articulating the need for more community based services, more rehabilitation facilities, more residential places, improvements in the nursing home subvention scheme and a different approach to address the cost of long-term care.
There are similar analyses and business cases on many other aspects of the health system which are crying out for development, rationalisation and investment. These are based on best available evidence at national and international level. However, it is a fact of life that policy analysis and evidence, though of great importance in themselves, have not been the only major influence in health policy making. It is an area of public policy that has always been subject to very significant pressures on behalf of particular interest groups and at a more general political level. There are many examples to illustrate this. It is not always easy for officials to capture on paper the precise reason for policy decisions ultimately made at the political level which run against the entire thrust of the available evidence and policy advice. If the intention of the report was that an obligation should be placed on any Minister who decides to take action contrary to the run of policy advice from officials, and to record specifically the reasons for the decision he or she is taking, then I would be fully supportive of such a proposal. This would certainly add greater accountability for decisions made and might lead to a more disciplined and better rationalised approach. A useful start on this could be made by Ministers who see themselves as promoting reform of public management, taking the initiative in their own Departments.
I want to speak about the management advisory committee, or MAC. It is the top team at assistant secretary and director level in the Department. Over the five years of my tenure, it is the group with which I had most contact. Due to the scale of the Department's business, I operated a devolved decision making model, where each member of the team took responsibility for his or her area within the parameters of the approved business plan each year. Weekly MAC meetings provided an opportunity to consider corporate level policy issues and to deal with any in-house operational matters. On assuming office in 2000, I inherited a badly divided and demoralised Department, where mutual trust was a scarce commodity. There were very tense relationships at MAC level and at other senior levels in the Department. I worked hard at restoring positive working relationships at all levels in the Department and I believe that I was moderately successful in doing so. While there is still a residue from these tense times, I believe that normal working relationships had largely been restored at senior levels in the Department. Personally, I enjoyed a constructive and productive relationship with each member of the MAC in the Department. I was therefore surprised at the general description of the MAC as dysfunctional.
This view seems to have been attributed to anonymous others inside and outside the Department, rather than to Mr. Travers. Given his resistance to employ what he termed "hearsay evidence" in other contexts in the course of his examination, his reliance on such anonymous sources for this assertion is disappointing. Whatever validity the comment may have had a few years ago, I find it to be totally at variance with my experience over the past two years. It is even more disturbing that Mr. Travers could make such a comment without even having met most of the members of the MAC. This approach could hardly be described as meeting the standard of good public administration. While it is a matter for others at this stage, most of the ideas put forward for rebuilding the MAC reflect very confused thinking on good corporate governance in the essential role of the MAC in the management of the Department.
I want to pay tribute to the personal effort put in by so many people in the Department, including members of the MAC, in bringing about the radical improvement in the way the Department operates and in its contribution to an improved health system over recent years. It is an aspect of the Department's operations on which I concentrated strongly. While it is impossible to expunge completely the effects of bad history, my own heavy investment of physical and emotional effort in this area, combined with the willing effort of many others, did pay dividends.
I have made a long introductory statement today and I apologise for that. However, I have not had the opportunity to make any comment on the matters under examination and on the extent of public comment made on them to date. I wanted to avail of the opportunity provided to me today to do that.
