JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Wednesday, 27 Apr 2005

Travers Report: Presentations.

Chairman

I welcome Ms Deirdre Gillane and Mr. Christy Mannion, former special advisers in the Department of Health and Children, to discuss the Report on Certain Issues of Management and Administration in the Department of Health and Children associated with the Practice of Charges for Persons in Long-Stay Care in Health Board Institutions and Related Matters. Apologies have been received from Deputy Cowley who cannot be here today.

I ask Ms Gillane and Mr. Mannion to speak briefly on the main findings of the report. Committee members will then ask questions. I draw the attention of witnesses to the fact that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Mr. Christy Mannion

I will not make a long presentation. I will briefly outline my own background and the areas in which I worked during my time in the Department of Health and Children which are of most relevance to the joint committee.

I am a civil servant with 30 years' experience who has worked in a number of Departments, including the Departments of Justice, Equality and Law Reform, Defence, and Education and Science. Latterly I have been a special adviser in the Department of Health of Children and the Department of Enterprise, Trade and Employment. In February 2000 I commenced employment as a special adviser to Deputy Martin, then Minister for Health and Children. During this period I discharged my duties in accordance with the criteria set out in section 11 of the Public Service Management Act 1997.

The following, while in no way comprehensive, gives a flavour of some of the issues I dealt with during my period at the Department of Health and Children. They included health promotion, health insurance, the capital programme, the Estimates process, the smoking ban, services for older people, the EU Presidency, liaison with Oireachtas Members, meetings and the maintenance of contact with NGOs such as Enable Ireland, Pavee Point, the Federation of Voluntary Bodies and the Irish Haemophilia Society.

I usually followed meetings with officials, or the Minister, or both, if necessary. Some of the issues involved extensive legal briefings with the Department's legal team and/or the Office of the Attorney General. Most, if not all, involved meetings with officials in advance of the Minister being briefed by the officials and me.

During my time in the Department I enjoyed a good, constructive working relationship with officials who are dedicated, conscientious and hard-working. I worked long hours and late nights. I never gave less than full commitment and made a positive and effective contribution to the workings of the Department.

Ms Deirdre Gillane

I thank the joint committee for inviting me to answer questions about the Travers report. I began working as a policy adviser with the former Minister for Health and Children, Deputy Martin, in November 2000. Before that, I was a trade union official with the Irish Nurses Organisation for four years and a nurse for seven years in Cork University Hospital. I had varied experience in the health service prior to my appointment as a policy adviser.

On my first day in the Department of Health and Children I was given copies of the Official Secrets Act, the Public Service Management Act and the Ethics in Public Office Act. In the very interesting four years I spent in Hawkins House I had close working relationships with officials at all levels. I was given copies of policy documents being submitted to the Minister by the officials involved in various areas. Those documents were sent via e-mail or hard copy.

Depending on the issue involved, a few telephone calls were made or meetings were held prior to a full briefing session with the Minister. If the matter was urgent, of significant importance and time was short, officials briefed the Minister and advisers at the same time. Issues which involved meetings, not just with officials but also with legal advisers prior to meeting and briefing the Minister, included the European working time Act, enterprise liability, the Medical Defence Union, hepatitis C and haemophiliac issues, consultant contracts, the Nurses and Midwives Bill, the Medical Practitioners (Amendment) Bill, inquiries into patients in Our Lady of Lourdes Hospital, the national treatment purchase fund, the Pharmacy Bill, PHEC — the pre-hospital emergency council — the Allied Health Professionals Bill, the Civil Registration Bill, IBTS issues, the Ferns inquiry, Cavan-Monaghan consultants issues and health service reform legislation. Prior to attending these in-depth meetings, extensive documentation was provided and any significant issues were flagged as priorities and discussed.

Other main areas which involved meetings which I normally attended included discussions with trade unions, of which there were at least 14 in the health sector, particularly if there were disputes or threats of industrial action. During the four years I worked as an adviser there were many such threats and a few strikes which required strategic responses from the Minister. The officials kept me and the Minister informed of developments at all times.

Another key area I covered was that of acute hospitals. The issues were varied and are well known to the joint committee. They included accident and emergency units, bed capacity, consultant cover, specialties, staff shortages, the Hanly recommendations, the radiotherapy reports, equipment, the national development plan and so on. Once the Government established the national treatment purchase fund to assist with waiting lists, the Minister asked that I be appointed a member of the steering group to keep him informed of developments. I was a member for about one year. I also took part in the steering and project group for the health strategy which laid the ground for the reform programme. In 2002 the Department appointed Prospectus to produce a report on structures. I was a member of the steering group.

At all times during my four years in the Department as an adviser I worked to the best of my ability with the Department and the health boards during a time of dramatic change. In my experience, all officials, including Mr. Christy Mannion and me, gave their of utmost in what was the busiest and most politically sensitive Department.

Senator Glynn

I had to leave the meeting temporarily but conclude from what Ms Gillane said that the two special advisers had very close contact with the Minister and his Ministers of State, Deputies Callely and Tim O'Malley. I will repeat the question I put to the Minister on the day the two Ministers of State were present. In all the dealings the two special advisers had with health board deputations, health board members, Oireachtas Members and delegates at the conference of the Association of Health Boards, was the issue of charges in long-stay institutions ever discussed?

Mr. Mannion

I had no discussions on the issue. I was involved in discussions on the shortage of beds in public hospitals for long-stay patients, or on whether the subvention was inadequate to cover——

Senator Glynn

Did the issue of charges in long-stay care institutions ever arise?

Mr. Mannion

I can state categorically it never arose at those meetings.

Ms Gillane

Never to my knowledge. Various parliamentary questions were asked in respect of long-stay charges, but they would never have come up at meetings with health board officials or Oireachtas Members. It was well known that contributions were taken with the permission of patients in long-stay public facilities for the elderly.

Senator Feeney

When Mr. McLoughlin was before the committee last week, he explained that he had not sought legal advice for the South Eastern Health Board, that it had been sought by his predecessor. It landed on his desk when he was a month in the job. He knew the significance of it for the health board. He told us that he spoke to Mr. Kelly. He waited to inform him because he knew he was coming to Dublin to meet with the Secretary General in February or March, at which point he would raise the matter. I am open to correction but I am almost certain he said he brought it to Mr. Kelly's attention at that point but Mr. Kelly's evidence is different. He said he did not hear about it until 16 December 2003 at the MAC-CEO meeting.

When did Mr. Mannion and Ms Gillane first receive knowledge of the South Eastern Health Board's legal advice? Did they know about it when the South Eastern Health Board got it or was it in early 2003 when it is assumed that the Department would have had knowledge?

From listening to Mr. McLoughlin and Mr. Kelly, I know that other CEOs around the country were familiar with this advice. They knew what was going on and they talked about it among themselves. Did Mr. Mannion and Ms Gillane also know?

Mr. Mannion

The first I would have heard of it was at the meeting of 16 December when Mr. McLoughlin spoke about it briefly as an item on the agenda. He spoke for three or four minutes and gave a short outline of the situation. One other person may have spoken. Following that, the Secretary General said it was an issue to which we would return and that in the meantime we would seek definitive legal advice. That was the first time I heard about it from a health board CEO.

There was no discussion at that meeting in regard to it by other CEOs or MAC members, except for the one other person who may have spoken. They may have discussed it among themselves but they never brought it to our attention. It was not an issue that ever came up despite the fact that we met them on a regular basis and talked to them regularly.

Senator Feeney

Did the Secretary General or any other official talk to Mr. Mannion about it after 16 December?

Mr. Mannion

No.

Senator Feeney

Mr. Mannion and Ms Gillane were both at the meeting in the Gresham Hotel on 16 December. I do not mind which of them answers my question. Mr. Kelly left to meet the then Minister, Deputy Martin, and to bring him to the meeting. For how long was he out of the meeting?

Mr. Mannion

I am not sure. Mr. Kelly said he was out for ten minutes. I do not have any idea. It did not seem long but I do not have the exact time.

Senator Feeney

We were told he was gone for ten minutes in total. Was the meeting in a room at the back of the hotel? Mr. Kelly described the other day that when he met the Minister at the front door he had to walk some distance to get to the meeting room.

Mr. Mannion

Yes, it was not the most convenient place in the world. There were a lot of stairs and corridors at the back. From what I can remember there was a great deal of construction work going on adjacent to where we were having the meeting. It would have been a bit of a walk.

Senator Feeney

Did Mr. Mannion and Ms Gillane discuss it with the Minister, Deputy Martin, after 16 December?

Mr. Mannion

No.

Senator Feeney

How did Ms Gillane view the item on the agenda that day?

Ms Gillane

The item was listed on the agenda. As the committee is aware from last week's interviews, the main item on the agenda was the reform programme. About 12 or 13 issues were on the agenda. It was listed for brief mention. We would have received a copy of a summary of the legal advice on the evening prior to theMAC-CEO meeting.

As Mr. Mannion said, there was a brief discussion at the meeting but neither of us would have been approached by officials in the Department or by health board CEOs prior to the 16 December meeting in regard to this issue. Mr. McLoughlin said it was discussed at least three or four times between Department of Health and Children officials and CEOs but we would not have been part of those discussions.

Senator Feeney

When the meeting was over, did Ms Gillane and Mr. Mannion leave with the knowledge that it was going to the Attorney General for advice or did that happen later?

Ms Gillane

At the time we knew legal advice had come from the South Eastern Health Board and there was a brief discussion on it. A great deal of advice came to the Department. We were satisfied that the right decision was taken in terms of seeking clarity from the Attorney General. I left the meeting in the belief that we would come back to the issue when we had received the Attorney General's advice so that we could plan a response to it and deal with it.

Mr. Mannion

That would also be consistent with all other legal advice that came to the Department from time to time. It would not have been an exceptional case. We regularly had legal opinion coming in on a variety of issues. On each and every occasion advice would be sought from the Attorney General. When that advice would come the officials would first speak to us. A briefing would be prepared for the Minister and a substantive meeting would take place between officials, the Minister, ourselves and possibly a legal adviser if that were required. At that stage decisions would be taken. That was the norm in regard to a range of issues across the Department. This issue was not handled in that way.

Chairman

I wish to clarify that Mr. Kelly was absent from the meeting for a short period of about ten minutes.

Mr. Mannion

I cannot say that what Mr. Kelly said was not correct.

Chairman

I do not want to go down that road. All I am asking is if it was a short period.

Mr. Mannion

It was a short period.

Senator Browne

In last Sunday's Ireland on Sunday there was an article about the fact that the former Secretary General, Mr. Kelly, sent a memo to staff instructing senior officials that either the Minister or Mr. Mannion or Ms Gillane, as special advisers, would be fully briefed on all major issues. It appears that Mr. Kelly had concerns about the ability of the then Minister, Deputy Martin, to stay on top of his brief. Is that correct?

Deputy Devins

On a point of clarification, I object to that statement. I do not recollect Mr. Kelly saying that. The Senator has quoted a newspaper report as evidence.

Chairman

To be fair, Deputy Devins has raised a valid point.

Senator Browne

It is in the public domain. This is an opportunity to clarify the matter.

Chairman

Newspapers have been wrong about many of us over the years.

Senator Browne

That is why I am asking Mr. Mannion to clarify the matter.

Chairman

I am sorry, Senator Browne. I do not consider it the job of the people before the committee to clarify newspaper reports. Let us try to deal with what we have heard in the committee and what is in the Travers report, not the Sunday World, the Sunday Business Post or any other newspaper.

Senator Browne

As special advisers to the Minister, were they briefed on almost every issue relating to the Department of Health and Children at that time?

Ms Gillane

Just on the memo Mr. Michael Kelly sent out in early 2000 when two advisers were appointed to the then Minister. It was to clarify the roles of the advisers in the Department to assist with implementing any Government policy issues. It contained six points listing the areas of responsibility. It stated that any policy documents being submitted to the Minister should be copied to the relevant advisers, and that the relevant advisers should be made aware of any key meetings concerning either a policy change or any high profile topic or incident. It also referred to the circulation of relevant documents and the participation of advisers at MAC meetings. It stated that as a general rule it would be a matter for each principal officer to decide on which issues should involve the advisers. Alternatively, advisers could ask to be involved in a particular topic or issue in the Department.

This memo was intended to clarify the position and role of advisers but stated that in practice the working relationships would be likely to develop on an informal and constructive basis. None of the guidelines precluded direct contact between the Minister and members of staff of the Department in accordance with normal practice. The memo went through the two areas of general responsibilities that Mr. Mannion and I would have.

Mr. Mannion

My understanding was that it was to clarify the position. I do not think it was ever intended to be a substitute for the role of the Minister. It was never intended that the Minister would not have been on top of his brief. We should remember that this was written a short time after we entered the Department, therefore I do not know how such a conclusion could have been made. In fairness to the Secretary General I do not think that was his intention. His intention was to clarify roles and to ensure that staff had a view of how things should be done.

Senator Browne

The Department of Enterprise, Trade and Employment has a similar way of working.

Ms Gillane

It is being worked on by the Secretary General of that Department.

Senator Browne

Can I ask Ms Gillane and Mr. Mannion about the MAC meeting? They received the legal advice that we now know the Minister did not read. Did they read the legal opinion and if so, were they of the same mind as Minister of State, Deputy Tim O'Malley who realised its serious implications when he saw it? If so, why did they not alert the Minister to the seriousness of the topic before the meeting and pursue it afterwards?

Mr. Mannion

I did not read the memo before the meeting.

Senator Browne

Mr. Mannion did not read it.

Mr. Mannion

I did not read it before the meeting. It was e-mailed to me on Monday evening but for whatever reason I did not access it before I went to the meeting. It is important to clarify——

Senator Browne

The Minister did not read it and Mr. Mannion did not read it.

Mr. Mannion

Please let me finish my point.

Chairman

Can Senator Browne please let Mr. Mannion answer the question?

Senator Browne

I am seeking clarification.

Mr. Mannion

We have plenty of time and I will answer the question but I want to make this point first. The main item on the agenda for the meeting of 16 December was the reform programme and no witness who has come before the committee so far has stated that there was a substantive briefing on that issue. We would have been heavily involved in preparing for the discussion on that particular issue. At the same time, the implementation of the Hanly report in the mid-west region was also an issue and I was also dealing with and preparing for that.

It is true to state that among the briefing documents sent out was the briefing on this issue. It is also important to say the briefing sent out was a summary of the legal opinion submitted by the South Eastern Health Board only. There was no briefing document to give any indication on the Department's thinking on that. As with all other opinion, it would have been natural and normal to send it to the Attorney General for definitive legal advice.

Senator Browne

I accept that point but is it not incredible that a Minister of State had time to read it and appreciate its importance, but a so-called ministerial adviser did not have time to read it? We now know that it was not brought to the Minister's attention. What is the role of a ministerial adviser? I am aware that Mr. Mannion is a former civil servant. How does he contrast that role with being a political adviser? Are the two jobs completely different? What exactly is his function now as opposed to what it was in the past?

Mr. Mannion

Senator Browne said I was a former civil servant. I hope I am not a former civil servant.

Senator Browne

I am sorry.

Mr. Mannion

The role of adviser is set out in section 11 of the Public Services Management Act 1997 as being to monitor the programme for Government and assist with its implementation. That is what we did across a range of issues.

I am not disputing that the point that the document was not read is a fair one, and hearing that point being made now, it is difficult to understand why it was not read, but one would think we were only dealing with one issue and not a range of issues in the Department. As committee members know, it is a very complex Department with a range of issues arising on an hourly basis. We were dealing with those issues.

This issue was discussed briefly at the meeting, and the right decision was taken as it was sent to the Attorney General for definitive legal advice. As the Secretary General stated, it was an issue to which we would return and from that point of view, it did not set off alarm bells.

What Minister of State, Deputy Tim O'Malley, stated to Mr. Travers was that if the opinion was correct then it would have serious implications. We would get opinions on a regular basis over a range of issues. Sometimes it would be substantiated but much of the time it would not. Until legal advice comes back from the Attorney General, it is a legal opinion.

Deputy Cooper-Flynn

Can I just ask——

Senator Browne

Did Ms Gillane read the brief?

Ms Gillane

I did not read the brief.

Deputy Cooper-Flynn

I have an observation to make before we leave this point. Mr. Mannion stated that the only information contained in the briefing was the legal advice from the South Eastern Health Board. There was no briefing or opinion on the Department's stance. That is a significant point because it gives an indication of the Department's thinking at that time. It ties in significantly with what Mr. McLoughlin stated to the committee, that the attitude of the Department was that it was legally covered.

I do not know if Mr. Kelly was at the meeting in February, as he must clarify that point, but if he was this gives us an insight into his thinking on the issue. It seems clear that the Department did not view this as a serious issue. That should be highlighted, particularly by those preparing the report.

Deputy McManus

Mr. Kelly did not say that. He stated that once he read the legal opinion it was clear to him there was a requirement to introduce legislation. The legal opinion that the South Eastern Health Board produced changed his view on the issue. It was, in his view, a significant legal opinion. It had to go through the process, but in his view that was the turning point.

Deputy Cooper-Flynn

Deputy McManus is absolutely correct on that. However, Mr. McLoughlin stated that in February he briefed Mr. Kelly at a meeting on the service plan. Mr. Kelly stated the deputy Secretary General was absent and he believes he attended that meeting but must clarify that point. If that is the case, it means that Mr. Kelly got the legal briefing in February and not December. How was it significant in December when it was not nine months earlier? That is a critical issue yet to be clarified by Mr. Kelly.

Chairman

It is only an opinion.

Deputy Cooper-Flynn

According to Mr. McLoughlin — again this must be confirmed — Mr. Kelly organised a bilateral meeting in March of that year on foot of this issue, which indicates that he knew about it in February. I am not taking from Deputy McManus's point that it was significant; my point is that its significance should have been obvious nine months earlier. Suddenly it was significant in December of that year, but if it was significant nine months earlier surely the Department would have attached a briefing to the legal opinion for the MAC meeting.

Deputy McManus

That is not the point.

Chairman

I remind members that we agreed to allow Senators to speak before 11.15 a.m.

Senator Browne

The Minister arrived late for the MAC meeting. He had not read the documents and Ms Gillane and Mr. Mannion had not read the legal opinion. It was decided to refer it to the Attorney General, which was the correct advice. After the meeting did Ms Gillane and Mr. Mannion discuss with former Minister for Health and Children, Deputy Martin, the issues he had missed out on by arriving late? Did they give even a brief summary of what had been decided?

Ms Gillane

No, because after the MAC-CEO meeting we went directly into another meeting with the CEO of the Mid-Western Health Board.

Senator Browne

Did they do so at a later date?

Ms Gillane

No, because the right decision was made. It is important to put the opinion in context. It was just opinion. We did not read it before the meeting and the right decision was taken. As Mr. Pat McLoughlin stated, it did not merit detailed discussion because the South Eastern Health Board had met the Department directly when advisers and Ministers were not involved prior to the December meeting. At the meeting in the Gresham Hotel there was no discussion about retrospection or about €2 billion, €3 billion or €500 million. The discussion was that legal opinion had been sought by the South Eastern Health Board, that there were discussions in the Department and that clarification was necessary. It was as simple as that at the time. We are now talking with hindsight and that gives us all 20:20 vision.

Chairman

I wish to clarify this matter. On 16 December this opinion was coming from the South Eastern Health Board, and even though we look back and see that it seemed to be a most important issue on that day, it was at the subsequent MAC meeting in the following March that a brief was given that advice had been sought from the Attorney General. It had not been sought prior to the December meeting.

Ms Gillane

MAC-CEO meetings are held regularly; Mr. Pat McLoughlin stated it was at two monthly intervals, except during the reform programme. Advisers, Ministers and Ministers of State would only attend the MAC-CEO meetings at mid-year and end of year review. The MAC-CEO meetings——

Chairman

Would one get a briefing note or minutes of meetings that one had not attended?

Ms Gillane

One would not get minutes or briefings of MAC-CEO meetings that one did not attend. It is true to say that following——

Chairman

There is no continuity through the process of MAC-CEO meetings for advisers.

Ms Gillane

No, we attended the July and December MAC-CEO meetings.

Senator Browne

Was the legal opinion presented by the South Eastern Health Board discussed at the MAC meeting in December? When did Ms Gillane and Mr. Mannion become aware that the South Eastern Health Board was no longer pursuing cases when people queried the charges?

Mr. Mannion

There was no mention of that whatsoever.

Senator Browne

There was no mention of it at the MAC meeting.

Mr. Mannion

No.

Senator Browne

When did the advisers become aware that the health boards were not pursuing cases, which indicated clearly that the so-called defensible advice, or opinion, was indefensible?

Mr. Mannion

I cannot remember.

Ms Gillane

I am not aware of any cases not being pursued by any individual health board regarding the elderly. Mr. McLoughlin and Mr.Kelly dealt with that issue when they appeared before the committee.

Mr. Mannion

The Senator raised that issue at one of the previous committee meetings and that was the first time that I had heard of it.

Senator Browne

Is it correct to say that the health boards had stopped pursuing cases but the advisers was not aware of that? It had never been discussed.

Chairman

I wish to make the point that there were only one or two such cases.

Ms Gillane

Mr. Kelly stated that there were only two cases. One patient was deceased and the other was in a long-term mental institution.

Chairman

When we hear the word "case" we presume several cases are being referred to.

Ms Gillane

Mr. Kelly stated that there were two cases. If my memory is correct, he said that he was unaware of them and that he would check and come back to the committee regarding any cases that were not being dealt with.

Senator Henry

He was not aware of them anyway.

Ms Gillane

He said that he would check and revert to the committee.

Senator Henry

Did Mr. Mannion say he had not heard anything about the problem of long-stay charges until just before the MAC meeting in December, not even from the public press, where it would erupt from time to time?

Mr. Mannion

The issue in the public press that I can remember was mainly around subvention. That was an ongoing issue because of the fact that the subvention was insufficient in meeting the costs of private nursing homes. I was aware of that problem. It came up regularly.

Senator Henry

The issue of long-stay charges never came to Mr. Mannion's attention as being a problem for the Minister.

Mr. Mannion

No.

Senator Henry

Did Mr. Mannion and Ms Gillane usually read briefing documents before meetings? Was it exceptional that they had not read these particular documents?

Mr. Mannion

It was exceptional.

Senator Henry

Was it usual not to discuss with the Minister what took place at a meeting after its conclusion?

Mr. Mannion

If issues needed to be dealt with or they were not going to be revisited, then obviously they would be discussed with the Minister. However, in this case the Secretary General had given an undertaking that the issue would be revisited on receipt of definitive legal advice. On the day, at the meeting, there was no sense that this was a major problem that needed to be discussed with the Minister immediately, before the legal advice was received by Department.

Senator Henry

If there was any issue that was considered worthy of discussion with the Minister, what was it?

Mr. Mannion

We had discussions about the general atmosphere at the meeting on the day and about the reform programme, particularly the proposals that the CEO of the Mid-Western Health Board had put forward regarding the implementation of the Hanly report in the mid-west region. We had certain ideas about it and the CEO put some of his ideas forward on the day and there was a discussion about that afterwards. We discussed whether we would proceed with the method that had been put forward by the CEO of the Mid-Western Health Board or whether we would go ahead with our original preferred method. That was the discussion after the meeting.

Senator Henry

How was the atmosphere at the meeting, given that Mr. Mannion felt it necessary to discuss it with the Minister afterwards?

Mr. Mannion

It was not so much that the atmosphere per se was discussed but it was referred to in the discussion on the reform agenda and on the perceptions of the various CEOs regarding the point we had reached in the reform programme. In fairness to the CEOs, it was not just their own personal situation that they were concerned about, they had large numbers of staff who were anxious about their positions and about how the reform agenda would affect them. That was part of the discussion on the day. We talked about the various time frames and how the programme would be implemented.

Senator Henry

Was this the most important issue?

Mr. Mannion

Which?

Senator Henry

The most important issue at the meeting was the discussion with the CEOs about their concerns for themselves and for the reform agenda. Is that correct?

Mr. Mannion

The reform agenda was the main item on the agenda. The Hanly issue was added on after the meeting when we had separate discussions with the CEO of the Mid-Western Health Board and his officials. The service plan was another issue that the CEOs were anxious to discuss because it was known at the meeting what the budgets would be for the following year. The CEOs spoke about the pressures they would be under as a result of the Estimates for the year.

Senator Feeney

On foot of a question asked by Senator Browne, did Mr. Mannion or Ms Gillane ever feel part of the management team or the executive? I have several other short questions which I will pose together. Several people saw the Travers report before it was published and before it was given to the Tánaiste. Did the advisers see the report or were they told they would see it? To whom do the advisers report, particularly if something goes wrong? Do they accept the Travers report or how do they view it?

Ms Gillane

I think the Senator asked four questions. I would be grateful if she would correct me if I fail to answer them all. I did not see myself as part of the management team. I reported to the Minister and would have worked very closely with the Secretary General and other officials on implementing policy. There was a two-pronged approach. The Minister and the Secretary General were the bosses, so to speak, of the Department, but the adviser would report to the Minister. I did not see myself as part of the management team, even though being the Minister's adviser meant that I had a profile within the Department.

I did not see the Travers report prior to its publication. I accept the report and its criticisms of the role of the advisers, which is analysed in various sections of the report. I was interviewed by Mr. Travers for approximately two and a half hours but I did not see the report until it was published by the Tánaiste.

Deputy F. O’Malley

I welcome Ms Gillane and Mr. Mannion. I wish to get a flavour of their involvement in the MAC meeting. The agenda lists a number of items and the meeting was scheduled to run from 2 p.m. to 5 p.m. How much of that time was taken up with the reform programme?

Ms Gillane

The vast majority of the meeting was held up on that. Between September and December of that year each CEO and an assistant secretary in the Department co-chaired approximately nine groups and produced a composite document outlining all of the issues. They wished to bring all of these issues together so that they could form part of the HSE legislation. It was an intense time for the CEOs and departmental officials. That was in the report of the meeting.

Deputy F. O’Malley

While the Minister was not present at the meeting, what would the role and contribution of the advisers have been like? I am trying to get an idea of their participation in the absence of the Minister. Were they very vocal in their contributions and were they frequently asked questions? The advisers mentioned that they did not see themselves as part of the management team. They had specific policy functions. Could the advisers give us a flavour of their interactions with other participants at the MAC-CEO meeting?

Ms Gillane

They were constructive meetings the majority of the time. People would be giving their opinions on certain issues. We would mostly be observing interactions and listening to comments from people, trying to learn from experts in the field, such as the CEOs and departmental officials. The interactions of Mr. Mannion or myself would have been to state the Government's desired outcome from the various policies decided upon.

Deputy F. O’Malley

If somebody wanted to know what the Minister's feeling was on a particular issue, would he or she ask the advisers?

Ms Gillane

One would state that the Minister has declared that he wants X, Y or Z done, or that he wants us to work towards an outcome, through discussions with officials and the CEOs.

Deputy F. O’Malley

Therefore, in a way the advisers were as informed as the Minister and people would have relied on them for information about the Minister's thinking.

Ms Gillane

They would have relied on advisers for that, yes.

Deputy F. O’Malley

In part 2 of the meeting there were five items for brief mention, including one about the long-stay charges. Given that a decision had been taken to get clarification from the Attorney General, so that not much discussion was warranted, it is interesting to look at other items on the agenda. Under domiciliary births, for example, an urgent need for a standardised procedure to be in place, nationally, is highlighted. Does Ms Gillane know if something such as this, which was highlighted as being urgent, was implemented?

Ms Gillane

There had been a High Court case involving a few individuals. The CEO of the Northern Area Health Board wanted to give her reaction to the case as it was proceeding. They wanted to standardise domiciliary births around the country. Each health board had a different approach. In the west, for example——

Deputy F. O’Malley

I am not interested in that. I want to know was action taken straightaway on foot of that because it was highlighted.

Ms Gillane

Yes, a group was set up, with a chairperson.

Deputy F. O’Malley

Mr. Kelly inferred that advisers had gone outside their role when he was before the committee last week. That was quite a serious allegation because the adviser's role and function is outlined. At any point did anybody in the Department, including Mr. Kelly, indicate to Ms Gillane that she had gone outside her role?

Ms Gillane

At no stage was I approached by anybody and told that I had gone outside my role.

Mr. Mannion

Similarly in my case, I was not approached either. We would have been accessible to officials of the Department at all times, if that were the case. Neither did the Minister indicate that the Secretary General had informed him that we were acting outside our role. It is important, as regards the MAC, to clarify whether we were part of management. The MAC of the Department held meetings, on Monday mornings, which did not include the Minister, advisers or anybody else. That is where officials did the work that was relevant for the running of the Department. The MAC meetings which the Minister and ourselves attended were normally issue driven, with items on the agenda for discussion on the day. Personnel matters were on the agenda for those meetings, sometimes, and we absented ourselves as those issues arose.

Deputy F. O’Malley

If anything was referred to the advisers, however, they would be told about it.

Mr. Mannion

That is correct.

Deputy F. O’Malley

I have a final question as regards how the advisers operated with the Minister within the Department. Were they given particular areas of responsibility or did they all work together?

Mr. Mannion

Initially there was a division, back in 2000, which interchanged over the years. Different people had diverse perspectives on some issues. However, mostly there was a line we worked along, so that officials knew whom to talk to as regards various issues, as they wanted.

Deputy Gormley

I want to focus on the role of the special adviser. In answer to previous questions the witnesses spoke about that role. In Travers a distinction is made between administrative and political responsibility. Based on their previous responses, do the advisers see themselves as being in the political category?

Mr. Mannion

I did not regard myself as being in either category. Basically we were working on the policy issues most of the time. In the role of working closely with the Minister one tends to move into the political area from time to time as regards specific issues. Some members of this committee have been included in delegations to meetings about policy issues that I attended. Such issues were politically driven as well. Therefore, one cannot absent oneself on every occasion because it is not purely a policy matter.

Deputy Gormley

I am trying to get a handle on this, not having been in government. Are advisers associated with the Minister in any way? Are they party members, or what?

Mr. Mannion

I have been a civil servant for 30 years. I am not a member of a political party.

Deputy Gormley

Is Ms Gillane's position the same?

Ms Gillane

I am not a member of a political party, but I have affiliations to the Minister, Deputy Mícheál Martin, and his party, meaning that I am loyal to Fianna Fáil.

Deputy Gormley

There is nothing wrong with that. Would that apply, as well, at election time?

Chairman

Deputy Gormley has put his finger on it. It is good to hear someone say what are her affiliations and be recognised as well.

Deputy Gormley

Yes, that is fine.

Chairman

Democracy still lives.

Deputy Gormley

Did Ms Gillane follow Deputy Martin, then, from the Department of Health and Children into his new role as Minister for Enterprise, Trade and Employment?

Ms Gillane

We are both employed as special advisers in the Department of Enterprise, Trade and Employment.

Deputy Gormley

At election times as well, do advisers assist the Minister? I am trying to clarify what is the role of special advisers because it seems to me that they are involved more in the political rather than the administrative arena.

Deputy Neville

There is nothing wrong with that.

Mr. Mannion

The last election is a case in point. During the campaign I worked in the Department on the various policy issues and was not involved in the election campaign.

Ms Gillane

I took annual leave prior to the general election in 2002, for two or three weeks, to assist in constituency work in Cork.

Deputy Gormley

From my perspective the adviser fits more into the political rather than the administrative side of the arena. That is my take on it, but we have something to reflect on, for the report.

Ms Gillane said her role dates back to 2000.

Ms Gillane

November 2000.

Deputy Gormley

The health strategy was launched in 2001, approximately one year later. A column in The Irish Times of today makes great play of the fact that there was a section in the strategy dealing with the long-stay charges. It says in paragraph 36, chapter 5, that the legislation withdrew provision for a clear framework for the financing of long-stay care for older people. The inference is that the matter had been discussed, if it was to appear in that document. Will Ms Gillane comment on that?

Ms Gillane

As part of the health strategy there was a steering group and a project group and many subgroups were involved apart from NGOs and various other bodies. There was a group on eligibility which discussed a range of issues such as medical cards and a rights based approach to hospital care. It also discussed the Health Act 1970 and the 80%-20% in acute hospitals and access to care for the elderly. Members of that group would have included Department of Health and Children officials, representatives of the National Economic and Social Forum, the Irish Congress of Trade Unions, VHI, the Irish College of General Practitioners, the Irish Nursing Homes Association, IMO and the Society of St. Vincent de Paul, to name but a few. They made conclusions that fed into the health strategy. Their main concern was the numbers of medical cards when they were discussing eligibility. They said they believed people should contribute, somewhat, to the cost of their long-stay care.

However, I do not believe there was a discussion of the illegal framework we now know of, going back to 1976. The discussions were about access and the standardisation of the rules of eligibility for community services. It was felt long-stay patients should contribute an amount appropriate to their circumstances towards the cost of care, and cost sharing arrangements. When reference was made to the health strategy, it was within the overall eligibility framework, which included long-stay care and community care services. The main issue was the nursing homes subvention and access to long-stay beds and public facilities.

Deputy Gormley

There was no identification of a possible illegal charge at that stage.

Ms Gillane

There was not. A 12-page summary of the eligibility group's proceedings is available from the website of the Department of Health and Children.

Deputy Gormley

Would the Minister have often asked the witnesses to attend meetings and brief him after that?

Ms Gillane

That would often happen, although the Minister, Deputy Martin, tended to want to be briefed by officials and advisers.

Deputy Gormley

Was this a verbal briefing or were minutes kept of meetings?

Ms Gillane

The briefings were mainly verbal and we would summarise what the officials were saying about a particular issue.

Deputy Gormley

Was there daily contact with the Minister to brief him?

Mr. Mannion

Yes, there was. A couple of times every week, he had the time to sit down and have a more constructive discussion.

Deputy Gormley

Was it just the pressure of time that preventedthe witnessesfrom reading the briefing for the MAC meeting? Had it been read, would the witnesseshave seen the significance of it?

Mr. Mannion

Had I read it, I would still believe that the decision taken on 16 December was the correct one. I would have waited for the definitive legal advice to return from the Office of the Attorney General. That opinion did not refer to retrospection or anything else that subsequently came up.

Deputy McManus

The witnesses did not read the briefing document before the MAC meeting. When did they read it?

Mr. Mannion

Some time in the last few months.

Deputy McManus

Could Mr. Mannion be more specific?

Mr. Mannion

I did not read it until this arose regarding the Travers report.

Deputy McManus

For the duration of Mr. Mannion's time as special adviser to the Minister, Deputy Martin, he did not read the document.

Mr. Mannion

No.

Deputy McManus

Does Mr. Mannion not think that is extraordinary?

Mr. Mannion

When the issue is set in context of the meeting on the day and the fact that a decision was taken to seek definitive legal advice from the Attorney General and then return to the issue, there were no alarm bells ringing in my head that made it imperative that I pick this up and read it immediately.

Deputy McManus

There would be no alarm bells ringing as Mr. Mannion did not read the document that would have set them off.

Ms Gillane

The alarm bells would have been ringing when definitive advice came back from the Attorney General.

Deputy McManus

I think Ms Gillane is wrong. The people who read the briefing document were very aware of the serious nature of what was involved. The Minister of State, Deputy O'Malley made it clear that he was conscious of how serious the implications were as he read the document. Mr. Michael Kelly appreciated the seriousness of the issues, as he read the document. The job of the witnesses was to advise the Minister. Whether or not the Attorney General came back with any advice did not negate the importance of reading the document and advising the Minister that there were implications in it about which he needed to know. Is that not the case?

Mr. Mannion

I believe the Minister of State said to Mr. Travers that if the advice of the Attorney General upheld the legal opinion of the South Eastern Health Board, then there would be consequences.

Deputy McManus

That is exactly right.

Mr. Mannion

When the advice of the Attorney General returned, we would have also seen that there was an issue to be addressed.

Deputy McManus

It seems extraordinary to someone on the outside looking at Mr. Mannion's role as an adviser, especially with his extensive experience as a civil servant, that he would not have read a briefing document that was sufficiently important to be referred to the Attorney General. Even if that was the only alarm bell ringing in his head, it should have been enough to direct him towards reading up on all of this. Immediately after the MAC meeting, there was a group set up to draw up a letter to the Attorney General. Did Mr. Mannion look to see what that letter stated?

Mr. Mannion

I was not a member of that group.

Deputy McManus

I know that, but he was an adviser.

Mr. Mannion

I had no knowledge of that letter. I did not see it. As I was not shown it, I could not have known anything about it.

Deputy McManus

Therefore, Mr. Mannion knew nothing. He did not read the document that had this minefield that will cost us a great deal of money. As a consequence, he did not try to find out if the matter had been referred to the Attorney General.

Ms Gillane

Mr. Travers dealt with that in pages 44, 56, 58 and 76 regarding the role of the advisers. He stated that advisers should have been more active in examining issues following the meeting in December. We have already said that we accept the recommendations of Mr. Travers.

Deputy McManus

Actually, Ms Gillane said it. I appreciate that she is pointing it out to me. I also appreciate that we are looking back with hindsight. Do the witnesses not think it was something that should have been done?

Mr. Mannion

Looking back with hindsight and all the facts, I think something should have been done.

Deputy McManus

The witnesses state that their responsibility was for policy issues. There is a major item in the health strategy regarding eligibility. One of the points promoted by the Minister was that targets were set in the health strategy, unlike other health strategies. That is a very commendable idea. The proposals submitted to the Government to finance long-term care were due in 2002. What did the witnesses do to assist in trying to reach that target? What happened? Did they take any proactive role in meeting the Secretary General?

Ms Gillane

When the Secretary General and the Minister met the committee last week, they stated that a decision was taken that legislation for reform would take priority and that is why everyone was working very hard on the reform programme. Eligibility was such a broad issue that it was to be dealt with after that.

Deputy McManus

None of these targets, therefore, turned out to have any importance.

Ms Gillane

In fairness, there were 123 recommendations in the health strategy. Before we left, approximately 195 were acted upon. The recommendation on eligibility has not been yet acted upon, but that is because the Department, the Minister and the advisers were working hard on the reform.

Deputy McManus

Did Ms Gillane read the report by the Ombudsman?

Ms Gillane

Yes.

Deputy McManus

Did she consider suggesting to the Minister that he might meet the Ombudsman?

Ms Gillane

The report by the Ombudsman was published in January 2001. The Department had received legal advice from the Office of the Attorney General that contradicted his opinion on access to long term care and the provisions of the Health Act 1970. The report by the Ombudsman was predominantly about subvention. When the then Ombudsman, Mr. Murphy, was before this committee in June 2001, he stated that he knew that this practice was going on but it would determine a separate report. This is because his report in 2001 was predominantly about subvention. It is important to know that when the report by the Ombudsman was published, the Department had legal advice from the Office of the Attorney General in 2001. A decision was made to ask Dr. Eamon O'Shea to look at the needs of the elderly and to plan for them as well.

Deputy McManus

Who is Eamon O'Shea?

Ms Gillane

Dr. Eamon O'Shea from UCG. While I am open to correction, I think he was asked to facilitate a group looking at the needs of the elderly.

Deputy McManus

I see; another report.

Ms Gillane

Another report, yes.

Deputy McManus

Did Ms Gillane talk to the Secretary General or raise the issue with anybody with direct responsibility for this area at any stage? She knew something — she did not know what — had been referred to the Attorney General's office. In the year following the meeting in December 2003 did either person ask anybody, "What ever happened to that?"

Ms Gillane

Following the meeting on 16 December 2003 when the right decision was made to seek clarification from the Attorney General, I know that I did not bring up the issue with the Secretary General. Mr. Travers has dealt with that matter in his report.

I remind the Deputy that in the previous nine months, from March to December 2003, the advisers and Ministers were not asked to attend the discussions between officials of the South Eastern Health Board and the Department of Health and Children. That is an important point but it is true to say Mr. Travers has stated the advisers should have probed more after December. We have taken that criticism.

Deputy McManus

I refer to the file sent to the Minister's office which was seen by a civil servant who made a statement on the matter. when she was asked about the file, she told the person who had asked her the question what was in it. Has Ms Gillane ever seen that file?

Ms Gillane

No.

Mr. Mannion

I have not seen that file.

Deputy Devins

I welcome the two people who are helping the joint committee with its deliberations. How long did the meeting in December 2003 last?

Mr. Mannion

Between three and three and a half hours.

Deputy Devins

Were the advisers present for the whole meeting?

Ms Gillane

Yes.

Mr. Mannion

Yes.

Deputy Devins

How much of the meeting was devoted to the issue of long-stay charges for those over 70 years which was down for brief mention?

Mr. Mannion

About ten minutes.

Deputy Devins

Was the briefing document the advisers had received a summary of the legal opinion received by South Eastern Health Board?

Mr. Mannion

Yes.

Deputy Devins

Was it a one or two-page summary?

Ms Gillane

Eight pages.

Mr. Mannion

Eight pages.

Deputy Devins

That legal opinion was made available to the Department some time in February-March 2003. Were there any discussions involving the advisers and departmental officials at any time between March and December?

Mr. Mannion

No. I had no discussion with any official on the matter.

Deputy Devins

For the whole nine months.

Mr. Mannion

No.

Deputy Devins

Would that have been normal on any issue departmental officials thought was important?

Ms Gillane

From Mr. McLoughlin's discussion last week with the joint committee, his understanding was that at the time the Department of Health and Children thought it was legally defensible. I am paraphrasing him when he stated that initially when the South Eastern Health Board brought the matter to the attention of the Department, the Department stated it was okay, that it was legally defensible. I think he discussed it with the CEOs at a teleconference in June. Apparently, some of them stated they did not believe the advice was correct either, which was the reason Mr. McLoughlin put it on the agenda for the MAC-CEO meeting in December.

Deputy Devins

It was felt the opinion needed further clarification——

Ms Gillane

At the December meeting.

Deputy Devins

——and, as such, they would seek the Attorney General's advice.

Ms Gillane

Yes.

Mr. Mannion

That is correct.

Deputy Devins

Did the advisers concur at the meeting?

Mr. Mannion

Yes.

Ms Gillane

Yes.

Sitting suspended at 11.35 a.m. and resumed at noon.

Chairman

We will try to get going again as we must conclude at 1 p.m.

Deputy Twomey

Mr. Travers said that special advisers should avoid becoming involved to a greater extent in the day to day operation of the administration of the Department. What are the views of the delegation on this issue given that this view was contradicted by the then Minister for Health and Children, Deputy Martin, when he came before the committee? He said the advisers were not involved in any way in the day to day running of the Department of Health and Children, yet Mr. Travers seems to think the advisers were involved in the day to day running and the line management of the Department of Health and Children. Mr. Kelly indicated this is the way he felt about it also. There is a contradiction between how the Minister, Mr. Kelly and Mr. Travers feel about this. There is also a contradiction in the opinions of Mr. Kelly and the Minister, Deputy Martin, about whether he was ever informed about this issue.

In his evidence to the committee Mr. Kelly also said there was an excessively formal role for the advisers within the Department, excessive to what was laid down in legislation. He said it had become commonplace for decisions and directions by the Minister to be conveyed through his advisers. I would like the witnesses to say whether advice from the Minister was being given by them to civil servants in the Department of Health and Children. A number of witnesses who have come before the committee made it clear that they expected that the Minister would be informed of the issues raised at the MAC meeting by either of the advisers who attended this meeting. There appears to be consensus among a number of people, political people, civil servants and public servants, that their role was crucial in regard to how issues were dealt with in the Department of Health and Children and there was an expectation by many, including Mr. Travers, that they would somehow have informed the Minister of crucial events like this if they were raised at any meeting.

I would like the witnesses' opinions on the issue of the legal advice given by the South Eastern Health Board and how it is being played down during the committee meetings. In some respects I feel it might have been held over until such time as the Minister and his Ministers of State were able to attend a MAC meeting with their senior civil servants and senior public servants who are the CEOs of the health boards. This was such a hot topic, it was possibly being held over for a general discussion with all the senior people who run the Department of Health and Children as opposed to how it is being portrayed here as a brief discussion or only a legal summary; it was actually considered to be a significant issue.

This brings me back to other roles the witnesses play within the Department of Health and Children. For example, Mr. Mannion in February, even before Mr. Kelly was circulated with the memo on the role of advisers, had a discussion with the Minister and senior civil servants in regard to what the memo refers to as "discussions on the tobacco Act and nursing home charges". We do not know what exactly are those nursing home charges. From reading the memo one gets a fair idea that legislation and legal opinion were considered, all of which are important, and there is the sense that the witnesses do not dismiss matters so easily if their is any chance that legal opinion needs to be sought. The tobacco Act was put in with nursing home charges — we do not know what they are — but we know what happened with the tobacco Act. It subsequently went through Dáil Éireann and was enacted in April 2002, almost two years after this memo was issued.

Contrast this with what happened to nursing home charges. We now know that in 2002 nursing home charges would have cropped up in a different manner, in the Ombudsman's report. They were obviously becoming a high priority within the health strategy that was to be published in November 2001. Much of the background work in regard to the health strategy would have been discussed at this time. We are also looking at the legislation which would subsequently go through the Dáil in regard to the over-70s.

I cannot believe that the whole issue in regard to nursing home charges, whether it has to do with subvention or the legislation which introduced the over 70s deal, changed quite dramatically the entitlement to nursing home eligibility. I cannot believe the witnesses were not up to date with this especially when we know that within the Department of Health and Children this issue would have been known. It may not have been a red flag issue, as it has been described in the committee. Also Mr. Pat McLoughlin felt that he would have become aware of this issue in and around 2002. During the time Deputy Martin was Minister for Health and Children senior civil servants and senior public servants were talking about this issue. Maybe it was boiling under the surface, maybe it was like a pot simmering on the ring and was not bubbling all over the place but I find it very hard that we are supposed to believe it never crossed the divide from the administration of the Department of Health and Children to the political responsibilities of the Department of Health and Children.

There is one question I would like the witnesses to answer on the health reforms and the issue of eligibility. Everybody from the Government side, especially from the political side, who has come before this committee has made a big play of the fact that the witnesses were instigating reforms of the health services and that these health reforms were dramatic and would change the world. Who made that judgment call? Who said we will sit down and look at reform of the health services along the lines of what is now the Health Service Executive? Who said all the other issues, such as eligibility issues, would be parked?

The memorandum regarding this legislation was drawn up within the Department of Health and Children in 2002 and 2003 but it was parked. They are Mr. Travers's words. Here is an issue that appears to have been well known across the Department and was parked in preference to the health reforms. Somebody must have made a judgment call on that. The witnesses may say they did not realise this was a €1 billion issue in the Department that was about to explode.

There were issues surrounding the nursing home subvention and other issues at which perhaps the witnesses should have decided to look first; perhaps they should have forgotten about putting all their eggs in the one basket and just looking at reform. What the witnesses appear to say is that everything focused on reform. For example, comments were made here and there during the course of this debate about how there were issues regarding care of the elderly going into the future. I believe there is still no Government policy on care of the elderly going into the future. I also believe the radiotherapy report has not reached a final conclusion as to where the two centres will be based, even in Dublin. The radiotherapy report took four years to publish. Many of what would be considered extremely important issues for the Department of Health and Children take years to see the light of day. I would like to hear a little more of what was going on within the Department of Health and Children.

I would like us to speak a little more about the so-called health reforms on which there may have been many meetings. Looking back, this does not stand out as being as dramatic as one would think. There would have been many discussions by the civil servants and the public servants as to how the health boards would be reformed and how issues would be dealt with but much of it appears to be similar to industrial relations issues. I would like to hear how the witnesses make up their minds on many issues. Did the witnesses ever hear there were concerns within the Department of Health and Children in the 1990s that health boards were charging people for orthodontic treatment to which they were entitled free of charge?

Also, when the legislation was being drawn up to provide for free medical cards for everybody over the age of 70 — I would be interested to hear whether the Attorney General's advice was sought — did anybody remark on whether the Equality Act would be an issue? As the witnesses are aware, there are two types of medical cards for those over 70. There is the gold card which is given to all those over 70 and the traditional medical card, which is given on the basis of one's means. That might not make much difference to the person holding the medical card but the doctors are paid substantially different amounts depending on the type of medical card. Did anybody ever examine the Equality Act to determine whether people who had the traditional medical card were being discriminated against because the payment for that service is somewhat different? Was that ever discussed in the Department of Health and Children? I would like the witnesses' views on that. I do not accept that this issue raised its head suddenly in December 2003, went away again and everybody forgot about it. The health reforms are important but the health strategy, once published, did not go far. Most of us have been Members of the Dáil since that was published because it subsequently became Fianna Fáil's health manifesto. The only body set up since then is the HSE.

Chairman

Before the witnesses respond I will call Deputy Neville.

Deputy Neville

I welcome the advisers. After the meeting of 16 December, the Minister of State, Deputy Callely, felt the issue was so important that it was necessary to talk to the Taoiseach about it. From their discussion, did it ring the same bell with the advisers as it did with the Minister of State, Deputy Callely, and indeed the Minister of State, Deputy Tim O'Malley, as being such an important issue?

With regard to briefing the Minister, Deputy Martin, after 16 December, in Mr. Kelly's memorandum of 23 March 2000 he identified a special adviser having particular responsibility in the area of older people. Was that political adviser one of the witnesses present? Mr. Travers told the committee he had access to files and briefing notes to the Ministers. Did he access the witnesses' files and briefing notes in his investigation of this issue?

The advisers now work in a different Department. Is there a significant difference in the administrative procedure between Departments? Are the working arrangements similar to those in the Department of Health and Children? Are significant matters routed through the Minister in their current Department? The witnesses now have the experience of two Departments. How would they compare them? I am trying to get a view of the differences between one Department and another and the witnesses are in a key position to give that view.

Ms Gillane

Deputy Twomey asked many questions. If I miss one I will come back to it.

Chairman

We will remind Ms Gillane.

Ms Gillane

On whether the Equality Act was brought up during the time the legislation was being drawn up for the over 70s, to my knowledge there was no mention it.

On the question of the medical cards for those over 70, my understanding was that everybody over the age of 70 had full entitlement following July 2001. There was no longer a two-tier system. Previously, a means test was required and it was done at the discretion of the CEO but from July 2001 everybody got——

Deputy Twomey

No. If one had a medical card on income grounds before the age of 70——

Ms Gillane

Yes, but that is in respect of payments to GPs for facilitating treatment of the patients that present to them. There is a difference in that regard but that was negotiated with the IMO around June 2001.

On the question of orthodontics, I have no knowledge of payments for orthodontic treatment. I am aware that some health boards utilise the private sector to try to reduce the waiting times for people on an orthodontic waiting list but I understand a sub-committee of this committee has examined the area of orthodontics in the past. That is the only comment I can make on that matter.

Deputy Twomey said he found it difficult to believe that this issue has been bubbling since December 2003. The root of this issue is 1976. It is not only mentioned in the strategy of 2001; it was also mentioned in Shaping a Healthier Future in 1994. Vincent Browne covers that point today in The Irish Times.

On the health reforms, the health strategy, which was the largest consultative forum in the history of the health service and involved outside groups, indicated there was a massive need for reform. There was an appetite for it both at a political and administrative level in that the system in place since 1970 needed to be changed and unified to ensure that the services being provided in Donegal would be the same as those provided in Wexford, Waterford, Cork, Dublin etc. because over the 30 year period of the health boards, which had excellent points, they had dwindled and each health board was operating independently. There was not a unified system. The Government made the decision to appoint Prospectus and I understand Professor Brennan was chair of the commission on the finances of the health services. It formed a reform programme that was launched in mid-2003.

The Deputy said it took four years to write the radiotherapy report but I presume that was because of the complexity of the area of radiotherapy. They needed to get international advice and consult with all the service providers. I cannot comment any further on the length of time involved. My knowledge, and perhaps I am wrong about this, was that the Tánaiste was made aware of the two areas being assessed for the radiotherapy unit but I do not know whether that was made public and I do not know where they are.

The Deputy said a memorandum was parked but as the Secretary General and the Minister said, and I can speak for myself, we never saw the memo that was written in the Department in 2001 or 2002 on the fact that there was no legal basis for taking contributions from the elderly.

The Deputy said that the health strategy was a missed opportunity, is that right? I wrote my own notes.

Deputy Twomey

That was to do with the——

Ms Gillane

Excuse me. He said the Ombudsman report came out in January 2001 and it fed into the health strategy but the eligibility group I mentioned earlier discussed access to elderly care. Professor Eamon O'Shea's report, which is fairly substantive, deals with all the issues regarding nursing home subventions, public stay facilities, which had not been increased during the 1980s, and the way Ireland is to meet the needs of the elderly in the future. To quote Professor Eamon O'Shea on the financial argument, he says that contributions should not be excluded. The report states also, and this is what the Government is trying to form between the Departments of Social and Family Affairs and Health and Children, that there must be more emphasis on community services for the elderly; that only 4% of the elderly require long-stay facilities; and that the evidence is that many people go into nursing homes and long-stay facilities for social reasons and that we should spend more money on building up the community rather than long-stay facilities. There are many recommendations in that report and I believe it is being reviewed currently by the Departments of Social and Family Affairs and Health and Children.

Deputy McManus

Can Ms Gillane clarify the Attorney General's advice that made her believe the Ombudsman's report was wrong?

Ms Gillane

All I can say about the Attorney General's advice is that it was contrary to the belief of the Ombudsman and that it——

Deputy McManus

Ms Gillane never looked at it.

Ms Gillane

I never saw the Attorney General's advice and——

Deputy McManus

Did Mr. Mannion look at it?

Mr. Mannion

No, only what officials briefed us on——

Deputy McManus

And he never thought to——

Mr. Mannion

I had no reason to believe the officials were not accurate in what they were telling me. One cannot second-guess officials on every occasion they tell us something.

Deputy McManus

The phrase "the Attorney General's legal advice was wrong", is that all the witnesses were told. It seems extraordinary that the Attorney General's advice would be wrong, by the way, but is that what they were told?

Mr. Mannion

That the Attorney General's advice was wrong— We were told that the——

Deputy McManus

I am sorry, I meant to say that the Ombudsman was wrong.

Mr. Mannion

Yes. We were told that the Attorney General's advice was contrary to that stated by the Ombudsman. That would have been repeated through different ways. I am not sure if there were parliamentary questions, but they would have been answered on the basis that there was a legitimate belief that the Attorney General's advice was contrary to what the Ombudsman said. On that basis, we accepted what officials had regularly told us and we did not have any reason to doubt them.

As regards the issues raised by Deputy Twomey, perhaps he could clarify where Mr. Kelly said that we were acting outside the Public Management Services Act, and where did he say that what we were doing was excessive?

Deputy Twomey

I do not have the references here but I will get them sent on to Mr. Mannion.

Mr. Mannion

During my period in the Department of Health and Children, on no occasion did Mr. Kelly ever come to me and say that I was not entitled to offer a view, that anything I was saying to him was contrary to my role within the Department, or that I was acting — as seems to have been suggested a few times — in place of the Minister. Never at any time was that said to us.

Deputy Twomey

Did Mr. Mannion never attend a meeting, acting as proxy for the Minister, with the expressed intention that whatever information was laid bare at that meeting, there was an expectation that he would be taking it back to the Minister?

Mr. Mannion

In all fairness to the officials of the Department, they would provide the Minister with a substantive briefing across a range of issues on a regular basis. Even at meetings that I would attend, but that the Minister would not attend an arrangement would be made through the private secretary to arrange a meeting with that line division to discuss that particular issue with the Minister. I may have brought back to the Minister the discussion at the meeting but definitely, as regards any substantive issue in the Department, we would never have taken the position where we would give an instruction outside and above the Minister being briefed by officials.

Deputy Twomey

Mr. Mannion is agreeing with me, because he did attend meetings.

Mr. Mannion

Of course, I did.

Deputy Twomey

He was there on his own, in the expectation that he would take whatever information arose back to the Minister.

Mr. Mannion

Even in Mr. Kelly's note, from which the Deputy quoted, he actually says that we were to attend meetings.

Deputy Twomey

Mr. Mannion is saying that he attended substantial meetings and would go back to the Minister, and subsequent to that meeting the civil servants would then brief the Minister.

Mr. Mannion

I said, as is black and white from what Mr. Kelly has said——

Deputy Twomey

I just wanted Mr. Mannion to clear that up for me.

Mr. Mannion

——that we did attend meetings at which the Minister was obviously not present. On each and any occasion we would arrange subsequently for an oral and written briefing for the Minister with the officials. The Minister's particular modus operandi was to talk directly to officials.

Deputy Twomey

All right.

Mr. Mannion

That can be substantiated by anyone who was in any Department during the years.

Deputy Twomey

I was not going to harp on about it but since Mr. Mannion brought it up, he admits that he would attend fairly significant meetings where substantial issues were discussed. If the issues were substantial, the Minister would receive a briefing on them.

Mr. Mannion

I am saying that in any situation where an issue like that was being discussed, officials would provide a written briefing for the Minister and would organise a meeting as well. I cannot think of any issue of any significance in the Department where the Minister was not briefed by the officials afterwards, or where a brief was not prepared for the Minister. It was never accepted or assumed within the Department that we were acting for the Minister. A point in Mr. Kelly's letter, which has not been read out, states: "None of the above precludes direct contact between the Minister and members of staff of the Department in accordance with normal practice". Therefore, whether or not we attended, officials would still brief the Minister on any issue like that. They did not assume that the Minister was not going to be briefed.

Deputy Twomey

I just want to check to make sure that Mr. Mannion did attend meetings in that role, that he was very much on his own at those meetings — that is all — and which is laid out in the memo that was issued by Mr. Kelly in March 2000.

Mr. Mannion

What would normally happen in a situation like that, if officials were having a meeting, is that they would invite one to the meeting to discuss the issue and brief one on the issue in advance of a more definitive briefing with the Minister on the issue.

Deputy Twomey

Right.

Ms Gillane

Particularly if the item was of huge significance and that is why this one was unusual. The legal opinion was contained in the briefing and it was not flagged with either Mr. Mannion or myself prior to that meeting. There was a brief discussion at that meeting — Mr. Travers describes it as a missed opportunity — for everybody to explain that there had been previous meetings which no one in the political system — that is the advisers or the Minister — attended and at which more detail would have been provided prior to December 2003. Mr. Travers actually deals with that in his report.

Mr. Mannion

Deputy Twomey's earlier point concerned the meeting of February 2000, where the issues of drugs payments charges, nursing home legislation and the tobacco Bill were discussed, and were to be included in a composite Bill. That related to the subvention issue. In May 2000, the Minister brought that issue to the Dáil, having gone through the Seanad initially. The Health (Miscellaneous Provisions) Bill amended the Health Promotion and Protection Act 1988 and the Health (Nursing Homes) Act 1990. In the Seanad, section 3 of the Bill amended the Health (Nursing Homes) Act 1990, which came into effect on 1 September 1993. It had two principal objectives. The first was to ensure high standards of accommodation and care in all nursing homes registered under the Act while the second was to provide a system of subventions for dependent persons in nursing home care. Those were discussed at that meeting in February 2000.

Deputy Twomey

That was to do with subventions?

Mr. Mannion

Yes.

Deputy Twomey

Mr. Mannion asked me earlier where the comments concerning excessive rights to their former role, as set down by legislation, arose. Mr. Kelly's letter stated: "It has become commonplace for decisions and directions by Ministers to be convened through advisers. In my own experience, this position obtained on significant policy issues in the Department of Health and Children up to very recently".

Mr. Mannion

He said, "for Ministers".

Deputy Twomey

That is right. He was talking about more than one Minister.

Mr. Mannion

He may have said that, but I find it extraordinary that he did not come to us, as the Accounting Officer for the Department, to tell us we were acting outside our role.

Ms Gillane

May I make another point, which is a very subtle but important one? We are not legal advisers. The advice to the Government and the Department of Health and Children as regards clarification on an opinion that was sought by the South Eastern Health Board on any issue would have to have been ratified with the Attorney General, but that did not happen.

Deputy Twomey

Who would make a judgment call as to how issues would receive priority? Mr. Mannion said that health reforms went through but it is obvious from what he is saying that there is a raft of material dealing with the question of eligibility. He also said that it even goes back to 1994.

Mr. Mannion

I am not sure.

Deputy Twomey

All right, but even so it would have landed back on his desk if the Minister inserted a whole section on health strategy. Who would have made the judgment call to park that one and run with the reforms instead?

Mr. Mannion

I am not sure anyone made the decision to park, as the Deputy puts it. The Travers report talks about parking the 2002 memo, which was not even submitted to the Secretary General of the Department.

Deputy Twomey

However, the health strategy was.

Mr. Mannion

It was a joint decision between the Secretary General and the Minister to embark upon a reform programme. The Secretary General played a fairly central role in that.

Ms Gillane

It is important to note that when discussions are mentioned concerning eligibility, in that context it was going into the future, it was not going back to 1976, until the Supreme Court ruling.

Deputy Twomey

It was going into the future.

Ms Gillane

There is an important differentiation there — that when the decision was to go ahead with the reform programme it was not because the Minister or the Secretary General knew in December 2003 that there was no legal basis for contributions to be taken from people in public, long-stay facilities.

Deputy Twomey

Yet Ms Gillane would have known there were difficulties and problems with regard to eligibility criteria going back to 2001.

Ms Gillane

The Deputy is talking about the over-70s.

Deputy Twomey

I am talking about the health strategy.

Ms Gillane

As I said, the health strategy dealt with eligibility but it was also about access and services, including services for the elderly. It was to provide a statutory framework for the services to which people were entitled. As we all know, there are many services and pilot projects in the community for which there is no statutory framework. The health strategy proposed a framework for the future. At no stage was it said a legal framework should be put in place for something which had been ongoing since 1976. In retrospect, having worked in the health service, it would have been known that people would have been asked for permission to contribute their pension. That is an important point. It was not a question of robbing. There was no legal basis for a practice that had continued over 30 years.

Deputy Twomey

Therefore, as advisers to the Minister, Ms Gillane and Mr. Mannion would not have placed great significance on the matter when the health strategy was being drawn up.

Ms Gillane

I am not saying that. I am saying that, in hindsight, a lot of issues have arisen, particularly following the judgment of the Supreme Court.

Chairman

There is a vote in the Dáil.

Deputy Neville

I asked questions.

Chairman

We will come back to them. We will suspend the sitting for a few minutes.

Mr. Mannion

Deputy Neville raised a point about the Minister of State, Deputy Callely, briefing the Taoiseach.

Chairman

To be fair, we would be rushing. We will come back to that issue.

Sitting suspended at 12.30 p.m. and resumed at 12.50 p.m.

Chairman

We were in the middle of Deputy Neville's questions.

Mr. Mannion

Mr. Kelly's note on individual responsibilities mentioned services for older people. I was the person who was——

Deputy Neville

Mr. Mannion was the person with special responsibility for them.

Mr. Mannion

Yes. That related to the services for older people and trying to secure better subvention for home care programmes. On the capital side, we were trying to improve the infrastructure for elderly people. I also worked on PPPs, which included 850 additional places for elderly people. These were the main areas in which I was involved.

The issue involved here was dealt with through the planning and evaluation section of the Department. It did not go through the services for older people section, therefore, it did not arise in discussions with some of the people involved.

Deputy Neville

When we hear this, we think there are services for older people in the Department, yet this very serious issue for older people is not an issue for the section in which Mr. Mannion was involved. I am not casting aspersions on him; it is just how the Department works.

Mr. Mannion

Some of the issues regarding subvention and so on would have been part of it. The issue of eligibility and so on was dealt with by the planning and evaluation unit of the Department, which was a separate matter.

Officials in the Department of Health and Children were under extreme pressure. Their workload was huge. There were difficulties on many occasions. Trying to equate the difference between the two Departments is quite difficult. Administratively, there would be similar structures in each Department. The people who worked in the Department of Health and Children vis-à-vis the Civil Service generally would have drawn a short straw given the difficulties and the complex issues they would meet on a daily basis. From that point of view, it is difficult to equate the functions of both Departments. There is very little of the fire brigade work, so to speak, in the Department of Enterprise, Trade and Employment that there is in the Department of Health and Children.

Deputy Neville

In your present Department, are all significant matters routed through the Minister?

Mr. Mannion

Yes.

Ms Gillane

On the Gama issue that came to light in the Dáil in February, all these meetings would have been attended by an adviser, the Secretary General, the assistant secretary and the Minister regarding a forward plan. This is the issue in the last six months which caused such controversy.

Deputy Neville

Would the Minister attend the whole meeting?

Ms Gillane

He would attend most of the meeting.

Deputy Neville

I asked about the briefing notes. Did Mr. Travers ask for them?

Mr. Mannion

He asked for them but I did not have briefing notes on this issue to give him. I had no briefing notes on the issue.

Deputy Neville

Did it surprise you, or did you ask why this issue was raised at the MAC meeting and not dealt with? We were informed that in regard to seeking clarification from the Attorney General on advice given, this was done almost automatically on most issues by the Department without reference to anyone. Why do you feel this went to the level of the MAC meeting; was it because it was seeking advice from the Attorney General on information received from the South Eastern Health Board?

Mr. Mannion

It appears from what we now know that there were a number of discussions on the issue throughout 2003 between officials of the health board and the Department. The CEOs would have discussed the matter in June. Perhaps because all the CEOs were present at the meeting on 16 December, it was included for brief mention again.

Deputy Neville

The decision was made. Prior to that, there was no reason a request would not be sent to the Attorney General.

Mr. Mannion

No reason.

Ms Gillane

The South Eastern Health Board advice originally consisted of 180 pages. When it was given to the Department in March 2003, there was no reason it could not have gone to the Attorney General's office at that stage. The Secretary General dealt with it from his point of view in that the Department of Health and Children at the time thought it was legally defensible. Mr. McLoughlin said there were approximately four meetings or discussions involving his officials or himself between March 2003 and December 2003. He said that when the CEOs discussed the matter in June 2003, some of them disagreed with the opinion and the chair of the CEOs was meant to write to the Department. He said that did not happen, which is why he put it on the agenda for the MAC-CEO meeting.

Deputy Neville

Could Ms Gillane and Mr. Mannion briefly explain their role? They are political advisers to Ministers. Are they more involved in the political life of the Minister, which I can understand, than in administrative or policy-making decisions in the Department? They were there but they did not have to speak to the Minister and were not directly involved in the decision-making. How do they see their role within the Civil Service and the Department in regard to the Minister? At the beginning, they said they were formulating policy.

Ms Gillane

No, we are mainly political. However, one cannot have one system without the other. Politicians and Ministers, in particular, cannot do without the civil servants and civil servants cannot do without the Ministers or the Government. There must be intertwining and respect for both positions. Predominantly, both advisers would have been there to assist the Minister in implementing Government decisions or Government policy. This is utilising, working and harmonising with civil servants of the Department.

Deputy McManus

The Minister of State, Deputy Callely, did not read the briefing document. When he was at the MAC meeting he understood that this was a serious issue and undertook to brief the Taoiseach and the former Minister, Deputy Martin. According to himself, within a couple of days he briefed the Taoiseach. He considered that it was not necessary to brief the Minister because he presumed he was being briefed. Why do you think the Minister of State, Deputy Callely, who also had not read the briefing document, came away from the MAC meeting with an understanding of the importance of this issue, yet Mr. Mannion and Ms Gillane were at the MAC meeting and it did not make any impact on them? Why do they think that was the case?

Ms Gillane

The Minister of State, Deputy Callely, spoke to the committee from his point of view and made his observations known to Mr. Travers, which is outlined in the Travers report. We accept the Travers report. There is criticism of the advisers.

Deputy McManus

I am not interested in Travers.

Ms Gillane

That is what we are here to talk about.

Deputy McManus

Does Ms Gillane think Travers is some kind of let-out for the advisers? The way she described Mr. McLoughlin's——

Ms Gillane

With respect, Deputy, I did not say that.

Deputy McManus

I just want factual information. The reference to the MAC was very short. Ms Gillane said that Mr. McLoughlin said a few words and that was to be conveyed to the AG. That is the impression she gives. The Minister of State had not read the briefing document, but something penetrated his brain and told him that this was important enough not just to inform the Minister, but to inform the Taoiseach, which he did very quickly. Why did Ms Gillane not have the same experience?

Ms Gillane

I think Mr. McLoughlin said that it did not merit detailed discussion at the meeting. He also said that he received telephone calls from the Minister of State, Deputy Callely, to assist him on the issue. The Minister of State said what he believed. We related to the best of our ability our recollection of the meeting. The Travers report outlines the recommendations for the future and our role in regard to the meeting and the fact that we did not probe the matter.

Deputy McManus

Who said they got telephone calls from the Minister of State, Deputy Callely?

Ms Gillane

I believe Mr. McLoughlin, because I read the transcript. The Minister of State, Deputy Callely, rang Mr. McLoughlin purely to go through what he said at the meeting.

Deputy McManus

That was much later.

Ms Gillane

I cannot comment on Deputy Callely's comments in regard to 16 December.

Mr. Mannion

Other than to say that his responsibility was services for older people. Perhaps because he was used to reading up on these issues, it triggered something for him at the time.

Deputy Cooper-Flynn

It is just second-guessing.

Mr. Mannion

What I said to the joint committee this morning was related to the length of the discussion. Mr. McLoughlin also said it was a short discussion. Perhaps just one person spoke. I cannot be sure who that person was but I recollect——

Deputy McManus

I thought he said he was going to brief the Taoiseach.

Mr. Mannion

I am not disputing that he may have said that; what I am saying, lest someone has the impression that we are just trying to say the discussion was short, is that it was verified by Mr. McLoughlin that it was short. Nobody has said there was a long discussion on the matter. We are just saying, that from our observations of what was discussed on the day of the meeting, the right decision was made.

Deputy Cooper-Flynn

With regard to what Deputy McManus said, my interpretation of what the former Minister of State at the Department of Health and Children, Deputy Callely, said before the joint committee is slightly different. I agree he felt the need to inform the Taoiseach but my recollection is that, because it was a matter that would come before the Cabinet because it had been referred to the Attorney General, he was just alerting the Taoiseach to it. I did not hear him say he felt it was a substantive matter. The Minister of State, Deputy Tim O'Malley, said that but I do not recall the Minister of State, Deputy Callely, saying it. The emphasis that has been put on that might ——

Deputy McManus

He undertook to brief the Taoiseach.

Deputy Cooper-Flynn

Yes but his reason for so doing was clearly the matter was being referred to the Attorney General and he just wanted to alert the Taoiseach to the fact that it might come before Cabinet. That is my recollection.

I would like to highlight a number of points highlighted by Ms Gillane. What is central to this matter is the attitude within the Department and when Mr. Kelly knew about it, whether in February or March 2003. Whether Mr. Kelly was at the meeting — I appreciate this has yet to be confirmed — there was a bilateral meeting in March 2003 at which the matter was discussed. It is interesting to bear in mind that, given that it was discussed in February and March, there was no Department briefing document. Obviously, the Department did not see it as a substantial enough issue to attach a briefing document to the advice received by the South Eastern Health Board. When Mr. McLoughlin appeared before the joint committee, he mentioned that when he had raised this advice with, presumably, Mr. Kelly, or whoever was present at the February meeting, the response of the Department was that it felt what it was doing at the time was defensible. In the light of this, I understand the attitude of Mr. McLoughlin and the other CEOs was that the legal advice the Department had received was different. However, it still did not seem significant enough to the Department to attach a detailed Department brief to the legal opinion obtained by the South Eastern Health Board. When he came before the committee, the former Minister, Deputy Martin, acknowledged that it was significant because of the legal names attached to it. However, it still did not warrant a briefing document from the Department.

Deputy McManus

It is self-evident.

Deputy Cooper-Flynn

I did not interrupt the Deputy. It is not self-evident because, as clearly articulated before the joint committee, it was still only a legal opinion given to a health board. While it was an important legal opinion, it was not an opinion of the Department which does not necessarily have to accept the legal opinion given to a health board. However, my point is that it should have had a view on it.

To come to the December meeting, it seems extraordinary the matter was left for nine months without attaching a brief. This is important because it indicates the attitude of the Department. Remember Mr. Kelly stated in his evidence that while he understood it was significant in December 2003, he admitted it "went off my radar screen". Again — I am only making points based on the facts — this gives us an insight into the attitude of the Department.

Mr. Kelly stated he did not appreciate, even in December 2003, the retrospective nature of the issue. While there could have been a significant bill of €100 million, it was not going to be €500 million. It is important to point this out. He also said he never felt the briefing of an adviser was a substitute for advising the Minister. That is critical. Deputy McManus may smile but this is what has come out in the evidence. If I am wrong, please correct me but that is my recollection.

Deputy McManus

Neither the Minister nor the advisers read the document.

Deputy Cooper-Flynn

No but it is important, in the light of the fact that two advisers are before the joint committee today, to indicate the Secretary General of the Department never felt the briefing of an adviser was a substitute for briefing the Minister. Let Deputy McManus make of it what she will.

My question relates to the MAC meetings of March and October 2004. The matter came up for brief discussion in December 2003 and a letter was supposed to be sent to the Attorney General but that did not happen. Did Ms Gillane and Mr. Mannion attend the MAC meetings of March and October 2004?

Ms Gillane

No.

Deputy Cooper-Flynn

That answers my question. I thank Ms Gillane.

Ms Gillane

May I make one more point? It is important to say, even if we had read it, the right decision was made. That is the issue from our point of view.

Deputy McManus

No, it is not. The point we are pursuing is not whether the decision was correct — it was — but that the information would have led the advisers and a Minister to pursue the matter because they would have understood how important it was.

Ms Gillane

We understood the matter was being pursued because it had been decided unanimously at the meeting to get advice from the Attorney General.

Deputy McManus

However, Ms Gillane did not even read the document.

Ms Gillane

There were many issues in the Department that required legal clarification. This was just one of them.

Deputy McManus

I appreciate that.

Ms Gillane

There would have been many such issues, including the elderly and the Ombudsman's report, etc.

Deputy McManus

I do not want to dispute that but this was important enough to be raised at a MAC meeting. There had not been such a meeting for a long time. It was important enough to alert the Minister of State, Deputy Tim O'Malley, that there were huge implications. It was important enough to alert Mr. Michael Kelly that it required stand-alone legislation. I would have thought that if the Minister and his advisers had taken the trouble to read the briefing document, it would have been seen that it was important enough to be acted on, rather than allowing it to go through the normal channels. However, I am at a disadvantage because we are blocked from seeing the legal advice received by the South Eastern Health Board.

Deputy Cooper-Flynn

The facts bear out that it was not significant. By his own admission the Secretary General said it was not——

Deputy McManus

Those who had read it said it was; the people who did not read it——

Deputy Cooper-Flynn

Yet the Secretary General, the chief civil servant in the Department, said it went off his radar screen.

Chairman

We will not fight on that point now.

Deputy Twomey

Ms Gillane made clear everybody's role within the Department of Health and Children. She stated clearly the role of the Secretary General, the role of the Minister and his Ministers of State, and the role of the advisers. She seemed to make it clear that they all interacted, according to the Act of 1997. There may be differences of opinion as to how information is passed between them because the political arm of the Department of Health and Children never puts this issue on the radar. While it may have fallen off Mr. Michael Kelly's radar, it never went on that of Ms Gillane and Mr. Mannion. Do they feel Mr. Kelly — I think they should answer this question — was unfairly treated by the Tánaiste?

Ms Gillane

I will not answer that question. Oireachtas Members are covered by privilege but we are not.

Chairman

Let us be fair. We should remember why these officials are here today. It is not within our remit to ask them what they think is fair. We are asking them about the procedures they followed.

Deputy Twomey

I will ask another question. Do they feel Mr. Kelly did a good job as Secretary General in the Department?

Chairman

Let me be fair and say this——

Deputy Twomey

He has lost his job.

Chairman

Let us be fair. As the Deputy knows, I have never become involved in trying to direct the proceedings. I will not do so. We are asking the officials to assist us in formulating our report. We cannot ask them, therefore, their opinions of how people performed or otherwise. As I have felt like an air traffic controller for the past half an hour listening to what was said about what was on the radar, I am beginning to wonder whether we are moving towards questioning people's perception. I find that difficult to accept.

Deputy Cooper-Flynn

Mind the low-flying jets.

Deputy Twomey

Do not lose anything off the screen.

Chairman

I do not want to do so but at the same time we should not be looking for UFOs.

Deputy Twomey

This is a serious matter.

Chairman

We are asking the officials to enter a difficult area in which I am loath to get involved. People should not think I have a priority or that I am trying to engage in a cover-up. I have interrupted to say I think the Deputy is pursuing the wrong issue.

Deputy Twomey

This arises as a result of frustration on this side of the House. We are of the opinion that Mr. Kelly may have been treated unfairly.

Chairman

This committee will shortly make a report. These issues will be debated to decide on a position. It is unfair to ask officials to establish that point for us for this part of the committee's hearings. We should endeavour to ascertain it at a later stage. I am not covering for the officials but I would have thought Ms Gillane and Mr. Mannion, by virtue of the fact the Attorney General's legal advice was being requested, would have presumed this was in train. I am loath to say this lest the committee members think I am trying to cover up.

Deputy Twomey

I would not make that accusation.

Chairman

I thank Mr. Mannion and Ms Gillane for attending.

The joint committee went into private session at 1.10 p.m. and adjourned at 1.15 p.m. until 9.30 a.m. on Thursday, 28 April 2005.