On the question that the Department did not take effective action to address these legal concerns at any time until October 2004, the reasons for the inaction of the Department in relation to the known legal concerns lay in a combination of the following ten factors: a belief that the underlying principle was right; a desire to protect an important source of income for looking after the elderly in a situation where State underfunding for health services was regarded as endemic; a failure to attach due weight to the legal concerns expressed; an apparent undue concern about political sensitivity; the effluxion of time in the sense of a perception that what appeared to operate reasonably effectively for a considerable period of time did not require to be changed; weaknesses in the risk assessment procedures of the Department; weaknesses in the analysis of the issues involved on the part of the Department; poor overall corporate judgment by the Department; a failure on the part of the Department to act decisively in seeking the advice of the Attorney General in 2003-04; and a failure at political level over the years in not probing and questioning more strongly and assiduously the issues underlying the practice of charges for nursing home care in place since 1976. These factors help to explain, but not necessarily justify, the absence of appropriate action on the part of the Department to deal effectively with the relevant issues over the period concerned.
As regards where to go from here, a number of recommendations are set out in the report. These cover strategic, organisational and procedural issues, both in the Department and relating to the wider public service. They are based on lessons to be learned from the failures which have attended the introduction and maintenance over many years of the system of illegal charges for nursing home care in health board institutions covered in the report.
There has been widespread acceptance of the central findings of the report. I am not aware of any objective and informed rejection of them. The former Secretary General of the Department of Health and Children in his presentation to this committee fully accepted what he terms the "central thesis" of the report that the judgments made in relation to the illegal nursing home charges over the years by the Department were mistaken and that the failure to act on the legal doubts expressed represented a form of maladministration. He also stated in his evidence to the committee that he has no dispute with the facts outlined in the report. The Minister, the Ministers of State and the special advisers to the Ministers who have appeared before this committee have also indicated their acceptance of the main findings, conclusions and facts set out in the report. The Tánaiste and Minister for Health and Children, who commissioned the report, has indicated that it fully meets its terms of reference and that she accepts its findings.
A number of issues for clarification have been raised in relation to the report by this committee and by others. The seeking of such clarification is correct and appropriate given the seriousness of the issues raised for all those directly affected by the illegal nursing home charges, for our system of public administration and political governance and for the taxpayer. This is especially so because of the sensitivity and consequences of the findings and conclusions set out in the report. I attempt to respond to what I consider the most significant of these issues as follows.
First, the responsibility attributed to politicians, including the former Minister, Deputy Martin, for the now widely accepted systemic corporate failure that applied to the illegal practice of nursing home charges in health board institutions was, unjustifiably, of a lower order of magnitude than that which applied to civil servants. Second, a copy of the full report should have been given to the then Secretary General of the Department of Health and Children for his observations and inputs in advance of its submission to the person who commissioned the report, namely, the Tánaiste and Minister for Health and Children. Third, only the final version of the different versions of the statement provided by the then Secretary General of the Department in relation to the follow-up to the submission prepared for issue to the Attorney General in January 2004, as set out at paragraph 4.57 of the report, should have been included in the report.
Fourth, a copy of the e-mail provided for the purpose of the investigation by the official referred to at paragraph 4.54 of the report who, as described in the report, outlined a recollection of seeing in early 2004 the submission made to the Secretary General for transmission to the Attorney General in January 2004 in the outer office of the Minister should have been included as an additional appendix with the other 20 appendices to the report. Fifth, the criticisms set out in the report of the operation of the management advisory committee in the Department over a number of years are not justified. Sixth, the introduction of an amendment to the Health Act 1970 to provide a proper legal basis for the illegal practice, universal across health boards, of levying charges on persons with medical cards in health board nursing homes would not, as the report states, be simply a technically uncomplicated amendment unlikely to raise unduly serious political or other difficulties in its enactment.
Each of the above is discussed in detail later in this presentation. Before doing so, I emphasise again a fundamental conclusion of the report, which is the subject matter of the deliberations of this committee. Based on the facts clearly stated and established in the report, the illegal imposition of nursing home charges, as outlined in it, represents, without qualification, a long-term systemic corporate failure in the Department of Health and Children at both political and administrative levels in relation to that particular issue. There has not been and cannot be any credible refutation of that conclusion. It flows inexorably from the undisputed facts outlined in the report.
The failures involved are of the utmost seriousness for the system of Irish public administration, including political governance. This is so both in terms of the length of time over which they persisted and in terms of the financial implications which arise for the Exchequer. The challenge that now comes into focus for our system of public administration and political governance is to address fully, honestly and without reservation the lessons to be learned from the failures that have taken place so that failures of such extent and magnitude will not recur.
It is important to restate these matters drawn from the report so that the discussion on the issues raised in regard to the report from various sources, as outlined, do not detract from the fundamental and uncontested findings of the report regarding the long-term systemic corporate failure which underlay the practice of illegal nursing home charges described in the report. Drawing attention to the central and uncontested conclusions of the report and the underlying facts does not, in any way, diminish the importance of responding fully, openly and accurately to other issues raised, a number of which have clearly, fairly and legitimately been raised by members of the committee.
In other instances, peripheral issues have been raised with an apparent objective of diverting attention from the fundamental and widely accepted conclusions of the report in some mistaken belief that, in some unknown way, this serves the interests of our system of public administration and political governance; it, of course, does not. The outstanding integrity, professionalism and performance of civil servants generally in the Department of Health and Children and elsewhere, which are strongly acknowledged in the report, are poorly served and represented by any attempt to defend the indefensible in the case of the acknowledged maladministration associated with the practice of illegal nursing home charges over many years.
The failures of public administration involved in this area, have, inevitably, if unfairly, shaken public confidence in the wider system of public administration that has served this country well over so many years in both the Department of Health and Children and elsewhere. It is, and would be, highly irresponsible to fail to acknowledge without reservation the failures that have occurred in the significant but limited area of public administration concerned. To do so would represent a closing of eyes and ears to the undisputed facts that have emerged and a refusal to face up to the consequences of required acknowledgement and organisational and procedural changes that must logically follow. It is vital that this is done openly and honestly if similar failures at both political and administrative levels are to be avoided in future and if the confidence of citizens in the essential competence and integrity of our system of public administration, which has prevailed over many decades, is to be maintained and enhanced.
To their credit, the officials of the Department of Health and Children have acknowledged these points and the validity of the central findings and facts of the report in their evidence to this committee and elsewhere. I do not underestimate the difficulty involved in doing this. This is especially the case since the report clearly points out that the illegal charges in place since 1976 conferred no particular benefits on officials, or Ministers, of the Department and that concurrence with them derived, to a considerable extent, from a desire to protect what was seen as essential income for an underfunded national health system. It also derived from a widely accepted belief that the principle of making charges for the long-stay services provided was correct. In clearly acknowledging the mistakes made, the officials of the Department represent the best traditions of the public service system and, in doing so, provide good foundations for maintaining confidence in its continued integrity and competence in future years.
I refer to a number of the issues raised. The first issue is the responsibility attributed to politicians, including the former Minister for Health and Children, Deputy Martin, for the widely accepted systemic corporate failure that applied to the illegal practice of nursing home charges in health board institutions was, unjustifiably, of a lower order of magnitude than that which applied to civil servants.
I have some concerns about entering into discussion on this matter in that it is an issue which, apart from its intrinsic relevance and relationship to a number of the conclusions drawn in the report, is also being widely addressed from a political perspective. Having worked effectively with Ministers of different political persuasions in a number of Departments over many years, I understand, at least to some extent, the inevitability of this in the context of our system of parliamentary democracy. I hope the committee will understand, however, if I point out that in the report I prepared and in my presentation to the committee, I have not entered, and will not enter, into discussion on the purely political issues that arise.
With regard to the issue of political responsibility, controversy, perhaps, could have been avoided on the matter if the overall conclusion of systemic corporate failure, political and administrative, over a period of almost 30 years had been allowed to stand alone and without qualification in the report. For the report to apportion equality of responsibility in the maladministration clearly apparent over time, and now widely accepted, in respect of the nursing home charges might appear to have been the judicious course of action to follow. To have done so, however, would have represented a serious derogation of responsibility in compiling the report. If this had happened, the report would have been fundamentally unfair and unsound.
Ministers as well as civil servants are entitled to fair treatment. If the report had failed to address this issue, it would also have failed to provide the proper context and foundation for, perhaps, the most important of the four elements set out in the terms of reference for the report, that is, the element which points to the future rather than to the arid territory of the past. I refer to the element of the terms of reference for the report which required the identification of "such changes in practices and procedures, in the Department of Health & Children, that are necessary or desirable for the purpose of prioritising the response of the Department to matters of significant policy, financial or legal importance".
The report draws attention in page 68 to the likelihood, even in the absence of any documentary evidence made available to me by the Department of Health and Children in response to my specific and repeated requests for such evidence, that various Ministers over the years had some awareness of the difficulties surrounding the charging regime and that Ministers and their advisers might have been expected to more actively probe and analyse the underlying issues involved. The report does not, in any way, attempt to minimise, excuse or justify the lack of action by Ministers and their advisers in this respect over the years.
The report concludes, however, on the evidence available that the shortcomings of Ministers in this regard were of a significantly lesser scale, substance and order of magnitude than those of the system of administration. Two main reasons are adduced for this conclusion. The primary responsibility to provide a clear, authoritative analysis of the issues involved rested with the Department of Health and Children. The failure to do so over so many years represents a major failure of administration. The main information base and corporate memory on the issues involved lay with the administrative system of the Department of Health and Children. Ministers could not reasonably be expected to be aware of the full extent of the issues that surrounded the practices of charges for long-stay care in health board institutions held in the information base of the Department if these were not brought forward in a clear, convincing and recordable format. The "chapter and verse" underlying these conclusions are set out clearly and fairly throughout the report, especially in chapters 3, 4 and 5.
The proposition has been put forward, including within this committee, that because of the availability of the legal opinion provided to the then South Eastern Health Board, SEHB, in 2002 to the effect, among other things, that the practice of charging people with medical cards in health board nursing homes was illegal it follows that the Minister in place in the Department of Health and Children at that time was more culpable than predecessor Ministers in not dealing effectively with the issue or having it dealt with effectively.
I gave that proposition a great deal of consideration in writing my report. I have subsequently done so again following the objectively and entirely correct decision of members of the committee to raise it during its deliberations. I am grateful to the committee for doing so and for providing me with the opportunity to address it again. In doing so, I am conscious of the different political interests involved to which I have referred previously in this presentation. It might be again considered judicious to prevaricate on this but I do not intend to do so in the knowledge that I have attempted to approach the matter as fairly and as objectively as possible on the basis of the established facts available to me and that I have dealt with the matter from a completely apolitical perspective.
I did not at the time I prepared the report, and I do not now, consider the proposition outlined to be sustainable. If I considered it to be so, I would have said that in my report and I would say so now. The reasons for my conclusions on this matter, based on the evidence made available to me, are as follows: the substance of the legal opinion on this matter provided to the SEHB and conveyed to the Department in early 2003 was not different from the legal opinions and other advices conveyed to the Department on a number of occasions previously as set out in the report, including that of the Department's legal advisers, at the time the illegal practice of nursing home charges was introduced in 1976 and on a number of other occasions over the years; of Senior Counsel Ronan Keane and Thomas McCann in 1978; of the registrar of the wards of court operating under the aegis of the President of the High Court in 1978; included in memoranda prepared by the Department of Health and Children and submitted to successive Governments in February and March 1987; of a number of internal briefing documents in the Department of Health and Children, notably in 1982 and 1992; of a number of advisory and statutory bodies established over the years, including the Commission on Health Funding in 1989 and the Human Rights Commission in 2003; and of a number of Government statements on health strategy, including, notably, those of 1994 and 2001.
It would be unfair to single out the then Minister for Health and Children, who happened to be in position at the time of receipt of the most recent legal opinion on the illegality of nursing home charges, for greater culpability and responsibility than that of any of his predecessors. The logic of such a proposition would be that a hierarchy of political responsibility and culpability in respect of the illegal nursing home charges should apply to Ministers based on the distance in time that has elapsed between their occupation of the position of Minister and the time the initial flawed decision was taken in 1976. This is because the number of legal opinions at variance with the practice of charges put in place in 1976 increased over time. On the other hand, the continuation of the practice without challenge over time might be seen to have conferred comfort on the validity of the charging system in place. The corollary to this proposition is that the Minister in position at the time the flawed illegal practice was introduced in 1976 bears the least responsibility and culpability, and perhaps even none, if the length of distance in time from the flawed decision is regarded as the measure of assessment. Clearly such a proposition is unsustainable.
The joint committee may wish to note the views of the former Secretary General on these matters. In his evidence to the joint committee on 20 April, he suggested that a greater weight of responsibility should have been attached to politicians in the report. This is on the basis of the "subtle clues" and "strong political undercurrents" he discerned in the papers he read, especially those surrounding events in 1976, 1979 and 1987, as set out on page 53 of the transcript of proceedings. It also involved a "reading between the lines to know what was going on", as set out on page 70 of the transcript of proceedings.
Reading between the lines is an interesting and informative, if somewhat inconclusive, exercise. I have engaged in the practice while carrying out the investigation which is the subject matter of the report. However, it is an exercise which invites different interpretations, to none of which can certainty be ascribed. It is an exercise which cannot form a basis for conclusions of substance or any great credibility. The need to resort to the intrinsic uncertainty and dissatisfaction arising from attempts to read between the lines results from a failure to maintain even a de minimis recording of certain significant discussions, decisions and directions, purported or real, on the nursing home charges issue over the years.
It might be noted that while the former Secretary General raised the issue, he came to no conclusions of substance on the matter. His comments did not, in any way, go as far as those set out clearly and unambiguously in the report on the matter. On page 70 of the transcript of proceedings, he stated that whatever charges he lays against Ministers in the somewhat distant past — these do not appear to amount to very much — he is "not making the same charge against any Minister in recent times". Since the former Secretary General was close to the events of relevance to the matter in recent years his evidence on this issue may be of particular interest to the joint committee.
Reference has been made to the briefing provided for the MAC-CEO meeting of 16 December 2003. The background to this meeting, the agenda for the meeting, the range of items discussed, the background papers circulated for the meeting, the minutes of the meeting and a number of related matters have been described clearly in paragraph 4.35 and subsequent paragraphs of the report. As is clear from the report, the issue of long-stay charges was discussed under one of the five elements listed as part of the agenda item described, possibly erroneously, as Long Stay Charges — Over 70s.
Two briefing documents were, with others, circulated late on the afternoon before the meeting. The first was a short inter-office memorandum dated 8 May 2003, approximately one page in length, from the SEHB which raised three issues: the entitlement, or otherwise, of persons with "full eligibility" to a place in a long-stay hospital free of charge; the entitlement, or otherwise, of people over 70 years of age to free long-stay hospital care, if required; and the need for health boards generally to discuss these matters.
The second document consisted of a summary of legal advices which the SEHB had received regarding the provision of nursing home care which was not as extensive or detailed as the excerpts set out in paragraph 3.35 of the report which I prepared and submitted to the Tánaiste and Minister for Health and Children in March 2005.
It might be noted that no briefing note was circulated for the meeting by the Department of Health and Children on these matters. In the course of the work I undertook in preparing the report, I was informed by the Department that no briefing had been prepared for submission to the Minister on the matter during the course of 2003. I understand that the Department has confirmed this position to the joint committee.
A briefing document, which is set out as annexe 6 of this presentation, including a draft memorandum for the Government, appears to have been provided for the information of the then Secretary General on 15 December 2003, that is on the day before the MAC-CEO meeting of 16 December 2003. The introduction of the briefing document states:
This paper summarises the key points on the need for a revised system for long-stay care in health board institutions. A detailed paper on the background to these issues is attached together with a draft memorandum for Government. There have been growing difficulties with the legislation in this area, arising from court judgments, the absence of a specific statutory framework to reflect the changing nature of care in this area and, in particular, the decision to grant automatic entitlement to medical cards for persons over 70 years.
Reference was also made to the Government health strategy published in November 2001. The report covers relevant issues set out in that strategy at paragraphs 3.29 and 4.27 to 4.30, inclusive. In particular, the report draws attention to certain elements of the health strategy of 2001. The strategy stated: "it is fair that all those in receipt of publicly provided residential long-term care should make some payment towards accommodation and daily living costs, if they can afford to do so, just as they would if they were living in the community".
The strategy also noted that the system of eligibility for services within the health system is complex. It committed to the introduction of new legislation to provide for clear statutory provisions on entitlements to health services generally and, within that legislation, to a "clear framework for financing of long-stay care for older people". It clearly positioned the eligibility and associated issues surrounding long-term care in health board institutions within a much wider framework of eligibility for health services generally.
It might be noted that the 2001 health strategy has little to say about legal concerns or uncertainties surrounding the practice of charges for long-stay care patients in health board institutions and it positioned the matter within a much wider framework of eligibility for health services in general. Some of the working papers prepared for consultative and working groups associated with the preparation of the strategy appear to have been somewhat more direct on this issue, but the issue of legal uncertainty was not highlighted in the final reports of the working or consultative groups on long-term care issues that were made available to me. The 1994 Government health strategy was more direct in this respect when, regarding the long-stay care issue, it stated
those in public care are still governed by legislation which is now recognised as inadequate ... the legislation gives rise to anomalies and inequities as regards the charges that can be made. The legislation will be amended to provide a clearer and fairer basis for these contributions towards the cost of long-term maintenance.
The second issue raised was that a copy of the full report should have been given to the then Secretary General of the Department of Health and Children for his observations and inputs in advance of its submission to the person who commissioned the report, namely, the Tánaiste and Minister for Health and Children. It has been suggested that the fact that the report in its entirety was not given to the then Secretary General before its submission to the Tánaiste means that an undertaking given at the outset was not honoured. This suggestion is at variance with the known facts and with the proper and correct procedures relating to the investigation required under the terms of reference for the report.
Attached at annexe 1 to this presentation is the note, dated 2 February 2005, provided to the then Secretary General with respect to consultation regarding the content of the report. In it, I provide "assurance that if the actions of any individual officer in the Department is identified or identifiable in the report that I will submit to the Tánaiste, that officer, if any, will be given an opportunity by me to review and comment on the relevant, if any, part of the report and such comment, if any, will be conveyed to the Tánaiste". This assurance was fully and fairly honoured in the preparation and completion of the report.
It is clear that, at the outset of the investigation I was asked to undertake, no assurance was sought and no assurance was provided that the report in its entirety would be given to any person prior to its submission to the Tánaiste and Minister for Health and Children on its completion. The former Secretary General in his evidence to this joint committee acknowledges this on page 79 of the transcript of proceedings. When, on 25 February, the former Secretary General sought a commitment from me at that stage that he be provided with a copy of the final report before its submission to the Tánaiste, I made it clear to him, as he has acknowledged to this committee, that I considered it inappropriate and beyond my authority. I informed the Tánaiste of the then Secretary General's request to me and of my response to it.
The then Secretary General did not suggest at that time that he had been given any assurance by me that he, or any other person, would be provided with the entire report on completion before its submission to the Tánaiste. He did not raise the matter with me again. The matter of my assurances to him with regard to whether the entirety of the report would be made available to him could not have been clearer from my note to him of 2 February. I provided further clarification of that matter on 25 February to the former Secretary General as he has acknowledged to this committee. I am not aware that he approached the person who commissioned the report, the Tánaiste and Minister for Health and Children, on the matter at the time and he has not said so in his evidence to the committee. I am, therefore, not a little surprised at the content and tenor of his remarks on the matter to the committee.
It might be noted that neither the then Minister, Ministers of State or special advisers to the Minister sought a copy of the report from me before its submission to the Tánaiste — presumably in the knowledge that it would be inappropriate to do so. Nor did they subsequently indicate that this should have happened even where their actions or inactions were criticised in the report. On the logic of the former Secretary General, they would equally have been entitled to a pre-submission copy of the report. If they had sought such a copy, it would also have been refused.
It would have been highly inappropriate and incorrect on my part to provide any person with a copy of the report in advance of its submission to the Tánaiste. Any suggestion that persons whose actions or inactions were subject to investigation under the terms of reference for the report should be given an opportunity to shape or influence the conclusions to be drawn by the person requested to undertake the investigation from the facts adduced and set out in the report would be highly irregular.
I have no doubt that the former Secretary General was given full, fair and proper opportunity without restriction to set out, as comprehensively and clearly as he wished, his version of events surrounding the issues subject to investigation under the terms of reference for the report. That was a right to which he was entitled and which he fully received.
The matter of the publication of the report has been raised. I was asked to prepare the report under the terms of reference assigned to me and submit it to the Tánaiste within a relatively short period. The matter of the publication of the report was a different matter which lay to be determined elsewhere. I would expect and understand that this was a matter on which the advice of the Attorney General would have been sought. I assume, therefore, that this is a matter that was dealt with in a fully correct and appropriate way.
The third issue that has been raised is that only the final version of the different versions of the statement provided by the then Secretary General of the Department regarding the follow-up to the submission prepared for issue to the Attorney General in January 2004, as set out at paragraph 4.57 of the report, should have been included in the report. I outlined in my evidence to the committee on 12 April, which is set out on page 46 of the transcript of proceedings, the background to the decision I took to invite the then Secretary General on 25 February to prepare a statement for full inclusion in the report. I attach, as Annexe 2 to this presentation, a copy of the letter which I sent to the then Secretary General on 25 January 2005 on the matter.
My decision to invite the then Secretary General to prepare a statement arose, as I indicated to the committee, on 12 April because I came to the conclusion that it would be more satisfactory if he himself prepared a statement of events for full inclusion in the report rather than that I attempt to do it solely on the basis of the discussions I had undertaken with him. The reason for this is that I had attempted to reflect what I had heard from the then Secretary General in a number of drafts but had difficulty with some of the changes with regard to the interpretation of events, as I had understood them from our discussions, that he suggested I make to these drafts. This remains the position.
The former Secretary General, in his statement to the committee on 20 April, which is set out on pages 55-56 of the transcript of proceedings, indicated that this difficulty related solely to the recording of the recollection of one official with regard to seeing the "missing folder" containing the letter and material prepared in January 2004 for the then Secretary General to send to the Attorney General in the outer office of the Minister. This is not correct. As I informed the committee on 12 April, which is set out on page 47 of the transcript of proceedings, the material included in the report regarding that matter had been co-drafted and initialled by the official concerned. I was reluctant to record in my report a version of that matter proposed by the then Secretary General and which differed to what the official concerned had co-drafted and initialled. From my discussions with him at the time, I understand that the then Secretary General was aware that the relevant material in the report on this matter had been co-drafted with me by the official concerned.
There were also other issues to which the former Secretary General did not refer in his discussion regarding this matter with the committee. One such issue related to the evidence that another official who worked in the Minister's office provided in respect of the matter of the sighting or nonsighting of the "missing folder" and the discussion or non-discussion between the two officials concerned with regard to the folder. I did not share with the then Secretary General a congruence of view regarding how the recollection of this official in respect of his stated recollection of events might be recorded in the report. Again, what I considered to be the most appropriate approach on this matter was, as with the other official, to invite this official to also co-draft with me the relevant material for inclusion in the report. The second official did this and also initialled it. I have absolutely no doubt but that the procedure adopted with regard to the recording of the two officials concerned was absolutely the correct and proper approach to adopt. It was for these reasons that I invited the then Secretary General to also prepare his own statement of events for full inclusion in the report. The former Secretary General has expressed to the committee his reservations regarding the inclusion of the four versions of his statement in the report. I have no doubt but that it was correct to include the four versions. This is for the following reasons.
The issues to be covered in the statement were not new. They had been under detailed consideration by the then Secretary General for many weeks and some of them had been under detailed consideration for several months. They had been the subject of detailed discussion with me on a number of occasions in the previous weeks and a number of drafts had, as indicated, already been prepared for inclusion in the report. The different versions of the statements were on record, including their transfer across organisational IT systems. If they had not been referred to in the report and the existence of the different versions subsequently became known, their omission would, justifiably, have been criticised. I was aware that one of the two officials referred to in the then Secretary General's statement had expressed concern to me with regard to the relative way in which reference was made to the evidence of the two officials in the statement. It is the case that there are differences of significance on this matter in the different versions of the statements which the then Secretary General prepared. In these circumstances, it would have been entirely inappropriate not to include the different versions in the report. It is not a case of being fair only to the former Secretary General. It is a case of being fair also to other people concerned and to the integrity of the terms of reference for the report. It might be noted that the former Minister for Health and Children, Deputy Martin, was asked to provide a statement for inclusion in the report within a similarly tight deadline as that to which the former Secretary General was asked to respond. In doing so, he provided just one version of his statement. I consider any suggestion that such relevant material should have been suppressed from the report unsustainable.
The fourth issue raised is that a copy of the e-mail provided for the purpose of the investigation by the official referred to at paragraph 4.54 of the report who, as described in the report, outlined a recollection of seeing in early 2004 the submission made to the Secretary General for transmission to the Attorney General in January 2004 in the outer office of the Minister should have been included as an additional appendix with the other 20 appendices to the report. In my view, no significance attaches to the fact that the e-mails were not included as an appendix to the report, in addition to the 20 other appendices so included. There is clear reference to the substance of the e-mails in paragraph 4.54 on page 48 of the report and at paragraph 4.57 on page 51 of the report and it was also clear that copies of this and any other background paper would be available to anyone as required. A copy of the e-mails, which I understand the committee has already received, is attached to this presentation at Annexe 3 for ease of reference. Copies of the e-mails from another official, which conflict with that of the official referred to are also included at Annexe 4.
Paragraph 4.54 of the report states that one official of the Department who worked in the unit dealing with charges for long-stay care recalls being in the office of the secretariat to the Minister on an occasion in early 2004, being approached by a particular official in the office with regard to the papers at issue and being asked what they were about. The official concerned from the secretariat recalls a conversation between them in the office some time early in 2004 but cannot recall the specific subject matter of the conversation. The official concerned in the secretariat to the Minister has no recollection of seeing papers such as those which he understood had been submitted to the Secretary General in the office of the secretariat at any time.
In keeping with my commitment to consult any official who might be identifiable by virtue of the content of the report, as outlined in Annexe 1 to this presentation, I discussed with the official concerned the wording to be included in the report arising from the e-mails. As indicated, the wording included was jointly prepared with and initialled by the official. It sets out what we both regarded as an authoritative representation of the substance of the e-mails. It is difficult to envisage any more straightforward or correct way of dealing with a matter of such importance to the issues relevant to the terms of reference for the report.
In anticipation of a query as to why two e-mails were submitted by the official who recollects seeing the missing folder in the outer office, the following is the position. The first e-mail of 20 January 2005 refers to the missing folder submission sent to the Secretary General for signature and transmission to the Attorney General. It suggests that the submission was about "the need to change the legislation". A copy of the submission, which I understand the committee has already received, is set out in Annexe 5 to this presentation for ease of reference. The description of the submission as being "the need to change the legislation" appeared, on the face of it, to be inconsistent with the position previously outlined by the Department to the effect that it had not concluded that a change in legislation was required arising from the legal opinion secured by the South Eastern Health Board in relation to, among other things, the charges on medical card holders for long-stay care in health board institutions. As is clear from the submission included in Annexe 6, the substance of the letter and attachment prepared for transmission to the Attorney General was to seek advice on the legality or otherwise of a number of practices surrounding the levying of charges on persons who were receiving or had received long-term care in health board institutions. It also sought advice on the State's exposure to litigation arising from the practices that had operated over many years.
The difference between an affirmative description of the submission as being about "the need to change the legislation" and its more correct description as an interrogative request for the legal advice of the Attorney General on, among other things, the then current and long-standing practices regarding charges for nursing home care is an important one. This is because the Department had not indicated elsewhere to me, nor in its discussions with the South Eastern Health Board in 2003, its belief that the practices in place were legally defensible and sustainable. This is reflected in the title of the background note attached to the submission to the Attorney General: "Background Note with Request for Legal Advice on Long Stay Charges". Accordingly, the possible inference in the e-mail of 20 January 2005 that the Department had in early 2004 concluded that a change in legislation was immediately necessary raised an important question relevant to the investigation I had been asked to conduct and which held very significant implications.
A related issue of relevance to the content of the e-mail of 20 January 2005 was the fact that the Department, as discussed at paragraph 4.28 of the report, had already prepared in 2002 a draft memorandum for Government and associated heads of a Bill providing for the charging of persons who held medical cards in health board institutions. A related briefing note and copy of the draft memorandum for Government had been given to the then Secretary General on 15 December 2003. That was the day before the MAC-CEO meeting in the Gresham Hotel on 16 December 2003. These documents were, essentially, part of the key documentation on which the Government eventually decided to introduce legislation providing for such charges in December 2004. It was for these reasons that I sought clarification in relation to the e-mail of 20 January 2005 and to which the e-mail of 28 January 2005 as set out in Annexe 4 refers.
It is also relevant that the background note attached to the proposed request for advice from the Attorney General in January 2004 included a section 7 under the heading "Existing Legal Advice". This section refers only to the legal opinion received by the South Eastern Health Board in 2002. It makes no references to other legal opinions or advice on the issue of nursing home charges for medical card holders made available to the Department over the years as described in chapters three and four of the report I prepared. These appear to be significant omissions in the context of the request included in the then proposed submission to the Attorney General for advice, among other things, regarding "the State's possible exposure to litigation for imposing charges for long-stay care in health board institutions under the statutory framework set out in the attached note".
The relevance of this to the matters the committee is examining lies in any consideration the committee may wish to give to any contention that the set of papers in the missing folder was conclusive regarding the legality or otherwise of the nursing home charges or indeed that it included any references to legal opinions made available to the Department over the years, other than that of the South Eastern Health Board. The whereabouts of the missing folder has still not been determined. The report states that the explanations provided on this matter are highly unsatisfactory and this remains the case. There has been a great deal of intensive debate on the matter and because of this, attention may have been diverted from the main cause of the uncertainty regarding what happened to the missing folder. The relevant facts, in so far as they can be ascertained, are as follows.
The missing folder was submitted to and received by the then Secretary General at the end of January 2004. The then Secretary General recalls receiving the folder but cannot recollect what he did with it. The then Secretary General's belief is that he "would have brought it to the Minister" but he cannot recollect doing so. If the Minister received the folder from the then Secretary General, the question arises as to what it was doing in the outer office of the Minister waiting to be submitted to the Minister as recollected by one official but not by any of the officials who worked in the Minister's office. Does this mean that the folder was brought to officials in the Minister's office in the first instance? As there appears to be no suggestion that the former Secretary General gave it to any of the officials in the Minister's office, why would it be in the possession of any of these officials waiting to be given to the Minister?
There appears to be no suggestion that the folder was given to either of the Minister's advisers nor were they given copies of it as would have been standard practice from the memorandum regarding the role of special advisers prepared and circulated to staff in the Department of Health and Children in March 2000 by the then Secretary General and to which reference has previously been made in the deliberations of this committee. The former Minister, Deputy Martin, has stated that he never saw the folder. There appears to be no suggestion that the folder was given to the Minister at the meeting which took place between the Minister and the Secretary General on 10 March 2004 as outlined in the Secretary General's statement, nor did that meeting apparently jog the memory of the then Secretary General in relation to the folder and the letter and attachments in it that were to be sent to the Attorney General.
On page 88 of the transcript of proceedings the former Secretary General has expressed his belief to this committee that the disappearance of the folder was an accident and that he does not know where the folder ended up. Leaving aside the issue of adequate follow-up arrangements within the Department, which is covered extensively in the report, the fact remains that the fundamental reason it is not known what happened to the missing folder is that the former Secretary General cannot recollect what he did with it. If he did, it is likely that a number of matters surrounding it could be fully resolved.
In these circumstances, it is unfortunate that other officials in the Department of Health and Children are now bearing the burden of scrutiny arising from what happened to the missing folder. The issue remains unresolved and, as outlined in the report, remains highly unsatisfactory. The events surrounding the missing folder remain one of the fundamental reasons underlying the conclusion of maladministration in relation to the way in which the issue of the illegal nursing home charges was dealt with by the Department.
The fifth issue raised is that the criticisms set out in the report of the operation of the MAC in the Department over a number of years are not justified. In the report reference is made to a widespread perception within the Department of Health and Children and external to it that the MAC of the Department, for various and mainly historic reasons, has been dysfunctional in many respects for some time. The report concluded that this is an untenable situation within a Department, the responsibilities of which affect every citizen in this State and carry major economic, social and financial implications. The report puts forward seven recommendations which aim to improve the operation of the MAC. These are set out on page 84 of the report.
The former Secretary General expressed reservations about these conclusions and recommendations on a number of grounds, stating that the description of the MAC as dysfunctional is not correct, that the conclusion is based on hearsay evidence and was arrived at without meeting most of the members of the MAC and that the recommendations reflect confused thinking on good corporate governance as regards the role of the MAC in the management of the Department.
In his evidence to this committee, the former Secretary General stated that in his view the report's conclusion may have had validity some years ago but not in the past two years. Accordingly, he appears to accept that there was a dysfunctionality issue with the MAC in the not too distant past, one of the periods during which the Department failed to deal effectively with the nursing home charges issue. He also stated in his evidence to the committee, on page 58 of the transcript of proceedings, that on assuming office in 2000 he "inherited a badly divided and demoralised Department, where mutual trust was a scarce commodity". He does not disassociate the MAC from that description, which might be regarded as a reasonable and succinct definition of dysfunctionality.
The former Secretary General, possibly over-modestly, stated that he was moderately successful in restoring positive working relations in the Department, including, presumably, in the MAC. The report pays generous tribute to his work in that respect and states "The Secretary General is credited with significant achievement in addressing this issue in recent years and in bringing greater focus and coherence to the MAC". The report goes on simply to say that the progress achieved requires to be built upon in the context of the new policy-focused role of the Department and makes seven recommendations for consideration.
Despite the improvements the then Secretary General undoubtedly brought to the operation of the MAC during his period in office, it remains the position that in the case of the nursing home charges issue — which is the sole subject matter of the report — the MAC, under his chairmanship, took no steps to follow up effectively on the decision taken at the MAC-CEO meeting on 16 December 2003 to obtain, as set out in the report, the advice of the Attorney General on the issues involved in respect of nursing home charges. The latter was despite the fact that the MAC had been party to that decision. It erroneously recorded at its meeting with health board CEOs on 29 March 2004 that it had already sought legal advice on the long-stay charges issue. It failed to correct the erroneous record of the meeting of 29 March 2004 at the subsequent MAC-CEO meeting of 18 October 2004 but recorded in error that the legal options were still being reviewed.
The former Secretary General is also incorrect in his assertion that the reference to a dysfunctional MAC was based on hearsay evidence. As indicated, the description of the MAC as dysfunctional in many respects is not inconsistent with his description in his evidence to this committee nor is it inconsistent with the views he expressed in my discussions with him while conducting the investigation I was asked to undertake. It is also consistent with the views of a number of the other members of the MAC with whom I discussed the matter.
The former Secretary General is correct to state that I met four of the ten Department members of the MAC during the course of my investigation. I discussed the operation of the MAC with each of them. I also discussed the MAC with the Minister, the two Ministers of State and the two senior advisers to the Minister. The latter are the five other regular attendees at the MAC. Their views also do not constitute hearsay evidence, nor does that of the other officials, both within and outside the Department, with whom I discussed the matter. The inference in the evidence of the former Secretary General to this committee is that the only people whose views have validity when assessing performance of the way in which the MAC functions are the departmental members of the MAC. It seems self-evident that such a view is at odds with common sense and with the accepted principles and practice of modern, good corporate governance.
The former Secretary General considers that the seven recommendations put forward in the report for consideration to improve the operation of the MAC reflect confused thinking on good corporate governance. For ease of reference, I set out these recommendations for consideration in the report. Appointing external members to the MAC with good skills in business analysis and communications to bring a wider and more questioning external perspective to the work of the MAC should be considered. Cross-membership between the MAC and the board of the HSE, in whatever pragmatic format is feasible and operational in order to ensure full understanding and good co-operation between the two organisational entities charged with the formulation and implementation of health policy, should be considered. The report also recommends upgrading the capacity of the MAC to act as an important organ and facilitator of communication both within the Department and external to it. The frequency with which the Ministers at the Department of Health and Children attend MAC meetings should be reconsidered and joint official ministerial meetings between the MAC and Ministers on a quarterly basis with a focus on significant policy and operational issues jointly determined in advance by the Minister and Secretary General should be considered.
The MAC should be used as an important instrument in keeping major items of policy and operation that are in process under review. Members of the MAC should be encouraged to take a corporate view of the activities of the Department and to take a business and analytical interest in areas of activity of the Department which lie outside their individual areas of responsibility. A policy should be developed of moving members of the MAC between different areas of activity of the Department of Health and Children more frequently than has previously been the case in order to strengthen the corporate ethos of the MAC, enhance and widen the competencies of individual MAC members and encourage innovation, inventiveness and new perspectives of thinking in undertaking the business of the Department.
These recommendations put forward for the consideration of the Department are unexceptional and it is surprising that, at least in recent years, many of them were clearly not embedded within the way in which the MAC operated in the Department. If they were, it is difficult not to believe that the matter of the illegal nursing home charges would have been managed more effectively than was the case.
It is also difficult to see where the recommendations put forward for consideration are confusing from a corporate governance perspective. It may be that some difficulty is perceived with the concept of external members sitting on the MAC and or cross-membership between the MAC and the board of the HSE in whatever pragmatic form is feasible given the items of shared agenda and objectives of both organisations. Such a view would be consistent with the consideration that only the departmental members of MAC are in a position to assess the effectiveness of its performance. However, it might be noted that such arrangements are unexceptionable by good corporate governance standards and are already, to my knowledge, working well elsewhere in the public service. As indicated, they are put forward in a non-prescriptive way for whatever consideration the Department considers they merit.
Finally, the sixth issue that has been raised is that the introduction of an amendment to the Health Act 1970 to provide a proper legal basis for the illegal practice, universal across health boards, of levying charges on persons with medical cards in health board nursing homes would not, as the report states, be simply a technically uncomplicated amendment unlikely to raise any unduly serious political or other difficulties in its enactment.
On this matter, the report states that the legislation required was a technically uncomplicated amendment to the Health Act 1970 which would simply have provided a sound legal foundation for existing practice. It would not have given rise to any significant change in what was happening on the ground. The principle underlying the legislative change required was, and remains, well-accepted as fair and reasonable. It has been set out without controversy in successive statements of health strategy over the years that people make a contribution to the cost of health services when they are in a position to do so, taking individual circumstances into account. In the context of the many difficult and controversial decisions taken by successive Governments and Ministers with responsibility for health in the past, a legislative change on the lines required to effectively legitimise existing practice could not plausibly be regarded as one of undue political difficulty.
These points appear straightforward and unremarkable. There does not appear to be any great disagreement with them, apart from a suggestion by the former Secretary General when he states that he is not aware of any Minister, other than the late Deputy John Boland, having shown enthusiasm to introduce such legislation until there was no other option. Ultimately, it is the Minister who proposes the legislative programme for the Department.
The point which needs to be emphasised is that, on the basis of the fundamental legal position, there had been no other option since 1976 — if the matter was to be dealt with effectively and correctly — except to introduce the required amending legislation if the nursing home charges, which are the subject of the report, were to be made legal. It is also simply not the case that making proposals in respect of legislation is the function only of a Minister.
There is a responsibility on a Department to make such proposals for the consideration of the Minister where actions, which have no proper legal foundation, are being undertaken by that Department or its agencies.
In this regard it may be of interest to the deliberations of the committee to note what the Ombudsman had to say on page 69 of his report on nursing home subventions in January 2001. Having concluded that the manner in which the Department of Health and Children had dealt with the nursing home subvention scheme had involved significant maladministration, the Ombudsman goes on to say it is disappointing that
... there appears not to have been any detailed discussion within the Department of Health [and Children] on alternative courses of action, including an option to amend the legislation, when it became clear that the subvention scheme as already envisaged could not be realised within existing resources ... One would expect that, in putting proposals before a Minister, a range of alternatives should be proposed. While senior civil servants, in putting alternatives may be expected to be attuned to political realities, it is surely their role sometimes to put unpalatable options to their Ministers so long as the "pros" and "cons" of the various options are clearly outlined. The Ombudsman has not seen any records which suggest that serious discussion on such alternatives took place.
There are other analogies between the conclusions regarding maladministration drawn in the report of the Ombudsman and the report which is the subject matter of the deliberations of this committee.
In this presentation I have tried to deal with some of the main issues on which the committee sought clarification in my meeting with it on 12 April and on related issues. I hope it is of some assistance to the committee in its deliberations.
