Chairman, has the committee been in public session?
Travers Report: Statements.
No.
Deputy Devins read his statement during the private session.
Deputy Devins was caught out badly.
In fairness, what I said about going into public session——
Deputy Devins said "... before the Chairman goes into public session".
I wish to read my statement in public session.
For God's sake.
This is just a misunderstanding.
Are we in public session now?
Yes.
I want to raise a point with——
Are we going through this again?
We are.
It is for the public record.
For the public record.
What is going on? It was said before we go in——
The Chairman knows quite well——
I call Deputy McManus
On a point of order, while listening to Deputy Devins's statement, I asked myself why he did not read it in public session.
My impression was that we were in public session.
I heard Deputy Devins say he wanted to read it before we went into public session. This is incredible.
In deference to Deputy Devins's wishes, the committee should agree. It is only that to which he is entitled.
This is extraordinary.
It is being done within the confines of the committee. I believe other members may have gone outside of it. In deference to Deputy Devins's wishes, he has not. He wants to make a statement when the committee is in session. He made a mistake in that he understood the committee was in public session when it was not. He should be given the opportunity to read the statement again.
The accommodation being made for one member is extraordinary. If it was Deputies Cowley, Gormley or a Fine Gael Member it would not happen. If Deputy Devins wants to read it, let him.
Given the impartiality of the Chair, I am certain that——
Please.
——the same facility would be extended.
Not a chance. In the Senator's dreams. I must get my parliamentary assistant to hear this.
The facility would be extended.
I was also hoping to say a few brief words.
The Deputy will have all the time in the world to do so.
That is fantastic.
The room is booked until 3.30 p.m. It is absolute nonsense for any member to suggest that I am allowing this because Deputy Devins is a member of my party. If, during the past 12 weeks, a member wanted to sing and dance, he or she could have done so.
With the Chairman's permission, I wish to raise an issue. It concerns the publication of the committee's investigation into the Travers report on nursing home charges later this afternoon. It is reported in the media that two members——
I ask the Deputy to wait. There are several people who wish to attend the committee and we must make them aware that it is in public session.
Are the spin doctors listening? Where are they now?
They are coming.
We have to weigh them down for the spin.
I call on Deputy Devins.
The Deputy should roll it there and shoot.
I call on Deputy Devins.
I compliment Deputy Gormley on his directorial abilities.
I wish to raise an issue concerning the committee's publication of its investigation into the Travers report on nursing home charges. It is reported in the media that two members of this all-party committee held a press conference yesterday at which serious allegations were made about other committee members. Words used, such as "bullying" and "censorship", carry a distinct and implicit nastiness. Other members and I are not prepared to allow unfounded and emotive language such as this to go unanswered. It was political spin of the worst kind, displaying a complete disregard for and insult to members.
The emptiness of these false claims is displayed by looking at the facts. The committee met in 14 sessions and spent over 35 hours debating the Travers report. We have interviewed all the leading people named in the report. On two occasions, we have met the author, Mr. Travers. The committee was asked to consider the legislative and administrative implications of the report, its findings and conclusions. Despite the naked ambition of certain Opposition members, who wanted to make a political killing, they were unable at any time to show that the contents of the report were wrong. The Travers report censures politicians and her advisers, a point made to the committee by the Minister and her advisers. However, the then Minister was not informed of the implications of the crisis and the subsequent disappearance of the request for definitive legal advice from the Office of the Attorney General. At no time was any member of this committee given any evidence which contradicted this vital point.
I wish to make a number of points in respect of yesterday's highly unusual press conference. Fine Gael and Labour published what they called 12 "conclusions" which they say were not included in the report. These are not conclusions. They are simply proposals brought forward by the Opposition. At no stage did the committee agree to those proposals and to call them conclusions is to confer on them a status they do not warrant.
We live in a democracy. All over this country, people meet in clubs, community gatherings, societies, etc. When a proposal comes before any group of people, it is debated and, if possible, agreement is reached. If no agreement is possible, the proposal is put to a vote. That is the foundation stone of our democracy, where the result of the vote is accepted. That is what happened in the final committee meeting during its investigation into the Travers report.
The failure of the Opposition to accept the democratic wishes of this committee reflects badly on it and displays petulant and child-like behaviour which covers up for its frustration at failing to achieve its narrow partisan aims. Do Opposition members accept the democratic structures under which this committee operates or do they wish to have a fascist dictatorship under which their narrow sectarian viewpoint must prevail? If they do not accept democracy, let them remove their names from the report. This will reflect their inability, despite three months of questioning, to expose major flaws in the Travers report.
Unlike Deputy Devins, I do not have a prepared script. However, I will comment on some of the issues he raised. I did not take part — nor was I asked to do so — in yesterday's Fine Gael-Labour press conference.
Is that an indication of things to come?
I do not know. Deputy Devins said he was interested in the facts and I am relating them.
I do not argue with Mr. Travers when he concludes that there was an administrative failure and that there was greater culpability on the part of civil servants than on that of those in the political domain. No one argues with that assertion. However, Mr. Kelly has taken the rap. He has fallen on his sword. The problem I and other Opposition members have is that no responsibility was accepted in the political domain.
When the committee interviewed Mr. Travers on two occasions, he made it plain that the then Minister should have probed further. The then Minister did not do so. I ask Deputy Devins to consider that if his office operated in the same way that the Department of Health and Children did in this instance, some of the people who work there would have been sacked.
Under current structures, the Minister is in charge of the Department and then come the Ministers of State and special advisers. One of the Ministers of State said that he read the relevant material and realised that it had serious implications. However, the then Minister — Deputy Devins would use this an excuse — was not informed. Ignorance has, therefore, become an excuse.
That is not being said.
Claiming ignorance is what gets the Minister off the hook. Is that good enough? If the Deputy asks himself the same question, he must reach the sincere conclusion that it is not. When one is Minister of the Department, one cannot claim innocence as a result of ignorance.
What are the legislative and administrative implications of this report? Do they mean that a Minister can get off the hook because he has not informed himself? If that is the conclusion, this is a very bleak day for democracy and the political system in this country. It is as if the captain of the Titanic said that nobody told him about the iceberg. Is that the excuse being used? The captain of the ship is supposed to go down with it. This captain has refused to take responsibility.
After three months we have come to the same conclusions that were reached in the Travers report, namely, that Mr. Kelly was totally responsible. I find that difficult to accept. We must ask again what the function was of everyone, including the Ministers of State, involved. For example, the Minister of State, Deputy Callely, said he informed the Taoiseach. Where was the follow-up in all of this? A file went missing and there have been conflicting reports about it. One person said it was definitely in the Minister's office, while someone else stated that they were unable to recall it being there. That contrast is interesting. As I said to Mr. Travers, there seems to be greater certainty on the part of the person who said she definitely saw it.
I welcome the part of the report which states that the Minister and Ministers of State met very infrequently. What way is that to run a Department? The report says that they met on three or four occasions but minutes were not kept so we do not even know if they met that number of times. Another member referred to their assistant. If an assistant did not tell a Deputy about major issues occurring in his or her office, he or she would be, and rightly so, extremely annoyed. Nobody seems to have communicated anything in respect of this matter. Three months after commencing our deliberations, we are back where we started.
People must understand our deep frustration in respect of this matter, particularly as we have reached these conclusions. What are the legislative and administrative implications? If one is a Minister and one does not inform oneself, one is better off. If one sees no evil or hears no evil, one can have a great career and possibly become Taoiseach at a later date. That is unacceptable.
I am very disappointed at the conclusions. I hope that they are not a sign of things to come and that the committee will not break down along partisan lines in the future. I say that because we must discuss other important issues and I hope we can do so in a reasonable atmosphere in which a consensus can be reached. Due to the fact that the stakes are so high with regard to the report before us, it is clear that we will not be able to reach such a consensus. That is regrettable.
I also wish to place on record that I was not at the press conference yesterday, nor was I asked to attend.
What was stated earlier is untrue and malicious. Deputy Devins knows that there is no democracy in this committee, that it is ruled by a Government majority and that the same majority exists in the Dáil. This majority ensures that legislation is railroaded through, that the guillotine takes effect and that no matter what we say, either in committee or in the Dáil or Seanad Chambers, the effect is the same. It is what Deputy Devins and the Government want. That is the way it will be.
For the Deputy to state that a member is in some way at fault here because he or she speaks out about the lack of democracy that exists——
I did not state that.
The Deputy inferred it.
I did not. I stated that in any democratic organisation where compromise cannot be agreed, one must vote. One either accepts the vote's results or one does not. If one does not accept the result of a vote in a democracy, one has chaos and anarchy.
That is fascism.
It is not fascism.
(Interruptions).
I am being helpful to Deputy Devins. The term he used was actually——
(Interruptions).
The term used by Deputy Devins was "fascism". To me, that is grossly insulting. Like other members of the joint committee, I come to make a contribution. However, no matter what I say or do, the Government's wishes will be the final outcome. This is very disappointing. The Deputy speaks of consensus and infers that the non-Government members are in some way deficient because they do not go along with his consensus. We must be clear about this. No consensus exists because the members from the Government parties ensure that there is none. If the Deputy wants consensus, let there be fair play. Let there be a situation where the Government does not always hold the majority.
For as long as I have been a member of the joint committee — the past three years — it has indulged in fair play.
The Deputy is denying it by his words.
I am upset about this particular issue.
The Deputy is denying it.
What happened yesterday, particularly the use of the words "bullying" and "censorship", was out of order.
Deputy Cowley is out of order and should try to be less provocative.
I should try to be less provocative.
On a point of order, Deputy Cowley is being interrupted by Deputy Devins.
I apologise.
This is the last day of our hearings and members should try to remain calm.
Several points were made in the hearings. People who gave an alternative point of view were accused of being on a witch hunt. It is obvious to anyone that while many people are employed by the taxpayer in Ireland Incorporated to do a job, one man fell on his sword and that will be a precedent for the future. If anything goes wrong in the Department of Health and Children, the Secretary General will be obliged to fall on his or her sword because a precedent has been set.
While there must be some accountability and responsibility in that regard, it is clear that there has been a complete denial of responsibility by a succession of Ministers. On page 19 of his report, Mr. Travers refers to papers from the Department of Health and proposals made in 1979 — when, I believe, Mr. Haughey was the Minister responsible — to effect a suitable change in the definition of full eligibility in the Health Act 1970. These papers ascribe to the then Minister the view that he was "not keen to pursue this course of action". However, this damning evidence does not figure in Mr. Travers's conclusions. Nor does it figure in the joint committee's report. How can there be a consensus on that? I voted against the recommendation of this report, as did other members of the Opposition. I do not stand over this report and I am glad to put that on the record.
People must have confidence in the system and must also have confidence in politicians. However, in this situation, only one man has paid the ultimate price and yet it is clear and has been stated that the Minister bears ultimate responsibility. An analogy has been drawn with the captain of a ship. The fact that the Minister can walk away scot free speaks volumes about the type of cynicism which exists in respect of politics.
I am uncertain whether this is the appropriate time at which to raise the point but another report was received by the joint committee from the Association of Higher Civil and Public Servants. That report was requested by the committee on 4 May 2005 and was later presented to it but not considered by it. I am confident that I will be given the opportunity to read it into the record. May I do so now?
We should conclude on this issue. The joint committee's report will be read in a few moments. We are dealing with the issue raised by Deputy Devins. Deputy Cowley wanted to respond to it, so the joint committee is facilitating him.
The Tánaiste stated that Mr. Kelly knowingly withheld information from her with reference to nursing home charges. However, negligence also implies a degree of responsibility. One might not knowingly do something but one is paid to do a job and does not measure up to the appropriate standards. There comes a time when this constitutes pure carelessness or negligence and someone must bear the responsibility for that. By any yardstick, the body politic must bear responsibility. If, albeit not knowingly, it is so careless as to be irresponsible, then it is certainly guilty. At the very minimum, the body politic and various Ministers for Health and Children are guilty of negligence.
I wish to concur with the points made by Deputies Cowley and Gormley. The result of all these hearings is that ignorance is bliss and that the less any future Minister or Minister of State knows the better in order to ensure that they cover themselves. This is wrong and flies in the face of the Public Service Management Act 1997. It was quite obvious for some time that minds were made up on the Government side about these hearings. The purpose was to protect incompetent Ministers. That came across loud and clear during the joint committee hearings in respect of Ministers and Ministers of State.
I wish to correct Deputy Devins on one point. He stated that the former Minister for Health and Children, Deputy Martin, was not informed. Mr. Kelly has placed it on the record, both in the Travers report and before this joint committee, that he briefed Deputy Martin verbally at the Gresham Hotel at the December 2003 meeting. He is also quite categoric that he discussed it at another time, although he is unsure when. Mr. Kelly also discussed the implications, so Deputy Devins was factually incorrect.
That was denied by the former Minister for Health and Children, Deputy Martin. I accept the reference to the Gresham Hotel.
This is the problem we encountered during the joint committee's hearings. When one person has a clear recollection of something while another does not, the joint committee sides with the person who does not. It should be the other way around. This is a major difficulty. We dismissed people with clear recollections.
Another point which baffles me is that the Tánaiste and Minister for Health and Children, Deputy Harney, fired Mr. Kelly because he did not brief her. However, the Minister of State at the Department of Health and Children, Deputy Tim O'Malley, who is from her own political party and who was aware of the charges, did not brief her either when she became Minister and yet there have been no repercussions. It is appalling that current and former Ministers of State at the Department of Health and Children with devolved powers — including special responsibility for the elderly — namely, Deputies Tim O'Malley and Callely, failed utterly in terms of the responsibility for the care of the elderly. However, there have been no repercussions.
After examining all aspects of the Travers report, the joint committee had a discussion regarding members' views on it. It was decided that they would be put in writing and submitted to the joint committee. The submissions were never intended to be considered but were ignored. Although they were submitted, the consultants who put together the joint committee's views as well and as efficiently as possible were not provided with them for inclusion in their deliberations. The requests from the committee and the submissions made by members were ignored by the Government parties and the request for extra time to allow consideration of and debate on the members' views were totally ignored.
A decision was made, prior to us submitting our views on the matter, that it would be the case and that the Government would use its majority to ignore those views. This has never happened in all my time — 16 years — as a committee member since I entered the Oireachtas. It has never previously been the case that someone's views, be they in opposition or in Government, have been ignored or disregarded or that the views of the majority have been railroaded through. The time factor was given as the excuse. It is extremely frustrating to spend some time examining a matter and then have one's views ignored.
I do not wish to repeat what Deputies Gormley and Cowley and Senator Browne said but the fact that Ministers do not read their briefings and minutes is a serious issue. The former Minister accepted that he did not read the minutes of the December meeting. What concerns me is that if he did not read material regarding the elderly, he obviously did not read material regarding everything else. One of the things that the former Minister and others said was that there were very important issues — apart from the area of charges to the elderly — with regard to the development of health services on that agenda. However, he did not read the briefings in respect of that matter and he accepted that he did not read the minutes of that meeting. This is acceptable behaviour according to the committee. However, it is not acceptable as far as I am concerned.
My colleagues have said virtually everything. It is obvious that the Chair has been impartial and that the members of the Government parties have tried to play their part in this committee. It was obvious from very early on in these deliberations that we were going round in circles. Terry Prone spoke this morning about the late Seán Doherty and I agree with her that he was an intelligent and compassionate man. However, I was interested where he said that sometimes there are matters — be they related to family, constituency or party — that come above everything else. I think party political considerations came into this.
I was astonished to hear the statement of the former Minister for Health and Children and the Tánaiste about Michael Kelly, who the Government then appointed to such an important position in the education sector. The general public does not understand this. People say that Mr. Kelly fell on his sword. He was appointed to a position with a annual salary of €136,000. I heard the Tánaiste assert that he wittingly misled the Government. This strikes people as extraordinary. The notion that if a Minister does not read his or her brief, he or she is in the clear is most unfortunate. Deputy Devins knows as well as me, someone who has worked in professional practice all her medical life, that it is no defence for a doctor to say he or she did not read the case notes. These things look very bad and I am sorry to see this matter has ended.
I despair as regards where we are going. Democracy is disappearing from the health system — some would say it has already gone — with the abolition of the health boards. Abolishing the health boards was an opportunity to deprive people of democracy because there was no provision for democracy to replace the boards. This committee is seen as the last vestige of democracy, where the public can be brought forward in some way. Given the treatment of the Travers report by this committee, I despair as to whether there is any vestige of democracy left in this country and its political system. We represent the last opportunity for the public to have its point of view made to the people who run the health service and the politicians who control it. If we cannot have our point of view heard on behalf of the people who elected us, what hope have we?
Deputy Cowley has missed the point.
I ask Deputy Devins to listen and learn. I wish to state for the record, because there has been a certain amount of spin, that this committee met on a number of occasions. I think it was a total of 16. The report was only with us for seven or eight days. We saw the draft report on 25 May 2005 and the final decisions on 2 June 2005. So the idea that we were considering this report for three months is absolute rubbish and it is important that this be stated.
A considerable amount of material has been gathered as a result of our work. The difficulties we had, quite apart from the political issues we raised, included lack of information, being blocked from getting the legal advices to which, I believe, we are entitled and being blocked from hearing from the former Minister for Health, Deputy O'Hanlon. These were major difficulties that the committee had in terms of trying respond properly to the terms of reference. It is clear that the agenda from the Government party members was to protect Ministers from criticism. This is how they see their role and that is what they were determined to do. In doing so, they went overboard because not only did they succeed in doing that, they also succeeded in censoring a raft of documentation that belongs to the public, that should be in the public arena and that should have, but has not, been attached to this report by way of appendices. This censorship puts us in a rather foolish and time-consuming position because we must read material into the record and must wait till some future point when the annual report is published to get the rest included.
This does not serve democracy one whit. If anyone was defining fascism here, it might be more appropriate to look at the censorship of public information, as well as the political direction that this report has regrettably taken. Under our Standing Orders, we are entitled to publish documents and alternative views. That is what we submitted on this side in terms of resolving a difficulty that was clearly present in this committee. It was the Government that prevented those alternative views from being put into the report in any shape or form. This behaviour is anti-democratic.
The Chair quoted Erskine May as regards our procedure. I do not know if anyone knows who Erskine May is but I took the trouble to find out. He was a 19th century parliamentary expert who is held in very high esteem by members of the House of Commons. He was probably an expert on Black Rod and the role of Silver Stick. It seems to me that if we are to listen to Erskine May, the procedure we adopted in accepting this report was not adhered to and if anything, the status of this report is totally undermined. The report must, therefore, be thrown out because we have not observed the proper procedures.
I wish to respond. I will return to the issue of Erskine May in a moment. I have just perused the records as far back as April, when we first addressed what, in my view, our business should have been. Since this matter has become so political, I hope members will allow me to be somewhat political for an hour or two.
An hour or two, is that all?
When we met on 12 April, we decided that we would allocate time slots over a period of weeks up to today, 9 June. At no time during these sessions can it be alleged that I or other Government members tried to stifle debate. This should be taken as read. I accept, however that this was the case until last week. Witnesses appeared before the committee on many occasions and members put whatever questions they desired to them. We also brought in consultants. No one can suggest that, throughout that period, anybody here tried to stifle the debate or direct it in any particular direction. I know of no evidence by which someone could suggest that we could have directed questions to support the Minister or covered for him. I would like to know how this could be suggested. Deputy Gormley is missing the point. We are not here to unravel or rewrite the Travers report.
I never said that.
I did not say that he did. The Deputy will not let me finish or decide what I am going to say. We were to read the Travers report and, from it, work out the implications.
Exactly.
What did we do? We focused in on one day only, namely, 16 December, because this offered the possibility of catching the then Minister, Deputy Martin. No other issue or date going back as far as 1976 was relevant as long as we tried to focus on 16 December. If we could find evidence relating to that date, it would be the key to catching the Minister. That has basically been the argument until now.
I do not agree with the Chairman.
The Deputy made the point——
There is no——
I do not want to take up much more time because other people want to talk on other issues. The Deputy made the point, however, that if we accept this report, we will allow Ministers to act freely out of ignorance or on foot of a lack of information and that these issues will again arise. Why are we here in the first instance? We are here to put systems and recommendations in place to ensure that this never happens again.
Mr. Travers has made the position clear. Some people have difficulty in accepting the Travers report, just as they have difficulty in accepting Erskine May's Parliamentary Practice.
I accept Erskine May's Parliamentary Practice.
The Deputy does not accept the Travers report.
I accept that the Chairman is using Erskine May as an argument. I do not know why he is doing so.
May was the only commentator I could find who would support what I was saying.
As a member of a so-called republican party, I thought the Chairman would have balked at this one.
We are the one and only republican party.
The Chairman chose this as his guide but he did not follow Erskine May's philosophy in terms of how he approved of this report.
I did do so.
The Chairman did not.
I will refer the Deputy to the relevant section. Erskine May states that when a committee acting on behalf of a parliament returns with its recommendation, he did not expect every view to be included and that said recommendation would be collective in nature.
Erskine May's Parliamentary Practice states that if a draft report is being put forward, each paragraph of the draft report adopted, as the basis for the committee’s report, is then separately considered and becomes liable to amendment according to the ordinary rules that govern amendments. It further states that consideration of a paragraph may be postponed until the committee has taken decisions on subsequent paragraphs. We did not do that.
We did.
I forgive the Chairman.
Will the Deputy please refrain from forgiving me if at all possible? We are not giving carte blanche to future Ministers to remain ignorant or uninformed. We will go through the matter of what constitutes probing. For those of us on this side of the House — perhaps coincidentally — probing means that one probes documents and so forth. The Opposition feels otherwise.
The Chairman should read the minutes.
We accept what Mr. Travers said and that, in his view, the failure was greater on the part of administrators than it was on the part of politicians. He proceeds to state that we should have probed more. I accept Senator Henry's comments. We did not want to come down this road but it was clear, from the outset, that the House would never reach agreement on whether the former Minister, Deputy Martin, acted properly.
The Government steamrolled through the matter.
That is not a fair comment.
We did not. I would not use the word "steamrolled", I would say that our progress during the past three months was "snail-paced".
Absolutely.
We were here day after day going through——
Our submissions were not even considered.
They were.
Why do we even bother being here? Why should we not just let the Government run the committee?
Opposition Members have an expert input to make to this committee but a day comes when decisions must be made.
Absolutely.
The Chairman could have fooled me.
Deputy Cowley made a point about the democratic deficit, how we are the last bastion or democracy and so on. I am not being glib when I say that if the Deputy does not feel he is being heard as an Independent, he could follow the example of other Independents who have joined parties in this Dáil.
We must try to move on. We have examined the report and made recommendations. The Opposition's recommendations were considered. We flagged this issue a long time ago. I do not agree with the use of the words "bullying" and "censorship" because I have no evidence that such behaviour was engaged in. We have more to do. It is a pity that a press conference was held yesterday before the committee's press conference today. However, that is life.
That was the only way we could have our views heard.
We live in a free country for now but I am unsure about how long that will last.
I hope that the good that will come out of the committee's deliberations during the past three months will totally outweigh——
(Interruptions).
We have put greater issues behind us in the past and can do the same again. May we move on? I want to allow people to read matters into the record.
I thank the Chairman for allowing me to raise my issue.
I can see that consensus is brimming over.
I am as disappointed as Deputy Devins with the comments from members opposite. I respect that Opposition members have a point of view that may not reflect mine but my understanding of democracy is that when a vote is taken and someone wins, it is a democratic decision. I am unfamiliar, however, with the new concept that it is only democracy when the outcome suits the losers. Someone will have to explain it to me.
We must move on.
Hold on. Tóg go bog é. I will be brief because Deputy Devins has already clearly outlined what I would have said. Concerning political responsibility, the Opposition has been extremely selective. Where does it want to start and finish? It is interesting that Deputy McManus and others wanted Deputy O'Hanlon to address the committee.
That is not true.
I did not interrupt Deputy McManus. The one point I noticed from the outset was what Mr. Travers called "a systemic failure". If this were known about in the Department for the past 29 years, it was the best kept secret since the inception of the State. The Opposition went after a scalp but, unfortunately, it did not have a tomahawk. Hence, its reaction. If Deputies McManus and Twomey believe, as they claim, in the committee and its relevance, it would have been nice if they made their statements to the committee today. However, it was their decision to proceed as they did.
The committee has done a good job but I do not expect everyone to agree with me. I have been a member of the committee since 1997 and have been in opposition at local authority level. In all my years as a health board member and as a member of the National Association of Health Boards, this matter never raised its head. This issue dates back 29 years. I regret that taxpayers must pay the amount of money that will be required. Utterances I have made pertaining to other issues relating to this particular matter have not found favour with some people but the truth always hurts.
I support what Deputy Devins said.
That is not a surprise.
Would the Deputy be surprised? Given my past record in public life, if I had anything to say to the contrary to Deputy Devins, I would say it and not offer an apology about doing so. What Deputy Devins said is correct.
May we proceed with the statements?
The announcement last week about the chief executive position in the HSE not being filled has significant implications for this committee. The HSE is supposed to address us every three or four months. To hear the Fianna Fáil Party, correctly or incorrectly, spinning the story that the Tánaiste, Deputy Harney, offered to resign over the individual's refusal to take up the appointment is a matter of concern.
I have not heard that at all.
I have heard it from several Fianna Fáil sources.
That could be down in Carlow.
That does not make a difference. Even more worryingly is the systemic failure or maladministration in the Department of Health and Children. Last Thursday morning in the Dáil Deputy Enda Kenny asked a question on Professor Drumm not taking up the position with the HSE. Two of the Ministers of State, Deputies Brian Lenihan and Seán Power, were not aware the professor would not take the position. They knew nothing of it and the first they heard of it was when Deputy Kenny raised it in the Dáil.
This confirms what I have just said.
When they rang the Department to find out more, the person to whom they spoke knew nothing. Have we learnt anything from this committee?
How can the Senator attach blame to the Minister for Professor Drumm's decision? I cannot understand that.
Who is running the Department? Ministers are not in charge of the Department. We need to investigate the implications of Professor Drumm not taking up the position. Mr. Kelly indicated he was looking forward to leaving the position last time he was before the committee. It now appears he will be there for longer. That has implications for long-term planning.
We were to have the Minister for Health and Children, Deputy Harney and the HSE in the committee. When will that happen?
I do not know, but I will let the Deputy know at the next meeting. We will submit that question as quickly as possible.
Does that mean we will not see either before the summer?
We will meet again next week.
Does the Chairman remember there was an agreement that she would come back every three months? We need to know this as it is important.
Yes, the Deputy is correct.
Since I have been on this committee the former Minister, Deputy Martin, was supposed to come before the committee.
I recognise the matter to which Deputy McManus is referring. A commitment was made and it is up to me to re-establish that commitment. I will do so by phone today.
Very good. I thank the Chairman.
We were to have visitations from the former Minister for Health and Children, Deputy Martin, and these were cancelled serially. The current Minister, Deputy Harney, was to undertake that commitment yet this has not happened. When members were dealing with important topical issues such as radiotherapy we would like to have explored the issue and to have received the definitive answer from the Minister. This process of cancelling and postponing has denied this committee the input from the Minister that it should have. That happened with Deputy Martin and now it is happening with the Tánaiste as well.
Since she became Minister for Health and Children, Deputy Harney has been here three times. The issue of the Travers report is ongoing and there is the matter of the HSE. She gave a commitment to come in here each term and this will be done. She came in on 5 April for the Estimates also. If we have certain issues out of the way we can get back to dealing with normal business.
I make one final point before we hear statements. There is an idea that Ministers are not proactive but if one considers the Travers report on page 19 it refers to former Minister Mr. Boland and "the specific and personal initiative of the then Minister" to bring forward legislation to deal with inpatient hospital service charges and to deal with the matter of eligibility. Former Minister Mr. Haughey was not keen to pursue this course of action, referring to the need to bring forward legislation to deal with this issue. These are two statements that outline how former Ministers knew and acted; in the case of former Minister Mr. Boland to act to bring the matter forward, and in the case of former Minister Mr. Haughey not to bring it forward. These are two instances where Mr. Travers has spelled out clearly that Ministers knew and did not act on what they knew. In the Travers report and in our report there is no reference to this.
We went through all that during the hearings. Moving on to public statements, we have statements by Fine Gael and Labour Party spokespersons on their proposed recommendations to the report of the committee on the Travers report and a statement by Deputy Jerry Cowley on a submission by the Association of Higher Civil and Public Servants on the Travers report. I will ask Deputy Cowley to begin and Deputy Twomey will be along later.
Senator Browne and I will put this on the record on behalf of Deputy Liam Twomey, Senator Fergal Browne and myself. Our first section is on the Governments findings. The failure to deal adequately with the issue of illegal charges in public long-stay institutions was due to corporate failure in the Department of Health and Children. Former Minister for Health and Children, Deputy Micheál Martin failed to accept his responsibility as laid down in section 3 of the Public Service Management Act 1997: "A Minister of the Government having charge of a Department shall, in accordance with the Ministers and Secretaries Acts, 1924 to 1995, be responsible for the performance of functions that are assigned to the Department pursuant to any of those Acts." Former Minister, Deputy Martin did not ensure that appropriate strategies and systems are in place and operational to enable the organisation to meet its goals and objectives in line with the Public Service Management Act 1997 and the guidelines for Ministers issued by the Taoiseach in 2002.
The memorandum circulated within the Department of Health and Children by the then Secretary General following instruction from the then Minister in March 2000 created an inappropriate process for informing the then Minister on significant issues and developments. Based on the memorandum circulated within the Department of Health and Children by the Secretary General, following an instruction from the then Minister in March 2000, former Minister Deputy Martin's special advisers did not perform their functions as set out in section 11 of the Public Service Management Act 1997. Confusion regarding the roles of the Minister of State within the Department led to a failure at ministerial level to take appropriate action on the issue of illegal long-stay charges. The decision to introduce medical cards to all those aged 70 and over, without consultation within the Department of Health and Children, did not receive the analytical input commensurate with the policy and the operational importance of the decision and reflects a failure of governance at cabinet level. Senator Browne will deal with our findings on organisation and management.
The decision to put the health reform agenda over the need to introduce legislation to clarify issues surrounding eligibility and entitlement to long-stay care further delayed any action being taken on illegal charges, resulting in significant cost implications for the State. There is no evidence to suggest that cross membership between the MAC and the board of the HSE would assist the effectiveness of the MAC.
Any future business plans produced by a Department should be prepared in a concise format. The Department should put in place a practical and effective system of risk assessment, covering operational, legal and financial issues concerning all areas of activity of the Department. An obligation should be placed on any Minister who decides to take action contrary to the run of policy advice from officials that he or she should record specifically the reasons for that decision.
The decision to provide medical cards on grounds of age rather than means from July 2001 marked a significant change in the basis on which full eligibility was to be determined. The enactment of the Health (Miscellaneous Provisions) Act 2001, which introduced medical cards to all people aged 70 and over left, in the words of the Supreme Court judgment February 16 2005, "no possible room for doubt that health boards were not entitled to impose any charges for inpatient services on persons aged 70 or over".
This submission is put forward by the Labour Party in response to the request from the Chairman to provide submissions for the final report. It begins with a quote from the transcript which states:
Deputy Twomey: Is the Minister saying he is responsible?
Deputy Martin: No. I agree with the conclusions of the Travers report, about which the committee is well aware going back to 1976.
Deputy Twomey: If so, the Minister is saying he is responsible because under the Public Service Management Act 1997, he is responsible.
Deputy Martin: The Travers report makes a clear differentiation in terms of where he lays responsibility. He has made a determination on this and he gives the reasons, which relate to the principles, people's worries about funding and so on. He outlines ten reasons towards the end of the report. I accept that and I do not argue with his fundamental conclusions.
Deputy McManus: I am still trying to get an answer. I asked the Minister who is responsible. Is he saying that, as Minister, he does not bear any responsibility for this?
Deputy Martin: I am, I do not.
As a matter of constitutional law, the Government and its members are collectively responsible to Dáil Éireann. What that means is surprisingly uncertain. The framers of the Constitution, perhaps wisely, did not attempt to define what exactly collective responsibility means. It is as much a political as a legal document and its outlines are vague and indeterminate.
The Constitution is silent on the doctrine of individual ministerial responsibility, which is far more important in terms of day to day accountability. The doctrine derives from the statutory responsibilities of Ministers and has long been accepted across the political spectrum as a political convention. As such, it shapes the nature of the relationship of Ministers to the Dáil.
A Minister must account to the Dáil for the way he or she performs the functions of ministerial office. If a Minister commits certain types of error, there is an obligation to resign and a Minister is supposed to do so of his or her own accord. If the Minister fails to do this, he or she must certainly resign if the Dáil passes a vote of no confidence.
The traditional view was that Ministers were accountable for everything that happened in their Departments. The Minister was legally responsible for all official acts of his or her civil servants and was, therefore, liable to attack from opposition politicians for defaults of which the Minister had no personal knowledge. This is not the basis for the critique being put forward in this report. The true basis for scrutiny and critique is found in the philosophies that inform three sets of rules: the Ministers and Secretaries Acts, the Carltona doctrine and the Public Service Management Act.
The Ministers and Secretaries Act 1924 established the legal basis of Departments. The Oireachtas established 11 Departments of State "amongst which the administration and business of the public services in Saorstát Éireann shall be distributed". Each Department and its powers, duties and functions were assigned to and administered by the Minister named as its head. The secretaries referred to in the title are the former parliamentary secretaries, now replaced by Ministers of State. The 1924 Act does not refer to departmental secretaries.
The model was to create a Department, an operational division of the civil service, assign particular functions to it and appoint a Minister at its head to administer all its functions, powers and duties. This fundamental principle remains in force today. The administration of a Department, together with its functions, powers and duties, is the statutory responsibility of the Minister who heads it, not the responsibility of Ministers of State, special advisers or Secretaries General. A Department is controlled, overseen and directed by the Minister at its head.
One aspect of the 1924 model, which involved assigning functions to Departments, was for the most part largely abandoned, as with one or two exceptions, all subsequent legislation ignores the concept vesting powers, functions and duties in a Department of State and instead vests such powers directly in the Minister. The Health Act 1970, which is at the core of this report, is an example of such an Act as it refers to the Minister and his or her powers in many of its sections but does not refer to the Department of Health and Children.
The trend of assigning new powers to a Minister rather than a Department was formally recognised in 1939. In the Ministers and Secretaries Act of that year, the Oireachtas enacted that whenever a particular function is conferred by statute on a Minister having charge of a Department of State, the "administration and business" in connection with the exercise of that function is deemed to be allocated to that Department.
While a distinction is thereby made between the Minister personally exercising ministerial powers and the Department assisting with all the accompanying "administration and business", this provision did not operate so as to relieve the Minister of responsibility for matters of administration. Administration and business functions are departmental functions and so they are, by virtue of the 1924 Act, assigned to and administered by the Minister who heads the Department.
If statute gives a function to a Department as opposed to a Minister, then the 1924 Act operates to assign automatically the function to the Minister heading the Department and to make him or her responsible for the administration of that function. A Minister cannot escape a supervisory role in departmental business by describing it as purely administrative, nor is there any justification in either the Constitution or in law for the view of the Tánaiste and Minister for Health and Children that, as she was concerned purely with policy and not with administration, she never attended a departmental management advisory committee, MAC, meeting and had no intention of doing so.
In practice, the difference between the exercise of a power and the administration entailed in its exercise is not at all clear cut. Ministers rely heavily on their civil servants to do a great deal more than administration. By the 1940s this had become well established, but no statute or doctrine of common law had ever sanctioned it, and by law executive powers were always and still are vested in Ministers alone. Delegation of the exercise of ministerial statutory powers within a Department became an accepted convention. In wartime Britain, in a case called Carltona Limited v Commissioners of Works, the Court of Appeal found itself compelled to elevate internal departmental practice into a doctrine of law. A new legal concept, the civil servant as the Minister's alter ego, was developed and approved. As recently as 1999, the Supreme Court accepted this post-independence rule of British administrative law as also forming part of Irish law. Officials of his or her Department may exercise the statutory powers of a Minister without the Minister necessarily having any direct or personal knowledge or having granted any authority for their exercise. The power of a civil servant to do what statute states only the Minister can do is regarded as having being delegated to the civil servant by necessary implication and is nowhere spelled out in any formal way. There is assumed to be a vague and indeterminate category of powers which cannot be exercised in this manner and where the Minister is required to act personally but by and large the finely tuned political antennae of the civil service within a Department are relied upon to decide what requires ministerial intervention and to what extent.
While the courts accepted the Carltona doctrine as a canon of Irish constitutional law, the civil service itself embarked on a process of strategic management review and public service management reform. The essential purpose of that exercise was to clarify issues of responsibility and accountability within Departments. The Public Service Management Act 1997 was enacted to provide clarity on the authority, responsibility and accountability of Secretaries General. Specific duties are now assigned to the Secretary General within the Department, including managing the Department, implementing Government policies appropriate to the Department, delivering outputs as determined with the Minister and providing advice to the Minister.
Most importantly, the 1997 Public Service Management Act did not repeal or amend any provision of the Ministers and Secretaries Acts, and section 3 states: "A Minister of the Government having charge of a Department shall, in accordance with the Ministers and Secretaries Acts, 1924 to 1995, be responsible for the performance of functions that are assigned to the Department pursuant to any of those Acts."
We now have a situation where Departments are assigned to and administered by Ministers, who remain responsible for the performance of departmental functions, but Secretaries General manage them. Against the backdrop of previous law, all of which remains in place, the management function of Secretaries General cannot be interpreted as one that in any way displaces the Minister's principal responsibility for supervising the administration and business of his or her Department.
There remain, however, two competing strands of policy. There is a desire to maintain in place the traditional role of the Minister as the legal personification of the Department along with the Carltonadoctrine and all that entails. All power is vested in the Minister and the Minister alone is accountable to the Dáil but any officer of the Minister within the Department can, behind closed doors, exercise any powers vested by statute in the Minister personally. There is also a desire to introduce concepts of delegated responsibility and accountability into the civil service, pursuant to a new statutory regime that allows for certain powers to be delegated to named and identifiable officers of particular grades.
We require an increased emphasis on the accountability of officials, through the departmental management structure but this must be in addition to, and not in substitution for, the accountability of Ministers. There is and must remain a difference between the accountability requirements imposed on Ministers and on their officials. Ministers are accountable for what happened on their watch but not because of an arcane legal fiction that, whatever went wrong they did it themselves, or because of their detailed involvement in departmental affairs. They are responsible because, in the language of Article 6 of the Constitution, the people have designated them as "rulers of the State". They are public representatives, appointed to serve in the Executive branch of Government and are accountable as such. This supervening reality lays on them certain duties, both personal and organisational, and the responsibility for ensuring that these are fulfilled. It includes exerting the appropriate level of supervisory authority.
Ministers have an overseeing role that includes ensuring that standards are maintained, both in terms of what is delivered and how it is delivered. They must also ensure that the mechanisms are in place to provide them with the necessary and correct information to enable them to respond to problems and to account to the Dáil and the public. Not knowing that something has happened is not an appropriate excuse when Ministers should have known; neither is failing to intervene when Ministers should have done so; or failing to ensure that they were kept informed of potential as well as actual problems.
When it comes to accountability, the main issues are whether Ministers were negligent or incompetent in the overall supervision of the Department and whether they responded adequately when things went wrong. Ministers cannot escape their supervisory role. If they are called on to resign, such calls should be solidly grounded in the reality of that role, rather than fixing them with the knowledge or actions of others.
When civil servants insist they briefed a Minister but the Minister insists that he or she was not aware of the problem, it is a distraction to concentrate solely on the narrow question of whether the Minister knew. Although this is important, it is not the central point. If the Minister did not know, why did he not know? Is the Minister not accountable for not knowing and for failing to read the briefs? Does our system of accountability place a premium on ministerial ignorance?
The purpose of public service management reform was to clarify issues of responsibility and accountability. The emerging model which, for all the management-speak buzzwords retains very old fashioned opacity, initially appealed to senior civil servants. The outside world was still presented with the Minister's personification of the Department. All powers rested with the Minister, who accounted to the public and in the Dáil for the performance of all departmental functions. However, internally, any official could exercise ministerial powers and the Secretary General managed the Department, with authority being delegated downwards by the Secretary General and accountability travelling upwards to his or her desk.
The drawback with this model, as the civil service has now discovered, is that it permits the Minister to sojourn for years in a Department without any record of what he or she did during that period. Ministers deal with the outside world as ambassadors at large but everything that goes wrong internally becomes the fault of management.
Public service management reform cannot be allowed to permit Ministers to escape their supervisory responsibilities. Their overseeing role includes ensuring that standards are maintained — both in terms of what is delivered and how it is delivered — and that they are provided with the necessary and correct information to enable them to respond to problems and to account to the Dáil and the public.
Accountability does not work unless the system helps us to identify the true protagonists and their roles and then assign responsibility. When Ministers are to blame the system should identify this, rather than shielding them. Furthermore, when civil servants make mistakes, we are entitled to know. We are also entitled to know the Minister's response to such mistakes.
It is important to bear in mind that the validity of the regulations made by the Minister for Health in 1970 has not, at any stage, been questioned by the Supreme Court or by anybody else. What was at issue was the validity of an interpretation of those regulations set out in a departmental circular to health board CEOs. While the regulations confirmed the entitlement of medical card holders to free care in health board nursing homes, the accompanying circular set out a stratagem which purported to enable health boards to deprive beneficiaries of their legal entitlement. Reliance on that stratagem was ineffective and the charges imposed were unlawful and must now be repaid. The Travers report did not find, and there is no reason to believe, that this departmental circular and its invalid charging stratagem came from, or was ever approved by, the then Minister. The question is whether it was brought to the attention of subsequent Ministers and if so, what they did about it.
It is clear that there are two points at which Ministers can be held accountable for their failure to act to end the illegal practice. First, when John Boland left office as Minister for Health in 1987, the incoming Government confirmed his proposal to amend the 1970 Health Act to enable charges for long-stay residents in nursing homes to be imposed on medical card holders, in so far as was then relevant. The wording of the Government decision is obscure and the course of action it approved was inexplicably abandoned. It has not been possible to scrutinise this issue because of a lack of written records and also because of the refusal of the former Minister for Health and current Ceann Comhairle, Deputy O'Hanlon, to make himself available to answer questions before the committee.
Second, in 2003, the crucial MAC-CEO meeting of 16 December dealt with the issue. Events before, during and after that meeting should have ensured ministerial engagement and action, but this did not occur. As was normal departmental practice, briefing materials were e-mailed to participants on the day before the meeting. This material included legal advice furnished by the South Eastern Health Board. The information was received by the then Minister for Health and Children, Deputy Martin, the Ministers of State at his Department and his special advisers. Of these five persons, only one, the Minister of State, Deputy Tim O'Malley, read the brief he was given. He understood immediately that if the legal advice was correct, it would give rise to significant legal, operational, financial and political implications. However, he neglected to take any further steps on the matter.
The then Minister of State, Deputy Callely, did not read the brief but attended the MAC-CEO meeting. It appears he understood the significance of the issue and volunteered to brief the Minister for Health and Children, but did not do so. The two special advisers who attended the meeting did not read the legal advice, before or after the meeting, yet knew the issue was important enough to require referral to the Attorney General. According to the former Secretary General of the Department, Mr. Michael Kelly, he briefed the Minister on the margins of the MAC-CEO meeting as the Minister arrived late and had missed the discussion on the issue. He also states that he briefed the Minister at a subsequent meeting.
The former Minister states that he was not aware that the issue had been on the agenda for the meeting, that it had been discussed in his absence or that those at the meeting had decided to take action to resolve the matter. Furthermore, subsequent to that meeting, the Ministers of State, advisers nor the Secretary General raised the matter with him again. It follows that he was completely unaware that a letter seeking the advice of the Attorney General had been drafted but lay unsent in his Department for more than a year.
The issue of unlawful charges may have been chronic but it was about to become a crisis. While its origins may lie in systemic corporate default the fact was that the issue had directly engaged the most senior minds in the Department, none of whom could have failed to share Deputy Tim O'Malley's analysis that it had significant legal, operational, financial and political implications.
The former Minister insists that he has no responsibility for the complete failure on his part to engage with and tackle this unravelling crisis. He justifies this denial of responsibility by stating:
Ministers can only bear responsibility for issues in respect of which they are properly and adequately briefed and where they have knowledge of something. If they do not take action, then they bear responsibility. However, they cannot be held responsible for something of which they were unaware.
The fact is that he was briefed on this issue and the only reason he was unaware of it is that he did not read the brief. That omission on his part was compounded by the failure of the then Ministers of State and his advisers to raise the issue with him at any later stage.
I am sure the committee regrets not agreeing to this being added as an appendix.
In conclusion——
Not in the least, Deputy. Can we conclude now?
I have a good deal more to read, I am afraid. I would also love to be doing other things.
In his 2001 report on nursing home subventions, the Ombudsman had this to say on ministerial accountability:
Of course, in practice, common sense has to apply in relation to the extent to which a Minister should be held accountable for the actions of each and every official. As a general rule of thumb, accountability should apply to those actions of which the Minister was aware, or of which the Minister as head of the Department could reasonably be expected to have been aware, or to have made himself or herself aware.
It is on the application of these criteria, leaving aside any question as to where the file containing the draft letter to the Attorney General may have in fact lain, that this committee holds the former Minister for Health and Children, Deputy Martin accountable and further finds that, by neglecting to pursue an issue of which he ought to have been aware, he failed adequately to discharge the functions of his office.
In 1996 the Health (Amendment) (No. 3) Act was passed in the context of health boards having built up an historic debt due to being chronically under funded and incapable of operating within budget. The debts were cleared and the Act was passed to ensure the situation would not recur. Among other things, the Act strengthened the powers of the Minister in relation to determining maximum permitted health board expenditure; provided for the adoption of service plans consistent with the financial limits determined by the Minister; borrowed from local government to introduce the concept of reserved powers for CEOs and reduced the powers of board members; and prohibited indebtedness above permitted limits.
Section 2 (1) of the Act provides that a health board, in performing the functions conferred on it by or under any enactment, must have regard to "the resources, wherever originating, that are available to the board for the purpose of such performance and the need to secure the most beneficial, effective and efficient use of such resources". Subsection (3) provides that "every enactment relating to a function of a health board shall be construed and have effect subject to the provisions of this section".
The 1996 Act and section 2 in particular appear to have received detailed consideration in the legal advice commissioned by the South Eastern Health Board in 2002. This advice was extensive in nature and addressed issues that remain before the courts. The issues would appear to concern the withdrawal of medical cards from those in public nursing homes, regulations on subventions for those in private nursing homes and perhaps other unspecified matters. What seems to be at issue is whether section 2 of the 1996 Act can be relied upon to achieve a similar objective for disability services to section 5 of the Disability Bill so that public services will be provided within the framework of a statute but will be subject to prevailing financial constraints, notwithstanding that entitlements to services will be spelled out in statute.
Our knowledge of the unpublished advice is summarised in pages 27 and 28 of the Travers report as involving a substantive overview of the relevant statutory and regulatory framework for the provision of nursing home care. The following passages have been extracted:
(ii) "It is a remarkable feature of the health services in Ireland that such vast sums of money are expended on a system, the statutory basis for which is so confused and haphazard and where practice seems so dislocated from statutory theory."...
(iv) In considering certain provisions of the Health (Amendment) (No. 3) Act, 1996 Counsel refer to a High Court judgement (O'Caoimh, J.) of September 2002 and note the view expressed in the judgement that "if a clear statutory obligation exists...economic considerations cannot override the requirement of the section."
(v) In referring to the difficulties arising from insufficiency of resources to fund the provision of certain health services for which there is universal eligibility, counsel state that "there appears to be no guidance from central government ... as to the allocation of these scarce resources ... It appears that the system of allocations is essentially ad hoc ... This raises the question whether the entire system...which can give rise to such arbitrary distinctions with enormous impact on individuals and families can be valid ... the system is so lacking in coherence and consistency that it is likely that individual determinations will always be open to successful challenge ... If the result is that arbitrary and ad hoc decisions are made between essentially similar members of the public, then prima facie that would be, at a minimum, a breach of the guarantee of equality contained in Article 40.1 of the Constitution.”...
(viii) "The entire system is...vulnerable to attack. It seems...a direct challenge would, on balance, not succeed by reason of the effect of the 1996 Act. However, it may be difficult to show that the allocation of places to public hospitals is carried out in accordance with any comprehensive scheme and that the allocation is beneficial, efficient or effective as is arguably required" under "the 1996 Act. Individual allocations may, therefore, be particularly vulnerable and by that route, the entire system may become unworkable".
(ix) "The only conclusive solution is the introduction of a comprehensive legislative framework which squarely addresses the problem of long-term care for the aged".
While this committee cannot be certain because disclosure has only been partial, what appears to be under consideration is the extent to which section 2 of the 1996 Act, which was twice referred to, can be relied on by the HSE in order to use lack of resources as a defence in cases where it is alleged to have failed to discharge a statutory obligation to provide services. It has been reported that the Tánaiste has sought advice on whether the State faces further and separate liabilities for the thousands of medical card patients who received care in private nursing homes and were subject to subvention schemes for the charges incurred. This is probably addressed in the SEHB opinion which the Tánaiste refused to disclose to this committee, even in confidence.
This committee does not accept that the Dáil can be refused access to advice on the State's liabilities if it is asked to vote the moneys necessary to meet those liabilities. Furthermore, when such advice is central to a matter that has been referred to an Oireachtas committee for examination, that advice, if only on a redacted basis or in private session, should be furnished. The Tánaiste refused to do so and, in consequence, the committee has not been in a position to adequately discharge the function conferred on it.
The present legal position is that a Department is assigned to a Minister, who administers that department and its functions, powers and duties. However, without prejudice to that principle, the Secretary General is charged with managing the department. In this context, "administer" and "manage" are virtually synonymous and the two roles may appear to conflict. An amendment to legislation is required to eliminate any grounds for confusion or obfuscation.
This committee makes a number of proposals on this matter. The Minister having charge of and administering a Department is responsible for maintaining an appropriate level of supervision and oversight of that Department and of the performance of functions by officers of the Minister. Without prejudice to the generality of subsection (1), an appropriate level of supervision and oversight is one that ensures that: adequate standards are maintained in the performance by officers of the Minister of their functions; outputs are delivered as determined or agreed and in accordance with the strategy statement approved under the Public Service Management Act 1997; and procedures are in place to provide the Minister with the necessary and correct information to enable him or her to respond to problems of administration and to give an account of these problems and any necessary corrective action to the Dail and to the general public.
Both the Minister for Health and Children and the Health Service Executive are creatures of statute. Their functions, powers and duties are spelled out and delimited by legislation. However, the approach of the Department to public nursing home charges, private nursing home subventions, the drugs refund scheme and the pharmacy regulations all appear to demonstrate an inadequate grasp of this central reality.
In addition, at least three examples arise in this report that appear to indicate that the Department neglected issues of law and regulation in favour of a purely administrative approach. The first example is the apparent uncertainty as to the procedures to be adopted when seeking the advice of the Attorney General in the first instance. The Department's legal adviser had to be asked how this should be done.
The second example is the uncertainty within senior levels in the Department as to whether the medical card could be extended to over 70s by way of administrative circular or if regulations or even primary legislation was required. It is difficult to see how those charged with the administration of a scheme in which eligibility is such a basic feature could be unsure as to how eligibility is determined.
The third example, highlighted in the Supreme Court judgment, is that in the 35 years since the passing of the Health Act 1970, no regulations prescribing eligibility for health services have been made. Instead, successive administrations have preferred to decide the question by way of non-statutory circulars advising health board CEOs as to who they should consider to be eligible. It may be doubted whether CEOs were ever entitled to consider themselves obliged to have any regard to those circulars in arriving at their own independent judgment. If the use of circular instead of ministerial regulation is legally doubtful, then issues arise with significant implications for the Exchequer.
This committee believes a comprehensive review of health legislation should be at the heart of the Department's strategic plan, rather than being an issue that was continually postponed. Access to and compliance with legal advice should be a central aspect of the internal audit function within the Department. The role and resources of the Department's legal adviser should reflect that central role. Failure to comply with the law is not only a legal issue but also has major budgetary implications because it may, as in this instance, give rise to massive liabilities.
Under the Health (Amendment) (No. 3) Act 1996, health boards were obliged to keep all proper and usual accounts and to prepare annual financial statements in accordance with specified accounting standards. Adoption of annual financial statements was a reserved function of the board members. It is impossible to conceive of any accounting standard in which the opinion of counsel querying the validity of a major source of health board income would not be highly material. If such a contingent exposure was known, the accounts would have to be qualified. A financial statement adopted in ignorance of the existence of that opinion would be flawed. Presumably the then CEO of the SEHB commissioned the opinion. If so, he was under a duty, under section 3(3) of the Act, to bring it to board members' attention to assist the board in the performance of its reserved functions. Arguably, every other CEO with whom the opinion was shared owed a similar duty to his or her respective board. These officials are now CEOs of the various areas of the HSE.
The Secretary General of a Department, as its accounting officer, also has duties in terms of the integrity of the Department's accounts, the safeguarding of public moneys, contingent liabilities, risk assessment and internal audit. According to the Institute of Internal Auditors:
Internal auditors look at how organisations are managing their risks. They provide the audit committee and the board of directors with information about whether risks have been identified, and how well they are being managed.
They are different to external auditors because they do not focus only on financial statements or financial risks: much of their work is looking at reputational, operational or strategic risks. They also give an independent opinion on whether internal controls — such as policies and procedures — put in place to manage these risks are actually working as intended. They also give an independent opinion on whether internal controls — such as policies and procedures — put in place to manage these risks are actually working as intended.
They provide this information by, for example, checking that the assets of the organisation are being safeguarded; that operations are conducted effectively, efficiently and economically in accordance with the organisation's policies; that laws and regulations are complied with; and that records and reports are reliable and accurate. Internal auditors also review systems under development to ensure that good controls are built in, and may offer consultancy services or special reviews at the request of management.
The Department of Finance's publication Public Financial Procedures states:
1. Internal Audit is an independent managerial function which measures and evaluates the effectiveness of systems for internal audit check and control. In this regard, it offers a service to managers and, in particular, to Accounting Officers.
2. While offering a service to management, internal audit is not an extension of, or substitute for, line management, who remain fully responsible for having appropriate and adequate internal controls. Internal Auditors should not design, implement or operate control systems, although they may be asked for their views at the time of implementation.
3. The role of Internal Audit is to determine whether the systems, procedures and controls which management operates are being complied with and are capable of achieving policy objectives in the most economic, efficient and effective way. It is a systems based approach and should encompass all aspects of a Department's functions and responsibility, including a Department's function and responsibility in relation to bodies funded by it or under its aegis.
4. The Internal Audit function must operate freely and objectively. This requires the full support of management, a sufficient organisational status for the function and execution by the Unit of work in a manner which is, and is perceived to be, objective and professional. It is preferable that the internal audit function is located outside the Finance/Accounts area and that the reporting relationship does not involve officers with responsibility for the Finance/Accounts area.
5. The range of internal audit activity should cover those controls established by management to carry out the Department's business in an orderly and efficient manner, to ensure adherence to management policies and directives, to prevent waste, to safeguard assets and to secure as far as possible the completeness and accuracy of records.
6. Accounting Officers should regularly review the internal audit process to ensure that they are getting the desired quality of assurance on the adequacy, reliability and efficiency of their Department's internal control systems (including the Department's controls relating to bodies under its aegis — see paragraph 3 above).
7. Accounting Officers should consider the establishment of an Audit Committee to assist in the formulation of the internal audit planning and policy. Consideration should be given to having representation from outside the Department on the Committee.
8. In the case of smaller Departments and Offices who do not consider it feasible to operate their own internal audit service, the question of inter-departmental co-operation (a client relationship between Departments or a shared Internal Audit function) should be considered.
9. The guidelines relating to the standards to be followed are outlined in the Department of Finance's publication "Internal Audit Standards". Departments may also refer as appropriate to the standards and guidelines issued by the Irish District of the Institute of Internal Auditors and other appropriate professional bodies.
10. Accounting Officers should ensure that a programme of staff training and development is in place for officers involved in internal audit.
11. The Internal Auditors' Network was formed in 1993 to facilitate the exchange of views, ideas and information of those involved in internal audit in Government Departments and Offices. Further information is available from Government Accounting Section (lA Policy), or the Centre for Management, Organisation and Development (CMOD), Department of Finance.
There is an internal audit unit in the Department of Health and Children, headed by an assistant principal officer. It does not appear to have any additional staff at administrative officer or higher executive officer level. The committee proposes to revisit this issue in the immediate future and will invite evidence from that officer as well as the Department's legal adviser, the Office of the Attorney General and officers of the Department of Finance.
In his report on nursing home subventions, already referred to, the Ombudsman also commented on the inadequacy of departmental records in relation to ministerial decisions. The report states:
The Ombudsman has already raised the issue of what appears to be a growing practice within Departments whereby Ministers tend not to put their views or instructions explicitly in writing. For example, the views of the Minister may be conveyed verbally, or conveyed via his or her private secretary, or conveyed through such phrases as “as directed” or “as discussed”. While acknowledging the pressure of work facing all Ministers, there are a number of difficulties with this type of practice. In the immediate term, it may lead to a lack of clarity as to a Minister’s actual views and intentions. In the immediate and medium terms, failure properly to record a Minster’s views and intentions may well undermine that sense of absolute trust between a Minister and his or her senior officials which is vital to an effective working relationship. Such a practice also has implications for accountability; the absence of a clear, written record can lead to uncertainty when the actions, or inactions, of a Minister (and his or her Department) are being scrutinised by the Oireachtas. In the longer term, and from an archival point of view, it means that public administration records are going to be incomplete.
Both the Travers report and this committee's hearings have more than justified the Ombudsman's concerns. It is simply unacceptable executive practice that there is no record kept of ministerial engagement with an issue or decisions on that issue. As the Ombudsman predicted, the practice has been destructive of trust and has hampered accountability to the Oireachtas.
If needs be, this practice must be brought to an end by legislation. The committee is aware that executive decisions taken by county and city managers are effected by way of written minute. Consideration should be given to an appropriate amendment to the legislation so as to introduce this practice at national as well as local level.
In view of the doubts raised about the advisability of implementing the Travers recommendation on changes to the MAC, we propose that an evidence-based analysis be carried out on the proposals in order to ensure that any change improves efficiency. Any such change must recognise that policy is a matter for the Minister for Health and Children and the Department and not for the Health Service Executive.
From correspondence with the Clerk of the Dáil, it appears that there is room for some confusion as to whether the enactments passed by the Oireachtas and the codes of conduct adopted under those Acts apply to the Ceann Comhairle in his capacity as such. We propose that appropriate amendments be made to remove any possible room for doubt on the matter. This correspondence was not published with the report.
In his report on nursing home subventions, the Ombudsman considered a number of structural defects — in Departments, at Government and in the Houses of the Oireachtas — which could have permitted institutionalised flouting of the law to pass unnoticed. He pointed out that the Dáil considers the annual estimates in a way that fails to distinguish between the amounts required to meet statutory obligations and what could be classed as discretionary expenditure. The Ombudsman's report states:
Dáil Éireann might also wish to give consideration to the way in which, at present, it deals with the Annual Estimates. It might be useful if expenditures which are effectively non-discretionary (i.e. which arise from entitlements which must be met, for example, public service pensions) were identified. The Departments responsible for these expenditures would be asked to confirm that these were the best estimates of what was required to meet these entitlements; if this proved not to be the case, they would face questioning by the Public Accounts Committee in due course. If, because of a general need to reduce public expenditure, it became necessary to reduce the estimate for a non-discretionary service below the realistic amount, then the Department concerned would have to indicate the actions required to "square the circle". It would then be a matter for Dáil Éireann to decide how this might be achieved.
The committee commends this recommendation to the Dáil. I thank the Chair for his patience.
While I thank the Chairman, fellow committee members, witnesses, Secretariat and IPA consultants for their work on this report, the passing of this report is the result of the Government's majority on this committee. It is not a consensus report. It also ignores vital information, including papers on file in the Department of Health and Children referred to on page 19 of the Travers report referring to proposals put forward by the Department in 1979 "to effect a suitable change in the definition of full eligibility in the Health Act 1970". These papers ascribe to the then Minister for Health the view that he was "not keen to pursue this course of action", yet this damning evidence does not figure in Mr. Travers' final recommendations or in this committee's report. It also ignores the submission sought from the Association of Higher Civil and Public Servants, AHCPS, by letter from this committee on 4 May 2005 but not considered by this committee and also ignores the report from the Ombudsman dated 3 June 2005, which this committee has not considered. I hope to read those into the record. A letter of 2 June 2005 to Ms Tara Wharton, clerk to the Joint Committee on Health and Children, Room 315, Houses of the Oireachtas, Kildare House, Kildare Street, Dublin 2 reads:
Dear Ms Wharton
I refer to your letter of 4th May 2005 inviting the Association to make a written submission on the Travers Report.
I enclose a copy of the Association's submission together with a copy of the submission from the Association's Health and Children branch for your information.
Yours sincerely
Dave Thomas
Deputy General Secretary
I will now read the submission of the Department of Health and Children branch of the AHCPS. It states:
Submission of Department of Health and Children Branch of the Association of Higher Civil Servants on the Travers Report into Nursing Home Charges to the Joint Oireachtas Committee on Health & Children
1. Introduction
1.1 As the Tánaiste has acknowledged arising from the publication of the Travers Report the Department of Health and Children is going through difficult and testing times. She has also stated that she believes we can work through the issues and emerge as a stronger and more effective Department. In that context the Department of Health and Children Branch of the Association of Higher Civil and Public Servants wishes to place on record the following observations regarding certain aspects of the Travers Report and its recommendations. There are a number of specific areas which are of particular concern to the members of the Branch.
2. Corporate Administration
2.1 The Branch does not accept the Report's conclusion that there was long term systemic corporate failure at the overall level of the Department of Health and Children. The reference to long term systemic corporate failure tarnishes the standards and professionalism applied by all staff employed in the Department, during the period in question; in dealing with their areas of responsibility and calls into question their integrity and commitment to high standards to their work in the civil service. This sweeping statement is unwarranted and is not justified in the Report.
3. Departmental Resources
3.1 The Report acknowledges in passing the pressure under which the Department uniquely operates. It states (p57) that the business of the Department is distinguishable from that of other Departments by the breadth, complexity, scale and political sensitivity of its activities and goes on to state that the breadth and complexity of the policy agenda, the number of unpredictable events to be handled and political attention all combine to produce an environment of immense organisational and individual work pressures in which the urgent constantly conspires to drive out the important. However, it is the view of the Branch that the Report in making its criticisms of the Department's handling of the charges issue does not give full weight and consideration to the political, resource and media pressures which bear on it on a daily basis. Neither does the report give proper consideration to the political sensitivity of the issue, by suggesting that all that was required was a simple legislative amendment to the 1970 Health Act. In addition the Report while referring to the Reform Programme does not give a full understanding of the sheer volume and complexity of the workload undertaken by the Department's senior management in advancing the reform programme in 2003 and 2004. In particular there is no acknowledgement of the substantial increase in the duties that had to be undertaken by personnel in the Department in order to ensure the implementation of the programme in accordance with the political imperatives set out at that time.
3.2 Any changes that may be proposed to the business processes or structures of the Department, arising from recommendations in the Report must take full account of the resources required by the Department to fulfil its functions. Notwithstanding the establishment of the Health Service Executive and the proposed establishment of the Health Information and Quality Authority the Department will continue to operate within a highly pressurised environment and face a difficult and challenging agenda which will need to be addressed on an ongoing basis. This will require having in place the appropriate structures, personnel and financial resources to enable the Department to meet these challenges and the new role envisaged for it under the reform programme. This is a particularly important consideration in the context of the restructuring of the Department which is to be undertaken this year.
4. Relationship between Ministers and civil servants
4.1 As the Report acknowledges the relationship between Ministers and the top management of a Department is critical to the success of both the Minister and the Department. It states "That relationship must be based on mutual trust, loyalty and confidence". By definition such a relationship places significant responsibilities on both the Ministers and top management of the Department. The Report goes on to say that an over-emphasis on note taking would undermine that relationship. However the Report recommends that a "de minimus” record should be made of all decisions taken or not taken either singularly or jointly by the Minister or the top management of the Department (see p86).
4.2 In general civil servants who have dealt with Ministers would have experience of being issued with verbal instructions, which are noted on files so as to assist a person's memory or enable instructions to be issued down the line. This approach was always considered reasonable in view of the pressures on Ministers and the need to avoid an unnecessarily bureaucratic approach to business which could impede the working relationship between civil servants and Ministers and the efficient working of Government Departments. It would be reasonable to conclude that notes on files would constitute the type of "de minimus” recording envisaged in the Report’s recommendations.
4.3 It is therefore difficult to reconcile the Report's recommendation on "de minimus” recording with the Report’s criticism that in relation to proposals put forward by the Department in 1979, to the then Minister to change the definition of full eligibility, that there was no direct documentary evidence to corroborate a note on the file stating that the then Minister was not keen to pursue the course of action proposed.
4.4 Another area of concern to the Branch in relation to record keeping arises in relation to the situation cited on page 21 in which the Report states that the Department of the Taoiseach made available papers which demonstrate that at the time of the Government Decision (in respect of the Memorandum to Government in March 1987) provision was made for further discussion on the matter by the then Taoiseach, Minister for Health and Minister for Finance, regarding the implementation of the Government Decision on the Memorandum. However no record of the content or outcome of these discussions was available in any of the files of the three Departments concerned.
4.5 In view of the recommendation about "de minimus” recording and the Report’s findings regarding the absence of records of Ministerial meetings the Branch is strongly of the view that guidelines should be drawn up, based on the principles of good governance, to provide a clear framework for recording briefings given to Ministers, Ministerial instructions, particularly in situations where those briefings and instructions are given verbally and also the recording of meetings between individual Ministers and their decisions, where such meetings are held to agree on the implementation of Government Decisions.
5. Role of Political or Special Advisers
5.1 The Report does not acknowledge the role actually played by advisers under some Ministers. In many cases advisers play a very detailed role in policy formulation, managing situations as they arise and vetting communications such as answers to parliamentary questions, adjournment debates, press releases etc. The Report does not mention that there was a specific circular issued in the Department in March 2000 defining the policy areas that individual advisers would deal with. The circular indicated that any policy document submitted to the Minister should be copied to the relevant adviser, that the relevant adviser should be invited to key meetings and that they would be participating at MAC meetings. The experience in the Department was that in general the advisers acted as a conduit to and from the Minister on most issues, that papers were passed through them and that they were heavily involved in decision making on policy and the management of critical issues affecting the Department and the Minister. In addition they acted as the agent of the Minister at important meetings which the Minister was unable to attend.
5.2 The Branch notes the Report's statement that special advisers should avoid becoming involved to too great an extent in the day to day operations and administration of their Department and that special advisers are not part of the line management system and that briefing special advisers should not be considered or accepted as an alternative to direct briefing of the Minister.
5.3 In view of the Reports findings in respect of political or special advisers the Branch considers that the role of advisers should be clarified as a matter of urgency so as to ensure that clear protocols govern the relationship between Ministers, civil servants and advisers. There should be a clear statement as to the function and role of advisers and a clear delineation made between their role and that of civil servants. The guidelines should ensure that the responsibilities, reporting relationships and accountabilities of senior civil servants to Ministers will not be undermined and that special advisers will not be involved in line responsibilities in Government Departments or Offices.
6. Composition of MAC
6.1 The Report recommends that consideration be given to the appointment of external members to the Management Advisory Committee (MAC) of the Department and to having cross membership between the MAC and the Board of the HSE. These recommendations raise serious matters of governance in the health services. The MAC is the top management team of the Department. The Department exists to support the Minister in his or her Constitutional, statutory and Ministerial role. Neither the Department nor its MAC has a separate identity. The HSE is a separate statutory body which is charged with managing the health services. The Prospectus and Brennan Reports called for a clear separation of policy and executive roles and this is reflected in the Health Act 2004 which assigns the executive role to the HSE. The Minister is politically accountable for the health service and as such is responsible for the holding of the Executive to account. It is difficult to see how the Department could effectively support the Minister in this role if members of the HSE Board were also on the MAC. If it is proposed to change the existing structure of the MAC the Branch is strongly of the view that any such changes should only be implemented after an extensive review based on best practice in corporate governance.
7. Conclusion
7.1 The recommendations of the Report have major implications for the internal governance system of this and other Departments. Arising from those recommendations the Branch strongly advocates that a civil service wide review should be undertaken in respect of future governance arrangements within Government Departments, particularly in respect of recording of decisions, the role of special advisers and the individual responsibility of civil servants in relation to matters of legal uncertainty.
7.2 The Department of Health and Children Branch of the AHCPS supports the proposals before the Association's Annual Delegate Conference calling for the development of protocols in relation to the interaction between civil servants and Ministers and the role of special advisers. It further seeks clarification in respect of any proposals regarding changes to the Department's MAC and any proposals regarding any intention to change the individual responsibility of civil servants in relation to their work outside that contained in the existing civil service code of practice. The Branch further calls for these and any related issues to be resolved in full consultation with the AHCPS and that the Association be involved in any process undertaken to implement any of the recommendations contained in the Travers Report and in all other aspects of the restructuring of the Department of Health and Children and that no decisions affecting the role of AHCPS members should be implemented without the prior agreement of the Association.
I will now read the submission of the AHCPS. It states:
Submission by the Association of Higher Civil and Public Servants on the Travers Report into Nursing Home Charges to the Joint Oireachtas Committee on Health & Children.
1. Introduction
1.1 The Travers Report on Nursing Home Charges was the subject of an Emergency Motion which was unanimously adopted at the AHCPS Annual Delegate Conference on Friday 6th May. The Emergency Motion was in the following terms:
That this ADC
(1) notes with serious reservations the Travers Report on certain issues of management and administration in the Department of Health & Children associated with the practice of charges for persons in long-stay care in health board institutions and related matters;
(2) directs the Executive Committee, in the light of the findings and recommendations in the Travers Report and of the Government's decentralisation programme, to pursue at political and at official levels.
(a) the introduction on a statutory basis of a model of corporate governance for Departments on the lines previously advanced by the Association in its 1992/95 proposals for corporate strategic reform of the civil service;
(b) the clarification on a statutory basis of the role of Special Advisors to Ministers in a manner which will provide that the responsibilities, reporting relationships and accountabilities of senior civil servants to Ministers will not be undermined and that Special Advisors will not be involved in line responsibilities in Departments; and
(c) the development of agreed protocols covering the interaction between Ministers and civil servants particularly in relation to briefing of Ministers, recording of Ministerial decisions and verbal instructions and the treatment of matters of political sensitivity.
1.2 The concerns expressed by the AHCPS which formed the background to this motion are set out in this submission.
There are three separate elements to the report
1) Process
2) Findings
3) Recommendations for the future.
2. Process
2.1 Different process issues arise for two separate periods, from 1976 when the original circular issued to 2001 and from 2001 when the budget introduced free medical cards for over 70's irrespective of income, to 2004, and these are dealt with separately
2.2 The Association is very conscious that the happenings of the later period are the subject of intense conflicts of evidence between the former Secretary General Mr Michael Kelly and the former Minister Micheal Martin and between Mr Kelly and the Tanaiste. The Association is also conscious that Mr Kelly has drawn attention to his concerns in relation to the process followed by Mr Travers and the extent to which, in his view, it did not enable him and other witnesses to protect their character and reputation having regard to their constitutional rights. The Association notes that where there was any conflict of evidence or absence of documentary evidence, Mr. Travers appears to have always given the benefit of the doubt to a Minister.
2.3 In relation to the period 1976 to 2001, the Association has very serious reservations about the process adopted by Mr Travers. In any investigation, it is best practice to always go to the prime sources and, if they are not available, then a note to that effect should be included in the report. In the case of this report, while some of the primary sources were not available, Mr. Travers made little or no effort to check with those most directly involved in what was, as everyone is aware a public issue over a very long period. Three of the six Secretary Generals in charge of the Department of Health during this period are dead. There is no reference whatsoever to this in the Report. However, Mr. Travers could have personally interviewed the two surviving previous Secretary Generals, Mr John Hurley, current Governor of the Central Bank and Mr Jerry O'Dwyer, Mr. Kelly's immediate predecessor who is retired. Instead, although this only emerged during hearings before this Committee, he only talked to them on the phone. The absence of any reference to the fact that earlier Secretaries are dead and the lack of any real attempt to probe the matter with the two surviving Secretaries General is a source of considerable concern to the Association.
2.4 It is also significant that Travers did not interview any of the Ministers who served in the Department of Health prior to Minister Martin. This is of particular concern given that Mr. Travers himself accepts that there is clear evidence that the matter was submitted to Government on at least two occasions. Despite the fact that the Government, including successive Attorney Generals since 1987, appear to have been aware of legal doubts raised there is no explanation as to why Mr Travers did not seek to interview them. As a minimum, given the 1987 decision that the matter would be further discussed between the Taoiseach, the Attorney General and the Minister for Health, the Association's view is that the fact that Mr. Travers appears to have made no attempt to interview those individuals is a serious flaw in his approach to the problem. Anyone with an understanding of public service at the interface between Ministers and top civil servants will be aware that the file is regularly not fully recorded and that indications, for instance, that the file did not show what happened in respect of Cabinet Sub-Committee meetings should not have been taken as sufficient to negate the need for personal interviews.
2.5 The lack of any discussion with former Ministers and Secretary Generals must be of particular concern given the fact that the matter was in the public domain in various contexts, at various times during the relevant period and one could expect to get a better understanding of the extent to which it was an issue within the Department and in Government. Mr. Travers made no attempt to ascertain this very basic information which should have informed the report.
3. Findings
3.1 As the Report acknowledges the relationship between Ministers and the top management of a Department is critical to the success of both the Minister and the Department. It states "That relationship must be based on mutual trust, loyalty and confidence". By definition, such a relationship places significant responsibilities on both the Ministers and top management of the Department. The Report goes on to say that an over-emphasis on note taking would undermine that relationship. However, the Report recommends that a de minimus record should be made of all decisions taken or not taken either singularly or jointly by the Minister or the top management of the Department. The Association is of the view that this recommendation reflects both best practice and common sense. In general, many of the civil servants represented by the AHCPS would deal regularly with Ministers, and would have experience of being issued with verbal instructions, which are noted on files so as to assist a person’s memory or enable instructions to be issued down the line. This approach has always been considered reasonable in view of the pressures on Ministers and the need to avoid an unnecessarily bureaucratic approach to business which could impede the working relationship between civil servants and Ministers and the efficient working of Government Departments. It would be reasonable to conclude that notes on files would constitute the type of de minimus recording envisaged in the Report’s recommendations.
3.2 It is therefore difficult to reconcile the Report' s recommendation de minimus recording with the Report’s criticism that in relation to proposals put forward by the Department in 1979, to the then Minister to change the definition of full eligibility, that there was no direct documentary evidence to corroborate a note on the file stating that the then Minister was not keen to pursue the course of action proposed. Faced with the de minimus recording recommended by Mr. Travers he then chooses not to accept it. It is difficult to see how this finding can be taken seriously, given that it is in direct conflict with his own recommendation. It is also noticeable that Mr. Travers makes no finding in relation to the absence of any record, de minimus or otherwise, of any discussion between the Taoiseach, the Attorney General and the Minister.
3.3 The Association notes and indeed accepts the Report's recommendation that Special Advisors should avoid becoming involved to too great an extent in the day to day operations and administration of the Department and that Special Advisors are not part of the line management system and that briefing Special Advisors should not be considered or accepted as an alternative to direct briefing of the Minister. It is striking that this recommendation is unrelated to any finding in the Report. For example there is no reference to the fact that there was a specific circular issued in the Department in March 2000 defining the policy areas that individual Advisors would deal with and indicating that the Minister would be kept informed of key issues through the interaction of his Advisors with the relevant units and divisions of the Department. Nor is there any analysis in the report as to the role of the Advisors in this particular issue. The absence of any finding in the Report relating to the actual role of the Advisors is a serious flaw in the report, especially when the relevant recommendation indicates clearly that Mr. Travers was in fact aware of the situation.
4. Recommendations
4.1 While the Association accepts the thrust of the recommendations of the Report, it would go further. The Association's view is that the current arrangements are inadequate. The Constitution is unambiguously clear. It is Ministers who are in charge of Departments of State and collectively responsible to Dáil Éireann for the Departments of State administered by them. They are equally responsible for policy and legislation and yet there was no examination of this responsibility in the report.
4.2 Clearly, matters must be put on a better footing for the future and the Association's recommendation is that there be a specific requirement for Ministers and top civil servants to meet at least once a month — rather than four times a year as recommended by Mr Travers — and that all important items, including the legislative programme, strategic items of single importance etc. be discussed at that meeting at which the Minister would act as chairperson, the Secretary General would de facto be Chief Executive and the Assistant Secretaries (with Principal Officers attending as appropriate) would be the remainder of the management advisory board. It is absolutely essential that the manner in which Departments are managed in the future ensures that everybody is absolutely clear as to their respective roles. In effect it involves putting the Management Advisory Committee on a more formal and statutory basis.
4.3 The Association fully endorses the view of Mr Travers that briefing of Special Advisors is not the equivalent of briefing Ministers but the de facto practice emerging in Departments is that, with advance agreement and approval of Ministers, Advisors are tending to assume a role in line administration. This must be addressed and the Association recommends that the role of the Special Advisor be now better defined in legislation.
I will now read from the submission from the Office of the Ombudsman on the Travers report and the Ombudsman's report on nursing home subventions, 2001 to the Oireachtas Joint Committee on Health and Children.
This submission discusses issues raised in the Travers Report which are relevant to the Ombudsman's Report on Nursing Home Subventions which was published and presented to the Oireachtas in January 2001.
The submission deals with two issues of concern to the Ombudsman. First it emerges from the Travers Report that the Department of Health and Children had legal advice and other evidence in its possession related to the question of the entitlement of medical card holders to long-stay hospital services, which it did not pass to the Ombudsman's Office during this Office's examination of this issue over successive years. Second, Chapter 8 of the Ombudsman's Nursing Homes Report identified system failures within government and commented that these failures had contributed to the problems that arose in nursing home subventions. The events of late 2004 with the Department of Health and Children are further evidence of these failures of governance and this submission notes with regret that in the four years since the publication of that report, no action has been taken to address these problems.
These two issues are discussed in more detail below.
Legal advice and other evidence not passed on to the Ombudsman.
Information contained in the Travers Report, which this Office had not previously been aware of, raises serious issues regarding the manner in which the Department of Health and Children dealt with the Office in the past.
From the late 1980s onwards, the Ombudsman dealt frequently with complaints about the entitlement of medical card holders to long-stay hospital services. Many of these cases concerned elderly people receiving what is now being termed "nursing home" care; some concerned people, not necessarily elderly, in long-stay care because of a psychiatric condition or some long-term debilitating illness. The complaints related to the fact that these patients were being charged despite the fact that they had medical cards and/or despite the fact that they had dependants. In many instances, the health board concerned would have revoked the medical card of the patient — though not on the basis of a proper and procedurally fair process. The Ombudsman's thinking on these cases was (a) that the type of care being provided constituted an "in-patient service"; (b) that such a service should be provided, as a matter of right and without charge, to medical card holders and to people without a medical card provided they had a dependant; and (c) that the practice of removing a medical card from a person, once hospitalised, was not tenable.
The Ombudsman discussed these matters frequently with the particular health boards involved and with the Department centrally. The logic of this approach was that, without the support of the Department, individual health boards were not likely to change their practice. What actually happened was that health boards, often with the encouragement of the Department, changed their practice in particular cases; but, as is now well known, the impugned practices continued generally and the law was not changed to validate these practices.
During those years the Ombudsman drew attention to those matters by way of items in his Annual Report to the Oireachtas. Annual Reports for the years 1988, 1989, 1991, 1992 and 1994 dealt specifically with the issue. The matter was referred to as a related issue in the report "Nursing Home Subventions" (January 2001) but it was something which the then Ombudsman very explicitly raised in his oral presentation to this Committee on 21 June 2001. Annual Reports for 2002 and 2003 again report cases in which these matters figured. By any reckoning, this was an exhaustive effort to draw attention to practices which the Ombudsman believed to be invalid.
What we now know, arising from the Travers Report, is that throughout this extended period, the Department and, to a lesser extent the health boards, had solid and incontrovertible evidence to support the position taken by the Ombudsman. Very regrettably, the Ombudsman was never made aware of this evidence.
The Travers report shows the following:
that in June 1976, the Department received legal advice that a person with a medical card (full eligibility) could retain eligibility for in-patient services irrespective of how long hospitalisation lasted; and that a hospital patient could only have a medical card removed where the health board was satisfied that the patient could provide general practitioner services for himself and his dependants; [Para. 3.4]
that in July 1997, the Department received legal advice that its Circular 7/76 "would not stand up in court" in so far as it encouraged health boards to remove the medical card from long-stay patients; [Para. 3.7]
that in July 1978, the Department received, via the Eastern Health Board, the legal advice of two eminent Senior Counsel that confirmed the opinion of July 1977; [Para. 3.10]
that over the years the Department's legal advisor expressed dissatisfaction with the Departments continued reliance on Circular 7/76; [Para. 3.13]
that an internal departmental review of January 1982 acknowledged the legal invalidity of the practices in question; [Para. 3.14 — 3.16]
that in February — March 1987 the then Minister for Health brought a Memorandum to Government with a legislative proposal to deal with the matter; [Para. 3.17 — 3.22]
that in August 1992, the Department produced a report entitled "Review of Long-Stay Charges Report" which again acknowledged the legal invalidity of the impugned practices [Para. 3.25].
The Department omitted to inform the Ombudsman of these crucial developments and related legal advice. Disclosure of this information would have established, in the language of section 4 of the Ombudsman Act, 1980, that the Department actions (and those of the health board in reliance on the Department's position) were "taken without proper authority".
In its discussions with the Ombudsman, the Department purported to have been unaware of the Supreme Court judgment in the McInerney case. (This judgment established that persons in long-term care, in health board institutions which provided nursing and other para-medical care, were receiving “in-patient” services as defined at section 51 of the Health Act, 1970. Persons with medical cards were at that stage were entitled to “in patient” services without charge.) Whereas at one point it appeared to accept the Ombudsman’s analysis in full, it later resiled from its acceptance of a key aspect of that analysis and refused to accept the Health Act, 1970 conferred a legally enforceable entitlement to in-patient services [See Page 14, Note 1 of the report “Nursing Home Subventions” which is reproduced in the appendix to this submission].
The failure of the Department to inform the Ombudsman of the detailed evidence, now revealed by the Travers Report, is very significant, for reasons discussed below. This Office has not discussed this failure with the Department and it may well be that there was no deliberate intention to withhold information or that the officials, with whom the Ombudsman dealt at specific meetings, were not aware of the evidence in question. However, the fact remains that in relation to the totality of the Ombudsman's contacts with the Department, over time, and for whatever reason, this evidence did not emerge.
Had the Ombudsman been aware that the Department had been provided over successive years with definitive legal advice on the matter, and been aware that the analysis he was offering was no more than that already provided to the Department by its own and health board legal advisors, he would have reported to the Oireachtas on the matter both more fully and more definitively. He would also have drawn the weight of evidence to this Committee's attention when he appeared before it on 21 June 2001.
Furthermore, in dealing with complaints in this area it is very likely that the Ombudsman would have completed investigations and made recommendations providing for appropriate redress. However, in a situation in which he did not know of this evidence, and despite the strength of the argument he was himself making, the Ombudsman stopped short of making recommendations in individual cases.
If it had been possible to provide the Oireachtas with a detailed analysis as outlined above, it could have ensured that the necessary legislative steps would have been taken either to validate the existing practice or to provide a valid legal alternative. Had the matter been resolved in 1991-1992, when there were intensive discussions between the Department and the Ombudsman, a very substantial portion of the overpayment (now required to be refunded) would never have arisen.
Delay in addressing failures of government identified in the Ombudsman's Report.
In making his presentation to this committee on 21 June 2001, following the publication of the report "Nursing Home Subventions" (January 2001), my predecessor was very anxious that wider lessons should be learned. He commented:
There were failures by many parts of the system within which government is carried out in Ireland. There was a failure of the Houses of the Oireachtas in supervising the making of the regulations, and in ensuring the accountability of successive Ministers. There was a breakdown in the accountability relationship between Ministers and senior civil servants and, at the very least, a distinct lack of transparency in that relationship.And there was an absence of any awareness on the part of the Department of Finance, the Department of Health & Children, and the Health Boards that people's entitlements and human rights cannot arbitrarily be put to one side in the interest of saving money or keeping within predetermined expenditure limits. As someone who is genuinely concerned about the effectiveness of the Houses of the Oireachtas in their very important role of holding the Executive accountable in the area of people's entitlements, may I express the view that I detect a failure to exert themselves in this regard? It is creating a vacuum that is being increasingly filled by the Courts and the Judiciary. And I don't think that is a good thing constitutionally. If the Executive cannot fulfil the obligations that the Oireachtas puts on it by way of legislation, then the Executive should seek a solution involving the Houses.
These comments are as relevant in the present context as they were in the specific context of the nursing home subventions. In any case, the then Ombudsman went on to identify the issue of entitlement to long-stay hospital care as a "major outstanding issue".
The events of late 2004 within the Department of Health and Children more than justify the Ombudsman in having chosen to make the remarks cited above. Regrettably, his remarks have not been acted upon. In the four years which have intervened it appears that no action has been taken to deal with the failures of government identified by him.
As an independent office holder who investigates the actions of "Departments of State", including the Executive, and who reports to the Oireachtas, I am keenly aware of my obligations to both parties. But it seems to me that in the aftermath of the Travers Report, the nature of the relationship within the Executive, between Ministers and senior civil servants, requires urgent attention. Clear lines of responsibility and accountability need to be agreed.
Whatever the situation may have been in the particular instance investigated by Mr. Travers, the wider issue is that the model of government meant to underpin and support the workings of government is no longer fully relevant. Chapter 8 of the report "Nursing Home Subventions" (January 2001) is, to a large extent, a reflection on this fact. It is primarily for the Oireachtas itself, and for its members, to deal with this situation and to take whatever steps are necessary to ensure that the model of government fits the practice. However, I do feel that there has been a failure to date both by Ministers, and by members of the Oireachtas generally, to deal with the problems identified by my predecessor in 2001.
Emily O'Reilly
Ombudsman.
I thank Deputy Cowley. That completes the reading of submissions. I thank members for remaining so long.
The joint committee adjourned at 12.05 p.m. until noon on Tuesday, 14 June 2005.