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Thursday, 22 Jun 2006

Charges for Persons in Long-Stay Care: Presentation.

The subject of our discussion is an update on progress in implementing the recommendations of the report on certain issues of management and administration in the Department of Health and Children associated with charges for persons in long-stay care and Health Service Executive institutions and related matters. I welcome the followng officials from the Department of Health and Children: Mr. Michael Scanlan, Secretary General; Mr. Dermot Smith, assistant secretary; Ms Frances Spillane, assistant secretary; and Mr. Peter Lennon, assistant principal officer.

I wish to draw the attention of the delegation to the fact that while members of the committee have absolute privilege, this same privilege does not extend to those appearing before it. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I invite Mr. Scanlan to make his presentation, to be followed by questions from members.

Mr. Michael Scanlan

I thank the Chairman and welcome the opportunity to update the committee on progress made in implementing the recommendations of the committee in its report of June 2005 and those contained in the Travers report that pertain to the Department of Health and Children. Before dealing with those recommendations, I think it would be appropriate to say a few words about the Health (Repayment Scheme) Bill 2006. This Bill has passed all stages in the Dáil and Seanad and is now awaiting signature by the President. I acknowledge that the process has taken longer than expected. This was due in the main to the complex and sensitive nature of the issues involved and the need for detailed legal opinion and broad consultation.

The repayments process is expected to commence next month. It is estimated that approximately 20,000 people who are still alive and a further 40,000 to 50,000 estates will benefit. Priority will be given to those still alive. The HSE has been identifying and collating details of repayments due to this group to enable prompt repayments to be made. The overall costs arising from the long-stay charges repayment scheme have been estimated at approximately €1 billion and an appropriate allocation for 2006, which is approximately €340 million, will be made as soon as possible.

I will now deal with the progress made in implementing the recommendations of the committee in its report of June 2005 and those contained in the Travers report that pertain to the Department of Health and Children. In March 2006, I submitted a report to the Tánaiste and Minister for Health and Children which reviewed the various recommendations and described the progress made under each heading. I have arranged for copies of that report to be given to the clerk of the committee and circulated to members and I hope every member has a copy. I have also circulated a copy of what I have termed an "office notice" about special advisers, which was issued in May.

I will highlight a number of the issues dealt with in the March report. There is ongoing contact between the Tánaiste and individual members of the management advisory committee, MAC, on an "as required" basis on particular issues that arise from time to time. In addition, we have put in place a formal structure for meetings. I normally meet the Tánaiste on the morning of each Government meeting; the MAC meets on a quarterly basis with the Tánaiste and her Ministers of State in order to brief them on issues of significance and discuss issues raised by the Tánaiste, a Minister of State or myself; and individual members of the MAC meet the Tánaiste once every two months to brief her on issues within their divisions.

The work programme for the MAC has been restructured, with a planned agenda that includes regular consideration of matters of particular importance, such as monthly reports on the Department's and the HSE's expenditure or Vote and quarterly reports on the legislative programme. A "brief updates" item has been introduced as a regular agenda topic for the weekly MAC meetings. As the title suggests, this is intended to allow each member of the MAC to provide a brief oral update on recent developments in his or her division.

Each MAC member also provides, on a monthly basis, a written list of, and update on, significant issues in his or her division. Copies of the composite document are circulated and discussed at the first MAC meeting of the month. Copies are also provided to the Tánaiste. MAC members are encouraged to include on the MAC agenda items within their individual areas of responsibility in order to brief colleagues and develop a corporate approach to issues. A variety of important policy questions have been tabled and discussed in this way at MAC meetings over the past year. Each division presents its annual business plan to the MAC during the first quarter of the year. This facilitates the identification of important issues and agreement on timelines for action. It also helps to identify cross-cutting issues and reinforces the need for a corporate approach to such issues. The past year has seen significant changes at MAC level in terms of reassignments and lateral mobility.

As members can see from the report I submitted to the Tánaiste last March, I previously agreed with her that it would not be appropriate to appoint external advisers to the MAC. The Public Service Management Act 1997 clearly envisages that responsibility for the management of a Department of State is vested in officers of the Department. This would leave the position of non-officials of the Department on the MAC open to legal uncertainty which would neither be advisable nor conducive to the proper management of the Department. I was conscious also that the committee took a somewhat different view on this issue from that outlined in the Travers report itself. The committee recognised that cross-membership between the MAC and the HSE board would tangle the clear lines of accountability of the heads of both organisations.

There is, of course, a need for excellent conjoint working relationships between the Department and the HSE. In that regard, arrangements for regular meetings between the Tánaiste and Secretary General and the chairman and chief operating officer of the HSE have been instituted, as has a separate programme of meetings between myself and the chief operating officer of the HSE. Arrangements are also in place for quarterly meetings between the HSE and the MAC on service activity and finance issues. This is in addition to the normal ongoing contact at all levels between officers of the Department and the HSE.

The note which issued internally within the Department in May in respect of special advisers, which I have circulated to members, makes two key points. The first is that special advisers are not part of the Civil Service line management and the second is that every effort should be made to keep the advisers briefed on significant issues so that they can do their job.

Following the recommendations in both reports, and in the context of introducing our risk management system, all divisions were asked to review existing procedures to identify if there were any outstanding queries or concerns in respect of their legal basis. None was identified. However, divisions continue to be aware of the need to monitor the situation and identify any emerging legal issues which need to be addressed as a matter of urgency. Any such matters must be brought to the attention of the MAC. It has been agreed that the legal adviser will report to MAC meetings every two months. I understand that my report to the Tánaiste stated that the adviser would report to MAC meetings every three months but this has been changed to two months. It has also been decided to recruit a second legal adviser and we are working with the Office of the Attorney General to give effect to this. All legal advice sought and received by the Department is now routed through the legal adviser. As a result, she will hold a record of all advice and be aware of issues which have a cross-divisional impact. The legal adviser now also circulates copies of legal advice of general relevance within the Department to staff at principal officer level. Another safeguard is that notes or minutes of meetings with the adviser, at which she has given advice, are submitted to her for verification and sign-off before they are finalised to ensure that the interpretation is correct.

Separately, the management of court cases in a more coherent manner is being examined as part of a review currently being carried out by the Department of Finance. I decided to ask the organisation, management and training division, OMTD, of the Department of Finance to carry out this review of certain administrative processes in the Department of Health and Children, namely, court cases, parliamentary questions and correspondence. The purpose of the exercise is to use the OMTD's expertise to identify any weaknesses in our existing systems and to recommend improved arrangements, where necessary. A computer-based centralised records and file tracking system, CRAFTS, has been created and is installed in every section of the Department. It is used to log all official files on a centralised rather than local basis. A new internal correspondence tracking system has been put in place in my office. Similarly, any files, folders, memos or documents transiting through the Minister's office are logged on a separate Minister's office internal correspondence application. A general correspondence tracking system is also operated as part of our quality customer service programme. The OMTD review will provide an outside assessment of how these systems are working in practice.

Risk management, such as business planning, should be an integral part of the normal management process. We engaged Price Waterhouse Coopers to help us formulate a risk assessment model that will meet our needs.

The policy documents to underpin our approach to risk management have been developed. Training, risk assessment and evaluation exercises have been completed and much data has already been input to the model. The resulting risk register identifies risk by category, impact, likelihood, vulnerabilities and actions required and requires a sign-off by the principal officer in charge of the unit concerned. Our proposed risk management system is currently being considered by our internal audit committee.

The period before and immediately after the Travers report was a traumatic one for the Department of Health and Children. However, our response to the recommendations demonstrates that we recognise the importance of learning from what happened. The innovations and changes outlined in my presentation are intended to allow us to deal with issues of singular importance and to improve the routine administration of the Department. They are already influencing our business processes. However, in implementing the recommendations made by this committee and the Travers report, our guiding philosophy must be vigilance and not complacency. There is no end to reform — it is a continuous process that puts an onus on me and the Department to continue trying to make further improvements.

As Secretary General of the Department of Health and Children, my responsibility is to ensure that the Department meets its objectives through the best possible use of our resources, particularly our people. I conclude by stating publicly that I have found a positive attitude towards change among staff in my Department since I joined it last year. I take this opportunity to thank them for their support in helping the Department move forward in a positive way following the events leading up to and after the two reports being considered by the committee today.

It is reassuring that all is well in the Department of Health and Children and that its staff have adopted these changes. On the Travers report and what initiated it, a number of issues persist in that many people are still awaiting repayment of nursing home funds. Will Mr. Scanlan explain to the committee why, for example, repayments cannot be made sooner than expected? Unfortunately, I must attend another meeting and I would appreciate a brief comment.

If staff who previously left the system owe money to the health service, they must pay a compound rate of interest. What is the Department's reaction to the proposal that it should pay interest to people who have been owed money for a long period? The outstanding amount is €1 billion, although that is a guesstimate. Will Mr. Scanlan also comment on a possible early goodwill payment as opposed to waiting until everything has been signed off?

I thank the Secretary General for his report, particularly for putting a figure on the repayment scheme. The total of €1 billion to be repaid is a staggering amount of money. The lesson is that if officials had been able to focus on this issue, if the Minister had read the briefing given to him and his political advisers had done their jobs, the figure would not be as large. The figure for this year is €350 million. Will there be a Supplementary Estimate?

Mr. Scanlan


While I am aware of the company's name, it is surprising that the Secretary General did not state who was given the contract in respect of the repayments. We have been waiting quite a while for a decision and the contract needed to be readvertised. I do not know why we should wait to discover who will be responsible for repayments, as this is a matter of public interest and there is no reason for secrecy.

Answering my next question may put Mr. Scanlan in a difficult position. I cannot understand why it was not possible for the Department to carry out this task. The explanation given to the committee by the Tánaiste was that the Health Service Executive stated it could not carry out the task. Approximately 300 to 400 people in the Department are no longer required to do work that has been shifted to the HSE, a figure provided to the committee a long time ago when we were discussing the HSE with the Department. Are those people still in the Department, what are they doing and why could this task not be processed within the Civil Service, which has a good record of carrying out this type of work? Apart from the Tánaiste's ideological bent, it is difficult to understand why such a service should be privatised alongside everything else in the health service.

Mr. Scanlan has referred to regular meetings he has set up between, for example, the Tánaiste and himself. Are those meetings recorded? A point in the Travers report was that there was a clear conflict of evidence between the then Secretary General and the Minister. Consequently, the reputations of both people were damaged, but only one could have been right.

Regarding the management advisory committee, the Department has had a significantly different role since the HSE was established. Now that the Department is presumably concentrating on policy, what change has occurred in respect of the MAC? Is the Department still transferring responsibilities to the HSE and, if so, how much of that work remains to be done? I do not recall committee members stating that we did not want HSE staff at MAC meetings. We said that we did not like the idea in the Travers report of using outsiders, private sector people who would attend meetings at the Department of Enterprise, Trade and Employment, for example.

I acknowledge that the Department of Health and Children and the HSE are conducting meetings, as such meetings are crucial. Is the Department getting better and clearer answers from the HSE than this committee is? We are not getting clear answers. As Mr. Scanlan knows well by now, there are two problems. We receive answers from the Tánaiste to the effect that she will transfer the questions to the HSE. Three or four months later, we receive answers from the HSE, from which data are often missing. The issue is not just one of delays, secrecy or lack of records. Rather, it is also an issue of basic statistical information being unavailable to Members. I asked about public health doctors, but did not get a full answer. I asked about community nursing beds, but there were gaps in the answer. Someone must know what the answers to these questions are. Getting an answer from the HSE would take as long as sending a man out on a bicycle to count the beds. Has the Department's experience been better?

Regarding legal issues, the report of the then Ombudsman, Mr. Kevin Murphy, on residential care for the elderly specifically stated that every elderly person in residential care was entitled to cover by the State, not just those in public nursing homes. I appreciate that it may be unfair to ask Mr. Scanlan when there are court cases in train, but will he comment on this legal issue and what the Department is doing to consider it? All legal advice received is now routed through the legal adviser. Such should have been done all along, but it is good to see it being done now.

I welcome the delegation and Mr. Scanlan's remarks. From his report, it would appear that real changes have been made. It was music to my ears to hear him say the Department's philosophy should be vigilance, not complacency. Anyone who listened to the inquiry into the overcharging of elderly residents would certainly have agreed that there was a great deal of complacency in the Department at the time.

I am delighted that €340 million will be available and will be ring-fenced. Will that money be used for the 20,000 people now living? What will be the relationship between the Department and the agency hired to oversee the payment of moneys? What will be the relationship between the HSE and the agency?

Since I spoke on the Bill in the Seanad, I have been approached by a number of people whose relatives died. The estates would be entitled to benefit but these people were satisfied with the care given to their relatives and will not be crediting the estates with the amount of money owed. They would like to see the money transferred to the hospitals that cared for their elderly relatives. Is that possible? Legislation does not provide for this but perhaps the estates could accept the money and then donate it to the hospitals.

Mr. Scanlan stated that the report issued to the Tánaiste last March would be circulated to members of the committee.

Mr. Scanlan

We brought copies this morning.

I did not see it on the desk. I had put my file on top of it.

I approve of mechanisms to track records and files. Everyone, particularly people in the Department, will say amen to that.

I received a copy of the statement the Tánaiste made in March 2005 on the Travers report. I was bemused by her claim that repayments to those overcharged would be made quickly, fairly and efficiently. A year and four months later, we have only just debated the Bill in the Seanad and no repayments have been issued. The Tánaiste also referred to clarity on services, financial charges and shared responsibility. Can the progress on this be reported? I see no clarity in this area. Much ambiguity exists with regard to people's entitlements. There is a degree of clarity with regard to charges but not on other issues.

Has the Department accounted for the pending court cases of those who were forced to take beds in private nursing homes? Some people tried to get beds in public nursing homes but were unable to do so. As a second choice, they opted for private nursing homes. If the court rules that these people are also entitled to compensation, the figure will be much higher. What progress is being made on this?

There is a veil of secrecy surrounding the tendering process for the outside agency to administer the scheme. Last week, the Seanad heard that 11 companies applied to administer the scheme. Three were short-listed before the HSE decided that they were unsuitable. The contract was advertised again and Fianna Fáil Members have suspicions that the process suited one particular company that had not initially applied. I will not name the company but have heard of it from a few people.

That is speculation.

Senator Browne should tell the committee whom he is talking about or withdraw his comment.

I will not withdraw it because it is a fact.

There is no point in making half a statement.

It is not half a statement. Certain Fianna Fáil Members have tabled parliamentary questions on this matter.

We are dealing with the response to our request. We are trying to resolve, with openness and transparency, issues that have arisen in the past year. Let us not cloud matters with smokescreens.

I have made a request in respect of this issue under the Freedom of Information Act. I have not yet received a reply, even though I should have received it within four weeks. The Minister of State at the Department of Health and Children, Deputy Seán Power, stated that after 14 days had expired, we would be informed of the company that was awarded the contract. That has not yet happened. I have requested that the Oireachtas be notified of the company that received the contract, the value of the contract, and if the tendered bids from the previous rounds were lower.

The Minister of State also announced that the contract would be for two years. I asked what would happen if the payments had not been completed by the end of the two-year period. Would the contract be advertised again? Would sanctions be imposed on the company? Is it expected to have repayments completed within two years? If not, what will happen? I am not satisfied because people are asking questions but they are not receiving answers. This information should be available.

While attending meetings on the Travers report, I learned that there is a difference between legal opinion and legal fact. Five barristers may say one thing and five another but one will never know until a court rules. Is there any scope for the Department to take test cases? In the Mr. A case, we were on the back foot. The Travers report refers to being correct about the legal basis for decisions. If the Department is concerned about the legality of an issue, is there scope to take a legal test case? In this way it would not be obliged to wait until a member of the public took a case. The Department could be proactive.

The repayment process is expected to commence next month. I read an article in The Irish Times which suggested that it would be postponed until August or September.

Mr. Scanlan

I do not think that is correct but I will respond when the Deputy has concluded.

The second question relates to political advisers. Mr. Scanlan states that advisers should be briefed. The internal note on special advisers states that they will be briefed. Is it the case that they should be briefed or that they will be briefed? There is a difference and this may be responsible for some issues that arose in the report.

Mr. Scanlan

The questions break down into two broad areas. One area concerns the immediate follow-up to recommendations in the Travers report. The other focussed on the repayment scheme. I asked Mr. Smith to attend this meeting because I anticipated the committee's interest in the scheme. I will make introductory comments before Mr. Smith answers the questions in more detail.

Regarding Deputy McManus's question, it is the intention to provide a Supplementary Estimate next week. Deputies also asked questions about the outside company. When I worked in the Department of Finance there was discussion on the new role of the Department of Health and Children and how it would free resources. I have not turned from gamekeeper to poacher but the volume of work in the Department of Health and Children is unrelenting. I do not have 20 or 200 members of staff sitting around with nothing to do. I acknowledge that my former colleagues in the Department of Finance may not accept that but we have agreed to hire someone to examine what the Department of Health and Children must do. I am not referring to outside management consultants. The Department is not solely a policy Department, it is also a performance management Department and that aspect is as important as policy. That is a long-winded way of stating that I do not have 300 or 400 staff who are no longer required and who could have been assigned to this work. The bottom line is that the Department does not have the capacity to do this work. This is a once-off spike in work and the HSE stated it could not have done it without interfering in some way with other services. We were anxious to focus on getting this job done. If an outside company was the best way to do so, well and good.

Tendering was handled by the HSE and Mr. Smith will be able to discuss it in more detail. I was recently asked questions on the process. We asked for and received strong assurances from the HSE that it can fully stand over the tender process. I received those assurances at the highest level. The HSE is happy that it was an extremely robust tendering process.

Why the veil of secrecy?

Mr. Scanlan

Sorry, I am only answering on the tendering and procurement process with which all Departments and agencies must comply. That process has been gone through. I was told in no uncertain terms that the HSE would stand over it. That is part of performance management and I take the HSE at its word.

We must take Mr. Scanlan at his word that the tendering process was robust, transparent and open and he has no doubt about that.

Mr. Scanlan


That is good enough.

Was the company which got the contract one of the original 11?

Mr. Scanlan

I will let Mr. Smith deal with some of the detailed questions, including the names. I wanted to state what I did because I was present when this issue was raised.

The issues of vigilance, complacency, tracking records and the difference between legal opinion and legal fact are all linked to the lessons to be learnt and not the repayment scheme. Clearly, one can state the report was a wake-up call. One does one's best to manage the Department and examine processes. This is a process, as certain changes can be made but one must examine the culture of an office, keep one's eye on the ball and ensure the pendulum does not swing too far from one direction to the other. One should not get completely risk-averse and let everything grind to a halt. One must find a balance while managing the health services and the Department.

The same applies to records. A new system was put in place in my office. I remember explaining the difference between folders and files when members of the committee visited. The new system tracks everything, a result of which is that sometimes matters are delayed coming to and leaving my office. I look forward to hearing whether we got the balance right from the outside review by the CMOD section of the Department of Finance.

I agree with Senator Browne on the issue of legal opinion versus legal fact. The committee’s report contained an acknowledgement that the legal position can shift. From our position, the Attorney General is the ultimate adviser. If we receive legal advice from the Attorney General, we do not then go to court and take a test case. We will act on that advice. I will take away what the Senator stated on the idea of test cases. I would have thought we would only consider that if the Office of the Attorney General stated it was the correct course of action.

Deputy McManus asked about the recording of the Minister's MAC meetings and other meetings and links with the HSE. Quarterly MAC meetings are held and records are kept of those. I meet the Tánaiste once a week. I do not keep a record of it but there is nothing untoward about that. One could not maintain the pace of work if one also recorded everything.

I appreciate that and I do not want to cut across Mr. Scanlan, but that is exactly what happened to his predecessor.

Mr. Scanlan

I recognise that. Mr. Travers tried to strike a balance in his report. He stated that one could not possibly record all interactions which occurred. He stated that if one tried to do so, it would undermine relationships and that what was needed was sensible decision-making and de minimis recording of decisions. We certainly do that.

We keep records of MAC meetings and regular meetings, such as service plan meetings, and meetings I and my colleagues have with CEOs. We have also established other meetings. Each member of the MAC meets the Tánaiste once every two months. A document is created, based on the briefing given to the Tánaiste at that meeting. I know for a fact that I have a choice between getting things done and recording them. I feel I should state that straight.

On getting answers from the HSE——

Mr. Scanlan

That is an unfair question to ask.

We know by Mr. Scanlan's reply. He has answered the question.

Mr. Scanlan

It is an unfair question. I feel I owe it to the committee and I stated before to Deputy McManus that I acknowledge——

We just want Mr. Scanlan to share the pain.

Mr. Scanlan

I believe Deputy McManus stated that to me previously also. I owe it to the committee to acknowledge what is going on. I also owe it to the HSE to acknowledge it is trying to improve. I have that responsibility.

Mr. Dermot Smith

I will pick up on the issues raised on the repayments scheme itself. We hope that repayments will begin before the end of July. We certainly expect substantial amounts to be paid out in September. The validation exercise must be finished before those payments can be made and the HSE is heavily involved in that at present. I expect to see a high proportion of payments being made in September.

Will the payments be made in July or September?

Mr. Smith

Summary payments may start at the end of July. The bulk will certainly be made in September and October. We will be disappointed if that is not the case.

Regarding adjustments to be made on the value of repayments, allowance is made for the CPI. The bulk of the Supplementary Estimate of €340 million will be for those living, who are considered the first priority. I am not sure what percentage of payments that encompasses because that has not been worked out by the HSE. By the end of this year we expect an extremely high proportion of those to have been cleared.

As the issue of the outside company has been raised, I will briefly mention that the HSE will sign off on the contract within the next few days. It is most likely that will happen early next week. I presume it will make a statement at that point and will provide the name of the company. It is not up to us. The HSE, not the Department, is the client, and it is not up to us to state who the successful tenderer is.

As far as I know, it was awarded on 1 June and due out 14 days later on 15 June. Here we are on 22 June and we still do not know.

Mr. Smith

The Senator is correct to state that it was awarded on 1 June. However, the award of a contract is always followed by a 14-day cooling-off period during which companies can raise issues, concerns and questions with the HSE about its decision. That period ended on 15 June. I understand the HSE is now signing off on the contract and it should be completed early next week. That is the latest information we have.

There is no point in trying to make an issue out of this. We need a cooling-off period.

We do not——

We were told last week we would have the information and we still do not have it.

The first issue was that there might be some problem surrounding the tendering process. That has now been clarified.

It has not. What about the question I asked?

We have waited a number of months for this opportunity and now we are diverting our attention to an issue that is not relevant to this meeting. The information will be released shortly. The Secretary General has made it clear that he has no difficulty with the tendering process. Why is the Senator trying to create difficulties? Let us deal with the Travers report, the payments and the safeguards that have been put in place since the publication of that report. That is what we are here to do.

There is no point raising an issue that is not relevant. I accept the word of the Secretary General that he is satisfied with the tendering process. Posing half-baked questions about suggestions that Fianna Fáil members are not satisfied or are tabling parliamentary questions——

That is a fact.

That is not a fact. Senator Browne has missed——

Senator Browne should speak for his party members.

We will try to make progress and others can park and cool off.

Mr. Smith

On the issue regarding the Ombudsman and legal opinion, as Deputy McManus has acknowledged, legal cases are pending, so I cannot safely comment. However, the Department recognises that there is a problem for people in private nursing homes and is examining that issue intensely.

Reference was made to the tendering process and the fact that there were 11 initial applications but only three final ones. The Health Service Executive's comment at the time, last January, was that there were value-for-money issues surrounding the first block of tenders and, because of that, it had to re-tender. The Department accepts that the HSE would have had to do that in those circumstances. There is nothing more that I can say on that point at this stage.

We do not envisage repayments finishing at the end of 2007. Allowance will be made for repayments to be made during 2008. We are not recognising an arbitrary cut-off date in that regard.

With regard to the point about using the money, provision has been made for people to give the repayments back to the health system if they wish to do so. There is provision in the legislation to allow that to happen.

Will they be able to give the money back to the unit or the hospital where they were cared for, rather than to the HSE?

Mr. Smith

Unless it was specified in the legislation that money could be given to a particular unit, that could not be done. It is a matter for the——

It is a matter for the individuals.

Mr. Smith

Yes. I am sure the HSE would listen to such requests.

Mr. Scanlan

We have brought along a two-page note about the repayments scheme which I would be happy to leave with the clerk. It contains a number of facts which may be of help to members.

When can we have that document?

Mr. Scanlan

I have brought it with me and it can be made available now if the members wish.

I also asked a question about "shall" or "will".

Mr. Scanlan

I am not sure I was that conscious of the words I used, although the Deputy can hold me to account for it. The advisers are not part of the chain of command and, therefore, people within the Department must report to and brief the Tánaiste and Minister for Health and Children and the Ministers of State and get decisions that way. If the advisers are providing advice to the Tánaiste and Minister for Health and Children, we will make every effort to keep them briefed. In that way, when issues go before the Tánaiste and Minister for Health and Children, the advisers have been briefed on them and can give their view.

One of the issues that arose was whether the advisers had been briefed. In future, will the situation be that the Department will try to brief them or will brief them? If that is decided and a similar issue arises in future, it will be clear whether they have been briefed.

Mr. Scanlan

I understand the point now and the answer is slightly different. In future, it will not matter whether the advisers have been briefed because that is no excuse. The Department must brief the Tánaiste and Minister for Health and Children and that is what the notice to the Department states. We will do our best to brief the advisers but that does not really matter because, regardless of them, it is our responsibility to brief the Tánaiste and Minister for Health and Children. That has been made clear. We cannot ask why an adviser did not brief the Tánaiste on our behalf, just because we had briefed him or her.

I welcome the Secretary General and his team. I had been wondering where Mr. Peter Lennon had disappeared to, but now I know he is still with the Department of Health and Children. When the GPIT unit was disbanded, we were wondering about Mr. Lennon's future. He did excellent work with that unit, which was acknowledged by general practitioners.

The Secretary General started reforming the Department of Health and Children around the time of the setting up of the HSE. This meeting will probably finish at the scheduled time of 11 a.m. but if senior management from the HSE were in attendance, we would probably be here until at least 1 p.m. discussing various issues relating to that organisation.

It appears from what the Secretary General has said that the Department is now in order. Indeed, from my own dealings with it, the Department seems to be heading in the right direction. However, there is still some ambiguity surrounding the roles of the Department of Health and Children and the HSE. The Tánaiste is supposed to be responsible, the Department is supposed to formulate policy and advise the Tánaiste, and the HSE is supposed to implement policy.

Last week a press conference was held to publicise the cancer strategy, at which the national cancer forum outlined its recommendations. The HSE outlined the structures it would put in place to implement the strategy. An implementation policy was also referred to, which would not be ready for another six to eight weeks. Professor Drumm spoke a good deal about this implementation policy, but if my understanding of the various roles is correct, the formulation of such a policy should have been the responsibility of the Department, or at least the Tánaiste.

What is the role of the Department in formulating policy regarding the reorganisation of the health service? My impression is that the HSE is not responsible for policy development but for implementing what the Department and the Tánaiste decide. Does that still hold true? There is considerable confusion regarding the future roles of the Department and the HSE.

Risk management in the Department of Health and Children was referred to. Yesterday, Deputy Kenny raised an issue in the Dáil with which the delegation may be familiar. There are intermediate and high-dependency patients in nursing homes whose beds are either paid for fully by the health regions or are the subject of subvention payments. Last year the HSE advertised for contract beds for intermediate and high-dependency patients. Some nursing homes scored very poorly during the tendering process. Did anybody inform the families, the Department or the Tánaiste that there are beds in nursing homes which the HSE considers unsuitable for step-down, contract beds? Is the Department paying for beds in nursing homes which the HSE would not use for contract beds?

While none of us has seen the O'Neill report yet, from what we are hearing, it is clear that it is very important. In the context of risk management, have the Department and the Tánaiste and Minister for Health and Children seen the O'Neill report? The Department is supposed to be keeping the Tánaiste informed of the potential risks that exist and, in that context, I would presume the Tánaiste expects the Department to read the report from cover to cover and to brief her on it in detail. I am interested in the Department's views on this because risk management is not just about setting up structures, but also about keeping the Tánaiste informed.

Recent reports have suggested that Professor Drumm did not want the discussions between him and the Department on the new children's hospital and co-location to be put in writing. Perhaps the delegation could let us know if that is true.

We are supposed to have clear, analytical transparency. Chapter 6 refers to analytic capability and transparency in records. A legislative unit has been established because the issue of eligibility is becoming a serious crisis within the health services. The unit intends to consolidate a number of old Acts into new legislation on eligibility. When I asked the Tánaiste about this matter in the Dáil, her answers were very evasive. Mr. Scanlan was also evasive when he touched on the matter this morning.

Under the Health (Miscellaneous Provisions) Act 2001, everybody over the age of 70 was granted a medical card and a statutory entitlement to inpatient services. Concerns have arisen that they are entitled to private as well as public nursing care. The Department claims that the issue is being dealt with in the courts. As we learned from the events of recent weeks, it does not matter a damn whether issues are before the courts because, if a problem arises with legislation, we are supposed to act. It will be two or three years before this issue goes through the courts.

If legislation is required, I want to know whether a serious problem is brewing. We are already repaying €1 billion in respect of charges for public nursing homes and if we also end up repaying charges for private institutions on the basis of flawed legislation, the money provided through the Health (Repayment Scheme) Bill will be small change in comparison. Did the 2001 Act create problems in terms of private nursing homes? Have any other legal issues arisen in respect of charges on elderly people? If we continue to skirt the problem by saying it is before the courts, we may be telling people in three years' time that serious problems have arisen which will cost the taxpayer €3 billion.

I do not want to be told about eligibility legislation or the courts but want a straight answer. Mr. Scanlan is here to give us straight answers to the questions arising from the Travers report. The legal basis of the Department will become a significant issue. Risk management requires that members as well as the Tánaiste be fully informed.

I welcome Mr. Scanlan and wish him well in his new position. As Minister of State at the Department of Health between 1987 and 1989, I worked with many of his colleagues. I had few responsibilities in that Department, so I cannot take any blame for this disaster. However, we must implement the Supreme Court judgment.

It would be practically impossible to minute in detail the discussions between a Secretary General and a Minister. Furthermore, the Freedom of Information Act requires that written communications be made available to the public for political or other uses. I understand Mr. Scanlan's concerns in that regard.

From day one, Hawkins House was an unsuitable building for the Department. Have any plans been made on relocation? Dr. Steevens' Hospital would have provided more satisfactory accommodation.

It is hoped that the Bill will be signed by the President tomorrow, after which the Tánaiste will make an order. However, I cannot understand why the HSE decided to recruit outside consultants, before the legislative framework was put in place. There was no need for outside consultants who will only add to the cost of the scheme. Within the HSE, hundreds of officials waste their time reviewing medical cards annually because income levels do not change that quickly. The situation has turned into a circus. If someone has a serious illness, why should his or her case be reviewed? It is unacceptable to review every medical card annually. The spike referred to by Mr. Scanlan would have been solved by redeploying staff from the community welfare office. The calculations have already been made on every welfare home. The only work remaining for the consultants will pertain to the estates of those who have deceased.

Average refunds of €16,000 have been approved to welfare home residents. In some cases, up to €80,000 will be paid to individuals. Can Mr. Scanlan give us a categorical assurance that the non-contributory old age pensions of these individuals will not be terminated as a result of the transfer of large sums of money into their accounts? It will be vital that such funds are adequately protected so that people are not put under pressure to give their money to family members. This committee should have been consulted on the modus operandi of the repayment scheme because we would have given good advice. I had reservations about the ability of HSE staff to deal with the estates of deceased individuals but they could have dealt with the living and left the dead to the consultants. However, this committee was not given an input before the horse bolted in that regard.

I have not received confirmation that anybody has received the €2,000ex gratia payment. Was that paid last Christmas?

Major improvements are needed to the psychological fabric of public welfare homes. People will need opportunities to enjoy their bounties. Sacred Heart Hospital in County Roscommon does not even have a canteen and patients must rely on relatives to supply copies of the local newspaper. When I was chairman of the Western Health Board, I made an appeal on behalf of the hospital but failed to get a response. Day outings and holidays could be organised for active residents, but nobody from the Department, HSE or local management wants to do anything. I am dissatisfied with the attitude taken towards people who have served the State. This applies to those who are able to go. I do not expect people to be dragged around the countryside if they are not able to go. The Chairman has got great facilities in his area over the years.

We are dealing with the update of the programme. We must keep to the issue.

I have finished talking.

In case anybody else wants to mention other areas I must remind them that we are talking about the progress in implementing recommendations.

All politics is local.

While that might be so, we want to keep it above that here if we can.

While I am glad to hear that Deputy Twomey thinks we are going in the right direction, it is still only a direction. Professor Brendan Drumm is trying to run a bigger organisation, so I do not take credit for the Department's going in the right direction while the HSE may not show obvious signs that it is. The issue of roles is a fair point which we could debate here until 1 p.m. and I will be happy to talk about it another time. One could write down that the role of the Department of Health and Children is policy development and performance management and one could put flesh on that to help the Minister to hold the HSE to account for its performance. One could write down the classic responsibilities of a Department such as supporting the Minister in the legislative process. When one examines it, one sees that the line between one side and the other starts to blur.

One cannot develop policy in isolation. One needs input from those who will deliver it. I have not seen the O'Neill report and neither has the Tánaiste. We do not have a copy of it. This is an example of the difficulty of drawing the line. A theoretician might argue that because the O'Neill report is on how the HSE delivered a service and where the failings were, it is all HSE business. Deputy Twomey is correct that there is a clear political interest, to put it mildly. I am understating it. The Minister of the day, whether Deputy Twomey or the Tánaiste, would want to know the contents of the report and learn from it. One cannot separate the operational cleanly from the Department and the Minister. We are doing our best to carve out where we have primacy and where the HSE has primacy. Working together is key, while there is some healthy tension.

On the question of cancer, I was not at the press conference. I had hoped this would be an example of working together. We had a forum for developing policy on cancer under the aegis of and supported by the Department. That was the policy piece. Maybe I am being too open, but one could have just launched that as the policy. People would then ask about implementing it. With the HSE we tried to move it further and say we have spoken to the HSE and are able to say something jointly about how it will move on, but it is going to have to implement it. We tried to take the ball further over the line rather than just fling it out to the wing and give up responsibility.

I do not recall any reference to the culture of secrecy in the context of the paediatric hospital. I recall an issue about the co-location and Deputy Twomey's party leader wrote to the Tánaiste and put down parliamentary questions on it. Replies were issued and I stand over them. Earlier I mentioned what was said regarding the Travers report in the evidence given by Mr. Travers to this committee. He stated:

I would not be an advocate of recording every nitty gritty point made. There must be an allowance for the cut and thrust of debate and discussion between individuals. However, where important decisions are being made it is imperative that Departments and organisations record them.

While we try to record all the important decisions and more, one could not run the system if one tried to record everything that is said at meetings, and Mr. Travers said that in his report.

I will not confuse the issue of private beds with the broader issue of eligibility. Deputy Twomey asked that we do not dump it in with that bigger issue and he is correct, The difficulty, as Mr. Smith said, is that we have legal cases. We take legal advice. I have been careful because I came into the Department last April. The Travers report explains what happened and I will not go back over that.

However, it was found that at a certain time legal advice had not been sought from the State's legal adviser. We have taken that legal advice and are constantly in touch with the Attorney General's office about the private beds. I am not trying to dodge this. While I have a responsibility to be as straight with this committee as possible, I also have a responsibility to the State to protect its position in court cases. I would be wary about saying more than that. We received advice and are following it. Given that it has been raised in parliamentary questions, Deputy Twomey would know that, as Mr. Smith mentioned, apart from the legality of it, we are examining the policy issues around residential care for older people regardless of whether they are in public or private beds. We are examining that intensively. Mr. Smith uses the word advisedly because this issue is crucial. It is one of the "issues of singular importance" that Mr. John Travers mentioned.

Although we had planned to move somewhere else on an interim basis, we are to stay in Hawkins House until Marlborough Street becomes vacant. The ex gratia payments were made last year and Mr. Smith confirmed that. There is provision in the Bill to ensure a person’s non-contributory pension is not taken away from him or her on foot of this. There are also provisions in the Bill for private property accounts. This is to protect vulnerable people. I said at the start that this has taken longer than I would have liked and this issue is part of the reason. It is a difficult issue and I think Senator Leyden accepts that.

With regard to the issue of the outside company, Senator Leyden says the HSE has done much of the work on the people who are still alive, and this is true. I am glad to hear it because we asked them to do it so that when the Bill became law, we received the money and had the people ready to issue the cheques, as much work as possible was already done so that payments could be made quickly. It was included in the tender that we would not ask the outside consultants to redo the work already done. There is still a large amount of probably more complicated, time-consuming work to be done on the estates.

I hear Senator Leyden's arguments on the review of the medical cards and I am interested in it. The issue about medical card eligibility has been raised in a number of fora. The Ombudsman has referred to it and the transparency or lack thereof. There is a provision in the new social partnership agreement, which means we will have to examine it. Apart from the staff being wasted, we must examine the more fundamental issue of transparency.

Mr. Smith

I should have mentioned earlier what the HSE will be doing in terms of oversight and governance. The Tánaiste appointed an independent oversight committee with six people and chaired by Mr. Bernard Walsh, a former geriatrician whom members will know from St. James's Hospital. People from the different areas of disability and older people are represented on the committee. Every aspect of the legislation has gone to it for consideration and discussion. The question of private property accounts has been with the committee and much good work has been done in that area. Guidelines have been produced by the HSE and have been in operation since the end of March. They may be reviewed, depending on what happens in the coming months, but a considerable amount of work has already been done. We fully agree with the point about the amount of money being repaid and accept that if people are not protected in the right way there may be problems. We have tried to put in place an arrangement to manage that in the right way.

We need more clarity on the cases going to court, which was first requested when the private nursing homes issue arose in 2005. Am I right in saying the Department is not vigorously defending these cases?

Mr. Smith

No case has gone to court as yet.

Cases have been lodged in the High Court but the Department has not lodged any defence.

Mr. Smith

We will submit defences in all private nursing home cases.

Mr. Scanlan

There is a mixture of cases.

There are different types of cases but I will focus on this one because it is so clear-cut. There are other issues relating to whether people had applied for a public nursing home beforehand. If the Tánaiste and Minister for Health and Children will not provide clarity, perhaps the officials will do so. If it is true that 10,000 people will reclaim €30,000 per year because of the legalities of this issue, it will amount to €300 million each year, which is a significant sum. If the illegal nursing home issue arose because people did not seek legal advice in time, or records were lost, we should be more careful about what we do.

The Department should take an interest in the conditions and quality of life of residents in welfare homes. The funds are available and residents should have the opportunity of enjoying them for as long as they live. Why have 10,000ex gratia payments been made when 20,000 people who are currently resident in welfare homes are eligible for the long-stay care payments? I am not surprised that some of the clients with whom I deal have never heard of the €2,000 payment. I cannot understand to where the other 10,000 payments disappeared.

Mr. Smith

The figures given to us by the HSE state that it has made 10,000 payments. They may have taken the view at the time that the repayments would start earlier, so the €2,000 would be taken off the final payment.

The section in the Department which deals with older people should become more involved in ensuring better quality of life for people resident in homes. That relates to people in long-stay care in psychiatric homes as well. The Department has the time and the opportunity to study the situation and it, along with the Minister and the Government, should provide leadership. They should not rely exclusively on local management because many people pull against innovative ways of allowing people to enjoy better standards of life. That is all I want — no more, no less.

We thank the departmental officials and are pleased to hear that progress has been made on the report. We are disappointed the Department is to remain in Hawkins House. We visited the building a few months ago and the facilities make it impossible to keep up with the demands of the job. One hopes that that will be addressed by some modernisation.

We are also pleased to note that safeguards have been put in place to ensure Ministers and all officials involved in policy are briefed as necessary.

The joint committee adjourned at 11.05 a.m. until 9.30 a.m. on Wednesday, 28 June 2006.