Health Service Executive (Governance) Bill 2018: Committee Stage

I welcome the Minister for Health, Deputy Harris, to the House.

Sections 1 to 6, inclusive, agreed to.
SECTION 7

Amendments Nos. 1 to 3, inclusive, are related. Amendment No. 1 forms a composite proposal with amendment No. 2 and amendment No. 3 is a logical alternative to amendment No. 2. Amendments Nos. 1 to 3, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 7, line 18, after "and" to insert "five of".

The amendment proposes that the section would state the chairperson, the deputy chairperson and five ordinary members of the board shall be appointed by the Minister. If that could be agreed it would provide a bit more clarity.

Has Senator Devine dealt with amendments No. 1 to 3, inclusive?

Senator Devine must go through the other two amendments.

They are being discussed together so in her contribution the Senator should deal with amendments Nos. 1 to 3, inclusive.

There are two parts to amendment No. 2. The first part proposes that one member will be nominated by the Irish Congress of Trade Unions to be appointed by the Minister. This is proposed on the grounds the health service is made up of workers. It sticks up for what trade unions believe is their mandate to represent the voices of workers. It would be extremely helpful to have a worker's voice on the board. I would say 95% of the workers in the health services are unionised. It would strengthen their voice.

The second part proposes that one member will be a patient advocate. Last week in the House, the Minister committed to having two such members so perhaps I am being under-ambitious. I do not know the technicalities of this but I want to keep the part regarding the Irish Congress of Trade Unions and withdraw the part on the patient advocate member.

That will become clearer when we come to Senator Ruane's amendment.

Does Senator Devine want to withdraw amendment No. 2?

Can I withdraw part of it?

I will withdraw amendment No. 2 on the grounds that-----

When we have disposed of amendment No. 1, I will deal with amendment No. 2. Is Senator Devine letting us know what she intends to do?

Yes, I am. I was lacking in ambition in amendment No. 2.

Does Senator Devine want to speak on amendment No. 3?

That is Senator Ruane's amendment.

No, I will let Senator Ruane speak to her own amendment.

I thank the Minister for Health, Deputy Harris. I welcome this Bill that will allow the HSE to shift from a directorate to a board structure. It is also welcome that a chief executive officer will also be accountable to the board. We are all aware of how governance issues within the health service have affected healthcare provision in this country and the experiences and lives of Irish citizens. It is a sad reality that the management culture within the HSE contributed to its failings. I am hopeful that this Bill will mark the beginning of a shift in that culture.

My amendment No. 3 is very much in that spirit where the interests of patients are put at the heart of governance and decisions about governance in the health service. This amendment would create a statutory requirement that at all times two members of the board would be individuals with experience and-or expertise in advocating for the rights of patients. The amendment is in line with the Scally report that made a number of recommendations on having a minimum number of patient advocates involved in the oversight of clinical audits for the screening services, in the open disclosure revision process and, more generally, in every part of health service provision.

I welcome the Minister's commitment on Second Stage last week that he would be following these recommendations and would be appointing two patient advocates to the HSE board when this Bill is passed in the Houses. With this amendment, however, I am trying to make every board have the same number of patient advocates and make such a presence on a board a statutory requirement. I have full faith in the Minister's ability to manage this process and I believe he understands these issues and their importance. He will not, however, be Minister for Health forever and this is about future-proofing the legislation and our health service. That is why I want this amendment in legislation.

We have had discussions and when I was drafting this amendment I was thinking about what a patient advocate is and what skills and experience he or she would require. Patient advocates would have to be very focused on patient needs and may previously have been patients in the health service. I am willing to go away and look at that definition. When the time comes, perhaps the Minister will give me some feedback on what his plan and intent is for such an amendment. I will then consider my position between now and Report Stage.

I am delighted. It is great to see all these amendments coming through. I would have spoken on many of the topics raised on Second Stage. In fairness to the Minister, he took on board the suggestion that it would be important that some of the things he has ambitions for would be put in legislation so that whoever follows as Minister for Health in future will carry it through. I would have a problem with someone from the Irish Congress of Trade Unions, ICTU. The unions are a huge part of the health service and they would be advocating on the board more for the health service unions rather than the overall package that should be looked at. I agree with Senator Ruane's sentiment on patient advocates.

Those patient advocates may have other skill sets they might bring to the board. It would be nice if the members of a seven member board overseeing a €17 billion operation had other skill sets because the number of board members is limited. There is also another amendment recommending that the board go before the Oireachtas Joint Committee on Health, or whatever the relevant committee might be, without the chief executive officer. From my own experience, chief executives tend to lead boards. It would be important to get the perspective of the board rather than just the chief executive's relayed through the board.

I am very much in favour of Senator Ruane's amendment. I made the same suggestion on the last day. I know that the Minister feels quite positive towards it and I hope that he takes it on board too.

I welcome the Minister to the House and I welcome this Bill. I always believed that the HSE should have a board and welcome this change in how the HSE should be managed into the future. We need a proactive board that is comprised of people that have business or legal expertise, which I have said previously. Major decisions are made on a day-to-day basis and, therefore, it is important that the chief executive has a board that is decisive and can consider the overall management of the HSE.

The health budget is €17 billion so it is not a small budget. Neither I nor the ordinary person in the street would be familiar with managing such a budget. The work involves managing finances, staff and the various tiers that we have created in the HSE over the past number of years. When one considers that 17,600 people work in the administration and management, and there are 7,500 nurse managers out of a total of 111,000 people in the HSE, I would be concerned about the structures that we have allowed to be created over the past ten or 15 years. Yes, there is a need for more staff but there is also a need to develop new roles for staff. For instance, we have changed the qualifying criteria for nurses. They have academic degrees, a huge amount of experience and they also have qualifications in patient management. In many cases, one now finds that nurses have a lot more experience than junior doctors yet nurses are dictated to by junior doctors. We have not designated new roles for nursing staff, which is something that needs to be changed in the process.

We need a board of management that will bring about the necessary changes in a whole lot of areas, not just managing finances but how we manage individual hospitals and individual sections of the HSE. We should not tie such work to any one group. I have no difficulty with patient advocates being on the board.

I remind the Senator that this is Committee Stage and not Second Stage so we are just dealing with amendments at the moment.

Yes. Patient advocates should have a background in legal, financial or HR management thus adding to the expertise of the board. That aspect would be useful and should be kept in mind. That is why I believe the composition of the board should not be tied to any one group of people.

I thank the Senators for their amendments and constructive engagement on this Bill.

I shall briefly speak to the three amendments together. My understanding of amendment No. 1 is that it is intended to facilitate amendment No. 2 and the proposed inclusion of appointees by the Minister of the day of an Irish Congress of Trade Unions, ICTU, nominee to the board and, indeed, a person with experience in patient advocacy. I take the point that Senator Devine is likely to withdraw her amendments on this occasion. Therefore, I will focus mainly on amendment No. 3 because it focuses on providing for members with patient advocacy experience on the board. I thank Senator Ruane for her work on the matter, and for engaging with me on this today and in advance of Committee Stage. I thank Senator Lawlor as well who also raised the matter on Second Stage.

Let me state the following very clearly on the record of this House, as I did on Second Stage. I am absolutely committed, as Minister, to implementing the full recommendations of the Scally review. One of those recommendations, as the Senators will know, is very much to have a strong experience in patient advocacy on the HSE board.

I do believe one should be judged based on one's actions. We have already made an excellent start in this regard because I have, so far, appointed one person to the board in an interim or designate capacity. I refer to the new chairman designate of the HSE, Mr. Ciarán Devane. Let us consider his record. He is a chairperson who was the chief executive of the UK health charity Macmillan Cancer Support, as well as having been a member of the board of the NHS England at a time when it successfully transitioned into a new system. Therefore, he has a strong record in patient advocacy and working with patient groups, particularly patients in the whole area of cancer support.

I also believe my Department has a record in wanting to involve the voice of patients in decision-making whether that is involving patients in the national cancer strategy or the national maternity strategy. I have continued that record in the process to recruit members for this new board. We have advertised for this new board through a Public Appointments Service campaign and we have listed patient advocacy specifically in the list of skills that are required as one of the key skills and experience needed in the board member. There is no doubt that we are going to make sure that patient advocacy is very much embedded in the new board of the HSE.

I share Senator Ruane's view that in the past the health service has fallen down when there has not been enough weight given to the voices and experience of patients right throughout every level of our health service. The question for me is how we get this right from a legislative point of view. I respectfully ask for time to reflect on how best to do this between now and Report Stage. I would be very happy to engage with Senators between now and Report State. We have to get this right. I did not get a chance to talk to either Senator Lawlor or Senator Colm Burke in advance of this debate. Both of them made a point I was going to make, namely, that patient advocacy is a skill but also patient advocates have more skills than just being a patient advocate. It is about making sure we get the right type of patient advocate. Defining what a patient advocate is, as Senator Ruane has undertaken to do some work on, is very important. We need to be careful when we speak about patient advocacy that we mean advocacy for all users of our health and social care services and not just a part of it. Getting the right patient advocates is going to be really important and defining what patient advocacy is and who is qualified to deliver it is a point worth reflecting on while also making sure we are not mistakenly perceived to be diminishing other essential competencies. I am very happy to work on this with Senators between now and Report Stage.

I will make a point on something I imagine will recur on Report Stage, namely, the issue of putting any named organisation on a board or giving it an entitlement to a seat on a board. I have serious difficulty with that and not with staff being represented on a board or anything like that. Patient advocacy is a very separate and distinct argument. It arises from the Scally report but it also arises from common sense. It makes sense to embed the values of patient advocacy on any board and any governance structure. I do not think that is what Senator Devine was trying to do but I am just making the point that if we were to go down the route of giving one named organisation a designated seat next week we would have another named organisation wanting a seat. Before we would know it, we would end up with a board constructed in the same way that we saw fail the people of this country in the past. If one looks at the board of FÁS in the past, there was a seat for every sectoral interest rather than looking at the overall competencies of the board. That would be a mistake. The Minister of the day has to make a value judgment when appointing members to the board and consider if the board as a collective has all the skills necessary to represent the broad range of skillsets that are needed on a HSE board. If we get overly prescriptive and say, for example, that seats are for ICTU or other specific persons, we will constrain the Minister of the day in his or her ability to do that. I ask that we could consider these matters further between now and Report Stage.

What does Senator Devine want to do with the amendment?

I will press amendment No. 1.

Is amendment No. 1 not directly linked to amendment No. 2 which I think the Senator is withdrawing?

I am not sure-----

I will withdraw the amendment and reserve it for Report Stage.

Amendment, by leave, withdrawn.

The Senator has not moved amendment No. 2. Would she prefer not to move it?

I will withdraw it.

The Senator needs to move it before she withdraws it or she could just not move it.

I move amendment No. 2:

In page 7, between lines 23 and 24, to insert the following:

“(3) One member will be nominated by the Irish Congress of Trade Unions (ICTU), and shall be appointed by the Minister so long as they have sufficient experience and expertise relating to matters connected with the functions of the Executive to enable them to make a substantial contribution to the effective and efficient performance of those functions.

(4) One member who shall be a patient advocate shall be appointed by the Minister from among persons who, in the opinion of the Minister, have sufficient experience and expertise relating to matters connected with the functions of the Executive to enable them to make a substantial contribution to the effective and efficient performance of those functions.”.

I will address this amendment on Report Stage.

My understanding is the Senator may table it on Report Stage.

I thank Senator Wilson for helping and facilitating Senator Devine.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 7, between lines 26 and 27, to insert the following:

“(4) A minimum of two members of the Board shall be persons with expertise and/or experience in patient advocacy.”.

We say we look for a skillset in terms of patient advocacy. Anybody could have the skill to be a patient advocate and could display it in past employment. There would be two patient advocates and even though they have other skills which they bring, they are very much patient advocates. That is very much the skill they are bringing to the fore as well as having lots of other skills, whether they come from the charity sector or whatever organisation they have been working in. It should not just be that people on the board have skills in patient advocacy but that those two appointees are patient advocates. They have all these other skills but their position should not get lost in financial management, for example. When it comes down to it, patient advocacy should be very much to the fore. I would like some commitment that we will not just look for a skillset across the board but for two patient advocates. That is the purpose of the amendment.

I agree with exactly what Senator Ruane has said.

Amendment, by leave, withdrawn.

None of the Senators who tabled amendment No. 4 is present so it cannot be moved.

Amendment No. 4 not moved.
Section 7 agreed to.
SECTION 8

I move amendment No. 5:

In page 12, lines 25 to 27, to delete all words from and including “without” in line 25 down to and including “given” in line 27.

We saw that the director general role of the HSE was well remunerated and I am sure it will be the same with the CEO. Running the HSE is an extensive and very important job. For reasons of conflict of interest, I do not think it is appropriate for the CEO to have another job or to sit on the boards of other companies or businesses while trying to perform the massive task of running the HSE. Previously we saw that the director general of the HSE sat on the board of a US company called Evofem Biosciences. This was approved by the Minister for Health but I do not think it makes it right or proper. If we are going to have a CEO of the HSE, he or she should be completely and utterly committed to one focus. Running the HSE is a huge job. This is a sensible amendment and I hope it can be accepted across the House. The focus has to be on the HSE. There should be no double-jobbing, nixers or moonlighting.

I agree technically with what Senator Devine is saying. The only reason it might arise is if there was a structure set up for something within the health services that needed to be separated out from the HSE but where it would be important that the chief executive of the HSE would also sit on that board. That is the only context. Take the national children's hospital for instance. The only way I see it of being of relevance is if it was decided that the chief executive of the HSE should sit on the board of the national children's hospital. I agree with Senator Devine. The person should not sit on a board that is involved commercially in other areas.

The Bill states that the CEO cannot hold any other office, employment or business without the consent of the board and that the Minister of the day must be informed of any such decision by the board. My understanding of the proposed amendment is it would prohibit the CEO from holding any other office, employment or business without any exception whatsoever. I suggest that while it is hard to see a circumstance, we cannot foresee all circumstances, as Senator Colm Burke outlined. There may be a situation where the CEO may validly request to hold another office. Therefore, it is appropriate that the legislation as it currently stands allows the competency-based board of the day and the new governance structure to be the safeguard in terms of ensuring the CEO does not hold any other office, employment or carry on any other business which conflicts with his or her ability to act as CEO. It also makes the board the appropriate arbitrator and decision-maker in such cases. That is appropriate. I am happy that a competency-based board should be making these decisions and should have the flexibility to make those decisions and, as such, I do not propose to accept the amendment.

The CEO of the HSE has to be entirely focused on the HSE. I accept Senator Colm Burke's point that there might be exceptional circumstances. Perhaps I can rephrase the amendment to include the idea that it would be health related. It will not be private companies, but health, HSE and publicly related. I will withdraw the amendment but I will table it again on Report Stage. It is too important to fall through on this and allow what happened in the past with a director general.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 15, lines 20 and 21, to delete ", or has been, or may at a future time be,".

I do not understand why this wording is included in the Bill. Essentially, it gives the CEO the option of not disclosing any information if he or she wishes and to say that it may be subject to court proceedings in his or her opinion. If something was subject to court proceedings and they are finished then that issue should be allowed to be discussed in the Committee of Public Accounts or the health committee to ensure accountability. What is even more confusing is the inclusion of something which may be subject to court proceedings in the future. This is fairly wishy-washy. It effectively gives the CEO the power to not discuss anything if he or she wishes. Its inclusion allows for too broad an interpretation and the provision should be amended to rectify this. This is an opportunity to prevent the CEO from hiding behind the suggestion that it may be subject to court proceedings, as is done on a frequent basis across this country in various circumstances. When that is said we are all scared away from it. I do not believe it is strong enough to allow a CEO to say that. Health issues of great importance to the nation need to be discussed. We know what transparency means to us now. We know the word inside out from the last few months. I will press this amendment and hope the House will support it.

I understand what the Senator is trying to do but there are safeguards in place and a proper procedure. The wording in the Bill currently states that the CEO shall not be required to give an account before a committee of any matter relating to the general administration of the executive which is or has been or may be at a future time the subject of proceedings before a court or a tribunal in the State. The provision is not unique to this Bill. It is found in many other legislative measures and is essential to protect not just the integrity of any current court proceedings but also the integrity of any future court proceedings. Again, this is not just about protecting a health service or a State institution, it could also be about protecting a citizen who might well be involved in such proceedings.

Senator Devine described it as "wishy-washy" and I understand where she is coming from, but I do not believe it is. Beyond where the Senator proposes to amend the provision the legislation clearly sets out the process under which the provision may apply. First, the CEO must inform the committee if in his or her opinion this provision applies to a matter on which he or she has been asked to give an account and must give reasons for such an opinion. The person cannot just say, "I cannot talk about that because something might happen in the future". He or she must say why he or she cannot talk about it and give reasons for such an opinion. These reasons must be given by the individual either in person before the committee or in writing to the committee. Second, and this is an important safeguard, either the CEO or the chairperson of the committee may apply to the High Court within 42 days for a determination on the matter. If there is a conflict, and this does not usually arise, the High Court is there as an arbitrator to decide who is acting in the interests of the State and whether the view of the chairperson of the committee or of the CEO of the organisation is appropriate.

This process is the correct process and has the required safeguards to ensure transparency and accountability. These provisions are standard. They are not unique to the HSE or to the HSE board legislation but are standard across legislation in general. I am reluctant to depart from this precedent so I cannot accept the amendment.

I accept the Minister's comment that it is standard across legislation and that there are 42 days to go to the High Court if the committee believes the decision of the CEO is not acceptable. However, this is an opportunity to further strengthen transparency and accountability. We know these have been lacking in view of recent scandals in the public health service in this country. With this Bill we have an opportunity to modify it, modernise it and make it accountable to the people. I will withdraw the amendment but I will return to this on Report Stage.

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

What is happening with the amendment tabled by Senators McDowell and Boyhan?

They were not present so it was not moved.

Can I put it on the record that I might submit an amendment in the same vein on Report Stage with regard to making the members accountable to committees and so forth?

Question put and agreed to.
Sections 10 to 35, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 23 October 2018.
Sitting suspended at 5.20 p.m. and resumed at 6 p.m.