Health Service Executive (Governance) Bill 2018: Committee Stage

This meeting has been convened to consider the Health Service Executive (Governance) Bill 2018. The primary purpose of this Bill is to amend the Health Act 2014 to provide that the HSE shall be governed by a board and that the executive shall have a chief executive officer, CEO, accountable to the board.

I welcome the Minister of State, Deputy Catherine Byrne, and her officials, who will take this Bill. As a number of related amendments are proposed, groupings arise. Copies of the groupings have been distributed to Members.

It is proposed to group the following amendments for the purpose of debate, amendments Nos. 1, 8 to 15, inclusive, Nos. 18 to 20, inclusive, Nos. 22 to 24, inclusive, and Nos. 26 to 28, inclusive. Amendments Nos. 2 and 4 will be discussed together as will amendments Nos. 5 and 6.

Sections 1 to 4, inclusive, agreed to.
NEW SECTION

Amendments Nos. 1, 8 to 15, inclusive, Nos. 18 to 20, inclusive, Nos. 22 to 24, inclusive, and Nos. 26 to 28, inclusive are related. Amendments Nos. 9 to 15, inclusive, and amendments Nos. 26 to 28, inclusive, are consequential on No. 8. Amendments 19 and 20 are consequential on No. 18. Amendments Nos. 1, 8 to 15, inclusive, Nos. 18 to 20, inclusive, and Nos. 26 to 28, inclusive, will be discussed together.

I move amendment No. 1:

In page 6, between lines 25 and 26, to insert the following:

"Amendment of section 7 of Principal Act

5. Section 7 of the Principal Act is amended, in subsection (5), by the substitution of the following paragraph for paragraph (c):

"(c) the policies (whether set out in codes, guidelines or other documents, or any combination thereof) and objectives of the Government or any Minister of the Government to the extent that those policies and objectives may affect or relate to the functions of the Executive,".".

I wish to introduce Ms Bernie Ryan and Dr. Ronan Glynn from the Department of Health. We are delighted to be here. On behalf of the Minister, Deputy Harris, I thank the committee for providing the time for us to debate the Bill. The Bill is an important step on the journey of strengthening of the Government's framework for the HSE. It is a priority for Sláintecare and this Government.

The public appointments process has taken place and Mr. Ciarán Devane and eight other members of the new board including deputy chair, Professor Deirdre Madden, have been selected. I welcome the support received for this Bill in the Seanad and the Dáil and look forward to discussing it. I apologise again that the Minister could not be here this morning.

Are there any comments on amendment No. 1?

I will speak to amendments Nos. 1, 8 to 15, inclusive, Nos. 18 to 20, inclusive, Nos. 22 to 24, inclusive and 26 to 28, inclusive together. The substantive amendments are amendments Nos. 8 and 18 and are concerned with strengthening the roles and responsibilities of the board and CEO. The other amendments are consequential amendments.

Amendment No. 8 gives new functions to the board. First, the board must be satisfied that appropriate systems, procedures and practices are in place to further the HSE's object. This is critical as, under the Health Act 2004, the HSE's object is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public.

Second, the board must ensure that appropriate systems, procedures and practices are in place for internal performance management and accountability. These systems must cover how the HSE performs its functions under the Health Act 2004, how the HSE achieves its objectives in accordance with its corporate plan and how the HSE delivers health and personal social services in accordance with the Health Act 2004. These will also cover how the executive enables compliance with Government or ministerial policies, whether set out in codes, guidelines or other documents.

Amendment No. 18 provides for the CEO's role. The CEO must ensure that these appropriate systems, procedures and practices are in place. The board's requirement to satisfy itself that appropriate systems are in place is therefore mirrored by the requirement on the CEO to ensure that the systems are put in place. The intention under these amendments is in this way to situate roles and responsibilities appropriately. In addition to the provisions I have outlined, amendment No. 8 will also place a responsibility on the board to ensure the establishment and implementation of appropriate arrangements to manage the CEO’s performance.

Amendments Nos. 9 to 15, inclusive, and Nos. 26 to 28 are technical amendments to the Bill arising out of amendments proposed to the functions of the board. They amend section references.

Amendments Nos. 1 and 22 to 24, inclusive, are also consequential to the substantive amendments. Where referring to Government or ministerial policies, the language in the amendments refers to policies whether set out in codes, guidelines or other documents. Amendments Nos. 1 and 22 to 24, inclusive, are consequential amendments from the wording in amendments Nos. 8 and 18. The aim of these amendments is to ensure consistency of language throughout the Health Act 2004 where reference is made to ministerial or Government policies.

I refer to amendment No. 18 and proposed subsection (b)(ii)(III), which inserts the words "delivery of health and personal social services in accordance with this Act". I am open to correction but that strikes me as something of a shift in responsibility. It seems to shift a great deal of responsibility from the shoulders of the Minister and onto the CEO or director general. I am concerned about that as it conflicts with Sláintecare. Sláintecare seeks to maintain or shift much more responsibility towards the Minister. I am concerned about this and will oppose amendment No. 18 purely and simply because of that line. The Minister of State should correct me if I have misread it.

Will she go into more detail to explain why amendments Nos. 22 to 24, inclusive, are necessary? There seems to be some duplication.

The HSE is responsible for operational issues and the Minister is responsible for policies.

The CEO must ensure that appropriate systems are in place and the board must satisfy itself that the systems are in place. Strategically from a policy perspective, the legislation will now require the CEO to put in place systems and procedures for internal performance management and accountability for the HSE.

This is a new legislative requirement, which will ensure that the HSE puts in place not just the performance management framework that monitors the implementation and delivery of the corporate plan and services, but also sets out what accountability system it will put in place to ensure senior management answerability regarding the achievement of these plans.

The aim of some of the amendments is to ensure consistency of language throughout the Health Act 2004 when referring to Government or ministerial policies. Policies are polices whether set out in codes, guidelines or any other documents or combination of documents.

The need for these technical changes arises in section 7 of the Health Act 2004 in respect of the object and functions of the HSE, section 29 of the Act in respect of the corporate plan, and section 31 of the Act in respect of the service plan.

Amendments Nos. 22 and 24 are drafting amendments to the corporate plan and services. They add text to the description of how the policy can be examined, for example, documents or codes.

I have nothing further to add on that.

If I could go back to amendment No. 18, I am not trying to be awkward but it seems to be in conflict with the stated aim of Sláintecare. The amendment refers to ensuring "appropriate systems, procedures and practices are in place" for the "internal performance management and accountability of the Executive". This appears to shift some responsibility from the Minister, where it should lie, and place much more responsibility on staff who do not set ministerial objectives but are left holding the can if they are not achieved. Much of this is resource dependent. The amendment strikes me as unnecessary and runs counter to what we are trying to do with Sláintecare.

Working on implementation of Sláintecare, the board is accountable to the Minister. The HSE is required to implement the Government's policies, which include the system of Sláintecare.

Amendment No. 16 proposes to delete the words "by the Minister" and substitute them with "by the Board with the approval of the Minister given". This is an unusual use of language. Does that mean with the prior approval of the Minister or with the approval of the Minister post the decision?

We are not discussing amendment No. 16.

We are not on amendment No. 16.

My apologies. I thought it was included in the group.

Amendment put and agreed to.
SECTION 5

Amendments Nos. 2 and 4 are related and may be discussed together.

I move amendment No. 2:

In page 6, between lines 35 and 36, to insert the following:

"(b) in subsection (2)—

(i) in paragraph (a), by the substitution of "subsection (1)," for "subsection (1), and",

(ii) in paragraph (b), by the substitution of "functions, or" for "functions.", and

(iii) by the insertion of the following paragraph after paragraph (b):

"(c) subject to section 10AA(1) and (3), one or more than one health needs assessment (within the meaning of section 10AA(8)) to be implemented by the Executive in the service plan prepared in accordance with section 31.".".

Amendments Nos. 2 and 4 relate to health needs assessments. I thank the committee for facilitating discussion on these amendments. Health systems across the world are faced with rising demands for health care, increasing inequalities in health and limited resources to address these needs. If, as envisioned in the Sláintecare report, we are to improve population health planning and deliver more effective and integrated care, we will need to premise the design and delivery of new models of care on best national and international evidence and make appropriate use of all of the available data sources which can inform service planning and provision.

A health needs assessment is a systematic method of identifying unmet health and healthcare needs of a population and identifying the changes required to meet those unmet needs. The intention of the health needs assessment amendments is to provide for a more strategically targeted, beneficial and ambitious approach to such studies than is currently the case. Their use will ensure that the health system becomes more responsive to the dynamic and changing nature of our population's healthcare needs and ensure, as proposed in the Sláintecare report, that addressing the social determinants of health becomes a guiding principle in the design of our healthcare system.

The amendments provide for ministerial directions to be issued to the HSE which will require it to conduct evidence based scientific, statistical or other systematic analysis with a view to bringing about change beneficial to the health of the population. The scope and timeframe for conducting any such assessment will be included as part of the direction. Provision is also made for the development of guidelines which will inform how assessments are to be conducted and for supplementary directions to be issued in circumstances where the content of an assessment report may need to be improved prior to publication. The findings of assessment reports will be published by the HSE on its website.

The purpose of amendment No. 2 is to include provision for the issuing of ministerial directions for the conduct of health needs assessments within the ambit of section 10 of the Health Act 2004, which covers ministerial directions more generally.

Amendment No. 4 provides for a new section to be included in the Bill, which inserts a new section 10AA in the Health Act 2004, addressing the details of how the ministerial directions relating to health needs assessments will operate in practice, the implementation of such directions and related matters. Subsection (1) provides that a direction relating to health needs assessments that is issued by the Minister must include details as to the specific requirements to be taken into consideration by the HSE when conducting the assessments that are the subject of the direction. Subsection (2) provides details as to the types of requirements that might be taken into consideration for inclusion in a direction. Subsection (3) provides for consultation by the Minister with the Minister for Public Expenditure and Reform and any other person, as appropriate, prior to issuing a direction. Subsection (4) provides for the submission of a report on the findings of a health needs assessment by the HSE within such timeframe as the Minister may specify within the direction. Subsection (5) provides for the approval of any such report within a period of one month after its receipt or for the issue of a supplementary direction to address any defects in the content of the report after it has been submitted. Subsection (6) provides for publication of the report on the Internet. Subsection (7) provides for the development of guidelines by the Minister with a view to facilitating the conduct of health needs assessments by the HSE. Subsection (8) defines the term "health needs assessment" for the purposes of the new section.

Will the Minister of State outline when a health needs assessment would be used? Subsection (2) of the new section introduced by amendment No. 4 provides that without prejudice to the generality of subsection (1), the specific requirements referred to may include a series of matters which are then listed. Why have these matters been selected? Are they advisory in the sense of being matters that might be considered?

A health needs assessment must be done at least annually to inform the service plan. Specific guidelines have to developed on the criteria that will apply to the health needs assessment.

The health needs assessment is an annual analysis.

It feeds in to the HSE service plan. Is that right?

Does such an assessment currently include the matters listed in subsection (2) of the proposed new section?

It is not done at the moment.

The needs assessment.

A health needs assessment is not done.

That is correct.

Health needs assessments do not exist.

When will they exist?

Will that be under new legislation?

Yes, it will be under this legislation.

Are the matters listed in subsection (2) mandatory or suggested considerations? The text provides that these considerations "may" be included rather than that they "shall" be included.

It may be that they will be included but we need to look at best international evidence.

Are they mandatory or advisory?

My official can answer.

The Minister of State must provide the answer.

That is all right. I am being guided by the officials accompanying me. I ask the committee to bear with me. It will be mandatory from the Minister and it will say that the HSE should carry it out. The Minister may specify that it be done. If he does so, the HSE must carry it out. If the Minister gives the instruction, it will be done.

Is it mandatory for the Minister to include these considerations? Is it mandatory that the matters listed be included in the health needs assessment?

I cannot answer that.

It seems that it is advisory. The word "may" rather than "shall" is used. If it is advisory, what is the point? Perhaps it is not advisory, but that is my reading of the section.

It is to give parameters for the Minister. Therefore, it is the Minister who will make those decisions.

That is fair enough. I do not fully understand the implication. Subsection (1) of the new section 10AA provides that a direction to carry out a health needs assessment will be given under section 10(2)(c).

The Minister directs that a health needs assessment be conducted. Subsection (2) then provides that without prejudice to that, the specific requirements of that subsection may include a series of matters. Is that a list of items for the Minister to consider? It does not seem that there is any obligation on the Minister to include them in the directive or on the HSE to carry them out.

I will try to answer the Deputy's question. It is up to the Minister to define the list of criteria and instruct the HSE to carry out the decisions.

Perhaps I do not fully understand. I still do not know whether the list is mandatory. Is it an advisory list? If it is not, should the word "may" be replaced by "shall"?

It is advisory, but when the list goes out to the HSE it will be mandatory.

In that case, it is somewhat redundant. If I understand the Minister of State correctly, the amendment provides that the Minister will issue a directive to the HSE to conduct an annual health needs assessment - which sounds sensible - and these are some matters which the Minister may decide to include in that directive. If that is a correct understanding, then subsection (2) seems redundant. It goes without saying that the Minister may include whatever he or she wishes to include. If it is not advisory, should the word "may" be replaced by "shall"? I would not support that change, but I do not understand the point of the subsection otherwise. I would include consideration of issues around gender and equality of access, for example.

I have been advised that the list may be changed and other criteria may be added.

We will not fall out over it, but it seems somewhat redundant. It is almost a by-the-way suggestion that these are some things which the Minister may consider. Primary legislation is not the place for that.

The idea of an annual health needs assessment is welcome. However, it is not currently carried out by the HSE and, therefore, it will require very significant new capabilities. The HSE will need healthcare econometricians and a significant amount of new data that do not currently exist, are not collected very well or are not comparable between regions. Is the Minister of State satisfied that when the Bill is passed, the HSE will be able to comply with it and will have the resources, personnel and training to do so? When is it expected that the HSE will start crunching the numbers on this issue?

A process is under way to address this. It will be a continuous process as we journey through the Sláintecare plan.

That does not fill me with confidence. Has the HSE identified how many people it needs to hire or what kind of skill sets will be required? If we pass this into law, the HSE will be obliged to do it. It is not a simple desktop exercise. It is very complex for any healthcare system to begin doing this and to do it right. Have any staff been hired thus far? What total complement will be required? Is a new team being set up? What resources will it have? Has it been budgeted for? Is it in the healthcare budget for this year?

I do not have any figures to provide the Deputy. Public health doctors will take the lead on this issue and a process is under way to ensure this is done. That is all the information I have on that issue.

That is all the information the Minister of State has.

At the moment, yes.

In that case, I will ask a different question. Let us assume it will not happen properly this year. I acknowledge the Minister of State is reading out the answers with which she is provided, but her answer would not fill anyone with confidence that the process will be in place this year. If the HSE is not sufficiently resourced to do it this year - and it does not seem that it will be - and we pass the Bill into law, thus requiring the HSE to do something for which it is not equipped, what will happen if it does not complete it properly? What penalties would the HSE face for not being legally compliant once the Bill is passed into law?

I am advised that the health needs assessment already happens in an ad hoc manner and resources are not the issue. People who are ready to take part in this are already in the system. That is the answer I have been given. I cannot develop it further for the Deputy.

Again, I acknowledge that the Minister of State is reading out the answers with which she has been provided. However, three minutes ago, she said the health needs assessment does not happen but she is now saying it does happen.

Yes. I do not believe that the resources will necessarily be in place. It does not appear to me that the requisite preparations are being made.

If we assume they fail, are there any penalties or implications for the board, the CEO or anyone within the HSE for failing to comply with being able to present this report properly?

Penalties have not been identified.

I thank the Minister of State.

Amendment agreed to.

I move amendment No. 3:

In page 6, line 37, to delete “and” and substitute the following:

"(c) in subsection (6), by the substitution of "or issuing a direction under subsection (4) amending or revoking a direction issued under subsection (1)" for "or (4)", and".

As I outlined when discussing the health needs assessment amendments, section 10 of the Health Act 2004 provides for ministerial directions to the HSE. The amendment will amend section 10(6). That subsection requires the Minister for Health to lay copies of directions issued under section 10(1) before both Houses of the Oireachtas. The Minister may amend or revoke a direction issued under section 10. The amendment is intended to clarify that any revocations or amendment to a direction under subsection (1) should also be laid before the Houses.

Amendment agreed to.
Section 5, as amended, agreed to.
NEW SECTION

I move amendment No. 4:

In page 7, between lines 4 and 5, to insert the following:

“Health needs assessment

6. The Principal Act is amended by the insertion of the following section before section 10B:

“10AA. (1) A direction under section 10(2)(c) shall include specific requirements to be taken into consideration by the Executive when conducting a health needs assessment.

(2) Without prejudice to the generality of subsection (1), the specific requirements referred to in that subsection may include the effects of such of the following matters on the accessibility and effectiveness of healthcare strategies implemented by the Executive as the Minister is satisfied are appropriate:

(a) changes to national or regional distribution of population;

(b) demographic profile of population;

(c) lifestyle factors affecting health;

(d) patterns of morbidity across population;

(e) patterns of mortality across population;

(f) social determinants of health status.

(3) (a) The Minister shall consult with the Minister for Public Expenditure and Reform before issuing a direction under section 10(2)(c).

(b) Paragraph (a) shall not be construed to prevent the Minister from consulting with any other person (including the Executive or another Minister of the Government) before issuing a direction under section 10(2)(c).

(4) The Executive shall submit a report of the findings of any health needs assessment to the Minister within the period specified by the Minister in the direction concerned under section 10(2)(c).

(5) (a) Within one month after receiving a report under subsection (4), the Minister shall—

(i) approve the report, or

(ii) if the Minister is not satisfied with the report, issue a supplementary direction under section 10(2)(c) in relation to revisions to be made to the report which, when complied with by the Executive, should, in the opinion of the Minister, remedy the deficiencies in the report.

(b) Where paragraph (a)(ii) applies, section 10(2)(c) and the other provisions of this section (including paragraph (a)) shall be construed with all necessary modifications to take account of the supplementary direction concerned under section 10(2)(c).

(6) The Executive shall ensure that, as soon as practicable after the approval of a report in accordance with subsection (5)(a)(i), the report is published on the Internet or in accordance with such other arrangements as the Minister may specify by notice in writing given to the Executive.

(7) The Minister may issue guidelines in relation to the conduct of a health needs assessment and, if he or she does so, the Executive shall comply with those guidelines.

(8) For the purposes of this section and section 10, ‘health needs assessment’ means a scientific, statistical or other systematic analysis, the purpose of which is to gather and assess information with a view to bringing about change beneficial to the health of a specified part of, or all of, the population.".".

Amendment agreed to.
Section 6 agreed to.
SECTION 7

Amendments Nos. 5 and 6 are related and will be discussed together.

I move amendment No. 5:

In page 7, line 17, after "members" to insert ", who shall include a patient advocate, a financial expert and two clinical experts".

We may disagree with each other later, Chairman, but we are in agreement this morning.

We are starting well.

I am concerned that the board will not have the requisite representation on it. I took on the health brief this time last year. I was shocked when I looked at the executive team of the HSE, and, as it had been for the previous few years, only recently had a clinical lead been added to the senior team, which is extraordinary for a healthcare system. Just as worrying, there was no patient advocate at all at a senior or junior level. If there is anything to be learned from what has gone on in healthcare over the past while, it is there must be strong patient representation and advocacy at the highest levels throughout the organisation. There must also be senior clinical representation, as one of the major failings of our healthcare system is that there are not enough clinical leads or clinicians' voices for doctors, nurses, midwives and allied health professionals across the board. They are rendered largely silent. It is interesting that at joint committee meetings there may be eight or nine people in front of us from the HSE and one might be a doctor. We hear almost nothing from the level of senior management representing nurses and midwifery, allied health professionals and so forth. That error is being replicated in this Bill putting the board back in place.

The amendment is important, as it would mandate that one of the board members would be a patient advocate. This does not mean that as well as other duties in a job, that person would happen to do some patient advocacy on the side but rather that the person would be a patient advocate or the voice of the patient on the board. I would like there to be two clinical experts on the board. I considered having one from the specialist register as a consultant and another representing nurses and midwifery but that is probably too specific for the legislation. I have provided for two clinical experts in order that the clinical community would be represented and not just doctors. Doctors need to be represented but there is a useful opportunity here, for example, to appoint somebody who represents nurses and midwives to the board. The final board position I would like inserted into the legislation relates to financial expertise for all the obvious reasons. We need serious financial oversight.

I looked at the Minister's appointments to the board but I will not comment on individuals. They are pretty mixed, however, and I took a look at the background and expertise of everybody that will be on the board. Some of the people have relevant expertise for the board of the HSE but some, to be frank, do not and I have no idea what they would be doing on the board. It is not a well-balanced board and it does not have the requisite financial expertise or clinical representation, including that of doctors, nurses and midwives. It does not have sufficient provision for patient advocacy, as one of the board members would have patient advocacy as one of a long list of responsibilities. The person in question is not there solely to represent the voice of patients and the advocacy is just one descriptor in a long list.

We need to mandate the membership. We cannot leave it to the Government, because we have done so and we can see the board that will be put in place. I am sure they are all fine people and they will do their best on behalf of the HSE but it is not a balanced board. Regarding some of the appointments, one would have to wonder what was driving their placement on the board other than politics. Some nominees are extraordinary. It is important to mandate clinical representation, financial expertise and, critically, patient advocacy on the board. I would be very much obliged if the Minister of State accepted the amendment.

The Bill provides for a ten-person board, specifically the chairperson, the deputy chairperson and eight ordinary members. The amendment would require the eight ordinary members to include a patient advocate, a financial expert and two clinical experts. I understand the Deputy’s thinking on this amendment but the view of the Minister is that the best approach is as set out in the Bill as it stands. Members appointed by the Minister to the HSE board must be people who, in his or her opinion, have sufficient experience and expertise relating to matters connected with the HSE's functions to enable them to make a substantial contribution to the effective and efficient performance of those functions. The Bill provides for patient advocacy experience or expertise on the board. This meets the recommendation made by Dr. Gabriel Scally in his scoping review.

In line with the 2014 guidelines on appointments to State boards, vacancies on the board are advertised through the Public Appointments Service, PAS. The particular requirements required for membership of the board are set out in the PAS campaign.

The recent campaign for membership of the board sought candidates with experience and expertise in a number of areas including corporate governance, clinical governance, quality assurance and patient safety, strategic planning and change management or business management skills, financial planning and management, patient advocacy, strategic human resource management and public communications.

A key role of the chair of a State board is to identify the needs of the board for new skills, competencies or experience to ensure that it can effectively perform its role. It is desirable that board members have a mix of competencies rather than specific competencies.

The amendment proposed is, therefore, to the Minister's mind, not required as there is a process to ensure the required skill set and competencies for the board of the HSE.

The problem with that response is that it is not matched in reality. The board does not currently have the correct skill mix. Members have been appointed to the board who have zero experience in healthcare. It is beyond me what they are doing on that board. There is no mandated position for a patient advocate. One member has patient advocacy listed as one of his or her responsibilities. There is a bunch of scientists. One scientist, or perhaps two is fine but the clinical expertise is not there.

The board has been appointed. We know what will happen without this clause because a board has been appointed. Which member or members of the board represent the clinical community, that is, doctors, consultants, nurses, midwives and allied health professionals?

Board members can come from a range of backgrounds, bringing their expertise and skills. The board is the governing body for the HSE and we should not be too prescriptive in this legislation. I do not intend to get into the details of individuals and the board members. Board members do not represent groups. They are brought to the board because of their skills.

The Seanad amended the Bill to specifically provide for patient advocacy. There is no requirement on the board to have one individual who will just represent patients. Other people on the board also have skills in that area.

The question I asked was: who on the board is representing the clinical community, namely doctors, consultants, nurses, midwives and allied health professional? Where is that representation?

As the Deputy said, he has looked at the people on the board and identified each of them. In his opinion, some of these people are unqualified to be on the board. The Minister has appointed these people and I am assured by him and the Department that these people have adequate skills to deal with all the issues that will be presented to the board into the future.

Board members do not represent any particular group. They are individuals with specific skills who have been appointed by the Minister. They do not have one individual skill.

Does the Minister of State believe that the clinical community should be represented on the board?

I believe that the members who have been chosen by the Minister to be on the new board are well qualified.

Does the Minister of State believe that the clinical community should be represented on the board?

I do not have any particular personal opinion on the matter. I am just reading what has been stated to me by the Department, namely that the people on the board who have been appointed are well qualified to deal with any situation that may occur.

Does the Minister of State accept that there is no one on the board representing the clinical community?

I do not know because I do not know the people on the board myself, to be honest.

This is Committee Stage of legislation relating to the HSE board. With the greatest respect, the Minister of State should know who is on the board.

I know their names but I am not familiar with all the individuals and I will not get into the detail of discussing individuals on the board.

I can tell the Minister of State that no one on the board represents the clinical community because prior to Committee Stage, I looked at the board. There is no one representing the clinical community and there is no mandated patient advocacy. The Minister of State is saying that we should not get into specifics but the entire Bill relates to specifics.

I said specifics about individuals.

This is specifics about board positions. We are not going to name the individuals but we know what happens on a board without mandating clinical representation, patient advocacy and financial expertise because it has just happened.

I will allow Deputy O'Reilly to come in because amendment No. 6 is being discussed with amendment No. 5.

I do not mean to be in anyway disrespectful to the Minister of State but I dearly wish that the Minister was here because he appointed the board. No one in this room has concern about a member of the board but we are concerned about the mix and range of competencies and so on.

It is important to say that. Amendment No. 6 provides for a nomination from the Irish Congress of Trade Unions, ICTU, which is a broad representative group, while the HSE is the largest employer of the State. It will be no surprise that I propose this given my background. Deputy Donnelly's amendment and mine, taken together, are not intended to comment on the board - I do not want to put words in anyone's mouth - but the intention is to ensure the board is the best it can be. With the greatest respect to the Minister of State, we believe that the more guidance that is inserted in the legislation to assist the Minister, the better the board will be. The board has an important function and Sinn Féin sees a clear role for a representative of workers generally, but specifically from within the HSE. We were clear to ensure that the amendment provides for that person to have sufficient experience and expertise relating to matters connected with the function of the executive to enable him or her to make a substantial contribution. It is not somebody who would be there keeping a seat warm, but who, in the Minister's view, by virtue of his or her nomination by ICTU would make a substantial contribution to the board. We do not seek to point fingers at anyone who might be on the board but to ensure that the Minister, and his successors, have sufficient guidance to ensure that the board is representative. I will support Deputy Donnelly's amendment for that reason but I also believe that the ICTU, as a broad and representative body, has, and should have, a role in ensuring that workers are represented on the board of the HSE, which is the largest employer in the State. Too often in this State we have seen the consequence of ignoring workers when they try to bring issues of concern to the fore.

I reiterate that the members of the board came through the PAS process.

Amendment No. 6 is concerned with a nominee by ICTU. The Minister appreciates that the amendment states that the nominee should have sufficient experience and expertise to allow him or her to make a substantial contribution to the performance of the HSE's functions. However, in establishing the board, we need to move away from the concept of nominations by a stakeholder group, however well suited to the role the nominee may be. In the case of the HSE board, the Minister's view is that nominees by individual organisations would not be good practice and would lead to calls from other bodies to make nominees. I do not, therefore, intend to accept either amendment.

This is a fundamental part of the restructuring of the health services. My views on the composition of the board have been on the record for a long time. This is not criticism of the Minister or any members of the board or my colleagues. However, I strongly believe that for a board to work, its composition should be drawn from the country at large.

Individually, they should have the required capacity and direct experience in the delivery of the services at local level. The problem the HSE has faced for as long as it has been in existence is its inability to connect with the troops on the ground and to connect them to management. Individual service providers would tell one that. They feel isolated. General practitioners, nurses and consultants would say the same.

Clinicians, as a group, should not have all that much influence. We need to examine where they are coming from as opposed to who they are and how much influence they exert at board level. The approach could well be very dangerous. During my previous incarnation, there used to be long battles between members of the health boards and the consultants, for example, at one level or another. The question was who dominated whom. There should be no domination. There has to be an agreed push forward in the delivery of the health services. As long as there is friction and competition between the two demands, there will always be unease, controversy and gaps in the system that cannot be bridged.

It was alleged by clinicians that politicians should be removed completely from anything to do with the delivery of the health services. That was achieved but it did not create a better system. As a matter of fact, the reverse is the case. By the same token, I have long believed we need a regionalised system and a national board — this board we are talking about now — drawn from the three or four regions. Everything else has been tried but this has not.

My belief, based on what I have seen over more than a few years looking at the attempt to deliver a comprehensive health service that enjoys the confidence of the general public and practitioners within the system, be they doctors, consultants, nurses, physiotherapists, pharmacists or others, is that we have gone away completely from what is desired and tend to rely on expertise. This is not a criticism of the amendment before us. There is a need for expertise and provision has to be made for it but we are missing the crucial point, which concerns the representational value of the individuals on the board, where they are coming from and who they represent. General practitioners on such a board have to represent their clients, and they should. They have first-hand experience of this. If this is not the case, there is second-hand experience. We see headlines all the time about diminishing numbers of personnel in various areas, including rural areas. The general practitioners have direct knowledge and experience of delivering to their clients. My hope and belief is that, within five to seven years, there will be a change. There will need to be a return to the old system. I do not believe the system we have now will work, and I do not believe the revised system will work either. This is my view but it is not a criticism of anybody. We need a wholly committed health service. That commitment requires the inclusion of those who are delivering the services on the ground at board level in one form or another.

I ask the Minister of State to reconsider the decision not to accept these amendments. Surely board members should be the most qualified people. The decision should not be based on who they are or their background. It is important that there be appropriate expertise on any board. Obviously, we are talking about a specific board here.

I understand the board members are operating in a personal capacity and not appointed to represent a particular group. I believe Deputy Donnelly is suggesting that the board members should have a clinical, financial or advocacy background but not necessarily represent any particular group. He is stating that they should have expertise in those fields. Perhaps the Minister of State could comment on that.

I thank all the members of the committee. Let me refer to one of the documents I have been given by the Minister's office. Potential board appointees come through the Public Appointments Service process. The competencies sought in respect of board appointments are advertised, which allows candidates to be put forward for appointment based on the skills and experience they bring. The Minister does not intend to accept these amendments.

I know one board member. I do not know him personally but through an organisation, Barnardos, with which he worked. I am not sure whether I can comment on the individual expertise of the board members. Although they do not represent one particular group, they have expertise in other fields as well. I am not in a position to accept amendments from either Deputy.

We have made the argument. I acknowledge that the Minister of State has been asked to step in at the last minute and perhaps did not know she was coming in today, so my remarks are no reflection on her. She has been asked to come in by the Minister. However, I believe that, in a discussion on legislation to reinstate the board of the HSE, it is pretty extraordinary that the Minister did not turn up. This is an important conversation. The Minister of State does not have the briefing and even if she did she would not be in a position to make any decisions because she is not the line Minister and not a member of Cabinet. It is extraordinary that the Minister is not here to debate the issues about the reinstatement of the HSE board. Deputies O'Reilly, Durkan and Murphy O'Mahony and I were talking about whether anyone on the board of the HSE should have a medical background. That is a pretty important conversation to have.

I have considered the board membership and am open to being wrong but my understanding is that not one member has a medical background. If that is correct, it is pretty extraordinary. The Minister should be present to explain why, in his opinion, he is comfortable that no one on the new board of the HSE has a medical background. That is pretty astonishing.

We have rehearsed all the arguments. I will be pressing this amendment because I have heard nothing that gives me any confidence that, without these amendments, the HSE will have the requisite experience it needs. How any Government could try to tell the Parliament that the board of its health system has the correct blend of skills and experience when not one of its members has a medical background is absolutely extraordinary, yet that is what we are hearing today. I will leave it at that. I will be pressing the amendment.

There is a slight difference between what my colleague is saying and what I am saying, as the Chairman will have detected. As the guy said to someone looking for directions, "If I were going there, I would not start from here." By the same token, I am just a little worried about one of the points made by Deputy Donnelly. One member of the board could have a medical background but it could be tilted in the direction of one particular profession, which might not necessarily be of any great advantage to the board at all.

It could skew the authority of the board in a particular direction. I would be worried about that. It would not be truly representative, which would not be good. One might be as well off to have persons who do not have a particular bias.

My own strongly held view is that members of the board should represent those who are delivering the services on the ground directly. That would not necessarily enlarge the board to any great extent. I spoke about this during the Sláintecare hearings and on many occasions. Nobody agrees with me, the Chairman will be glad to know, and not for the first time. My view is based on long experience of listening to various boards associated with the health services over the years. We can never achieve a seamless delivery of health services unless we have such mixed representation from all of the staff - the nurses, the GPs, the consultants and pharmacists - who are involved in delivering the health services. It achieves the following aim. It creates an equilibrium within the deliverers of the service that one cannot get otherwise. Otherwise, one has a "them and us" situation where staff resent what they are being asked to do on the basis that those who are asking them do not have the necessary experience. It often happens that way.

I reiterate that my views are not the same as my colleague, Deputy Donnelly, but I hear what he is saying. If we were delivering a service to some executive, that would be a different story. We are not; we are delivering a service to the people. The people's practitioners on the ground need to have some access to that board, be represented on that board or have a representative on the ground from the board to keep the dialogue going in both directions. I have said it all before. I do not expect anybody to agree with me and I will not cry all the way home if nobody agrees with me.

My memory of the Committee on the Future of Healthcare was that it was a definite decision that the board should be reinstated but it was also a definite requirement that those members on the board would have specific expertise in delivering a health service. That was the intention of Sláintecare.

Given that the Minister is not present, it does not matter. We can make all the persuasive arguments in the world. We could persuade the Minister of State but she is not in a position to accept our amendments. The Minister is.

It is important that we put on the record our views, that we push our amendments and that that process takes place but to a certain extent, it does not matter how persuasive our arguments are if they will not be accepted. These amendments will be pressed or withdrawn and re-tabled, and we will have this discussion again. It is an important discussion to have but it seems somewhat futile that we could make a very persuasive argument and, ultimately, our amendments will not be accepted. That is frustrating.

I will bring the concerns of the Deputies back to the Minister. On Committee Stage, on behalf of the Minister, I will not accept the amendments.

Amendment put:
The Committee divided: Tá, 4; Níl, 2.

  • Donnelly, Stephen S.
  • Harty, Michael.
  • Murphy O'Mahony, Margaret.
  • O'Reilly, Louise.

Níl

  • Byrne, Catherine.
  • Durkan, Bernard J.
Amendment declared carried.

The result of the vote has implications for the Bill and will result in Report Stage amendments. The Minister will consider what amendments will be needed and will have to take legal advice on the matter.

I move amendment No. 6:

In page 7, between lines 27 and 28, 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.”.

Amendment put:
The Committee divided: Tá, 1; Níl, 5.

  • O'Reilly, Louise.

Níl

  • Byrne, Catherine.
  • Donnelly, Stephen S.
  • Durkan, Bernard J.
  • Harty, Michael.
  • Murphy O'Mahony, Margaret.
Amendment declared lost.

I move amendment No. 7:

In page 8, between lines 22 and 23, to insert the following:

“(12) Persons being proposed by the Minister for appointment as chairperson, the deputy chairperson and the ordinary members of the Board shall be required to make themselves available to the Committee to discuss the approach which they will take to their role as Board members and their views about the future contribution of the Board.

The purpose of this amendment is to ensure that the health committee and other committees have a role in interacting with and scrutinising members of the board. We could debate all day how every one of us wants the right people to end up on the board. We are all as one on that, albeit we may have different views about how the right person will end up on the board.

Recently, we saw the appointment and reappointment of the National Paediatric Hospital Development Board. We have had many discussions on that and what constitutes a competency-based board. When an issue arises with the board and with the HSE, we tend to have to raise that with the Minister, but there is a role for the Oireachtas in hearing from persons who are proposed by the Minister so that Deputies can discuss the approach they would take in their role and help us understand how they intend to approach their role on the board. We would like to have some involvement in that engagement. One might say that I would say this, but this is a sensible proposal. In the interests of transparency I hope that the Minister of State, notwithstanding what was previously indicated, is in a position to accept the amendment. If she is not able to accept it, perhaps she might recommend that the Minister give it consideration.

The Code of Practice for the Governance of State Bodies 2016 and the Guidelines on Appointments to State Boards 2014 note that persons being proposed by Ministers for appointment as chairpersons of State bodies are required to make themselves available to the appropriate Oireachtas select committees to discuss the approach they will take and their views about the future contribution of the relevant State body or board. There is no requirement in the code of practice for other members to appear. The amendment proposed places this requirement in legislation on the chairperson and on the other members of the board - the deputy chairperson and ordinary members. The Minister's view is that it is part of the role of the chair to lead the board and it would not be advisable to bestow the same function on all members. In addition, the Minister does not believe that matters of this nature need to be provided for in the Bill. The system for proposed chairpersons to come before committees works well in practice and these provisions are not normally in legislation. The Minister does not therefore propose to accept this amendment.

That is most unfortunate because there is an opportunity the committee, and for other committees, to have some engagement with all of the members of the boards. Recent events have proven such engagement could have some value. Sin é. We have already discussed the fact that the Minister of State is not in a position to accept any amendments so I could make the most persuasive argument of my life and it is not going to be accepted by her. I do not suggest I was about to do that. I might have been but it does not make any difference because the amendment is not going to be accepted by the Minister of State. I do not mean this disrespectfully, but it is a pity that the person who could accept the amendments did not see fit to attend this meeting. While the apologies are accepted, it is a pity because the amendments that have been put forward are very constructive and have the aim of ensuring that the Bill is improved and that it is as good as it can be. Sin é.

I thank Deputy O'Reilly. Do any other Members wish to contribute? Is the amendment agreed?

I will withdraw the amendment and resubmit it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 8, to delete lines 40 and 41 and substitute the following:

"(2) The Board shall—

(a) satisfy itself that appropriate systems, procedures and practices are in place—

(i) to achieve the Executive’s object,

(ii) for the internal performance management and accountability of the Executive in respect of the Executive’s—

(I) performance of its functions,

(II) achieving objectives in accordance with the corporate plan, and

(III) delivery of health and personal social services in accordance with this Act,

and

(iii) in order to enable compliance with the policies (whether set out in codes, guidelines or other documents, or any combination thereof) of the Government or a Minister of the Government to the extent that those policies may affect or relate to the functions of the Executive,

and

(b) establish and implement arrangements for the management of the performance of the chief executive officer.

(3) The Board is accountable to the Minister for the performance of its functions under subsections (1) and (2).".

Amendment agreed to.

I move amendment No. 9:

In page 9, line 1, to delete "(3) The Board" and substitute the following:

"(4) The Board".

Amendment agreed to.

I move amendment No. 10:

In page 9, line 3, to delete "(4) If a function" and substitute the following:

"(5) If a function".

Amendment agreed to.

I move amendment No. 11:

In page 9, line 4, to delete "subsection (3)" and substitute "subsection (4)".

Amendment agreed to.

I move amendment No. 12:

In page 9, line 6, to delete "(5) The Board" and substitute the following:

"(6) The Board".

Amendment agreed to.

I move amendment No. 13:

In page 9, line 7, to delete "subsection (3)" and substitute "subsection (4)".

Amendment agreed to.

I move amendment No. 14:

In page 9, line 8, to delete "(6) The Board" and substitute the following:

"(7) The Board".

Amendment agreed to.

I move amendment No. 15:

In page 11, line 7, to delete "section 16P(3)" and substitute "section 16P(4)".

Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8

I move amendment No. 16:

In page 12, line 20, to delete "by the Minister" and substitute "by the Board with the approval of the Minister given".

The Bill provides that the terms and conditions of the CEO are determined by the Minister with the consent of the Minister for Public Expenditure and Reform. The board does not have a role. However, given that the CEO is appointed by the board and the board will be managing the CEO's performance, the Minister has given this further consideration and proposes that the board should determine terms and conditions for the CEO. The board will need the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform. This is the process in many other Acts.

I am not entirely clear on the wording. I want to see whether the Minister for Public Expenditure and Reform is still included. If I understand it correctly, section 21A(3) of the principal Act would read that the CEO shall hold office upon and subject to such terms and conditions as may be determined by the board with the approval of the Minister with the consent of the Minister for Public Expenditure and Reform. Is that right?

Yes, that is correct.

Is this a policy change? It appears that it is. The Bill states that the CEO shall hold office subject to terms and conditions determined by the Ministers for Health and Public Expenditure and Reform. This is what it currently states but it is being changed to read that the terms and conditions will be determined by the board as opposed to the Minister for Health. This is a policy change. What is the rationale behind it?

The Minister would always have consultation with the board. The Minister has given this further consideration and proposes the board shall determine the terms and conditions of the CEO.

I accept that. My question is why that is the case.

The position would be that the board will determine the terms and conditions, with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform. In practice, the board would work on appropriate terms and conditions for the CEO, determine the terms and conditions and put these to the Minister for the Minister’s approval. The consent of the Minister for Public Expenditure and Reform would be needed before approving the terms and conditions. This arrangement is found in other Acts such as, for example, in the Child and Family Agency Act 2013.

Would it allow for the board to set, for example, a pay level above public service caps?

It would need approval from the Minister for Public Expenditure and Reform.

Many people have interviewed for the job and my understanding is that no one has been accepted. Some people are stating that we need to increase the salary on offer significantly. Would the amendment change the boundary conditions or constraints? I am trying to understand this. The amendment would mean that the Minister will no longer set the terms and conditions and that they will be set by the board. The question is whether this changes anything. Will it give the board more latitude regarding the terms and conditions than the Minister might have?

No, it would need the approval of the Minister for Health.

I accept that and it would also need the approval of the Minister for Public Expenditure and Reform.

My question is whether the Bill will change the degree of latitude available. The amendment states that the terms and conditions will not be set by the Minister but by the board. In real terms, will this give the board more flexibility or less flexibility than the Minister would have?

The Minister would always have consultation with the board and the board is best placed in the first instance to work with the terms and conditions provided with.

That it is provided with.

That who is provided with?

The terms and conditions that the board works under.

Will the board set the terms and conditions that would then be approved by the Minister?

Yes, that is what I read out in the first instance. Will I read out it again?

No, it is fine.

My follow-up question is whether this changes the latitude available in respect of the terms and conditions. Is it the case that the board can state that it needs to pay €500,000 a year to a person whereas, perhaps, the Minister for Health could not do so? Perhaps the Minister can do so. That is the question I am asking. Does the amendment change the freedom available to set terms and conditions?

The board will put proposals to the Minister, which will have to be approved by the Ministers for Health and Public Expenditure and Reform.

I know that. That is not the question I am asking. I am asking whether the board will have more latitude in setting terms and conditions than would be the case with the Minister.

I thank the Minister of State.

I am curious as to the wording of the amendment, which contains the phrase "by the Board with the approval of the Minister given". It is rather unusual use of the English language. I have not seen it before. What does it mean? Does it mean the prior approval of the Minister?

Does it mean the prior approval of two Ministers? Is it Minister or Ministers? It could be worded as "given the approval of the Minister" but "the approval of the Minister given" is something I have never seen before. I do not know why it has been drafted in that fashion or in parliamentary draftsman's language. Perhaps my education has been greatly neglected along the way. I just want to know if it means something of which we are not aware. The phrase is used twice and I do not know what it means. If necessary, will the Minister of State examine the wording and clarify it on Report Stage? That would be fine.

Will the Minister of State seek further clarification on that?

Is the amendment being withdrawn with a view to giving the matter further consideration?

Yes, it can be reintroduced on Report Stage.

Report Stage is too late for a debate. Can we have a briefing note before Report Stage?

I am sure that is possible.

That would be good.

That would be fine.

I thank the Minister of State.

Amendment put and agreed to.

I move amendment No. 17:

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.

This amendment is very simple. It seeks to ensure that the chief executive officer of the HSE should not hold any additional office. We saw that the previous director general had a role in another company. Running the HSE is a big job and it should take up all of the time of the post holder. We should be absolutely sure there is no scope for any conflict of interest or any suggestion of a conflict of interest. It is not appropriate for the CEO to have another job or to sit on boards. His or her focus should solely and entirely be on running the HSE. There should be no division. This amendment proposes to leave the wording, "The chief executive officer shall not hold any other office employment or carry on any business", and delete the subsequent words, "without the consent of the Board and the Board shall inform the Minister in writing of any such consent given." The previous holder of the position informed the Minister he had an additional role outside the HSE. I am not suggesting there was anything untoward about that but it is not a good idea. This latitude was available and given previously. We need to remove it and ensure the person in charge of the HSE is focused solely and entirely on that job.

As matters stand, the CEO is prohibited from holding any other office, employment or business unless the board approves. The Minister must be informed of any such decision by the board. The proposed amendment would prevent the CEO from holding any other office, under any circumstances. This issue arose during debate in the Seanad and the Minister’s view was that it was not possible to foresee all circumstances and that there may be situations where holding other offices may be justified. The legislation as it stands allows for this, while giving the safeguard that the board’s consent is needed. The board will be the decision maker. If it believes it is not appropriate, the CEO cannot undertake the work in question. It is not, therefore, proposed to accept this amendment.

While my question may be more appropriately addressed in a briefing note, in what circumstances would it be necessary for the post holder to have other roles? I cannot think of any such roles. I appreciate the Minister of State's response and note the debate in the Seanad in which the Minister said it is not possible to envisage all circumstances and such a scenario might arise. The person in charge of the HSE should be focused solely on that role and I cannot think of any scenario where that person's membership of another board or employment by another company would be appropriate or beneficial to the running of the HSE. The Minister may have had in mind a specific scenario that could be beneficial or at least have a neutral effect on or cause no harm to the role of the CEO in running the HSE. I cannot envisage such a circumstance. The CEO of the HSE is a big job and incredibly time consuming. I do not know where he or she would find time for other roles. It would not be appropriate for him or her to have to find the time to carry on other work or business.

We would all expect the CEO of the HSE to be focused on the job. The issue is that it not possible to predict all situations and there may be a valid reason for the CEO to hold some other office. Rather than excluding the possibility completely, we have made it clear that the CEO cannot hold any other office without the consent of the board. For this reason, we will not accept the amendment.

Is this a change? Previously, the Minister's consent was required, whereas in the Bill the consent of the board is required.

The Minister has authority in the appointment of the director general and it would always be the intention that it would move to the new board.

It is, therefore, a change.

The current position is that the HSE has a director general and does not have a board.

That is fine.

On the basis of my previous remarks, I will withdraw the amendment and resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 18 is in the name of the Minister and has already been discussed with amendment No. 1.

I move amendment No. 18:

In page 13, between lines 36 and 37, to insert the following:

“(b) ensure that appropriate systems, procedures and practices are in place—

(i) to achieve the Executive’s object.

(ii) for the internal performance management and accountability of the Executive in respect of the Executive’s—

(I) performance of its functions,

(Il) achieving objectives in accordance with the corporate plan.

and

(III) delivery of health and personal social services in accordance with this Act,

and

(iii) in order to enable compliance with the policies (whether set out in codes, guidelines or other documents, or any combination thereof) of the Government or a Minister of the Government to the extent that those policies may affect or relate to the functions of the Executive,”.

Amendment put and declared carried.

I move amendment No. 19:

In page 13, line 37, to delete “(b) provide” and substitute the following:

“(c) provide”.

Amendment agreed to.

I move amendment No. 20:

In page 14, line 1, to delete “(c) assist” and substitute the following:

“(d) assist”.

Amendment agreed to.

I move amendment No. 21:

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

My amendment is similar to the previous one. It concerns the avoidance of any double jobbing and conflict of interest. There are probably nicer words for that now but they escape me at the moment. I have a difficulty with the person who is the head of the health service having other jobs or calls on their time. My amendment seeks to ensure that the focus is solely and entirely on the role as the chief executive or director general of the HSE. We saw previously where additional roles were approved by the Minister but that does not make it right. It means that it happened.

This is about removing provisions for the CEO not being required to give an account to the committee of any matter that has been or may at a future time be the subject of court or tribunal proceedings.

That response does not accord with the notes that I have. In the interests of getting this legislation done I withdraw my amendment but reserve the right to retable it, as required.

If I have understood the amendment correctly, I think it is a very sensible amendment. The paragraph relates to the chief executive coming before the Oireachtas, so mainly to this committee, I imagine, and probably the Committee of Public Accounts. There is a get-out clause, which says that the chief executive officer "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 at any future time be, the subject of proceedings before a court or tribunal in the State”. That provision pretty much gives carte blanche for the chief executive officer to just never appear. Deputy O'Reilly's amendment is spot on and does not try to delete the paragraph.

One cannot have a situation where the head of the health service says, "I am not coming in because at some point in the future somebody may take a case over" whatever. Almost everything that this committee has discussed in the past year could lead to legal cases in the future. The amendment is very good and I am inclined to support it. Perhaps the Minister of State has a solid legal reason the provision must be included. In the absence of a solid argument by the Minister of State, I do not see why one would give that sort of carte blanche to any executive officer.

Deputy O'Reilly has withdrawn her amendment.

I will retable my amendment at a future date and welcome the support expressed by Deputy Donnelly.

Deputy Donnelly is entitled to comment on the amendment.

I probably should have spoken sooner.

Apologies. Maybe we have moved on procedurally but the Minister of State has not answered the question.

The amendment has been withdrawn so I cannot answer and Deputy O'Reilly has said she will bring it forward again.

Yes. It is a sensible amendment and I will bring my amendment forward.

I repeat that it does not matter because the Minister of State is not in a position to accept any of our amendments and will be opposing them.

I wish to emphasise how frustrating this situation is for us. The purpose of today's meeting is to scrutinise legislation and hear the views of the Opposition. Regardless of those views, they will not make a difference.

For what it is worth, I wish to add to the sentiments expressed. Deputy O'Reilly's amendment is a good one. The Minister of State did not answer the question and read out a single sentence.

I did not clarify.

This is becoming farcical, quite frankly. If the Minister of State cannot engage in the substance of the amendments then she should not be here.

Unfortunately, we must move on.

I know but a single sentence in response is ridiculous. Either the Government is able to engage in the materiality of amendments on Committee Stage or it is not; if it not then it should not be here.

I wish to point out that I would have engaged on the legislation if Deputy O'Reilly had not withdrawn her amendment. I cannot comment on an amendment once the Deputy has withdrawn it. I am sorry that Deputy Donnelly does not consider that my presence is not relevant. My presence is very relevant here. I am here on behalf of the Minister for Health, Deputy Harris. In terms of the amendments in front of me, as I have been given the text, the Minister will not accept it and I cannot counteract that.

Amendment, by leave, withdrawn.
Question proposed: "That section 8, as amended, stand part of the Bill."

On page 15, paragraph 21E(2) of the Bill states:

The chief executive officer 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 at a future time be, the subject of proceedings before a court or tribunal in the State.

Why does the Government feel the need to provide such blanket coverage, including hypothetical future court cases? I have a few questions and we might take them one at a time.

When this issue was raised in the Seanad, the Minister made the point that is it essential that not only is the integrity of any current court proceedings protected but also that the integrity of future court proceedings is protected. Has that clarified the matter?

The Minister of State's reply does not clarify anything. I do not understand what her reply means. What does it mean?

Will I read it again?

No. I heard the reply but I do not understand what it means. I ask the Minister of State to provide the committee with an explanation of why the head of the HSE would not need to come before a committee and can use the excuse of a subject, potentially, in the future being the subject of a court case, which most things in the HSE are.

The reply to the Deputy's question is the Minister does not want to jeopardise any future court cases that may occur.

How would future court cases be jeopardised?

The CEO must inform the committee if the options of this provision apply in a matter in which it has been asked to give an account and must be the reasons for such an opinion, which must be given in person or in writing to the committee.

Second, either side of the CEO or chairperson of the committee may, within 42 days, apply to the High Court for determinations on the matter. This is the right procedure in the correct process, which safeguards to ensure there is transparency and accountability. These provisions are standard and, I think, are reasonable. I hope that the Deputy will understand what I have just read out.

The Minister of State read out paragraphs (3) and (4), but we are talking about paragraph (2). It gives the chief executive officer of the health system the ability not to appear before any Oireachtas committee to discuss any issue which may at some stage be before the courts. That rules out pretty much everything in the healthcare system. I can understand the committee not bringing in a chief executive to discuss a matter before the courts which I think is covered by Standing Order 50 which is specifically about court sittings in which there is a jury and where it might be influenced by a conversation in the Oireachtas. It is not that the Oireachtas cannot discuss matters that are before the courts; we can and do all the time. The matter of CervicalCheck is before the courts, but we still discuss it here. This is an extraordinary level of protection for the chief executive because any matter this committee, or the Committee of Public Accounts, may decide to address can be deemed to be before the courts. I still do not have an answer to the question as to why such an extraordinary level of protection is being granted. The Minister of State said it was to protect future court cases, but I do not understand how discussing things here would jeopardise them. If that rule was applied, it would shut down Parliament. Maybe the Minister of State might expand on the matter.

I have been advised that the CEO has to explain his or her reasons to the committee and that it can bring the matter further if it wants to. Some of these provisions are already stated in legislation.

That is from paragraphs (3) and (4) which lay out the procedural issues involved. The question I am asking is about paragraph (2) and concerns why the Government is choosing to give such extraordinary protection from parliamentary accountability to the chief executive officer of the HSE. The Minister of State said it would, in some way, jeopardise future court cases. Will she explain how this committee discussing issues with the chief executive officer would jeopardise future court cases?

The objective of paragraph (2) is to protect court cases. Similar paragraphs are included in other legislation.

I will leave it at that because I do not think the Minister of State has an answer. The question is a direct one. Extraordinary protection against parliamentary accountability is being afforded in the paragraph to the chief executive officer of the HSE. The rationale the Minister of State has given is that it is to avoid jeopardising future court cases. I do not understand how discussion at this committee will jeopardise future court cases and I am worried that, if we accept that logic, we will have to ask if we are allowed to discuss anything at this committee.

We have to move on.

The Minister of State is seeking to assume powers of massive foresight which the committee does not have. Effectively, we will be neutered and precluded. Like Deputy Donnelly, I cannot understand how this will work in practice because all the chief executive officer or the director general will have to do, if asked to come before the committee, is respond to the effect that the matter could be the subject of a court case. He or she would be right in saying so, as anything could be the subject of a court case. This will give the person in charge a veto.

I have withdrawn my amendment on the basis that I will retable it, but in the intervening time it would be helpful to have a note on this issue. We say the Minister of State is giving the director general a veto in deciding if he or she should ever come before the committee, but she is saying she is not doing so. The reasons this provision does, effectively, amount to a veto were very well outlined, but the Minister of State insists that she is not giving one. Perhaps she might ask the Minister to outline for us, in some detail, why he believes this will not operate in such a way. The Minister of State says she will not accept amendments. While I will do my very best to accept her explanation, she should not be surprised if I do not accept it. I ask for a note to be provided well in advance of Report Stage with an explanation of how this provision will not act as a veto. To my mind, it clearly will.

Genuine concerns are being raised about the effect of paragraph (2). I support Deputy O'Reilly in the matter. It would be very helpful if we received a note in order that we will not end up in a situation where we will not be able to call the head of the HSE before us to give us information. Everyone on the committee seems to have the same concerns.

I will relay them to the Minister and ask for a report to be made available.

I know that the Minister of State is trying to do her job, but the national children's hospital could easily become the subject of a future court case, as CervicalCheck currently is. There is the matter of Spinraza and other drugs; everything we discuss is, or could be, the subject of a court case.

On page 13, section 21B(4)(b)-----

Is the Deputy speaking to the amendment?

No, I am speaking to section 8. It states the chief executive officer shall cease to be qualified for office and shall cease to hold office if he or she is convicted of any indictable offence. Could very minor offences such as speeding offences be included in that regard? Such offences could be committed, but they may not mean that a person should be fired. I am looking for clarification on what is an indictable offence. Is it a serious offence or could it refer to something unrelated to the role of being a good chief executive officer?

I imagine it would be a more serious offence, but I will ask the Minister to clarify the matter for the Deputies.

It would be an awful shame if a really good chief executive officer did not spot a 60 km/h sign and ended up having to be fired. I am not condoning speeding, but it would be good if the Minister of State could give us a note on what is included as an indictable offence. Paragraph (4) states such a person shall cease to be qualified for office. This is black and white. It is not that an issue could be raised by the board and considered in the round. Once it happens, the chief executive officer will be gone.

At the start of the section 21A, it states the board shall, as soon as practicable, appoint a person recruited in accordance with the Public Service Management (Recruitment and Appointments) Act 2004 as CEO.

Will the Minister of State run through what that means in practice? Does it mean that the PAS, the top level appointments committee, TLAC, or some other group will come up with a shortlist and the board will choose? Will the board be offered the chance to say "Yea" or "Nay" to one person? How will it work?

I have been advised that there will a selection process and interviews.

By whom will the selection process be carried out?

It is to be carried out by the PAS.

Will the PAS come up with a shortlist for the board, which will then interview the final candidates? How will it work?

It will come up with a shortlist for interview.

The board will then interview them. Is that correct?

I am advised that there will be a larger interview board, but the board will be represented.

Will the PAS carry out an initial round and come up with a shortlist of candidates for this interview board?

Very well. Who is to be the final decision-maker, the board or the final interview panel on which the board is to be represented?

The interview board will make recommendations to the main board.

Will it ultimately be the main board that decides?

Yes, but based on recommendations from the interview board.

Let us say that the PAS comes up with ten names. The interview board interviews those ten individuals and forms the view that three of them are suitable. Will the board then ultimately decide which one of the three is appointed?

I am advised that the interview board will rank them in order of preference.

Will the board be obliged to take the first preference?

So the board will not choose. The section seems to say that the board is to choose the chief executive, but it will not do so not if it is obliged to take the first preference. Is that correct?

I just want to confirm this so I can get it right and it will not be recorded in any other way. To go back to the original question the Deputy asked about appointments, the PAS will appoint people. I am confusing myself. I apologise to the Chair. I have to be careful about this, because what I say might be used as evidence against me and I would not like that to happen.

For what it is worth, I am not trying to catch the Minister of State out; I am just looking for clarity.

I want to be very clear in reply to the Deputy so that I can be accountable for what I say on the record to the Minister when I meet him again.

I do not want to put my own interpretation on what I am being advised.

I thank the Minister of State.

As the committee can see, I am not a legal mind.

I apologise to the Chair for the long delay, but I want to get this right in case somebody decides to sue me. The PAS will carry out a competitive and transparent process to decide whom to put forward. The board will appoint that person. It will accept the process and the recommendations that come from the PAS. I hope that makes that clear.

I think it does, it just-----

I am sorry about that.

No, it is fine. I thank the Minister of State for taking the time. I am trying to understand if the board is to have any say. As I read this, it seemed that the board would appoint the chief executive and, therefore, have a say. However, if I understand the Minister of State correctly, it will not. The PAS will do its thing, it will make a recommendation to the board and the board will accept that person. Is that correct?

Yes, that is it.

Very well. It strikes me as odd. It is normally one of the most important powers a board has. The next page indicates that the board will be allowed to fire the chief executive. It seems strange that it will not hire the chief executive, but I thank the Minister of State for the clarification.

Question put and agreed to.
Sections 9 to 14, inclusive, agreed to.
NEW SECTION

I move amendment No. 22:

In page 19, between lines 22 and 23, to insert the following:

“Amendment of section 29 of Principal Act

15. Section 29 of the Principal Act is amended by the substitution of the following subsection for subsection (4):

“(4) In preparing the corporate plan, the Executive shall have regard to the policies (whether set out in codes, guidelines or other documents, or any combination thereof) of the Government or any Minister of the Government to the extent that those policies may affect or relate to the functions of the Executive.”.”.

Amendment agreed to.
SECTION 15

I move amendment No. 23:

In page 19, between lines 24 and 25, to insert the following:

“(a) in subsection (4), by the substitution of the following paragraph for paragraph (g):

“(g) accord with the policies (whether set out in codes, guidelines or other documents, or any combination thereof) and objectives of the Minister and the Government.”,”.

Amendment agreed to.

I move amendment No. 24:

In page 20, to delete lines 10 to 12 and substitute the following:

“(c) in subsection (7), by the substitution of “chief executive officer in compliance with subsection (6A)” for “Director General in compliance with subsection (6)”,

(d) in subsection (9), by the substitution of the following paragraph for paragraph (d):

“(d) does not accord with the policies (whether set out in codes, guidelines or other documents, or any combination thereof) and objectives of the Minister or the Government to the extent to which those policies and objectives relate to the functions of the Executive and have been communicated in writing to the Executive prior to the commencement of the specified period.”,

and”.

Amendment agreed to.
Section 15, as amended, agreed to.
Section 16 to 19, inclusive, agreed to.
SECTION 20

I move amendment No. 25:

In page 21, line 10, to delete “one” and substitute “not fewer than 3”.

Section 40H of the Health Act 2004 provides for an audit committee of the HSE. This section makes amendments to section 40H to take account of the move to a board governance structure, for example, providing that the audit committee is appointed by the board rather than by the director. The Bill currently provides that audit committee membership is to comprise the board members and no fewer than four external members. However, the Minister has considered this further and believes that some amendments should be made.

As the HSE is now to have an independent board, it is important in terms of good corporate governance that board members are now further represented on an audit committee as part of the audit planning and insurance process.

Amendment No. 25 therefore changes the composition of the audit committee. The amendment provides that not fewer than three members of the new HSE board will be on the audit committee. The audit committee will continue to have not fewer than four external members. In summary, this will mean that the audit committee will consist of not fewer than three board members and not fewer than four external members, with the relevant skills and experience.

There is a slight concern with this amendment in that it seems to tip the balance very much back towards the board. Perhaps I am misunderstanding the amendment, but the essential function of the audit committee is to be independent and external auditors. Maybe I am wrong, but if that is the case, does it give the board too much say on a body that might be looking at the activities of the board? Maybe I misunderstand the role of the audit committee, but that is my concern.

I have a similar concern. I am not aware of the rationale for increasing the board membership. My concern is that the HSE board would be over-represented on the audit committee. It would be helpful if the Minister of State provided us with some assurance as to why this is a good idea.

The audit committee functions are set out in sections 22 and 13. These changes are proposed in line with the Department of Public Expenditure and Reform code of practice for the governance of State bodies which recommend that an audit committee should have independent non-executive board members and members drawn from outside of the board.

Will the Minister of State give a quick overview of the core functions of the audit committee?

These are set out in section 22. The audit committee will advise the chief executive officer on financial matters relating to his or her functions, report in writing at least once in every year to the chief executive officer on those matters and on the activities of the committee in the previous year, and provide a copy of the report to the board and the Minister. It will, on and after the relevant day, advise the board on financial matters relating to its functions and report in writing at least once in every year to the board on those matters.

How many members are on the audit committee?

I am advised that there can be any number on the audit committee but there must be three members from the board and four external members.

In that case, the minimum number is seven. This seems peculiar. One of the core functions of the audit committee is to provide financial advice to the board, including on activities of the board. If three of the seven members of the audit committee are drawn from the board, is there not a conflict of interest or at least a lack of independent oversight given that it would only require one of the other four members to side with the board members on an issue? It does not feel sufficiently independent and removed. Is the Minister of State saying that the audit committees of other State bodies, for example, the National Transport Authority, would also have three members drawn from the board of the body in question? Is that the Department of Public Expenditure and Reform guideline?

The audit committee deals with HSE functions. Having three members from the HSE board and four external members means the balance is in favour of external members. I do not understand the reason that is a problem for the Deputy.

The concern is that if the role of the audit committee is to provide independent auditing advice and financial feedback on the performance of the board, typically one would not have members auditing themselves.

My understanding is that the chairman of the audit committee must be an external member. The committee does not give auditing advice. The HSE has its own auditors. I am not really in tune with what the Deputy is saying. Is he saying that having three members of the HSE board on the audit committee is too many?

I do not know but it feels unbalanced.

If there are four external members and the chairman is an external member, that makes five external members.

No, the chairman would be one of the four external members so it would be three ordinary members and the chairman.

I am advised that there can be any number of external board members, but it must be not fewer than four. I understand that the Deputy has concerns around the three members from the HSE board. Is that correct?

My concern is that typically an audit committee does not audit itself. If half the members of the audit committee are on the board of the HSE, the board is advising itself. The Bill provides that the board may at any time remove a member of the audit committee. Perhaps I have got this wrong. Maybe the audit committee is not meant to provide independent advice or feedback to the board, but if it is meant to do so, it seems the board will be providing advice and feedback to itself.

As the HSE is now to have an independent board, it is important in terms of good corporate governance that board members are now further represented on the audit committee as part of the planning and assurance process. It is important to note that the three board members from the HSE board on the audit committee will help feed back to the HSE board what is happening on the audit committee. I am confused as to why the Deputy would have a problem with three of the members from the main board sitting on the audit committee because there will not be an imbalance, if that is the point he is trying to make. My understanding is that four external members and maybe more as well as an independent chairman would outnumber any members who are also on the HSE board. I am not sure why the Deputy is pursuing this avenue around the board members. The amendments provide that not fewer than three members of the HSE board will be on the committee. It could be less. If there could be more external people on the board, I do not understand the Deputy's point.

It could be more than three.

Technically, it could be the whole board, for example, so the external members could be outnumbered.

There can be more external members as well. I understand the Deputy's concern.

The wording in amendment No. 25 is "substitute “not fewer than 3”" which indicates it could be any number, three or above.

However, there would still be an independent chair and four or more external members. That does not mean the committee would have and imbalance.

Well, it does really.

Is Deputy Donnelly indicating his opposition to the idea that not fewer than three members on the committee should be from the board? Is his fear that there could be more?

The issue is the board is auditing itself.

The Bill states that it should be one and the amendment refers to at least three, or more, I presume. As a result, the board members could outnumber the external members in certain circumstances.

In terms of the role of the audit committee, the first function is to "advise the chief executive officer on financial matters relating to his or her functions". The second is to "advise the Board on financial matters relating to its functions". If the audit committee is essentially a sub-committee of the board where it can also bring on-----

No, not board members. The board members are there, but it is a sub-committee of the board which can bring on additional expertise. Let us say it wants to avail of the services of actuaries or corporate lawyers, that is okay. We already have a board and the board is talking to the chief executive all the time. Essentially, the board's job is to hold the chief executive to account and to set the strategy for an organisation. Those are two of the big issues. Separate to that, one has an audit committee, which is giving financial advice on the functions of the board. It is giving governance advice on the structures and it is giving financial advice to the chief executive. If the objective is for that to be essentially independent of the board, and providing a second pair of eyes, if it is full of board members then that does not happen. It is essentially the board reporting to itself about its own functions.

I have been advised that it is not financial advice, it is advice on financial matters and governance and that is separate to the auditing of the HSE, which is done by professional auditors.

We will not split hairs about whether it is financial advice or advice on financial matters. I think we are dancing on the head of a pin if we were to do that. Is the audit committee essentially meant to provide a level of advice on financial matters and governance matters, as laid out here, independently of the board or as a subfunction of the board?

As a subfunction of the board.

I thank the Minister of State.

Amendment agreed to.
Section 20, as amended, agreed to.
Sections 21 to 24, inclusive, agreed to.
SECTION 25

I move amendment No. 26:

In page 24, line 10, to delete “section 16P(3)” and substitute “section 16P(4)”.

Amendment agreed to.

I move amendment No. 27:

In page 24, line 22, to delete “section 16P(3)” and substitute “section 16P(4)”.

Amendment agreed to.

I move amendment No. 28:

In page 24, line 27, to delete “section 16P(3)” and substitute “section 16P(4)”.

Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 34, inclusive, agreed to.
TITLE

I move amendment No. 29:

In page 5, lines 7 and 8, to delete “and that the Executive shall have a chief executive officer accountable to that board” and substitute the following:

“, to provide that the Executive shall have a chief executive officer accountable to that board and to provide for certain other amendments to that Act”.

The amendment to the Long Title is consequential to the inclusion of provisions on health needs assessment.

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendment.

I thank the Minister of State.

I thank all of the Members present and others who were here previously. I thank them for their kindness and patience in view of the fact that I was not really clear on some of the questions that were asked. I also thank the advisers on either side of me for intervening in respect of those questions.

A note has been requested on the terms and conditions of the CEO. That was sought by the Chairman or Deputy Donnelly.

There are a few technical notes to be provided. One was on indictable offences.

Yes, we have taken notes and we will endeavour to have the information that was sought forwarded as soon as possible. I thank Deputy Donnelly and the Chairman.

I thank the Minister of State and her officials for attending.