Léim ar aghaidh chuig an bpríomhábhar

Thursday, 26 Oct 2017

Deloitte Report on Cost of Care in Grace Case

Mr. Tony O'Brien (Chief Executive Officer, Health Service Executive) called and examined.

Our meeting today will have two parts. The principal reason for this meeting is the examination of chapter 19 of the Comptroller and Auditor General's report 2016, management and oversight of grants to health agencies.

The committee agreed in private session on Tuesday to allow an hour today for questions regarding a matter discussed with the HSE previously. A HSE-commissioned report has been produced by Deloitte on the cost of care incurred by the service provider in the Grace case. Arising out of this, the committee has questions on two specific matters. These relate to the director general, Mr. Tony O'Brien's covering letter to the committee and his conclusion that "the service provider was not treated either unfairly or disproportionately", and an explanation for why the HSE argued that certain tables that appeared in an earlier draft should be removed from the final report.

I welcome Mr. O'Brien from the HSE and thank him for making time today. He will be joined by Ms Aileen Colley, chief officer in the community health care organisation, CHO, area 5 for the first session. She is welcome. I remind members, witnesses and those in the Gallery that all mobile phones must be switched off.

I advise the witnesses that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If they are directed by it to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter to a qualified privilege only in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the provisions within Standing Order 186 to the effect that the committee shall refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policies.

While members may have many other concerns relating to the HSE's treatment of Grace and the service provider, we also acknowledge that the Houses have set up a commission of investigation to examine these matters and we do not wish to do anything to undermine that work. As such, we will be specific in what we put to Mr. O'Brien today. We will not get into the broader issues regardless of those concerns. I am sure that the Farrelly commission has the power and ability to get to the bottom of the matter.

Mr. O'Brien has an opening statement for this session, which he has brought with him. It has been circulated to all members. Mr. O'Brien may proceed.

Mr. Tony O'Brien

I thank the Vice Chairman for the invitation to attend today's meeting and the opportunity to address concerns regarding an independent review undertaken by Deloitte as it relates to a disability support provider in the south east and that is directly concerned with the case of Grace. I am accompanied by Ms Colley, the chief officer of CHO area 5, which is the relevant CHO area. She joined the HSE in September 2015. Therefore, it is important to point out that she would not have had any involvement in the matters in the south east prior to that date.

I am mindful that, in addressing these concerns, I have taken the time to consider a number of issues addressed to committee members by the provider in correspondence dated 4 October 2017. It is important to preface my opening statement in the knowledge that matters of concern for this committee are also germane to the statutory investigation that is sitting.

In addressing the matters in the service provider's correspondence to the committee, I wish to provide important background and context leading to the final 20-page report and appendices issued to me, as commissioner of the review, by Deloitte on 15 September 2017.

During the course of my opening statement to the committee in February of last year, I discussed levels of funding for the voluntary provider for the years 2009 to 2015, inclusive. The budget for the voluntary provider involved was set out together with a comparison of the percentage increase or decrease in budget relative to the percentage increase or reductions across the area and nationally. In the course of the meeting, the then Chairman stated:

I understand that Mr. O'Brien [me, of course] is going to have a discussion with it [the provider] and I know he will be fair about it. I think when you look at the funding figures that you quoted in your opening statement, and factor in the work that had to be done and the care that had to be given, you will find that its funding actually decreased over the period. I will not argue with you about the figures, but I am going to ask you to examine that table at some stage and be prepared to inform the next Committee of Public Accounts of the position.

Following the committee meeting, the figures were disputed by the voluntary provider in question. As part of an engagement with the organisation, I gave a commitment that I would undertake an independent external review of funding, to which the provider was agreeable. I commissioned Deloitte, an internationally recognised organisation, to undertake the review in accordance with the following terms of reference, which relate to the cost of care from 2009 to 2016 for a specific individual in the care of a service provider, and the funding provided by the HSE to the service provider from 2009 to 2015.

I now wish to address the serious allegations made by the service provider in its correspondence to the committee regarding the independence of the report. Deloitte, as part of its methodology, undertook to engage with the provider and relevant HSE personnel and requested information from both parties. As part of the process deployed, Deloitte exchanged a draft document with both parties and had further engagements with them regarding clarifications and inputs to the draft. I understand that the methodology employed by Deloitte is the norm when undertaking such reviews. That is, it is a reasonable standard to expect that both parties to the review would have the opportunity to comment and offer feedback for "consideration", following which the independent reviewer has to decide on what will or will not be included in the final report, having taken into account the information and views of the parties to the review. This is precisely what Deloitte undertook as an independent and reputable professional services firm.

Notwithstanding this, and given the gravity of the concerns expressed and the assertions contained in the provider's correspondence, I felt it important to seek written assurances from Deloitte as to its view of the assertions made. I therefore wish to read into the record of the committee the following response received from Deloitte:

In support of our findings in respect of part (b) of the TORs (our analysis of the funding provided by the HSE to the service provider from 2009 to 2015), our report includes the detail of the amounts initially reported by HSE to the PAC in respect of funding provided over the period adjusted for funding for one-off and new services which shows the real reduction in funding for like for like services over the period and is consistent with what was in the draft report.

There was an additional table (table 3.3) in the draft report which further adjusted the funding received for the shortfall determined under section (a) of the TORs.

We determined that further adjusting the table for this shortfall was confusing and could be misleading as the report already clearly set out the shortfall related to part (a) of our TOR. The removal of this table was not as a result of any pressure from the HSE.

As the report was prepared for the HSE, we considered it appropriate that additional information be included in the report which provided the HSE's context to our findings. It is not uncommon in such reports to obtain responses to findings from those subject to the review and the report clearly sets out that this information was provided by the HSE and not subject to independent review by Deloitte.

It was not in our TOR to conclude as to whether the shortfall in the funding for Grace was effectively an additional cut in funding to the body or deliberately done because of the whistleblowing, this is a matter for the Commission of Investigation.

Having regard to the above response from Deloitte, I wish to address concerns raised regarding material - in this instance, tables relating to financial data - being in the draft report for consideration as distinct from the final report issued by the independent reviewer, Deloitte. As I have referenced in terms of Deloitte's correspondence, the information that was contained in table 3.3 of the draft report had already been dealt with in the report and was removed to avoid confusion. The removal of this table was not as a result of any pressure from the HSE.

In its final report, Deloitte reproduced the table of figures provided by me in my opening statement to the Committee of Public Accounts on 2 February last year. These figures were subsequently disputed by the provider. The Deloitte report at 6.4, page 17, states the following on these figures:

From our analysis of the breakdown of the funding provided by the HSE to the Service Provider, we are satisfied that the figures set out in Table [6.1] above are in respect of total funding.".

The report further states at 6.5, page 17:

The Service Provider has advised us that whilst there was an overall 18% increase in the level of funding in 2015 compared with 2014, this increase is after the provision of new services.

I take from this that the figures as presented by the HSE to this committee in February 2016 were correct.

I have accepted the final report as issued to me by Deloitte. I remain of the view that the evidence in this report indicates the service provider was treated fairly in comparison with other similar service providers in the period under review. I am satisfied, based on assurances from Deloitte, that any adjustment between the draft report of May 2017 and the final report was not as a result of any pressure from the HSE. It is also my view that any remaining concerns should be dealt with through the Farrelly commission, which is established in accordance with the provisions of section 32 of the Commissions of Investigation Act 2004.

Deputy Sean Fleming resumed the Chair.

Deputy Cullinane has indicated his wish to speak. We will give a maximum of an hour to this matter so we can begin with five-minute slots.

I welcome Mr. O'Brien and his colleague. In the opening statement supplied to the committee, Mr. O'Brien included an important paragraph that is a response he read into the record of this committee that came from Deloitte. It is:

It was not in our TOR to conclude as to whether the shortfall in the funding for Grace was effectively an additional cut in funding to the body or deliberately done because of the whistleblowing, this is a matter for the Commission of Investigation.

I am assuming Mr. O'Brien agrees with that.

Mr. Tony O'Brien

Yes, I do.

Whether the organisation was treated fairly or unfairly in terms of funding is something the commission of investigation of investigation will examine as part of its work.

Mr. Tony O'Brien


There is a cover letter dated 26 September 2017 in which Mr. O'Brien wrote to the clerk to the committee and attached a copy of the report. He states: "Consequently, the Service Provider was not treated either unfairly or disproportionately when compared to other similarly funded organisations." That is Mr. O'Brien's opinion and it is not the opinion of Deloitte. How can Mr. O'Brien determine whether it was treated fairly or disproportionately if Deloitte was not asked to consider it? It is something for the commission of investigation to determine. Will Mr. O'Brien explain to this committee how he can put in writing to us his view or contention that the service provider was not treated unfairly? Bear in mind that the last time Mr. O'Brien was here on this matter, he hung the opportunity of an apology to the service providers on whether they were treated fairly or unfairly. He said we would see what is in the Deloitte report but Deloitte was never in a position to determine whether the providers were treated fairly or unfairly. Maybe Mr. O'Brien should correct the record of the committee and confirm that only the commission of investigation will make the determination, and it may influence whether the providers get an apology. How was Mr. O'Brien able to put it in writing to this committee that in his view these providers were treated fairly and proportionately as opposed to unfairly and disproportionately?

Mr. Tony O'Brien

Sure. Those are certainly the alternatives. The reason I gave my opinion was because the former Chairman asked me to revert to this committee on that matter. The question asked at the end of that meeting in February 2016 was quite clear and I am required to form an opinion. If I formed an opinion that in the interim period or any arrangements since, the service provider was treated unfairly or was being treated unfairly, I would have an obligation to do something about it, notwithstanding the subsequent determinations that the commission of inquiry will make. As the Accounting Officer currently for the HSE and with regard to the request made of me by the Chairman of the previous committee on the last day of that committee's actions, I have an obligation to form that opinion. I have formed that opinion and I have shared it with the committee.

With respect, that is slightly disingenuous as the letter penned by Mr. O'Brien to this committee was accompanied by the Deloitte report. The context of the letter sets out what is in the Deloitte report. It mentions section 6.4 and comparative analysis etc. It is a reference to the Deloitte report. On the back of that, Mr. O'Brien gives his opinion that the service provider was not treated unfairly or disproportionately. My point is the Deloitte report was not in a position to make that determination. What we can categorically say today is that Deloitte, which produced this independent report, is clearly not saying the service providers were treated fairly or unfairly as it was not within its remit. Mr. O'Brien has given his opinion, based on what is in the Deloitte report, but this aspect was not in the terms of reference for Deloitte. Is that a fair analysis?

Mr. Tony O'Brien

Yes, but allow me to step back. The Chairman of the Committee of Public Accounts of the time did not ask me to commission an independent review but he asked me to have a look. I took the decision to have the assistance of an external reviewer as part of having a look. The responsibility to form an opinion on this at that stage, and not prejudicing or taking away from the role of the statutory commission, was mine. It was my decision to have Deloitte provide that information. It was this committee's decision to request that it would have the benefit of that report, which I have provided. In fulfilment of the request of the previous Chairman and as part of my statutory duties, I need to have an opinion. I have told the Deputy what that is and he is entitled to say he does not agree with that opinion. The commission of inquiry is entitled to interrogate my opinion but it remains my opinion.

That is not the point I am making at all and Mr. O'Brien knows it. My point is Deloitte has not passed any comment on whether the service provider was treated fairly or unfairly. With respect, Mr. O'Brien is pre-empting the work of the commission by being very clear in his view that the provider was not treated fairly. I want to get to another question.

Mr. Tony O'Brien

May I respond to that briefly? Perhaps the Chairman will allow the Deputy a little more time so I can do that. In my opening statement, I carry that very phrase in indicating that Deloitte was not tasked with that. I have reiterated it and it is on record in my opening remark. None of this takes away from the fact that if I failed to offer an opinion and if I did not come here with an opinion, the view could reasonably be held that I was not doing my job today, which is to have a view as to whether the service provider needs restitution at this point.

No. Mr. O'Brien told this committee that the view would be formed on the basis of the Deloitte report, and it now seems that question was not within its terms of reference. There is still an ongoing investigation.

There is the key matter of the draft report that we have not seen. The whistleblowers wrote to this committee and have concerns that elements in the draft report did not make their way to the final report. The witness has given the view of the author of the report, which is fine, and indicates table 3.3, which has been referred to, was not removed at the behest of the HSE but for other reasons. The information was subsumed into a different table. The service providers have told me they were told by Deloitte that the only reason the table was removed was because the HSE insisted on it being removed.

Mr. Tony O'Brien

I have seen that in the correspondence. I can provide to the clerk a copy of the letter that Deloitte provided to me at my request when I asked it to review what had been stated in the letter relayed by the committee from the service providers. As with the Deputy, I have not seen the draft report and I did not take part in any discussion with Deloitte about the draft report. I have inquired of Deloitte whether the allegations made are in accordance with its understanding and decisions with regard to the content of the final report, as distinct from the draft report. It has confirmed in writing that which I quoted in my opening statement. I have no other knowledge.

I will make a final comment. I understand we only have an hour and it is almost impossible to get to the bottom of this in five minutes. There are so many questions to ask.

The other speakers will follow the Deputy's line.

They will but I have a final point. The difficulty is this. Mr. O'Brien comes before us as the Accounting Officer.

Mr. O'Brien's statement that he did not have sight of the draft does not cut it for me because his organisation did. The process here is that the report was commissioned by the HSE. It was at the behest of Mr. Tony O'Brien, as he said. The terms of reference were set by the HSE. It was paid for by the HSE and Mr. O'Brien's staff interacted with the author of the report. Therefore, the toing and froing in terms of giving drafts and, maybe, correspondence was by members of Mr. O'Brien's organisation. Therefore, he had an obligation to find out what exactly was going on in terms of the communication between his staff and the author on why the table was removed. It is not good enough for Mr. O'Brien simply to say he did not see the draft and that that is okay and that he does not have to answer questions on it. He is the Accounting Officer. I say this to tee up other people. They will have their questions as well. I do not believe Mr. O'Brien's answer is satisfactory.

Could we have a final response to that question?

Mr. Tony O'Brien

Whether any member likes these processes or not is really beside the point. If I commission an external party to carry out a review, the only thing I ever get from that external party is its final report. I have not seen the one in question. At the committee's request, I asked Deloitte whether it would be prepared to provide the draft report to the committee. It has indicated that if the committee requests it, it would consider it.

Would Mr. O'Brien be satisfied if we wrote directly to Deloitte to request a copy of the draft?

Mr. Tony O'Brien


And he, as the client, will consent to it being issued.

Mr. Tony O'Brien

Yes, but the draft is Deloitte's property. I have no objection to it releasing it but it is its decision.

If the draft is Deloitte's property, whose property is the final report?

Mr. Tony O'Brien

The HSE's.

So the HSE owns the final report while Deloitte owns the draft.

Mr. Tony O'Brien


If there was correspondence or communication between Deloitte and the HSE, what staff members were engaging in it, and at what level? There was engagement between the HSE and the author of the report. While it is up to Deloitte to give us a copy of the draft, the HSE could provide us with copies of emails and correspondence that went over and back so we could then determine ourselves whether a request was made by the HSE to remove the table. That is the only way in which we will be able to determine what occurred. The service provider said to me that Deloitte said to it that the only reason the table was removed was because the HSE insisted on it. Mr. O'Brien is saying that is not the case. How can we establish it?

We are moving on.

Mr. Tony O'Brien

I can answer that question.

I wish to confirm formally that the draft report is the property of Deloitte, along with its working papers, and that Mr. Tony O'Brien, as director general or chief executive, has no objection to Deloitte passing its property on to us, if it is satisfied to do so.

Mr. Tony O'Brien

Yes, but I will advise it to seek clearance from the commission first.

As was done before.

Mr. Tony O'Brien


Cuirim fáilte ar ais roimh Mr. O'Brien. We have five minutes so we will both have to be brief.

Mr. O'Brien has not asked for the draft document from Deloitte.

Mr. Tony O'Brien

I have.

He has asked for it.

Mr. Tony O'Brien


Has it given it to Mr. O'Brien?

Mr. Tony O'Brien

To be clear, I asked for its consent to provide it to the committee.

To be fair, that is not the question I asked Mr. O'Brien. Has he asked Deloitte for this document?

Mr. Tony O'Brien


Why did he not ask for it in preparation for this committee meeting?

Mr. Tony O'Brien

Because, frankly, I would never seek to look at the drafts. I am only interested in the final product.

Here we have a wee problem because a controversy arises over differences between the draft document and the final document. I would have thought, on the basis of simple common sense, that if I were in Mr. O'Brien's shoes, as the Accounting Officer, and wanted to satisfy my mind as to what happened or the significance of it, the first thing I would want to do would be to see the draft document. I am astonished that Mr. O'Brien has not requested it for himself.

Mr. Tony O'Brien

I have done and I have referred to it in my opening statement. I requested the reviewer's response to the allegations made. I have shared that response.

Again, that is not my question. What objection does Mr. O'Brien have to reading the draft report?

Mr. Tony O'Brien

I have no interest in the draft report because what I asked for was the report.

Mr. Tony O'Brien

It is a bit like the circumstances whereby, later on, we are going to hear from the Comptroller and Auditor General as to his report.

Mr. O'Brien is not going to use up my five minutes with this.

Mr. Tony O'Brien

If the Deputy does not want me to answer the question, I will be happy not to.

Let me come to the second inconsistency in Mr. O'Brien's account. He referred to Deloitte telling us it was not part of its terms of reference to conclude whether the shortfall in funding was consequent to the whistleblowing. He has said that, at the last meeting of the Committee of Public Accounts he attended, there was a dispute around figures and that he would look at those figures. As a member of the committee, like the Chairman, I believe it was always completely clear that the dispute was not just over the level of funding but also, and more to the point, the relationship between cuts or levels of funding and the whistleblowing. Therefore, it is absolutely disingenuous of Mr. O'Brien to pretend that was not the case. Why were the issues of funding and whistleblowing not part of the terms of reference for Deloitte? Why did Mr. O'Brien not insert these as part of its work? It went to the very heart of the dispute.

Mr. Tony O'Brien

I think we look at this in two parts. First, is there evidence that there was a disproportionate application of cuts to the service provider? There is not that evidence. If, however, we wanted to have an analysis of the motivations and actions of a variety of individuals and conversations they might have had, which I know form part of the concerns of the service provider, it would require a degree of compellability that I cannot give to myself or Deloitte but which rests with the commission of inquiry. Given that we are talking about staff who did or did not take actions over quite a long period of time, some of whom are not currently employed-----

Excuse me. Mr. O'Brien referred in his statement to an appearance he made before this committee in February 2016. At that stage, these matters of public concern — the whistleblowing and the funding — were well ventilated and known. It seems to me that it was quite a deliberate decision not to ask Deloitte to examine the relationship between the whistleblowing and the funding. I believe Mr. O'Brien made an active decision on that, yet he says he did not do it because it is a matter for the commission of investigation. The commission was not established until March 2017, a year later.

Mr. Tony O'Brien

We met on a Tuesday in February 2016, the day before the general election was called. The previous evening, the Government announced its intention to establish the commission of investigation. We were all aware of that on the day of that meeting. What I am saying to the Deputy is-----

When did the commission become active? I refer to the terms of reference.

Mr. Tony O'Brien

The commission became active when the relevant legislation was passed. To be clear, Deloitte could never get to the heart of the motivations behind any decisions made. What I was looking to establish was whether, on the basis of the funding provided, there appeared to be evidence that this service provider-----

Mr. O'Brien has said that repeatedly.

Mr. Tony O'Brien

But the Deputy is not hearing me.

Mr. O'Brien, what you need-----

Mr. Tony O'Brien


Questions and answers through the Chair.

Mr. O'Brien will not avail of the opportunity to talk down the clock, as prepared as he is, for those purposes.

Mr. Tony O'Brien

I am prepared to stay here all day if the Deputy wishes.

I thank Mr. O'Brien.

Mr. Tony O'Brien

I am not talking down any clocks but I do-----

The Cathaoirleach has ruled that we have five minutes.

Through the Chair.

What I want you to explain to me-----

Mr. Tony O'Brien

Do I get to answer through the Chair?

Put the question.

I want the Accounting Officer to explain how it is that he omitted from the terms of reference of a review the core question that animated discussion at this committee, the core issue around funding, which upset and distressed the service provider. It believed it had been punished, in funding terms, and that the decisions were wrapped up with the issue of whistleblowing.

Mr. Tony O'Brien

For technical clarity, I am not the Accounting Officer; I am the accountable person. It is a minor technical issue.

That is deeply pedantic but carry on.

Mr. Tony O'Brien

I am in a room where pedantry is, of course, important.

The Accounting Officer is the Secretary General of the Department of Health.

Mr. Tony O'Brien

He is, yes.

Pedantic commentary does not take from the seriousness of the questions, and the accountable person might bear that in mind.

Mr. O'Brien should answer.

Mr. Tony O'Brien

The accountable person does very much bear it in mind. The first question is whether there is evidence that the service provider was disproportionately treated. Only if there is evidence of that does the question of why become relevant. There are two relevant points here. First, I need to establish whether there is evidence that the service provider was treated unfairly in financial terms. At the moment, I do not see any. On the second question, if the answer to the first was “Yes” no external reviewer without powers of compellability could possibly reach a point at which it could give me an opinion on that. That is properly a matter for a statutory body with the ability to compel witnesses to answer, such as the one that is now sitting-----

May I put it to Mr. O'Brien that, as the accountable person and person whom I presume is in charge of the HSE, he is not without capacity to establish exactly what is going on within his own organisation and its decision-making organs.

Mr. Tony O'Brien

Deputy McDonald is referring to allegations about decisions that were made or not made in 2009 and 2010.

Mr. Tony O'Brien

I was not even in the HSE in 2009 and 2010 and some of the people who were there then no longer are now. That is at the heart of this matter and this is one of the reasons, as the Vice Chairman outlined at the beginning and as this committee has reiterated, the statutory commission, the Farrelly commission, is the right vehicle for getting to the heart of this.

I thank Mr. O'Brien for confirming that. I will summarise his evidence as I heard it. First, before appearing before this committee today, which is specifically asking questions about the difference between the draft document and the final document, Mr. O'Brien has not yet sought a copy of that draft to read for himself. I find that remarkable. Second, the terms of reference for Deloitte consciously excluded any consideration or examination of a link between the whistleblowing and decisions on funding. Third, as the accountable person and as the person in charge, Mr. O'Brien does not seem to have considered it worth his while to make an effort to investigate for himself within his organisation whether there was any merit in the complaint of the service providers that they had been disadvantaged in any way by the whistleblowing. He has not told us otherwise. That is the summary of the evidence as I have heard it.

Mr. Tony O'Brien

I will respond to the final point if I may, because I believe it to be inaccurate. In responding to the request of the Chairman of the previous Committee of Public Accounts to have this issue examined, the evidence available to me does not support the contention that the funding to the provider was disproportionate or that it was treated differently from other service providers in that period.

Mr. O'Brien has not and did not sufficiently investigate that matter to arrive at that conclusion. As Deputy Cullinane has said, it is disingenuous of Mr. O'Brien to assert this at committee because he is, frankly, not in a position to make that assertion.

Mr. Tony O'Brien

I believe I am, and I have, and I accept that the Deputy disagrees with me.

I will ask one question on that point before calling on Deputy Murphy. Mr. O'Brien stated in his final summary that he remains of the view that the evidence in this report shows that the service provider was treated fairly in comparison with other service providers in the period under review. Did Deloitte examine the funding to other service providers?

Mr. Tony O'Brien

Deloitte had access to data. It did not examine the raw data, no, but it was provided with data about the funding given to other providers.

I have seen that Deloitte's brief was to examine the funding for this particular organisation. It was not commissioned to examine the funding of other organisations. Is that correct?

Mr. Tony O'Brien


Deloitte would not have been able to make a comparison as to whether the organisation was treated fairly or unfairly in respect of other organisations, because it was not asked to examine the funding of other organisations. Mr. O'Brien, however, has come to the conclusion that the provider was treated fairly in comparison with other similar service providers. Deloitte, however, did not carry out an examination of the funding of all of the other providers. Am I right in saying that?

Mr. Tony O'Brien

The Chairman is correct in saying that. The point is that the committee did not ask for a report from Deloitte; it asked for me to examine it. I have access to the data and I have previously shared those data. This was a time, in the period around 2009, when every service provider was experiencing cuts. Many of those cuts were in the form of reductions in funding matched by corollary reductions such as FEMPI and so on. Every service provider had cuts. Is there evidence to show that this provider was treated disproportionately compared with others? No.

I call Deputy Murphy.

Mr. O'Brien commissioned the report. Did he then devolve responsibility for engagement between Deloitte and the HSE to somebody else?

Mr. Tony O'Brien

Yes. I wanted Deloitte to source its information from the relevant part of the HSE.

Mr. Tony O'Brien

That is now a community health organisation, CHO, that encapsulates Waterford. It is headed by my colleague, Ms Aileen Colley, who only joined the organisation in 2015.

She would not have had a responsibility at that point.

Mr. Tony O'Brien

She had the responsibility for providing the information that Deloitte sought and for providing it with feedback on its questions. She was not the officer in charge in the time period concerned here.

On page 2 of his opening statement, Mr. O'Brien states that Deloitte exchanged draft documents with both parties. He then goes on to say that this is the norm and that it is reasonable to expect that both parties under review would have the opportunity to comment and to offer feedback for consideration. That happened with the HSE and with the service provider. The service provider was very happy that the 15-page report had reflected matters accurately; it had input and said so. We are then told, however, that a particular table was removed to avoid confusion. Who exactly was going to be confused by that table? Only a limited number of people were going to be reading this report. I would have thought that, for such a change to be made, something a service provider found to be objectionable would have been something of which an independent reviewer would have taken very serious note.

Without a copy before us, it is impossible for us to adjudicate upon it. Essentially, what happened here is there was some kind of engagement between the HSE and Deloitte. We probably do not need to see the table as much as we need to see that engagement on the changes that were to be made to the report. That would tell us an awful lot.

Mr. Tony O'Brien

Deputy Cullinane reflected upon this earlier and I did not get a chance to respond to him. If the committee wishes to have access to correspondence between any part of the HSE and Deloitte, I have no objection. The committee can frame that request to me and subject to the views of the commission, as I will only provide information if the commission does not object, the committee can have that access. What I cannot do is give the committee Deloitte's product without Deloitte's consent. Deloitte has indicated that it will consider a request from the committee. I have no objection to that request but I would suggest that Deloitte also seek clearance from the commission, which I think the committee would want it to do.

I ask that we make that request and that we tie it down to this particular net point. I have a further question. I noted the HSE's comment, and I read the language carefully, which states:

The [Public Accounts Committee] has not asked Deloitte for access to the draft report. If such a request came, we would consider the request, but it is not normal to provide access to anything other than the final report.

What process would Deloitte have to go through? What consideration would have to go into that?

Mr. Tony O'Brien

I have not had that discussion. I would speculate - and I can only speculate - that Deloitte would want to have regard to the possible implications for future processes and reviews if it were the case that not only the final product but also various iterations of its draft reports were subject to general review. This process more or less mirrors, in my view, the type of process that the Comptroller and Auditor General goes through with the special reports, where there will of course be earlier versions, there will be opportunity for comment, and they generally include the views of the Accounting Officer, such as the ones we have today. I do not think that they would normally expect that the committee or indeed anybody else would want to go through these line by line to look at what changes took place between the first and final drafts. What I think Deloitte would consider, then, are what the future implications would be for its work more generally, as a reviewer and auditor, were all of its earlier drafts to be published in the same way. That would be the consideration. It is not my consideration, however, but Deloitte's.

Finally, where would Deloitte have got the material for the table?

Mr. Tony O'Brien

Which table?

The table that was omitted from the final report.

Mr. Tony O'Brien

Deloitte only had two sources of information of which I am aware, although it could have gone to source material like annual financial statements and so on. My understanding is that it sought input from both the service provider and the CHO.

Did Deloitte construct the table from that exercise?

Mr. Tony O'Brien

I do not know.

It would be quite useful to get that information. If we cannot have the table then please supply us with the input and we can assemble it ourselves.

We note the requests.

Can I ask a supplementary question?

No. Deputy Connolly is next. In fairness, another speaker has indicated. There will be time for Deputy Cullinane to ask a second question.

I call Deputy Connolly and Deputy Cullinane can comment after she speaks.

Mr. O'Brien commissioned this report but not in a proactive manner. Is that right?

Mr. Tony O'Brien

I do not understand the question.

Did Mr. O'Brien commission the report because he felt there were serious questions about the funding?

Mr. Tony O'Brien

No. There were serious questions asked and I felt that it would be useful to me to have an external view on those questions.

The external review arose from the service provider being very unhappy and telling the Committee of Public Accounts it was under-resourced and the figures given were not accurate. I have paraphrased what was said. The action came from the service provider coming forward and stating it was most unhappy with what has been said. Is that right?

Mr. Tony O'Brien

The sequence of events specifically-----

Is that right? Does Mr. O'Brien disagree with me?

Mr. Tony O'Brien

I am not disagreeing with the Deputy but her question is incomplete.

What have I left out?

Mr. Tony O'Brien

The Deputy has left out the fact that I went to meet the service providers and it was in the course of that discussion that I suggested we would use an independent external review as part of my consideration.

Mr. Tony O'Brien

I became aware from the discussion of the nature of their concerns and I felt that was the best approach.

I heard that but it came from the service providers. As a result of their concerns, Mr. O'Brien suggested an independent review and that is where it went.

Mr. Tony O'Brien


Did Mr. O'Brien have complete control of the terms of reference and did the service providers have no input?

Mr. Tony O'Brien

I cannot recall whether they were shared with them first.

Mr. O'Brien might clarify that.

Mr. Tony O'Brien

Yes, as the commissioner, I had control over the terms of reference.

Mr. O'Brien had complete control over and set the terms of reference. Notwithstanding that, and I will call them the service providers rather than whistleblowers, the service providers engaged with this process.

Mr. Tony O'Brien


They confirmed that they were happy enough with the draft report up to May of this year.

Mr. Tony O'Brien

I have no knowledge of that.

The document or letter that we got was sent to Mr. O'Brien. Is that right, Chairman?

Mr. Tony O'Brien

I know what they have said to the committee and I know what is in the letter but I do not know what happened in May.

Listen to me. That is not what Mr. O'Brien said. Their letter was sent to Mr. O'Brien, where they set out their concerns. They set out, clearly, that they saw a draft report in May. They were happy enough with the draft report, if the word "happy" is appropriate. They raised no issue in May. Is that right? Is Mr. O'Brien aware of that?

Mr. Tony O'Brien

That is what their letter says.

Good, great. After May, the draft report was changed and they had no input.

Mr. Tony O'Brien

The draft report was not changed. A subsequent report or further draft was generated.

One second, please.

Mr. Tony O'Brien

The original draft, I presume, remains extant.

We are not going to do this. We are going to answer questions.

Mr. Tony O'Brien

I am attempting my best.

A draft report was done in May. The service providers talked with delight and said, "That is okay." That report is not the final report. They are not consulted.


It is difficult to continue with the interruption.

Sorry. I know the Deputy is talking about one meeting.

The service providers were not consulted, Mr. O'Brien, after that but the health executive is consulted. Is that right?

Mr. Tony O'Brien

I do not know the answer to that.

Mr. O'Brien had better know the answers. He is here to answer questions. He commissioned-----

Mr. Tony O'Brien

I am only able-----

Mr. O'Brien, let me finish. Mr. O'Brien commissioned an independent report-----

Mr. Tony O'Brien

The Deputy has already asked me one question which she has not allowed me to answer.

Answer it, please. What question?

Mr. Tony O'Brien

The answer is that I am only in possession of the final report. I was not privy to the internal processes of Deloitte and I cannot answer things that are not within my knowledge.

So we are going to find out from the processes what happened after that. Mr. O'Brien does not know if, after May, the service providers were contacted again.

Mr. Tony O'Brien

What I can tell the Deputy is that I shared the letter, from the service provider, with the reviewers and their response is what I have read into the record. I know-----

On the record, is Mr. O'Brien sure that no obstacles will be put in the way of Deloitte furnishing us with the draft report that we are all talking about?

Mr. Tony O'Brien

Deloitte will have its own considerations.

Listen to my question. Is Mr. O'Brien sure that he will put no obstacle in the way of Deloitte?

Mr. Tony O'Brien

I think I have already answered the question, numerous times.

Good. I just want it clarified. Lots of things have been said over many years.

Mr. O'Brien's conclusion has been very ably gone into by Deputy Cullinane. Mr. O'Brien's letter dated 26 September 2017 was sent to Mr. Lenihan. Mr. O'Brien speaks directly about the Deloitte report when he states, "Consequently, the Service Provider was not treated either unfairly or disproportionately when compared to other similarly funded organisations." Does Mr. O'Brien stand over that sentence today?

Mr. Tony O'Brien

I do.

It is good that he is clear. How did the High Court case arise? Who took the case?

Mr. Tony O'Brien

I need to choose my words carefully.

Mr. Tony O'Brien

No, I absolutely do.

Nothing hangs on this matter. I simply want to know who brought the case.

Mr. Tony O'Brien


Mr. Tony O'Brien

-----there are ways in which one can and cannot refer to the plaintiff in this case.

Mr. Tony O'Brien

I just want a moment to make sure that I refer correctly.

Mr. Tony O'Brien

The person, commonly referred to as Grace, is the plaintiff in a case that was taken in relation to this matter, which resulted in a High Court settlement.

Good. A case was taken on that person's behalf. We are not going into any of that. As part of the settlement a figure in or around €600,000 was allocated, as part of an overall package, for her care in the previous years, that is, to pay for the care that she had received. Is that right?

Mr. Tony O'Brien

That is correct.

Good. Is Mr. O'Brien seriously telling the Committee of Public Accounts today that the health executive provided sufficient funding for the care of Grace in that service provider from 2009 onwards and that the HSE magnanimously gave €600,000 on top of that in addition to providing for her? Is that what he is telling us?

Mr. Tony O'Brien

No, I do not believe I have told the committee that at all.

Does Mr. O'Brien accept that the health executive did not provide sufficient funding for this service provider for the very special case and very special person that they had under their care?

Mr. Tony O'Brien

I need to give a slightly extensive answer to that. Will I be permitted to do so, Chair?

Yes. As it is a High Court issue, Mr. O'Brien wants to be clear and I am also a little bit confused.

I shall simplify the matter. The service provider took over the case of this special person. Subsequently, there was a retrospective allocation for her care. I read from that, as would any person listening or watching, that the retrospective allocation was made because insufficient funding had been provided for her care from the health executive to the service provider. Does Mr. O'Brien now accept that insufficient money was provided for her care?

I urge Mr. O'Brien to deal with the question.

Mr. Tony O'Brien

I am happy to do so but I need to be allowed time to do so fully and correctly.

Mr. Tony O'Brien

The issue of the ongoing historical funding of any service provider is not the same thing as the approach we would take to the settlement of a case taken by an individual plaintiff. It is important to stress that this case was not taken by the service provider but taken by the plaintiff. Again, before this committee in 2016, I indicated that in relation to those persons who had been harmed and were the subject of the Devine review, the executive - the HSE - would take a particularly positive approach to ensuring that appropriate restitution or compensation was paid for the failings in care, and the consequences of failings in care, in the south east, related not just to Grace but to a number of people. Consequently, the approach to this case was not a hostile defensive approach but one, working with the State Claims Agency, which sought to put to right all of the issues regarding the deficiencies in the care that had led to the harm suffered by this person. Consequently, it was right that the person would be provided with restitution which also would compensate the person for the cost of the care the person had received. That is one answer.

This has been explained many times by Mr. O'Brien. I am under no illusion, no more than any other person, about the case, who took it and the settlement. I am specifically talking about the piece of the settlement that was paid to the service provider which did not take the case.

Mr. Tony O'Brien

Perhaps if I get to answer the balance of the question-----

Mr. Tony O'Brien

I am sorry-----

The service provider.

Mr. Tony O'Brien

-----but if I am not allowed to answer questions there is no point my being here.

Mr. O'Brien can take as long as he wants to answer but I need to ask my question.

Mr. Tony O'Brien

The Deputy has already asked the question.

Through the Chair, please.

Through the Chair, leaving out what Mr. O'Brien has said and I am not going into it-----

I am taking a specific part of that settlement that went to the care provider - the service provider.

I am asking Mr. O'Brien. What I have read from his answer is, "No, we are not acknowledging that this was because we underfunded the service. That is because we decided to take a particular review of a case." I put it to him that clearly, it was an acknowledgement that it was an underfunding of the service because it was not like any other service. It had a very special person in its care who needed very special attention at a high cost.

While I also want to know the specific cost for the Deloitte report because I have forgotten the figure, I shall finish with a specific question. Is that not a clear acknowledgement that the service had been underfunded, it had been left to care for Grace without proper funding from the Health Service Executive and that is why the HSE gave that portion in the settlement?

Regarding the service provider, please.

Mr. Tony O'Brien

Which was the part of the answer that I intended to go on to.

I understand what the Deputy is saying. Many members of this committee and those who monitor it closely understand the details relating to the High Court, separating the Grace case from the service provider and who took the case, but the people watching do not know the details. This is why I am allowing more context. It is not for our benefit. We understand.

The Chairman can-----

It is for the people watching. This is not coming out of the Deputy's time.

It is probably all relevant though.

We are the Committee of Public Accounts. There are people watching this meeting and trying to-----

What is relevant for us is the section. That is my question. I do not want the issue hidden behind something else.

Mr. O'Brien will answer the question.

Great. He can take all the time he wants.

For those who watch the committee, it is important to get some background to understand the specifics that we are familiar with but that the public do not know.

That there not be evasion is the Deputy's point.

No. He will answer the question. He has given some background for the benefit of viewers who do not know the details. He will give the specific answer to the specific question. That is guaranteed.

Mr. Tony O'Brien

The service provider in question provides a number of services to many clients, all of whom have particular and specialist needs, including this client. That is the nature of this service provider. In the period in question, going back to 2009, it would not have been the norm for the fully encapsulated costs of each individual being cared for to be provided in a separate account. Like most section 39 organisations, this organisation was funded broadly and globally, but also with some restricted funds and some earmarked funds, for a range of services that were provided under a service arrangement similar to some in the discussions that we will be having later. In that period, and taking account of the financial position of the service provider, the service provider was being funded at a level that was sustainable for it.

There are two separate issues. The decisions at the time were in a particular context. Was the service provider being underfunded? Was it being forced into deficit? What was the overall financial position? The types of decision being made are made in that context all of the time. In this particular case, it is possible to calculate the total cost of care that was provided. With the benefit of the knowledge of the Devine report and in the context of a High Court case and the position that I said we would take, that settlement was agreed. That does not amount to a statement that, in the round, the service provider was being underfunded.

That is a subtle difference.

There is no difference. I will not take the time of my colleagues, but that reply was evasive. I would go so far as to say "shocking" in its deliberate evasiveness. I will leave it at that for my colleagues.

Mr. Tony O'Brien

I believe that I have answered the question.

Fine. It goes without saying that the transcript of everything said will be sent to the commission for it to look into the matter.

Before the next Deputy speaks, I wish to clarify a point. Mr. O'Brien referred to examining the Grace case, in respect of which a settlement of €600,000 was approved by the High Court, but he also referred to other cases. Are more cases coming? How many are in the system? We know of one. This is the first time that I have copped that there might be more in the system. Has the HSE or State Claims Agency made provision? Is there any other current case?

Mr. Tony O'Brien

I would have to get that information for the Chairman from the State Claims Agency. I am happy to do so but, at the time and given the number of people reflected in the Devine and Resilience Ireland reports, I would have expected that there could have been a number of claims.

Given that Mr. O'Brien referred to a number of other claims this morning and he does not-----

Mr. Tony O'Brien

I did not put it in a way that said they were extant. I talked about what our approach would be to any claim arising from persons whose care was the subject of the Devine report or the Resilience Ireland report.

Does Ms Colley, who is the CHO area 5 manager, know whether there are other cases separate from the Grace case? Mr. O'Brien has indicated that he does not know what is with the State Claims Agency, but Ms Colley seems to be the manager of CHO area 5 and should know whether there are cases from her area now with the State Claims Agency in respect of the service providers and the people referenced in the Devine report.

Ms Aileen Colley

Likewise, I would have to refer to the State Claims Agency.

If Ms Colley does not have the information in front of her, is she aware of other cases? A case cannot have got to the level of the State Claims Agency without the HSE sending it. The State Claims Agency is the HSE's agent dealing with the case. As the principal, the HSE should know what it has asked the State Claims Agency to deal with on its behalf.

Mr. Tony O'Brien

We would want to be careful in our answer-----

Mr. O'Brien wants to be exact.

Mr. Tony O'Brien

-----check it and give the committee a proper answer.

We do not want the details of specific individuals. That goes without saying. If Grace was just the precedent and more cases are following with the State Claims Agency, though, the committee needs to know. I just want to put it on the record. We ask that Mr. O'Brien send us that information.

I call Deputy Cullinane. We are nearly finished.

I will ask a number of quick questions because we are under time pressure. My first point is more for the Chairman, after which I will get to Mr. O'Brien. It is unacceptable for an Accounting Officer who appears before the Committee of Public Accounts, having been invited specifically to respond to queries and concerns raised by us and others regarding an earlier draft of a report, to say that he did not see the draft. The people who did see the drafts and corresponded with Deloitte are possibly not in the room, which means that we cannot put questions to Mr. O'Brien on which he could confer with those who were in correspondence. This point is for future reference. We have to do our job.

Who was the person or persons directly involved in liaising with Deloitte on the drafts?

Mr. Tony O'Brien

Ms Colley was the principal person, but there would also have been a senior operations member from the social division.

Was Ms Colley one of those in the organisation who had sight of the drafts?

Ms Aileen Colley

We all got drafts in May.

Not all. Mr. O'Brien did not.

Ms Aileen Colley

No, in terms of the stakeholders and the parties that had contributed to the report up to that point.

Was Ms Colley one of the HSE representatives who engaged with Deloitte and had sight of the drafts that are being referenced?

Ms Aileen Colley


Can Ms Colley answer my question, seeing as how Mr. O'Brien is unable to? The whistleblowers and service providers are saying that the HSE insisted that table 3.3 be removed. Did Ms Colley or any of her colleagues in any correspondence or exchange with the author of the report insist or ask that the table be removed?

Ms Aileen Colley

Certainly not in my correspondence to Deloitte.

Mr. O'Brien stated that, consequent to the Deloitte report, "the Service Provider was not treated either unfairly or disproportionately when compared to other similarly funded organisations". He compared it to other similarly funded organisations. However, Deloitte did not examine the funding of other organisations. Mr. O'Brien has acknowledged that €600,000 had to be paid retrospectively to this service provider for the care of Grace. To how many other organisations would an amount of that scale have been paid retrospectively?

Mr. Tony O'Brien

First of all, this was paid as part of a settlement with the plaintiff.

I accept that, but I am not talking about the settlement. I am talking about the amount of money. An amount of €600,000 was retrospectively paid to this organisation. How many other organisations of that scale and providing similar services received a figure anywhere near €600,000?

Mr. Tony O'Brien

I would have to check that figure. I do not have it with me.

Surely as the Accounting Officer Mr. O'Brien would know. With respect, surely he would have some idea. Is there even one?

Mr. Tony O'Brien

The Deputy will appreciate the size of the HSE, its diversity, how long it has been in existence and its predecessors-----

Mr. O'Brien does not know at this point in time.

Mr. Tony O'Brien


So how can Mr. O'Brien-----

Mr. Tony O'Brien

That was my first answer.

I am sorry. If Mr. O'Brien does not know the number today, how can he say that this provider was not treated unfairly or disproportionately compared with other similarly funded organisations? He has acknowledged that the HSE had to pay €600,000 retrospectively and he cannot give us one example of another organisation that received a similar back payment, yet he says that this provider was not treated unfairly. That does not chime.

Mr. Tony O'Brien

I am looking at the funding given and the decisions that were made year on year in respect of this organisation versus others. This is an organisation that was being funded, it appears, at an appropriate level. If I were to look at what the directors of the service provider said in their own annual financial statements - in this case, relating to the year ended 2013 - they point out: "The deterioration in results reflects the reduction in HSE funding (as a result of general cuts to the health service budget under the Government's economic recovery programme and the temporary increase in staff costs which were not funded by the HSE)." In other words, they acknowledge the context in which financial decisions that were being made affected them and other service providers. I suspect everyone who suffered those cuts regarded them as unfair. My examination was to determine whether they appeared to be applied in a reasonable and fair way across comparable organisations.

My final question is to the Chairman because I do no expect to receive a satisfactory response on this matter from Mr. O'Brien. The Deloitte report indicates there was a 6% cut rather than a 2% increase in the organisation's funding in 2010. When Mr. O'Brien and his colleagues were before this committee on previous occasions, they referred to a 2% cut. Misinformation was, therefore, given to the committee. On the specific point of whether or not this particular service provider was treated fairly or unfairly, it seems €600,000, which is a large amount for a service provider of that scale, was paid retrospectively. Mr. O'Brien is not in a position to name any other similar organisation that received a comparable payment. Is it reasonable, then, to determine that the organisation was not, in fact, treated fairly? Surely no reasonable person could conclude otherwise.

First, the commission is examining that issue specifically. As we know, the Waterford Intellectual Disability Association has made that exact point. Second, we in the committee can pass on information but we cannot come to a conclusion on this point without examining the funding of other organisations, which we will not be doing.

However, Mr. O'Brien has done so. My point is that he is categorical in saying, based on the information he has, that the service provider was not treated unfairly. Yet, he is not able to give even one example of another organisation of a similar scale that received a retrospective back payment of a comparable amount. That is a problem.

I agree. The Deputy should bear in mind that our discussions today on this particular point will be included in the transcript of proceedings and will go to the commission. Our deliberations will help it to draw a conclusion on the matter.

I understand that.

We cannot disprove Mr. O'Brien's conclusion without our undertaking a programme of examination, which we do not need to do. We will pass the information we do have on to the commission.

Our concern is that there will be no examination of other service providers and their funding.

The commission can look at other organisations. Is Mr. O'Brien in a position to say whether the payment of €600,000 was to Grace or to the service provider? There is one view that the money was to Grace for compensation and another view that the funding went to the organisation to cover the costs it incurred in respect of Grace's care. Will Mr. O'Brien enlighten us in this regard?

Mr. Tony O'Brien

Legally, the settlement was with the plaintiff, that is, the person referred to generally as "Grace". I must choose my words carefully in this matter because I do not want to disclose information I am not allowed to disclose. It would be my expectation that, through the plaintiff, it is highly likely the funding would have reached the service provider.

However, Mr. O'Brien cannot state that.

Mr. Tony O'Brien

I cannot do so at this point but I may have-----

Does Mr. O'Brien have a note on it? If the funding went to Grace and from her to the service provider, we understand why that might be the case. However, that means the HSE did not provide funding to the service provider even as a result of the findings concerning Grace.

Mr. Tony O'Brien

Paragraph 3.18 of the Deloitte report states that the matter of the €600,000 was dealt with through an adjustment to the payment schedule to the service provider. That was obviously done with the consent of the court. In other words, the funding is going to the plaintiff via the service provider.

Does that mean the money was given to the Waterford Intellectual Disability Association and from it to Grace? Or is it the other way around?

We are referring to the funding specifically for Grace.

Mr. Tony O'Brien

It is set out in paragraph 3.18 of the Deloitte review.

That information is coming up on screen. We just want to be clear where the payment went.

Mr. Tony O'Brien

May I speak to the Chairman and clerk briefly in private so that I am clear on what I can or cannot say?

Members may object to that approach.

Mr. Tony O'Brien

Otherwise I cannot answer the question. I need some guidance in this matter.

As Chairman, I advise Mr. O'Brien not to answer if it is unsafe to do so.

Mr. Tony O'Brien

There are reasons for the way in which the matter was done which are particular to this case.

I will read out paragraph 3.18.

It is reasonable for the witness to confer on a point of information.

Paragraph 3.18 states:

In April 2017 the HSE and the service provider agreed a funding position for 2016 and a payment schedule for 2017. Subsequently, the High Court approved settlement terms on 27 April 2017 which included a care settlement of €600,000 for past care and €120,484 per annum for the individual's care going forward. The HSE contacted the service provider on 19 May 2017 to update the previously agreed payment schedule and payment of the €600,000 was made on 2 June.

Is it safe for Mr. O'Brien to indicate to whom that payment was made?

On a point of information, the service provider, in correspondence to this committee, has already confirmed that the €600,000 went directly to it, with an estimated €70,000 a year on top of that. Is that correct?

Mr. Tony O'Brien

There was a particular legal status involved here which means that was the only way it could be done. However, I am not allowed in public session to say what that legal status is.

I propose that we go into private session.

I am concerned that we are seeing an evading of questions by the witness. There is a clear apportionment of money-----

Deputy, we must allow Mr. O'Brien to respond to the question that was put to him.

Will the Chairman allow me to finish? We have a clear apportionment of money going back retrospectively for the care provided to Grace. We are free to make an interpretation in that regard based on what is before us. I have put it to Mr. O'Brien that my interpretation, which he did not accept, is that this clearly amounts to an acknowledgement that the HSE had not funded the care provider properly. I have two quick questions, one of which concerns the cost of that report. Mr. O'Brien gave that figure to me before but I have forgotten it.

Mr. Tony O'Brien

May I ask that, before we go there, we deal with the point we were discussing?

Mr. O'Brien should allow Deputy Connolly to say her bit.

Mr. Tony O'Brien

If the committee is in a position to go into private session, I can provide the piece of information that was sought and which might be helpful to members.

We will decide that in a moment.

This is a public session in which we are practising openness and accountability, not the pedantry we referred to earlier.

Mr. Tony O'Brien

There are legal constraints in this case.

I am not straying beyond anything here.

Mr. Tony O'Brien

However, I would be doing so if I were to refer to certain matters.

Mr. O'Brien has already given his answer.

Mr. Tony O'Brien

No, I specifically said-----

I will allow Deputy Connolly to finish and will then come back to Mr. O'Brien's proposal.

I am asking, first, about the cost of the report. My second question relates to Mr. O'Brien's statement that the organisation in question was not treated either unfairly or disproportionately when compared with other similarly funded organisations. The service provider had a particular extra responsibility and, as such, was not comparable with other organisations. That is the point my colleague, Deputy Cullinane, is making. It is completely disingenuous of Mr. O'Brien to make that statement. How many other Graces were in the organisations with which comparisons are being made?

Mr. Tony O'Brien

I understand that Deputy Connolly does not agree with what I have said, but I maintain my position. Grace is one person who is in a particular set of circumstances. The health service and organisations like this service provider deal with many people who have very special sets of circumstances.

In Mr. O'Brien's view, would allowing him to speak in private session rather than public session facilitate a greater understanding of these matters for the benefit of members?

Mr. Tony O'Brien

Yes, and it would only take me a minute to tell members what I need to tell them.

I propose that we go into private session, which will require the Public Gallery to be cleared.

I will be guided by the Chairman but I remain of the view that we should be discussing this point in public session.

Deputy Connolly will have another opportunity to discuss the issue when we resume in public session.

I have said all I needed to say.

The case involved a High Court settlement, which may include confidentiality agreements. I ask that the Public Gallery be vacated save for staff connected with the committee's proceedings.

The committee went into private session at 11.20 a.m. and resumed in public session at 11.25 a.m.

We are resuming our discussion with Mr. Tony O'Brien. Before we went into private session I was reading paragraph 3.18 from the Deloitte report which specifically states: "Subsequently, the High Court approved settlement terms on 27 April 2017 which included a care settlement of €600,000 for past care and €120,484 per annum for the individual’s care going forward." The committee believes that settlement of €600,000 was paid to the service provider for past care which had not been paid up to that point. That is the committee's reading of the Deloitte report and it has been read into the record. That is the agreed view of the committee.

Could I get clarification on one point? I do not wish to delay the committee. Notwithstanding whether the service provider was treated fairly - we have gone over all of that - the bone of contention is that in a previous hearing of the committee reference was made to funding of the service provider and whether there was a net cut or an increase. I think it was said there was a 2% increase in 2010. Could Mr. O'Brien acknowledge that perhaps the information that was given in terms of how it was framed was not as accurate as it should have been?

Mr. Tony O'Brien

The table as it stands remains accurate but I would make the following point. I was asked to come in to the committee on the Friday and I came in on the Tuesday. Various pieces of information were pulled together at relatively short notice at my request so as to be able to interact with the committee. It was quite a frenetic time because the general election was taking place. To be honest, normally I would not have been prepared to come in at such short notice because I would not be as well briefed as I would wish to be. Had I the opportunity to spend more time on it, it is undoubtedly the case I would have given the committee more information which might have given wider context to that table. The table as it stands is not inaccurate but it perhaps is not the entire story which if I had had more time to prepare, I would have had more information and I would have given the committee more information.

Is that a long way of saying the 2% increase was in fact a 6% cut?

Mr. Tony O'Brien

No, it is not.

We are finishing up this session now.

For the avoidance of any doubt, could we make sure the correspondence I asked about, which Mr. O'Brien has agreed to provide, on the engagement between the HSE and Deloitte includes email correspondence?

Mr. Tony O'Brien

I think it would have to as most of it was done by email. If the committee formally requests it, we will put it together. We will clear it with the commission and then the committee can have it.

The sum of €600,000 was paid for past services.

The exact wording is that it was for "past care".

Is the sum of €120,484 which will be paid per annum an unusual payment for the HSE to make to a named person? Is that normal practice or is due to the individual circumstances of the Grace case?

Mr. Tony O'Brien

It would not be entirely unusual for there to be a settlement which is in the nature of periodic payments. In fact, in general there is a desire to move more towards that rather than one-off lump sum payments. It is quite common now for there to be periodic payments.

Are there other people in that situation? I presume the payment is for life.

Mr. Tony O'Brien

Yes. The more typical example would be in the case of a person who has an injury acquired at birth who may have long-term care needs resulting from cerebral palsy, for example, but there are other instances of harm arising from interaction with the health care system where we now see periodic payments instead of a single lump sum payment. There is intended to be legislation forthcoming which will make that the norm rather than the exception.

This is my last question. If there had not been a High Court case, would Grace's situation have been brought to the current satisfactory solution? In other words, was the HSE brought dragging and kicking to provide this service for Grace for the rest of her life?

Mr. Tony O'Brien

No, I think it would be fair to say that the approach adopted by the HSE and by the State Claims Agency was not an adversarial approach in this case, but the only way in which the HSE can make a settlement in a case of this type is via the High Court.

We will conclude this session on the Grace issue and the Deloitte report. We seek some follow-up correspondence and we did mention some other cases involving the State Claims Agency. We will put what we are seeking in a letter to Mr. O'Brien. It goes without saying that everything that has been said, including the transcript and all documentation arising as a result of our deliberations, will go from here to the commission for it to make its determination. We will suspend for exactly ten minutes and then we will proceed with the 2016 Comptroller and Auditor General Report, chapter 19, on the management and oversight of grants to section 38 and 39 health agencies.

Sitting suspended at 11.30 a.m. and resumed at 11.45 a.m.