Commissions of Investigation: Motions.

I move:

That Dáil Éireann,

bearing in mind the public concern arising from the circumstances surrounding the death of Mr. Gary Douch, a prisoner who had been placed in a holding cell in Mountjoy Prison;

noting that the matter raises serious issues about the management and treatment of prisoners in need of protection or special attention;

and noting that it is the opinion of the Government that a commission of investigation represents the most effective method of examining the serious issues involved;

further noting that a draft order proposed to be made by the Government under the Commissions of Investigation Act 2004 (No. 23 of 2004) has been duly laid before Dáil Éireann in respect of the foregoing matters referred to, together with a statement of reasons for establishing a commission under that Act;

approves the draft Commission of Investigation (Matters arising from the death of Mr. Gary Douch) Order, 2007, and the statement of reasons for establishing a commission of investigation.

The death of Mr. Gary Douch while in prison custody is a tragedy for which there can be no excuses. The Minister for Justice, Equality and Law Reform has apologised to the mother and family of Gary Douch. When the Government approved the proposal to establish a commission of investigation, the Minister wrote to her telling her of the decision to establish a commission of investigation. It was totally wrong that her son should have suffered the fate he did while in the custody of the State and the Minister has offered her his most heartfelt apologies. It is important for all of us that the necessary lessons be learnt and that future similar tragedies be avoided.

Let me set out the bare facts that give rise to this motion. On 31 July 2006, Mr. Douch expressed concerns about his safety while imprisoned on C wing of Mountjoy Prison. He was moved from C wing and placed in holding cell No. 2 in the B base area with five other prisoners. On the morning of 1 August 2006, shortly before 7 a.m., the holding cells in the B base area of Mountjoy prison were opened. When holding cell No. 2 was opened, prisoners filed out and it was noticed that one prisoner was missing. Staff entered the cell and discovered Mr. Douch. Unsuccessful attempts were made to resuscitate him and he was brought to the Mater Hospital where he was pronounced dead. The indications are that Mr. Douch had died as a result of an assault in the cell by a prisoner who was also there for his protection.

Within hours of hearing of the death, the Minister appointed Mr. Michael Mellett to carry out an independent inquiry into the circumstances surrounding the tragic death of Mr. Douch while in custody in Mountjoy Prison. In particular, he was appointed to establish what action was taken by the Irish Prison Service, management and staff to safeguard Mr. Douch; to clarify whether Mr. Douch had expressed special concerns about his safety; to establish what procedures were followed and their adequacy; to establish the procedures used to allocate prisoners to the cell in which Mr. Douch died; to establish the level of monitoring during the night of 31 July and morning of 1 August 2006; and to make any observations and recommendations he saw fit.

Mr. Mellett had previous experience in prison matters as a senior official in the Department of Justice, Equality and Law Reform but had moved on from the Department before his appointment to carry out this inquiry. He was therefore fully independent of the Irish Prison Service and the Department in carrying out his duties. He carried out his task in an exemplary and clearly independent manner and his report submitted to the Department in March 2007 outlines the unvarnished truth covering the issues set out in his terms of reference. It is because of the material he has uncovered that the Government has decided a statutory commission of investigation with extended terms of reference is warranted. Mr. Mellett accepted a difficult task at short notice and did an excellent job. I acknowledge publicly the work he has done.

Interim steps have been taken to reduce the risk of a recurrence of an incident of this type. The holding cell where the death occurred has been permanently taken out of service. On 2 August 2006, Mr. Mellett recommended as an interim measure that where a prisoner seeks special protection alleging a threat from another prisoner and the prison authorities accept that there may be some substance to the allegation, the threatened prisoner should be removed to a single occupancy cell for at least 24 hours. This is to allow time for the prison authorities to investigate the source, nature and seriousness of the threat, evaluate the risk to the prisoner and thus inform decisions on how best to deal with the matter. The Minister accepted that recommendation and directed that it be implemented immediately.

On 17 August 2006, the Minister issued two new committal directions, which had the effect of diverting committals from Carlow, Kildare, Kilkenny, Laois, Offaly and Westmeath away from Mountjoy to the Midlands Prison and committals from Louth, Meath, Monaghan, Wexford and Wicklow away from Mountjoy to Wheatfield Prison. This direction reduces the danger of Mountjoy Prison being overwhelmed by any sudden surge of committals.

As in all such cases, the Garda Síochána was called to Mountjoy Prison and initiated a criminal investigation into the death of Gary Douch. A file was sent to the Director of Public Prosecutions and as a result an individual has recently been charged with causing the death of Gary Douch. The progress of those criminal proceedings is a matter for the Director of Public Prosecutions and the judicial arm of the State. The Minister has no role in those proceedings but is under a duty not to do anything or reveal any information that might prejudice criminal proceedings. Although it was his intention to publish the report of Mr. Mellett, the Minister has received strong advice from the Attorney General that he should not do so. The Minister is constrained in what he can say about the events of that night. I trust that Members of this House will exercise similar caution when discussing the case.

I can say that Mr. Mellett identified a number of systems failures within the prisons system that may have contributed to the death of Mr. Douch. The findings of the report have serious implications for the future management of our prisons. It is clear that a review going beyond the scope of the Mellett investigation's terms of reference is warranted. A detailed sworn investigation is essential to address matters of public importance. The gravity of the matter is such that the Minister and his Government colleagues are of the view that a full statutory commission of investigation is required to address the matter.

The Commission of Investigation Act 2004 provides for the establishment of a commission of investigation to investigate any matter considered by the Government to be of significant public concern. Such commissions are completely independent and generally hear evidence in private. A commission may direct any person to attend before it to give evidence, examine witnesses on oath and direct that documents be produced. A commission can authorise a person to enter premises, inspect documents and take copies and it is an offence to obstruct such a person in carrying out his or her duties. It can direct costs to be paid in certain circumstances. It is an offence to make a false statement to a commission. A person giving evidence has the same immunities and privileges as a witness in court. The report of a commission must be published unless otherwise directed by a court.

The matters to be investigated are serious and may have implications for the good name and reputation of individuals. It is important that the investigation is pursued in a proper legal framework, where the commission has the full panoply of legal powers required to establish the truth and where procedures ensure that the constitutional rights of individuals are respected.

While the terms of reference may only be finalised after the resolutions have been passed and the order made by the Government, the intention is that the terms of reference would require the commission to carry out any further investigations it considers necessary into the circumstances surrounding the death of Mr. Gary Douch, to examine the management, including transfers, and in particular the chronology of treatment, including medical treatment, of the individual identified as Prisoner A, taking into account all available information and documentation in that regard and examining all persons whose testimony may throw light on the issues that arise.

The intention is that the terms of reference would require a review of policies, practice and procedures regarding the safety of prisoners in custody whether in prison, a place of detention, the Central Mental Hospital or another institution and, in particular, a review of protocols for those prisoners with specific behavioural problems or vulnerability such as psychiatric, violent or disruptive prisoners and those in need of additional protection. It is intended that the terms of reference would require the commission to make recommendations on what policies and/or legislative measures should be adopted in the future for the management and treatment of such prisoners with a view to promoting the safety and health of prisoners, providing a secure and safe environment for prisoners and persons dealing with prisoners, to safeguard the public interest, to ensure that lessons are learnt and that recurrence of such tragedy is prevented and to report to the Minister for Justice, Equality and Law Reform by 31 December 2007.

Prisoner A is accused of causing the death of Mr. Douch. Mr. Mellett's report makes it clear that some of the most significant questions relate not so much to the victim and his management within the prison system but to how Prisoner A was managed and treated while in State custody. Both prisoners were under protection and a detailed investigation is required into how prisoners requiring protection are managed. We are at one in wanting to see a prison system in which prisoners are kept in safe and secure custody. It is important that we establish what happened, learn from the experience and take corrective action to ensure that it does not happen again.

Subject to the approval of the resolution by both Houses of the Oireachtas, the intention is to appoint Ms Gráinne McMorrow, an experienced senior counsel with a background in mental health and criminal law and experience of both the UK and Irish systems, to be the sole member of the commission of investigation.

The Minister, with the approval of the Minister for Finance, made a proposal to the Government that a commission of investigation be established. The Government has agreed but before the necessary order can be made a draft of the proposed order and a statement of reasons for establishing the commission must be laid before the Houses of the Oireachtas and a resolution approving the draft must be passed. The draft order has been so laid and provides that the Minister for Justice, Equality and Law Reform is authorised to set the terms of reference, to appoint the members of the commission and to receive the commission's report in due course. The Minister has already advised the House of the proposed terms of reference and proposes to appoint Ms Gráinne McMorrow as the sole member of the commission. Once the appropriate resolution has been passed by both Houses and the order made by the Government the Minister will immediately set about establishing the commission.

The Minister cannot go into detail on the circumstances surrounding the death of Gary Douch. I do not want to anticipate or pre-empt the findings of the commission of investigation. A point that strikes one reading Mr. Mellett's report is his account of the physical conditions in Mountjoy Prison, particularly the holding cell. The Minister has always made it clear that he is not happy with the conditions in Mountjoy Prison. Conditions there were equally bad, if not worse, when the present Government first took office. On becoming Minister for Justice, Equality and Law Reform in 2002 one of the first official engagements of Deputy McDowell was to visit Mountjoy Prison. The Minister said that it was an eye opener. He found a Victorian prison, built in 1850, in a poor state of repair, overcrowded and lacking adequate facilities such as in-cell sanitation. Some 30% of the Irish prison population was incarcerated within the 20-acre campus and there was no room for expansion.

Until the Minister took office there was much talk and very little action about Mountjoy. Deputy McDowell was the first Minister with responsibility for justice to tackle the problem seriously and propose the obvious solution of building a new prison facility on a green field site rather than trying to fiddle around with a 150 year old building on a cramped site in a high density urban area. The same people who criticise conditions in Mountjoy criticised that proposal. Those same people, many of whom are in this House, continue to criticise every step the Minister has taken to make progress on what will be the most important prison development project on this island since Mountjoy was first mooted. I am proud to say that we have now reached the stage where we have an excellent site and are negotiating with a preferred bidder with a view to signing a contract. There is every reason to believe that work will start before the end of this year with the new facility coming on stream in 2010.

The replacement of Mountjoy, along with other major capital works, will mean that the indignity of slopping out will come to an end, every prisoner will have a single occupancy cell with in-cell sanitation, there will be no drugs flying over the walls and there will be an extensive range of facilities to encourage the rehabilitation of prisoners. There will be a range of facilities with different levels of security allowing prisoners to be kept in separate regimes depending on their categorisation and based on an assessment of risk.

Before this Government took office in 1997, the Irish prison system had suffered from a lack of capital investment and a lack of attention. The Minister devoted much personal energy to tackling and solving the chronic overtime problem in the Irish Prison Service as well as the need for substantial capital investment, allowing a radical transformation of the Irish Prison Service and its estate. That capital investment is well advanced and the benefits will be with us for years to come.

In the period since taking over as Minister in 2002 more than €280 million has been invested in prison buildings. The Irish Prison Service is currently engaged in a major capital building programme involving the replacement of the four prisons on the Mountjoy campus, namely the Mountjoy male prison, the Dóchas centre, the training unit and St. Patrick's Institution, with the Thornton campus, Portlaoise Prison, Cork Prison and the older parts of Limerick Prison. Between them, these comprise nearly 40% of the entire prison estate.

The new prison proposed for Thornton Hall is being procured on a value for money public private partnership basis. The new campus at Thornton will have a total capacity of approximately 1,400 spaces including an assessment centre, high, medium and lower security facilities and step down facilities. The campus design is regime-orientated and will allow for the development of progressive rehabilitative programmes, the introduction of enhanced educational and work training facilities and the introduction of single person cells with in-cell sanitation to end the inhumane practice of slopping out. In addition, the new prison complex will also be constructed with an extensive perimeter to prevent drugs being thrown over the wall, thus making it possible to have a drug-free prison regime.

A consortium was recently selected as the preferred bidder to design, build, maintain and finance the new prison facilities. The Government has given its approval for the project to proceed to the contract phase, which will be signed subject to the successful conclusion of detailed negotiations. The intended target date for completion of the replacement Mountjoy complex is 2010.

On the development of a new Munster prison to replace the existing Cork Prison, the Government has recently approved the Minister's proposal to construct a new prison built on a site at Kilworth, County Cork. The need to replace Cork Prison is indisputable. The prison was first opened in 1806 as a military detention barracks and subsequently converted for civilian use in the 1970s. Conditions are far from ideal in the prison and the vast majority of prisoners have to slop out on a daily basis.

The Minister of State's 15 minutes have concluded.

His five years have concluded.

Turning back to the establishment of the commission of investigation, the death of Gary Douch should not have happened. It is the prerogative of this House to approve the establishment of a commission of investigation to determine the full circumstances surrounding his death and to find out what went wrong and what needs to be done in the future to prevent a recurrence of such an event. I strongly believe that a commission of investigation is warranted in this case. It provides the most appropriate and effective method of bringing to light the full circumstances of the case. I urge Deputies to support the motion before the House approving the draft order for establishing the commission.

Fine Gael will support the establishment of a commission of inquiry into the tragic and unfortunate circumstances of the death of an inmate in Mountjoy Prison, Mr. Gary Douch. I am sorry, however, that the Minister of State had to lace his speech on such an unfortunate matter with the usual rhetoric of the Minister for Justice, Equality and Law Reform. He is obliged to do it but the nonsense in the latter part of the speech about the prison building record when, as a result of overcrowding in Mountjoy Prison this inmate was murdered, was distasteful. It was not the appropriate time to give a prejudiced and selective history lesson about the prison building programme.

This Minister for Justice, Equality and Law Reform has put himself out on a limb on many occasions and, unfortunately for him, many of the issues he has spoken about have rebounded on him. In political terms, since he took office in 2002, and the electorate will adjudicate on this in the next three weeks, he will be seen to have presided over a justice system that has experienced a massive increase in murder rates, an inability to tackle gangland drug barons head on and falling crime detection rates. All of the Minister's speeches and rhetoric should be examined in that context.

I did not intend to mention any political matters and that is the only one I will address in response to some of the rubbish supplied to the Minister of State, rubbish that we have had to listen to for five years.

The new prison is relevant.

The Minister of State is good at buying and selling land but we will hear a lot about value for money in the next three weeks.

I welcome the Government's decision to establish this commission of investigation. I compliment Mr. Michael Mellett for exposing in a clear, concise way the problems associated with the experience of Gary Douch, the tragic circumstances surrounding his death and the inability of the prison system in Mountjoy to cater for inmates in that category. The governor of Mountjoy at the time, Mr. Lonergan, indicated that chronic overcrowding had resulted in the release at that time of 110 prisoners due to the inability of the prison system to cope. The Minister closed two prisons before he built any others. He put the cart before the horse when dealing with the prison building programme.

There are many people in prison who should not be there. Those who have not paid a fine should be subject to an attachment of earnings or social welfare benefits rather than being sent to prison from where they may emerge as hardened criminals. Many criminals learn and ply their trade in the prison system and that must change.

The Commissions of Investigation Act 2004 is an ideal vehicle by which Gráinne McMorrow SC will be able to do her business quickly and efficiently, building on Mr. Mellett's work. Mr. Mellett's report was an example of how we can work more effectively in difficult circumstances. He got to the heart of the matter quickly and presented a report to the Tánaiste who has decided that the issues involved are so important that they require an investigation by an experienced senior counsel who will make recommendations on this matter within six months. That is the sort of effective decision making that should be extended into other areas of investigation, instead of letting them drag on for years.

Deputy Jim O'Keeffe, the Fine Gael justice spokesman, highlighted the need for this in August 2006, a few days after the attack on Gary Douch on 31 July. Consistent with our calls since then for an independent inquiry, I welcome the opportunity to reflect on the prison building programme, the level of overcrowding in prisons that has caused many of these problems and the fact that we now have an effective mechanism under the Commissions of Investigation Act 2004 to deal with this sad case. I support the motion.

I am speaking on behalf of my Labour Party colleague, Deputy Howlin, who would normally occupy this slot, just as the Minister of State is delivering a speech prepared for personal delivery by the Minister for Justice, Equality and Law Reform, that wonderful oxymoronic departmental description that will disappear within eight weeks.

The Minister of State has no responsibility for this speech, nor do the officials beside him, but this attempt to justify the Minister's curriculum vitae once again as holder of the justice portfolio is typical of the man who was never wrong in his life and never will be. The entire commentary about Thornton Hall, the waste of money where he paid twice the market price, suggesting justification for it, is another reflection of waste by this Government, particularly the Progressive Democrats who pride themselves on being economically aware.

The Minister is Tánaiste of a Government. He thinks aloud about market sentiment, suggesting there should be changes in stamp duty in October when he took over the leadership of his party in an internal coup. He created an expectation that the budget, into which as Tánaiste he would have some kind of input, would address the issue where over the period of the Government's five year tenure, the value and cost of houses rose by 75% while the yield from stamp duty went up by 243%. He created an expectation in the market that some adjustment, reasonable and rational, would have been delivered by the Minister for Finance but that was not to happen. Once again in the run up to the election he is trying to raise expectations. This comes from a party that lectures the rest of us about market economics and reality but what we really get is waste and unfulfilled expectations.

I respond in this manner because the Minister of State read such comments in his speech. We are not here to discuss the prison building programme or the wonderful record of my constituency colleague, the Minister for Justice, Equality and Law Reform. Perhaps his ruminations will be better suited to the Seanad, which he might grace after the next election.

The murder of Gary Douch was a tragedy that should not have taken place. We must deal with it and Mr. Mellett must be commended for the expeditious manner in which he prepared the report on the unfortunate events in question.

I accept the call by the Minister of State to be careful regarding what we say in this Chamber, notwithstanding privilege, lest we prejudice the outcome of any conclusions of Ms Gráinne McMorrow, SC. I particularly welcome the timetable and the deadline of 31 December. I wish that had been done in the context of other tribunals of inquiry ten years ago.

It has been said by a number of progressive commentators that the quality of a society can be measured by the way in which it incarcerates its citizens who go off-side. It comes as a surprise to me, because I am a great admirer of the United States, that there are now more prisoners there than there were in Stalin's Gulag Archipelago in the bad dark days of the Soviet Union. According to Mr. Lonergan, the governor of Mountjoy Prison, most, though not all, of the prisoners in that badly overcrowded Victorian prison with horrible conditions of slopping out and lack of in-cell sanitation have medical problems which resulted in their ending up there. If ever a class issue in this society could be put succinctly, it is in that context.

If a working class child in my constituency who has the condition known as attention deficit hyperactivity disorder, becomes increasingly difficult in the classroom, is not psychologically assessed and does not get the attention of a special needs teacher or the necessary support system, as sure as night follows day that child will, through a series of misdemeanours and petty crime, be incarcerated in Mountjoy Prison, that academy of criminality. It is only middle class families who have the tenacity, self-belief and ability to navigate the system, to bang the drum, to get some kind of intervention so that their child does not end up in jail, and they do not always succeed. As recently as last night I met a woman who reported her medically afflicted son at a Garda station in my constituency and asked that he be incarcerated to bring him to his senses. That happened in Dundrum, but the institution in Dundrum is to be sold, along with St. Luke's Hospital, in order to maximise value.

We know how middle class families will get to Thornton Hall when they get beyond the M50. How will working class families get there? What bus will the daughters, partners or mothers of people who find themselves incarcerated in Thornton Hall get? What rapid rail system will take them out there? What footpath will they walk along when they leave the main road? What boy racer will avoid them as they walk along the winding twisting boreens of north Dublin to find this palace of imprisonment for which the Government paid more than twice the market value? I hope the Labour Party will be in a position to cancel that contract when we come into office.

Is the Deputy suggesting that we go back to Victorian days?

What rate of interest is the public private partnership paying?

The Deputy is suggesting that we go back to Victorian days. The Labour Party blocks the Progressive Democrats at every opportunity.

This is not Question Time. Allow Deputy Quinn to proceed without interruption.

The current borrowing rate the State can get is on a par with the European lending level. The rip-off of the public private partnership procurement system is not in the quality of the project management. It is not in the planning process or the value-for-money elements of the contract. It is in the rip-off for no risk because there is no market for prisons. There is no private sector competition yet of which I am aware. The Government is forcing the double payment on interest rate terms for the public private partnership, yet the Progressive Democrats lecture the Labour Party about market economics. The Government has a surplus in terms of revenue, a surplus in underspent capital budget, and the Government is offering a present to the suits down in the IFSC who do nothing other than enhance by a factor of 100% the return on lending. Shylock would not have got a better deal than some of these public private partnership deals that we are getting on the interest rate alone.

I fully support the project management benefits that come from it and the management of it in regard to a number of operational details. However, the idea of paying a so-called premium risk rate for something in respect of which there is no risk whatsoever is the height of economic incompetence and I hope the electorate punishes the Government for it.

The Minister introduced certain comments and provoked me accordingly. I will now return to the topic of what we are trying to do. I welcome this motion which the Labour Party supports. I welcome the courtesy with which my colleague, Deputy Howlin, has been treated by the officials in the Department of Justice, Equality and Law Reform in terms of the briefing we received on this tragedy. We must learn lessons from it and I hope we get a constructive report that will enable us to proceed in the future.

The kind of prison facility that is contemplated for Thornton Hall and in Kilworth in County Cork is not the solution for the category of person for whom this society currently has no place of refuge. I have in mind another constituent who was beaten up in the inner city by a gang of thugs when he was in his mid-20s. He is brain damaged and veers into criminality. He wanders openly into shops in and around New Street and engages in petty street theft. The only civic response this society has to this person is to arrest him. He has been arrested on numerous occasions and brought back to the family home. His mother, who is now in her 80s, cannot cope with him any more. There is no place in our society for that person other than jail, where he will be brutalised. Whatever about incarcerating criminals who are professional in their assault on our society, we must, in the richness this country possesses and never possessed before, find a way of providing for people such as my constituent sheltered, secure and, possibly, mandatory accommodation, in the sense that they are not allowed to leave except in certain circumstances. That should be separate from the situation where we are incarcerating real criminals.

I suspect that the individuals involved in the incident in respect of which this commission of inquiry is being established — I am being careful in my selection of words — fall as much into the second category of damaged individuals as into the first category of real criminals. Unless we learn that lesson from this specific incident, we will not be any wiser. I suggest that the Minister and his colleagues might examine the way in which the Nordic countries deal with these problems. We do not have a monopoly or an excessive percentage of such persons in our society. There must be another way of dealing with them. While this inquiry will throw some light on what happened, I hope the senior counsel appointed will make some recommendations about where persons such as the person involved in this incident and perhaps others might be incarcerated other than in a prison for criminals.

On 31 July last, a 21-year-old prisoner, Gary Douch, made a request to prison officers in Mountjoy for protection. It was a reasonable request, given what happened to him afterwards. However, what happened when he made the request was not reasonable. He was placed in a holding cell in the basement with at least five other inmates where he was subsequently battered to death.

Every State failure to protect the lives of those in custody must be the subject of an independent investigation, whether they are in a Garda station or in prison. We cannot accept anything less. I welcome the establishment of the commission of investigation into this case and see this measure as progress.

Last August, the Minister established an investigation, conducted by an official from the Department of Justice, Equality and Law Reform, who reported to the Minister. This was an inadequate response to the situation. As argued by the Irish Penal Law Reform Trust, a truly independent inquiry must, by definition, include investigators who are not part of the bureaucracy and ethos of the Prison Service and the Department of Justice, Equality and Law Reform. The investigation established by the Minister at the time could be described as more in-house than independent and as such fell short of obligations under the European Convention on Human Rights. I welcome the establishment by the Minister of the commission of investigation but it should have been done at the time of the death of Gary Douch.

The commission has greater potential to uncover the truth and make sound recommendations to prevent further tragic loss of life in the prison system or detention of any kind. I am glad the draft terms of reference include the making of policy and legislative recommendations. One of the failures of the commission of investigation into the Dean Lyons case was that it made no recommendations. This deficiency diminished the value of that commission. What happens after the commission reports is more important. We do not want the report simply to sit on the shelf like other reports, with no action taken. It is essential that positive steps are taken and no expense spared to ensure the bodily integrity and right to life of all persons in custody.

Unfortunately, the Government's response to the Dean Lyons case does not bode well. In that case a vulnerable person was forced to make a false confession and was effectively framed by gardaí while in custody. What has the Government done since that commission reported? It is further curtailing the right to silence and introducing longer hours of Garda detention without any change to the regulations governing the treatment of persons in custody. The grave issues brought to light in the Dean Lyons case remain unaddressed. It is vital, whatever party is in the next Government, that it should take the concrete steps necessary to protect the lives and welfare of prisoners. There must be no repeat of the inaction of this Government.

I am slightly concerned that the terms of reference should include an examination of what steps were taken by the Prison Service subsequent to the tragic death of Gary Douch. The cell in which Mr. Douch was killed was demolished by the Prison Service, even before the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT, could inspect it. Its inspectorate had already indicated it wished to visit the prison. The CPT, tasked with monitoring standards in our prison system, visited Ireland in October, a visit of which the Government was notified. It could have conducted an independent investigation into the circumstances leading to and surrounding the death of Gary Douch. The committee was denied the opportunity to do so because the Prison Service demolished the cell where his murder took place. I hope this action is not an indication of a culture of cover-up akin to that operating in the Garda in County Donegal and other areas.

Terence Wheelock, aged 20, died in Garda custody in June 2005. The Garda claims he hanged himself in the cell but it is widely believed he died as a result of Garda brutality. I have seen photographs which support that conclusion. The Wheelock family's solicitor secured a court order to preserve the cell for an examination of forensic evidence. However, the order was disregarded and the cell was renovated, destroying all potential forensic evidence.

Building a super prison will not prevent the murder, torture and inhuman treatment of prisoners. It will simply replicate these conditions on a larger scale. I call on the Government to ratify the operational protocol to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, as is required by the equivalent provisions of the Good Friday Agreement. The Government must establish a prisoners' ombudsman and remove the current exemption of children in detention from the remit of the Ombudsman for Children.

The Government must establish and resource an adequate number of mental health treatment centres with appropriate levels of security to bring an end to the practice whereby the prisons system acts as a dumping ground for people suffering mental illness. As highlighted by Deputy Quinn, all Members know of individuals suffering mental illness who should not be in prisons. As society has not properly addressed the issue of supports for people with mental illness, the only place it considers appropriate is prison. Hopefully, the findings of this commission of inquiry will be a wake-up call, not only to the Government but to society, to examine our policy of imprisonment.

I regret that the Minister of State, Deputy Parlon, had to substitute for me earlier but I was delayed coming back from Templemore and the business of the House went a little faster than I anticipated.

Matters are moving very fast today.

No, it was because there were so many Garda recruits passing out that it took longer than we anticipated.

I hope the Minister was not breaking the speed limit in returning to the House.

I wish to reiterate the apology I have made to the family of Gary Douch for the way in which he met his death in Mountjoy Prison. It was an inexcusable set of circumstances. When all the facts emerge into public knowledge, it will be seen that serious mistakes were made in the sequence of events that led to his death.

It was my intention to publish the report by Michael Mellett but the Attorney General indicated I could not do so. It is, nonetheless, my strong view that we must have a commission of inquiry for several reasons. Echoing what has been said, recommendations are needed. The way in which psychiatrically ill people are treated in the Prison Service must be investigated. What is happening is not satisfactory. There must be a psychiatric service for prisoners. Deputy Quinn argued that some psychiatrically ill people should not be in prison at all. Nonetheless, there are people sent to prison who do need psychiatric treatment. The present arrangements are not acceptable or functioning. It is very well to defend the present arrangements on the grounds of independence of one branch of the State from another. However, if a prisoner becomes psychiatrically ill or the illness takes on an acute form, there should be immediate, effective and high quality assistance for that person. The terms of reference of this commission will enable this whole area to be examined in great detail. No one should be treated in the way some of those who played a leading part in the sequence of events surrounding Gary Douch's death.

It is my intention to re-appoint Mr. Justice Dermot Kinlen as inspector of prisons and to commence the relevant sections. I thank him for the original report he gave on the particular cells involved in the Gary Douch case. I express my regret that the cells were still in operation at the time this death occurred. I regard this as a serious mistake.

I thank Ms Gráinne McMorrow SC for agreeing to act as a commissioner in this case. She has very extensive experience in the field of criminal law and mental health and this renders her peculiarly well qualified for the position. As the House is aware, the commission of investigation into the Dean Lyons case is an effective inquisitorial tool. I am satisfied the powers conferred on Ms McMorrow under this Act will allow her the necessary scope to conduct a thorough and comprehensive investigation into this matter. I reiterate that the death of Gary Douch was a terrible tragedy and it is incumbent upon us all to learn lessons from this event and I am determined this should be the case.

Question put and agreed to.

I move:

That Dáil Éireann,

bearing in mind the specific matters considered by Government to be of significant public concern arising from the deaths of residents of the Leas Cross nursing home;

noting that the matter raises serious issues about the role and responses of all relevant parties involved in the management, operation and supervision of the nursing home;

noting that it is the opinion of the Government that a commission of investigation represents the best method of addressing the issues involved;

further noting that a draft order proposed to be made by the Government under the Commissions of Investigation Act 2004 (No. 23 of 2004) has been duly laid before Dáil Éireann in respect of the foregoing matters referred to, together with a statement of reasons for establishing a commission under that Act;

approves the draft Commission of Investigation (Leas Cross Nursing Home) Order 2007 and the statement of reasons for establishing a commission of investigation.

Under the Commissions of Investigation Act 2004, a commission of investigation may be established by the Government, based on a proposal by a Minister, with the approval of the Minister for Finance, to investigate any matter considered by the Government to be of "significant public concern". How the State and its institutions protect vulnerable people is a significant issue. It is evident that a systematic review of the management, operation and supervision of Leas Cross is a matter which falls into this category.

As this House is aware, the Health Service Executive commissioned Professor Des O'Neill, consultant geriatrician, to carry out a review of deaths at the Leas Cross nursing home between 2002 and 2005. This review examined the case notes of those patients who died while resident in Leas Cross between 2002 and 2005 together with documentation from the home itself, the HSE, the coroner's office, the registrar of deaths and the Department of Health and Children. This report was published in November 2006.

The principal finding of the report was that "the documentary evidence was consistent with the care in Leas Cross being deficient at many levels, and highly suggestive of inadequately trained staff, and furthermore no documentary evidence that the management of the nursing home and clinical leadership recognised the ensemble of care provision required to meet the needs of the residents".

This review focused on the care of patients in the Leas Cross nursing home and was a paper based investigation. It highlighted the importance of promoting the highest standards of care for older people and of ensuring a robust and thorough system of inspections. Action has already been taken to address the concerns raised by Professor O'Neill's report. These include the following: the publication by me in January of draft standards for all long-term residential care facilities for older people which are now going through a consultation process led by the Health Information and Quality Authority; and the Health Act 2007 which was recently passed by this House which has put the social services inspectorate on an independent statutory footing and which contains provisions to underpin a more robust inspectorial system.

What is required now is a review of the systems in place and the roles and responses of all the main parties involved in Leas Cross. Having considered Professor O'Neill's report, the Government is of the view that a commission should be established to investigate this matter, which is clearly of public concern, under the Commissions of Investigation Act 2004. This has been decided taking into account the gravity of the issues outlined by the review and the public interest in the outcome of the review.

The draft order is accompanied by a statement of reasons for establishing the commission, as required by the Commissions of Investigation Act, and a similar motion was approved today by Seanad Éireann. Under the provisions of the Act, the order establishing the commission must specify the matter that is to be investigated. The draft order which is before the House describes it in the following terms: the matters relating to and arising from the review carried out by Professor O'Neill examining the deaths of residents at Leas Cross nursing home; the role and responses of such relevant parties as the commission may determine, including the HSE in relation to the ownership, operation, management and supervision of the nursing home; and the circumstances surrounding the transfer of patients from other facilities to the nursing home.

I have already mentioned my recent publication of the draft national standards for residential care settings for older people which update the previous provisions set out in 1993 in the care and welfare regulations. These standards, when finalised, will apply to all residential settings — public, private and voluntary — where older people are cared for and for which registration is required. The draft standards are based on legislation, research findings and best practice. The homes will be inspected against the standards when finalised after the current consultation process by the social services inspectorate which is a part of the HIQA. It will be independent in exercising this function.

The HSE is currently carrying out inspections of private nursing homes and produced a report in 2006 on nursing home inspections and registrations. A national standardised approach to private nursing home inspections across the system is now in place. This currently underpins the inspection process. I allocated an additional €6 million for the further development of the inspection process in 2007-08. The HSE has informed me that 113 inspections have already been carried out this year. A total of 870 inspections of over 400 private nursing homes were carried out in 2006.

Last year we funded the largest ever expansion in services for older people with a full year cost of €150 million. This year we have gone a step further with a full year package of €255 million. In two years we have added over €400 million to services for older people.

We know that remaining at home is the first choice for older people and Government policy is to support people to live in dignity and independence in their own homes and communities for as long as possible. Where this is not possible, we support access to quality long-term residential care. In this regard, it is important that older people have access to the best residential care possible.

This Government is committed to ensuring the safety of all our citizens but, in particular, the most vulnerable in our society. A high priority is to ensure the safety of our older people who, through their hard work, have put us on this road to prosperity that we have enjoyed for the past number of years. The older population in this country has made an invaluable contribution to all aspects of Irish life. We acknowledge this and we are fully committed to improving all aspects of their lives by focusing not only on health issues but also giving consideration to the quality of accommodation, security, welfare and all other issues which affect our older citizens.

This is why I am recommending the establishment of this commission of investigation. We need to ensure that the systems in place for those who are vulnerable and in need of residential care are of a high standard and that they receive quality care and treatment in suitable surroundings. To do this, we need to look at the system failures in Leas Cross. The terms of reference I have approved will, I believe, result in a focused and timely investigation.

Leas Cross is a legacy of gross failure and abuse of the elderly by this Government. It is high time this commission was set up to investigate what happened in Leas Cross and, more appropriately, why the Government failed so dramatically to protect patients in that nursing home and why it took it so long to respond to what was happening there. The Minister involved should have known to some degree that a serious problem existed regarding the care of the elderly in nursing homes.

The "Prime Time" programme was broadcast on RTE almost two years ago. It is amazing how little has been achieved in those two years since this programme made by the national public service broadcaster showed the absolutely despicable behaviour in Leas Cross. The Government is still trotting along, barely getting things done and barely looking after patients in nursing homes.

It is wrong that no one has been held to account by the Government. Will the Minister explain the meaning of the term, "a systems failure"? It means the failure of the Government to react in a timely and appropriate fashion to protect the patients for which the Minister for Health and Children is responsible. It amazes me how slowly everything happened, even when what was happening at Leas Cross was public knowledge. The only good result was that Leas Cross nursing home closed.

There was a delay in the publication of the O'Neill report because the people who were named in the report wanted to have their say. They did not want to say, "We are sorry for what happened" and they did not want to explain how this failure happened but rather they wanted to find an opt-out clause and to scapegoat and blame somebody else. Nobody took responsibility. The Minister to some degree and especially the Government did not investigate the situation. Why did nobody take responsibility? When did people know? Where are some of those people now? Some of those heavily involved continue to work for the HSE and some were asked by the HSE to draw up sets of standards for nursing homes. This is the sort of half-baked attitude that the Government took to what happened in Leas Cross. The Government did not stand back and regard it as an absolute disgrace because the Irish health care service has no great ethos of protecting patients.

The Minister has always dismissed my proposal for a patient safety authority by saying it is not needed. If there was ever a time when a patient safety authority was needed, it is now. We need to change the ethos of the health care services and put the patient at the centre with everything else on the outside. HIQA is not a patient safety authority but is concerned with procedures and standards. The social services inspectorate section of HIQA will inquire into standards but very little else in HIQA is responsible for patient safety. There is still no definitive set of standards for nursing home inspection on this, the eve of the general election 2007, even though this crisis has been in existence for more than two years. The standards being considered by HIQA are still in draft form. This shows what is going wrong. Our ability to react in a timely manner to severe crises within the Irish health care service is shockingly poor and is a result of the lack of concern by the Government. These concerns were expressed by the officials of the Department of Health and Children, but they cannot speak out in the same way as I can. However, reading between the lines in the health strategy published in November 2001 it seems the officials proposed the need to deal with issues of patient safety and equality of service within the public health system. Nothing happened because both the Minister and I know that the big improvements that need to be made will cost money.

There has been a failure to respect old people. Of the €400 million put aside to fund the repayments of the illegal nursing home charges, only €39 million has been repaid. The Minister has a very poor attitude towards elderly patients and their care.

Even though I welcome this commission of inquiry, it seems to be a case of fobbing off and the Minister has not concentrated on the so-called systems failures that caused this situation.

It is appropriate this afternoon that as the Labour Party's spokesperson on older people's issues I make my last contribution in Dáil Éireann on the motion for the establishment of a commission of investigation into the management, operation and supervision of Leas Cross nursing home which is located in my constituency of Dublin North.

Is the Deputy resigning today?

This will be my last contribution.

The Deputy might speak next week.

What happened in Leas Cross was one of the greatest scandals of all times and it took a "Prime Time" special programme to highlight the abuse that was taking place and to get the Establishment finally to acknowledge what it knew was taking place and to take action. I do not intend to apportion blame, however I sincerely hope that the commission will thoroughly investigate all the issues and apportion blame where appropriate. It may be the norm in such circumstances that to date nobody has been prepared to accept responsibility, but that is unacceptable to the public. I compliment Professor Des O'Neill on his excellent report.

Residents of St. Ita's Hospital were transferred from St. Ita's to Leas Cross and other nursing homes, notwithstanding the reports from me and other people regarding the impact of the moves on those residents. As far back as 2004 I had been informed by the Department of Health and Children that a range of problems had been identified by the inspectorate of private nursing homes. These included staffing levels, maintenance of accommodation standards, hygiene problems, lack of activities for residents, poor record-keeping, insufficient or no active involvement by the local authority in fire safety and lack of equipment appropriate to clinical practice. These problems were officially known about but people in areas of responsibility were not prepared to take the decision.

People who are in need of care, especially those who have to leave their homes and go into long-stay institutional care, are among the most vulnerable in our society. A civilised society which respects human rights and promotes human dignity should be judged on the way care is provided and on the quality of life which is facilitated within the care system. Any objective judgment of our care system would be harsh and it does not give me pleasure to say this in one of my last contributions. We do not have a fair and equitable system for financing care. We do not have a clear and transparent set of rights and entitlements for older people. We do not have a system that ensures that quality care is delivered. We have allowed our care facilities to develop in response to tax laws rather than in response to the needs of older people. There are not enough specialists working in the system and many of the people who work in the system are not properly trained or paid. We do not facilitate the involvement of older people in decisions about their care.

Perhaps the most harsh judgment of our system is that, while the problems are officially recognised and plans have been made to put things right, virtually nothing has been done. We have not given the care of older people the priority it deserves. I hope the Labour Party in government after the next election will change this. I compliment the Minister on what she has achieved, but she has not achieved everything yet.

It is well known that for personal reasons I will not contest the forthcoming general election. It has been a great honour and privilege for me to represent the people of Dublin North in the Dáil and the Seanad for the past 18 years. I have made great friends and acquaintances across the political divide. I will always cherish the memories I have from my time here. I thank my dedicated staff, my wife, the members of the Labour Party, the Ceann Comhairle and the officials with whom I have come in contact for the way they have assisted and helped me.

We always tend to think about people who were elected to the House when we were, but we tend to forget those who have passed away. On this day, I wish to remember those who were elected with me, namely, Gerry O'Sullivan, Michael Ferris, Pat Upton and Jim Kemmy, all of whom have since died. Representatives from other parties have also passed away during my time in the Houses and we tend to forget them and the efforts they made to make our society what it has become.

The O'Neill report on the Leas Cross nursing home served as an indictment of successive Governments and of the health board and Health Service Executive bureaucracies which presided over a system that allowed the old and the vulnerable to be disgracefully neglected in nursing homes. I have little doubt that inadequate staffing, inadequate care and, most seriously, inadequate vigilance on the part of State authorities led to the deaths of patients at Leas Cross and other nursing homes.

The terms of reference given to Professor Des O'Neill were flawed because they provided only for a documentary inquiry. The relatives of the deceased were not given the opportunity to participate, even though they have valuable evidence to give regarding the treatment of their loved ones. For that reason, the establishment of this commission of investigation into the Leas Cross nursing home scandal is very welcome. I hope the relatives of the deceased will be given full access and be permitted to tell their stories to the investigation.

Some further points need to be made in the context of establishing this investigation. The Government must implement the recommendations of the National Economic and Social Forum's report, Care for Older People. It needs a clear strategy to end the over-reliance on private nursing homes for the care of older people and to ensure that all those who wish to be cared for in their homes can be facilitated with the full support of all relevant State services.

The Department of Finance's report on tax incentives states that the tax incentive was one of the factors which led to an increased number of nursing home places. However, it also states that there is considerable variation across the regions in the number of nursing home beds per capita, the costs to the operator per bed, the rate charged per bed and average occupancy rates. The report further states:

The weekly cost of places has risen over the last number of years. Indecon survey evidence suggests that the tax incentive scheme had been ineffective in reducing the increase in the cost of nursing home accommodation.

This clearly shows the flawed Government approach of using tax incentives for developers as a means of delivering an important social policy, namely, care of the elderly. The money forgone by the State in these tax incentives would be better spent in direct provision of care for the elderly in their homes, in day care centres and in residential homes established and run by the Health Service Executive and not-for-profit organisations.

We owe a great debt of gratitude to Professor Des O'Neill who compiled a comprehensive report on this matter. The "Prime Time" television programme and Professor O'Neill's work shone a light on a dark chapter in our history. I compare the latter with other dark chapters of institutional abuse we have examined in recent years.

Alarm bells should have rung when the Minister for Health and Children examined Leas Cross and saw what the for-profit sector could do to the most vulnerable people in society. At that stage, she should have reassessed her strategy. The position in this regard is similar to that which obtains in respect of co-location. The one thing those who operate private and for-profit hospitals want is to commodify and to treat people, some of whom are extremely vulnerable, as a mechanism to make more money.

Many of the for-profit nursing homes, which were incentivised by tax measures put in place by the Government, cut corners in many areas. I refer to the fact that they employed low-cost labour, that is, people from abroad who cannot speak English or communicate properly. The position here is similar to that which obtains in many nursing homes in the United States. One need only consider what has happened in Florida and elsewhere in that regard. Events relating to nursing homes here are a carbon copy of those that occurred in the US and the position will be the same as regards co-location of hospitals and for-profit medicine. In the United States, costs relating to insurance premiums have escalated and that will also happen here.

I do not believe the Minister for Health and Children has learned any lessons. However, I hope her eyes will be opened by the investigation that is to take place.

I thank all the Deputies who contributed to the debate. I will not rehash any of the issues relating to co-location, except to say that Deputy Gormley has a very good co-location hospital, St. Vincent's, in his constituency.

I know it well.

I am sure he is very supportive of that facility, the success of which we are trying to duplicate elsewhere. However, I will not open up any further the debate on that matter.

I thank Deputies for their comments and for their support in respect of this motion to establish the commission of investigation into what happened at Leas Cross. It is clear that we must learn lessons, particularly in the context of the response from those in authority. Since the events at Leas Cross we have published new draft standards. It is important to have such draft standards in order that consultation may take place. Deputy Twomey recently informed me at a committee meeting that we were engaging in overkill. However, we want standards that are appropriate, effective and enforceable.

Following the passage of the Health Act, the establishment of the Health Information and Quality Authority will take effect from 11 May and its social services inspectorate will mean that for the first time the inspection of public and private nursing homes will take place. It is appropriate that all nursing homes, regardless of whether they are in the public or private sector, should be subject to scrutiny by the same inspectorate.

Deputy Seán Ryan stated that he was making his final contribution to this Dáil. I genuinely pay tribute to the Deputy and wish him well. Everyone was surprised when he announced his intention not to seek re-election. Deputy Seán Ryan has been a very well respected and hard working Member of Dáil Éireann for many years.


Hear, hear.

On a personal level, I have, notwithstanding our political differences, enjoyed a very good relationship with him. We have a number of friends in common. I wish the Deputy and his wife all the best of good health. When he recounted the names of those from his party who were elected with him and who have since passed away, it makes one realise how much can change in a few short years.

I hope Deputy Seán Ryan will enjoy many years of happiness with his wife and family. I know that his constituents, regardless of the parties they support, greatly appreciate the great work he did on their behalf. However, I hope he will be back in the House next week and will have an opportunity to make another contribution. All the media people and cameramen are outside the front gate but, no more than anyone else, I do not know if the election will be called.

The Chair wishes to be associated with the Minister's remarks in respect of Deputy Seán Ryan. However, the Deputy will probably have an opportunity to make further contributions.

Question put and agreed to.