I move: "That the Bill be now read a Second Time."
In bringing the Health (Amendment) Bill before this House, I do so on the basis that all Members share the common view that the work of the independent review group on child deaths is of the utmost importance and urgency. The publication of the Bill last Friday fulfilled the Government's commitment to act decisively to progress the work of the group through enabling legislation. I am now seeking the support of Deputies for the Bill to ensure that it is passed into law before the summer recess.
The Bill is short and focused and has been referred to in this House and elsewhere as emergency legislation. It certainly is the case that its principal purpose is to make certain that the work of the independent review group can proceed in an expeditious manner by addressing the legal difficulties that constrained the handing over of case files by the Health Service Executive. There is also a more general information dimension to the Bill and that relates to ensuring that the HSE keeps the Minister fully informed on all matters of which he or she needs to be aware in a timely and appropriate manner. I will set out the specific measures in the Bill, in greater detail, later in this statement.
How we care for our children helps defines us as a society. It is the hallmark of a caring society that it strives to do the best it can for all its children. Within the Government, I carry a particular responsibility to protect and advance the rights of children. This is especially so when, for whatever reasons, vulnerable children become known to the child protection services or are placed in care. The death of any child is never a statistic. It is a tragedy and an emotional and deeply upsetting time for the family. When such a death occurs while the child is in the care of the State, there is an onus on the State to act. The circumstances surrounding the death must be comprehensively examined not simply out of respect to the young person concerned and his or her family but also to prevent, wherever possible, similar tragic occurrences and to improve our overall care and protection arrangements.
The House will be aware that I established the independent review group on child deaths on 8 March 2010. The group is comprised of Ms Norah Gibbons and Mr Geoffrey Shannon. A third person of international standing will be appointed when the existing members have completed an initial examination of documentation provided by the HSE. The group was asked by me to examine existing information on deaths of children in care and first to validate the categorisation of children who died from natural and non-natural causes. In respect of those children who died from non-natural causes, the group has been asked to examine existing reviews and reports prepared by the HSE or others on their behalf and based upon this information to provide, on an anonymised basis, key summary information regarding each child and the circumstances leading up to his or her death. The review will focus in particular on the relevant involvement of State services with the child and his or her family and examine the strengths and weaknesses of such involvement. The group is also to make recommendations on how child protection services can be strengthened in so far as learning can be identified from the reports and reviews completed. I consider this review to be very necessary and it is imperative that the group be in a position to fully discharge its remit.
To date, the group has been furnished with some preliminary information by the HSE regarding the deaths of children in care over the past ten years, young adults up to 21 years of age who were in the care of the HSE in the period immediately prior to their 18th birthday or who were in receipt of aftercare services under section 45 of the Child Care Act 1991, as well as on a third category, children known to the child protection system. However, to complete its task, the review group needs access to individual case files. This has not proven possible to date in light of legal concerns identified by the HSE relating to the provision of information to the group.
The Taoiseach outlined to the House on 26 May 2010 the nature of the legal advice to the HSE. Concerns were identified regarding the in camera rule, which in child care proceedings is concerned primarily with the protection of the identity and privacy of the individual child, section 31 of the Child Care Act 1991, which imposes a prohibition that can be lifted with the approval of the courts on the publication or broadcasting of matters which might lead the public to identify a particular child that has been the subject of proceedings under certain parts of that Act, data protection legislation which regulates the collection, use and disclosure of personal information relating to living identifiable individuals and categorises health information as sensitive and therefore deserving of additional protection and finally, the issue of consent to the disclosure of personal or confidential information, including, as appropriate, the consent of surviving relatives.
In order to address the legal issues concerned, which are complex in nature, the Office of the Attorney General has worked closely with the Department of Health and Children in preparing the Bill to ensure that the legislation meets its policy objectives. The point is sometimes made that the legal problems and delays encountered with the release of files to the independent review group could have been avoided if the review had been carried out by the HSE itself or under its auspices. While the delay is very much regretted, I have no regrets about establishing an external independent review. Indeed, since I established the group, events have demonstrated clearly that only an independent and transparent review process offers any possibility of rebuilding public trust in our child care system. We now for the first time have national data from the HSE to indicate how many children died while in State care or where they had been in contact with the care system. We need the review group to examine this information more closely to establish the facts and to ensure that the learning from reviews conducted is shared.
The overall purpose of the Bill is to strengthen the legislative base for the provision of information by the Health Service Executive to the Minister for Health and Children so as to enhance the Minister's ability to fulfil his or her role and functions, including political accountability to the Oireachtas, and to create a safe channel of communication for sensitive information from the HSE to the Minister. It does this in the following ways. First, it places a duty on the executive to provide information on its own initiative and without delay to the Minister. Second, it gives the Minister power to require in the public interest detailed information and documents from the executive free of legal prohibition and to use such information and documents as necessary for the performance of his or her functions. Third, it also allows persons appointed by the Minister to undertake reviews etc. to similarly use such information and documents. Before going into the detailed provisions of the Bill, Members will be aware that the legislation will cover the entire remit of the executive. This is to make certain that a similar situation to the present one could not arise in providing information to the Minister or persons conducting reviews etc. on behalf of the Minister in any area of health and personal social services covered by the executive, such as, for example, the care of the elderly.
The Bill contains two sections. Section 1 is the substantive provision and section 2 sets out the Short Title and collective citation. Section 1 of the Bill inserts a new Part, Part 7A, furnishing of information and documents, into the Health Act 2004. This explains the numbering of the provisions in the Bill, that is, it is proposed they become sections 40A to 40F of the Health Act 2004. Section 40A provides a definition of "document" so as to ensure that it is wide-ranging enough for the purposes of the Bill. A "document'" means a book, record or other written or printed material, a photograph, any information kept in a mechanical or electronic device, and any audio or video recording.
The Minister for Health and Children requires a range of accurate, timely and quality information to discharge her functions to formulate policy and assess the performance of the health system as well as ensure that she can provide appropriate political accountability to the Oireachtas. Provisions are already in place under the Health Act 2004 that require the HSE to provide information and allow the Minister to issue directions requiring the provision of information. However, in preparing the Bill, the opportunity was taken to strengthen the existing situation in a particular way.
The intention of section 40B, the duty of the executive to furnish information, is to ensure that the Minister is appropriately briefed by the HSE on all matters that she needs to be aware of in a timely and appropriate manner. It requires the executive to monitor and keep under review occurrences and developments concerning matters relating to its object and functions. The HSE must inform the Minister, without delay, of any occurrence or development that, in the opinion of the executive, the Minister is likely to consider significant for the performance of her functions. In addition, it must similarly inform the Minister of any other occurrences or developments that fall within a class of occurrence or development of public interest or concern that has been specified in writing by the Minister. This power to specify will ensure that the Minister can be kept fully informed of important issues relevant to the public interest or concern. There is also provision for the issue of guidelines by the Minister on how the information under this section is to be provided by the HSE and where those guidelines have been made the executive must comply with them. That will help make certain that the information is provided in the manner required.
Section 40C, a requirement to furnish information and documents, and section 40D, the Minister may share information and documents in certain circumstances, are the ones that are most relevant to the work of the independent review group. The purpose of section 40C is to require the executive to provide information or documents to the Minister. It provides that the Minister can, where he or she considers it necessary, in the public interest, for the performance of his or her functions, require the executive to provide him or her with any information or documents in its possession or control that he or she specifies. The section lifts existing legal prohibitions in any enactment or rule of law which would prevent the provision of the information and documents concerned in areas such as consent requirements, non-disclosure or confidentiality provisions and in camera rules. The requirement must be complied with by the executive within the time specified by the Minister and in any event without delay. The Bill only lifts the in camera rule for the purposes of allowing information to flow from the HSE to the Minister which means that the rule continues to be of full force and effect on the Minister in terms of publications. The requirement to satisfy the public interest test is a further safeguard. That is why we see this provision as creating a “safe channel of communication” for sensitive information to pass from the HSE to the Minister.
Sections 40B and 40C are modelled to some extent on sections 40 and 41 of the Garda Síochána Act 2005. While each section is independent of each other, it may well be that following on from information provided under section 40B by the executive the Minister may consider it appropriate or necessary to require further information or documents under section 40C. That could arise, for example, where the HSE provides information on a matter under section 40B but indicates that it is constrained in providing further details, for example, personal sensitive information, due to privacy issues. In such a scenario, the Minister could exercise his or her powers under section 40C to ensure that full details are made available to him or her.
Consequently, while section 40C is critical for the work of the independent review group, its application goes much further. Essentially, section 40C will enable the Minister for Health and Children to require from the HSE, in the public interest, any information or documents he or she needs for the purposes of performing his or her functions. While it should not be necessary to use this power frequently, it will ensure that the Minister will have the information and documents he or she needs for his or her role and functions. In the same way, section 40D is about ensuring that where the Minister has appointed a person or persons to examine or inquire into a matter and he or she considers the information or documents received under section 40B or 40C are relevant to the examination or inquiry that he or she can give access to that material to the persons concerned. That will enable them to use the information and documents in line with the terms of reference of their appointment.
As Deputies will note, section 40D does not give the persons appointed by the Minister the power enjoyed by the Minister under section 40C to require information or documents directly from the executive. That is because the relationship in the Health Act 2004 is between the Minister and the HSE and, therefore, it is appropriate that the power to require information or documents under section 40C should be confined to the Minister. Where there are difficulties in investigations and reviews, as in the review of child deaths, the Minister can require the information and documents from the executive and arrange for its use by any review or investigation team appointed by him or her.
Section 40E, use of information and documents, provides that the Minister may use information and documents provided under the Bill as he or she requires for the performance of his or her functions. Taken together with section 40C, this acts as a safeguard to ensure that the Minister can only request and use information and documents under this Bill for the performance of his or her functions.
Section 40E also addresses the publication of such information and documents and provides that the current legal position is unchanged, namely, that nothing in the Bill permits publication, in whole or in part, of information or documents received if such publication would not otherwise be lawful. That is in keeping with the general objective of the Bill, which is about correctly balancing the public interest with the individual's legal and constitutional rights, including the right to privacy.
Section 40F, saver, makes it clear that nothing in the Bill limits or otherwise restricts the power of the Minister under the Health Act 2004 or any other enactment to issue directions to or require information from the executive. Similarly, nothing in the Bill affects, except to the extent required by the Bill, the functions of the executive or the Minister. That means that the Bill does not affect the operational independence of the executive as set out in the Health Act 2004.
As there is no commencement provision in the Bill, it will become law on being signed by the President. I am considering whether to seek to have an early signature motion moved in the Seanad to have the Bill signed quickly by the President upon enactment.
In the course of preparing the legislation, officials from my office met with the Ombudsman for Children, the Data Protection Commissioner and senior officials from the Ombudsman's office. As always, those discussions were constructive and helpful. The Data Protection Commissioner was concerned that any release of sensitive personal information should be consistent with data protection principles, in particular, that any disclosure of such information without consent should have a necessary public interest dimension. I share the commissioner's view. My objective throughout the Bill is to have a proportionate response to correctly balance the public interest and respect the individual's legal and constitutional rights, including the right to privacy. That is why there is an express public interest criterion in section 40C.
Both the Ombudsman and the Ombudsman for Children raised issues about the consistency of application of the in camera rule by the HSE in releasing information to them for the performance of their functions and the general operation of the rule. The Ombudsman has stated that the in camera rule is complex and wide-ranging and that some modification would be helpful. The Ombudsman for Children has called for the rule to be flexible enough to allow reasonable access to information, where such access would serve the public interest, while ensuring that adequate safeguards are in place to respect the rights of children and the privacy of the parties. She has also called for legislation to clarify the law with regard to the sharing of information in the best interests of the child.
The matters raised by the Ombudsman and Ombudsman for Children are important and it is appropriate that they receive the time and attention they deserve. That would not have been possible given the timeframe within which this Bill had to be prepared. Moreover, the in camera rule has implications beyond the health sector. The current position in regard to the in camera rule is that strictures are put in place by way of the Child Care Act 1991 that prohibits the publication or broadcast of material that may lead to the identification of a child who is in care or who has been in care. This restriction is in place for sound policy reasons and there is no intent on the part of Government to dilute that right to privacy.
I am mindful, however, that there is a need to examine proceedings under the 1991 Child Care Act to ascertain how cases are decided in normal circumstances. These cases are heard in the District Court where judgments are rarely written and there is no facility for recording such judgments. The third report of the Joint Committee on the Constitutional Amendment on Children makes such a recommendation. A valuable piece of research was carried out by Dr. Carol Coulter in respect of family law reporting and was published in October 2007 by the Courts Service. I would very much support a similar approach to child care proceedings and will examine opportunities to undertake such research. Legislation already exists that enables the publication of anonymised information in respect of children. Section 3 of the Child Care (Amendment) Act 2007 amends section 29 of the Child Care Act 1991. Section 3(7) states:
The Minister may, after consultation with the Minister for Justice and Law Reform, make regulations specifying a class of persons for the purposes of subsection (5) if the Minister is satisfied that the publication of reports prepared in accordance with subsection (5)(a) by persons falling within that class is likely to provide information which will assist in the better operation of this Act, in particular in relation to the care and protection of children.
I will give consideration to making regulations in order to specify persons to conduct such research and analysis that will assist in the operation of child care legislation, specifically in regard to child protection.
Deputies will also have read in the press today the comments of the Ombudsman for Children on the Bill. By way of background, I should explain that, given the important role that the Ombudsman for Children plays in the child care area, I arranged for her to have a copy of the draft Bill and my officials offered her a briefing also in advance of publication. I received her detailed comments last week and they have been considered carefully in my office. As her paper makes clear, she acknowledges that some of the issues she raised were never intended to be addressed in the Bill. However, the Ombudsman for Children made certain points relevant to the Bill and the independent review group that I wish to address directly. She queried the independence of the review group in the sense that it is the Minister rather than the review group which sources information and documents from the HSE.
From the outset, a key to the review process was to provide a mechanism that was independent and also external to the HSE. The appointment of Geoffrey Shannon and Norah Gibbons to the review group and their standing in the child care community is an indication that the Government is committed to a robust and independent approach to the review.
The reality is that the review group is free to source any information it wishes from the HSE. However, as we are all aware, certain individual case files that it needs from the HSE could not be made available to the review group, or even the Minister, because of legal concerns previously outlined. As already stated, one of the key purposes of the Health (Amendment) Bill and the reason the Government has attached such urgency to it is to ensure that the review group can access the individual case files that it needs to undertake its work fully.
As a result of the Bill, the Minister for Health and Children will be able to require from the HSE, without legal prohibitions and in the public interest, any information or documents she needs for the purpose of performing her functions. The way this will work for the review group is that it will advise the Minister of information or documents that it needs which might have legal issues associated with them. The Minister will be able to require the HSE to provide those documents directly to the review group under the terms of the legislation.
It is appropriate that it is the Minister who requires the HSE to provide the information to the review group because it is effectively an agent of the Minister. When such information is provided to it, it can use the information in the same way as the Minister can without any need to revert to the Minister for approval. Accordingly, there is no question of the Minister being able to tell the review group how to use the files or otherwise dictate how it does its work.
There is no perfect way to achieve independence in inquiries and reviews and, in that regard, I am satisfied that the arrangements under which Geoffrey Shannon and Norah Gibbons are carrying out their review are appropriate, reasonable and independent.
The Ombudsman for Children also raised the matter of publication including that it is the Office of the Minister for Children and Youth Affairs that would publish any report from the independent review group. As I stated, the decision was taken from the beginning not to interfere or amend the present law on the publication of reports. Moreover, it is the Minister of State at the Office of the Minister for Children and Youth Affairs who has public and political accountability for child services. Consequently, it is reasonable that he should publish any report commissioned by him and undertaken on his behalf. I have already given a commitment that the report on the independent review group will be published.
I have read the comments of the Ombudsman for Children in respect of the perceived lack of institutional independence of the child death review panel established by the HSE. It is important to put the establishment of this panel in context. The death review mechanism precisely follows the HIQA Guidance for the Health Service Executive for the Review of Serious Incidents including Deaths of Children in Care. That guidance, according to HIQA, is intended to create a standard, unified, independent and transparent system for the review of serious incidents, including deaths of children in care in Ireland. The guidance outlines the purpose of national review, the national review panel and team and the review process. The guidance also addresses the timing of review, benchmarks for individual reviews, publication and external reporting and monitoring of the review process.
The process that will guide future reviews of child deaths was not drafted by me but by HIQA following my request last July for such guidance to be produced. The HIQA guidance is instrumental in providing a transparent and accountable death review mechanism.
As regards the independence of the process, I place my faith in HIQA and the approach that body has recommended. The guidance provides that in the event that HIQA or the Minister believe that a review process has not been completed satisfactorily, HIQA can carry out a statutory investigation under the Health Act 2007. Section 9.10 of the guidance reads:
The Authority may decide, or be requested by the Minister, to conduct a review or investigation under the Health Act 2007, if the review process has not been completed satisfactorily or the findings are indicative of wider concerns. The findings of this review will be published by the Authority.
The guidance also states: "SSI [the social services inspectorate of HIQA] will monitor all reports to ensure that the review process is in compliance with this guidance."
Although a system or process should not be dependent on the composition of its membership to assert its independence, it is important to look at the names that comprise the review panel. Few will doubt the independence and rigour that the respective individuals will bring to the process. I thank them for their willingness to co-operate.
The policy decision was taken at an early stage that the Health (Amendment) Bill should deal only with the relationship between the Minister and the HSE. The sole focus and purpose of this Bill is to cover the provision of information and documents by the operational arm of the health service, the HSE, to the person who has political and other accountability for the health service, the Minister for Health and Children, in a way that is necessary for the Minister to fulfil her role and functions. However, the present Bill in no way affects the current rules applicable to the HSE in supplying information to statutory bodies and persons. They remain unchanged and the Minister expects the executive to co-operate fully and consistently with such bodies in the performance of their functions.
It is recognised that this legislation will involve, in some instances, the disclosure to the Minister of very sensitive personal information by the HSE. However, it is the view of the Government that the measures in the Bill are balanced and essential if the democratic imperative of ministerial accountability to the Oireachtas for the health system is to be met and public confidence in the HSE is to be improved. More immediately, of course, the Bill is necessary for the work of the independent review group.
I want to make a point I have made before, namely, I am committed to learning from shortcomings that are identified through reviews and reports into our services in order to make improvements for children and families. This Bill is an important element in that process. I commend it to the House.