The next item is a review under section 32(2) of certain provisions of the Freedom of Information Act 1997 — discussions with the Department of Health and Children. We are joined by Mr. Michael Scanlan, Secretary General of the Department of Health and Children, and by Mr. Billy McCarthy and Mr. Dave Walsh, higher executive officers in the freedom of information unit in the Department. On behalf of the committee, I welcome them and thank them for attending. Before discussions begin, I advise that while comments of members are protected by parliamentary privilege, those of visitors are not. I remind the committee that members should not comment on, criticise or make charges against any person outside the committee or the Houses. We will commence with a short presentation by Mr. Scanlon which will be followed by an open discussion with members of the committee.
Freedom of Information Act 1997: Presentation.
Mr. Michael Scanlan
I thank the Chairman for the invitation. I am happy to assist the committee in its review of non-disclosure clauses in health legislation. While that is the focus of the meeting, l thought it would be helpful to start by summarising the extent to which the Freedom of Information Act applies within the health sector.
The Act applies to more than 70 public bodies in the health sector. The list includes voluntary hospitals, major providers of disability services and many statutory bodies. It was applied to health boards in 1998 and has applied to the Health Service Executive since its establishment on 1 January 2005. It applies to all HSE records inherited from the health boards. It also applies to records inherited from the former Health Service Employers Agency and the GMS payments board. Both of these bodies were subsumed into the HSE but neither had previously been covered by the Freedom of Information Act.
I understand the committee has already been advised by the Department of Finance of plans for a further extension of the Act later this year. In the case of the health sector, the intention is to extend the Freedom of Information Act to 18 additional bodies. These include the health professional regulatory bodies, the National Treatment Purchase Fund and the Office of Tobacco Control. It is also planned to include the health information and quality authority from the date of its establishment. Only a very small number of bodies in the health sector would then remain outside the scope of the Act. We have brought along a table listing the bodies covered, those planned to be covered and those remaining outside the scope of the Act. I will leave it with the committee so it will have a tabular presentation of the situation.
I wish to focus on the committee's review of non-disclosure provisions under section 32 of the Freedom of Information Act. In her report of December 2005, the Information Commissioner outlined her opinions and conclusions in relation to the reports submitted to the committee by each Minister, including the December 2004 report dealing with the health sector. In the case of the health sector, a total of 36 non-disclosure provisions were reported on. Three of these are already included in the Third Schedule and the Information Commissioner welcomed the Department's recommendation that a further 16 provisions be included. The Information Commissioner agreed with the Department's recommendation to exclude from the Third Schedule four non-disclosure provisions in the Adoption Act, the Vital Statistics Act, the Stillbirths Registration Act and the Civil Registration Act. She also agreed that the inclusion of two statutory instruments in relation to food inspections need not be considered further as part of this review. These and one other food-related statutory instrument were due to be, and have since been, repealed.
The Information Commissioner concluded that seven other statutory instruments arising from EU directives not relating to food safety should be included in the Third Schedule. The Department's view was that inclusion in the Third Schedule was not seen to be warranted. However, it also said that it would be happy to consult the Attorney General in regard to the appropriateness of their inclusion if the committee had concerns in this regard. As far as l can see, therefore, the only real divergence of view arises with regard to the existing protection for certain records of fitness to practice proceedings.
The Medical, Dental and Nursing Acts each contain an identical non-disclosure clause relating to fitness to practice proceedings. The Department recommended that these remain in place pending the introduction of new legislation whereas the Information Commissioner recommended that they be added to the Third Schedule immediately. In summary, the clauses at issue are designed to protect sensitive personal information recorded within a formal process where it is important that there is full and frank participation on the part of the health professional who is the subject of the inquiry and also on the part of complainants and colleagues.
The committee may also wish to note that the current restriction of access does not affect access to proceedings where there is an adverse finding approved by the High Court. Parties to a fitness to practice hearing are, in general, free to attend and gain access at first hand to the proceedings and the measure is designed to protect the good name of a professional while due process is being followed in relation to an allegation.
Practice and perspectives have changed since this legislation was enacted. As indicated in the December 2004 report, the Health and Social Care Professionals Act 2005 establishes a new framework within which to address the conduct or competence of a professional. Unlike previous legislation, it provides for preliminary proceedings, mediation and a separate committee for health issues. There is an emphasis on structure, publication, disclosure and clear informing. In general, the professional conduct committee is to hold its meetings in public and the health committee is to hold its meetings in private. The only restriction on disclosure, as proposed, relates to the protection of parties who agree to enter mediation.
Legislative proposals on a Bill to replace the Medical Practitioners Act will be published by this summer and following a period of public consultation, a Bill will be presented to the Oireachtas These proposals will reflect the thinking which is evident in the Health and Social Care Professionals Act. At a time when improved structures are being designed and implemented and the Medical Council and other professional regulatory bodies — dental, nursing, opticians, pharmacy — are to be covered by the Freedom of Information Act in their own right, the Department would not favour the inclusion of these provisions in the Third Schedule at this time.
In addition to the 36 non-disclosure provisions reported upon in December 2004, a further three non-disclosure clauses were overlooked in the preparation of the 2004 report and the previous 1999 report. I apologise to the committee for this oversight. In the course of preparing for this hearing, when the freedom of information unit trawled through other sections we found these three clauses on which we had not reported. Two of these relate to the transposition of EU directives and the Department would again be prepared to consult with the Attorney General in regard to the appropriateness of their inclusion in the Third Schedule.
The third relates to the Hepatitis C Compensation Tribunal Act 1997, which contains a non-disclosure clause covering documents or papers submitted to the tribunal in respect of a claim where a settlement is being negotiated. The continued exclusion of this clause from the Third Schedule would appear to be appropriate. The information and context are both sensitive, and it is important to be able to offer participants a guarantee of confidentiality.
For the sake of completeness, I draw the committee's attention to the December 2004 report, which also referred to two other non-disclosure provisions that were due to be enacted: section 29 of the Health Act 2004; and section 55 of the Health and Social Care Professionals Act 2005. The Information Commissioner did not comment on either of these probably because they had not been enacted at that stage.
I hope this information will be of assistance to the committee in dealing with the existing non-disclosure provisions under section 32 of the Freedom of Information Act. It might be helpful to conclude by offering a few comments about possible approaches in the future. While the Freedom of Information Act provides a formal framework for the consideration of access to sensitive information, the Department considers that there will continue to be a need for non-disclosure clauses within legislation and that some of these will be appropriate to the Third Schedule while others will not. Recent health legislation may help to illustrate this.
Section 26 of the Health Act 2004 deals with the unauthorised disclosure of confidential information by board members, staff and others. This is one form of the standard provision which is to be found in most establishment orders. Even though it provides for disclosure where otherwise required by law its inclusion in the Third Schedule is seen as appropriate to avoid any doubt regarding freedom of information access.
Section 55 of the Health and Social Care Professionals Act 2005 provides for a mediation process for the resolution of complaints. An essential element of mediation is that the parties can rely fully on assurances of confidentiality. Participation in mediation is voluntary and if mediation fails, the parties can turn to other formal processes. In these circumstances, inclusion in the Third Schedule is not seen as warranted.
In her recent report on the Our Lady of Our Lady of Lourdes Hospital inquiry, Judge Maureen Harding Clark recommended that certain records including clinical incident report forms be protected from freedom of information and discovery. In her appearance before this committee on 16 March, the Information Commissioner said she could not agree with this, stating, "I believe the exemptions in the Freedom of Information Act are sufficient to protect what is, I agree, a very important public interest". The recommendations of the Our Lady of Lourdes Hospital inquiry report are under consideration at the moment. Measures to support clinical audit, to encourage the participation of health professionals in confidence insurance and to address the sensitivity of records created will be considered in the context of relevant legislation.
Enforcement of the EU regulation governing food safety, effective from 1 January 2006, will require the support of new statutory instruments. The need for confidentiality or non-disclosure clauses in this legislation will take into account the operation of the Freedom of Information Act and the need for consistent approaches to inspection processes in the health sector.
Finally, within the Department of Health and Children, it is proposed to establish a cross-divisional group to consider a range of freedom of information issues, starting with the interaction of health legislation and freedom of information. This will help to ensure that future legislative proposals will take full account of freedom of information principles and practices.
I thank the members of the committee for their attention. I also have with me a table listing the various non-disclosure provisions, and the Information Commissioner's comments and recommendations on them. It identifies those which the Department's 2004 report recommended referring back to the Attorney General if the committee felt appropriate. We could then try to home in on what are the issues. I can leave copies of the table with the committee if it would help.
I thank Mr. Scanlan. I suggest he give copies to the committee secretariat and they can be circulated as appropriate.
The merit of the Freedom of Information Act is that it sought to create a presumption of openness unless it could be proved that damage would be done in making information available, which was a dramatic change from the history, where essentially there was a presumption of secrecy unless it could be shown it was in the public interest to release information. I sense a rowing back from that initial approach that heralded the introduction of the Act. Clearly the reforms in 2002 started the process of closing down.
I know that information has been refused in respect of consultants to show the ratio of the time they devote to public and private patients. These are consultants on the public payroll and the Department of Health and Children has refused to release information about how they devote their time to their public work. If we are paying for a consultant, it is a perfectly legitimate matter of public concern to know what we are getting for it. It might be mediated by not revealing the consultants' names if the Department felt there was some issue of confidentiality in the contract. Clearly there are issues of principle that this should be open. However, the Department of Health and Children has clearly taken a different line.
Mr. Scanlan has focused on the case of fitness to practice. The issue is whether a fitness to practice hearing is predominantly a private matter if issues of major public concern arise that the consequences of the hearing would become public and public action would be taken. Alternatively, it could be regarded as a public matter, where protection would be given only when absolutely necessary. The difference of opinion between the Department of Health and Children and the Information Commissioner is that she sees it essentially as a public matter unless the head of the section in the Department of Health and Children can be shown evidence that it should not be revealed because under section 26 it conflicts with confidential information or because under section 28 it involves personal information. The Information Commissioner believes it should be a public matter but protected by the existing provisions of the Freedom of Information Act. However, Mr. Scanlan believes it is essentially a private matter and the Department is not willing to consider otherwise.
The Department's defences essentially go back to the exemptions given in the Act. I do not understand why the Department believes that the Freedom of Information Act protections are not sufficiently robust and why it fears that the Information Commissioner would make decisions that would interfere with the proper conduct of fitness to practice hearings. This is the test the Department must meet. It must show that the Information Commissioner is likely to undermine the soundness of fitness to practice hearings if the procedure is reversed as she recommends. All Mr. Scanlan has done is to cite his view. He has not justified it or shown that the protections offered under sections 26 and 28 are not sufficiently robust. The Department has not met the tests that the committee needs to see it meet before we could endorse its position.
I am somewhat confused by what Mr. Scanlan has said about dental and nursing Acts. In the case of both Acts, the Information Commissioner seems to disagree with his views. He has not addressed those. He seems to suggest that they are to be covered by the Freedom of Information Act in their own right by saying that the Department would not favour the inclusion of these provisions in the relevant Schedule at this time. However, I would take the oppositve view. We can consider new freedom of information legislation if and when it is introduced but, for the time being, let us include them by protecting the right of access provided in the existing Act.
I am puzzled that after searching through his files, Mr. Scanlan claimed to find a number of more recent Acts which provided for exclusions to the Freedom of Information Act. Why did the Department of Health and Children not consult with the Information Commissioner before deciding to impinge on her area of responsibility? The Department is effectively seeking to use legislation to exclude her from this territory, yet it appears that it did not bother to consult her. Officials from the Department of Finance have indicated that no procedure is in place by which the Information Commissioner is consulted. However, it is important to consult her, particularly with regard to health, which is changing from an area where consultants are respected and not asked difficult questions to one where they are held to account as public officials who should be open to scrutiny. That change is beneficial for the profession.
The Department of Health and Children seems to be lagging in that debate rather than leading it. If it is to decide that the Freedom of Information Act should be further restricted, it should at the least consult the Information Commissioner and note her opinions when bringing legislation before the Dáil. The Government's memorandum should also note the views of the Information Commissioner, so that the Government can be informed when making a decision. I am surprised that such is not the case, given that legislation is circulated among all Departments. The Departments of Transport and Agriculture and Food can hold an opinion on the health legislation, yet the Information Commissioner, who champions the rights of citizens, is not given a chance to do so. However, that may be a political matter and the remedy may, therefore, be beyond Mr. Scanlan's remit.
All Members of the Houses are frustrated about the chronic deficit in health information which has developed since the establishment of the HSE. The Tánaiste informs us that frantic efforts are being made within the HSE to establish a parliamentary affairs division to resolve the problem but while that may be of some consolation, it is not making an impact and suggests that those who are not parliamentarians will have difficulties in seeking information. Wider issues arise in terms of how the Department provides for proper accountability throughout the health system which extend beyond the Freedom of Information Act and, I presume, Mr. Scanlan's remit but I cannot let this opportunity pass without expressing my frustration at the inordinate length time required to compile responses, many of which do not even answer the question originally put. In the context of the centralised approach being taken to health management and the dismantlement of regional structures for accountability, the HSE has a much greater obligation to demonstrate openness than has been evident thus far.
Mr. Scanlan
To clarify, two issues arise with regard to the medical, dental and nursing bodies. The provisions of the Freedom of Information Act are being extended to health bodies currently uncovered by the legislation. The Deputy will be aware that the Department of Finance has announced plans to extend the Act to cover 100 or more new bodies, among which are 18 health bodies, including the Dental Council, the Medical Council, An Bord Altranais and the Pharmaceutical Society of Ireland. We proposed that the Act should apply to these regulatory bodies.
A separate issue arises with regard to the fact that, even if a body is covered by the Freedom of Information Act, non-disclosure clauses are provided for in the legislation.
I appreciate that.
Mr. Scanlan
As I understand Deputy Bruton's question, he asked whether these non-disclosure provisions should be included in the Third Schedule. In my opening statement, I noted that the same non-disclosure clause applies to three of the organisations and we recommended in our 2004 report that they should remain outside the Third Schedule. The Deputy is claiming that I have not made the Department's case for that recommendation.
It is fair to say that the Freedom of Information Act starts from a presumption of openness. I read the transcript of the Information Commissioner's discussions with this committee and agree with much of what she said about the unnecessary fears that people have with regard to the Act, which arise from a lack of understanding of the protections already provided. However, the Act is only one element in a wider debate on information, which ranges from one extreme, the automatic release of information, to the other, data protection legislation. The Information Commissioner was of the opinion that all non-disclosure clauses should be included in the Third Schedule unless a compelling case could be made for the alternative. While that is understandable from her point of view, my own perspective is that the matter is not black and white and that balances must often be found. My opinion is supported by the provisions in the Act which require Ministers to report to this committee and allow an opportunity for the Information Commissioner to comment before the committee is asked to make a judgment. Circumstances could arise in which it is legitimate to consider whether a non-disclosure clause should be included in the Third Schedule and, instead of placing the burden of proof on one side or the other, judgments should be made on how to achieve the best balance. I do not accept that one can presume that a clause should be included in the Third Schedule because it is the committee's role to decide that.
Fitness to practice and the non-disclosure provisions of the three bodies are the only points of difference between the Department and the commissioner. Our report noted that new legislation, the Health and Social Care Professionals Bill 2004, will deal with 12 different health care professional bodies. In effect, that Bill sets up an entirely new model for fitness to practice. It seemed preferable to consider legislation on the other three areas in its own right. I do not want to put words in the mouth of the Information Commissioner but I got the sense from the transcript that her office is also willing to accept that there may be areas in which there is clear agreement that non-disclosure clauses should be introduced, whereas action may be planned anyway for other areas. The Department, in the ministerial report it submitted, took the view that it would be better to deal with the issue of fitness to practise in the context of the new legislation.
Section 26 of the original Freedom of Information Act provides that a head shall refuse to give information if the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated as confidential. The Act also provides that personal information is exempt from freedom of information requests. If, as Mr. Scanlan indicates, fitness to practise is treated differently for reasons of confidence and protection of personal interest, he must show the joint committee that the provisions set out in sections 26 and 28 do not provide sufficient protection to those who have been called before fitness to practise tribunals. Mr. Scanlan indicated he does not believe they are sufficient but did not demonstrate any flaws in them or indicate what improved model he would introduce if he had an opportunity to legislate on the issue.
Mr. Scanlan
Medical practitioners legislation will be a matter for both the Tánaiste and the Oireachtas. However, with regard to the model adopted in the Health and Social Care Professionals Bill, the only non-disclosure clause under the new model of fitness to practise is that relating to mediation. As I indicated, the justification for this clause rests on the need to give people the assurance of confidentiality when entering mediation. If they do not enter mediation, they will be aware that they can avail of other processes in which there are no non-disclosure provisions. This is the model the Department will adopt, subject to whatever policy or Oireachtas decisions which follow in the case of other bodies.
Would the mediation model not be protected by sections 26 and 28 of the Act? Is it Mr. Scanlan's contention that his style of mediation would be exposed by the Information Commissioner whereas he would seek to keep it confidential?
Mr. Scanlan
Yes, in the case of mediation there is a compelling case for informing the parties entering mediation that they have a guarantee that instead of relying on judgments and differing opinions which might arise under the Freedom of Information Act, the information provided in the mediation process will not be disclosed. Those entering a mediation process can, therefore, do so with that confidence. If one chooses not to avail of mediation, a non-disclosure provision will not apply, nor will one apply if the mediation does not work and the parties move on. The Deputy asked if a different approach would be taken if the Department were left to draw up the legislation. That is the new model the Department proposes to follow.
The Deputy also referred to new provisions which had come to light. I apologise for the Department's failure to report on the old provisions. However, it is not so much that the new provisions did not come to light — they were mentioned in our 2004 report — but that they had not been enacted at that stage and for this reason we did draw attention to them in the report. I assume the Information Commissioner did not comment on them because they were not in legislation at that point. Deputy Bruton described them as transgressions of the Freedom of Information Act. I am inclined to regard the Act as permitting non-disclosure provisions. A decision or judgment has to be made on whether to include such provisions in the Third Schedule. I regard them as allowable as opposed to transgressions.
In terms of consulting the Information Commissioner, the Deputy hinted that this is not entirely within my purview. I read the transcript of the previous meeting during which there was considerable debate on how one might FOI-proof legislation, if that is a fair description. The Department has been working on the establishment of an internal inter-divisional group whose remit will extend beyond freedom of information. One of the tasks of the group would be to try to ensure that every departmental section which deals with legislation would be asked to ensure it has at least taken FOI legislation into account and will highlight whether a specific body would be covered by the Freedom of Information Act in its own right. They would also determine whether non-disclosure provisions are proposed and, if so, whether they stand up; if non-disclosure provisions will apply; and if so, whether they should be in the Third Schedule from the outset or outside the Third Schedule. This is the reason I gave two examples.
I understand there is a fairly standard non-disclosure clause which applies when one establishes a new body. This clause imposes confidentiality requirements on members of boards, for instance. There is, however, no reason it should interfere with the Freedom of Information Act. On the other hand, the Health and Social Care Professionals Act has a non-disclosure provision which, it can be validly argued, should not be included in the Third Schedule.
The Department will, through its inter-divisional group, try to FOI-proof the legislation in the way I have outlined. The freedom of information unit already meets regularly with officials from the Office of the Information Commissioner throughout the year. I believe four such meetings took place last year. This is a good way to deal with the non-disclosure issue and the overall terms and provisions of the Freedom of Information Act and to feed the results into the Department and any legislation with which it is dealing.
At the previous meeting the Department of Finance indicated that the Information Commissioner was not consulted on the exclusion, for example, of the Garda Síochána from the terms of the Freedom of Information Act. Does the Department of Health and Children consult the Information Commissioner on departmental bodies which remain excluded from the terms of the Act? Are certain bodies so excluded? Does the Department give the Information Commissioner an opportunity to express a view on the continued exclusion of such bodies from FOI?
Mr. Scanlan
I have here the other note I indicated I had brought with me. Seven bodies remain excluded from the terms of the Freedom of Information Act. Two of the seven are due to be dissolved, while a further two are North-South bodies. A further body is a commercial entity and I gather commercial State bodies are not covered by freedom of information provisions as a matter of policy. Two further bodies, the Adoption Board and the Irish Hepatitis C and HIV Compensation Tribunal, are quasi-judicial in nature. I am not sure if the Department formally consulted the Information Commissioner or her office in drawing up the list of bodies we believed should be covered by the Freedom of Information Act. I understood the joint committee's focus at its previous meeting was on whether Departments consulted the Office of the Information Commissioner when developing new legislation.
It focused on both new and existing bodies. Members also heard, for example, that Scotland has opened up its police force to freedom of information provisions and that a certain body of international evidence supports making police forces open to FOI. However, the Department of Justice, Equality and Law Reform has not bothered to consult the Information Commissioner on what insights might arise from these developments. Members were surprised on two counts, that is, that neither new legislation nor existing exclusions were ever routinely put to the Information Commissioner for comment.
Mr. Scanlan
In fairness, an examination of the bodies in the health sector which remain excluded from FOI provisions indicates that the Department is one of the best performers in this area. I accept, however, that others may take a different view.
On legislation, established procedures apply to the circulation of Government memoranda. They do not include circulating the memoranda to bodies such as the Office of the Information Commissioner. By keeping in touch with the Information Commissioner, as the Department does, the onus is on the Department to ensure that the relevant sections of new legislation being drafted take into account the views of the Information Commissioner.
On the Deputy's point on releasing information regarding consultants, I was trying to remember a specific case. I am not sure if I can recall the correct one and may, therefore, be wrong. However, it is possible that information we collected under the Hospital In-patients Enquiry — HYPE — was collected with particular guarantees and, as a result, could not be used for FOI purposes. If that is the case, perhaps we did not have a choice.
I tend to agree with the Deputy on the need to look much more broadly at how we use information. Having examined the position in a couple of other jurisdictions, with a particular focus on one jurisdiction, one of the lessons the Department is addressing is that changes in structure may not be so important and may not produce the type of results we all seek. In addition, we are using information in a very proactive way, collecting the right information and making it available outside the terms of the Freedom of Information Act.
Without discussing individual policy areas, the HSE carried out a hygiene audit last year and published only the results. One must acknowledge that there are sometimes flaws in audits or surveys and that information is never perfect. However, making it public can have a very positive effect. I agree generally with the point being made. It is one of the issues regarding which we need to engage with the HSE and we need to examine much more generally the possibility of having a rational policy on inspection regimes, consultants' work practices and other work practices right across the health services, not just those concerning financial information but also those concerning access, equity and outcome information. We must collect information on these issues and circulate it.
During the preparation of the heads of a Bill, who does the Department consult? Does it have to consult a regulatory impact analysis body?
Mr. Scanlan
In preparing the heads of a Bill or a memorandum for the Government, there is a standard arrangement for circulating the information to all Departments or at least those Departments one feels might have an interest or comment thereon. More recently, new arrangements have been introduced to do regulatory impact analyses or assessments of legislation. In producing the legislation to establish the health information and quality authority, we have published the heads of the Bill as part of our regulatory impact assessment. The information exists for anybody to see. We put advertisements in the papers asking anybody who wants to comment thereon to do so. This is not always the practice.
Does the Department consult the regulatory impact analysis body formally?
Mr. Scanlan
Regulatory impact analysis is a process we must go through, it is not an organisation we need to consult. It requires us to assess the impact of new regulations in terms of economics, the cost to business, etc.
Is the Information Commissioner consulted formally?
Mr. Scanlan
No. There is no provision of which I am aware that requires us to consult the Information Commissioner formally.
I welcome the delegation. I will start at the same place as Deputy Bruton. We invited the delegation because we are discussing the report of the Information Commissioner, who has flagged a number of practices that are less than ideal in terms of tracking the application of the Freedom of Information Act. I completely agree with the commissioner when she says that, given that the Act provides very strong protections for those interests that are required to be protected, it is difficult to understand why it has not been extended to all public bodies.
I understood the Freedom of Information Act was to force a cultural change regarding information. There should always be a presumption of inclusion rather than arbitrary exclusion involving the consideration of matters on a piecemeal basis. The role of the Information Commissioner is unwieldy in terms of tracking what is happening. She drew our attention to a difficulty regarding the Safety, Health and Welfare at Work Act 2005. The relevant information was given to a staff member when dealing with an inquiry. The commissioner stated there was no statutory entitlement to be consulted. Given that she is supposed to be at the centre of a wheel and that the individual Departments and public bodies are the spokes, it is difficult to understand how she is expected to fulfil her role if she is at the rim. It seems the Departments have a competitive advantage over her office when they consult her, yet we are relying on her to be the arbitrator. She is at a competitive disadvantage when talking to Departments in that, instead of them satisfying her regarding what should not be included or what should be protected under sections of the Freedom of Information Act, the opposite is almost the case. It is quite difficult to believe that the matter will not become very unwieldy in the future.
Reference was made to a number of new legislative provisions, under the Department of Health and Children, that were not included in the Information Commissioner's report. The report was obviously post-dated and this indicates a problem in that the commissioner does not have an automatic right to be consulted. A rethink is required and it is not only the Department of Health and Children that should be involved. It is just one of a number of Departments that need to be involved in determining how the process could be made to work and work better. This should not create extra work but create a cogent argument why certain information should not be included if it is protected specifically by legislation, namely, certain sections of the Freedom of Information Act. This is my view and I am not looking for a reply.
It appears there is resistance to the legislation, which was to bring about cultural change. Throughout the Information Commissioner's report there is almost a lack of confidence in the Freedom of Information Act and the protections it affords. This is a significant issue which the commissioner is flagging.
There is almost a ring-fence around information regarding the HSE. It is as if the old health boards are still very much in place. The only element that has been removed comprises the public representatives and their ability to interact and obtain information. One gets very fragmented responses. If one asks for statistical comparisons on orthodontic care nationwide, two of the former health boards might respond and the others might not bother. Even the responses one does receive can be fragmented. They are a joke. I received three replies yesterday for which I have waited since Christmas. One answers the question I asked and the others seem to be stock replies.
There is a major problem concerning information and it is very unhealthy. I agree with Mr. Scanlan that information is not always perfect. In this regard, consider the information resulting from the survey on hospitals. Not hiding anything builds public confidence. When information is readily available but withheld without reason, it leads to conspiracy theories among people seeking that information. This is most unhealthy, it is a source of major frustration and arises regularly in the Dáil, wherein Members state their particular concerns about the HSE. Notwithstanding that the executive was established very recently and that it takes time to get up and running, there a significant problem with the parliamentary affairs division. We are being snubbed in terms of the information that should be available. It was available when councillors were on health boards but it is now not available to the national parliament. It is an absolute disgrace. It is about ordinary information that will give us a pattern in how one area compares with another. It is an absolute outrage that it is not made available.
I welcome the inclusion of the statutory bodies, particularly the National Cancer Registry. They should be automatically included unless there is a strong and cogent argument for their exclusion.
When legislation is being prepared there is no consultation with the Information Commissioner, not even at the point of the regulatory impact assessment. The Information Commissioner's role only kicks in after a Bill is published. Up until that point, Departments will have checked the heads of the Bill. After publication, the Information Commissioner may see conflicts with a Bill. Would it be more appropriate for the Information Commissioner to be part of the regulatory impact analysis? Would it be more appropriate for the views of the office of the Information Commissioner to be sought at that stage? Why is the Information Commissioner excluded when Departments have been involved? The very person who is there to protect interests at a later stage is not consulted. What are Mr. Scanlan's views on that matter?
Mr. Scanlan
I know there is a large level of frustration with gaining access to information from the HSE and replies to parliamentary questions. I attended the meeting with the Tánaiste and Minister for Health and Children at the Joint Committee on Health and Children where Professor Drumm, the chief executive of the HSE, addressed that specific issue. There are clear structures of accountability. I am not saying the system is perfect. The Deputy is fair in saying that it is poor and that it takes time to get matters right. There are, however, structures of accountability in place.
The chief executive officer is liable to appear before Oireachtas committees. The Department and the HSE must work on the performance management measurement agenda on getting information on what services are being provided. It is not a criticism on my part but when I look for hard factual information, it is not there on a national basis. A section in the Department is doing its best to work closely with the parliamentary affairs division of the HSE to up their game in dealing with Members.
Professor Drumm stated to the committee on health and children the initiative he was introducing following suggestions from Members. He wants to arrange meetings at a regional level between Members and senior managers. It will not revert to the old regional health board structure but will be an opportunity for national representatives to raise issues and get information on health services.
Professor Drumm is developing a website where replies to parliamentary questions can be posted. The problem with the parliamentary question system is that the Department often issues referral replies. I accept the Deputy's point that the wording is always the same, that under the legislation it is a matter for the HSE. The perception is that it almost disappears into a black hole. One suggestion was for replies to be posted on a website. We are continuing to work with the HSE on the matter. Professor Drumm told the Oireachtas Joint Committee on Health and Children that he accepts the parliamentary question service is not satisfactory. Any large re-organisation takes time. This is one issue where there is a degree of frustration but we are working on it.
I do not want Professor Drumm attending a committee answering questions about how many occupational therapists there are in Cork as opposed to Kildare. The information is readily available. Some HSE areas will give information while others will not. The question will be put in the pending tray until an instruction is given that the information should be made available.
The information would have been available to individual members of health boards before they were abolished. There is a resistance, for some reason, to giving that information. It is like the health board system is still in place, functioning as it was before. There is no semblance of change regarding the equality of services. To see the transition of the organisation, we must receive information. There is a resistance to giving information or it is given in a fragmented way that is unusable. How can I compare the level of health services in one area to another when I cannot get basic information on services?
Mr. Scanlan
I do not disagree with what the Deputy has said. I can sense the frustration. I agree Professor Drumm should not appear before an Oireachtas committee to answer such questions. The parliamentary affairs division was established under the office of the chief executive to drive the message home in the organisation that dealing with Members was a high priority. He said that the current service is not satisfactory. We have to change the culture.
On the point about consulting with the Information Commissioner in the same way that we consult Departments, it seems to me that this is ground already ploughed during the committee's deliberations with the Department of Finance. It is the lead Department in this. It is not so much that we consult other Departments, essentially we consult other Ministers. We consult their Departments because legislation will appear on the Cabinet table and that is the process we go through. For instance, if the Department of Health and Children was introducing legislation that would be ultimately interpreted by the courts, we do not consult the Judiciary which will implement the legislation. I understand the Information Commissioner's perspective. However, it seems to me one perspective that would have to be taken into account by the Government or by this committee.
In recent times the Department has had to adhere to regulatory impact analyses. Rather than involving the Information Commissioner after the legislation is published and the Information Commissioner sees difficulties in the published legislation, would it be helpful if the Information Commissioner was involved at the regulatory impact analysis stage?
Often the issue is fought out on the floors of the House or in committees afterwards. That situation might not arise if the Information Commissioner was included at some point in the regulatory impact analysis process.
Mr. Scanlan
I have to admit that I am not sufficiently familiar with the regulatory impact analysis procedure to know whether it is designed to address an issue of that sort. My sense is that it would not be capable of doing so. The Vice Chairman is suggesting that Departments should consult the Information Commissioner about legislation in a formal way. Whether that is through the regulatory impact analysis or some other process is a matter for debate but the Vice Chairman is suggesting that there should be ——
It could be at the publication of the heads of a Bill stage or some other stage.
This is a crucial issue in terms of what we are discussing. In fairness, it is not just an issue for the Department of Health and Children. Heads of Bills are generally treated with confessional and Cabinet confidentiality. The reality is that trying to get at them is like trying to get at hens' teeth. I have heard senior civil servants say that, under pain of death, they may not disclose the contents of the heads of a Bill but it is not true to say that the contents are never disclosed. I have spent ten years in here trying to see the heads of various Bills but never managed to do so. However, I can give three examples, two of which involve the Tánaiste in her previous Department, where the heads of a Bill were made available to interested parties.
The point being made by the Vice Chairman will be enormously important in the future. It is not just relevant to the Office of the Information Commissioner. Other bodies are also affected. There is no justification for the unbounded levels of confidentiality around what will eventually be a printed document. It would make more sense, and our work as Members of the Oireachtas easier, if certain groups, interested parties and people with ability and knowledge had some input into the process before the heads of Bills are printed, but generally that is just not done.
The educational partners were widely consulted during the preparation of the Education Bill. The heads of the Irish Auditing and Accounting Supervisory Authority Bill were circulated and discussed with the appropriate accountancy bodies and various other people. During the drawing up of the Personal Injuries Assessment Board legislation a similar level of consultation took place and there are other examples.
The point made by the Vice Chairman is crucial to the business of this committee. Many of the problems arising from difficulties with the freedom of information legislation might never have arisen if certain provisions had been written into it. Mr. Scanlan referred to the Health and Social Care Professionals Bill and I agree with him on the issue of mediation. It will not work unless people know they can speak privately. Nobody here has any difficulty with that but what happens afterwards can be problematic. How does one reach a decision on outcomes? Any new legislation should contain a clear and positive statement about how outcomes are brought into the public domain and, indeed, about whether outcomes should be made public. The position of this committee is that it should be accepted from the outset that outcomes are made public. If they are not to be made public, there should be some explicit reason why that is so. A number of professions are dealing with that issue at the moment. We need to go further than what is contained in the Health and Social Care Professionals Bill, although I accept it is a useful model of good practice and the best we have seen to date.
Mr. Scanlan referred to the question of the confidentiality attaching to members of boards that are being established. He is correct that in almost every law establishing public bodies, a confidentiality requirement is attached to the members of the board. We understand how that works but I do not understand how it can be included in a Schedule. The confidentiality clauses in legislation are in place to prevent people from leaking information from the board. That is a completely different issue to the one raised by Deputy Catherine Murphy with regard to having a proper conduit and route for obtaining information from public bodies, including all those covered by the aforementioned confidentiality requirements. I presume Mr. Scanlan is not suggesting that by inserting the requirement for confidentiality into a new Schedule, one would be giving added protection to the public bodies, in terms of them not being required to release information. That would be a regressive step.
Mr. Scanlan
I am not comfortable dealing with the very general issue. I have already mentioned that the heads of the Health Information Equality Authority Bill were published recently by the Tánaiste as part of a consultation process. However, as the Senator has said, that is not always the case. In fact, it tends to be the exception rather than the norm.
With regard to the Senator's last point, I am not suggesting that the confidentiality provision would make information more confidential or give greater protection to the body. In fact, where we have been remiss is in not making a decision, at the time of making the normal provision covering the so-called "thou shalt not leak" requirement, to also assert that this should go into the Schedule, thus not affecting a person's right to access information under the Freedom of Information Act. Maybe that is where we have been a bit remiss ——
I misunderstood the point.
Mr. Scanlan
Perhaps the group to which we are referring needs to do business like that.
The core issue of access to information, even under the Freedom of Information Act, must be looked at from a much broader perspective. The Information Commissioner mentioned this in her statement to the committee and I also referred to it in my opening statement.
The Our Lady of Lourdes Hospital inquiry report was very well received by all the groups involved. In many ways the degree to which it was accepted as a very fair, robust report by so many different and disparate groups was surprising. It was seen as an excellent report. Judge Harding Clark made a very strong statement regarding patient safety and what needs to be done to underpin it. She recommended that the Department of Health and Children introduce legislation to protect clinical governance records and risk management clinical incident report forms from the application of the Freedom of Information Act. She said that unless such documents are protected from the freedom of information legislation or from discovery, they are unlikely to be created and opportunities for learning from mistakes will be lost.
We will be developing proposals for the Tánaiste and she, no doubt, will be bringing proposals to the Government about the wider issue of clinical governance. I do not mean that just in terms of clinicians, but in terms of the whole issue of patient safety and clinical governance in the health service. This raises a complex issue that must be teased out. One cannot presume that one side of the argument is automatically right. We are all concerned that the public interest and public safety are protected and therefore, we must examine the arguments on both sides. There are valid arguments suggesting that information should not be hidden and should be out in the open. Equally, however, there are other arguments that suggest that to achieve real openness, participation and honest reporting of events, information must be given protection. If I recall correctly, the Information Commissioner herself said that internationally, there were two views on this matter. I am not saying which view is correct but it appears to me that a very important debate must be had on the issue.
That concludes the discussion. I thank Mr. Scanlan and his colleagues for attending today and for being so forthcoming in answering questions. We will now proceed to item No. 5 on the agenda, namely, any other business. The first item is a letter to the Chairman from Senator O'Toole regarding the division of tolls at the toll barriers on the M50 between the State, local authority and the NRA. We must defer this matter to another meeting.
The next item is a letter to the chairman from the Minister of State at the Department of the Environment, Heritage and Local Government on Tralee beef and lamb. It is proposed to defer consideration of that until the clerk returns. The next item is the proposed reply to a letter to the committee on Tralee beef and lamb. We will defer this matter, in which Deputy Ned O'Keeffe has an interest, until the next meeting.
The joint committee adjourned at 12.20 p.m. sine die.