JOINT COMMITTEE ON HEALTH AND CHILDREN díospóireacht -
Tuesday, 12 Apr 2005

Travers Report: Presentation.

Chairman

I welcome Mr. John Travers, the author of the Report on Certain Issues of Management and Administration in the Department of Health and Children associated with the practice of Charges for Persons in Long-Stay Care in Health Board Institutions and Related Matters, who is here to discuss his report. This is a very important session as Mr. Travers may be able to indicate what he perceives to be the key legislative implications arising from the report. We also recognise that it will be an opportunity for members to clarify any outstanding issues or to pose questions they may have about specific areas of the report.

I also introduce to the committee Ms Anne-Marie Craig, who works with Lia O'Hegarty in the legal section of the Oireachtas. As we proceed, Ms Craig is free to respond to questions from the committee.

I invite Mr. Travers to speak briefly on the main findings of the report and then members may ask questions. I draw the witness's attention to the fact that while members of the joint committee have absolute privilege, that privilege does not apply to witnesses appearing before it. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I cannot overemphasise this point and, as Chairman, I will not tolerate members choosing to ignore this core principle of parliamentary practice.

Mr. John Travers

I am glad to be here today to assist the committee in its consideration of the report that I submitted to the Tánaiste and Minister for Health and Children, Deputy Harney, in early March. The report, as the committee will be aware, related to certain issues of management and administration in the Department of Health and Children associated with the practice of charges for persons in long-stay care in health board institutions and related matters. Although a bit of a mouthful, that was the title of the report.

This is a report which I was requested to prepare by the Tánaiste on 16 December 2004. The terms of reference are set out on page 1 of the report. Essentially, there were four matters on which I was asked to report. These were: the date that the Department of Health and Children first knew of the existence of legal concerns relating to the imposition of charges by health boards on relevant persons; all the actions and the decisions taken by the Department of Health and Children in response to the legal issues that arose concerning the imposition of charges by health boards on such relevant persons; the reasons for the period of time that elapsed from the date that such knowledge was first acquired up to the request by the Department of Health and Children for legal advice from the Attorney General on 27 October 2004; and such changes in practices and procedures in the Department of Health and Children that are necessary or desirable for the purpose of prioritising the response of the Department to matters of significant policy, financial or legal implications. Essentially, the four matters I was asked to look at were: when was the Department aware that there were legal concerns; when it knew there were such legal concerns, what did it do about them; why did the Department take the actions concerned; and where should matters go from here.

The terms of reference required me to report by 1 March and in some ways that was a relatively short period, given the complexity of some of the issues involved and in view of the period of almost 30 years over which the practice of charging for long-stay care had evolved.

In working to prepare my report, I provided the terms of reference relating to it to a number of people and organisations. In doing so, I asked them to make available to me any information and records that were relevant to these terms of reference. The people in the organisations I approached in this way are listed at Appendix 3 on page 101 and at Appendix 4 on page 103 of the report. They included the Secretary General of the Department of the Taoiseach whom I mention in the introduction to the report but who is not listed in the appendices.

I also consulted and interviewed more than 30 people, including Ministers and officials, on the matters on which I was requested to report. These are also listed at Appendix 5 of the report. I met with all of these people on at least one occasion and some on more than one occasion, with the exception of four people — Dr. Ruth Barrington, Mr. Colm Gallagher, Mr. Gerry O'Dwyer and Mr. John Hurley — with whom I discussed the matters over the telephone. I received good co-operation from all of these people for which I am very grateful. I am particularly grateful for the help and support I received from many officials in the Department of Health and Children and for their professional approach to the inquiry I was asked to undertake.

The findings on the four matters on which I was asked to report are set out in the relevant chapters of the report under each of the particular headings. They are summarised at the end of each chapter and overall, in the summary of findings and recommendations in Chapter 7. I would be glad to assist the committee in any way possible on the matters which are covered in my report.

Deputy Twomey

I thank Mr. Travers for coming here today. There will be a number of questioners but I will begin with a few questions of my own. There has been much controversy about the briefing papers provided to the participants at the MAC meeting on 16 December 2003. As Mr. Travers will be aware, the Tánaiste, on legal advice, has refused to release these papers to the committee. However, I note that Mr. Travers quoted extensively from this legal advice through his report and that the legal advice seems to indicate that making charges against people over 70 was illegal. In addition, the extract from the South Eastern Health Board legal advice, which Mr. Travers quotes in his report, states that the issue is of fundamental importance and potentially a breach of the guarantee of equality contained in Article 40 of the Constitution. This seems to be clear legal advice. Could Mr. Travers inform the committee whether the quotations he used in the paragraph in the report were included in the briefing documents which were given to the Ministers for the 16 December 2003?

Mr. Travers also stated throughout his report that the Minister was not informed in any substantive way on these matters prior to the circulation of the papers for the MAC meeting of 16 December. There is a clear implication in that statement that the papers circulated at the meeting on 16 December 2003 constitute a substantive briefing on this issue. Would Mr. Travers agree with that interpretation, namely, that this was a substantive briefing document given to the Ministers prior to the meeting?

What does Mr. Travers mean by the term "in any substantive way"? In some of the background papers Mr. Travers saw, was there some indication that this issue was discussed or alluded to? I seek clarity on what Mr. Travers means by "in any substantive way".

In reply to Parliamentary Questions Nos. 140 and 141, which I put to the Tánaiste and Minister for Health and Children on 22 March 2005, I received a memo which was circulated by a Mr. Michael Kelly to a number of people in his Department. It was circulated to all the principal officers and to every member of the MAC committee. Did Mr. Travers get the chance to see this memo? The memo stated:

In general, the relationship would work as follows:

—Any policy document being submitted to the Minister should be copied to the relevant advisor.

—That the relevant adviser should be made aware of and invited to key meetings concerning either a policy change or high profile topic/incident.

—Circulation of relevant documents to the advisers; and

—Participation of advisers at MAC meeting.

Mr. Travers made a number of recommendations in his report about the role of advisers. Did he review the role of advisers and what did he find was wrong in this instance, in what advisers did or did not do in informing the Minister as to what was going on in the Department at that time? I also would like Mr. Travers to clear that up for the committee.

At our previous meeting we stated that we would request the parliamentary legal adviser to have discussions with the Attorney General about the South Eastern Health Board's legal opinion. Will the Chairman indicate if there has been a reply from the Attorney General on this legal advice and what can be released to the committee?

Ms Anne-Marie Craig

The parliamentary legal adviser, Ms Lia O'Hegarty, has been seeking to speak with the Attorney General. I understand she has met him at this stage but I am not yet aware of the result of the meeting. I will check up with her and inform the Deputy.

Chairman

We will have word on that tomorrow.

Deputy Twomey

Are we meeting tomorrow?

Chairman

No but we will have word back to the Deputy on that specific issue tomorrow and he will then be able to prepare for the next meeting. Rather than banking questions, we will deal with them one at a time. We will review the situation in approximately one hour. We will hear first from Deputy Twomey who will be followed by Deputies Neville and McManus.

Deputy McManus

I thought I would follow Deputy Twomey.

Chairman

I thought that was the best way to proceed.

Deputy McManus

We are not all in this together.

Chairman

Are we not? I thought the Deputy wanted to ask a follow-on question. As the joint committee will meet for approximately three hours, there is plenty of time for everyone to ask questions. We will hear first the reply to Deputy Twomey's questions.

Mr. Travers

The first question was related to the briefing document circulated for the meeting of 16 December 2003 and how it compared to the material which I viewed relating to the legal opinion received from the South Eastern Health Board. I do not have the documents with me but my recollection is that the briefing document circulated for the meeting of 16 December 2003 was a summary document. It summarised some of the key pieces of legal advice received from the South Eastern Health Board. The briefing material I had received included the full legal opinion from the South Eastern Health Board. It is probable that my report contained more information than the briefing document circulated for the meeting of 16 December 2003. That is my recollection but I would have to check to be certain.

The second question was whether I had considered the briefing document circulated on 16 December 2003 to be a substantive document. It was a substantive briefing document.

Deputy Twomey

In other words, it was made crystal clear that the nursing home charges were illegal.

Mr. Travers

No, it was made crystal clear that the legal adviser to the South Eastern Health Board had significant concerns about the legality of the charges.

Deputy Twomey

Mr. Travers stated in his report that having read the briefing documents, the Minister of State, Deputy Tim O'Malley, stated the issue would give rise to significant legal, operational, financial and political implications. Am I correct in saying that was Mr. Travers understanding?

Mr. Travers

Yes. The Deputy also asked what I meant by the word "substantive". When I used it, I meant the document was significant or important. Does that answer the Deputy's question?

Deputy Twomey

They may have been looking at matters with the benefit of hindsight. This issue would have arisen in the context of the 2001 legislation and budget and then foisted on the Department of Health and Children for discussion. The South Eastern Health Board would have had to obtain legal opinion which would have been the subject of articles in the media and the Ombudsman's report. Much more would have happened between 2000 and 2003 within and outside the Department. Did Mr. Travers discover advice within the Department that clearly had identified a crisis was developing or was it, as he stated, a matter not alluded to in any great detail prior to December 2003?

Mr. Travers

From the departmental files I read, it was clear to officials that the charging of people over 70 years of age for long-term care in health board institutions was illegal. That was the position at the time of the passing of the legislation in summer 2001.

Deputy Twomey

It was clear that the charges were illegal.

Mr. Travers

The Deputy may recollect that the decision to translate it into legal form was contained in budget 2000 and that it was done in summer 2001. From the files I read, it was clear to officials that people over 70 years of age should not be charged for long-term care in health board institutions. The position was also made clear in a letter which issued from the Department in early 2002 in response to a letter which clearly stated people over 70 years of age should not be charged as per the legislation enacted in summer 2001. I hope this answers the Deputy's question.

The Deputy also referred to a memorandum by the Secretary General relating to the role of advisers within the Department. I may have seen that paper and recall some of the Deputy's quotations. While I cannot be certain, I think I did see the document, although I have not referred to it in my report.

Deputy Twomey

Perhaps I can give Mr. Travers a copy.

Mr. Travers

There is no need. I would probably have seen the document while going through the files.

Deputy Twomey

My point relates to what Mr. Travers stated about the document being fairly clear within the Department of Health and Children, even as far back as 2001 or 2002, that the charging of people over 70 years of age was illegal. The memorandum circulated by Mr. Kelly to all members of the MAC and all principal officers and other officials within the Department relates to the role of advisers within the Department in accordance with regulations set down by the Minister.

Deputy Devins

I am not familiar with that memorandum. Perhaps other members could be given a copy.

Chairman

Yes.

Deputy Twomey

The memorandum states the relationship will work as follows: "Any policy document being submitted to the Minister should be copied to the relevant adviser; the relevant adviser should be made aware of and invited to key meetings concerning either a policy change or high profile topic or incident; there should be circulation of relevant documents to the advisers and participation of advisers at MAC meetings".

It is clear the Department of Health and Children was aware in 2001 and 2002 that the charges were illegal. Given the role of civil servants, I find it strange they did not pass on this information to the Minister or the advisers. The joint committee has heard evidence that relations between Ministers and advisers appeared to be close and that the advisers were almost part of the chain of command within the Department. It seems strange, therefore, that this issue was not drawn to the attention of Ministers, Ministers of State or their advisers, given it was fairly well known within the Department and was the subject of communication with the health boards.

Mr. Travers

That is an issue which the Deputy will have to put to officials in the Department. I asked if the Ministers or advisers had received written memoranda, notes or submissions on the issue and if copies could be made available to me. I did not receive any.

Deputy Twomey

Did Mr. Travers make inquiries as to verbal communications that might have taken place between civil servants, advisers and Ministers? I note from the report that a discussion took place between an official from the Department of Health and Children and an official from the ministerial office who recollects having seen the folder but not its contents. Did Mr. Travers make inquiries as to whether similar conversations had taken place between civil servants, advisers and Ministers?

Mr. Travers

On the last question, I spoke with the officials mentioned to ascertain what they had to say on the matter. The Deputy also asked whether I had specifically asked for information on verbal conversations between individuals and Ministers. The terms of reference I had were very clear on this and I made those terms of reference available to the Secretary General of the Department who, in turn, made them available to the officials of the Department. I requested all records that were available relating to the matters that I was to cover in my terms of reference.

Deputy Twomey

The terms of reference would not have covered any verbal briefings that took place between civil servants and advisers or Ministers.

Mr. Travers

I would have to think about that. I asked for all records and whether they were written or unwritten records did not matter to me. I wanted to get all the information in the Department concerning the matters I was examining in the terms of reference. I expected that the Department would provide me with all such information available within the Department on those issues.

Deputy Twomey

In the report prepared by Mr. Travers there is an obvious conflict of evidence between former Minister for Health and Children, Deputy Martin, and Mr. Kelly. Mr. Kelly felt he had briefed the Minister verbally on this matter. Deputy Martin denies any knowledge of any meetings. It was left at that. Has Mr. Travers explored this verbal contact between the Minister and his advisers and civil servants? Mr. Travers has not examined this.

Mr. Travers

I certainly did so when I spoke with the Secretary General and the Minister. I discussed with each of them what had transpired in the meetings that took place between them. I recorded what I learned from those questions in my report.

Deputy Twomey

Does Mr. Travers find it strange that the Minister and his advisers had no recollection of the seriousness of this issue if this had been known and flagged in the Department of Health and Children in 2001?

Mr. Travers

I would not have a comment to make on that. It does not come within my terms of reference. In the report I noted that these matters were not brought to the attention of the Tánaiste in the briefing notes provided by the Tánaiste when she took over as Minister for Health and Children. These matters were not covered in the briefing notes provided to other Ministers throughout the 1990s. I asked for all the briefing notes given to each Minister who came into the Department during the 1990s. These matters were not covered in any of these briefing notes for any of those Ministers during that period.

Deputy Twomey

Would that be surprising in light of the freedom of information legislation in operation at the time? There is a lot of information that might have been discussed verbally. We know of civil servants passing information to Ministers verbally but that does not come under Mr. Travers's terms of reference.

Mr. Travers

I am not sure what kind of comment I can make on that. It is the function of staff in a Department to make all relevant information available to Ministers so that the functions of the Department can be discharged. It is not always necessary to do this solely in verbal communication. With regard to significant issues, it is important that they are set down in writing and recorded.

Deputy Twomey

I will come back to Mr. Travers on the responsibility of Ministers and Ministers of State.

Deputy McManus

I thank Mr. Travers for coming before the committee. The report is significant and tells a sorry tale. At the beginning of the report, Mr. Travers defines the role of the Department of Health and Children and includes Ministers in this. Political responsibility is examined as well as the role of administrators. There is concern at the approach taken by Mr. Travers, although his work has been done assiduously. When work on this project commenced Mr. Travers sought records from civil servants. However, I do not see that Mr. Travers sought records from the advisers or the Ministers. I am not sure that there are such records but I ask Mr. Travers if he pursued the advisers and the Ministers concerning contact they had among themselves. Advisers are paid a great deal of money to provide advice and on this matter we need clarity.

Under the Ministers and Secretaries Act 1924, a Minister is accountable for matters of which he or she is aware or of which he or she could be expected to be aware. Mr. Travers makes the point that previous Ministers were not briefed but it is clear from the report that they were briefed on a number of occasions about the illegality of these charges. Heads did not roll as a result of this report. Only one head rolled, that of a civil servant. There is a concern that politicians will be let off the hook for problems that exist at departmental level. That is a deep-seated concern, both within and outside the Civil Service. Why has Mr. Travers not apportioned responsibility for the fact that the former Minister, Deputy Martin, was unique in the information that was provided to him? Deputy Martin maintains he did not read the briefing for the MAC meeting in December 2003. That in itself is worthy of comment. He had advisers who also received this information. At that point, a Minister should know what is going on. He cannot plead ignorance.

There were two Ministers of State, one of whom undertook to brief the Minister for Health and Children and the Taoiseach, present at that meeting. Mr. Travers does not comment on that. Does he think it is reasonable for that kind of communication to be alluded to in the report rather than scrutinised in terms of responsibility of Ministers of State and Ministers? The Secretary General set up a working group with commendable speed after that MAC meeting. It would appear that the Secretary General understood this was important and that something had to be done. There is a conflict of evidence. The Secretary General indicates, in the language of civil servants, that he supplied the Department with the documents that were to be sent to the Attorney General. Does Mr. Travers not think that this merited further investigation? The Secretary General says that a member of his staff had further conversations with the Minister about the file in the Minister's office. I am curious as to why this was not pursued. I thought it was an obvious line of inquiry. Everybody is responsible; some lived up to their responsibilities and some did not. I have other questions and I hope that I am not overloading Mr. Travers.

Chairman

Deputy McManus can have some questions answered and then pose some more.

Deputy McManus

There is another specific question. We are in a curious position because Mr. Travers has seen the legal advice of the South Eastern Health Board and the committee members have not. Does this advice belong to the Health Service Executive and not to the Minister? Under the accounting procedures of the South Eastern Health Board, it is a reserve function of members to pass the accounts. If the members were not informed that money had been collected illegally, was there a responsibility on the CEO of the South Eastern Health Board to inform them? If such information was not provided, an issue would have arisen in that the accounts on which they were voting were based on illegal charges. I presume that the Comptroller and Auditor General should also have been informed. Would that not be normal practice in terms of following up on funding for a health board which was based on illegally taking money from people? If we have time, I would like to return to this issue later.

Chairman

I remind members that we have until 1 p.m. I do not want anyone, particularly Mr. Travers, to think this is being rushed. I have no difficulty with someone asking an initial question, obtaining an answer and coming back again immediately.

Mr. Travers

Deputy McManus asked many questions and I may not have picked up on all of them. I will try——

Chairman

I know Mr. Travers does not have back-up staff with him so I have no difficulty with a Deputy reminding him of the questions he or she may have asked.

Mr. Travers

Deputy McManus asked whether I had made inquiries from the Minister and advisers in respect of the records they possessed. My answer is yes. I had sent them the terms of reference for the report I was asked to undertake and I requested them to provide me with all relevant information to help me in compiling that report.

I am not quite sure what was the next question. I think Deputy McManus made a statement that she felt the Ministers and advisers had been briefed strongly on the illegality of the charges. I did not see any significant briefing material provided by the officials of the Department to the Minister pointing out that the charges levied on people in long-stay care in health board institutions over the years had been illegal. I did not see any written briefing from the officials in the Department to Ministers on that particular issue.

Deputy McManus

Was that not the conclusion of the South Eastern Health Board's legal advice?

Mr. Travers

Yes.

Deputy McManus

That was in the briefing.

Mr. Travers

The briefing provided by the Department to Ministers did not accept that legal advice as determinate and the purpose of seeking legal advice from the Attorney General was to get his opinion as to whether, in his view, the advice received by the South Eastern Health Board stood up.

Deputy McManus

The point I was making was that unlike the advice received by previous Ministers, the legal advice received by this Minister was that there was a problem, that the charges were illegal. Regardless of what the Department had said, the Ombudsman gave this information recently on other matters concerning problems with the legal basis for charges. The South Eastern Health Board was specific and that information, uniquely, was available to Deputy Martin when he was Minister for Health and Children. Had he acted then, we would have saved possibly up to €500 million.

Mr. Travers

It would be wrong to say the legal advice pointing out that practices of charging for long-stay care in health board institutions was only the legal advice coming from the South Eastern Health Board in October 2002. Much legal advice was made available to the Department, through various sources over the years, which indicated the same thing. I can recall some of them here.

Deputy McManus

Not to the Minister.

Mr. Travers

The Deputy should bear with me. The advice provided by Messrs McCann and Keane in the 1970s stated clearly that the practices put in place at that point did not stand up legally. The Department's own legal adviser stated it on many occasions. A number of advisers and legal advice provided over the years made it clear that the charges did not have a good legal foundation.

Deputy McManus

In the interests of clarity, as the point has already been made, this is not about advice to the Department but rather about advice to the Ministers. If one examines the experiences of John Boland, it is remarkable that he was able to understand this issue immediately and, even though he was only a caretaker Minister, to act on it. I presume that is good ministerial practice. Does Mr. Travers consider that the Minister is only responsible for not probing enough? When one looks at the record, one sees that he received legal advice and that he was briefed by the Secretary General. Mr. Travers's report states:

What the 2001 Act did, as it happens, achieve was to bring the underlying problems associated with the custom and practice of charges in health board long term care institutions to the surface in a way that effectively forced their resolution.

The Minister possessed much more information than his predecessors who held the office in the period between the making of the McCann judgement and the commencement of his tenure. He had information and received briefings. Surely he had political responsibility in that he did not act when he obtained that information.

Mr. Travers

That is a matter on which the Deputy is free to make comments of that nature. It does not seem to me that the question of whether political responsibility came into play was part of the terms of reference I was asked to examine.

Deputy McManus

Mr. Travers included the Ministers in the Department.

Mr. Travers

Yes, in the Department.

Deputy McManus

It seems Mr. Travers has applied different rules to civil servants than those he applied to politicians. He states that it is not up to him to judge but he is providing judgment on how the administrators and civil servants operated. This was not just about civil servants. Mr. Travers makes that point at the beginning of his report. This was about Ministers and civil servants. Why is Mr. Travers so coy now?

Mr. Travers

I do not think I have been coy. What I stated clearly in the report, and I repeat it here, is that there was systemic corporate failure in the Department of Health and Children over many years on this issue. The definition of the Department I used encompassed both the Minister and the officials. I made it clear that the failure rested with the entire corporate entity. I went on to say that I felt, and this is my view, that there was a greater responsibility on the administrators in the Department to bring to the fore the issues of concern because they had the corporate memory of the Department dating back over many years. The function of civil servants in a Department is to analyse and bring forward, in a very clear way, issues that are important from a political, administrative and policy point of view, to examine the implications of the facts that come to their attention and to make proposals on how to deal with these issues. I did not see, in any of the documents to which I had access in the Department, such a strong analytical undertaking by the officials of the Department on this matter. I stated that clearly in the report.

Deputy McManus

What about the South Eastern Health Board advice?

Mr. Travers

What was the question on the South Eastern Health Board advice?

Deputy McManus

Perhaps Mr. Travers could clarify whether this would belong to the Health Service Executive rather than the Minister in terms of determining whether it can be published. If the CEO had not transmitted the advice received by him to members of the board — who proceeded to sign off on the accounts of the health board — would there be a problem in terms of the accountability of the CEO?

Mr. Travers

That question probably should be put to the CEO of the South Eastern Health Board. A summary of the advice was provided not only to the board of the South Eastern Health Board but also to the CEOs of the other health boards in October 2002. The advice was disseminated to quite a significant number of bodies at that point and I would be surprised if the members of the South Eastern Health Board were not aware of it.

Deputy Twomey

It was made clear to us that this legal advice was not received by board members of any health board.

Mr. Travers

I am not aware of that. The advice was transmitted to CEOs of other health boards.

Deputy Twomey

Perhaps it was sent to the CEOs but it was not sent to board members. One of the reasons given for restricting our access to the advice was that even though it was widely disseminated among officials in the Department of Health and Children and the CEOs of the health boards, it was not distributed to elected board members.

Mr. Travers

Again, I am not aware of that.

Deputy Twomey

The significant point is that there was also a major change in activity within the health boards. They stopped charging patients who complained and a number of court cases on the issue were in the pipeline. There were substantial changes taking place at that time.

Deputy McManus is trying to determine the link between the politicians who have executive responsibility in a Department and the civil servants who have administrative responsibility. It is beyond belief, in light of the activity that was taking place within and outside the Department, that those associated with the political executive, both Ministers and advisers, were totally in the dark as to the significance of the issue, particularly when civil servants, or the administrative part of the Department were fully aware of its significance for three or four years. It cannot simply be declared a corporate failure. It is a complete breakdown in communications and we need to know who is to blame. The former Minister for Health and Children, Deputy Martin, sent a memo in 2000 which established this system.

Mr. Travers

I refer again to some of my comments in the report on those issues. The conclusion I came to was that there was an overall corporate failure in the Department to deal adequately with the matter. If it is broken down into two parts, I am of the view that the failure was greater on the part of the administrators than it was on the part of the politicians. I did not exclude the politicians from responsibility for these matters, I said that the politicians should have probed more deeply over the years and I include the former Minister, Deputy Martin, in this. This probing was not done.

Deputy Twomey

This relates to overall responsibility, which Mr. Travers made clear lies at the political level. We must determine if the political executive of the Department knew absolutely nothing or deemed the issue to be no more important than whether a health centre would be built in a specific area. The sums pertaining to this issue were in the order of €100 million per annum.

Mr. Travers

There is nothing in my report which indicates that Ministers, over the years, knew absolutely nothing. I pointed out that the issues were a matter of public concern, had been raised in parliamentary questions and at health board level. Representations were made on these issues from time to time. Ministers would have known that there was a concern about the charging regime in place. However, there was no evidence in the documentation that was made available to me of a substantive submission to the Ministers which clearly pointed out that the charging system in place was illegal. I did not see that written down in any document presented to me or in any document that would have been presented to the various Ministers and Ministers of State over the years.

Deputy McManus

When one is a Minister, one does not need to have that sort of definitive, black-and-white information to understand that there is a problem to be addressed. In my experience, most aspects of politics are a little messy and it is unusual to have such clear-cut information. If it had been clear-cut, the problem might have been resolved years ago. The main point is that in this instance we had a Minister for Health and Children who, unlike other Ministers, had a briefing.

The law was changed in 2001 and this put everything into focus. The South Eastern Health Board realised the potential implications and sought legal advice. The political landscape was altered significantly at this time. Ministers should not require spoon-feeding and should not need to have everything spelt out. Would Mr. Travers not agree that the briefing was sufficient to alert the Minister that there was a real problem? Even if it was not 100% clear, it was obvious that the law had to be changed. Mr. Travers made that point, namely, that when the law was changed to provide medical cards to all those over 70, it meant that the issue had to be resolved. That was in 2001 and massive amounts of money have been lost in the interim because the former Minister did not act. It seems that Mr. Travers is not following through on the reality of the situation. He is trying to say that no former Minister was briefed. However, none of them was in the unique position occupied by Deputy Martin.

Mr. Travers

It is true that new issues arose from 2001 onwards. By definition, the issues were new because of the legislative change at that time. However, the fundamental problem of the lack of a legal foundation for the charging system in place since 1976 stems from that date. The 2001 legislation extending free medical aid to the over 70s made very clear, in statutory form, that people over 70 could not be charged for long-stay care. However, the fundamental problem was present from 1976 and remained in place post-2001. There was no change in respect of that fundamental problem and the basis thereof, which was that there was no sound legal foundation for the practices put in place in 1976.

Deputy McManus

Nobody argues that point but what I am suggesting is that former Minister, Deputy Martin, had much more information than his predecessors.

Mr. Travers

By definition, more information becomes available with the passage of time. In that sense, the former Minister, Deputy Martin, had more information.

Chairman

I must emphasise that Mr. Travers has no back-up staff with him and I would prefer if members would ask him questions, allow him answer and intervene again if they so wish.

Deputy Gormley

I appreciate that Mr. Travers does not have back-up staff and I thank him for appearing before the committee and for producing his report. I would like to clarify a number of points before I raise more substantial questions. Did Mr. Travers have discussions with the Tánaiste about the terms of reference or the report itself and could he elaborate on those?

Regarding the meeting held on 16 December, which I see as pivotal, it strikes me that the Ministers of State, Deputies Callely and Tim O'Malley, acted on assumption. Deputy Callely assumed that the advisers and Department officials would brief the Minister, while Deputy Tim O'Malley assumed that the issue would be dealt with as a matter of course. I agree with Deputy McManus that Mr. Travers's account and his conclusions differ. He deals with administrative responsibility but there appears to be a complete lack of communication between the Ministers of State and the Minister for Health and Children. Does Mr. Travers agree there appears to be a complete lack of communications between the Ministers of State and the Minister? I asked the Tánaiste whether any meetings were held between the Ministers of State and the Minister but did not receive a reply. Perhaps Mr. Travers also asked this question of the Ministers. Does he agree it would make sense that the political heads of a Department meet on a regular basis to discuss issues? I assume that weekly meetings should take place. These people seem to trod around in the dark without speaking to each other. The Minister does not read his briefs. The issue of maladministration also applies to Ministers.

Mr. Travers

The terms of reference had been drafted when I was asked to undertake the report on 16 December. Upon being asked to examine them I suggested one or two changes which were then incorporated in the terms of reference. These changes involved definitional matters including relevant persons and to ensure that I would improve my access to information through the co-operation of those to whom I directed my inquiries.

Deputy Gormley

Did Mr. Travers talk to the Tánaiste personally about this?

Mr. Travers

I talked to a number of her advisers on the issue. They, in turn, were in contact with the Attorney General's office on drafting the terms of reference. As the first three chapters of the report comprised its factual basis, I made them available to a number of people including the Tánaiste, Ministers and the Secretary General of the Department.

Deputy Gormley

When were they made available to these people?

Mr. Travers

I do not have the exact date but it probably occurred in January or February. Elements of the report which describe my discussions with Ministers, officials and others were made available to the relevant parties to ensure that my account was accurate. This material was primarily made available to the Ministers and the Secretary General but also to the two officials referred to in the report, one of whom claimed to have seen the document in the Minister's office and the other of whom claimed to be unaware of it being there. I agreed with both of those officials that the material of the report reflected our discussions. In that sense the report was discussed with people. I made a copy of the completed report available to the Tánaiste on Friday, 3 March, at which time I discussed it with her. I made one or two changes to the report over the subsequent weekend before submitting it.

Deputy Gormley

Did the changes come on foot of the discussion with the Tánaiste?

Mr. Travers

No, they did not. I informed the Tánaiste that I had not had the opportunity to read the document thoroughly and that I would like to do so. The letter I sent to the Tánaiste drew attention to two issues regarding changes I made in the report after reading it over the weekend. This letter is included at the beginning of the report.

I assumed that Ministers of any Department held regular meetings so I did not inquire whether this was indeed the case. I did not explore this matter in detail with the Minister or the Ministers of State. I asked the former Minister of State at the Department of Health and Children, Deputy Callely, whether he had followed up the statement he made at the meeting of 16 December on briefing the Taoiseach and the Minister on the charges issue. He informed me that he had mentioned the issue to the Taoiseach in the Dáil but that he had decided against mentioning it to the then Minister, Deputy Martin, because he was of the opinion that the Minister's advisers and Department officials would do so.

Deputy Gormley

If Mr. Travers did ask the question and discovered that they did not meet regularly, would he agree this to be problematic?

Mr. Travers

That is outside my terms of reference and should be discussed instead with the Ministers concerned.

Deputy Gormley

My clear impression is that they were not very communicative on this serious issue. The least we ought know is the frequency of meetings between these people on important issues in their Department. Would Mr. Travers agree that this is an area that ought be probed? We are discussing political responsibility and maladministration. It is surely a cause of concern that meetings are not held regularly. I wish Mr. Travers had asked questions on this.

Mr. Travers

I assumed that frequent meetings were held by them so I did not inquire into this issue.

Deputy McManus

I ask Mr. Travers about his own interpretation of the terms of reference. He said that he took the term "Department of Health and Children" to refer to the entire corporate entity operating under the title of that Department, encompassing both Ministers and officials. However, it is clear from his answers that because he did not investigate Ministers' practices, he cannot reach any conclusions about their behaviour.

Mr. Travers

I am not sure that is a fair comment by the Deputy but she is free to make it. I assumed that a reasonable number of meetings would be held by Ministers.

Deputy McManus

Why was that assumption made?

Mr. Travers

It would have been the normal practice to do so. In my experience of the Departments within which I worked, Ministers met their Ministers of State on a regular basis.

Deputy Gormley

What would be Mr. Travers's view of the adequate frequency for meetings of Ministers?

Mr. Travers

Meetings should be held every few weeks.

Deputy Gormley

Every few weeks.

Deputy McManus

If Mr. Travers had made assumptions on other areas of the Department's operations as a corporate entity, we would not have a report. He did not make assumptions on the work practices of civil servants but on how Ministers fulfil their responsibilities. Does he not think it might have been helpful to state in his report that Ministers should read their briefing documents, that highly paid advisers should make sure that their Ministers are briefed and that when a Minister says he will brief somebody he should do so? Are these not part of what happened?

Mr. Travers

I clearly stated in my report that I would have expected the Ministers' advisers to have probed more deeply into the issues discussed at the meeting of 16 December 2003.

Deputy Twomey

I would have made the assumption that civil servants do their best to inform Ministers, Ministers of State or their advisers of the issues being discussed. Mr. Travers has made the assumption that the Minister and his Ministers of State would have met on a regular basis and accepted as fact that the executive and administrative arms of the Department of Health and Children did not seem to communicate. The then Minister had five or six senior political colleagues between advisers and Ministers of State who were responsible for the Department of Health and Children, yet having spent three or four years in the Department, the political executive did not have a clue about an issue that civil servants believed so important that they were disseminating information on it to health boards. Such an assumption is a bridge too far for me to cross.

Mr. Travers

I do not think I stated that in the report. I stated quite clearly that I would have expected the then Minister and the Ministers of State and those who had held these positions during the years to have probed more deeply into the issues that were the subject of the report.

Deputy Gormley

I am not privy to the operations of the Department, in particular the way in which the Minister and the Ministers of State function. However, as a person with extensive experience in the Civil Service, would Mr. Travers expect minutes to be kept of meetings between the Minister and the Ministers of State? Did he ask for the minutes of those meetings?

Mr. Travers

In response to the Deputy's last question, the answer is that I did not. Generally, I would not expect minutes to be taken at meetings or general discussions on policy matters between the Minister and the Ministers of State. However, if officials were present at the meetings, I would have expected minutes to have been kept.

Deputy Gormley

Are we to believe there were no official meetings?

Mr. Travers

If minutes were kept on the matters I was asked to inquire into, I would have expected them to be made available to me by virtue of the fact that I had asked for them when I submitted the terms of reference to the Secretary General of the Department in December 2004.

Deputy Gormley

So would I. That leads me to believe no formal meetings take place between Ministers and their Ministers of State. That is the only conclusion to which I can come.

Mr. Travers

I do not know the answer to that question.

Deputy Gormley

I have concluded that no formal meeting took place between the former Minister and his Ministers of State because if no minutes were kept, it was not a formal meeting.

Chairman

As far as Mr. Travers is aware, no minutes were taken. The Deputy will have an opportunity to ask that question on another occasion.

Deputy Gormley

Mr. Travers has said meetings between a Minister and his or her Ministers of State should take place every few weeks. The members of this committee need to find out how often meetings took place, because if no meetings took place, there was a serious problem in the Department.

Chairman

I am not trying to stifle the debate but to be fair to Mr. Travers, he has made the point that he looked for reports but when none was forthcoming, he presumed there were no written reports. The former Minister and his Ministers of State will answer questions when they appear before the committee.

Deputy Neville

I wish to follow on from the previous speaker. My question relates to paragraph 4.40 of the report dealing with the meeting of 16 December 2003 in which the Minster of State, Deputy Callely, stated "he would speak with the Taoiseach and with Minister Martin" about the issue of long-term care charges. He subsequently informed the Taoiseach of the issue. Is the Minister of State, Deputy Callely's undertaking to speak to the Taoiseach not consistent with an appreciation of the seriousness of this issue as a result of the meeting, not from the briefing papers which he did not read? Will Mr. Travers confirm whether I am correct in my interpretation that the Minister of State appreciated the seriousness of the issue raised at the meeting of 16 December when he felt he should go to the Taoiseach and tell him about the matter? The report states that at that stage the Department sought legal advice which was not followed up. What surprised me was the extent of the legal advice obtained prior to this date and that instead of seeking legal advice, they should have got on with the decision on the issue.

In a further paragraph it is stated the Minister of State, Deputy Tim O'Malley, was aware from his reading of the briefing documents of the significant legal, operational, financial and political implications. That suggests that the content of the briefing documents which have not been made available to members of the committee made it clear to anyone who read them that there were very significant issues that would require an immediate decision and action by the two Ministers of State to inform the then Minister for Health and Children about them. In fact, the Minister of State, Deputy Callely, informed the Taoiseach but did not inform the then Minister, Deputy Martin.

The Minister of State, Deputy Tim O'Malley, did not see it as a significant issue in relation to his role. The Tánaiste stated in a recent statement that there was a significant issue on refunding patients in psychiatric institutions and people with a disability in institutional care. I find it very strange that the Minister of State did not see the significance of the issue for psychiatric patients or people with a disability in institutional care who had medical cards. Does Mr. Travers have a view as to why the Minister of State or his advisers did not understand that the charges should not apply to those with a medical card in long-stay care as well as those in nursing homes? Does this relate to the attitude in the Department on the insignificance of those in psychiatric institutions?

Mr. Travers

I stated clearly in the report the views expressed on the issues involved by the Minister of State, Deputy Tim O'Malley. Any other questions would need to be put to him.

Deputy Neville

Does Mr. Travers have a view on the issue in regard to psychiatric patients?

Mr. Travers

That is a question for the relevant Minister of State. I recorded the Minister of State, Deputy Tim O'Malley's views on it.

Deputy Neville has stated I quoted from many legal opinions received during the years but in October 2004 it was the opinion of the Attorney General that was being sought. The papers were prepared earlier in 2004 following from the meeting in December 2003. The Attorney General is the legal adviser to the Government, Ministers and Departments. It was the correct and proper thing to ask the Attorney General for a legal opinion on the issues. Once the Attorney General saw the facts of the matter and the issues had been spelled out to him, he came to a conclusion that the system of charges in place since 1976 was illegal. The question that arises is why the opinion of the Attorney General had not been sought in the many years between 1976 and 2004.

Deputy Neville

It had obviously been sought by the late Deputy Boland.

Mr. Travers

I do not think so because there was nothing in the papers I saw that indicated that he had gone to the then Attorney General to seek his advice. However, he made proposals for dealing with the issue through legislation in 1987.

Deputy Neville

On my question regarding the status of the issue, the realisation of the seriousness of the problem at the meeting of 16 December by the two Ministers of State is highly significant.

Mr. Travers

The Minister of State, Deputy Tim O'Malley, stated clearly that he was aware of the seriousness of the issues raised in the material circulated for the meeting in December 2003 from a financial, legal and political point of view. His colleague, the Minister of State, Deputy Callely, indicated that he spoke with the Taoiseach on the question of eligibility arising out of the advices received from the South Eastern Health Board, which were also discussed at the meeting in December 2003.

Deputy Twomey

Regarding the comment Mr. Travers made about the corporate knowledge of the Department of Health and Children, there seems to have been a fair amount of corporate knowledge within the Fianna Fáil Party on this issue, given the presence of former Ministers, Charles Haughey and Deputies O'Hanlon and Martin, in the Department at pivotal times.

Sitting suspended at 11.20 a.m. and resumed at 11.50 a.m.

Chairman

We will recommence our deliberations with questions from Senator Henry.

Senator Henry

I thank Mr. Travers for attending. I wish to inquire about a general matter. It appears from the report that there is a great lack of information about meetings. Mr. Travers correctly states in it that the administration is the corporate memory of the Department. However, the corporate memory appears to have weakened with the passage of time. I have dealt with the Department of Health and Children for many years and, in the past, one could always obtain ample information about meetings. When did the practice of not taking minutes of meetings first emerge? I cannot help but feel that this is an important aspect of the entire saga. Mr. Travers states that there were no minutes taken in respect of general discussions. How could information pass into the corporate memory if no such minutes were taken?

In how many other areas of the Department were minutes not kept in respect of meetings that took place? I have been involved in the MDU discussions and I am aware that minutes do not appear to have been kept in respect of meetings between representatives of that organisation and officials of the Department. This is a serious problem. In his report, Mr. Travers states that, at the very least, minimal notes should be taken at meetings. I would like to think we could progress it a little more.

Have departmental officials become more reticent about taking decisions and bringing forth bad news? I did not know the late Mr. John Boland well. However, I do not believe anybody will mind if I say that at times he was a fairly sharp character. That he had everything explained to him is in stark contrast with what appears to have happened with the former Minister for Health and Children, Deputy Martin, and the Ministers of State, Deputies O'Malley and Callely, people with whom I have always found it easy to deal. What has happened that no minutes are being taken of meetings? Why is it no longer possible to bring bad news to the attention of Ministers? I ask that question because I am concerned there are other areas of the Department wherein such issues will arise and because the joint committee is hopeful Mr. Travers' report and these hearings will result in improvements in the system.

Mr. Travers

I thank the Senator for her questions. The first relates to the lack of information on meetings and when that practice commenced. It was always the practice but has worsened since the introduction of the Freedom of Information Act. The culture of a Department or organisation determines whether it is comfortable writing notes. From time to time officials have mentioned they are often discouraged by Ministers from recording discussions which take place between them. This appears to be an issue throughout Departments and organisations. I make the point in the report that it is important to deal with this issue and put in place basic ground rules for the recording of important decisions and turning points in the formulation of policy or decisions relating to the formulation of policy. This is an issue which needs to be tackled on a cross-departmental basis, not within one particular Department. It is important, not alone from the point of view of ensuring good public administration and good management of organisations but also from the point of view of democracy, the proper recording of decisions and discussions which lead to such decisions. As stated in the report, I would not be an advocate of recording every nitty gritty point made. There must be an allowance for the cut and thrust of debate and discussion between individuals. However, where important decisions are being made, it is imperative Departments and organisations record them.

The Senator referred to the late Mr. John Boland. When I examined the files, I was struck by the initiative taken by him in 1987. There was not a great deal in the files to allow one reach a conclusion as to how he had arrived at the decision to bring forward legislative proposals to ensure the legal foundations for the charging system were correct. The only conclusion I could come to was that as he was a barrister, he had reached his conclusion based on his knowledge of the situation. He may have been a member of the Eastern Health Board at the time and would have come across such issues in the representations made to him. However, I do not know if that was the case but he took the initiative in bringing forward the necessary legislative proposals.

Senator Henry

Can Mr. Travers think of any reason this was not pointed out more clearly to the former Minister, Deputy Martin, and the Ministers of State, Deputies O'Malley and Callely?

Mr. Travers

One of the questions I was asked was the reason the Department had acted in the the way it had. I have identified in the report six reasons it may have acted in the the way it did for many years. Everybody agreed with the concept that people in a position to make a contribution to the expense of being maintained in a nursing home should do so. Officials firmly believed the principle was correct and that they were entitled to apply the charges under the provisions of the 1970 Act. They had greater faith in the ability of the Act to allow them to do so than turned out to be the case.

It is accepted that health services have been under-funded for many years. Officials were trying to protect whatever income they had to cater for the services being provided. There was a series of good reasons for what the Department did. The problem was that the legal foundation on which the good intentions were based was not in place and insufficient weight was given to the legal weakness of the practise which developed from 1976 onwards. The system was based on the best of intentions but the legal clause hung over it for many years.

Up to recent times the Department believed it had a legal basis for what it was doing and that it was defensible. When I pressed to see the legal opinion which had allowed it to reach that conclusion, there was none. I took it that as the system had been in place for so long the Department believed the legal foundations were at the very least defensible, although it had never inquired into those legal defences. They are some of the underlying reasons for what transpired.

Senator Henry

It is a case of burying one's head in the sand. I am concerned more heads may be buried in the sand somewhere in the Department.

Deputy Gormley

As a person with extensive experience in the Civil Service, can Mr. Travers understand the grievance which civil servants have expressed since publication of the report that it undermines the basis on which Departments are run? Until now the buck has always stopped with Ministers, those with political responsibility. It seems that on this occasion the Secretary General is taking the rap. Does Mr. Travers see consequences in the future for the legislation which underpins the running of Departments and which dates back to the 1927? In this instance, ministerial responsibility clearly seems to count for nothing.

Mr. Travers

Having read the Department's files and talked to officials and Ministers in recent months, my main conclusion is that this is a significant issue in terms of its legal, financial and political implications. Given the substance of the issues involved, I would have expected a good analysis of the issues would have been done and set out clearly in a memorandum prepared within the Department and made available to Ministers so that there could be no excuse and no lack of clarity as to the importance or the substance of any of the issues. I did not see any document of that nature and I was surprised by that. I had to draw the conclusion that there had been a significant failure on the part of the administrative system because if that type of analysis had been undertaken and put clearly and forthrightly under the noses of Ministers, no Minister could have ducked the issues. I did not see anything like that put forward. The Deputy asked a question and I have tried to answer it as fairly as possible. That is the conclusion I came to in respect of the documentation I saw.

The other question the Deputy asked is whether that might have a bearing on the relationship between civil servants and Ministers in the future. To the extent that civil servants have been discouraged from putting their views on substantive issues in writing, it might be a good thing if that issue were dealt with because when substantive issues such as this arise there is a need for civil servants not to duck the issue and to put it down very clearly and forthrightly on a piece of paper and provide it to the Minister concerned.

Deputy McManus

What Mr. Travers is saying is that it is up to the civil servants to do that. Surely there is an alternative view. There was a problem. The Minister was briefed by the Secretary General. The Ministers of State were briefed. They were aware of the problem. Surely the Minister should have sought that analysis. Is that not the question? The Minister is in charge, not the Secretary General. There was clearly a problem. Did Mr. Travers not think it was appropriate to ask why the Minister did not get his analysis?

Mr. Travers

I asked the question and the answer I got from the politicians was that they assumed the legal bases for the decision to charge were well based and well founded. They made the assumption——

Deputy McManus

That is unsustainable.

Mr. Travers

Let me answer the question, please. That was the answer I got from the Ministers when I asked that question. Second, as a public servant who has worked in many Departments over the years, I believe there is a responsibility on public servants to take the initiative and make sure the facts are known and that the implications of those facts and the options are well known. The latter should be done in writing.

Deputy McManus

The Secretary General has paid a high price in terms of his reputation for not doing that. Surely Mr. Travers accepts that the Minister has a responsibility to ensure this information is provided to him. Why is that not in this document?

Mr. Travers

The document states that the Ministers should have probed the issue to a far greater extent than they did.

Deputy McManus

That is a different approach. Probing is not making sure that the information gathered is provided to Ministers.

Mr. Travers

It depends on one's definition of probing. I understand that probing something means considering an issue in-depth to ensure the facts are brought forward and made known to the people involved.

Chairman

Let us move on and bring in people who have not previously asked questions. I will call Deputy Cowley followed by Senators Feeney and Browne.

Deputy Cowley

I apologise for my absence during the earlier part of the meeting. If Mr. Travers were to do this again, would he do anything differently? I am aware he has been reported on in the media. Are there areas where he believes the media treated him unfairly? In retrospect, are there people to whom he would have spoken? I know it is easy to see things in retrospect, but perhaps it would help the committee if Mr. Travers could outline his view. Are there any people he believes he should talk to at this stage? Would he like to talk again to people from whom he did not get adequate responses?

I am aware Mr. Travers has made recommendations. Does he believe that existing reforms to the health service will in any way change the Department of Health and Children or is the ethos the same and will it be hard to trust what comes from the Department? There have been previous instances. In the case of the provision of medical cards to the over 70s, apparently it was not known how many older people were in the country and the cost was totally underestimated.

Regarding the changes that have occurred, Mr. Travers referred to special advisers and the Freedom of Information Act. I am aware he has made recommendations regarding special advisers. Does he wish to add to what he said? Does he believe this issue has affected freedom of information and how can this be overcome?

Mr. Travers

Regarding the first question on media reporting of the report and whether the media got it wrong, I do not believe the media ever get it wrong. In many ways they call it as they see it. One thought occurs to me regarding some of the comments that were made, namely, that in many instances there was not sufficient acknowledgement of the good work done over many years by the officials in the Department of Health and Children in the administration of the health services in this country in extremely difficult circumstances. I have tried to point out in my report that the Department of Health and Children is probably the most difficult and complex Department of State in which to work, given the complexity, breadth and depth of the issues with which it must deal and the degree to which the matters with which it deals are put under scrutiny on a daily basis by the media and the political system. They work in a very difficult situation. They may get 99.5% of things right but if they make a mistake in one area, it is highlighted in a significant way. In that sense, the good work the Department of Health and Children has done and continues to do does not get the kind of coverage it deserves. The focus of the media tends to be very much on the negative and insufficiently on the positive in terms of what is being done within the Department of Health and Children and in terms of what has been done in the past.

Regarding who else I would talk to, that is similar to asking how long is a piece of string. I am satisfied that I picked up sufficient information to answer the questions adequately according to the terms of reference. I could have spent much more time going through the stuff with many others but I do not think it would have added much to the conclusions to which I came. If I had had more time to deal with it, in many ways I probably could have expressed it more strongly or better but I am satisfied that in the two or three months available to me to get to grips with the issues involved and to get information that would enable me to answer the questions I was asked to answer in the terms of reference, I had sufficient information to come to conclusions along the lines of the ones to which I came in the report.

On the question of reforms in the Department of Health and Children and who else should be talked to, one of the issues — it was not covered in my terms of reference — I would have thought worth looking at is the role of the health boards. As Deputy McManus mentioned, the health boards are legal entities in their own right, with their own boards of directors and executives, etc. I would have thought they had responsibilities to exercise. One of the questions I would have asked them, if it was within my terms of reference, was why they had not taken their own advice on the legality of the charging system they were administering and why, as a group, they had not taken that advice more frequently because they seemed to operate the charging system in different ways in different health board areas. To some extent the reform process that now has been initiated helps deal with that issue because there now will be one legal entity instead of eight under the previous health board system. This should make the system a little more efficient.

The question of special advisers has been raised. I deal with it in my report. My view is that special advisers can bring much support to a Minister. It has been part of the system of public administration for many years and works well in many instances. Special advisers act as the eyes and ears of a Minister in a Department. My belief — it is a personal one more than anything else — is that a Department is an administrative system in its own right. Special advisers are not part of its day-to-day management system. While they need to be kept informed on the many issues of interest to the Department and the Minister, I do not see them as part of line management. Therefore, Departments need to act in a way that reflects this fact.

A question on the Freedom of Information Act 1997 was raised. The concept is excellent. It opens up the decision-making process to public scrutiny. This is both proper and correct. It should be dealt with as a good development in the system of public administration. Hand in hand with this, Ministers and public officials must learn how to deal with the issue effectively and not be overly concerned about writing matters down. The avoidance of recording matters because of a fear that they will be discovered in a freedom of information request seems to imply more balance is required. It is also required in reporting on and dealing with matters that arise from the freedom of information system which is excellent and one which has helped greatly to improve the decision-making process in the system of public administration.

Deputy Cowley

During the years I have become aware that the Department of Health and Children seems to be slow, for obvious reasons, to generate revenue costs. There is a sense that it is barrelling matters along to the next election or Minister. My view is that services have suffered as a result but I understand much of this arises from the finite money resources available centrally. The amount provided was deficient. While certainly the position has improved, did Mr. Travers find in the Department frustration about the lack of moneys provided? How much is this responsible for the rot which needs to be cut out?

Mr. Travers

There was great concern and frustration in the Department about the level of resources available to provide the services it was charged with providing. That concern and frustration is reflected in the Department and the health boards. No doubt the demands made on the Department and the health service are substantive relative to the resources available. As I state in the report, part of the underlying reason they went along with the charging system for so long was that it provided a source of income for the health boards which they believed would not be replaced by the Department of Finance if it disappeared. It was one of the reasons they maintained a system of charging which ultimately was found to be illegal but which they believed was legally defensible. As it turned out, they were proved to be wrong. More important, they believed it was very important from their point of view to have access to the funding available through this source to maintain services in an underfunded health service. They worked desperately hard to do this. One of the points that should be made about the Department of Health and Children officials is that there was absolutely no personal advantage for them in the charging system they put in place. The only reason they put it in place was they were trying to maintain a good system of health services in an inadequately funded system of health administration.

Senator Feeney

I will be brief because much of what I wanted to ask has been teased out. Mr. Travers' report is excellent and easy to read. The way he has teased matters out today with the joint committee has made it even clearer. I have two questions for him.

In replying to Deputy Cowley's questions Mr. Travers stated there were sizeable benefits for a Minister in having a ministerial adviser and that special advisers had been doing good work since we became familiar with them. In compiling his report did he find any relationship between ministerial advisers and officials? Would officials have gone to advisers? I would have thought it would be easier to find an adviser than the ear of a Minister.

I preface my second question by saying we have an excellent Civil Service as we all saw when Ireland held the European Presidency. With Mr. Travers' experience of public service, could the problems and failures unearthed in the Department of Health and Children be found anywhere else in the public service?

Mr. Travers

I agree that ministerial advisers add substantively to the system of public administration. The Senator asked whether I had any perception of a relationship between advisers and officials of the Department of Health and Children in recent years. My perception was that the relationship was a good one. I met the advisers and the officials with whom they dealt and they appeared to have a good working relationship. There was undoubtedly, as there always is between the permanent administration and the advisers, a certain degree of tension but it was constructive in nature. I did not note anything which indicated that the officials and advisers were in any way confrontational with each other.

Senator Feeney

Did Mr. Travers meet any official who indicated he or she had told the adviser about the problem?

Mr. Travers

No, I did not. Having examined the files, it was clear there were no notes or submissions that would indicate that the nature of the problem, as discussed in the report, was set out clearly and forthrightly in written form and given to advisers or Ministers. I raised the issue with the officials as there appeared to be a significant absence in the papers I viewed. I found it strange that there did not appear to be any written interaction between the officials and the Ministers or their advisers. I raised the matter with the officials and requested that searches be undertaken to locate any documents of that nature. However, nothing of substance emerged.

Senator Henry

Did the advisers make any notes?

Mr. Travers

They did not provide me with any notes.

Senator Henry

Did Mr. Travers ask the advisers if they had kept any notes?

Mr. Travers

I did not ask them specifically but I made available to them my terms of reference and asked them the furnish any relevant documents in that regard.

Senator Feeney

On the systematic failure in the Department of Health and Children, could such a problem be happening in other areas of which we would not be aware?

Mr. Travers

The type of financial implications of what occurred in the Department of Health and Children are of substantive and significant proportion and one would not expect that to occur to the same extent in any other organisation or Department. The problem was that officials in the Department of Health and Children did not realise what might be the financial implications of the practice then in place. Had they realised those implications, they might have reacted far more quickly than they did. They did not understand or realise the potential financial implications of what they were doing for the reasons outlined in the report. They thought they had a good basis for the practice and did what they did in good faith. However, their judgment turned out to be not well founded from a legal point of view. In every other respect, much of what they were doing was correct. The practice has now become legally sound by virtue of the legislation introduced earlier this year.

Deputy McManus

The Minister of State, Deputy Tim O'Malley, understood that it was a serious issue with possible grave implications. The advisers received the same briefing and attended the MAC meeting. That information appears to conflict somewhat with what Mr. Travers is saying. If the Minister of State, Deputy Tim O'Malley, had sufficient understanding of what was happening, would it not have been likely that the advisers also had sufficient understanding of the situation?

Mr. Travers

There may be two answers to the Deputy's question. I asked the Minister of State, Tim O'Malley, if he had been a member of the health board in the mid-west and he told me he had. I then asked him if he would not, as a member of that health board, have known that there were serious underlying legal problems associated with the charging system in place. He and other Ministers told me they would have made the assumption that the legal foundations were correct and that the matter was dealt with by executives in the health boards. That is part of the answer to the Deputy's question.

I also asked the advisers if the briefing circulated for the meeting in December 2003 had not indicated to them that this was a serious issue on which they needed to follow up. They replied that they assumed it was being followed up on by virtue of the decision taken at the meeting that the advice of the Attorney General be sought on the matter.

Deputy McManus

Did they not think to check up on that?

Mr. Travers

I have dealt with the matter in the report.

Deputy Twomey

The issue is becoming confusing. We must look first at how the Department head operated. The Minister for Health and Children, Deputy Martin, issued a memorandum in March 2002 clearly stating that the intention was that the Minister would have ongoing contact with significant issues, developments, documents and so on throughout the Department through the relationship between the advisers and the relevant division units of that Department. As stated in the report, the advisers sometimes acted as proxy Ministers at a number of meetings. They acted on behalf of the Minister at such meetings and were not sitting beside or advising him.

The issue now being discussed was listed for discussion at an important meeting of the MAC group which advised the Minister and the Department. The matter was postponed until the December meeting so that the Minister and Ministers of State could attend. We have since discovered that the Minister was late attending the meeting, that he left early to meet an ambassador from America and that he and his Ministers of State flitted in and out of the meeting.

It has been suggested that administrative cohort was at fault. However, Mr. Michael Kelly drew up the health strategy and recognised all the problems. The difficulty, as far as I see it, is that there was no clear line of responsibility at ministerial or adviser level. One of the Ministers of State has been charged with responsibility for issues regarding the elderly. The report contains an appendix as regards the advisers' role and lists one of the duties as provision of services for older people.

The Civil Service is hammered by the report and by what is being said at this meeting. However, the civil servants did their best with executives who were unclear about their roles. The Minister of State, Deputy Callely, appeared to be unsure of his role and resorted to whispering in the Taoiseach's ear during a vote.

Were there other more media-driven events taking place of which everyone wished to be part and which led to the saving of millions of taxpayers' money being placed way down the list of priorities? What was going on in terms of political responsibility? We have not teased out that issue. Many people appeared to hold the title of responsibility for services for the elderly.

Senator Feeney

Is it not correct that we will be inviting both Ministers of State to come before the committee, at which time those questions can be put to them?

Deputy Twomey

I would like to hear Mr. Travers's response on that matter.

Chairman

Before allowing Mr. Travers to respond, I invite Deputy Devins and Senator Browne to ask their questions.

Deputy Devins

I also welcome Mr. Travers and congratulate him on producing his report in such a short period. I would like to concentrate on the mechanics of how the report was prepared.

Mr. Travers mentioned that he spoke to four people by telephone. I heard him refer to Dr. Barrington but missed the names of the three other people.

Mr. Travers

Mr. Colm Gallagher, Department of Finance, Mr. Gerry O'Dwyer, former Secretary General of the Department, and Mr. John Hurley, another former Secretary General of the Department.

Deputy Devins

Was there a specific reason for speaking to them by telephone rather than in person?

Mr. Travers

It was a matter of timing. I could discuss matters with them just as easily by telephone as in person.

Deputy Devins

Regarding the overall mechanics of preparing the report, Mr. Travers met and spoke to people and also asked for files and documentation. Is that correct?

Mr. Travers

Yes.

Deputy Devins

Mr. Travers stated that in the two and a half months during which the report was being prepared he showed it to certain people. I presume it was shown to the relevant Ministers and the Secretary General. Is that correct?

Mr. Travers

What I have said is that I showed the first three chapters to many of the people with whom I had dealt because those chapters dealt with the factual basis for the document. After that in general I did not show the other chapters to people. When putting my recollection of a discussion into the report, I would have shown a Minister or an official the relevant part of the report only in order to establish whether it fairly reflected the discussion we had had.

Deputy Devins

I note there are three appendices detailing draft statements from the Secretary General, on 25 February, 28 February and 1 March. Will Mr. Travers explain to the committee why he believed the Secretary General felt obliged to give three draft statements? I have read them very carefully. I do not see a major difference between the second and third drafts, apart from the substitution of the word "the" by the word "my".

Mr. Travers

That came about because I had attempted to reflect in my report in my own words the discussions that had taken place with the Secretary General. I would have shown him the relevant part of the report and asked him whether it was a fair reflection of the discussions we had had. It emerged towards the end of the process that it would be more satisfactory if he drafted the statement. He agreed to do this in order to facilitate me as we were coming to the end of the period when the report was due to be submitted. He gave me a number of drafts over a period of days setting out his best recollection of what had taken place. He gave me the first draft because I was under pressure to meet the deadline set in the terms of reference. My recollection is that he gave it to me on a Friday, that I received another draft on the Monday and a further draft on the Tuesday. It was the effort to facilitate the production of the report within the timeframe that gave rise to the drawing up of a number of drafts. I had no problem with this and tried to reflect it in the report.

Deputy Devins

Were the changes made by the Secretary General in the first, second and third drafts made as a result of discussions between Mr. Travers and the Secretary General?

Mr. Travers

The Secretary General made the changes, having reflected on and looked at the drafts.

Deputy Devins

The Secretary General produced a report. He came back a couple of days later with a changed report and, the next day, produced another changed report.

Mr. Travers

Yes.

Deputy Devins

Did anybody else to whom Mr. Travers spoke or from whom he received reports do anything like this?

Mr. Travers

There were at least two other officials, whom I mentioned this morning, one of whom said he had seen a document in the Minister's office while the other said he had not. Again, I reflected what I believed to be the discussion between us in an early draft of the report. I would have shown it to them. Arising from this we would have agreed exactly what the situation was on that aspect of the report. Similarly, I would have shown parts of the report to the former Minister for Health and Children, Deputy Martin, and the Minister of State, Deputy Callely, and the report would have been redrafted on the basis of agreement as to what had transpired at the discussions.

Deputy Devins

Am I correct in saying the only difference between the second and third drafts is at No. 8 where the word "the" is replaced by the word "my"?

Mr. Travers

That is probably the case. I did not see any substantive difference between the drafts.

Senator Feeney

For the record, there is another difference. The phrase "my instinct" is used in the first draft, while the phrase "my belief" is used in drafts two and three.

Deputy Devins

There are differences between the first and second drafts.

Senator Feeney

Yes.

Senator Browne

The report is good in some respects but weak in criticising the political establishment and advisers. The criticisms levelled at the civil servants in the Department are fair in some respects and Mr. Kelly has paid a price. However, the report is weak in drawing conclusions from a political perspective.

From the report it is clear that Mr. Kelly said he recollected discussing the issue of charges for persons in long-stay care in nursing institutions with the Minister and also the implications of a reply from the Office of the Attorney General. He is very categoric; there is no ambiguity. The Minister of State, Deputy Callely, indicated that he also was aware of the difficulties ahead and spoke directly to the Taoiseach. In his own words, he did not bother to speak to the former Minister for Health and Children, Deputy Martin. He said it was the norm for officials to deal directly with the Minister. He also said the Minister's officials and advisers were at the meeting and that as the Minister arrived later, he saw no need subsequently to speak with the Minister about the issue. The assumption is that the Minister of State, Deputy Callely, clearly believed the then Minister, Deputy Martin, was fully aware of the issue in question.

There is also the issue of a folder being seen in the outer office of the then Minister for Health and Children by an independent civil servant who backs up the earlier claim by Mr. Kelly about the folder which subsequently disappeared. Does Mr. Travers accept the word of the civil servant who said he recollected seeing the folder in the outer office of the then Minister? If so, who does he believe would be responsible for losing the folder? As someone looking in, I see no benefit for any civil servant in the loss of a folder. However, I would see benefit for a Minister or a political adviser in the disappearance of a folder, especially one with such dire consequences as the one we are discussing. We now know the cost will be at least €500 million, if not more. Does Mr. Travers accept the word of the civil servant who verified that he saw the folder in the then Minister's outer office, and will he make a statement about the missing folder? How could a folder disappear? Does Mr. Travers agree that if the folder was to disappear, it would be of more benefit from a political angle than from the point of view of somebody working in the Civil Service who would obtain no real benefit?

On an earlier point, does Mr. Travers agree that the changes to the Freedom of Information Act introduced by the Government in early 2002 would have had a major impact on the report? We can conclude that there are few written records of the then Minister knowing, yet all the indicators point to the fact that the Ministers, junior and senior, were fully aware. Where we are coming unstuck is on the lack of written records. The restrictions on freedom of information have played a negative role in that respect. Civil servants are now afraid to put anything down in writing. This was argued when the restrictions on freedom of information requests were being introduced.

My view is that the Government planned to hold a general election in 2001 and that is why there was a giveaway budget. That had implications for this issue also. As Mr. Travers correctly stated, the decision on the matter of providing medical cards for those over 70 years of age should have brought the issue to the surface again but instead it was buried. I say it was buried for political reasons because it knew it was facing into a general election and that it would have considerable financial and other implications. As it happens, there was the foot and mouth disease crisis in 2001 which it appears led to the deferring of the election. All of this is hearsay and we cannot prove it but it is my personal view.

The shocking aspect of this case is the inconsistent stance taken by the health boards, where people who were strong enough to argue their case were exempt from paying charges while those who were not continued to pay them. It is amazing that alarm bells did not ring within the Department of Health and Children arising from these inconsistencies and the fact that court cases were not being pursued by some health boards. It was an unsatisfactory state of affairs.

I wish to ask about the briefings provided for the Tánaiste and Minister for Health and Children, Deputy Harney. Two weeks before it was published she told me categorically that the former Minister, Deputy Martin, would be vindicated by the report. I was puzzled that someone could speak so clearly on an issue in advance of a report being published. Mr. Travers has mentioned that he gave the earlier chapters to different people but would the Tánaiste have seen the conclusions in advance of publication of the report? It puzzles me that she was so categoric in stating the former Minister, Deputy Martin, would be vindicated by it.

It is ironic that the Minister of State, Deputy Callely, failed miserably in his job as Minister of State with responsibility for the elderly. Every second week Oireachtas Members received letters from him outlining all the good work he was doing for the elderly, yet he completely failed to deal with this major issue.

Chairman

There are restrictions placed on me, as Chairman. I cannot become involved but there is an outbreak of "foot in mouth" here. We never heard of a general election in 2001.

Senator Browne

The giveaway budget would have been an indicator, would it not?

Deputy Twomey

As a backbencher, the Deputy would not have been told.

Chairman

There have been about six giveaway budgets from this Administration. One cannot single out one; they all were good budgets. As an impartial Chairman at all times, I do not wish to become involved but I have been listening to stuff this morning that brings that impartiality into question. We will move on, except to state it is news to us and we would have been involved in weekly parliamentary party meetings in which our Ministers would have let us know what was happening. They did not explain that point. Nevertheless, we will ignore that minor outbreak.

Deputy Twomey

Perhaps the Chairman did not hear him.

Chairman

No, thankfully our Ministers talk to us frequently. I have great difficulty in reminding myself that this is not a political meeting.

Mr. Travers

Senator Browne asked many questions but there is one, in particular, on which I wish to be absolutely clear. I did not provide any briefing for the Tánaiste in advance of providing her with the final report at the start of 2005.

Senator Browne

How could she have been so clear two weeks in advance? Is she psychic?

Mr. Travers

That is a question the Senator will have to put to the Tánaiste but I certainly did not provide her with any briefing.

Chairman

Perhaps she is very clever. There are only a few minutes remaining and others wish to contribute.

Deputy Twomey

Will Mr. Travers provide clarification? Does he know if the advisers took notes at the MAC meeting in December 2003? If notes were taken, were they given to him?

Mr. Travers

I do not know if notes were taken but, if so, they were certainly not given to me.

Deputy Twomey

Would they have been covered by Mr. Travers' terms of reference?

Mr. Travers

I guess they would have been covered.

Deputy F. O’Malley

I thank Mr. Travers for such a comprehensive and extraordinary report which is extremely clear and was done swiftly. It is the model for future inquiries. I also apologise for not being on time.

Chairman

Are there any further questions?

Senator Browne

May I have answers to my questions?

Chairman

Yes.

Deputy Twomey

Recognising that they should not be named publicly in case there is a problem, is it possible that the names of the two officials concerned can be passed to the Chairman and that they be asked to come and give their side of the story?

Chairman

Mr. Travers is answering the questions. I will return to the Deputy on that matter.

Mr. Travers

I answered one of Senator Browne's questions and will try to remember some of the others.

On the question of the folder in the outer office, there were two views expressed to me that I set out in the report. One official stated they had seen the folder in the Minister's outer office. The other who worked in the office stated the folder had never been seen there. I recorded the two points of view and cannot take it beyond the fact that there are two points of view expressed by two officials on the presence or otherwise of the folder in the outer office.

Senator Browne

Can one say the folder has disappeared?

Mr. Travers

Yes. I did ask——

Senator Browne

Surely that is worth pursuing.

Mr. Travers

——the Secretary General what search had been made for it and was told the Department had searched high and low but was not able to find it. Nobody seems to know where it has disappeared.

Senator Browne

One can understand how a page might go missing. Does Mr. Travers have any idea how many pages were contained in the folder or of its size? Was it substantial?

Mr. Travers

Copies of the papers in the folder were maintained on the filling system of the Department. They are available and I am sure would be made available to the joint committee, if the need arose. My recollection is that the folder consisted of three substantive parts: a background note on the issues involved, a briefing note to the Secretary General from the official who prepared it and a letter for the Secretary General's signature. As I stated, all the papers are on file in the Department. They are in the file retained in the section that prepared the briefing note and the draft letter.

Senator Browne

Does Mr. Travers agree that a civil servant would have nothing to gain from a folder disappearing?

Mr. Travers

That seems a good conclusion to draw.

Deputy Twomey

Do files leave the Department?

Mr. Travers

Which files?

Deputy Twomey

The folder of which we speak. Does it leave the Department? Does it leave Hawkins House for Leinster House or is it brought home in the boot of the Minister's car?

Mr. Travers

When a folder or briefing note is prepared, normally it is sent to the relevant official to whom it is addressed but copies are kept in the substantive file in the Department.

Chairman

It was not part of Mr. Travers brief to find out where the folder went.

Deputy Twomey

That was not my question.

Chairman

People are making the point that they find it unusual as if there is an implication that a particular person removed it.

Deputy Twomey

I am curious about it.

Chairman

Some £20 million went missing from the Northern Bank and nobody can find that either.

Deputy Twomey

There was no one putting a gun to anyone's head in Hawkins House. When the file was compiled in Hawkins House, did it travel upstairs to the ministerial office?

Mr. Travers

The folder was taken and sent up, yes.

Deputy Twomey

To the best of Mr. Travers' knowledge, did it stay within in the Department?

Mr. Travers

Yes.

Senator Feeney

Deputy Twomey must wait until he becomes Minister to go to Hawkins House and find out how it is run. Let me ask Mr. Travers about the folder. There were three pieces in it. Do we know who was the recipient of the letter for signature by the Secretary General?

Mr. Travers

It was going to the Attorney General.

Senator Feeney

It never issued.

Mr. Travers

No; it issued in October 2004.

Deputy Twomey

We are not sure about that. That is what we are trying to find out.

Mr. Travers

It issued in October 2004.

Deputy F. O’Malley

Was part of Mr. Travers's brief to examine computer records? Presumably the letter was composed on a computer and was not, given its significance, deleted. Was Mr. Travers required to ask questions in that regard?

Mr. Travers

I asked for all records. I saw a copy of the letter.

Deputy F. O’Malley

Was it held on a computer?

Mr. Travers

It was given to me in paper form. I received a copy of the letter, the briefing note and background note.

Chairman

A final question from Senator Browne.

Senator Browne

Is Mr. Travers 100% satisfied he received every document needed for his inquiry? Is it possible other relevant documents, such as briefing notes from the advisers who attended the MAC meeting in December 2003 and from the meeting it is assumed took place between Ministers, might emerge at a future date? Mr. Travers might not have been furnished with notes from those meetings. Is it possible other documents exist?

Mr. Travers

I stated in my report that I am comfortable, based on the files I examined, that I had sufficient information from which to draw my conclusions. The report also states that in no circumstances can I guarantee that I have read all the documents relevant to the matters into which I was asked to inquire, particularly in light of the time available and the many documents that exist. I am sure there are in existence other documents relevant to the subject matter of the report which I have not seen or read. However, I believe the documents I examined were sufficient to allow me to draw the conclusions I have drawn.

Chairman

I thank Mr. Travers for appearing before the joint committee and for his frank, open and wide-ranging responses to members' questions. I also thank him for drawing up his report.

Mr. Travers

I thank the Chairman.

The joint committee went into private session at 12.35 p.m. and adjourned at 1 p.m. until 9.30 a.m. on Thursday, 14 April 2005.