Health Service Executive (Governance) Bill 2012: [Seanad Bill amended by the Dáil] Report and Final Stages

I welcome the Minister to the House. This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 118, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed groupings to the House. A Senator may contribute only once on each grouping. I remind Senators that the only matters that may be discussed are amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

I call the Minister on the subject matter of amendments Nos. 1, 31 and 32.

Basically, these are technical and drafting amendments. Amendment No. 1 relates to section 10 of the Health Act 2004, which deals with directions to the HSE from the Minister. The amendment clarifies that directions issued by the Minister can be amended or revoked by the Minister. It brings the drafting position back into line with the position under the Act of 2004.

Amendment No. 31 relates to section 20, which amends section 77 of the Health Act 2004. It deals with certificate evidence regarding delegation and sub-delegation of functions within the HSE in legal proceedings. The amendment ensures that the sub-delegation of functions are properly covered under section 77.

Amendment No. 32 relates to section 22, which provides that references in legislation to the board and chief executive of the HSE are to be read as references to the directorate and director general. The purpose of amendment No. 32 is to provide that section 22 encompasses references in statutory instruments and in contracts.

I call on the Minister to speak on the subject matter of group two, which is made up of amendments Nos. 2 to 5, inclusive, and 20.


These amendments relate to the size and composition of the directorate. The Bill provides that the directorate will be the governing body. I have always made clear my intention for employees in charge of key service areas to be members of the directorate. It is also my intention that the person heading the child and family services division would be a member of the directorate pending the establishment of the new child and family agency. I believe the governing body of the HSE should have the scope to encompass other significant management people in the HSE as well. Accordingly, I introduced an amendment in the Dáil, amendment No. 2, to increase the maximum number of appointed directors from six to eight. This will allow relevant service heads and a small number of other key senior employees, including the chief operations officer and chief financial officer, to form the governing body of the HSE.

I introduced amendment No. 3 to provide that persons eligible to be appointed as directors include not only HSE employees at the grade of national director, but other employees of no less senior grade.

Amendment No. 4 was brought forward to allow for the eventuality whereby an employee may act in the relevant grade on a temporary basis but whose substantive grade is less senior. This situation has already arisen in fact because the interim national director for child and family services in the HSE is in an acting position in the context of the transfer of the child and family services to the new child and family agency.

Amendment No. 5 is consequential on amendment No. 3.

Amendment No. 20 serves to ensure that the Minister can appoint an appointed director's second-in-command to act as a temporary member of the directorate during an extended absence, for example, through illness, of the appointed director. The amendment arises from the need to consider practical situations that might arise and relates to a time when, perhaps through sudden illness or accident, the director would be unable to appoint his deputy himself.

I seek clarification. I note that we are raising the number of directors from six to eight. Perhaps we could get some clarification. I am not against it but I seek clarification about why the increase arises. I understood it was clearly designated originally that the maximum would be six. Are we now adding two further positions? Perhaps the Minister could provide some clarification.

I am happy to clarify that. There was provision for six because there were six directors.

It was felt very appropriate that one should be able to have one's chief operations officer and one's chief financial officer at director level. There are no cost implications on this. It was merely felt it was appropriate to have those people on the directorate.

Amendments Nos. 6 to 17, inclusive, deal with the removal and disqualification from the directorate because of being adjudicated bankrupt or having a composition with creditors. On Committee Stage in the Dáil, my attention was drawn to the provisions in the Bill that disqualified a person from being an appointed director or director general where he or she has made a composition or arrangement with creditors. A query was put as to what exactly this meant and whether it was in keeping with the Government's stated position on how arrangements under the Personal Insolvency Act should not impinge unnecessarily on a person's life or activities. I undertook to give the issue closer examination.

The legal advice I received is that a composition or arrangement with creditors as used in the Bill means something done under legislation. This has traditionally been the Bankruptcy Acts and would now encompass the Personal Insolvency Act. Having consulted the Minister for Justice and Equality, who has responsibility for that legislation, and having considered the matter carefully, particularly in the context of the Government's policy on personal insolvency, I tabled amendments on Report Stage in the Dáil to delete references in the Bill to disqualification from being an appointed director in the HSE or being director general in the HSE where the person involved has been adjudicated bankrupt or has made a composition or arrangement with his or her creditors.

Regarding amendments Nos. 18 and 19, the Bill needs to provide for all absences of the director general or vacancies in the office of the director general. Consequently, I introduced in the Dáil amendment No. 19 to deal with absences or a vacancy of any duration. Another change was to allow the director general rather than the Minister to designate the appointed director to cover absences. This seemed to be the most effective and efficient operational arrangement. However, the designation would require the consent of the Minister. The Minister will also be involved to address those situations where a director general is absent but had not made such a designation and is unable to do so owing to ill health or an accident, as I mentioned earlier.

The situation is different if the office of the director general is vacant. In those circumstances the situation remains that the Minister can designate an appointed director to fill the gap pending the recruitment of a new director general. The Bill makes it clear that the Minister must take steps to fill the vacancy as soon as may be. This is in section 16L. The changes made in the Dáil reflect the reality that with an organisation of national importance, such as the HSE, it is essential there is always someone with clear authority to perform the functions of the director general.

Amendment No. 19 is consequential and provides that when the director general is not present or the office is vacant the appointed director designated by the director general for the purpose of his or her absence or, in the case of a vacancy, the appointed director designated by the Minister, if any has been so designated, will, if present, chair the meetings of the directorate.

I have a question about the intervening section. When litigation is issued, the director general is not required to appear before an Oireachtas committee. What would happen if someone makes an allegation and the director general immediately issues a High Court writ, thereby preventing an Oireachtas committee dealing with it? That is dealt with in section 16 of the Bill. I accept the Minister might not be able to give me an answer at this stage. An easy way to avoid having to appear before an Oireachtas committee would be to issue a High Court writ against the person making the allegation, which would bar the Oireachtas committee from requiring the director general to appear before it. Does that need to be addressed?

I am informed by my ever-helpful legal advice behind me that these are based on precedence and difficult to change in the Bill.

It is an issue that arises and I am concerned about it.

It will be explored further, but I do not believe it will be possible to do it in this Bill.

Amendments Nos. 21 to 23, inclusive, are essentially technical and relate to the service planning process. Under section 31 of the Health Act 2004, the HSE must submit a service plan within 21 days after the Government publishes the Estimates for that financial year or in such other period that the Minister may allow.

The Bill as passed by the Seanad allowed the Minister to direct the director general to prepare and submit a service plan if the HSE has failed to submit a service plan in accordance with various provisions of the section. This is based on similar provisions in the Health Act 2004 regarding the CEO. However, the intention in the 2004 Act was that the CEO, and under this Bill, the director general, would be directed to prepare and submit a service plan only if the HSE had not submitted one in the specified time period and not for other reasons. This is now clarified by amendment No 21. Amendment No. 23 provides that the director general must comply with such a direction.

On amendment No. 22, section 31(8) of the Health Act 2004 provides that, within 21 days after receiving a service plan, the Minister must either approve the plan or issue a direction to amend the plan. As Senators are aware, this Bill amends section 31. Under the Bill, the Minister must, having consulted the Minister for Children and Youth Affairs, take one of the following steps: approve the service plan in the form in which it was submitted; approve the service plan with such amendments as the Minister, having consulted the HSE, may determine; or issue a direction to the HSE to amend the plan. However, no time period was specified within which the Minister must take one of the three steps I have set out. To address that situation, Amendment No. 22 provides that the Minister must act within 21 days of receiving the service plan from the HSE. This time period is in line with current provisions of the 2004 Act.

For completeness, I should add that it is intended that the requirement for the Minister to consult the Minister for Children and Youth Affairs will be repealed in future legislation having regard to the legislation establishing the child and family agency.

Amendments Nos. 24 to No 30, inclusive, relate to provisions for the audit committee for the HSE provided for under this Bill. Amendment No. 24 is concerned with membership of the HSE's audit committee. It takes on board points made by Senator Barrett when the Bill was previously before this House that the audit committee needs to have the right type of membership to enable it to perform its important functions. I recall that Senator Burke also had similar concerns.

It is clearly the case that given the nature and role of the audit committee, a wide range of skills and experience are essential among its membership, including persons with auditing and accounting skills. As I said at the time, I appreciated the sentiment behind the amendment that was moved by Senator Barrett and seconded by Senator Crown. Consequently, I introduced an amendment in the Dáil to ensure that express reference is made to people with professional qualifications in auditing or accounting. That is the purpose of amendment No. 24 which provides that at least one of the audit committee members must hold a professional qualification in accountancy or auditing.

Amendment No. 25 is designed to give the audit committee a role in advising the directorate on financial matters relating to its functions. This is in addition to the role that the audit committee has in advising the director general. As the provision previously stood in the Bill, the role of the audit committee was focused exclusively on the director general, who will be the Accounting Officer. However, I believe it is appropriate that the audit committee should also have a role in advising the directorate on financial matters relating to its functions, for example, on the annual financial statements of the HSE. Amendment No. 25 provides for that role.

Amendments Nos. 26 and 28 to 30, inclusive, are technical amendments, renumbering subsections consequential on the widening of the committee's functions by virtue of amendment No. 25.

Amendment No. 27 is a technical amendment to correct a reference in section 40I(2)(b) of the Act as introduced by the Bill passed by the Seanad by replacing the reference to "the Executive" with a reference to "the Director General". The section refers to advice on complying with section 22 of the Exchequer and Audit Departments Act 1866 and section 19 of the Comptroller and Auditor General (Amendment) Act 1993. Compliance with these sections relates to Accounting Officers. The amendment was therefore required because it is the director general who is the Accounting Officer under the Bill and who must comply with the legislation in question.

I thank the Minister very much for his thoughts. We know from tapes we have heard this week that the highest standards of accountability in accountancy are essential, and in a major sector like the health service they are even more so. I thank the Minister for considering the amendment proposed when the Bill was going through the House and including it here.

I join in thanking the Minister for taking on board the concerns we had in the House when the Bill was going through. This is a welcome development and I fully support it.

Question put:
The Seanad divided: Tá, 26; Níl, 11.

  • Bacik, Ivana.
  • Barrett, Sean D.
  • Bradford, Paul.
  • Burke, Colm.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Crown, John.
  • Cummins, Maurice.
  • D'Arcy, Michael.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • Norris, David.
  • O'Brien, Mary Ann.
  • Quinn, Feargal.
  • Sheahan, Tom.
  • Whelan, John.


  • Byrne, Thomas.
  • Daly, Mark.
  • MacSharry, Marc.
  • Ó Clochartaigh, Trevor.
  • Ó Murchú, Labhrás.
  • O'Brien, Darragh.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Reilly, Kathryn.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.
Question declared carried.
Sitting suspended at 12.40 p.m. and resumed at 12.45 p.m.