Time for someone in the HSE to learn how to say ‘mea culpa’
ON FEBRUARY 2, 2016, the HSE appeared before the Public Accounts Committee (PAC) to answer questions relating to the Grace case.
They had been called before a special sitting of the committee to explain why their hand-delivered submission to the PAC the previous week had insisted an apology was given to Grace, contrary to reports in this newspaper claiming that no such apology had been offered, only for the HSE to subsequently admit that no apology had in fact been given.
The HSE’s statement in this regard added that the HSE “never has — nor would it ever — intentionally mislead any Dáil committee”.
Today, however, the HSE will again appear before the PAC amid claims from committee members that they provided “inaccurate or misleading information” in relation to this matter.
These claims refer specifically to questions raised following an FOI request by RTÉ, which clearly detailed that the HSE had not contacted An Garda Síochána to request clearance to publish the Devine Report for a full three years after it had been completed.
There have also been question marks over the assurances given to the PAC that the professionals involved in the decision to leave Grace in the foster home in 1996 no longer work in the public service.
Following the completion of senior counsel Conor Dignam’s review of the “adequacy and appropriateness” of the two HSE-commissioned reports on this issue, there are likely to be many more questions put to the HSE by the committee, particularly in relation to procurement and allegations of a “cover-up”.
Liaison with gardaí regarding publication:
RTÉ’s Colm O’Mongáin recently questioned the HSE on the timing of its first contact with An Garda Síochána to request clearance to publish the Devine Report.
O’Mongáin pointed out that the PAC had first mentioned receipt of my disclosure regarding non-publication of the Devine report on March 5, 2015, with the HSE’s records revealing that they first wrote to gardaí to seek clearance for the report’s publication the very next day.
The HSE is claiming that its contact with gardaí to seek publication was not in fact prompted by my disclosure being discussed by PAC on March 5, 2015 — claiming they had in fact commenced the process of publication on February 24, 2015, signalling the intention to publish the report before they were aware of my protected disclosure.
However, this first step to seek clearance from An Garda Siochána to publish the report was actually taken a week after John McGuinness first raised the matter in the Dáil, and just two days after an article by Daniel McConnell in the Sunday Independent stated that a “dossier” had been brought to the PAC about the unpublished report, by way of my protected disclosure.
In justifying this three-year delay before seeking clearance to publish from An Garda Siochána, the HSE maintains it was because of the “standard practice” of not publishing reports while there were ongoing Garda investigations.
However, the PAC must ask the HSE about formal correspondence from An Garda Siochána to Conal Devine in 2011, stating that gardaí had “no issue” with him “completing and publishing” his report.
Given this formal correspondence from gardaí in 2011, setting out that there was no objection to publication, why did the HSE choose to maintain “standard practice” of non-publication — instead of seeking clarification from gardaí?
Is the PAC to accept it is a coincidence that, after three years of failing to take any such step to obtain Garda clearance to publish the report, the action taken on February 24, 2015 was not in response to my protected disclosure?
The three-person panel:
During the HSE’s last appearance before PAC, concerns were raised about whether people involved in the failure to protect Grace were still working in public service.
HSE director general, Tony O’Brien, referred to the “specific decision” made in 1996 to leave her in the foster home, despite serious concerns. In reference to the findings of the Devine Report, he said this decision was made by a three-person panel, adding that those three people “are no longer in the public service… to be clear about that”.
The now published Devine Report does indeed identify three people who made this decision (H7, H6 & H4) and it has been reported that one of those is in fact still working in the public service.
The HSE now maintains that Mr O’Brien was instead referring to three people who were responsible for the decision to leave Grace there and were also involved the failure to follow up on agreed actions at a case conference in October 1996 (H7, H3 & H12).
The issue is not whether people responsible for failing Grace are still working in the HSE or Tusla — it is a matter of public record that many of them are. Rather, the issue for PAC is that the HSE’s narrative on this issue is difficult to accept as it is clearly at odds with the information previously provided to the PAC.
Firstly, Devine did not find that the decision was definitely made at the case conference in October 1996 and he, therefore could not and, indeed, did not find that H12 was party to the decision.
How can the HSE now claim that the three people he referred to as making the decision to leave her there included H12, when Devine does not make this finding?
Furthermore, not only are the three people, now identified as a “panel” by Tony O’Brien, not found to have been responsible for the decision, they are not actually grouped together anywhere within the report as anything that could be described as a “panel”.
The PAC must therefore ask whether they were provided with erroneous information by the HSE in relation to the three-person panel having all left public service and, therefore, whether this current narrative from the HSE has been created merely to support the information previously provided.
In addition, the HSE has maintained that it could not instigate an investigation or disciplinary proceedings against those responsible until the reports were published, as the staff involved have a right to fair procedures.
However, the Dignam Report sets out that everyone involved in the Devine inquiry was provided with an extract of the final report, as it related to them, in order to be afforded a right of reply.
In fact, Dignam found that everyone interviewed by Devine had been provided with ample opportunity to respond to all aspects of the report, as it applied to them, suggesting that there had been an “over abundance of caution” by the HSE in providing additional “unnecessary” opportunities for people to respond to findings against them.
So, having provided everyone involved with a right of reply to the findings of a final report, how can it be necessary for it to be published before disciplinary proceedings commence?
If there is legal advice to that effect, on what date was it sought by the HSE?
Procurement:
The HSE had also assured the PAC and the then minister for health, Leo Varadkar, that there were no issues regarding procurement in relation to the two reports commissioned into the foster home — when asked about failure to tender for contracts, they cited EU directives, the need for confidentiality, and spoke of the urgency of the situation.
The Department of Health then commissioned the Dignam Report, to examine these claims of HSE breaches in procurement policies — the appointment of ex-HSE personnel without tender.
The Dignam Report found that the procurement process for the Resilience Ireland Report “was not adequate to comply with the relevant procurement rules” and that there was “no reason” why tenders could not have been invited for this work by the HSE.
The HSE had refuted this, suggesting that it was acceptable for them to get just one quote for such work, however, Dignam found that they didn’t even get one quote, as “Resilience Ireland were effectively procured… by the HSE before any negotiation on price took place”.
In relation to giving such contracts, to ex-HSE personnel without even asking for a quote, Dignam found that “the procurement process adopted by the HSE cannot be seen as having been adequate to ensure the independence of those carrying out the inquiry”.
In light of the findings of the Dignam Report, PAC must now ask how the HSE could maintain there were no procurement issues and, further, how the HSE can expect to encourage people to make protected disclosures if the HSE does not ensure that its processes are adequate to ensure the independence of those conducting inquiries into the disclosures.
Allegations of a cover-up:
Pat Healy, HSE’s head of social care, told the PAC in April 2015 that when the reports were published it would be evident to members of the committee that there was no “cover-up”.
What the Conal Devine Report did evidence, however, was a reluctance by the HSE to go to court because of the questions it might face in relation to its own failures, a reluctance to share information with the service provider looking after Grace, and a failure to share files with a person legally entitled to them.
When asked by RTÉ’s Colm Ó Mongáin what the material difference was between those findings and a cover-up, the HSE’s Cathal Morgan replied that he did not “have any answer for that”, yet he claimed that the Dignam Report had found there was “no cover-up, no conspiracy, no attempt to pervert the course of justice”.
To be clear, those words don’t in fact appear in the Dignam Report. What Dignam did find, however, was that the allegations of a cover-up were never investigated by the HSE.
The HSE must also then explain how it could receive allegations of a cover-up in 2009 and fail to investigate them, yet issue a letter to those making the allegations stating that the matter was closed in 2014 — and then assure the PAC in 2015 that all matters had been fully investigated.
In considering how it might engage with the PAC today, the HSE could learn a lot from Taoiseach Enda Kenny on how to handle such situations.
Perhaps it is time for someone in the HSE to finally learn how to say “mea culpa”.
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