Health Minister Simon Harris is scrambling to address concerns the commission of investigation into the Grace foster abuse scandal cannot cover the victim’s legal fees because of a blind spot in existing laws.
The Department of Health confirmed the situation after Mr Harris was warned by commission representatives in recent days that the issue means Grace will have to pay her own legal fees while those accused of wrongdoing will not.
The commission was set up in March after two damning reports into the most serious physical and sexual abuse allegations surrounding the Grace foster abuse scandal were made public after years of delays.
The state investigation, which is due to provide an initial finding on the specific issues relating to Grace at the end of this year, is also examining claims HSE officials attempted to cover-up the decades of abuse and other equally serious matters.
It had been expected the commission would provide legal representation for Grace, who has severe physical and mental disabilities, and that the State would pay for this expense.
However, Fianna Fáil TD John McGuinness — who played a crucial role in uncovering the scandal when he was chair of the Dáil Public Accounts Committee until last year — said the commission has, in recent days, been made aware that existing legislation means this is not the case.
Speaking to the Irish Examiner, Mr McGuinness, whose claims were verified by another source close to the process, said he has been told that under section 23 of the Commission of Investigation Act 2014, individuals are allowed to have their legal fees covered.
However, this is only in the case that their “good name or conduct” is called into question in evidence; or when “other personal or property rights of the witness” are put at risk.
Mr McGuinness said that, as neither issue relates to Grace she is, under the existing law, not entitled to have her legal representation or legal fees paid for by the State.
After informing the president of the High Court about the situation, commission officials have written to Grace’s solicitors in recent days about the legal issue, with the matter listed to be discussed further in the High Court next week.
In addition, they are due to write to Mr Harris urgently to ask whether Grace’s legal fees can be covered, a situation which may need immediate alteration to the current law.
“It seems highly unusual that any person against whom allegations are made will get their legal costs but that Grace who is the centre of the inquiry would not,” Mr McGuinness said.
The Department of Health declined to officially comment as it cannot speak on issues relating to an independent commission of investigation which is already in place.
However, department sources confirmed the issue has been raised with Mr Harris and he and senior officials are now scrambling to shore up the legal loophole.
“There is no question of Grace’s cost not being covered. It will be sorted out,” said a department official.
Any change in existing legislation would have to be put to the Dáil, which will not return until the middle of September. However, another option may be to re-route existing Government funds to the legal costs given the limited cost compared to other expenditure.
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