HSE faces ‘legal minefield’ if it intervenes in cases

THE Health Service Executive (HSE) has been warned it faces a legal minefield if it intervenes in the employment of a person accused of child or elder abuse.

A top judge in Britain and the HSE’s own legal advisers in Leinster have said although there may be allegations against a worker with access to vulnerable people, the law restricts direct action.

Sinéad Kearney is head of the health service division at BCM Hanby Wallace, which is the law agent for the HSE in Dublin and parts of Leinster.

She said there had been at least seven judicial reviews taken against situations where the HSE attempted to intervene when allegations were made.

Ms Kearney said the legal advice to the HSE was to settle a claim with the alleged abuser.

“We have had to settle cases recently because if the actions impact on a person’s job, you have to ensure the process is fair to them as well as protecting the vulnerable people involved. At the moment there is different practices around the country which makes it difficult,” she said.

The HSE has statutory responsibility for protecting children in care. In 2005, it had 5,220 children in its care after more than 19,000 reports were made about the welfare of children.

However, yesterday’s conference on Vulnerable People and the Law run by BCM Hanby Wallace heard the HSE, face a dilemma when an allegation is made.

Ms Kearney said the most frequent query it receives from HSE workers is on how to conduct fair investigations.

She said the lack of a special tribunal to rule on disputed cases made it difficult for health professionals dealing with abuse allegations.

This was compounded by allegations against people with ongoing access to vulnerable people but where intervention could permanently affect their job prospects even if they are found to be innocent.

“Currently the HSE carries out such enquiries without a statutory basis, leaving it open to judicial review,” she said.

Last night the HSE said it fulfils its statutory obligations to children in a fair manner subject to all relevant regulations and legislation.

“Due process is ensured in all court and other actions of the HSE in the provision of children and family services,” it said.

The conference was addressed by Judge David Pearl who chairs the Care Standards Tribunal in Britain where these cases can be aired.

He said a similar system in Ireland would protect the HSE.