Who exactly is in charge of the HSE?

LAST month the Health Service Executive admitted “full responsibility” for the deaths of Tracey Fay and David Foley, two teenagers who died in the care of the state.

It also commenced a review to determine whether disciplinary action against staff was appropriate, given that the two reports into their deaths clearly identified significant deficits in care provided.

But what does it mean that the HSE as an entity takes responsibility for the death of the children in its care? And how has the HSE managed to become such an out-of-control beast that the Taoiseach – never mind the Health Minister or the Minister for Children – cannot access files on children who have died in care without rushing through emergency legislation?

The HSE was created under the Health Act 2004 and, although it has a legal obligation to account to the Minister for Health and Government, the HSE is essentially divorced from ministerial accountability.

The legislation establishing the HSE sets the minister at the centre of health policy, in control of the appointment of the HSE board and its chief executive, but ministers have few powers to force the HSE to implement policy or deliver required actions.

It is becoming increasingly clear that the HSE views itself as a quasi-independent body, with no one toanswer to but its own management and internal structure.

This has been a convenient structure for the Government to pass the buck in the past, and for apportioning blame to an entity rather than on any one minister, ultimately allowing the Government to abdicate responsibility.

However, in the case of Daniel McAnaspie, this get-out-of-jail clause has come back to bite, resulting in this week’s extraordinary events.

But can the Government really not order the HSE to essentially do what it’s told in times of crisis?

Under the 2004 Health Act, the HSE has a particular responsibility to be accountable and transparent in respect of the services it provides, or fails to provide.

And it is the responsibility of the CEO and the HSE management team to ensure that the HSE is compliant.

However, the act really makes no clear provision in relation to the relationship between the Health Minister and head of the HSE.

Chief executive Brendan Drumm should of course then be accountable to Mary Harney. However, the Minister for Health has a noticeably “softly softly” approach to reprimanding Mr Drumm and the HSE.

Children’s Minister Barry Andrews however is demanding answers – but again clearly has not been able to compel the HSE to answer.

The whole issue of who is really in charge has really been laid bare, and the HSE’s refusal to hand over files is symptomatic of the relationship which has evolved between the Government and the executive.

The HSE claims it cannot give out confidential files as this would breach child protection laws, and the Government can find no other way around this other than to bring in emergency legislation.

However, according to leasing consultant psychiatrist Dr Siobhán Barry, it is “very difficult” to understand why the government cannot simply invoke the powers of the Children First Guidelines.

Yes, it is true they have not been put on a statutory footing, but according to Dr Barry, the strength of the guidelines is such that she often in the course of her work has to put the welfare and protection of children above everything else – including confidentiality, as set out by Children First.

The guidelines clearly state the welfare of children is of paramount importance, and that giving information to others for the protection of a child is not a breach of confidentiality.

They also state that central government and its agencies, notably the HSE, share responsibility for securing the care and safety of children.

Dr Barry said it if the HSE was adhering to the guidelines then it was difficult to see why legislation was needed.

She said everyone else was working with them as though they were statutory, and the HSE needed to be called to account on the matter.

The guidelines were drawn up in 1999 as national guidelines to be are applied consistently by health boards, government departments and by organisations which provide services to children.