Civil rights and privacy advocates have reiterated their concerns over the Department of Health’s approach to legal cases taken against it by children with special needs.
In a joint letter sent to members of the Oireachtas Health Committee, the Irish Council for Civil Liberties (ICCL) and Digital Rights Ireland (DRI) say many of their concerns remain, despite two reviews commissioned by the Department supporting the practices.
An internal review commissioned following an RTÉ report on the practices found there was “no evidence . . . (the Department) was secretly compiling dossiers on children with autism”, and there was no evidence the Department sought medical of clinical reports from clinicians treating children who were involved in legal action.
The groups argue that in six of the 29 cases exaxmined, however, medical reports from clinicians, provided without the knowledge of the plaintiff, were found in the Department of Health’s files.
The report, the groups say, outlines how the Department of Health sought “service updates” on cases to assist in identifying which would be suitable for settlement on such a regular basis that there was a template to make the requests. Such a request included service provision being provided by the HSE, plans for future services, reported levels of family satisfaction and any other issues. The template requests that families and legal advisers are not contacted in relation to the update.
“We believe the facts outlined in the internal review betray its own conclusion. The internal review outlines exactly how the Department of Health seeks and obtained personal data pertaining to children from the HSE, without their knowledge, and how the Department of Health gives the HSE and its agents explicit instructions not to seek consent for this data transfer from the person to whom it pertains or their parent or legal representative”.
They argue such practices to not meet the requirements of the General Data Protection Regulaiton. “It is still unclear to DRI and ICCL what the underlying legal basis is for the transfer of this highly sensitive data from the HSE to the Department of Health,” the groups wrote.
They argued it is not normal litigation practice for a Government Department to access medical records without a court order or plaintiff’s consent, and that it is also contrary to the recommendations of the Law Society of Ireland.
At a meeting of the Oireachtas Health Commmittee this morninng, the secretary general of the Department said there is “no evidence” the Department of Health was “secretly compiling dossiers” on children with autism or “prying” on families who were involved in legal actions against the State.
Robert Watt, the Secretary General of the Department of Health, told the committee that his department “has never gathered sensitive medical and educational information on children involved in court cases” in the manner portrayed in an RTÉ documentary on the subject screened earlier this year.
The RTÉ programme alleged the department was using information from private doctor consultations to build and maintain dossiers on the children, including sensitive medical and educational information involved in dormant court actions, without the knowledge or consent of parents.
A departmental whistleblower raised concerns about the alleged practices last year and was later interviewed for the RTÉ programme.
Mr Watt told the committee that 230 cases involving special educational needs have been taken since the early 1990s, with 29 of them remaining open.
He said a senior counsel report commissioned in February 2020 following the concerns raised in a protected disclosure by the whistleblower found “there was no basis for a reasonable belief of wrongdoing as this term is defined in the Protected Disclosures Act 2014”.
