OPINION:Why does the HSE foil child death inquiries by slavishly hiding behind a rule to which legal exemption for the greater good exists? asks EMILY O'REILLY
LIKE MANY others, I am bewildered by events surrounding the refusal of the Health Service Executive (HSE) to provide files on children who died while in care to the review group set up by the Minister for Children. Because of my own experience with the HSE, I must say I am not entirely surprised by these events. However, I am surprised there is talk of emergency legislation to fix this problem when, as I understand it, a 2004 Act of the Oireachtas anticipated, and resolved, the issue of reconciling the in camera rule with the need to facilitate investigations and inquiries.
The in camera rule means different things in different contexts. In childcare proceedings, the restriction, as I understand it, is concerned primarily with the protection of the identity and privacy of the individual child. No reasonable person will take issue with this. Equally, no reasonable person will object to the idea the privacy of the individual child will be qualified in a very limited way by the provision of information to a body charged with a public interest function of investigation. And, in fact, this is precisely what the Oireachtas provided for in enacting section 40 of the Civil Liability and Courts Act 2004. Section 40 addresses situations where an enactment “prohibits proceedings to which the enactment relates from being heard in public” where the consequence was that legitimate investigative bodies were finding it difficult to access relevant files. Proceedings under the Child Care Act 1991 are covered by this type of prohibition. Section 40 deals with this difficulty by providing, at subsections (6) and (7), that the prohibition will not apply in the case of a body or person conducting a “hearing, inquiry or investigation” under any enactment. In my own case, my powers of investigation are set down in statute and this provision puts beyond doubt my right to access information or files otherwise protected by the in camera rule. Where an investigation is being conducted by a body or persons not acting under an enactment, section 40 provides that they may be given the same exemption from the in camera restriction where they are “prescribed by order made by the Minister (for Justice)”.
It seems to me very probable, in the case of the current controversy, that any legal difficulty in providing files to the review group would be resolved by the making of an order prescribing the group for the purposes of the section 40 provision. If this is correct, emergency legislation will not be required.
My office has endured a rather bizarre experience with the HSE in which that body has displayed a capacity for ill-founded legalism matched only by a lack of common sense. In 2008, I investigated complaints against the HSE from two agencies which provide guardian ad litem services in childcare cases. These guardians are appointed by the courts but are paid by the HSE and the complaints arose from the failure of the HSE to resolve disputes about fees. The investigation had nothing to do with any particular child, nor with the details of any particular court proceedings. At no stage did my office look for any childcare file nor for any material which might have disclosed information about a childcare case held in camera. Following completion of the investigation, the HSE refused to accept my recommendations, which were in favour of the two agencies. Prof Brendan Drumm of the HSE wrote to me saying he had legal advice that my investigation report was “ultra vires the Ombudsman Act 1980” and that it was not “open to the HSE in law to accept” my findings or recommendations. I discovered the HSE’s claims of illegality against my office arose from the fact that, in the course of the investigation, the HSE had included in material provided to my office some references to individual childcare cases which had been before the courts. These references consisted of no more than the identification of individual guardian cases, for fee purposes, by use of a child’s initials as well as a judge’s comments regarding payment for guardians.
The HSE’s position was that I had no right to be given such information and that any investigation which had regard to this information was in breach of the in camera rule and thus illegal. My position is that I have a statutory right to be given information whose disclosure, in the normal course, would be in breach of the in camera rule. But this was quite irrelevant to the particular case as my investigation did not require or seek any in-camera-type material and, in any event, the material in question did not identify or facilitate the identification of any particular child. I told the HSE that I would be reporting to the Oireachtas its failure to accept my recommendations. The HSE reply was that it intended to apply to the High Court for an injunction to prevent me from reporting to the Oireachtas. Rather than have two public bodies embroiled in costly litigation at the public’s expense, I decided reluctantly not to report to the Oireachtas at that time; but I will be doing so later this year. Subsequently, the HSE implemented my recommendations in practice while maintaining the position that the investigation itself was illegal.
The really bizarre aspect of this experience was that the HSE forced my office, and one of the agencies providing guardian services, to become parties to court proceedings. The purpose of these proceedings was never clarified but they related somehow to the HSE’s provision of material to my office. After eight appearances over a seven-month period, the court struck out the proceedings and ordered the HSE to pay my office’s legal costs as well as those of the guardian agency. My office’s legal costs amounted to €52,000; the HSE’s own costs, as well as those of the guardian agency, may be in the same broad range suggesting total legal costs of perhaps €120,000 to €140,000. This was a disgraceful squandering of public money. Over the years, the HSE has regularly provided files containing in camera material to my office; indeed, even while the court proceedings were in train, and since, some regions of the HSE have provided my office with in-camera-type material without a quibble.
I appreciate that the in camera rule is complex and wide-ranging. There has been some debate recently about the need to modify the rule, and I agree that some modification would be helpful. I would be concerned that modifications introduced on foot of emergency legislation might have unintended consequences. I am not sure if it is widely understood that, on a day-to-day basis, public bodies routinely receive information and documentation which, on a strict legalistic basis, could be regarded as a breach of the in camera rule. Copies of maintenance orders, guardianship orders and barring orders (to name but a few) are routinely provided in support of housing, social welfare and housing applications. Any upset to these pragmatic practices could have far-reaching implications.
Emily O’Reilly is Ombudsman and Information Commissioner