On 15 September 2008 the CEO of the HSE informed me that he had received legal advice that "the final draft of the Report of the Ombudsman is ultra vires the Ombudsman Act 1980 as amended and that it is not open to the HSE in law to accept the findings or the recommendations contained in that final draft". However, the CEO did not give any explanation of how, or why, my report was, in effect, illegal. In my reply of 26 September 2008 I pointed out that the HSE had not explained the basis for its claim of illegality and I told the CEO that I would, in due course, be reporting to the Oireachtas on the rejection of my findings and recommendations. However, I offered the HSE a further opportunity to elaborate on its reasons for not accepting my recommendations and offered to include such a statement in my report to the Oireachtas. In reply (10 October 2008), the CEO again said that he could not accept my findings and recommendations. The only elaboration as to the grounds for this position was that he had received legal advice "indicating there are serious legal and technical difficulties". The CEO did not say what these difficulties were.
On 14 October 2008 the HSE's solicitors wrote to confirm that it had advised the HSE of certain "problems of law" associated with my investigation; the letter listed ten separate jurisdictional and legal "problems" (in a list stated to be "not exhaustive") which rendered my investigation illegal (See Appendix 2 of the Appendices to this Report). In summary form, these were that
- my report breached the "in camera" rule and represented an interference with the operation of the courts in relation to cases dealing with children;
- the subject matter of the investigation was a matter proper to the Ombudsman for Children and thus not within my jurisdiction;
- I did not have jurisdiction on the basis that the matter at issue was one which remained within the jurisdiction of the courts;
- I had employed an incorrect statutory test of "maladministration" both in initiating and concluding the investigation;
- the investigation report misinterpreted the provisions of the Child Care Act 1991;
- the investigation report misstated the law in relation to the appointment and regulation of a guardian ad litem by a court;
- the investigation report misstated the law "in relation to proceedings under the inherent jurisdiction of the High Court and the quite separate and distinct statutory proceedings under the Child Care Act 1991";
- the investigation report misstated the law "in relation to the measurement and taxation of costs";
- the investigation report made unfair references, both directly and indirectly, to a named local health manager and that this is in breach of section 6(6) of the Ombudsman Act;
- the HSE could not "lawfully" accept my report's recommendations (a) because of "the constitutional principle of the separation of powers" (b) because of the mandatory requirements of the Child Care Act 1991 and (c) because of "the public law duty not to fetter the exercise of statutory discretion".
In addition, the HSE solicitors said that they did not want a situation to arise where a decision taken by the HSE was considered by the courts to be a contempt of court. Finally, they said that the HSE intended to make an application to the District Court to inform the Court of this matter, and to make me a notice party to this application.
This communication was very puzzling as, amongst other things, it reflected a view that in the course of my investigation I had become involved in some fashion in commenting on, or disclosing details of, individual child care proceedings. This was simply untrue. Furthermore, I simply failed to understand why the HSE would be applying to the District Court, what it might have to say to the District Court and, more than anything, I saw no reason whatever that my Office should be made a party to any such proceedings.
These "problems of law", insofar as it was clear what they meant, were relatively easy to discount. Accordingly, on 23 October 2008 I sent a very detailed response to the HSE in which I dealt with each of the ten matters raised (See Appendix 3 of the Appendices to this Report). Some of the key responses are set out below.
On the question of a breach of the "in camera" rule, I said:
"There is no basis whatever for the view that my report breaches the in camera rule ... As I understand it, it is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. There is nothing in my report which might be construed as disseminating information emanating or derived from proceedings held in camera. The report does not identify any particular child, any particular court proceedings, or any of the parties to any particular court proceedings. Neither is there any basis for the view that the report somehow interferes with the operation of the courts in relation to cases dealing with children."
As regards the arguments under 10. above, I said:
"The HSE says it cannot lawfully accept my report's recommendations (a) because of 'the constitutional principle of the separation of powers' (b) because of the mandatory requirements of the Child Care Act 1991 and (c) because of 'the public law duty not to fetter the exercise of statutory discretion'. It is difficult to avoid the conclusion that these points are being raised with the intention of creating legal confusion where, in reality, the actual situation is quite straightforward.
In regard to (a), it is perfectly clear that as my Office does not make binding decisions or legal determinations then there can be no question of any interference with the doctrine of the separation of powers. Put very plainly, my Office has investigated instances of alleged maladministration (using that term in a general sense), has found that the allegations stand up, and has made recommendations to remedy the adverse effects suffered by the complainants.
The HSE is free to accept or reject these recommendations. It has chosen to reject them and I, in consequence, have decided to report on this to the Oireachtas. Raising the issue of the separation of powers is, it seems to me, either mischievous or it suggests a serious lack of understanding of what my Office does.
In regard to (b), referring to the mandatory requirements of the Child Care Act 1991, I am at a loss to know what the HSE might have in mind. In regard to (c), it is clear that the HSE retains the discretion to accept or reject my recommendation. A decision either way cannot reasonably be characterised as a fettering of discretion. My comments above in relation to (a) apply also in the context of (c)."
I find it difficult to avoid the conclusion that the HSE has chosen to misunderstand the nature and the implications of my investigation report. Furthermore I am concerned that, having allowed itself this misunderstanding, the HSE has felt free to misrepresent that report and its implications. Indeed, it has continued with this misrepresentation to the present day, two years following completion of the investigation report.
Ms. Laverne McGuinness of the HSE recently, in public (Letters Page, Irish Times, 3 June 2010 (See Appendix 4 of the Appendices to this Report), made the extraordinary claim that acceptance by the HSE of the recommendations of my report would have all kinds of unacceptable implications including that acceptance
"would require the HSE to hand over personal documentation and information (including privileged information) and information prepared in the course of in camera proceedings if requested to do so by the Ombudsman without notice to the people affected".
As a matter of hard fact, these claims have no foundation and are utterly incorrect.
It is a plain fact that this investigation concerned solely the issue of payment arrangements between the HSE and the agencies. In undertaking the investigation, my Office neither sought nor required any information concerning any individual child nor regarding any particular proceedings in any court. My investigation report, therefore, did not deal with the circumstances of any particular child nor with the outcome of any particular proceedings involving a child. Equally, my recommendations had no implications for any particular child nor for any proceedings involving any particular child; neither did the recommendations have any implications for how the HSE might be required to respond to any future investigation of a complaint involving issues to do with child care.
Full details of my recommendations in that case are available in the investigation report (GAL Fees & The HSE) which I am now publishing on my Office website. In summary, my recommendations were that the agencies be paid outstanding fees, with appropriate interest, that "time and trouble" payments of €10,000 be paid to each of the agencies and that, for the future, the HSE should engage openly with guardian agencies to ensure that such disputes would not arise again. Acceptance of the recommendations required neither more nor less than is specified in the recommendations. In fact, following its initial rejection of the recommendations, the HSE has in the meantime given effect to them.
Because of my deep concern at this continued misrepresentation of the implications of my investigation, my Office wrote to Ms. McGuinness of the HSE on 17 June 2010 to once again correct the record on the matter (See Appendix 5 of the Appendices to this Report).