Chapter 4 - Efforts to Resolve Matters
Given the decision of the HSE to reject my recommendations and findings, it was my intention to report this outcome to the Oireachtas. Because such reports to the Oireachtas are rare, both the HSE and my own Office saw the value in attempting to resolve matters without recourse to the Oireachtas. With the assistance of the Department of Health & Children, a three-way meeting involving the HSE, the Department and my own Office was arranged for 31 October 2008. This was a useful meeting at which, from the perspective of my Office, the real matter of concern to the HSE appeared to be one particular finding of my report. This was a finding, stated in general terms, that in adopting its particular approach to the guardian payment issue the HSE was
"acting in a manner which, in the longer term, is not conducive to improving, promoting or protecting the health and welfare of those children who are most vulnerable in our society”.
It appeared the HSE's concern was that this general finding might be taken out of context and be construed as suggesting that it was failing in a fundamental way in its statutory obligations to protect children at risk and failing to act in the best interests of children generally. The HSE suggested that some written clarification of what this finding involved might allow it to accept my findings and recommendations. The outcome of the meeting was an agreement to engage in further contact with a view to agreeing a form of words which would clarify that this finding was not intended as a general comment but, rather, one made in the specific context of payment arrangements for guardians ad litem.
Somewhat surprisingly, at this meeting the HSE side did not raise any of the ten legal "problems" identified by its solicitors; nor did it raise directly any other legal issue. My Office had a very clear understanding that the key reason for the HSE's rejection of the report arose from the particular finding mentioned above. The HSE disputes this account of the meeting.
In the two weeks following this meeting my Office had a number of contacts with the HSE regarding a form of words which would ease HSE concerns about the impugned finding. As a result of these contacts, my Office agreed to include in any publication of the investigation report a statement clarifying the meaning of the particular finding. Incidentally, this is a clarification which I am happy to give at this point now that the original investigation report is being published. The agreed wording, drafted by the HSE, read as follows:
"I am happy to clarify these comments and, in particular, to state that it is not my finding that the HSE (either collectively or through any individual staff member) wilfully jeopardised the welfare of any particular child or of children in general. Neither is it my finding that the HSE has failed to discharge any of its core statutory functions in relation to the welfare of children. Rather, my comments are to be understood in the context of my investigation of the complaints I received regarding the operation of the guardian ad litem system".