I met with the CEO of the HSE on 22 May 2009 a few days in advance of the hearing date set for the District Court proceedings. The purpose of the meeting, from my perspective, was to seek to persuade the CEO that the HSE should even at this late stage seek to have the District Court proceedings stopped. I expressed to the CEO, in quite blunt terms, my sense of frustration and annoyance at being involved in the proceedings and my strong feeling that the proceedings would serve no useful purpose. I commented also on what I perceived to be unacceptable and inappropriate aspects of the manner in which the proceedings were being conducted, on behalf of the HSE, by its legal team.
The CEO explained that, for his part, he was happy to provide all of the information about the activities of the HSE which it was possible to provide subject only to legal restrictions. He took the view, he said, that while being as transparent as possible, and releasing all the information it is possible to release, could sometimes be painful it was, nevertheless, a key "driver" in transforming the health service. On the question of records disclosing "in camera" type material, he said he had the advice of "eminent senior counsel" to the effect that it was not open to the HSE to release such material to my Office without prior court approval. While this comment was relevant to a quite separate complaint then being considered in my Office, it had no bearing on the investigation of the guardian fees complaint where I neither sought nor required "in camera" type material. The District Court proceedings related solely to the investigation of the guardian fees complaint.
Ultimately, this meeting achieved very little. I came away from the meeting with a question in my mind as to whether, in fact, the HSE at senior management level was making a balanced assessment of the legal advice available to it. In principle I could understand, in circumstances where I had specifically and deliberately required the provision of records disclosing "in camera" type material, that the HSE might dispute my right to such material. Ultimately, in such circumstances, there might be an outside chance of such a dispute ending up in court (though I am quite satisfied that there is no current legal impediment to my Office being provided with such material). What I could not understand, and still cannot understand, is that I should be taken to court in circumstances where I neither sought, nor required, "in camera" type material. And all of this in a context where various regions of the HSE were continuing (and still continue) with the long-established practice of providing such material, on request, to my Office and without any difficulty.
The CEO represented himself as taking a commonsense approach inasmuch as, having been given clear legal advice, he should follow that advice. Not having seen that advice, I cannot comment on its merits nor do I know precisely how it purported to relate to the specific circumstances of my completed investigation. Legal advice is but one element - an admittedly important element - in decision making. It is difficult, in a general sense, to comment on the extent to which any public body should act in accordance with legal advice except, perhaps, to say that legal advisers should not dictate decision making. Ultimately, legal advice is no more than an assessment of how a court is likely to adjudicate in the event of the particular issue being brought before the court. In taking a balanced approach to the assessment of legal advice, it is relevant to establish whether the issue on which advice has been sought is a pressing matter, one affecting fundamentally the rights and well being of others and so on. In some instances it is proper to ask whether, in the particular circumstances, the issue is of real relevance or, in the alternative, it is more an academic than an actual issue.
The HSE makes the case that its actions, in the aftermath of the completion of the guardian fees investigation, as described above, were taken on the basis of legal advice. It is clear now those actions were futile and a waste of time and money. I would hope, in the light of this experience, that the HSE would re-consider its approach to legal advice in terms of deciding to what extent it should determine HSE actions.