Dáil Éireann debate -
Tuesday, 27 Jun 2017

Vol. 955 No. 3

Leaders' Questions (Resumed)

Deputy Mary Lou McDonald

Cuirim fáilte roimh an tUasal Michael O'Brien. I understand he is a Dub, so he is doubly "fáilte".

Yesterday, we heard the heart-rending story of Michael and Kathleen Devereaux from Wexford. Michael is 90, Kathleen is 85 and they have been inseparable during their 63 years of marriage. In April of this year they applied to the fair deal scheme. Michael was accepted but Kathleen was not. The Health Service Executive, HSE, maintained that Kathleen did not need long-term nursing home care despite the fact she had been in hospital since 28 April and requires constant care and supervision. The rejection of Kathleen's application is made all the more bewildering as it was supported by a letter from her doctor in which he makes clear that she would benefit from long-term care. Instead of allowing Kathleen to be with her husband in full-time care, however, the HSE offered her a home care package which comprised two 30 minute sessions of care twice a week. That is two hours of home care per week for an 85-year old woman suffering health problems, who has spent the past three months in hospital and who would be expected to cope with living alone for the first time in more than six decades.

It has been made very clear that the family does not have the skills needed to support their mother living at home. The family appealed the HSE decision and was turned down. In media interviews, Michael, aged 90, described the devastation of the experience, saying there are times he feels as if his head is going to burst. He tries to switch off. He said they were loyal citizens all their lives and it was terrible to think the country has led them to this situation. He cannot sleep, he wakes at 3 a.m. or 4 a.m. every morning, he prays and then he cries.

This couple would have been left in this dreadful situation had they not taken to the national airwaves. That is a damning indictment of the HSE and of the Government. What is going on in the HSE to say that someone can make such an awful decision and then stand over it? It is mind-boggling. Those responsible for this decision have to be held to account. I suggest that anyone who is okay with treating an 85-year old woman with such contempt should not be working in the area of health care. We know this is not an isolated case. How many other couples are like Michael and Kathleen? Has the Taoiseach asked? Does he know?

I know that transitional arrangements have now been made for Kathleen and that a review of the case has been initiated but nothing is certain.

Minister for Health (Deputy Simon Harris)

It is certain.

Deputy Mary Lou McDonald

Will the Taoiseach tell us now that this couple will be reunited?

Deputy Simon Harris

Yes.

Deputy Mary Lou McDonald

Will he tell us their needs will be assessed as a couple-----

Deputy Simon Harris

Yes.

Deputy Mary Lou McDonald

-----and that they will receive the care they need and that they are entitled to as a couple and a family?

The Taoiseach

I want first to clarify slightly my answer earlier that the Bill is of course open to amendments. We will of course have to consider amendments case by case.

Deputies

Sinn Féin amendments.

The Taoiseach

In respect of the case Deputy McDonald raises, I read the media reports on the case this morning. It is something that should not have happened. I am very upset to hear that an elderly couple in their final years could be separated in this way. I think this decision was devoid of common sense and humanity.

My heart goes out to them for what they have endured at the hands of our bureaucracy in recent weeks. I am very pleased that the Minister for Health, Deputy Harris, acted swiftly to resolve the case and have the decision reviewed. He will also look at similar instances. The Minister and the Minister of State, Deputy Kehoe, were in contact with Tom Devereaux, the couple's son, in the past couple of hours and I understand that the situation has now been resolved. The couple are going to be reunited.

I cannot comment on the detail of any individual assessment or on which doctor signed off and which did not. I do not have access to that kind of detail. However, there were extenuating circumstances in this case whereby a very elderly couple was separated after over 60 years of marriage. That is not the kind of decision-making we should have in our State. It was devoid of humanity and common sense and everyone in government is very upset about it. It is a shame that the matter was not resolved before it entered the public domain but I am pleased the Minister and Minister of State acted very swiftly to contact the family. The couple will now be reunited. They should never have been separated.

Deputy Mary Lou McDonald

I have no reason to doubt that the Taoiseach and other members of the Government were distressed to hear of this case. I accept that absolutely. I also accept that a review has been initiated and that the Minister, Deputy Harris, acted speedily. I have no reason to question that. However, in a fundamental way, that is to miss the very important point of who was responsible for this decision. We need an answer in that regard. Who within the HSE thought it was sensible, acceptable or in any way consistent with good policy to make a decision to separate this elderly and vulnerable couple in this way? Somebody has to answer for that. Rather than engage in a damage limitation exercise, the Taoiseach needs to apply himself to tell us the "who" of this story and what action will be taken as a consequence of it. We also need to know of other couples - other Michaels and Kathleens - out there. We need to ascertain how many times this has happened. Has the Taoiseach made those inquiries or when will he make them so that he can revert to the House to assure us that it does not take going on the national airwaves to secure one's most basic and fundamental rights? That is what happened to Michael and Kathleen. I know there are others - I suspect there are a great many involved - who were left in this situation but for whom the airwaves were not, perhaps, an option. The Taoiseach must come back to us with the relevant information without delay.

The Taoiseach

I cannot tell the Deputy who made the individual decision in this particular case, because I do not know, but I can tell her how the system works or does not. The first step in the application process is a care needs assessment to identify whether an applicant needs long-term nursing home care. This is carried out by a health care professional appointed by the HSE by means of a common summary assessment report, CSAR. That includes consideration of a person's ability to carry out his or her activities, the medical health and personal social services being provided, the family and community support available and the person's wishes and preferences. Once the assessment is made, it is submitted to the local placement forum, which, in all locations, consists of a multidisciplinary team supported, in general and where available, by a consultant geriatrician. That is the process but it did not work in this case. We need to understand why and whether the rules need to be changed so that elderly couples in similar scenarios in other parts of the country are not separated in this way. The Deputy has my undertaking and that of the Minister that we will do exactly that.

Deputy Brendan Howlin

The Taoiseach outlined a litany of processes which patently did not work in this case. In the past couple of days, there have been alarming reports regarding nursing home care in the State. We read in one Sunday newspaper that older people were billed for activities in which they did not participate. There is no comparable package to fair deal to allow people to remain at home even though it has been promised for a very long time. The ongoing scandal of delays in access to home care packages - delays which are estimated to be costing €18 million according to the Department of Finance - can surely be resolved.

To return to the Devereaux case - those of us in Wexford would know the family as the Devereauxes because that is the way we pronounce the name in Wexford - I have been dealing with this since April. There is the correspondence to the HSE in respect of these matters. On 1 June, I was told by the HSE that the responsible person to come back to me was on leave, would not be returning until 21 June and that I would not get a response until then. This is a couple in their late 80s who have not been separated in 63 years except by decision of this State, a decision that no one with any sense of compassion would accept.

For months, their son, Tom, and daughter, Christine, have been fighting the system to enable their mother to be admitted to the same nursing home as their father. They detailed their mother's considerable mobility and memory difficulties as well as all the other medical problems. They were all outlined in correspondence that both they and I have forwarded to the HSE, yet the answer was repeatedly "No" until such time as it was raised on the national airwaves. Bluntly, it is not good enough that the system is so defective that one can only have a compassionate response if it is raised on a programme such as Joe Duffy's, whose intervention I welcome.

What about all the others? What about the other Michaels and Kathleens who do not have the wherewithal to reach the national media? How many more cases are there that we do not know about, especially given the processes that were so well laid out and set out by the Taoiseach simply do not work? One after another, all these groups, bureaucrats and decision-makers deal with the detailed medical reports but cannot come to what is now a self-evident, compassionate decision until someone points it out in the national media.

How did this come to pass? How many more Michaels and Kathleens are there to be dealt with?

The Taoiseach

To pick up on some of Deputy Howlin's remarks, I am sure he is aware from his constituency work that the waiting times for home care packages have considerably improved in recent months due to the additional resources that have been provided by Government, with the largest health budget now in the history of the State. When it comes to additional fees for nursing homes, the Minister is working on proposals to ensure greater transparency in that regard in order that people going into a nursing home will know what additional fees they may have to pay for extras and to ensure people only pay extra fees for genuine extras and not as an additional contribution.

On statutory home care, the consultation will be launched this week. It is important we get that right. That is with a view to moving towards a statutory right to home care similar to that which exists with the fair deal scheme. The review of the fair deal scheme is under way at present and the new Minister of State with responsibility for mental health and older people is meeting representatives of Age Action and Nursing Homes Ireland today to discuss this and many other issues.

I am advised that the decision in this case was not a budgetary one, as the scheme is not running over budget, but a clinical one based on the fact one member of the couple did not need nursing home care. However, it was the wrong decision. It was wrong to separate a very elderly couple in this way. It was inhumane and lacked common sense. The Government does not stand over it. We now need to examine why the decision was made in the first place, whether there are other cases, and one would have to surmise that there are other cases, and what we can do to ensure the needs of very elderly couples are assessed together, as they should be, and that they are not separated in this way.

Deputy Brendan Howlin

I welcome the Taoiseach's compassionate response to this matter. If it is self-evident that this is the correct decision within minutes of anyone hearing about it, how is it that it was not self-evident to the people to whom we give statutory authority to make those decisions? There has to be a change to a culture that does not take out the measuring tape and say that a couple who have been together for 63 years can be separated because they do not fit into a particular matrix that has been set out.

The Taoiseach should indicate how the Government will bring about that cultural shift to ensure that people within the system apply the compassion he himself has now applied to this case without having such cases brought into the attention of the national media. It is self-evident that not every individual case will be afforded the attention given to this case but every single case deserves the same degree of attention and compassion.

The Taoiseach

As I said, I have only become aware of this case in the last couple of hours. I would like to be able to give the Deputy more definitive answers than I can at present. It may well be the case that the people who were the decision makers in this case followed the rules to the letter and did not allow for a degree of compassion and humanity. There is an ad misericordiam principle that exists in the Health Acts that allows one to make exceptions in extenuating circumstances. That is the basis on which, for example, we allow lots of discretionary medical cards. There is a responsibility on us as politicians and on senior leadership and management of the HSE to change the rules if needs be. One cannot really blame staff on the ground for applying the rules as they are but if the rules need to be changed, they will be.

Deputy Catherine Murphy

Yesterday's Irish Independent raised significant new questions regarding the Office of the Director of Corporate Enforcement, ODCE and its handling of the controversial Seán FitzPatrick trial, which was the longest-running criminal trial in the history of the State. The public's reaction to the case was one of feeling utterly let down. People read what happened in court - rightly or wrongly - as another example of people with friends in high places. They were left with a sense of punishment being only for the little people. In a week when public debate rages about the operation of the courts and the Judiciary, it must be said that cases such as the FitzPatrick one have a significant impact on public confidence in the system as a whole.

I want to raise with the Taoiseach what appears to be a significant conflict in the information provided to me and the Irish Independent by the Department of Jobs, Enterprise and Innovation recently compared with information provided to my party colleague, Deputy Shortall, in November 2015. Yesterday's revelations in the Irish Independent seem to suggest that the ODCE effectively misled the Department of Jobs, Enterprise and Innovation and the Government regarding its ability to effectively investigate the FitzPatrick case and provide the Director of Public Prosecutions with the evidence required to prosecute. On 31 May this year, I received a reply from the then Minister for Jobs, Enterprise and Innovation which assured me that in 2011, the Secretaries General of two Departments, namely, Justice and Equality and Jobs, Enterprise and Innovation, had met ODCE officials and offered extra resources, if needed, for the investigation. The reply went on to say that the ODCE had claimed that it had no need for any extra resources. The reply clearly says that it was emphasised at the meeting that any request for resources would be responded to positively. The reply confirms that the ODCE stressed that it was satisfied with the resources available to it. However, in a reply to my colleague, Deputy Shortall, in November 2015, it was claimed that the ODCE had flagged the need for further resources within its office. Subsequent replies relating to that question indicate that there was a significant delay in meeting those resource requests. That is obviously a significant issue in its own right. The Irish Independent claims that the emails sent internally from Mr. O'Connell in 2011 about concerns regarding the lack of resources within the ODCE to pursue the FitzPatrick investigation were only forwarded to the Department of Jobs, Enterprise and Innovation within the last few weeks. We need to know if that is true. We know that during the course of investigation, Mr. O'Connell shredded key documents and engaged in coaching witnesses. Ultimately, this and other issues led to the controversial collapse of the case.

I ask the Taoiseach to explain the conflict between the reply from the Department of Jobs, Enterprise and Innovation to me in May of this year and the same Department's reply to my party colleague, Deputy Shortall, in November 2015. Does the Taoiseach worry that the ODCE may have concealed vital information from the outset regarding its ability to pursue the FitzPatrick investigation? Does the Taoiseach believe that the Government was misled by the ODCE?

The Taoiseach

I have not seen the report. It has now gone to Cabinet and has not been published yet. I understand parts of it may have appeared in a newspaper, but I do not know to what extent they are the truth or the full truth. The report has not gone to the Attorney General who has to consider whether it needs to be redacted because individuals are named in the report and they may need to have their good names protected. Once the Attorney General has dealt with the report, we will then publish it, if we are permitted to do so, with a response. At that point, it will be possible for the Tánaiste to answer the Deputy's questions in more detail.

What I can say is that the Office of the Director of Corporate Enforcement, ODCE, has received additional resources in the past year, including several additional staff. Too often in this country, a lack of resources is used as an excuse for poor performance, which is why so often additional resources do not make any difference in terms of outcomes and performance. What I read in the newspapers is that documents were shredded that should not have been shredded and witnesses were coached who should not have been coached. I do not know how a lack of resources causes someone to shred a document he or she should not have or to find the time to coach a witness he or she should not have coached. The Government and Opposition must not allow people to hide behind the excuse of resources, which is not always the reason everything goes wrong. Often, it is not the reason at all.

As Taoiseach, I have expressed my view very clearly that I do not believe our capacity to respond to white-collar crime and corporate fraud is adequate. For this reason, I have asked the Tánaiste and Minister for Jobs, Enterprise and Innovation, Deputy Fitzgerald, and the Minister for Justice and Equality, Deputy Flanagan, to work together, with their Departments, to develop a package of measures to go to Cabinet by the end of September. This will enable us to strengthen and deepen our response to white-collar crime and corporate fraud. It is necessary and people demand it, and if we have any chance of restoring confidence in the State's ability to deal with such issues, we need to do exactly that.

Deputy Catherine Murphy

I know the report has gone to the Attorney General. That was not the question I asked. I asked about a conflict that arose when we posed the same broad question to the same Department on two occasions and received two different responses. In 2013, just before the trial commenced, the Department was made aware that the documents had been shredded. I am sure the same information went to the Director of Public Prosecutions. Would we have had the longest running criminal trial in the history of the State if they had had that information?

I asked the Taoiseach for specific information. The reply to the question I posed in 2013 stated that resources would be provided if requested. I compared that reply with the one Deputy Shortall received when she posed the question in 2013. She had to follow up the reply with other questions on how many staff were in place and when staff numbers would be augmented. It took until last year before the office had its full complement of staff. That is two years, which is a long time. I asked the Taoiseach a specific question on how he could resolve this conflict. That is an issue in its own right, irrespective of a report going to the Attorney General. We had a Department telling us two different things. Both answers cannot be right because they are at the opposite end of the spectrum. Will the Taoiseach address that issue, please? Does he believe he was misled by the Office of the Director of Corporate Enforcement?

The Taoiseach

I do not have an answer to that question. I have not yet had any dealings with the Office of the Director of Corporate Enforcement so I cannot say it has misled me. I certainly have not had any dealings with it in the past 11 days, as Taoiseach, or in my previous briefs. I do not believe it misled me, but if the Deputy has a question to ask of a line Minister, I imagine she will do that in the normal way.

On resources, in April 2013, a revised workforce plan was submitted by the ODCE identifying the need for five accountants and an information technology expert. That requirement subsequently grew to seven accountants. Notwithstanding the moratorium on recruitment in place at the time, the Department secured sanction from the Department of Public Expenditure and Reform for recruitment in October 2014. A campaign was launched in November 2015 under the auspices of the Public Appointments Service. After the normal recruitment processes were undertaken, a panel of eight forensic accountants was established. From April through to July 2016, five forensic accountants were formally recruited for the office and the remaining panellists withdrew. The Department subsequently asked the Public Appointments Service to run a specialist competition to allow it to recruit two more investigators to bring the cadre to seven. That campaign is in process.