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Health Services and the Law – Some reflections

Thank you for the invitation to speak to you this evening.

The Medico-Legal Society, as I understand it, provides a forum for members of the medical and legal professions to discuss issues of common interest and concern. The worlds of medicine and the law meet and overlap in very many areas, for example, in court in cases involving alleged medical negligence; before regulatory bodies such as the Medical Council in "fitness to practice" enquiries; in Mental Health Tribunals where decisions on involuntary admissions to psychiatric hospitals are reviewed; within the HSE and the Department of Social Protection where medical doctors advise on entitlement to statutory illness and disability benefits; in inquests conducted by coroners who must establish the cause of death in particular cases.

And of course medicine and the law meet whenever legislation is enacted, or proposed to be enacted, in a health-related area. At the moment, for example, there is talk of the need for legislation to regulate human assisted reproduction, to modernise the law on mental capacity and to deal with the aftermath (more than 20 years later) of the X Case and the right to travel for abortion.

As Ombudsman and as Information Commissioner I think I'm well placed to observe how the law and medicine - or, probably more accurately the law and the health service - meet and interact. In fact, in the work of my two Offices the engagement of the law with the health service is sometimes more in the nature of a collision than of a meeting!

FOI Experience

As Information Commissioner, I adjudicate on appeals where a requester under the Freedom of Information (FOI) Act has been refused records sought under that Act. Appeals from within the health sector constitute the largest single bloc of FOI appeals that I receive. And over the past few years these FOI appeals in the health area have thrown up several difficult issues mostly in the area of access to medical records under the public health service.

After some initial reluctance on the part of hospitals and doctors, it is now more or less routine that a person will get his or her hospital records under the FOI Act; and a medical card holder will get his or her GP records from a GMS doctor. Fairly routinely, also, parents will, under FOI, get access to the medical/hospital records of a child. But this can be quite a tricky area particularly where the child is old enough to have a view on whether a parent should see his or her records or where parents are separated and one parent is opposed to the other parent seeing a child's records. In fact one such case, where my Office decided that a separated father should not see the hospital records of his then teenage daughter, ended up in the Supreme Court.

The key issue from a legal point of view was whether the release of the daughter's hospital records to her father served the best interests of the daughter; and this had to be judged against a background of a traumatic marital breakdown, the death of the child's mother and the opposition of the child's current other guardian (her aunt) to the release of the records. My Office took the approach that it was necessary for the father to show that release to him of his daughter's records would be in her best interests. Both the High Court and the Supreme Court held that there is a Constitutional presumption that a parent will act in the best interests of his or her child and that, in deciding the FOI issue, this was a presumption which would have to be rebutted. Thus, in requiring the father to show that his action in seeking the records served the best interests of his daughter, we had erred in law. The Supreme Court then remitted the case to my Office for fresh consideration. The final outcome was that the records were not released but this was following a new process that was Constitutionally sound.

I suppose like many people who have had to engage with the law and the Courts, I found this particular case rather puzzling. There is a Constitutional presumption that a parent or guardian will act in the best interests of a child; and this is fine where both parents/guardians are acting in agreement.

But in the case just outlined (N. McK. and The Information Commissioner, January 2006) the other guardian objected to the father being given access to the records of his daughter. This other guardian must also be presumed to be acting in the best interests of the child. So what we had was a situation where we had to presume that the father was acting in the best interests of his daughter in seeking her hospital records while, at the same time, having to presume that the other guardian was also acting in the best interests of the child in saying that the father should not have the records. It's as if the Constitutional provisions on the family, at Article 41, simply do not envisage a situation in which parents or guardians would disagree on what serves the best interests of a child!

As we know now, only too painfully, the principle of acting in the best interests of the child was not a principle we took very much to heart in the past. Over the past 15 years or so we have been forced, as a society, to face up to the terrible things done to children by Church and State over most of the 20th century. Following on from the work of the late Mary Raftery, particularly with her 1999 RTÉ programme 'States of Fear' and her book 'Suffer the Little Children', serious efforts have been made to recognise and deal with the wrongs done to so many children. The FOI Act is one of the instruments available to survivors of abuse or of abandonment. It has been used to access personal records by thousands of people who, as children, were incarcerated in reformatories or industrial schools or who had spent time in orphanages or other institutions. Overall, though there were considerable delays, the Departments of Education and Health (the main public bodies holding relevant records) dealt with these requests adequately.

However, there continues to be an unresolved difficulty in accessing personal information for some people who grew up separated from their parents and families. This difficulty is in the area of what is sometimes referred to as "origins information". There are Irish people out there at the moment who know very little about their family origins; they are often ignorant on very fundamental things like who their parents were, where they came from, how old their mother was when they were born, why they were separated from their parents or parent and so on. Over the past decade the State has been funding an origins tracing service, operated by Barnardos, to help former industrial school residents trace their origins and find family members. So far, Barnardos has received 1,229 applications for help from this origins tracing service.

The Kennedy Report of 1970 (Reformatory and Industrial Schools Systems Report) recognised this problem of children not having information on who they were. That Report pointed out that those running the industrial schools and reformatories had the difficulty of frequently having to admit a child while knowing nothing about the child's background. As Kennedy put it: "On occasions it cannot even be ascertained where or when a child was born, whether he was baptised, or who his parents were". Today, more than 40 years after the Kennedy Report, there are still people caught in the trap of not knowing the basics about their own family and origins. Most of the people in this terrible situation are now quite old themselves and many of them were reared in institutions such as orphanages and industrial schools; some were put into foster care at a very early age. It is fair to say that these are people whom we, as a society, have treated very badly. And to some extent, we continue to treat them very badly. A FOI appeal decision I gave on one of these cases ended up in the Supreme Court which gave its definitive judgment in July last.

This story began with a FOI request made to the Rotunda Hospital in September 2004. The request was made by the daughter of a Mr. Walsh, then 82 years old and living in the UK. Mr. Walsh, who was born in 1922 in the Rotunda Hospital in Dublin, had been boarded out as an infant and never knew his mother. He was anxious to find out as much as he could about his mother and her family. Through their own detective work Mr. Walsh and his daughter had discovered the likely identity of his mother as well as a probable address for her at the time of his birth. In fairness, the Rotunda had given Mr. Walsh some information regarding his mother from its records. By the time the case came to my Office, the only outstanding issue was the Rotunda's refusal to give Mr. Walsh a copy of a record disclosing the age of his mother when she gave birth to him.

In the great scheme of things, it is remarkable that letting a man in his eighties know the age of his mother when he was born should require to be decided ultimately by the Supreme Court. And, inevitably, getting this final adjudication involved the spending of several hundred thousand Euro in legal costs - costs borne by the Exchequer ultimately. By the time of the Supreme Court's judgment, almost seven years after the initial FOI request, Mr. Walsh had unfortunately died.

However, this seemingly simple scenario raised complex legal issues. While not wanting to simplify matters too much, the Rotunda's position was that it should not disclose the age of Mr. Walsh's mother (a) because it meant disclosing her personal information and (b) because the mother had given the details of her age to the hospital in confidence. While it was eventually accepted by all sides that Mr. Walsh's mother was in all likelihood dead, the Rotunda's main concern seemed to be to protect the principle that medical information given by a patient to a hospital is protected by confidentiality. Without getting too technical, my decision was (a) that the FOI Act's protection for a third party's personal information did not apply in this case; (b) that the FOI Act's protection for confidential information did not apply in this case and (c) that, even if the confidentiality protection did apply, it would be overruled in the public interest.

When the Rotunda appealed this decision to the High Court that court dismissed the appeal. The case was then appealed to the Supreme Court by the Rotunda. The Supreme Court, on the basis of a four to one majority, found in favour of the Rotunda and set aside my decision. It accepted that the FOI Act's protection for a third party's personal information did not apply in this case; but it found that the information at issue - the age of Mr. Walsh's mother when she gave birth to him in 1922 - was protected by the confidentiality provisions of the FOI Act. What the judgment means is that the principle of protecting the confidentiality of information given by a hospital patient takes precedence over the right of a person to information about the age of his or her own mother. And this principle, it would seem, applies even though the patient in question is dead and the information at issue is not terribly sensitive.

I'm sure many of you will know that several of the exemptions in the FOI Act, which serve to prohibit the release of records, may be overruled following the application of a public interest test. In my decision I took the view that the public interest is served by enabling people generally to have the fullest information possible on their origins. I think there is general acceptance that not having such "origins" information is, at the very least, very upsetting for people and, in some cases, may leave them more exposed than would otherwise be the case to psychological stress and relationship strain. My thinking was that it is to the good of society, and in the public interest, that people generally be helped to avoid or overcome such stresses and strains and thus be free to participate as fully as possible in society. In other words, there is a dividend for society generally in minimising the risks of people either becoming a burden on society or of being unable to participate fully in society. Thus, as I saw it, while it was in Mr. Walsh's personal or private interest to find out about his mother and his family, it was also in the public interest that people generally be as informed as possible about their origins and family history.

In her minority judgment, Mrs. Justice Denham appeared to agree in general terms with my view; while acknowledging that there is a strong public interest in protecting the confidentiality of medical records, in balancing all the circumstances of this case she found that "the public interest favours the requester". The majority Supreme Court judgments, on the other hand, took the view that the public interest does not come into play at all in the context of Mr. Walsh's efforts to establish "origins information". They took the view that the interest a person has in knowledge about his or her origins is a private interest rather than a public interest. Furthermore, they expressed the view that it is not open to me, as Information Commissioner, to decide that accessing "origins information" is a public interest matter.

All of this is far from being simply academic. In addition to the case of the late Mr. Walsh, I had given decisions in three other cases involving elderly people who were looking to the Rotunda Hospital to fill in important gaps in their family stories. Following the Supreme Court judgment, I had to agree to have my decisions in those three cases set aside. For the future, all other FOI requests for such "origins information", where they involve records held by a hospital or doctor, are likely to be refused. And this, in fact, is likely to prove a significant impediment to the Government's commitment to implement a specific recommendation made by the Commission to Inquire into Child Abuse in its major report (the Ryan Report) from 2009.

The previous Government committed itself to implementing all of the recommendations in the Ryan Report; and I assume that the present Government is standing by that commitment. Recommendation 7.05 of the Ryan Report (Vol. IV, Ch. 7) has to do with the continuation in place of family tracing services "to assist individuals who were deprived of their family identities in the process of being placed in care" and recommends that the "right of access to personal documents and information must be recognised and afforded to ex-residents of institutions." In seeking to implement this recommendation, the previous Government cited reliance on access to "origins" information under the FOI Act as an action being taken in support of the recommendation. As the Report of the Commission to Inquire into Child Abuse, 2009 - Implementation Plan puts it: "Personal records will continue to be provided to individuals on request, under the terms of the Freedom of Information Act (ongoing )". In the light of the Rotunda judgments, it does seem probable that the FOI Act will no longer feature as an action in support of implementing Recommendation 7.05 of the Ryan Report.

I expect that for those involved in the State-funded origins tracing service, the fall-out from the Rotunda judgments must be quite discouraging.

Ombudsman Experience

I'd like to turn now to my experience as Ombudsman and how I see the law and the health service interacting. The Ombudsman's Office has been around since 1984 and, as many of you will know, we deal with complaints against the public service, that is, Government Departments, the HSE and its related agencies, the local authorities and An Post. We have a great deal of experience of dealing with health service complaints ranging across all aspects of the service. In the past few years we have been getting between 900 to 1,000 health complaints each year. The context in which we deal with health complaints has changed fairly dramatically in the past few years. I think I do not need to spell out the fact that declining health budgets and reduced staffing levels inevitably create their own problems. A specific issue facing the health service now is how it should handle what is, in effect, a situation of rationing: what principles should guide decision making on which services are to be curtailed or dropped. Ideally, such rationing decisions should be legal, fair and transparent.

In some ways, of course, the availability of resources has been a constant factor in health service delivery. Rationing has always been an issue. The very first health service complaint recorded in an Ombudsman Annual Report, in 1985, was about the fact that health boards were paying disability allowances (DPMA as it was known) from the date of decision rather than from the date of application; there could often be a gap of several months between application and decision and the practice of the health boards allowed them to save money. In the intervening 27 years, all of the major health service complaint issues dealt with by myself and my predecessors revolved, ultimately though not always solely, around funding. The provision of timely orthodontic treatment for children, the provision of long-stay care beds for older people, the payment of nursing home subventions, the illegal imposition of charges for older people in long-stay care, the refusal of medical card applications - all of these involved the saving of money or the collection of money.

In a report from 2001, my predecessor Kevin Murphy commented specifically on how public bodies should deal with rationing of services when the funding is not sufficient to meet the demand. He said:

"The Ombudsman operates in the real world and recognises that resources are limited. Sometimes people's needs can only be met on the basis of a system of priorities. So long as these priorities are set by reference to clear and transparent criteria (for example, as with housing lists or orthodontic treatment waiting lists) the necessary element of fairness is maintained; although, in the Ombudsman's view, these criteria should properly be provided for on a statutory basis. Furthermore, if economic and financial difficulties of a serious nature arise, any diminution of entitlements should be effected by reference to these criteria."

In dealing with complaints against public bodies, a basic first step is to find out what law (if any) governs the particular area; having identified the relevant law, the next step is to establish what the law requires to be done, or enables to be done, in the circumstances of the particular case. Clearly, if the law requires that a specific action be taken (for example, the payment of a social welfare pension), and that action is not taken then, on the face of it, the complaint is likely to be justified. It is a peculiarity of the health services, as I said elsewhere recently, that it operates half in and half out of a legislative framework. By this I mean that some areas of health provision are provided for explicitly in law while some other areas operate in a legal vacuum. By contrast, virtually all services and payments from the Department of Social Protection are provided for in law; just as virtually all of the activities of the Revenue Commissioners are governed by specific legislation.

While I appreciate that the present Government has plans to change radically how our health services are structured, it remains the case that, in terms of the provision of services, the cornerstone of the system continues to be the Health Act 1970. This is the legislation which creates the different levels of eligibility for health services; everyone has either "full eligibility", which is medical card cover, or has "limited eligibility". The Health Act 1970 also creates entitlement to certain services and places a duty on the health boards (now the HSE) to provide those services. It also allows, while not requiring, the HSE to provide certain other services. Amongst the services which the HSE is required to provide - the Act uses the word "shall" - are

  • hospital in-patient services and out-patient services,
  • medical and midwifery services for mothers,
  • child health examination and treatment service for children under six and for children attending a national school,
  • dental, ophthalmic and aural treatment and appliances,
  • GP services, drugs, medicines and surgical appliances, home nursing service - for medical card holders.

Then there are certain services which the HSE may, but is not legally required, to provide under the Health Act; these include:

  • an ambulance service,
  • a home help service,
  • the supply of milk to expectant mothers - medical card holders only.

However, in addition to those services which the Health Act 1970 requires to be provided, or enables their provision, there are many services being provided for which the Health Act makes no provision one way or the other. Many of you will know that the development of Primary Care Teams has been a priority activity over the past ten years - but nowhere in the legislation are such teams mentioned. Important services such as home care packages, day care services, physiotherapy, occupational therapy, speech and language therapy appear not to have any statutory underpinning. Many of these are services directed at older people and at people, including children, with disabilities.

Just to be clear: I am not saying that all public health service activity must be based in legislation. What I am saying is that, having re-organised our public health services in 1970, and having opted to follow a model based on legislation (the Health Act 1970), it must surely be a mistake to have effectively abandoned that model in practice while leaving the existing legislation on the statute book.

In recent decades, the development of new services has taken place outside of the existing statutory framework. One consequence of this, it seems to me, has been a certain dilution within the health service of the respect in which legislation should be held. Another consequence, I believe, is that there is uncertainty out there generally on what people's health service entitlements are and on what the obligations of the HSE are. This uncertainty becomes particularly acute in circumstances, such as we now have, where funding is being cut back significantly.

Services for people with disabilities

I think this problem is well illustrated in the case of services for people with disabilities. We're all aware of the particular anxiety being felt at the moment by families of young people with intellectual disabilities. There is a fear that for many of these young people finishing school in September there may not be any service available to them. There is a fear that funding for day care services and therapies - such as physiotherapy, speech and language therapy and occupational therapy - will dry up. A spokesman for the National Parents and Siblings Alliance, an advocate body for people with intellectual disabilities, was quoted in the Irish Times recently as saying:

"The Government must rethink its policy and the HSE in this instance must stand up to its statutory responsibility to uphold the health and welfare of the people it is charged to support."

I'm not at all sure that, in this particular context, the HSE has statutory responsibilities to which it must "stand up".

As far as I understand the situation, the HSE does not have a statutory responsibility to provide day care services for people with disabilities nor to provide physiotherapy, speech and language therapy or occupational therapy. Of course I'm not saying that the HSE should stop providing these services. What I am saying is that, in the event of these services being curtailed or dropped, people who need them seem not to have any enforceable right to the services. If I'm correct in holding this view, decisions on rationing these services may be influenced by the fact that they are not services which the HSE is legally obliged to provide.

At the same time, having legislation on the statute book is not necessarily the answer either. Any of you working in the area will know that the Disability Act 2005, on the face of it, represented a major step forward in recognising the rights and meeting the needs of people with disabilities. Part 2 of that Act, in particular, offers the prospect of some very tangible improvements. Part 2 gives a person with a disability an entitlement to an independent assessment of health and educational needs; an entitlement to a Service Statement specifying the health and educational services which it is proposed to provide; and provides also for access to a two-stage appeals process.

Unfortunately, the promise of major improvement seems not to have been borne out in practice. The Act does not actually create any direct entitlement to services over and above what is already provided for in law. While there is a right to be provided with those services identified in a Service Statement, the inclusion of items in the Service Statement is governed by the :

  • eligibility of the applicant for services under the Health Acts,
  • practicability of providing those services already identified in the assessment of need,
  • availability of funds.

Thus, it would seem that Service Statements are drawn up against a quite restrictive set of criteria. In any event, Part 2 of the Disability Act 2005 has not yet been commenced fully; so far, Part 2 applies only to those children currently under five years or who were under five years on 1 June 2007. In 2006 the Department of Health promised that Part 2 would be commenced for children aged 5-18 years in tandem with the implementation of the so-called EPSEN Act - the Education for Persons with Special Educational Needs Act 2004. But what has happened is that the relevant provisions of the EPSEN Act have not yet been commenced and the benefits of Part 2 of the Disability Act have not been extended to children generally. In 2006 also the Department of Health promised that the "statutory requirements of Part 2 of the Disability Act will be extended to adults as soon as possible but no later than 2011." This has not happened and, in all likelihood, will not happen now for several more years.

Clearly, having legislation on the statute book is not terribly useful if that legislation can be left in no-man's land indefinitely. In the case of Part 2 of the Disability Act 2005, the HSE actually sought to have its very limited application further restricted. The HSE took the view that the commencement order made by the Minister for Health provided that Part 2 should apply only to children who, at the time of application for an assessment of needs, were under five years. The HSE brought this issue to the High Court in 2009. This came in the form of an appeal against a decision of the Disability Appeals Officer that a child, actually over five years old at the point of application, but who was under five on 1 June 2007, continues to have the right to an assessment of needs. The High Court ruled in favour of the Disability Appeals Officer.

Other litigation

It is inevitable that any public body providing services on a statutory basis will, sooner or later, end up in court. While I know from my work as Information Commissioner that being taken to court can be a troublesome and expensive business, it does have the merit that, win or lose, the courts provide definitive clarification on what the law means and how it is to be applied. It has the merit also that the court process is generally conducted entirely in the public domain and that any interested person can know what's at issue, what the opposing arguments are and, ultimately, what the court decides. In an investigation report I published in November 2010 - called Who Cares? An Investigation into the Right to Nursing Home Care in Ireland - I dealt in quite some detail with litigation which raises the specific question of whether the Health Acts require the HSE to provide long-stay nursing home care.

It appears that there are currently more than 300 sets of High Court proceedings in place against the HSE and the Department of Health initiated by, or on behalf of, older people who had to buy expensive private nursing home care because (as they allege) of the failure of the HSE to provide care under the public health system. There is a single net point underlying all of these cases. This point is whether or not the Health Act 1970 confers on people a right to be provided with long-stay nursing home care - referred to as "in-patient services" in the Act - where such care is found to be necessary. The plaintiffs in these cases argue that they have such a right and that they should be compensated for the costs they have incurred because of the failure of the State to honour this right. It appears that many of these cases were initiated as long as six years ago yet, remarkably, no case has yet come to hearing and to judgment in the High Court.

Now I'm using the word "appears" deliberately because I have very little by way of direct information as regards these cases. When I was conducting the Who Cares? investigation I asked both the HSE and the Department of Health for information on these cases. I knew that some of them had been settled out of court, apparently to the advantage of the plaintiffs, and I was particularly interested to know why they had been settled and on what terms. I was also interested to establish why none of the cases had reached a hearing in the High Court. I was aware of a view abroad that, when it seemed likely that a case might be ready to go to hearing, the HSE and the Department settled that case presumably in order to avoid a hearing and a judgment. Though I have to say that both the HSE and the Department have denied that this is the case.

In the event, the HSE and the Department both refused to provide my Office with any information at all in relation these cases. In taking this line, they were continuing an approach already used when information was sought in the Dáil and by Oireachtas committees. Essentially, the argument was that neither the Oireachtas nor the Ombudsman could be given information on this litigation because of the need to protect the State's position in defending the cases.

This situation raises some very unsettling questions. If there is genuine uncertainty on whether or not the Health Act 1970 requires, or required, the HSE to provide in-patient services, then one would expect that the court process should be allowed to resolve that uncertainty. My own view, and that of my Office for many years, is that the health boards and now the HSE are required to provide in-patient services (which include long-stay care) to those who need it. The Department and the HSE reject that view. Nevertheless, the Department and the HSE have apparently settled at least a dozen, and probably more, of these cases with the payment of some level of compensation. It makes no sense to pay compensation for failure to honour a statutory obligation if (as the State bodies claim) there is no statutory obligation there in the first place.

A second unsettling aspect is that those people with the capacity to undertake litigation, and to pursue it vigorously, are being rewarded; while those people, perhaps thousands of them, who have had the same problem but who haven't the capacity to go to court, are treated less favourably. And this is precisely the point made by the then Minister for Health, Mary Harney, in March 2005 when she described this kind of practice as giving rise to "significant inequality issues that are unacceptable". The Minister was commenting on the practice of health boards who were charging medical card patients illegally for nursing home care and which, when challenged in court by individual patients, settled with those patients - but continued with the illegal practice in all other cases.

Most unsettling of all though is the attitude of the Department of Health and of the HSE in its point blank refusal to disclose any information on how it is handling these cases. The argument that it is protecting the interests of the State is not tenable. The State bodies are behaving as if they are just any other person who happens to be tied up in litigation and, like any other person (they would argue), they are entitled to do whatever it takes to defend the litigation. But of course the Department and the HSE are not just any other person; they represent the State which, says the Constitution, is democratic and derives all its powers "from the people". The people, presumably, have a right to know how any State body is conducting itself and using the State's money. Putting it at its simplest - and sometimes it does help to simplify - either

the HSE did not have an obligation to provide in-patient services for the litigants in question - in which event paying compensation to those whose cases have been settled was unnecessary,

- or it did have such an obligation - in which event it has failed to meet its statutory obligations over several decades to thousands of people.

We need to know which of these scenarios is the correct one and the only way to resolve the matter is to expedite the hearing of at least one case in the High Court. It is many years ago now since the OTA mantra - Openness, Transparency and Accountability - entered the lexicon of public administration. The continuing refusal of the HSE and of the Department of Health to explain themselves suggests that the mantra remains just that - an incantation devoid of meaning.

Conclusion

It seems to me that as a society we are paying a price for having a public health service which is half in and half out of a statutory framework. The price we pay includes a lack of certainty about what we can expect from the State in terms of actual services. It includes also a lack of transparency in decision-making about the allocation of resources. For example, it would seem to be the case that, in practice, decisions on service cut-backs in areas such as home helps for the elderly or services for people with intellectual disabilities are being left to local management or to the voluntary agencies actually delivering services. A further price being paid is a certain fudging in our regard for the law. If, as seems to be the case, the State's approach to the provision of mandatory, statutory services is not greatly different from the approach to providing non-statutory or discretionary services, then there is no reason why we should take the law that seriously.

As an example of this tendency, I would refer you to the HSE National Service Plan 2012 which was published recently. The annual Service Plan, which must be agreed with the Minister for Health, sets out how the budget allocated to the HSE will be spent in the given year by specifying the type and volume of health and personal social services which will be delivered within the approved employment levels set out by Government. The 2012 Plan is a substantial document and is admirable for the candour with which it acknowledges that front-line services will be affected adversely during this year. It acknowledges, again with a candour that one is not accustomed to in documents from many public bodies, that the unstructured nature of the staff retirement scheme in particular is likely to result in service reduction. The Plan acknowledges that there will be a significant reduction - of at least 555 - in the number of public nursing home beds. And so on. But what is remarkable about the Plan from my perspective is that I have been unable to find in it any recognition of the fact that certain of the HSE services are required under statute to be provided. As I read the Plan, it's as if all of the service areas have the same status.

The Plan has some references to the HSE having statutory obligations; but these are identified as in the area of child protection, crisis pregnancy prevention and tobacco control. There is no recognition that I can find of the HSE's statutory obligations in the mainstream areas of, for example, hospital services, GP services or dental services. While these services are dealt with in the Plan, one would not know from it that these are services which it is required in law to provide. The Plan's bibliography references seven specific Acts but omits to reference the Health Act 1970 which is the cornerstone of the health service. It's as if the obligations under the Health Act 1970 are of no great consequence.

The present Government's plan for a radical redrawing of our public health service will apparently require several pieces of legislation and this, inevitably, will take several years. Pending that new legislation, the present very unsatisfactory situation is likely to continue. But as we move slowly towards this transformation of our public health service, I earnestly hope that the need to ration the ongoing availability of scarce health service resources will be balanced with a new focus on transparency and on fairness in the delivery of these services.

Thank you.