Last year RTÉ Investigates revealed the story of Grace – a young woman with profound intellectual disabilities who was left in a foster home in the Waterford area for almost 20 years despite a succession of sexual abuse allegations in relation to the foster home.

In fact she was just one of 47 children placed with the foster family over a 20 year period.

The HSE commissioned two reviews into the foster home – one in 2012 by consultant Conal Devine and another in 2015 by the consultancy firm Resilience Ireland – to date both reports remain unpublished.

There were increased calls for some form of inquiry into the handling of the Grace case and earlier this year the Government announced a statutory Commission of Investigation.

In advance of the Commission of Investigation, Senior Counsel Conor Dignam was asked to report on the appropriateness and adequacy of the two previous HSE commissioned reviews, the duration of time it took to complete both those reviews and the reasons why they have not yet been published.

Yesterday – following several lengthy delays – Mr Dignam’s 309 page report was published by Minister of State with responsibility for Disability, Finian McGrath.

In his report Mr Dignam makes a series of findings including:

The procedures and processes followed by the HSE when commissioning the reports did not meet its own procurement rules.

These procedures were not adequate to ensure the independence of those conducting the reviews.

40 families of vulnerable children and teenagers placed in the foster home had reviews of their cases delayed by almost 4 years.

You can watch the original report into the South East foster care story, Duty of Care, here...

Mr Dignam also makes reference to the HSE’s approach to the publication of reviews. Generally, if advised by the Gardaí against such action, the HSE does hold off on publication. While Conor Dignam agrees there is merit to that approach, he does, however, criticise the HSE’s failure to explore that reasoning with the Gardaí and he questions whether redaction of the reports could, for example, have allowed their publication.  Mr Dignam concludes that the publication of the HSE commissioned reports, at this point, is unlikely to “fatally interfere” with any trial that may take place in the future.

The report is also critical of the manner in which complaints from two whistleblowers were dealt with in relation to the ‘Grace’ case. In their complaints the whistleblowers claimed there was a cover-up in relation to Grace’s case, there was a danger of the deliberate destruction of files and there were threats about funding provided to the agency for which they worked. In those circumstances, Mr Dignam states “it was entirely inappropriate that the matter should have been passed to the very section against whom these allegations had been made.”

DIGNAM REPORT QUOTE: “It is important to emphasise, of course, that it is not for this Review to examine or to make findings in respect of the correctness or otherwise of Ms. D and Ms. E’s belief and consequential allegations, and I do not do so. I express no view in relation to these matters other 31 than to say that, given the seriousness of the allegation, I think it is only fair to note that I have not come across any documentary evidence in the documentation that I have been provided with of such a cover-up or of a deliberate destruction of files. Obviously, there are inherent difficulties in attempting to assess such allegations in the context of a primarily desktop exercise even were I entitled to do so. In my view, these matters are matters which should be investigated by the proposed Commission.

The report is also critical that the serious nature of the complaints raised by these whistleblowers was not dealt with in an equally serious manner.

DIGNAM REPORT QUOTE: "The HSE explained that sometimes service-users, families or interested parties may raise a concern/complaint with the personnel or staff in the facility in which services are received and if the matter is not of a significantly serious nature, the matter may be dealt with at local level. On other occasions, a concern may be raised with a public representative who, in turn, brings the matter to the attention of the HSE by way of a representation through the Parliamentary Affairs Office of the HSE to the local area. Irrespective of the route by which a matter comes to the attention of the HSE, serious matters are dealt with under the provisions of the Serious Incident Management Policy which I refer to below. It appears that the complaint that was raised by Ms. D and Ms. E with the Department of Health was dealt with as a concern being raised with a public representative, i.e. that it was processed in the normal way for a representation made by a public representative.” 

The report makes separate findings in relation to the two previously commissioned HSE reviews.

Mr Dignam states the Conal Devine team carried out a “careful and thorough inquiry” but said the breadth of matters examined was inadequate, largely as a result of the terms of reference set by the HSE. Those terms were, in essence, too narrow and focused on the Grace case alone. Mr Dignam refers to the HSE’s approach to the inquiry as being inadequate in all circumstances.  This, he says, had serious consequences:

DIGNAM REPORT QUOTE: "I wish to make it absolutely clear that there is no evidence in the documentation that has been provided to me to suggest that focusing on Grace’s case was a deliberate action to avoid investigation of these other matters. Rather I believe that for the same good reasons as the Inquiry Team understood the Terms of Reference to be focused on the care and service delivery issues in respect of Grace, the individuals dealing with the HSE’s response to the Protected Disclosures were also focused on Grace. In my view, this is what emerges from the documents referred to above and the undisputed facts. However, this was unfortunate and it meant that serious issues were not investigated as soon and as quickly as possible and that other serious issues have not yet been investigated. 

“In all of those circumstances, it seems to me that the approach adopted to the Inquiry was inadequate because the Terms of Reference which the Inquiry Team was given by the HSE did not clearly and expressly ensure that there would be an examination of those matters. This arose because, on a reasonable interpretation, the Terms of Reference (which must guide the approach of an Inquiry Team) did not ask the Inquiry Team to inquire into these matters. In all of the circumstances it seems to me that the approach adopted by the Inquiry Team was appropriate and adequate.”

In relation to the Resilience Ireland review, Mr Dignam was again critical of the process used by the HSE when engaging an external company. He states the firm was engaged before there was any meaningful discussion in relation to price and “there is no evidence of a competitive process in that there was no tendering or, more importantly... no requests for quotes”.

DIGNAM REPORT QUOTE: “In this case it seems to me that there is no evidence of compliance with even a minimum requirement of obtaining a single quote before deciding upon a supplier. This is why the question of precisely 240 when the decision by the HSE to commission Resilience Ireland is so important. The documents disclose that this decision was in fact made by the HSE before any costings were obtained.”

And he goes on to say:

DIGNAM REPORT QUOTE: “Thus, in light of the absence of any evidence in the documentation that any real negotiation took place or that these procedures were complied with, it seems to me that taking the procurement process for the Foster Care Inquiry in isolation and as though it was a stand-alone process, it was not adequate to comply with the relevant procurement rules...

“I do not believe that there is any basis in the documentation for finding that the party eventually engaged, Resilience Ireland, or any of its personnel, lacked independence. However, I believe, on the basis of the documentation, that the procurement process adopted by the HSE cannot be seen as having been adequate to ensure the independence of those carrying out the Inquiry, that it would reach the standard the HSE set for itself and, importantly, would be such as to satisfy an objective observer that it was adequate to ensure independence.”

Mr Dignam adds that the inquiry team “could reasonably be seen as being too close to and linked in with the HSE”. They were asked to undertake other work in terms of management advice at the same time which Mr Dignam states was inappropriate and which affected the perception of their independence.

DIGNAM REPORT QUOTE: “This could have been dealt with by clear demarcation between the HSE employees as HSE staff and them as members of the Inquiry Team while still acknowledging that they were HSE employees. Unfortunately, this was not always achieved. For example, there were occasions when letters were sent on behalf of the Inquiry Team but were not stated to be from the Team. Ms. X sent letters on behalf of the Inquiry Team but on HSE paper with no indication that the letter was coming from her as administrator with the Inquiry Team rather than in her normal HSE role. This may be entirely appropriate for a solely internal review process but it is not adequate or appropriate in order to satisfy the need for the process to be independent and to be seen to be independent. A further example of lines being blurred is where a letter from Resilience Ireland dealing with negotiations for the contract for the File Review was pp’d by a HSE clerical member of staff who was a member of the Inquiry Team. This is unfortunate particularly given the high praise that was paid to this individual’s diligence and vigour by Mr. A. Mr. A instanced an occasion when the Inquiry Team were having difficulty 279 communicating with a particular individual and this member of the Team took the initiative and personally went to serve the relevant letter on this individual to ensure that the work of the Inquiry Team could proceed. However, while signing the letter was, I have no doubt, innocent, and I accept is often the practice in organisations it underlines how the close working relationship can blur the lines to erode the perception of independence.”

On this point, Mr Dignam further states:

DIGNAM REPORT QUOTE: “In my view, it was unwise of the HSE to incorporate the preparation of the Management Plan and the Human Resources Proposal into the work of the Inquiry Team at the same time as the conduct of the Inquiry. It was particularly unwise to ask the Resilience Ireland members of the Inquiry Team to carry out other work in the nature of management advice and assistance at the same time. Both of these had the potential to make the Inquiry Team, and particularly the Resilience Ireland members of that Team, seem too close to HSE management who, at a time when they were conducting an inquiry which the HSE stated needed to be conducted objectively and independently to ensure the credibility of the process, also had to have regard to the corporate interests of the HSE. There is no evidence that those or any members of the Team had regard to such interests to the detriment of the Inquiry but putting them in that position was an inappropriate approach and gave inadequate protection to the requirement for independence and objectivity.”

In a statement issued to RTÉ last night, the HSE reiterated its apology to Grace and her family for the failings identified and for the poor care received by those who spent time at this foster placement.

The HSE said many of the issues of concern raised in Mr Dignam’s report are already being addressed and they include the establishment of a panel “to source suitable, qualified expertise in conducting inquiries, investigations and reviews... in line with best public procurement policy” and it is also in the process of putting together a review panel that will “examine serious incidents that occur in disability services across the HSE and HSE funded services.”

It added it will be fully cooperate with the planned Commission of Investigation.

Speaking on RTÉ radio this morning, Minister McGrath said he hoped to be in a position to bring terms of reference for that Commission to Government within “a matter of weeks”. 

But just how far will those terms go? Earlier this year – following an RTÉ Investigates report revealing concerns surrounding the care of hundreds of adults with intellectual disabilities in the South East - the HSE said that of 1,080 disability files reviewed in the region, 47 cases were highlighted for priority follow up. Whether the upcoming Commission of Investigation will be broadened to include all such cases of concern remains to be seen.

That RTÉ Investigates report, Lost in Care, can be seen here...