The ongoing scandal concerning the deliberate downgrading of what used to be Waterford Regional Hospital in favour of Cork raises interesting legal questions, particularly regarding the liability of a Minister for the actions of his own department, and in this instance, the omissions of the Minister himself.
For those of you who have not followed the story, it was revealed last week that a senior HSE official downgraded the risk rating of the out-of-hours cardio service at the Waterford hospital shortly before those figures were sent to an independent expert to determine whether Waterford Hospital needed another cardio unit. Not surprisingly, the expert answered that question in the negative, despite overwhelming evidence from the hospital staff, including cardiac surgeons, that another unit was desperately needed. Attempts under the FOI Act to gain the terms of reference issued to the expert have been blocked, with critical portions redacted.
The plot thickened further when it was revealed this morning that in November last year the previous Minister of Health, Leo Varadkar, received a detailed report outlining that patients were at risk unless another cardio unit was immediately supplied at Waterford Hospital. Newspaper reports would suggest that Minister Varadkar, a medical person himself, put the report in a drawer somewhere and forgot about it:
“Eighteen patients suffered heart attacks while on the cardiac waiting list at University Hospital Waterford (UHW) over the past five years.
The revelation came in a special report submitted to the Health Service Executive (HSE) and Department of Health last November in support of a plea for greater resources, including a second catherisation lab at UHW.
A key element of the audit, details of which were obtained by the Irish Independent, was the mounting concern of UHW doctors that waiting times for both inpatient and outpatient cardiac care had been steadily increasing since 2010.
The audit was also submitted to the former Health Minister Leo Varadkar.
The cardiac report submitted last year bluntly warned that some of the heart attacks in patients might have been avoided “if there was no waiting list, or a very short one, which pertains in other centres.”
This blog has already suggested that Minister Harris should resign as he is individually responsible for the actions of officials in his department. But what about the liability of Leo Varadkar? Can the subsequent death of patients be laid at his door due to his failure to act on the very clear warning contained in the cardiac report of last November?
Under the Public Service Management Act of 1997, cabinet ministers are responsible for the actions of government departments and offices. Members of the government are collectively responsible to Dáil Éireann for departments of state administered by them. This is why Minister Harris should resign for the unauthorized alteration of the risk register, apart from the parliamentary convention which demands the same – as outlined in the previous blog.
Ministers have a duty to inform the Oireachtas of their actions (and omissions?) and parliamentary question time is the device used to ask the Minister those awkward questions about their performance and the performance of their department. This is really a political or democratic accountability, it does not mean they can be sued in court for their apparent negligence.
Judge, Hogwood and McVicar, in their excellent article “ ‘The pondlife’ of executive agencies: parliament and informatory accountability”, Public Policy and Administration, 12, 2, pp. 95 – 115. (1997, 97) have identified five levels of ministerial responsibility:
“Redirectory responsibility, requiring that ministers redirect queries to the appropriate person dealing with a particular case or issue.” Does this mean that Minister Varadkar was, at the very least, under a duty to forward the cardiac report to the CEO of the HSE, with instructions to act?
“Informatory responsibility, requiring the minister to keep parliament informed of what is happening in his or her department.” It might be argued that Minister Varadkar should have informed the Oireachtas of the dire situation in Waterford Hospital, perhaps with a view of securing extra funding, if indeed his coffers were bare.
“Explanatory responsibility, requiring the minister to make further explanation, particularly in cases of once-off shortcomings or wrong doings.” It has transpired that of the eighteen patients who had heart attacks whilst on the Waterford waiting list, six subsequently died. Would the Minister care to comment?
“Amendatory responsibility, where a minister is convinced that more than an explanation is required, requiring correction, amendment or reparation.” One can only imagine how the Minister was not convinced, as early as November last year, that Waterford desperately needed additional cardio resources. One would also ask, with that knowledge last year, why did they bother to appoint Dr Herity to do his report (which was compiled on the basis of an amended risk rating and a gerrymandering of the population figures).
“Sacrificial responsibility, where a minister accepts an obligation to resign.” Whether Minister Varadkar, along with Minister Harris, should tender his resignation for omissions that occurred under his watch, is the million dollar question. Does it matter that the Minister now has another portfolio (ironically entitled “Social Protection”)? Should he be held accountable for his past actions or omissions?
For us mere mortals, the law says that we need to owe somebody a duty of care before we can be held liable. If I perform an action or fail to perform an action, and this act or omission creates a dangerous situation, then I am liable for the foreseeable hurt caused by that dangerous situation. So if somebody warned me that a cardio unit was dangerously under-resourced and it was my duty and within my reasonable power to correct that, my failure to do so would mean I was liable for the dangerous situation that I allowed to continue. In other words, if the relatives of those six deceased patients could show that, but for my failure to act, their lives would have been saved, I would be liable for their deaths.
The question is – can a Minister be held liable on the same basis as us mere mortals?
Alas, unfortunately not. Because of something called the Separation of Powers, the courts are not allowed to tell the Minister how to spend his budget – that is within the Minister’s discretion, which we gave to the Minister when we voted him in as a TD. So if a Minister decides to build a new cardio unit for his own constituents in Cork, thereby neglecting to build one for the citizens in Waterford, there can be no legal liability attached. All we can do in Waterford is try and vote the Minister out at the next election, unless he does the honourable thing and resigns. Moreover, when we do manage to vote some eejit out of his ministry, he is replaced by an ever bigger eejit.
Aaah, the challenges of democracy.