Home > Children and the Law, Commentary > HSE Reports on Deaths in State Care: Why Publication Matters

HSE Reports on Deaths in State Care: Why Publication Matters

Yesterday and today there has been a great deal of commentary in Ireland on the tragic situations in which children and young people die in the care of the state. This intense commentary and discussion emerged from the publication by Alan Shatter TD of a report emanating from the HSE on the death of Tracey Fay who died when she was 18 years old and in the care of the state (RTE News coverage). Unfortunately, Tracey Fay is not the only minor to have died in state care or in relation to whom the HSE’s report has not been released either to the public or, it appears, to the families of the deceased. While this brings up multiple questions of about the responsibility of the state to protect those in its care, it also raises interseting questions about investigation and reporting in cases of death that I want to broach in this post.

Article 2 of the European Convention on Human Rights protects the right to life and includes within it a positive obligation on the part of the state to carry out an effective investigation into the circumstances in which someone within the care or custody of the state dies. The HSE does carry out such investigations but we know now that the preparation of a report of the outcome of that investigation is a protracted affair and there appears to be a real resistance to their publication. Yesterday at the Dáil Public Accounts Committee, HSE director of integrated services Laverne McGuinness confirmed that the drafting of reports ought to be speedier in the future through the use of guidelines set out by the Health Information and Quality Authority. More problematic, however, is the question of the release of reports with the resultant transparency, accountability and resolution for families.

The head of the HSE, Prof. Brendan Drumm,  told the Dáil Public Accounts Committee that the release of reports could cause some serious practical difficulties. According to the Irish Times he said:

If we go with a process that says every report is going to be published, getting the co-operation of the people you require to participate in that process could become not only prolonged but enormously expensive

There may well be a case for saying that the publication of reports would cause practical difficulties in the preparation of future reports that ought not, perhaps, to be discounted out of hand. However, one must step back and ask oneself what the purpose of these reports is and then consider whether that purpose can be effectively achieved in the absence of publication/release?

Reports of this nature are usually aimed at achieving four things: (1) ascertaining the exact circumstances leading to death; (2) providing an account to the family of the deceased of the circumstances leading to death; (3) ascertaining the levels of responsibility within the state agencies for the circumstances leading to death and ensruring accountability; (4) learning lessons to prevent reoccurence. In my view, a failure to release reports of this kind makes it extremely difficult to achieve anything but the first of these objectives. Professor Drumm is right to say that there are practical challenges in release, however the appropriate approach in my view is to work on resolving those practical challenges rather than maintaining secrecy around the reports.

* It should be noted that in all likelihood these are not the only kinds of reports that are not being released. Anecdotal evidence suggests that reports of the abuse and mis treatment of people with disabilities in HSE care also suffer delayed/no publication. If that is the case, then the same argument would apply.

  1. Gavinicus
    March 4, 2010 at 5:31 pm

    Surely the “legal difficulties”, which are somewhat debatable in any event, could be overcome by redaction thereby removing identifiable individuals whilst still giving accountability and valuable public information as to where and how the State seems to be continually failing children.

  2. March 4, 2010 at 5:41 pm

    Redaction would be one simple way of dealing with it alright, yes. Although would that be sufficient if there were criminal charges coming up? I think Drumm’s concern seemed to be able getting people to talk for reports if they thought they would be published. Speaks volumes about a culture within the HSE doesn’t it?

    • Gavinicus
      March 5, 2010 at 1:47 am

      It just proves that these internal inquiries are completely dysfunctional. A statutory enquiry with powers of compel-ability with sanction for non compliance would seem the only option. As for pending criminal prosecutions, there were 20 deaths in 10 years, surely any pending trials are well disposed of in the majority, if there ever were any, which one doubts! Simple redaction would suffice in those cases. These people simply do not realise that we are discussing the loss of life of the weakest and most vulnerable. It truly makes me sick. Shatter is not one to impress me generally, but on this occasion, he has performed a service.

      • Gavinicus
        March 5, 2010 at 1:48 am

        Oh, and just a final thought, do such internal enquiries satisfy ECHR requirements as to a proper investigation of death?

  3. March 4, 2010 at 9:59 pm
  4. March 5, 2010 at 3:59 pm

    Gavincus, Ian Turner has summarised the Art2 investigative obligation nicely in his article “Article 2 of the ECHR, the Investigation Obligation, and the Shooting of Jean Charles de Menezes” in the Web Journal of Current Legal Issues (http://webjcli.ncl.ac.uk/2009/issue5/turner5.html#_Toc246916088) thus:

    “What are the minimum standards for an investigation to fulfil the requirements of Article 2 of the ECHR (noting of course the statement by the Commission in McCann that not every death will require a formal investigation)? In Edwards v. United Kingdom (2002) 35 EHRR 487 the applicants were the parents of Christopher Edwards who had been killed by Richard Linford whilst being held on remand in HMP Chelmsford. The ECtHR said that because Christopher Edwards had been a prisoner under the care and responsibility of the authorities when he died, the state was under an obligation to investigate. The court said what form an inquiry must take may vary in different circumstances (at para 69). However, whatever mode was employed, the authorities must act of their own motion once the matter had come to their attention. They could not leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (at para 70).

    Moreover, for an effective investigation into an alleged unlawful killing by state agents, which of course is relevant to the fatal shooting of Jean Charles de Menezes, the ECtHR said that it may be necessary for the persons carrying out the investigation to be independent from those implicated in the events. This meant not only a lack of hierarchical or institutional connection but also a practical independence (at para 70). The court further said that there must be a sufficient element of public scrutiny of the investigation to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard their legitimate interests (at para 73).”

    Based on the above, which I think is a pretty accurate summary of the principles to be applied, I have to say I have my doubts.

  5. March 9, 2010 at 12:25 pm

    The issues of confidentiality and the protection of privacy are important, but are often used to protect the agencies involved rather than the individuals concerned. As Fiona identifies the question of why such case reviews are conducted in the first instance is the matter on which attention and debate ought to be focussed at this time. Case reviews are conducted to establish the facts of a particular case and to draw upon lessons to be learned. This implies that any lessons arising from the case should be brought to the attention of a wider audience – most pertinently policy makers, senior managers and practitioners. There are clear issues highlighted in this report that deserve a wide audience including the overall lack of responsibility taken for cases such as Tracy’s where young people present with multiple difficulties; the lack of independent oversight and the continued absence of a properly resourced and responsive out of hours social work service.
    These issues remain concerns for young people in care today and arguing for confidentiality for individuals in cases such as these should not result in the sidelining and silencing of the real issues and concerns which are central to this report.

  1. March 9, 2010 at 7:41 am

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