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.