AN INTERNAL REVIEW in the Department of Health has contradicted a number of claims made recently about the collection of information by the department on children whose families had taken cases against the State.
In March, RTÉ Investigates reported that the Department of Health had continued to gather information on children with special educational needs and their families long after their cases had gone dormant.
It was reported that the department had been secretly using information from private doctor consultations to build and maintain dossiers on the children over a number of years and that these dossiers included sensitive medical and educational information.
This was done without the knowledge or consent of parents, RTÉ reported, and had been done with the cooperation of the HSE and the Department of Education.
RTÉ’s Prime Time also featured a report on the allegations in which a whistleblower was interviewed about the protected disclosure he had made in relation to the gathering of this information. A review of his claims by senior counsel last year had found no wrongdoing.
However, following the RTÉ broadcast, the department launched an internal fact-finding review and the Data Protection Commission also began a statutory inquiry into the allegations.
The Department of Health today published its own internal review, which found no evidence secret dossiers were compiled, or that it had sought reports directly from clinicians, schools or the Department of Education.
Since the early 1990s the Department of Health has recorded approximately 230 cases against the State in relation to special educational needs (SEN) and 29 remain as active cases.
The department said these cases mostly involve claims relating to alleged inadequacy or inappropriateness of the provision of educational services and/or related health system supports or services to individual plaintiffs with special educational needs.
Following a protected disclosure in February 2020, a senior counsel Conleth Bradley, was engaged in July 2020 to conduct an independent review of the allegations.
The review looked into allegations about correspondence from the Secretary General of the Department of Education to the Secretary General of the Department of Health and spreadsheets with details of legal cases, including updates from named defendants in some proceedings.
It concluded that there was no basis for a reasonable belief of wrongdoing, as the term ‘wrongdoing’ is defined in the Protected Disclosures Act 2014.
After the Prime Time programme in March, the Secretary General Robert Watt directed a team to establish the facts in relation to allegations made in the broadcast. The scope focused on the 29 active open SEN cases and eight allegations made as part of the Prime Time broadcast and associated media articles:
In all but two of the claims the internal review found no evidence to support them.
The review found that the department is holding one video recording of a child with disabilities, but stated that this video file was provided by one of the family’s solicitors as an exhibit in a supplemental affidavit.
It found no evidence that the department had sought updates or reports on plaintiffs directly from schools or the Department of Education.
Though it also found no evidence that the department sought clinical reports on plaintiffs directly from clinicians, one case file contained a clinical report that came directly from a clinical. The Department said it had inadvertently received this report, but it was retained on the litigation file.
The review states that in the course of its defence of the litigation, the Department of Health sought service updates from the HSE – a co-defendant – from time to time.
The department said it is satisfied from the review that it is not the practice of the department to seek reports directly from clinicians. The review states that clinical reports that are received inadvertently should always be returned and not held on the file.
In relation to the claim that secret dossiers were compiled, the review states that, as a co-defendant in litigation cases, the department may have documents on file that form part of the proceedings.
“Such files contain information provided to the Department in the course of the proceedings which may include the pleadings, correspondence and/or reports received via the plaintiff’s solicitor in the course of the litigation.
“In addition, in the course of its defence of the litigation the Department of Health sought service updates from the HSE (co-defendant) from time to time.”
The review states that where the litigation pertains to an alleged failure in the provision of service, “it is appropriate for the department to establish the actual level of service being provided to the particular plaintiff”.
“Service updates are retained on the litigation files. The department had been advised that in the absence of service updates, it would be difficult to advise on the settlement of cases,” it states.
The review found there is no evidence that the Department of Health gathered information that was beyond instructions as part of the normal defence of a litigation case or that the department is “prying into families” who took High Court cases for the handling of its defence.
In relation to allegations that the personal information stored in the department could be accessed and viewed by anybody working in the department’s division, the review found that access to the relevant files was restricted to a ‘security group’ of approximately 25 people.
This was further restricted after the initial review of allegations last year.
The Data Protection Commission is continuing its review of data collection practices regarding these cases. In a statement, the Department of Health said it looks forward to the findings of this review and where necessary will make improvements based on their recommendations.
“The Department of Health is committed to continuing engagement with service providers to improve supports for service users,” it said. “The Department of Health acknowledges with regret the distress that headlines from the RTÉ Investigates programme of 25 March have generated. The Department’s primary concern in all instances is the health and welfare of service users.”
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