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Updated 14.35

NEW TERMS OF Reference for a Commission of Investigation into the case of Grace, a woman with disabilities who lived in a foster home in the south east of the country, and allegedly suffered abuse there for many years, have been passed in the Dáil by unanimous vote this afternoon.

Following scathing attacks in the Dáil chamber yesterday on the initial terms of reference, Disabilities Minister Finian McGrath agreed to return to Cabinet to redraft those terms in a manner acceptable to the Dáil.

The chief source of the scorn poured in the Dáil by TDs John Deasy and John McGuinness was that the terms as initially envisaged didn’t go far enough in their scope.

There was some confusion for a time prior to the vote as to whether or not the inquiry would be delayed after fiery exchanges at this morning’s sitting of the Public Accounts Committee (PAC).

With the HSE’s actions in testifying before the committee regarding the Grace case being condemned at PAC, a written invitation has been sent to the executive asking that it appear before the committee once more.

A one-week deadline has been set for a written response from the HSE to that invitation, with it expected to be represented in person after a further week. Normally such a parallel action would be expected to delay the Commission of Investigation, however that appears to not be the case here.

Despite widespread condemnation of the situation surrounding the Grace case by TDs (independent Mick Wallace said that “it’s time for heads to roll” at the HSE), all were in agreement that the revised terms of reference are appropriate.

Spot the difference

The new terms have now been published (the original terms can be read here). But what are the differences? Well there aren’t many, but those that have been made are very significant:

1. The timescale of the investigation has been expanded, with a final timeframe of no more than two years set for the second phase of the Commission. In altering Section I(c) of the Terms, the Government has committed to a second phase of the investigation, which to all intents and purposes will be focused on the many other residents of Grace’s foster home during the period under review. Previously, the Commission was to report in a maximum of 12 months regarding Grace’s situation alone, and then make its recommendations. This change is to effectively rubberstamp an in-depth investigation, with fewer limits in scope.
2. Under the Commission’s working methodology, under section II of the Terms, the timeframes for the investigation have been greatly expanded upon. Previously part (a) of this section had specified a maximum of six months for the preparation of an interim report, and a maximum of 12 before the publication of findings. This section has now been split into four parts – each reflecting a maximum six-month period before the production of interim and final reports respectively with regard to the two phases of the investigation. Crucially, the second phase now explicitly refers to the matters that will be under investigation in part X of the report, which brings us to…
3. Part X of the Terms has now been altered to more explicitly state that following phase one of the investigation the scope of the second phase is to be outlined, as opposed to any possible (emphasis ours) further investigations that might be necessary. More importantly, rather than just citing in vague terms the recommendations for investigation by barrister Conor Dignam in his 2016 report Review of Certain Matters Relating to a Disability Service in the South East, “for the avoidance of doubt” the Terms now explicitly state that the matters on which Dignam made recommendations that will be included in the second phase of the investigation are: care and decision making in respect of others, actions of the HSE in terms of investigating/protecting others, and the HSE’s treatment of whistleblowers. The final two recommendations were not to be included under the initial Terms of Reference.

So to summarise, the Commission of Investigation is now to pour its focus on both the HSE itself and its treatment of whistleblowers in the context of whatever the second phase of the investigation will refer to. And you can take it as read that means the other 46 children who passed through the foster home.

At the same time, the investigation will still be clearly split in two. So it may be some time before the true nature of what went on in the home as a whole, and how the HSE dealt with what it did and didn’t know, comes to light.

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