Examination of HSE legal costs and gagging clauses working against the public interest

HSE to proceed with contracting out legal services Dara Gantly dara.gantly@imt.ie The Health Service Executive (HSE) has decided to proceed with contracting out its legal services in a bid to slash its multi-million euro legal bill.
In a departure for current practice, the proposed contract will be based on a so-called ‘concessionary type approach’ where the successful service provider will be paid by the HSE an agreed amount on a monthly basis for the delivery of the required services.
It is expected that the contract will deliver a ‘significant reduction’ in the cost of services. The legal profession has been paid more than €107 million in fees by the HSE since 2005. Last year, €36.6 million was paid out on external legal costs — a 20% increase on 2007’s figure.
As part of the HSE Value for Money Programme, a saving of €2 million has been targeted specially for legal costs this year, but the Executive is finding it difficult to reach the targeted savings.
The objective of this procurement is to achieve best value for money for the HSE by delivering ‘more for less’ through a competitive tendering exercise, and ensure that expenditure is done so in a ‘controlled and managed fashion’.
It is intended that the contract will be for a period of three years with an option to extend for two additional years.
As previously revealed in Irish Medical Times, Irish and international law firms were invited by the HSE to attend a special meeting in Dublin in August in preparation for the tender.
Posted in Health Management on 27 November 2009
Tags: HSE
The above is the report in the Irish Medical Times last November 09. It begs a whole series of questions. Who looked at the appropriateness of the legal cases and how the cases were handled? How many times were “three wise medical persons”
employed to seek a resolution of clinical or medical personnel issues
before lawyers were sought? What were the details of the legal costs in
the HSE Dublin Northeast for the last four years 2006 to 2009 inclusive to enable us to see what has been going on in each hospital in the region and at each branch of HSE activity especially litigation.

Gagging

Because of the culture of gagging and silencing of staff, it will be interesting to see how easy or difficult it will be to get the information but get it I will.

Health services must be more open and transparent in a non-blame culture. I go to many meetings where there are differences of opinion on diagnosis and treatments. That is only good and hopefully will lead to better outcomes for patients but public audit of clinical outcomes is important to overcome the culture of club-ability and cover-up that may arise in any closed system.

Contracting out is not the way forward for legal issues in this area. It is much better to solve problems before they reach lawyers and also to hold individual CEOs to account. Furthermore over my career, I have been unimpressed by some legal advice proffered to administrators in the health service. Some of it has been downright wrong and I’m sure very expensive to obtain.

The questions I will pose for answer to the HSE will be:

For the years 2006 to 2009, separately

(A)Please list the litigation cases, costs and settlements of individual legal cases at each hospital in the region.
(B) Please list the litigation costs and settlements of individual legal cases outside of the hospital system in the region?
(C) Please list the number of cases in which the hospital boards were informed during that time
(D) Did the hospital boards know what were the basis of these cases?
(E) Did the hospitals try to settle cases involving staff litigation internally by mediation prior to calling in lawyers?
(F) How many cases and name them were settled with and without admission of
liability each year over that time period?
(G) How many formal enquiries were commissioned?
(H) Did the administrators seek a report from the Medical Board of the
hospital before commissioning an external report?
(I) Is there a policy of transparency and publication of serious adverse
incidents at the hospitals – made anonymous to protect professional and personal reputations?
(J) How many hospitals have introduced gagging clauses to employment
contracts for staff over that period?
(K) How many times have the hospitals used gagging clauses to threaten
their staffs regarding press leaks over that period?
(L) How many hospitals have instigated unsuccessful investigations into
information leaks by staff over that period?
(M) Has any member of staff been “disciplined” or suspended over that
period?
(N) If “yes”, what was the employment position(s) of the staff member?