Challenge on responses to Leas Cross report fails

A RETIRED senior health board executive who claimed a report into the deaths of residents and former residents of Leas Cross nursing home exceeded its terms of reference in criticising “systems failures” at health board level, including within his remit, has lost a High Court challenge to the failure to have full responses from him annexed to the report.

Michael Walsh, then chief executive officer of the Northern Area Health Board, had commissioned the Leas Cross report by Prof Des O’Neill in 2005. He argued that the HSE, by annexing to that report some but not all of his response to criticisms of issues within his remit, misrepresented his position.

The HSE denied those claims and said it had told Mr Walsh, before publication of the report, that he could not include in his responses references to confidential HSE information, including on identifiable patients or privileged legal advice given to him in his capacity as NAHB chief executive. Mr Walsh had refused to take out the material complained of.

Mr Justice Daniel O’Keeffe yesterday rejected the challenge by Mr Walsh, who retired in October 2005, and ruled that the HSE’s refusal to publish the submissions as requested by Mr Walsh did not amount to a denial of fair procedures or natural or constitutional justice.

The proceedings arose from the report prepared by Prof O’Neill, a consultant geriatrician, who was commissioned by the HSE in July-August 2005 to carry out an investigation into the deaths of residents and former residents of Leas Cross between 2002 and 2005. Leas Cross closed in August 2005 in the wake of a Prime Time Investigates report which found serious problems relating to running of the home. Prof O’Neill found that care at Leas Cross constituted “institutional abuse”.

Mr Walsh was appointed assistant chief executive officer operations for all service areas in the functional area of the board in 2002. In January 2005, he was appointed chief executive of the NAHB and held that position until July 2005. The HSE then took over responsibility for all service areas previously under the remit of the NAHB.

Mr Walsh said that in his capacity as chief executive, he had engaged Prof O’Neill to carry out an investigation into matters concerning Leas Cross. He had agreed that Prof O’Neill would examine the medical, prescribing and nursing notes at Leas Cross.

When provided with Prof O’Neill’s draft final report in July 2006 for the purpose of submitting any responses, Mr Walsh claimed Prof O’Neill had moved beyond his terms of reference and highlighted “systems failures” at health board level.

Mr Walsh complained the process adopted by Prof O’Neill was of a casual nature, he had made no contact with him and the draft report was seriously flawed.

Mr Walsh provided a 32-page response and submitted an additional response later, but the HSE raised issues about some of the material in those responses.

Dismissing the case, the judge ruled Mr Walsh’s delay in bringing the challenge disentitled him to the orders sought.