Nphet: Is it government by doctors? If so, where does the buck stop?

In fighting Covid the Government has opted for persuasion over legal coercion. This requires a clear unified message to the public

 Nphet ‘advised’ against the widespread use of antigen tests  but the Government publicly rejected this advice. Yet  Dr Holohan continued to command the air waves disapproving of antigen tests even after the Taoiseach had spoken.  Photograph: Getty Images

Nphet ‘advised’ against the widespread use of antigen tests but the Government publicly rejected this advice. Yet Dr Holohan continued to command the air waves disapproving of antigen tests even after the Taoiseach had spoken. Photograph: Getty Images

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Last Saturday’s front page story in The Irish Times commenced with the following arresting lead: “The Government has been forced into its most wide-ranging introduction of new restrictions this year...”

A reader who happened to have been asleep for the past nearly two years might be puzzled, and say something like, “who forced the Government – was it armed terrorists, the European Central Bank or a Supreme Court decision?”

But by now every other reader would presume it was the “advisory body” Nphet, short for Nation Public Health Emergency Team.

The model for central executive government, which has been followed since the mid-19th century in many states, including this one, consists of ministers advised by civil servants and answerable to an elected assembly.

David Gwynn Morgan is an emeritus professor of law at UCC

Under this system ministers take the major public decisions and bear responsibility in the Oireachtas, the news media and, ultimately, at general elections to the people.

As US president Harry Truman remarked “the buck stops here”.

Meanwhile, civil servants take no side, relaxing in politically-neutral anonymity.

The system has its disadvantages but at least it is well understood and usually respected on both sides of the fence.

Naturally the advice given by civil servants has to be informed by expertise in the relevant field: for instance economics, foreign relations, science and medicine or law.

There are frequently differences among the experts, supplying this advice within or outside the civil service, but their conversations and communications are not usually leaked.

But, to cut to the chase, some situations are so difficult and important and require so much public understanding and co-operation that there needs to be a wider and open debate which usually ranges beyond the usual experts.

Hospital Report

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Covid is probably the biggest crisis for a generation, and the the question of how the Government should responds to it falls into this category.

Immediate reaction

Plainly it was not an issue that could dealt with solely by private communication between the Department of Health and the HSE.

Coupled with that, when it struck in 2020 it required immediate reaction at a time when we had only a caretaker government.

It presented a unique challenge to the system of government but there were helpful precedents from other situations in which governments set up a group of experts to address a major problem, and received a report, usually published, with recommendations.

Even if the problem is a continuing or recurring one the government is left to makes up its own mind, without the “force” referred to at the start of this article being applied by the expert group.

To elaborate, government may react in a number of possible ways to public recommendations from experts.

Recently, for instance, there have been a number of inquiries into cases of sex abuse. Interest groups who think that the Government response to the inquiry’s findings did not go far enough in their favour will then use the report as a stick with which to beat the Government.

But no one is misled as to what is the Government’s position or role.

In part this lack of confusion is due to the reports’ authors generally maintaining a dignified silence.

Contrast this with the response on a number of occasions of the the chief medical officer and chairman of Nphet, Dr Tony Holohan, to Government decisions on Covid. The most recent of which concerns the use of antigen tests. Put briefly, Nphet “advised” against their widespread use. But the Government publicly rejected this advice.

Yet the salient point is that Dr Holohan, although he is a senior civil servant in the Department of Health, continued to command the air waves, disapproving of antigen tests even after the Taoiseach (who, if you want to bring in the separation of powers, exercises the executive power of the State under the Constitution) had spoken. A significant point here is that Dr Holohan appeared to base his view on the likelihood that an ordinary lay person would make a mistake in administering the test.

In other words, this was not a difference on a technical medical point between the two men but on the competence of the ordinary citizen.

The Taoiseach may reasonably feel he meets more ordinary citizens in his “surgery” in Cork South Central than does Dr Holohan in the upper echelons of the public service.

Alternative channel

There are three associated points. First, if an alternative channel to the Government, however informal, is being forced into the system of government it inevitably comes without clear guidelines and limits. This creates its own problems.

Secondly, to take the correlation between authority and responsibility, if the Government is coerced into taking Nphet’s advice and this goes wrong, the Government will feel like shirking its responsibility.

In fact this has started to happen in the Tánaiste’s extraordinary statement that his own Government’s latest restrictions are “peculiar”. This leaves no one responsible.

Finally, in fighting the virus the Government has to a considerable extent chosen (correctly in my view) the option of persuasion rather than legal coercion.

This sets a premium on being able to give a clear, unified message to the public with as little as possible discordant background noise.

In this context the recent moves to centrally co-ordinate communications by members of Nphet and the National Immunisation Advisory Committee (Niac) through the Government Information Service make sense.

Perhaps all this takes us back to Churchill’s observation that responsible democracy is “the worst form of government, except for all the others that have been tried from time to time”. 

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