Health Act 2007

PART 14

Protection of Disclosures of Information

103.

Protection of disclosures of information.

103.— (1) The Health Act 2004 is amended by inserting the following Part after Part 9:

“PART 9A

Protected Disclosures of Information

Definition of expressions in this Part.

55A.— In this Part and Schedule 2A:

‘actions’ means anything done or omitted to be done;

‘authorised person’ means, unless otherwise specified, a person appointed in accordance with section 55H(3);

‘chief inspector’ means the person who is appointed to the Office of the Chief Inspector of Social Services in accordance with section 40 of the Health Act 2007;

‘designated centre’ means a designated centre as defined in section 2(1) of the Health Act 2007;

‘employee’ means a person who has entered into or works under (or, where the employment has ceased, had entered into or worked under) a contract of employment with or is (or was) placed for the purpose of vocational training with any of the following:

( a) the Executive;

( b) another person providing a service similar to a service provided by the Executive who employs or has a contractual arrangement with a person registered with a professional regulatory body;

( c) a service provider;

( d) any other person receiving assistance in accordance with section 39 of this Act or section 10 of the Child Care Act 1991;

( e) a designated centre other than a designated centre operated by a relevant body;

( f) a mental health service other than a mental health service operated by a relevant body;

( g) a body established under the Health (Corporate Bodies) Act 1961; or

( h) any other person who provides a service for the purpose of providing staff to any of the persons or bodies referred to in paragraphs ( a) to ( g);

‘employer’, in relation to an employee, means a person or body (including a service provider or designated centre or mental health service) listed in the definition of ‘employee’;

‘Health Information and Quality Authority’ means the body established in accordance with section 6 of the Health Act 2007;

‘mental health services’ means mental health services as defined in section 2(1) of the Mental Health Act 2001;

‘Pharmaceutical Society of Ireland’ means the body constituted in accordance with section 4 of the Pharmacy Act (Ireland) 1875;

‘professional regulatory body’ means—

( a) an Bord Altranais,

( b) the Dental Council,

( c) the Health and Social Care Professionals Council,

( d) the Medical Council, or

( e) the Pharmaceutical Society of Ireland;

‘relevant body’ means—

( a) the Executive,

( b) a service provider,

( c) any other person who has received or is receiving assistance in accordance with section 39 of this Act or section 10 of the Child Care Act 1991, or

( d) a body established under the Health (Corporate Bodies) Act 1961;

‘Scheduled body’ means a body referred to in Schedule 2A.

Protected disclosure of information by an employee of a relevant body.

55B.— Where an employee of a relevant body makes, in good faith, a disclosure to an authorised person and the employee has reasonable grounds for believing that it will show one or more of the following:

( a) that the health or welfare of a person who is receiving a health or personal social service in accordance with this Act has been, is or is likely to be at risk;

( b) that the actions of any person employed by or acting on behalf of the relevant body has posed, is posing or is likely to pose a risk to the health or welfare of the public;

( c) that the relevant body or a person employed by or acting on behalf of the relevant body failed, is failing or is likely to fail to comply with any legal obligation to which the relevant body or person is subject in the performance of the relevant body’s or person’s functions;

( d) that the conduct of the relevant body or of a person employed by or acting on behalf of the relevant body has led, is leading or is likely to lead to a misuse or substantial waste of public funds;

( e) that evidence of any matter falling within any of paragraphs ( a) to ( d) has been, is being or is likely to be deliberately concealed or destroyed;

the disclosure shall be a protected disclosure under this Act.

Protected disclosure of information by an employee of a designated centre.

55C.— Where an employee of a person carrying on the business of a designated centre other than a centre operated by a relevant body makes, in good faith, a disclosure to the chief inspector and the employee has reasonable grounds for believing that the disclosure will show one or more of the following:

( a) that the actions of any person employed by or acting on behalf of a person carrying on the business of a designated centre has posed, is posing or is likely to pose a risk to the health or welfare of a resident of the centre;

( b) that the person carrying on the business of a designated centre has failed, is failing or is likely to fail to comply with any of the following which are applicable to the designated centre:

(i) a provision of regulations made under the Health Act 2007;

(ii) a standard made under the Health Act 2007;

(iii) any other statutory obligation;

( c) that evidence of any matter falling within either of paragraphs ( a) and ( b) has been, is being or is likely to be deliberately concealed or destroyed;

the disclosure shall be a protected disclosure under this Act.

Protected disclosure of information by an employee of a mental health service provider.

55D.— Where an employee of a person providing mental health services other than a relevant body makes, in good faith, a disclosure to the Mental Health Commission or the Inspector of Mental Health Services, and the employee has reasonable grounds for believing that the disclosure will show one or more of the following:

( a) that the actions of any person employed by or acting on behalf of the person providing the services has posed, is posing or is likely to pose a risk to the health or welfare of a person receiving the service;

( b) that a person providing the services has failed, is failing or is likely to fail to comply with any of the following which are applicable to the person:

(i) a provision of the Mental Health Acts 1945 to 2001;

(ii) a provision of regulations made under those Acts;

(iii) any other statutory obligation;

( c) that evidence of any matter falling within either of paragraphs ( a) and ( b) has been, is being or is likely to be deliberately concealed or destroyed;

the disclosure shall be a protected disclosure under this Act.

Protected disclosure of information in relation to regulated professions.

55E.— Where a person makes, in good faith, a disclosure to a professional regulatory body, which the person has reasonable grounds for believing will show that the actions of any person, the exercise of whose profession requires him or her to be registered with a professional regulatory body, has posed, is posing or is likely to pose a risk to the health or welfare of the public, the disclosure shall be a protected disclosure under this Act.

Applications and complaints about health professionals to be protected disclosures.

55F.— (1) An application in accordance with—

( a) section 45 of the Medical Practitioners Act 1978,

( b) section 38 of the Dentists Act 1985,

( c) section 38 of the Nurses Act 1985,

is a protected disclosure under this Act.

(2) A complaint under section 52 of the Health and Social Care Professionals Act 2005 is a protected disclosure under this Act.

Protected disclosure of information: monitoring, investigations and inspections.

55G.— Where a person makes, in good faith, a disclosure to—

( a) an authorised person appointed by the Health Information and Quality Authority in accordance with section 70 of the Health Act 2007 to—

(i) monitor compliance with standards in accordance with section 8(1)(c) of the Health Act 2007, or

(ii) undertake an investigation under section 9 of the Health Act 2007,

( b) the chief inspector who is in the course of an inspection carried out in accordance with section 41 of the Health Act 2007, or

( c) the Inspector of Mental Health Services who is in the course of an inspection carried out in accordance with section 51 of the Mental Health Act 2001,

which the person has reasonable grounds for believing will show a risk to the health or welfare of the public, the disclosure is a protected disclosure under this Act.

Duty of relevant body to establish procedures.

55H.— (1) The Executive shall establish procedures, applicable to the Executive, service providers and any other person who has received or is receiving assistance in accordance with section 39 of this Act or section 10 of the Child Care Act 1991

( a) to facilitate the making of protected disclosures, and

( b) for the investigation of any matter which is the subject matter of a protected disclosure.

(2) A body established under the Health (Corporate Bodies) Act 1961 which is not a service provider shall establish procedures—

( a) to facilitate the making of protected disclosures, and

( b) for the investigation of any matter which is the subject matter of a protected disclosure.

(3) The Executive, or as the case may be, a body referred to in subsection (2), shall appoint a person (the ‘authorised person’) to whom protected disclosures may be made.

(4) A service provider may, with the agreement of the Executive, establish procedures for the purposes set out in paragraphs ( a) and ( b) of subsection (1) so far as relating to matters within the remit of the service provider.

(5) The Executive may agree under subsection (4) only if satisfied that the procedures being established under that subsection are of a standard equivalent to those established, or which it would otherwise have established, under subsection (1).

(6) Procedures established under subsection (4) are in place of those established, or which the Executive would have established, under subsection (1), so far as applicable to the service provider.

(7) Where a body established under the Health (Corporate Bodies) Act 1961 is a service provider, the provisions of subsections (1), (4), (5) and (6) shall apply to the body.

(8) The Executive or a body referred to in subsection (2) shall, before establishing procedures under this section—

( a) submit a draft of the proposed procedures to the Data Protection Commissioner for his or her opinion as to whether any provision of the procedures would, if given effect, be likely to result in a contravention of the Data Protection Acts 1988 and 2003, and

( b) request that the opinion be given in writing to the Executive, or as the case may be, the body referred to in subsection (2) before the date specified in the request.

(9) If, before that date, the Data Protection Commissioner provides a written opinion that a provision of the draft procedures would, if given effect, be likely to have the results referred to in subsection (8)( a), the Executive, or as the case may be, the body referred to in subsection (2) shall have regard to that opinion in its further deliberations on the draft procedures.

Adherence to procedures governing protected disclosure of information to be a condition of arrangements made by the Executive.

55I.— (1) It is a condition of any arrangement under section 38 or of assistance given under section 39 of this Act or section 10 of the Child Care Act 1991 that a service provider or person receiving assistance will—

( a) adhere to the procedures established by the Executive in accordance with section 55H(1), or

( b) where procedures have been established by the service provider under section 55H(4), adhere to those procedures.

(2) The Executive may exercise any rights or remedies available to it by virtue of an arrangement or the giving of assistance referred to in subsection (1) if the service provider or person receiving assistance, as the case may be, is in breach of that subsection.

Duties in respect of protected disclosures.

55J.— (1) Where a protected disclosure is made to an authorised person, the authorised person shall investigate the subject matter of the disclosure.

(2) An authorised person may refer that subject matter or any part of it to an appropriate Scheduled body or a professional regulatory body or, where the authorised person believes that a criminal offence has been committed, to the Garda Síochána.

(3) An authorised person may inform a person in charge of the body to whom the disclosure relates of the subject matter of the disclosure.

(4) Notwithstanding a referral under subsection (2), the authorised person may investigate the subject matter if the authorised person or the person in charge of the body to which the disclosure relates considers it appropriate to do so.

(5) The person in charge of the body to whom the disclosure relates may, with the consent of the authorised person, appoint another person to investigate the subject matter.

(6) If, at any time during an investigation, the authorised person believes the disclosure is false, misleading, frivolous or vexatious, he or she may cease the investigation.

Disclosure to a Scheduled body.

55K.— (1) An employee of a relevant body may make a protected disclosure only in accordance with—

( a) sections 55E, 55F or 55G, or

( b) the procedures established under section 55H.

(2) Notwithstanding subsection (1), an employee of a relevant body may make a disclosure to a Scheduled body if the employee has reasonable grounds to believe—

( a) that the disclosure is justified by reason of the urgency of the matter, or

( b) there has been no investigation of the matter, or if an investigation has taken place, there has been no action or recommended action on the subject matter of the disclosure.

Protection from civil liability of persons who have made a protected disclosure.

55L.— (1) A person is not liable in damages in consequence of a protected disclosure.

(2) Subsection (1) does not apply in respect of a person who makes a disclosure knowing it to be or reckless as to whether it is false, misleading, frivolous or vexatious or who, in connection with a disclosure, furnishes information that the person knows to be false or misleading.

(3) The reference in subsection (1) to liability in damages shall include a reference to any other form of relief.

Protection of employees from penalisation for having made a protected disclosure.

55M.— (1) An employer shall not penalise an employee for making a protected disclosure.

(2) A contravention of subsection (1) is a ground of complaint by an employee to a rights commissioner.

(3) In proceedings before a rights commissioner or the Labour Court in relation to a complaint of a contravention of subsection (1), it shall be presumed, unless the contrary is proved, that the disclosure was a protected disclosure.

(4) If the contravention of subsection (1) was a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee both under this section and under those Acts.

(5) A rights commissioner hearing a complaint under this section shall—

( a) give the parties an opportunity to be heard and to present any evidence relevant to the complaint,

( b) give a decision in writing, and

( c) communicate it to the parties.

(6) A decision of a rights commissioner under subsection (5) shall do one or more of the following:

( a) declare that the complaint was or, as the case may be, was not well founded;

( b) require the employer to comply with subsection (1) and to take specified steps;

( c) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.

(7) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 12 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period) such further period, not exceeding 6 months from the expiration of the period of 12 months, as the rights commissioner considers reasonable.

(8) ( a) A complaint under this section shall be presented to a rights commissioner by giving notice of it in writing to him or her and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister for Enterprise, Trade and Employment after consulting the Minister for Health and Children.

( b) A copy of a notice under paragraph ( a) shall be given to the employer by the rights commissioner.

(9) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(10) A rights commissioner shall furnish the Labour Court with a copy of any decision given by the commissioner under this section.

(11) A party to proceedings under this section before a rights commissioner may appeal to the Labour Court from a decision of the rights commissioner and, on an appeal, the Labour Court shall—

( a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

( b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and

( c) communicate the determination to the parties.

(12) ( a) An appeal under this section shall be initiated by the giving, by the party appealing, within 6 weeks of the date on which the decision to which it relates was communicated to that party, of a notice in writing to the Labour Court under subsection (13) and stating the intention of that party to appeal.

( b) A copy of a notice under paragraph ( a) shall be given by the Labour Court to the other party as soon as practicable after the receipt of the notice by the Labour Court.

(13) The following matters, or the procedures to be followed in relation to those matters, shall be determined by the Labour Court, namely:

( a) the procedure in relation to the initiation and the hearing by the Labour Court of appeals under this section;

( b) the times and places of hearings of such appeals;

( c) the representation of the parties to such appeals;

( d) the publication and notification of determinations of the Labour Court;

( e) the particulars to be contained in a notice under subsections (12) and (15);

( f) any matters consequential on, or incidental to, the matters referred to in paragraphs ( a) to ( e).

(14) ( a) The Minister for Enterprise, Trade and Employment, after consulting the Minister for Health and Children, may, at the request of the Labour Court, refer a point of law arising in proceedings under this Part before it to the High Court for determination.

( b) A party to proceedings before the Labour Court may appeal to the High Court from a determination of the Labour Court on a point of law.

( c) The determination of the High Court under this subsection is final and conclusive.

(15) ( a) Where a decision of a rights commissioner under subsection (6)( b) or ( c) has not been implemented by the employer in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the employee may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer or any evidence (other than in relation to the matters), make a determination to the like effect as the decision.

( b) The bringing of a complaint before the Labour Court by virtue of this subsection shall be effected by giving to the Labour Court a notice in writing containing such particulars (if any) as may be determined by the Labour Court.

(16) Proceedings under this section before the Labour Court shall be heard otherwise than in public.

(17) The Labour Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under paragraphs ( a), ( b), ( c), ( e) or ( f) of subsection (13) (not being a determination as respects a particular appeal under this section) or subsection (15)( b).

Proceedings before Labour Court.

55N.— (1) The Labour Court shall, on the hearing of any matter referred to it under this Part, have power to take evidence on oath and for that purpose may cause oaths to be administered to persons attending as witnesses at the hearing.

(2) Any person who, upon examination on oath authorised under this section, wilfully and corruptly gives false evidence or wilfully and corruptly swears anything which is false is guilty of an offence and, on conviction, is liable to the penalties for wilful and corrupt perjury.

(3) The Labour Court may, by giving notice in that behalf in writing to any person, require the person to attend at such time and place as is specified in the notice to give evidence in relation to any matter referred to the Labour Court under this section or to produce any documents in his or her possession, custody or control which relate to any such matter.

(4) A notice under subsection (3) may be given either by delivering it to the person to whom it relates or by sending it by post in a prepaid registered letter addressed to the person at the address at which he or she ordinarily resides.

(5) A person to whom a notice under subsection (3) has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.

Enforcement of determinations of Labour Court.

55O.— (1) ( a) If an employer fails to carry out in accordance with its terms a relevant determination of the Labour Court under section 55M within 6 weeks from the date on which the determination is communicated to the parties, the Circuit Court shall, on application to it in that behalf by—

(i) the employee,

(ii) with the consent of the employee, any trade union of which the employee is a member, or

(iii) the Minister for Enterprise, Trade and Employment, if that Minister considers it appropriate to make an application having regard to all the circumstances,

without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the determination in accordance with its terms.

( b) In paragraph ( a), a ‘ relevant determination ’ means a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought, or if such an appeal has been brought, it has been abandoned and the reference to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of its abandonment.

(2) The Circuit Court may, in an order under this section relating to the payment of compensation, if in all the circumstances it considers it appropriate to do so, direct the employer to pay to the employee interest on the compensation, at the rate referred to in section 22 of the Courts Act 1981, in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(3) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer ordinarily resides or carries on any profession, trade, business or occupation.

Evidence of failure to attend before or give evidence or produce documents to Labour Court.

55P.— A document purporting to be signed by the chairman or a vice-chairman of the Labour Court stating that—

( a) a person named in the document was, by a notice under section 55N required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document,

( b) a sitting of the Labour Court was held on that day and at that time and place, and

( c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or wilfully failed to produce the document,

shall, in a prosecution of the person under section 55N, be evidence of the matters so stated without further proof.

Interpretation of ‘penalise’.

55Q.— (1) In this Part, ‘ penalise’ includes any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment and which is consequent upon a protected disclosure by the employee.

(2) For the purposes of subsection (1) but without prejudice to its generality, penalisation includes—

( a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off or dismissal,

( b) demotion or loss of opportunity for promotion,

( c) transfer of duties, change of location of place of work, reduction in wages or a change in working hours,

( d) imposition of any discipline, reprimand or other penalty (including a financial penalty),

( e) coercion, intimidation or harassment,

( f) injury, damage or loss, and

( g) threats of reprisal.

(3) Paragraph ( c) of subsection (2) shall not be construed in a manner which prevents an employer from ensuring that the business of the body concerned is carried on in an efficient and effective manner.

Continuity of employer’s business.

55R.— References in this Part to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to ownership of the business.

Making false reports.

55S.— (1) A person who makes a disclosure which the person knows or reasonably ought to know to be false is guilty of an offence.

(2) A person guilty of an offence under this section is liable—

( a) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months or to both,

( b) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years or to both.

(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted within 2 years from the date on which the offence was committed or, if later, 2 years from the date on which evidence that, in the opinion of a member of the Garda Síochána, is sufficient to justify the bringing of the proceedings.

(4) For the purposes of subsection (3) of this section, a certificate signed by a Superintendent of the Garda Síochána as to the date on which the evidence referred to in that subsection relating to the offence concerned came to his or her knowledge is prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purpose of this subsection and to be so signed is deemed to be so signed and shall be admitted as evidence without proof of the signature of the Superintendent purporting to sign the certificate.

Saver.

55T.— This Part is without prejudice to the provisions of the Protections for Persons Reporting Child Abuse Act 1998.”.

(2) The Health Act 2004 is further amended—

( a) by deleting “and” from immediately after paragraph ( e) of section 35(1) and inserting after that paragraph the following:

“( f) procedures established under section 55H, and”,

and

( b) by inserting after Schedule 2 the following Schedule:

“SCHEDULE 2A

Bodies and office-holders referred to in Part 9A as Scheduled Bodies

Adoption Board

Chief Inspector

Comptroller and Auditor General

Health Information and Quality Authority

Inspector of Mental Health Services

Irish Medicines Board

Mental Health Commission”.