Health Service Executive (Governance) Act 2013

7.

Insertion of Part 3A in Act of 2004.

7.— The Act of 2004 is amended by inserting the following Part after Part 3:

“PART 3A

DIRECTORATE AND DIRECTOR GENERAL OF HEALTH SERVICE EXECUTIVE

Directorate of Executive.

16A.— (1) The Executive shall have a Directorate consisting of—

( a) the person holding the position of the Director General, and

( b) subject to subsection (2), such other number of directors (in this Act referred to as ‘appointed directors’) as the Minister may appoint in accordance with this Act.

(2) Subject to section 16K(10), the number of persons standing appointed to the Directorate as appointed directors at any time shall not be fewer than 2 and shall not be greater than 8.

(3) A person may not be appointed as an appointed director unless he or she is a person who is an employee of the Executive holding the grade of national director or other grade in the Executive which is not less senior than the grade of national director.

(4) An appointed director shall hold office as a member of the Directorate on such terms and conditions as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine.

(5) For the purposes of subsection (3) and section 16B(4), a person shall be considered as holding the grade of national director or other grade in the Executive which is not less senior than the grade of national director, where that person stands appointed to a post at such grade on a temporary or acting basis for so long as that appointment subsists.

Term of office of appointed director.

16B.— (1) Subject to this Act, a person appointed as an appointed director shall hold office as a member of the Directorate for a term of 3 years.

(2) An appointed director may be re-appointed by the Minister for a second or subsequent term of office.

(3) An appointed director may resign from office as a member of the Directorate by letter addressed to the Minister, and the resignation shall have effect on the later of—

( a) the day specified in the letter, or

( b) on the receipt of the letter by the Minister.

(4) Upon an appointed director ceasing to be employed by the Executive in a grade referred to in section 16A(3), that person shall cease to be an appointed director.

Role of Directorate.

16C.— (1) The Directorate is the governing body of the Executive with authority, in the name of the Executive, to perform the functions of the Executive.

(2) Subject to any directions that may be issued by the Minister under subsection (8), the Directorate may delegate to the Director General any of the Executive’s functions.

(3) If a function of the Executive is delegated to the Director General under subsection (2), the delegation shall remain in force until the Directorate revokes the delegation.

(4) The Directorate shall notify the Minister in writing of any delegation made under subsection (2) and of any revocation of such delegation.

(5) The Directorate is accountable to the Minister for the performance of its functions and those of the Executive and the Director General shall account to the Minister on behalf of the Directorate for the performance by the Directorate of its functions and those of the Executive.

(6) The Director General shall account to the Minister pursuant to subsection (5) through the Secretary General of the Department of Health.

(7) The Directorate shall inform the Minister of any matter which it considers should be brought to the attention of the Minister.

(8) The Minister may issue a direction to the Directorate in relation to the delegation of the Executive’s functions to the Director General.

Appointed directors — eligibility for appointment and removal from office.

16D.— (1) A person shall not be eligible for appointment as an appointed director if the person:

( a) is regarded, pursuant to section 19 of the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy,

( b) is a member of a local authority,

( c) has been convicted on indictment of an indictable offence, or

( d) has been convicted of an offence involving dishonesty.

(2) A person shall cease to be an appointed director if that person—

( a) is elected as a member of either House of the Oireachtas or of the European Parliament,

( b) is nominated as a member of Seanad Éireann,

( c) is regarded, pursuant to section 19 of the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy,

( d) becomes a member of a local authority,

( e) is convicted on indictment of an indictable offence, or

( f) is convicted of an offence involving dishonesty.

(3) The Minister may at any time remove an appointed director from office as a member of the Directorate if—

( a) in the Minister’s opinion, the person has become incapable through ill-health of effectively performing his or her duties as an appointed director,

( b) in the Minister’s opinion, the appointed director has committed stated misbehaviour,

( c) the removal of the person as an appointed director appears to the Minister to be necessary for the Directorate to perform its functions in an effective manner,

( d) in performing functions as appointed director the appointed director has contravened section 25(1) or 26 or an applicable provision of the Ethics in Public Office Act 1995, or

( e) in performing functions as an appointed director the person has failed to comply with a code of conduct drawn up pursuant to section 10(3) of the Standards in Public Office Act 2001 and which relates to the appointed director.

(4) In this section ‘applicable provision of the Ethics in Public Office Act 1995’, in relation to an appointed director, means a provision of that Act that by virtue of a regulation made under section 3 of that Act applies to the appointed director.

Appointment of Director General.

16E.— (1) The Director General shall be appointed by the Minister.

(2) Subject to subsection (4), a person appointed as Director General shall be recruited in accordance with the Public Service Management (Recruitment and Appointments) Act 2004.

(3) A person appointed as Director General shall hold office on such terms and conditions (including terms and conditions relating to remuneration, allowances and superannuation) as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine.

(4) Subsection (2) does not apply to the appointment of the first Director General.

Eligibility for appointment as Director General.

16F.— (1) A person shall not be eligible for appointment as Director General if the person—

( a) is a member of either House of the Oireachtas or of the European Parliament,

( b) is regarded, pursuant to section 19 of the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy,

( c) is a member of a local authority,

( d) has been convicted on indictment of an indictable offence, or

( e) has been convicted of an offence involving dishonesty.

(2) A person shall cease to hold the office of Director General if that person—

( a) is elected as a member of either House of the Oireachtas or of the European Parliament,

( b) is nominated as a member of Seanad Éireann,

( c) is regarded, pursuant to section 19 of the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy,

( d) becomes a member of a local authority,

( e) is convicted on indictment of an indictable offence, or

( f) is convicted of an offence involving dishonesty.

(3) The Minister may at any time remove the Director General from office if—

( a) in the Minister’s opinion, that person has become incapable through ill-health of effectively performing his or her duties as Director General,

( b) in the Minister’s opinion, the Director General has committed stated misbehaviour,

( c) the removal of the Director General appears to the Minister to be necessary for the Executive to perform its functions in an effective manner,

( d) in the Minister’s opinion, the Director General has consistently failed to have regard to requirements in relation to his or her functions under this Act,

( e) the Director General has contravened section 25(1) or 26 or an applicable provision of the Ethics in Public Office Act 1995, or

( f) in performing his or her functions as Director General the person has failed to comply with a code of conduct drawn up pursuant to section 10(3) of the Standards in Public Office Act 2001 and which relates to the Director General.

(4) In this section ‘applicable provision of the Ethics in Public Office Act 1995’ in relation to the Director General, means a provision of that Act that by virtue of a regulation made under section 3 of that Act applies to the Director General.

General functions of Director General.

16G.— (1) In addition to his or her functions as a member of the Directorate and as the chairperson of the Directorate, the Director General shall—

( a) carry on, manage and control generally the administration and business of the Executive,

( b) perform such other functions as may be delegated to him or her by the Directorate under section 16C,

( c) perform such other functions as may be assigned to him or her under this Act or any other enactment.

(2) Subject to subsection (3), the Director General shall be responsible to the Directorate for the performance of his or her functions under paragraphs ( a) to ( c) of subsection (1) and for the implementation of the Directorate’s policies.

(3) Subsection (2) does not apply to the Director General’s functions as a member of the Directorate or as chairperson of the Directorate.

(4) Where the Director General is absent the functions of the Director General referred to in subsection (1) may be performed by such appointed director as may be designated by the Director General from time to time, with the consent of the Minister, and where no such designation has been made, and the Director General is unable by reason of his or her ill health to make such a designation, by the Minister.

(5) If the office of Director General is vacant, the functions of the Director General referred to in subsection (1) may be performed by such appointed director as may be designated by the Minister for the purposes of this subsection.

(6) For the purposes of subsections (4) and (5), where in this Act or in any other enactment functions are assigned to the Director General or provision is made in this Act or in such enactment as to the manner in which a function so assigned is to be performed by the Director General any such reference to the Director General shall be construed as including a reference to the appointed director designated by the Director General or the Minister under subsection (4) or, as the case may be, the Minister under subsection (5) for so long as that appointed director stands so designated and entitled to perform the functions of the Director General.

(7) Where the Director General resumes duty the person designated under subsection (4) shall cease to perform the functions of the Director General.

Delegation of functions by Director General.

16H.— (1) Subject to any directions that may be issued by the Directorate, the Director General may—

( a) delegate in writing any of his or her functions under section 16G to employees of the Executive specified by name, grade, position or otherwise, and

( b) where and to the extent specified in a delegation made under paragraph ( a), authorise the subdelegation of any or all of the functions delegated under paragraph ( a) to or by other employees of the Executive.

(2) Any function delegated or subdelegated under this section to an employee is to be performed by the employee under the general direction and control of the Director General and in compliance with such directions, limitations and guidelines as may be specified by—

( a) in the case of a delegated function, the Director General, or

( b) in the case of a subdelegated function, the employee who subdelegated that function.

(3) The delegation or subdelegation of a function does not preclude the Director General from performing the function.

(4) The Director General may—

( a) vary any delegation or subdelegation of a function made under this section, including by modifying the geographical area to which the delegation or subdelegation relates,

( b) revoke such delegation, or

( c) without revoking the delegation, revoke any subdelegation of the function.

(5) On varying or revoking the delegation or subdelegation of a function, the Director General shall inform each employee to whom the function was delegated or subdelegated of its variation or revocation.

(6) An employee of the Executive who subdelegates a function delegated or subdelegated to the employee under this section—

( a) may vary the subdelegation, including by modifying the geographical area to which it relates,

( b) may revoke the subdelegation, and

( c) is not precluded from performing the function.

(7) On varying or revoking the subdelegation of a function, the employee who subdelegated the function under subsection (6) shall inform each employee to whom the function was subdelegated of its variation or revocation.

Attendance by Director General before Oireachtas Committees.

16I.— (1) Subject to subsection (2), the Director General shall, at the written request of an Oireachtas Committee, attend before it to give an account of the general administration of the Executive.

(2) The Director General is not required to give an account before any Oireachtas Committee of any matter relating to the general administration of the Executive that is, or is likely to be, the subject of proceedings before a court or tribunal in the State.

(3) The Director General shall, if of the opinion that subsection (2) applies to a matter about which the Director General is requested to give an account before an Oireachtas Committee, inform the Committee of that opinion and the reasons for that opinion.

(4) The reasons for the Director General forming the opinion referred to in subsection (3) shall be given to the Oireachtas Committee in writing unless the matter arises when the Director General is appearing before the Committee.

(5) If, on being informed of the Director General’s opinion about the matter, the Oireachtas Committee decides not to withdraw its request, the High Court may, on application being made to it under subsection (6), determine whether subsection (2) applies to the matter.

(6) An application for a determination under subsection (5) may be made in a summary manner to the High Court by—

( a) the Director General not later than 21 days after being informed by the Oireachtas Committee of its decision not to withdraw its request, or

( b) the chairperson of the Oireachtas Committee acting on behalf of the Committee.

(7) Pending the determination of an application under subsection (6), the Director General shall not attend before the Oireachtas Committee to give an account of the matter to which the application relates.

(8) If the High Court determines that subsection (2) applies to the matter, the Oireachtas Committee shall withdraw its request relating to the matter, but if the High Court determines that subsection (2) does not apply, the Director General shall attend before the Committee to give an account of the matter.

(9) In carrying out his or her duties under this section, the Director General shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

(10) With the permission of the chairperson of the Oireachtas Committee making the request under subsection (1), an appointed director or any other employee of the Executive nominated by the Director General may attend before the Committee in place of the Director General to give an account of the general administration of the Executive, and in such event a reference in subsections (2) to (9) to the Director General shall be read as a reference to the person attending in his or her place.

(11) In this section ‘Oireachtas Committee’ means—

( a) a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee of Public Accounts, the Committee on Members’ Interests of Dáil Éireann, or the Committeeon Members’ Interests of Seanad Éireann), or

( b) a subcommittee of a committee falling under paragraph ( a).

Accountability of appointed directors to Director General for the performance of their functions as employees of Executive.

16J.— (1) Notwithstanding his or her functions as an appointed director, an appointed director shall be accountable to the Director General for the performance of his or her functions as an employee of the Executive.

(2) Nothing in subsection (1) shall be construed as affecting the functions of an appointed director as a member of the Directorate.

Meetings and procedure of Directorate.

16K.— (1) Subject to subsection (2), the Directorate shall hold such number of meetings as it considers necessary to perform its functions.

(2) The Directorate shall meet at least once in each of 11 months of a year.

(3) The Director General may at any reasonable time call a meeting of the Directorate.

(4) Any 2 appointed directors may call a meeting of the Directorate where a request in writing for a meeting of the Directorate to be called, signed by not less than 2 appointed directors, has been made to the Director General and the Director General—

( a) refuses to call such a meeting, or

( b) has not called a meeting within 7 days of having been requested to do so pursuant to this subsection.

(5) At a meeting of the Directorate—

( a) the Director General, if present, shall chair the meeting,

( b) if and for so long as the Director General is not present, or if that office is vacant, the appointed director designated by the Director General or the Minister under section 16G(4) or, as the case may be, the appointed director designated by the Minister for the purposes of section 16G(5) shall, if present, chair the meeting, or

( c) in any other case, the appointed directors who are present at the meeting shall choose one of their number to chair the meeting.

(6) Subject to subsection (8), the Director General and each appointed director shall each have one vote at a meeting of the Directorate.

(7) Subject to subsection (8), each question at a meeting of the Directorate shall be determined by a majority of the votes of the members of the Directorate present and voting on the question.

(8) In the case of an equal division of votes, the Director General or other appointed director chairing the meeting shall have a second or casting vote.

(9) A meeting of the Directorate shall not be quorate unless at least half of the persons who for the time being are members of the Directorate are in attendance at the meeting.

(10) The Directorate may perform its functions notwithstanding that there is a vacancy in the office of Director General or a vacancy or vacancies in the offices of appointed directors.

(11) Subject to this Act, the Directorate shall regulate its own procedures and business.

Vacancies in membership of Directorate.

16L.— (1) Where a vacancy occurs in the office of Director General, the Minister shall, as soon as may be, take steps to fill the vacancy.

(2) Notwithstanding section 16A(3), where by reason of an extended absence by an appointed director there are not, in the opinion of the Minister, a sufficient number of appointed directors of the Directorate available to enable the Directorate to perform its functions effectively, the Minister may appoint a person who is an employee of the Executive (whether or not holding a grade referred to in section 16A(3)) to act as a temporary appointed director of the Directorate.

(3) A person appointed under subsection (2) shall not be appointed for a term of more than 6 months and may not be reappointed more than 3 times.

(4) Where the appointed director in whose place the appointment was made under subsection (2) resumes duty as an appointed director, the person appointed under subsection (2) shall cease to be a member of the Directorate.

Committees of Directorate.

16M.— (1) The Directorate may from time to time establish such committees as it considers necessary for the purposes of providing assistance and advice to it in relation to the performance of its functions and may determine the membership and terms of reference of each such committee.

(2) The Directorate may appoint persons to a committee established under subsection (1) who are not members of the Directorate.

(3) The persons who may be appointed to a committee established under this section are persons who, in the opinion of the Directorate, have knowledge and experience of the matters falling within the terms of reference of the committee.

(4) The appointment of a person to a committee established under this section shall be subject to such terms and conditions as may be determined—

( a) by the Minister, with the consent of the Minister for Public Expenditure and Reform, insofar as those terms and conditions relate to allowances for expenses, and

( b) by the Executive, insofar as those terms and conditions do not relate to allowances for expenses.

(5) The acts of a committee are subject to confirmation by the Directorate, unless the Directorate dispenses with the necessity for confirmation.

(6) The Directorate may determine procedures for the conduct of the business and meetings of any committee established under this section, but subject to any such procedures which apply to the committee concerned, the committee shall regulate its own procedures.

(7) The Directorate may at any time dissolve a committee established under this section.

(8) This section does not apply to an audit committee established under section 40H.”.