The 2011 Programme for Government sets out a clear vision for the future of the health services. Central to this is greater accountability by the Health Service Executive (HSE) to the Minister for Health and the Department of Health. That process has been ongoing since the Minister announced major changes in the composition of the HSE Board in April 2011 and signalled that the Board structure would be replaced.
The 2013 Act provides for the abolition of the Board of the HSE under the Health Act 2004 and the putting in place of a new governance structure. The Board was replaced by a Directorate, headed by a Director General and with strengthened accountability arrangements for the HSE.
The Programme for Government also committed to the eventual dissolution of the HSE as the healthcare reform programme advances. The Directorate structure was to be an interim measure, intended to help put in place a more direct line of accountability between the HSE and the Minister during what will be a transitional period as the health reform programme progresses further. The aim was to have a clear focus on service management during this transitional phase.
The Minister has responsibility for health service policy while the HSE has operational responsibility for running the health services. However, it is essential that the HSE is properly accountable to the Minister for its performance. The purpose of the 2013 Act was to provide a framework for a new governance structure and associated new administrative structures which are designed to:
- make the HSE more directly accountable to the Minister for Health, who in turn is accountable to the people through the Oireachtas;
- help prepare the service delivery and funding systems for the next phase of the health reform programme; and
- facilitate further changes in responsibilities which achieve greater integration and less duplication in relation to national support functions.
Accordingly, the 2013 Act facilitated the Department, on behalf of the Minister, in challenging and supporting the HSE. In that regard, the legislation will, amongst other things,
- strengthen the provisions for Ministerial policy directions and priority setting and
- require the HSE to account for its performance to the Minister through the Secretary General of the Department of Health.
The 2013 Act
- abolished the Board and CEO structure of the Health Service Executive (HSE) and provide for a Directorate to be the new governing body for the HSE in place of the Board, headed by a Director General;
- provided for further accountability arrangements for the HSE; and
- provided for related matters including a number of technical amendments to take account of the replacement of the Board/CEO structure by the Directorate/Director General structure.
The new provisions built on and strengthened pre-existing accountability arrangements under the Health Act 2004 which were retained: for example, service plans, annual reports and the provision of information to the Minister.
Directions from Minister
The Health Act 2004 allows the Minister to give general written directions to the HSE in relation to the 2013 Act and to give specific directions on the submission by the HSE to the Minister of reports and information in relation to the performance of its functions. The 2013 Act amended them to provide also for Ministerial directions on the implementation of Ministerial and Government policies and objectives relating to HSE functions where the Minister believes that the HSE is not having sufficient regard to such objectives or policies in performing its functions. Directions may not be made in relation to individual patients or service users.
The Minister is empowered to determine priorities to which the HSE must have regard in preparing its service plan. He is empowered to establish performance targets for the HSE. Before specifying priorities or performance targets under this section the Minister must have regard to—
- best practice as respects the service the subject of the priority or performance target,
- outcomes for patients and recipients of services likely to be affected by the priority or performance target which the Minister is considering specifying, and
- the effect that specifying the priority or performance target concerned would be likely to have on other services provided by or on behalf of the Executive.
The 2013 Act also provides for the Minister to consult with the Minister for Children and Youth Affairs when setting priorities and performance targets for the HSE before specifying priorities or performance targets in respect of functions of the Executive which relate to the functions of the Minister for Children and Youth Affairs. Again, priorities and targets will not apply to individual patients.
These provisions are intended to facilitate stronger accountability arrangements for the HSE and add to existing provisions such as complying with directions, preparing the service plan or code of governance.
The 2013 Act provides for the establishment of a governing authority for the HSE, known as a Directorate, with authority to carry out the HSE’s functions on behalf of the HSE. The Directorate consists of a Director General and other persons referred to in the 2013 Act as appointed directors.
To offer flexibility and allow the size of the governing structure to adapt to changing circumstances, the 2013 Act does not specify a fixed number of members for the Dire ctorate but instead provides for a maximum of 7 and a minimum of 3 members, including the Director General who is automatically a member — and chairperson — of the Directorate. Other directors will be appointed by the Minister from among HSE employees who hold the position of national director in the HSE which is an administrative employment grade.
The term of office for a member appointed to the Directorate is 3 years and he or she may be re-appointed by the Minister for a second or subsequent term. An appointed director will cease to be a member of the Directorate if they cease to be a national director in the HSE.
The Directorate has collective responsibility as the governing authority for the HSE and the authority to perform the HSE’s functions. Subject to any directions of the Minister, the Directorate may delegate HSE functions to the Director General.
The Directorate is accountable to the Minister for the performance of the HSE’s functions as well as its own. As chairperson, the Director General will account to the Minister on behalf of the Directorate in regard to how the HSE’s functions are performed. He or she will do this through the Secretary General of the Department of Health. The Directorate must also inform the Minister of any matter that it considers should be brought to the Minister’s attention. This requirement to inform is in addition to other arrangements.
Membership of Board
The 2013 Act sets out eligibility for appointment and reasons for removal from office of persons appointed to the Directorate. These are similar to the provisions in other legislation in relation to Board appointments and removals.
It provides that the first Director General will be appointed by the Minister. Subsequent Director Generals will be appointed by the Minister following a recruitment process under the Public Service Management (Recruitment and Appointments) Act 2004. The appointment is made on terms and conditions as determined by the Minister, with the consent of the Minister for Public Expenditure and Reform.
The 2013 Act sets out the eligibility requirements for appointment as Director General as well as circumstances where the Director General may be removed from office. It provides for the general functions and role of Director General. These include managing and controlling the business of the HSE. In the operational aspects of his or her role, the Director General is answerable to the Directorate, as the governing authority for the HSE.
The 2013 Act sets out the arrangements for the delegation of functions by the Director General. A key objective of the new HSE governance arrangements is to facilitate a system whereby authority to make operational decisions is delegated as close as possible to the point of service delivery. Delegated functions may be subdelegated by the Director General to HSE employees. This will be subject to any directions from the Directorate.
The 2013 Act provides for the attendance by the Director General before Oireachtas Committees. It sets out the accountability arrangements of appointed directors to the Director General (as the person at the head of the administrative structure) for the performance of their functions as employees of the Executive.
The The 2013 Act provides for meetings and procedures of the Directorate. It sets out the position in relation to vacancies in the membership of the Directorate. It provides detail in relation to the power of the Directorate to establish committees for purposes such as providing advice and assistance to it in relation to the performance of its functions. These committees do not include an audit committee which is provided for elsewhere in the Bill.
The 2013 Act sets out provisions in regard to standards of integrity for Board members, committee members, the CEO and other HSE employees, advisors and employees of advisors. The 2004 Act was amended to take account of the abolition of the Board/CEO structure and the introduction of the Directorate structure.
The 2013 Act deals with the preparation of a service plan by the HSE and the submission of the service plan to the Minister. Formerly , the Executive prepared a service plan in line with certain requirements, adopts the plan and submits it to the Minister for approval. The Minister must either approve the service plan or issue a direction to amend the plan if requirements are not met.
The 2013 Act provided for the HSE to prepare a plan in line with current criteria and also taking account of priorities determined and targets set by the Minister. While the Minister may direct the HSE to amend the plan if requirements are not met, the Minister may now also amend the plan, following consultation with the HSE. In addition, the Minister is to consult with the Minister for Children and Youth Affairs.
The 2013 Act provides for the Minister to direct the HSE to submit an amended service plan after he or she has approved a plan. It also provides for arrangements where the HSE amends an approved service plan.
The 2013 Act provides that the HSE shall manage health and personal social services indicated in an approved service plan so as to ensure that the services are delivered in accordance with that plan. The Minister may direct the HSE to take specified measures in relation to the implementation of the plan.
The 2013 Act requires the HSE to submit a code of governance to the Minister for approval and sets out what should be included in the code. The 2013 Act states that the code should contain an outline of the structure of the HSE, including the roles and responsibilities of the Board. This is amended consequent to the new Directorate structure.
The 2013 Act sets out arrangements for the annual report. It provides for what should be included in the report including,, any other information the HSE thinks appropriate or the Minister may specify. There is to be consultation by the Minister with the Minister for Children and Youth Affairs
The 2013 Act deals with the establishment and functions of an audit committee to advise the Director General on financial matters relating to his or her functions and other related matters. Specifically, the audit committee shall—
- advise the Director General on financial matters relating to his or her functions,
- report in writing at least once in every year to the Director General on those matters and on the 2013 Activities of the committee in the previous year, and
- send a copy of that report to the Minister and the Directorate.
The Director General is required to furnish to the audit committee information on any financial matter or procedure necessary for the performance of its functions when requested to do so and where such information relates to—
- any contract that the Executive proposes to enter into involving expenditure of an amount in excess of a threshold specified by the committee, and
- any legal proceedings taken or threatened against the Executive that may give rise to a potential financial liability.