A High Court judge may rule on Friday on an application by five psychiatric nursing staff at the HSE's Áras Attracta facility in Co Mayo for injunctions restraining the HSE proceeding with an internal investigation into allegations against them.
The injunctions are sought pending the full hearing of the nurses action alleging the manner in which the investigation is being carried out breaches their contractual entitlements and procedures agreed with their union, the Psychiatric Nurses Association.
Among their claims, advanced by Marguerite Bolger SC, is they were not consulted about the composition of a panel established to investigate the allegations.
That four member panel, they claim, has insufficient experience of alleged differences between the HSE and voluntary sectors concerning care provided for adults with intellectual disabilities.
The PNA and the Irish Nurses and Midwives Organisation have sworn affidavits stating the normal procedure is that composition of an investigation panel is agreed with the unions before it begins its work.
The HSE, represented by Peter Ward SC, with Tom Mallon BL, denies any unfairness in the conduct of the inquiries and has argued it is “critically important”, and in the interests of all concerned, including vulnerable users, their families and all staff of Áras Attracta, including the plaintiffs, the investigation concludes without unnecessary delay.
The HSE contends the investigations will not constitute disciplinary hearings but, if any allegations are upheld against any of the five, that will form the basis for a later disciplinary hearing.
It has accepted the investigation panel was not agreed with the PNA but argues the circumstances in which allegations were made over the entire service provided by the HSE at Áras Attracta required it to move with urgency.
Ms Justice Deirdre Murphy heard final arguments this week in the four day hearing and said she hoped, given the urgency of the matter, to give her decision shortly, possibly on Friday.
The five - Lyndsey Conway, Carmel Doherty, Mary Prendergast, Vidha Maverly and Marie Kilcoyne - deny allegations made against them arising from undercover filming of events during 2014 at Áras Attracta, Swinford, Co Mayo, by a reporter with RTÉ's Prime Time Investigates. The facility caters for adults with intellectual disabilities.
None of the five are subject to any criminal proceedings and all remain suspended on full pay pending the outcome of investigations under the HSE’s Trust in Care and disciplinary procedures.
During the hearing, Ms Justice Murphy was told by Ms Bolger the HSE was advised by a corporate risk manager in 2004, as part of the process of reviewing the Trust in Care policy, the “environment and culture” within which staff work often facilitates the commissioning of incidents of harm and abuse.
Taking a “systems based approach” in the review then underway “has a greater potential for effecting real and lasting change”, the risk manager advised.
If abuse within the health services was to be truly addressed “in a meaningful way”, the HSE must focus not just on individual staff actions but, “more importantly”, the local culture, for example, the ward culture to see if such practices were commonplace or tolerated by line management, she said.
The culture, quality of leadership, processes and decisions at senior management level needed to be reviewed to ensure they did not facilitate commissioning of abuse through, for example, poor decision making, allocation of resources and lack of robust procedures, she added.
Noting the HSE had argued that no “culture” could condone abuse of vulnerable elderly residents, Ms Bolger said her clients are not condoning anything, their concern was to have a “proper” investigation.
