The author of the report into deaths at Leas Cross nursing home, Prof Des O'Neill, was told just prior to its publication that he might not be indemnified regarding its contents.
In a letter to Prof O'Neill, seen by The Irish Times, the HSE said his indemnity "may not apply".
In the letter, Aidan Browne, the then HSE national director of primary, community and continuing care, said: "I am in receipt of legal advice which suggests that should any action be taken by any parties directly arising from your refusal to consider the responses of concerned persons, the indemnity which you consider you have from the HSE may not apply."
The letter was sent on October 25th last, following a stand-off between the HSE, which wanted the responses of those concerned included, and Prof O'Neill, who maintained his report was complete and in accordance with the terms of reference given to him.
The report was submitted by Prof O'Neill last May, but was not published until November. During several weeks of controversy over the report's publication, the HSE claimed the main delay was because people referred to in the document had not been given an opportunity to respond. However, it has now emerged that there were also difficulties between the HSE and Prof O'Neill when the HSE warned it could be forced to withdraw his indemnity. The threat was subsequently withdrawn.
The Elder Abuse National Implementation Group, of which Prof O'Neill is chairman, subsequently wrote to Minister for Health Mary Harney expressing its concern about "the timing, content and tardy retraction" of the letter to Prof O'Neill.
"That such a letter could be issued at such a high level within the HSE, and not retracted for 10 days, left me in an exceptionally exposed position, and would be a serious disincentive for any future healthcare worker who needed to review or report suspected elder abuse, particularly if they thought that it might cast an unflattering light on the actions of the HSE or the Department of Health and Children," Prof O'Neill said.
Ultimately, the HSE sought submissions from those referred to, but not named, in the Leas Cross report. These were published as appendices to the final report.
In the midst of the controversy over publishing the report, HSE chief executive Brendan Drumm admitted Prof O'Neill's terms of reference should have been broader.
The Leas Cross report's findings were consistent with "institutional abuse" and concluded that "with a few honourable exceptions" there had been a systematic failure by Government, health boards and professional bodies to address the issue of appropriate quality of care for older people.
Asked to comment on Mr Browne's letter, a HSE spokesman said: "The key phrase is 'might not apply'. The possibility of indemnity not applying was discussed and the HSE sought further legal advice. Subsequently, any question mark over indemnity was dealt with."
Regarding the issue of indemnification for a person who undertakes a review of alleged elder abuse, the spokesman said: "This would firstly be a matter between the commissioning body and the person asked to carry out the review. The person concerned should, as a matter of course, seek and receive such immunity before commencing the review."
Meanwhile, earlier this month, Michael Walsh, the retired chief officer of the Northern Area Health Board, received leave from the High Court to bring a legal challenge to how the Leas Cross report was compiled and published.