Village Magazine has published an article in its current edition which is both inaccurate and grossly defamatory.
The Tánaiste has sought legal advice on the content of the article.
The facts are that the 2019 Agreement on GP contractual reforms was negotiated by the Department of Health, the HSE and the Irish Medical Organisation (IMO) (the “Agreement”).
Following lengthy negotiations, the Agreement was agreed and the essential details of it were publicly announced at the beginning of April 2019.
On Friday, 5 April 2019, the Agreement was publicly announced by the IMO. The details of it were extensively described in a Press Release that issued on that day.
The IMO Press Release of 5 April 2019 set out extensive detail about the Agreement, which included the following detail:
“The Irish Medical Organisation (IMO) has announced details of a negotiated agreement with Government which secures €210 million in increased funding for General Practice over the coming years. Dr. Padraig McGarry, Chair of the IMO GP Committee, said that the agreement will secure the reversal of the controversial FEMPI cuts which were imposed on General Practice at the height of the financial crisis and which have been a major source of anger amongst GPs. Government has resisted all demands to reverse these cuts until now – despite reversals happening in the wider public service.
Dr McGarry said “This is an important step towards investing in General Practice and valuing it as a vital part of the health service. It will do two things; restore the draconian cuts imposed on GPs and bring new and much needed funding to deliver new services to patients in the community”
The IMO will now organise a series of consultative meetings for members and a ballot of GP members on the deal.
Under the agreement GPs will receive their restoration of FEMPI in four stages. The first increase will become effective on 1st July 2019 with phased increases on 1st January 2020, 2021 and 2022.
Dr McGarry said “This is not an increase in pay for GPs this is a restoration of fees for services to patients. GP services suffered badly during the austerity years and were left behind as other sectors saw their FEMPI cuts restored. As part of the productivity arrangements for the restoration of fees GPs will cooperate with health service reform through involvement in the rollout of Community Healthcare Organisations which aspire to delivering targeted services to patients in the community. Additionally GPs will cooperate with e-health initiatives such as e-referrals and e-prescribing and an integrated patient summary record which should lead to greater efficiencies in general practice and support patient care. An important medicine safety initiative is also part of the Agreement whereby GPs will receive support and advice from HSE Pharmacists for patients over 75 who are on multiple medications. Dr McGarry said “These initiatives represent best practice in medicine and are progressive measures.”
The Agreement will also see a further €80m invested in General Practice to provide new services for Chronic Disease Management for GMS patients. This scheme will be in place from January 2020.
Dr. McGarry said that the agreement came after a year of negotiations in 2017 and a further recent six months intensive negotiations and a long running social media and lobbying campaign (#ReverseFempi).
Dr. McGarry also acknowledged that there are issues that remain to be negotiated – in particular the extension of Free GP Care for Children up to age of 12. Dr. McGarry said; “as health professionals we would prefer to see a different roadmap for the expansion of GP Care but we accept that this is Government policy and as part of this Agreement the IMO has committed to entering into a new strand of negotiations on the resourcing and contractual provisions to deliver this service. It is important to note that both the Chronic Disease Contract and the Under 12 Contract are opt in and this Agreement does not commit individual GPs to the provision of these services.”
Dr. McGarry said that a critical factor for GPs was that the necessity to reverse FEMPI cuts; “we faced a lot of pressure to just ignore the FEMPI issue and focus instead on negotiating a new contract. However, our members have suffered enormously through the FEMPI cuts and it was critically important to us that we kept the issue of FEMPI separate from the issue of a new contract.”
Dr. McGarry said that the agreement represented a significant success for General Practice. He said: “The FEMPI cuts have had a disastrous impact on General Practice across the country. Today we can finally say that we have agreed a mechanism to reverse those cuts and to restore much needed resources to General Practice. Our fight for even more investment and a new GP contract does not end today but we do mark a milestone. Now with this painful issue dealt with, we will move on to discuss further investment and a new contract to underpin General Practice for the next 30 years. We hope that this investment by Government is the beginning of recognising the value and potential of General Practice and that we can move on to address the issues not included in this Agreement including Women’s Health Programmes, Out of Hours Services and Services to patients in Nursing Homes.”
There are a number of elements to the agreement which the IMO has reached with the Government.”
The IMO Press Release included a table summarising the main features of the Agreement.
The Press Release is available at:
Similarly, on Saturday, 6 April 2019, the Agreement was publicly announced by the HSE:
In addition, the Agreement was publicly welcomed in a statement by the Taoiseach and the Minister for Health on Saturday, 6 April 2019:
Thus, the fact that an Agreement had been reached, and the nature of that Agreement was not something that was confidential or sensitive after 6 April 2019. On the contrary, this information was in the public domain.
The Taoiseach, in his capacity as Head of Government, was keen that the Agreement would be well received by the General Practitioner community. General Practitioners are not employees. They are self-employed contractors and they had the individual entitlement to accept or reject the new contract.
At this time, Dr. Maitiú Ó Tuathail was the President of the National Association of General Practitioners (NAGP), an alternative representative organisation of General Practitioners.
The then Taoiseach did provide a copy of the Agreement to Dr. Ó Tuathail on a date between 11th and 16th April 2019.
The Agreement was provided to Dr. Ó Tuathail, as President of the NAGP in circumstances where the Taoiseach believed that the deal was a positive one for General Practitioners that the Government wished to see implemented. He hoped to use Dr. Ó Tuathail’s influence to encourage all GPs to accept it including those represented by NAGP.
The Agreement had been negotiated with (and was therefore already in the possession of) the IMO, and the publication or circulation of the Agreement to the members of the IMO was within the discretion of the IMO, which had already issued a press release setting out its essential content.
The provision of the Agreement to Dr. Ó Tuathail requires to be seen in the context of the potential unfairness of one representative body for General Practitioners (the IMO) having access to the Agreement at a time when the other representative body (the NAGP) did not.
In this regard, the Government had publicly committed to keep the NAGP informed as to the progress of negotiations on the Agreement.
Therefore, the provision of a copy of the agreed and publicly announced Agreement by the Taoiseach to the President of the NAGP was honouring a political commitment previously made by the Government. It is important to emphasise that by that point, the Agreement had been agreed
and its content had been publicly announced previously.
By definition, given that it had been extensively negotiated between Government and the IMO, many people outside Government in the IMO were already well aware of its content, and the essential details of the Agreement had been described in press releases which were reported upon in the national media.
The provision of a copy the Agreement to Dr. Ó Tuathail, in his capacity as President of the NAGP occurred in circumstances where the legitimate objective of this action was to encourage acceptance of the Agreement amongst the General Practitioner community.
The entire purpose of the Taoiseach and the Minister for Health issuing a Press Release on 6 April 2019 was to advance precisely the same objective.
The Tánaiste accepts that the provision of the Agreement by an informal communication channel to the President of the NAGP was not best practice and he regrets that he did not ensure that it was provided in a more appropriately formal manner.
There was however, nothing in any way unlawful about the provision of the Agreement to the President of the NAGP.
In circumstances where extraordinarily inaccurate claims have been made by Village Magazine, it is necessary to briefly summarise where they fall into significant legal error.
A: Village Magazine is manifestly wrong insofar as it claims that the Tánaiste breached the Official Secrets Acts, 1963 for the following reasons:
1. The ambit of that Act is limited to persons holding a “public office” which is a term defined by Section 2 of the Act. The definition of “public office” expressly excludes members of either House of the Oireachtas.
2. An Agreement that has been agreed by Government with an external body (the IMO) the detail of which has been extensively set out in press releases is not capable of falling within the definition of “secret or confidential” contained in Section 2 of the Act.
3. Leaving aside the fact that the Act does not even apply to any member of the Oireachtas, the prohibition contained in Section 4 only restricts communication of “official information” when the person communicating the information is not “duly authorised” to communicate it. It is impossible to understand how the Taoiseach, as Head of Government, could not be so “duly authorised”.
B: Village Magazine is completely mistaken in suggesting that the Tánaiste may have breached the Criminal Justice (Corruption Offences) Act 2018.
Section 7 of that Act provides:
“Corruption in relation to office, employment, position or business
- (1) An Irish official who, either directly or indirectly, by himself or herself or with another person, does an act in relation to his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person, shall be guilty of an offence.
(2) An Irish official who uses confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person shall be guilty of an offence.”
1.The actions of the Tánaiste were simply not “for the purpose of corruptly obtaining a gift, consideration or advantage for himself”;
2. On the contrary, the only motivation for the Taoiseach’s actions was to advance the prospects of an Agreement negotiated by the Government being well received by General Practitioners. Sending the Agreement to the President of a representative body of General Practitioners was designed to further the stated objectives of Government.
3. There is no evidence whatsoever that the Taoiseach received any “gift, consideration or advantage for himself” within the meaning of Section 7.
4. The language of the section is clearly intended to address a politician obtaining a bribe or equivalent benefit in return for a corrupt Government favour. Nothing remotely of that kind occurred here and it is preposterous to suggest that the section is even engaged.
C. Village Magazine is wholly wrong to suggest a breach of the Dáil members’ Code of Conduct 2002
1, The Dáil members Code of Conduct provides that “Members must not use official information which is not in the public domain, or information obtained in confidence in the course of their official duties, for personal gain or the personal gain of others”.
2. There is no credible suggestion that the provision of the Agreement by the Taoiseach to the President of the NAGP was for “personal gain”.
3. On the contrary, the motivation of the Taoiseach was clearly to advance Government policy, and it was to further the prospects of the Agreement being accepted by General Practitioners which was entirely in the public interest.
D. Village Magazine is entirely unjustified in suggesting a breach of the Office Holders’ Code of Conduct 2003
1. The Office Holders’ Code of Conduct requires Office Holders to “respect confidences entrusted to them in the course of their official duties”.
2. The Taoiseach did respect confidences, but this completely misses the point. By 6th April 2019, the substance of the Agreement had been extensively press released and was already in the public domain, and it was available to the IMO who had negotiated it.
3. The provision of it to the NAGP did not breach any confidence and was entirely consistent with a public commitment made in the Dáil to keep the NAGP abreast of the negotiations.
E. Village Magazine is completely wrong to suggest – without any basis – that the actions of the Taoiseach constituted a breach of data protection legislation
Self-evidently, the Agreement did not constitute personal data. On the contrary, it was, and is, an Agreement negotiated between the Government, the HSE and the IMO. There is no conceivable basis upon which it could be considered to be protected by data protection legislation.
31 October 2020