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Extracts of the Devine Review into Child Protection Procedures and Dr. McElwee

April 15th, 2008 · 4 Comments · Niall McElwee

Update – I’m reading the report and using this section to include extracts of interest to me and potentially of interest to readers – my own views and opinions on the report will be published in a subsequent post. Please note that the length of this post you will have to click on the Continue Reading button to read it in full.

What Niall McElwee was charged and convicted with by Dutch Authorities. (He is referred to as Dr. A throughout the report)

Page 9 of the report

Dr. A was served with a summons from the Dutch Authorities by An Garda Síochána on 9 September 2005. Dr. A was tried by the Dutch Courts and was convicted of the following offences .Judgement was delivered on 27 September 2005.

“ On or around 24 June 2004 in Amsterdam (forced (named person 1)) by performing the criminal act intended by the defendant through violence or (an) other act(s) of violence and/or other threats of violence, to perform and/or to endure one or more lewd act(s) and of standing with bared lower part of the body beside the bed of (named person 1) and/or bending down over (named person 1) with his penis in his hand and/or saying “suck me baby? and/or attempting to bring the head of (named person 1) to his crotch?.
“on or around 24 June 2004, forcing (named person 2), by performing the criminal act intended by the defendant, through violence or (an) other act(s) of violence and/or threats of violence or (an) other act(s) of violence, to perform and/or to endure one or more lewd act(s) and of lying down in bed with (named person 2) with the front of his trousers opened, and/or grabbing (named person 2) by the wrist(s) and/or hand(s) inorder to prevent her from leaving the bed and/or forcing her to endure that he, the defendant, was lying down against her with the front of his trousers opened.?

Dr. A was sentenced to a prison term of 3 months suspended for two years and fined €2,000.

Page 92

In an interview between Conall Devine and Niall McElwee

10.1.26 With regard to risk management, Dr. A said that he thought he had done the responsible thing in notifying a Senior Manager in the HSE. Mr. MHB 1 knew and had told his supervisor and the Guards knew. Dr. A said that he had been advised not to tell him employer, AIT and that had catastrophic consequences for him.

Page 94

10.1.39. Dr. A ended his interview by stating “Just to say on a professional level I am devastated. I am sorry it has a ripple effect on so many parties. I am a good educator and deeply regret the way everything has turned out.?

One of the areas of the report that is most contentious is the involvement of a particular member of Health Board Staff refered to as Mr. MHB1 – he arranged funding for much of McElwee’s research activity whilst in Athlone and was directly involved in monitoring the work which led to the research trip to Amsterdam

In an interview held between Conall Devine and Mrs McElwee which discussed the relationship between the McElwee’s and Mr MHB1 – she refers to the kindness offered to the couple by Mr. MHB1 and the frequent phonecalls that took place between them. She was asked about the impact of the assault and conviction on the research buisness undertaken by the couple

10.2.12. Ms. A formed the impression that there was no noticeable reduction of business opportunities between their consultancy and the HSE. She recalled being advised by Dr. A that Mr. MHB 1 had advised him that notwithstanding Mr. MHB 1 moving from his position in Tullamore to Dublin, that there were monies available and that they could work together on different projects. Specifically, this was to be in the area of population health and mental health/addictions and Dr. A was asked to present a workshop to HSE staff in Tallaght which did not happen due to a reorganisation of funding.

From the written evidence requested by the review

Page 160

11.8.4. A request was issued to Athlone IT to clarify itsunderstanding of the arrangement entered into by Mr. MHB 1 with Dr A in respect of the funding of a study relating to “A Youth Resilience? Project in 2005 apparently by way of agreement through Dr A’s private consultancy. This emerged in the course of an interview with Mr. MHB 1 on 9 November 2007. Athlone IT responded on 15th November 2007 as follows …..

“Further to our conversation last evening, I wish to inform you that on Dr. A being appointed to the SL1 position at the Institute the issue of outside consultancy work was addressed. The Human Resources Manager wrote to Dr. Mc E on 6th April 2004 with the Conditions of Service attached to the position. Included was the following:

“In order to ensure that a conflict of interest does not arise, the Director of the Centre will notify, as a matter of course, the Director of the Institute of such involvement in projects. The Director of the Centre may, from time to time, work back hours for approved external work completed in formal term time. Where such external work is undertaken during formal term time, the Director of the Centre is required to notify the relevant Head of School/Head of Department of this fact in advance?.

I can confirm that Dr. A did not inform me of any involvement by him with private work either with the Midland Health Board/HSE or other parties. I can also confirm that neither the Head of School nor the Head of Department were notified of any such consultancy work.?

Yours sincerely,
Professor AIT 1

Page 172

From the Findings of Fact made by the Review

12.4.10. It is a matter of fact that no formal notification was made to Mr. MHB 1 or any other Officer of the Health Board by Detective Sergeant GS 1 in respect of any Child Protection concerns relating to Dr. A. It is also a matter of fact that Detective Sergeant GS 1 did not formally or informally discuss the Amsterdam incident with any other Health Board personnel. It is also a matter of fact that no notification in accordance with the provisions of Children First was made by GS1 or any other member of An Garda Síochána to the Midland Health Board
concerning the allegations against Dr. A.

Page 173

12.4.16. On 9 September 2005, the day that Dr. A was served with a summons to appear in Court in Amsterdam, Dr. A’s mobile telephone records show that a call was made to Mr. MHB
1’s mobile telephone number at 11:49 with a recorded duration of 6 minutes 47 seconds. Both Dr. A and Mrs. A claim that Mr. MHB 1 was advised of the summons and the pending trial in
Amsterdam. Mr. MHB 1 denies this. It is further claimed by Dr. A that he advised Mr. MHB 1 by telephone on 6 October 2005 of his conviction by the Amsterdam Courts. Dr. A produced a
telephone record which indicated that a call had been made to Mr. MHB 1’s mobile telephone on that date at 12:11 and the duration of the call was 39 seconds. Mr. MHB 1 denies that he
was ever advised of the conviction of Dr. A until the matter became public knowledge in July 2007.

12.4.17. It is a matter of fact that other than the alleged notification to Mr. MHB 1 by Dr. A on 6 October 2005, Dr. A’s conviction was not notified to any other Officer of the HSE up to the media disclosures in July 2007.

Page 177

12.8.1. That Waterford Institute of Technology carried out an Internal Inquiry into concerns raised by a member of the academic staff about the teaching materials referred to in 12.2.2
above. That the Inquiry concluded with recommendations that the slides in question be returned to their original owner, an Accident and Emergency Consultant, and that the material
should not be used in the future. It is also a matter of fact that the Internal WIT Inquiry was carried out in the absence of knowledge of concerns expressed by the South Eastern Health

Child Protection Concerns – Findings of Fact

Page 177/178

12.9.1 The first recorded concerns which came to the attention of the Health Services pertaining to child protection issues touching on or concerning Dr. A, surfaced from discussions in
1997 between an 18 year old female, who had recently been the subject of a Care Order, and a Psychotherapist employed by the South Eastern Health Board. Those discussions centred on the
18 year old female’s report of being interviewed by a man whom she named as “Mr. A? on the prevalence and extent of prostitution in Waterford and further stated that Mr. A had bought her a pint of lager either prior to or during the interview.

This information was passed on to the Social Work Department who in turn made contact with the Dochas Hostel which provided hostel and supported accommodation for young persons aged 14-18. Dochas confirmed that the 18 year old female had provided information that she had been invited to meet her former foster parent in the Tower Hotel, Waterford, on15 March 1997. The 18 year old female was not told in advance of the purpose of the meeting and was not advised that Dr. A would be in attendance. The foster parent was, at the time, a
student of Dr. A’s.

12.9.2. Following the publication of Dr. A’s study “Prostitution in Waterford City? a meeting was held with the 18 year old female and Community Child Care and Social Worker staff on 29
January 1998 and a report of that meeting was issued to the Senior Social Worker. Arising from the contacts made, it was decided not to formally investigate the possible breaches of
confidentiality by the foster carer as…
a) the foster carer was no longer providing a service to Waterford Community Care
b) the young person concerned was over 18 and had engaged in an interview with Dr. A

The second recorded concerns which came to the attention of the then South Eastern Health Board pertaining to child protection issues touching on or concerning Dr. A, were
raised informally with officers of the SEHB in late 1998. These informal concerns related to the use of materials by Dr. A for teaching purposes within Waterford Institute of Technology. The
materials used included medical slides of injuries to children which are consistent with sexual abuse. The Regional Coordinator Child Care Services wrote to Dr. A on 21 December
1998 and expressed concerns about the reported use of materials and advised that these concerns had been discussed with the Regional Child Care Training Officer and the Director of
the Community Child Centre in Waterford Regional Hospital. Dr. A responded by stating that the materials had not been used in two years. On the basis of that response no further inquiries
were made by the South Eastern Health Board on this matter.

Pages 178 and 179

12.9.4. With regard to the actions taken by the South Eastern Health Board in respect of the above matters, the following can be established…

(i) That the appropriate Health Board Officers followed up the informal reports about concerns relating to a female 18 year old who was recently the subject of a care order, in a timely and appropriate manner. Notwithstanding that the young person was now technically an adult and therefore outside of the scope of Child Care Services, the relevant officers discharged their duty of care to a vulnerable young adult and arrived at a reasoned position as to the appropriate steps to be taken. At this remove there are no reasonable grounds for suggesting that the decision taken not to formally investigate this matter was inconsistent with duty of care obligations.

(ii) That the actions of the Regional Coordinator, Child Care Services in formally and directly communicating concerns to Dr. A relating to the reported use of inappropriate
teaching materials, was timely and appropriate. However, given the nature of the concerns, it would have been appropriate to consider forwarding those concerns directly to the Employer given that the original informal report had emanated from a student in WIT. It follows that, as WIT had a duty of care to that student and to the wider student body and that the South Eastern Health Board had a duty of care to the wider community it would have been appropriate to establish …

a) That the use of such materials had indeed ceased some two years previously as had been claimed by Dr. A

b) That WIT, possibly in consultation with the SEHB would provide appropriate counselling and support services to any students affected by the use of such materials.

Pages 180 – 183

With regard to the steps taken by the former Midland Health Board/HSE Midland Area

12.9.6. The facts as set out in 12.4.6 above clearly indicate that Officers of the Midland Health Board had sufficient information in respect of the incident which occurred in Amsterdam in June 2004 to trigger the appropriate child protection measures as set out in section 8 of Children First. Although such information was not formally notified to the Midland Health Board by An Garda Síochána as is required under the notification provisions of Children First, at least three Officers of the Health Board were aware that an incident with females had taken place, at least two Officers were aware that the incident was of a sexual nature involving one or more young persons under 18 and therefore within the ambit of Children First. It should also be noted that the only contemporaneous note that appears to have been recorded at the time, which was not available to the Health Board, was an internal Garda report provided by Sergeant GS1 on 4 August 2004 which refers to allegations of rape and sexual assault against students with an “average age of 17 years? and that he had “met with and spoken briefly to? Mr. MHB 1.

12.9.7. The fact that the June 2004 incident occurred in another jurisdiction did not release the Midland Health Board from any obligation to carry out an appropriate risk assessment around the alleged perpetrator. If there was any doubt in the minds of the Officers of the Midland Health Board on this, clarification could have been obtained from Child Care expertise within the Midland Health Board or through the Department of Health and Children.

12.9.8. The fact that the alleged perpetrator was Dr. A, who had been undertaking the study visit with the imprimatur of the Midland Health Board, arguably placed an additional duty of care on the Midland Health Board to ensure that it was aware of all relevant information and detail directly from the Dutch Authorities and to take appropriate steps to establish close liaison with other relevant agencies including An Garda Síochána and Athlone Institute of Technology. Discharge of the duty of care would also include making enquiries with other Health Service employers to establish their links with Dr. A and making enquiries with the Western Health Board, where Dr. A resided. It would be reasonable to assume that such enquiries would have revealed Dr. A’s recent attachment to the Aras Geal Young Person’s Residential Centre, managed by the Western Health Board. The facts as outlined in paragraph 12.4.6 above indicate that this did not occur. The only evidence of a risk assessment being considered was by Dr. MHB 2 who formed an initial view that a risk assessment might be appropriate and at the same time formed the view that as Dr. A had no access to children in his work position there seemed to be no risk in his employment.

It is a fact that Dr. A’s recent placement in a children’s residential centre in Galway was not known to Dr. MHB 2 at the time. It is also a fact that it does not appear to have been considered as to whether Dr. A would have among his student cohort young persons under 18 years of age who would come within the ambit of Children First


12.9.11. The apparent decision made by Mr. MHB 1 to curtail Dr. A’s involvement in the drugs study in the summer of 2004 is not recorded or minuted. In making such decision, if indeed such a decision was made, no contact was made with the other parties to the study , Athlone Institute of Technology, and the Regional Drugs Task Force.

12.9.12. There is no evidence that the decision to facilitate a planned study to Canada by Dr. A in October 2004 was authorised following consideration of the potential for further risk to young persons, or to the reputation of the Midland Health Board or the Regional Drugs Strategy Team. The decision to have Dr. A accompanied on the study visit by two female staff members of the Midland Health Board was not arrived at having regard to any evident risk assessment. If, as is claimed by Dr A, that this decision was arrived at on or about 31 August 2004, it suggests that such a decision was not influenced by an understanding that proceedings were not going ahead against Dr. A in respect of the June 2004 incident in Amsterdam. Accordingly, such a decision did not represent an appropriate discharge of the Midland Health Board’s duty of care.

12.9.13. Four Officers of the Midland Health Board were aware that there had been an incident involving Dr. A in Amsterdam in June 2004 in the course of a study visit and that there was a relationship between that study visit and the Midland Health Board. At the time of the launch of the study “Darkness on the Edge of Town? in January 2005, three serving Officers of the Board were aware of the incident with at least one Officer aware that an underage female was one of the complainants against Dr. A. Notwithstanding this, no consideration appears to have been given to the potential consequences that the disclosure of this information would have for the launch of the study by the then Minister of State for Addiction Services. Given the potential risk to the reputation of the Midland Health Board in respect of child protection and drug strategy initiatives, and the full or partial knowledge of the incident shared by four Officers of the Midland Health Board at various times, it is difficult to comprehend how this issue did not merit, at the very least, substantive discussion at Senior Management level within the Midland Health Board either at the time of the disclosures or prior to the launch of the study.


Page 200

14.6.1. The Review Inquiry Team recommends that the HSE would make the findings of this Report available to any agency providing services to young persons or vulnerable adults where consideration is being given to engage Dr. A in employment or in consultancy work.



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