An Roinn Slainte Department of Health 31 July, 2018 Mr Ken Fort ken@righttoknow.ie Our Reference Number: F01 20181249 Freedom of Information Act. 2014 FOI Ref. Number FOlf2018f249 Statement of Request Under the FOI Act 2014, I am seeking the following: - cepies of any reports, brie?ngs, memos, submissions or other such documents prepared for either the Minister or the Secretary General relating to the settlement made with hospital consultants over pay claims. - copies of any reports, brie?ngs, memos, submissions or other such documents prepared for either the Minister or the Secretary General relating to the use of private investigators for the purposes of checking consultant contract compliance. I would prefer to receive this information electronically, ideally in its original electronic format. Of?cer responsible for Paddy Barrett (01-63 54026) co-ordinating request Dear Mr Fox, I refer to the request which you have made under the Freedom of Information Act, 2014 for records that may be held by this Department pursuant to the above requests and to the acknowledgement letter of 3rd July 2018. Decision As decision maker, I have reviewed the records held in this Unit that come within the remit of your request having regard to the provisions of the Freedom of Information Act. Two records, both emails with attachments have been identi?ed as relevant to the ?rst part of your request having been submitted to the Minister and Secretary General. These are being released with deletions as set out in the schedule. The deletions to Record 1 encompass the email forwarding the dra? agreement to department of?cials and details of the consultants concerned. The email is outside of the scope of your request. The deletions made to Record 2 also cover details of the consultants concerned. These deletions cover personal information and are exempt under Section 37(1) of the FOI Act. Blot: 1. Plaza Mtseach. so - as said chase a fuchtarach. Belle Atha Ellath 2, no: Block 1, Miesian Plaza, 50 - 58 Lower Baggot Street. Dublin 2. D02 +353 1 635 4000 info@health.gov.ie ww.health.gov.ie With regard to the second part of your request one record has been identi?ed as relevant. Record No. 3 and this is being released in I wish to advise that the decision to use private investigators was taken by the HSE. There was no need to notify the Secretary General or Minister of this approach as it was consistent with the Government decision to defend the cases. As addressed in Record 3, a submission was made to the Secretary General in relation to instructing the HSE to continue to use surveillance when that question arose. This investigative work was required to gather evidence to support the HSE's counter?claims in relation to non-compliance by consultants. It is noted that the use of surveillance was limited to a small number of the lead cases. Fees Section 27 of the Act refers to the charging of fees for search and retrieval in the course of making a decision and copying of records. No fees apply in this case. Rights of Review The Act requires that you be advised of your Rights of Review, and in that regard, I refer you to the enclosed information sheet. Yours sincerely Paddy Barrett Assistant Principal National HR 1. copies of any reports, brie?ng F01 request - 01i2018l249 Mr Ken For settlement made with hospital consultants over pay claims. 2. copies ofany reports, brie?ngs, memos, submissions 0 use of private investigators for the purposes of che s, memos, submissions or other such other such documents prepared for either the cking consultant contract compliance. It ocuments prepared for either the Minister or the Secretary General relating to the mister or the Secretary General relating to the Record No Date of Document Document Type From To Decision Basis of Refusal 14/6/2018 Emails with Penultimate Final Draft of Settlement Agreement attached Murray to Minister?s Advisors, Secretary General and National HR Release with deletions Email from HSE forwarding draft agreement outside of scope of request. Details of claimants deleted Section 37(1). 15/621118 Email with attachments, Cover Note, (ii) Note seeking Minister?s approval, Final Draft of Settlement Agreement Murray to hiinister?s Private Secretary and ridvisors and Secretary General Release with deletions Details of claimants deleted Section 37(1). 19/4/2018 Cover Note and draft letter concerning use of Private Barrett/T Cod}I to Secretary General Release N/r?t Investigators Mam/i, {In Archive} Fw: RE: Text of draft Settlement Agreement at 2240 14th June 2013 Sorcha Murray to: KathyAnn Barrett 14rosrzo1s 23:01 James Breslin. Teresa Cody, Paddy Barrett. Lindsey 'Maidment Archive: This message is being viewed in an archive. Text of agreement reached tonight? copy attached. NOT formally approved by respective ministers so no formal announcement this evening to be made. I am due down to high court tomorrow am to sign the agreement on behalf of the Minister. Will come in early to get brie?ng and draft press release sent on. I have a draft but it needs more work. Thanks Sorcha Sent from Notes Traveler? THE HIGH COURT Record No BETWEEN PLAINTIFF AND THE HEALTH SERVICE EXECUTIVE THE MINISTER FOR HEALTH THE MINISTER FOR FINANCE AND CORK UNIVERSITY HOSPITAL DEFENDANTS Draft 1' TERMS OF SETTLEMENT WHEREAS (C) In excess of 700 hospital Consultants have commenced proceedings against their employers and other parties alleging a failure to pay remuneration andfor pension in accordance with the terms of their contract of employment, the Consultants? Contract 2008. A signi?cant number of Consultants are members of the Irish HOSpitai Consultants Association or the lrish Medical Organisation (?the Professional Organisations?). The High Court directed that the ID cases set out at Appendix One hereto should act as lead cases in respect of such litigation. The parties in the lead cases have agreed upon Terms of Settlement. The arrangements set out in the said Terms of Settlement are to be made available to the other litigating Consultants who fall within the Terms of Settlement, for acceptance or rejection by them. In view of the commitments made by the Irish Hospital Consultants? Association in these Terms of Settlement, it is appropriate that it should be a party to these Terms of Settlement. The arrangements set out in the said Terms of Settlement are to be made available to other non-litigating Consultants who fall within the Terms of Settlement, for acceptance or rejection by them. The parties have agreed to settle and compromise the proceedings referred to in the recitals hereto on the following terms: apply. For the purposes of these Terms of Settlement the following de?nitions shall ?corrected pension entitlements? means payment in full of all elements of an eligible Consultants? pension entitlements calculated on the basis of and having regard to the provisions of version I of the Consultants? Contract 2008, having regard to applicable deductions under law including the FEMPI legislation ?corrected remuneration? means payment in full of all elements of a Consultant?s remuneration as provided and Specified in version 1 of the Consultants? Contract 2008, having regard to applicable deductions under law including the FEMPI legislation ?date of settlement? means the 15th ofJune 2018. ?eligible Consultant? means a Consultant?who is or was employed under the Consultants? Contract 2008 and who ?rst signed any version of such a contract in the Period or who first signed such a contract a?er the Period but had been successfully interviewed for the relevant post in the Period . The term includes: Consultants who continue to work in the Public health service, whether under the Consultants? Contract 2003, or otherwise; (ii) Consultants who retired from the Public health service subsequent to signing the Consultants? Contract 2003; Consultants who left (ceased service in) the Public health service subsequent to signing their Consultants? Contract 2003 (whether or not they are now retired) save that such Consultants shall not be entitled to the terms of the Consultant Contract 2008 in resPect of any new term of employment alter the period. For the avoidance of doubt Consultants who take a career break have not ceased service by reason thereof. (iv) Consultants who signed any version of the Consultants? Contract 2008 after the Period but prior to the settlement date, and have not broken service, having previously held either a 1991 or a 199? Common Contract (or held a permanent Consultant post in the public service of another EU Member State) immediately prior to signing the Consultants? Contract 2003. Consultants who on 30?h September 2012 were employed on a fixed term or speci?ed purpose Consultants? Contract 2008 for a continuous period of at least 6 months immediately prior to that date and who subsequently without a break in service executed a permanent version of the Consultants? Contract 2008 as referenced at Appendix 2 prior to the date of settlement. All other Consultants who signed fixed or specified purpose contracts are excluded. ?Later Entrant? means an eligible Consultant who first signed the Consultants? Contract 2008 on or after 15? January 2011 and who was subject to the 10% reduction applicable to all new entrant public servants from that date. ?lead Consultant? means a Consultant who is an eligible Consultant and is a plaintiff in one of the lead cases. ?litigating Consultant? means an eligible Consultant who has commenced proceedings prior to the 14th June 2018 alleging a failure to pay the appropriate rate of remuneration or rate of pension in accordance with the terms of the Consultants? Contract 2003 and who is not a lead Consultant. ?non-litigating Consultant? means an eligible Consultant who has not commenced proceedings prior to the 15?11 June 2013 alleging a failure to pay the appropriate rate of remuneration or rate of pension in accordance with the terms of the Consultants? Contract 2003. ?pension entitlements? means all elements of pension payable under any applicable pension scheme including, but not limited to, a pension lump sum (ii) retirement bene?t spousal or dependants benefit (iv) death in service or death in retirement payments. r"period? means the period of time between the 25Th July 2008 and the 30?1 September 2012 (inclusive) . ?Public Health Service? meaning those public service bodies falling within the ambit of the Financial Emergency Measures in the Public interest Acts. ?remuneration" means any and all sums payable to Consultants pursuant to version I of the Consultants? Contracts 2008 including, but not limited to, Annual salary as set out and de?ned in paragraph 23 of the said contract. (ii) andfor Factor payments On-call, structured weekend or other arrangements to which separate payments attaches pursuant to any of the terms of the said contract (iv) Clinical Directors Allowance Payments during periods of approved paid leave. (vi) Rest days for which payment was made to a Consultant during the period ofretrospection (in lieu of the provision of rest days), save that Later Entrants shall remain subject to the 10% reduction of salary and allowances applicable to all new entrant public servants from that date while they remain on a point on the scale to which the said reduction applies and ?remuneration? shall be construed accordingly. ?retrospective payment of remuneration? means 55% of the difference between the remuneration actually paid to a Consultant during the period of retrospection and the remuneration which he or she would have been paid if the provisions of paragraph 23 of version I of the Consultants? Contracts 2008 had been properly and fully applied to him or her, including payment of all increases of whatever nature provided for therein. Retrospective payment shall have regard to applicable deductions under law including EMPI legislation and the deductions applicable to Later Entrants. The calculation of the difference shall exclude the elements of remuneration set out at numbers (ii) and Structured Overtime at the rate of time and a half after July 2013 which shall from that date he paid at time and a quarter in the de?nition of remuneration above. ?retroSpective payment of pension entitlements? means 55% of the difference between the pension entitlements actually paid to a Consultant during the period of retrospection and the pension entitlements which he or she would have been paid during such period if such entitlements had been calculated having regard to the level of remuneration to which he or she was entitled pursuant to the provisions of paragraph 23 of version 1 of the Consultants? Contracts 2008, including any increases of whatever nature provided for therein. Retrospective payment shall have regard to applicable deductions under law including FEMPI legislation and the deductions applicable to Later Entrants. The calculation of the difference shall exclude the elements of remuneration set out at numbers (ii) and Structured Overtime at the rate of time and a half after 1St July 2013 which shall from that date he paid at time and a quarter in the definition of remuneration above. ?period of retrospection? means the period during which an eligible Consultant is entitled to receive retrospective payment of remuneration or retrospective payment of pension entitlements pursuant to paragraph 3 hereof. ?Version 1 of the Consultants? Contract 2008? means the Consultants? Contract 2008 containing the version of paragraph 23 contained in Appendix 2 hereto. Ln An eligible Consultant who has accepted the offer within the Speci?ed timeframe shall be entitled to full correction of remuneration or full correction of pension entitlements as the case may be effective from the Date of Settlement but payable from January 2019.. Payment of corrected remuneration for the period from the Date of Settlement up to the date .of commencement of payment of corrected remuneration shall be made no later than the March 2019. An eligible Consultant who has accepted the offer within the speci?ed timeframe shall be entitled to retrospective payment of remuneration in respect of the period of employment and/or retrospective payment of associated pension entitlements as follows Lead Consultants and litigating Consultants: for a period commencing up to six years prior to the date of issue of proceedings and ending on the Date of Settlement (ii) Non-litigating Consultants: for a period of up to six years prior to the Date of Settlement and ending on the Date of Settlement. All sums due by way of retroSpective payment of remuneration and/or retrospective payment of pension entitlements shall be paid to the eligible Consultant who has accepted the offer within the speci?ed timeframe on or before the following dates and in the following amounts: 40% on or before June 2019; and (ii) 60% on or before 1st March 2020. and such sums shall be paid net of all taxes or any other deductions required by law. It is noted that for the purposes of the Public Service Pay and Pensions Act 201'? the ?basic pay? of eligible Consultants immediately prior to the enactment of the Financial Emergency Measures in the Public Interest (No 2) Act 2009 was and is the full corrected remuneration applicable under the provisions of the 2008 Consultants Contract. Nothing in this Settlement shall remove or prejudice the right of eligible Consultants to receive restorations of pay pursuant to the provisions of the 201 Act or the Financial Emergency Measures in the Public Interest Act 2015 or otherwise. For the purposes of calculating the pension entitlements of eligible Consultants - who retire from the public health service within three years of the Date of Settlement, their remuneration shall be treated as, and deemed to be, the corrected remuneration payable pursuant to the provisions of the Consultants? Contract 2008, in accordance with applicable pension rules. Each lead case shall be settled and compromised on the terms set out herein and an Order made therein in the terms of the draft Order set out at Appendix 4. A litigating Consultant who has served or serves proceedings shall be offered the opportunity to compromise his or her proceedings on the basis of the terms set out in this Settlement providing such proceedings are served within 14 days of the date of settlement. Such offer shall be made in writing by a solicitor for any of the Defendants to the Solicitor for the Consultant on or before 26th October 2018. The Consultant shall have a period of six weeks to accept or reject the offer. In exceptional cases an application to extend such period can be made to the National Director of Human Resources, Health Service Executive whose consent shall not be unreasonably withheld. If the National Director refuses to grant such extension, the Consultant can apply to Court to extend the time for acceptance. Acceptance of the offer shall be by way of the execution of a Letter of Consent and Release in the terms set out at Appendix 4 hereof. Upon acceptance of the offer, an Order shall be made as soon as practicable thereafter striking out the 10. proceedings and providing that the reasonable costs of the proceedings up to the date of acceptance shall be paid by the Minister for Health andlor Minister For Finance andx'or Minister for Public Expenditure and Reform, as appropriate having regard to the named ministerial defendants, to be taxed in default of agreement. A Consultant who fails or refuses to accept the offer shall be free to proceed with his or her litigation. In circumstances where the Consultant and his or her employer cannot agree the amount due to the Consultant under the Terms of Settlement, he or she shall be bound by and entitled to rely upon the Terms of Settlement including in any process or proceedings. Nothing in this paragraph shall remove the entitlement of a Consultant to maintain a claim which is permitted by the provisions of paragraph 14. The Defendants will contact such existing Consultant employees as they believe are non-litigating Consultants to circulate the terms of settlement within eight . weeks of the date of settlement. A non-litigating Consultant shall apply in a prescribed form to be offered the opportunity to receive the bene?ts of" these terms of settlement. Such applications will be made by the 14?? of September 2013. Offers shall be made in writing by on or on behalf of the Health Service Executive on or before 26th October 2013. The Consultants shall have a period of four weeks to accept the terms of the said offer. In exceptional cases an application to extend such period can be made to the National Director of Human Resources, Health Service Executive whose consent shall not be unreasonably withheld. Acceptance of the offer shall be by way of the execution of a Letter of Consent and Release in the terms set out at Appendix 5. In circumstances where the Consultant and his or her employer cannot agree the amount due to the Consultant under the Terms of Settlement, he or she shall be bound by and entitled to rely upon the Terms of Settlement including in any process or proceedings. In the case of an eligible Consultant who has died prior to the date of the execution of these Terms of Settlement, but would have been entitled to payments ll. 12. 13. 14. 15. in accordance with the provisions thereof", such payments subject to application by hisfher Executors/ Personal Representativesr'surviving spouse, dependent or next of kin in accordance with the terms set out above shall accrue to the bene?t of his or her Estate and any necessary Letter of Consent and Release may be executed by hisfher Executorsfpersonal Representatives. The relevant signatory Ministers sanction these Terms and the implementation of these Terms of Settlement. The making of payments due thereunder is not subject to any further Ministerial approval andi?or sanction. For the avoidance of doubt, the making of payments to which Consultants are entitled under these Terms of Settlement is not subject to any condition or requirement other than the provision of an appropriate Letter of Consent and Release as may be required in accordance with the terms of paragraphs 8, 9 and ID hereof. Having regard to, and in consideration of, the provisions of these Terms of Settlement, the professional organisations shall furnish a letter of con?rmation to the Minister for Health in the terms set out in Appendix 6 hereto. The parties acknowledge and agree that acceptance of these Terms of Settlement by an eligible Consultant shall not remove or prejudice the right of such a Consultant to maintain a claim in respect of a matter other than an alleged failure to pay or provide full remuneration or full pension entitlements in accordance with provisions of the Consultants? Contract 2008 as claimed in the ?lead cases?, for example a claim in relation to rest days, holiday entitlements, sick pay, structured weekend pay and claims in respect of Clinical Directors? allowance. Without prejudice to the generality of paragraph 14, the within terms of settlement are in full and final settlement of all or any claims that the lead Consultants or any litigating or non?litigating Consultant who accepts an offer to 1'3 16. receive the bene?ts of the terms thereof, may have in resPect of an alleged failure to pay or provide full remuneration or full pension entitlements in accordance with provisions of the Consultants? Contract 2008 including but not limited to any claim pursuant to the Payment of Wages Act 199] as amended. The parties hereto acknowledge the following: The IMO, the IHCA, Consultants, the Department of Health, the HSE and health employers are committed to the provision of a public health service of the highest quality and recognize that Consultants? Contract 2008 is fundamental to such provision. All eligible Consultants who settle their claims under this agreement af?rm the terms of the Consultants? Contract 2008. The parties accept the importance of compliance by all parties with the terms of the Consultants? Contract 2008 with a view to ensuring the more timely delivery of effective care to patients. These include, in particular, terms relating to the scepe and extent of private practice on site and off-site, the ratio of public to private practice, working hours, different work patterns, work scheduling, and arrangements for monitoring and audit of same. The parties recognise the need for mutual trust, con?dence and respect in giving effect to the terms of the Consultants? Contract 2008. The parties reaf?rm the mutual obligations set out at Section 4 b) and the regulation of private practice provisions set out at Section 20 of the Consultants? Contract 2008 and af?rm that they shall co-operate in giving effect to such arrangements as are put into place to verify the delivery of the Consultant?s contractual commitments. Dated this day of 2018. Signed: Signed: On behalf of the Minister for Finance Signed: On behalf of the Minister for Public Expenditure and Reform Signed: On behalf of the Minister for Health Signed: On behalf of the Health Service Executive Signed: On behalf of the [Appropriate Professional Organisation] List of Lead APPENDIX 1 APPENDIX 2 Paragraph 23 of 2008 Consultants Contract as per Consultant Contract 2008 at 25th July 2008: 23) Salary and other payments The Consultant?s annual salary shall be as follows {in June 200')r terms) and shall be implemented on a phased basis as set out at d) below: i) for Type A Contracts a salary scale in four points as follows will apply: ?222.000. {223.000. ?234.000. ?240.000: ii) for Type Contracts a salary scale in four points as follows will apply: ?205.000. 6210.000. 6315.000. ?220,000: for Type 3* Contracts a salary rate of?190.000 will apply. iv} for Type Contracts a salary scale in four points as follows will apply. 431150.000. 65.000. ?170,000. ?175,000. b) The annual salary for Consultant Academics shall be as follows: i) For a Professor (Type A Contract) a salary scale in four points as follows will apply: ?272,860. 6280.240. (9287.620. ?295.000. ii) For a Professor (Type Contract) a salary scale in four points as follows will apply. ?616.50. ?272. l00. ?278.550. ?285.000 For a Professor {Type 3* Contract) a salary of ?255,000 will apply. is) For a Professor {Type Contract} a salary scale in four points as follows will apply: ?22 ?3.450. ?226.300. ?233,150. ?240.000 c) All serving Consultants who take Up the offer of the Consultant Contract 2003 by 31st August 2008 will be assimilated to the maximum point of the applicable new salary scale. d) The salary scales at a) and b) above will be phased on the following basis: it a 5% increase on the Consultant's existing (June 2007) rate from the 14'? of September 2007: ii) half the balance'6 from I"l June 2003: the remaining balance from June 2009. These rates will attract a 2.5% Towards 2016 general round increase from the of March 2008 and a further 2.5% Towards 2016 general round increase . from l?I September 2003. e) An allowance of ?50000 per annum will be paid to those Consultants appointed as Clinical Directors. 0 Saturday. Sunday and Public Holidays: Structured on-site attendance at weekends and on public holidays will be subject to the following premium payments: i) Time V: on Saturdays ii} Double time on Sundays and Public Holidays g) Continuing Medical Education The CME allowance will be increased to (93.000 with effect from the 1"1 June 2008. Payment will continue to be on a vouched basis. to be adjusted in line with the Consumer Price Index (C.P.I.). This allowance may be carried over annually for a maximum of five years. b) Telecommunications The Consultant shall be reimbursed either the cost of home or mobile phone rental. it Factor {On-Call) Payments An increase in the flat annual payment to (36.000 will take effect from the l?l June 2008. The payments for more onerous rosters will increase by 5% from the same date. j} Factor {Call-Out) Payments The Consultant will be eligible for payment on a mr call-out basis for the provision of on-site services when: i} restored for on-call duty and is contacted by another medical practitioner in the hospital. by a senior nurse or other member of staff specifically The term half the halance' refers to the difference between the 14:31 September 2007 rate and the fully implemented salary scale. designated for that purpose and attends on-site to provide emergency services: ii} rostered for on-eall dut)r and who. in the exercise of hisfher professional judgment. attends on?site and performs clinical work of an urgent nature or carries out urgent diagnostic or therapeutic procedures: requested another Consultant to provide on-site services in public hospital I agency to which the Consultant does not have a scheduled commitment and where such services cannot be provided within the Consultant?s scheduled commitment as adjusted by the Clinical Director! Employer. This payment shall be on the basis of the equivalent payment per call-out. Revised structures and rates for Factor payments front the June 2008 are as follows: Firsr 34?) 31-120 Call-Outs CalLOuts Call-Outs or More Per Call-Out (Hourly rate or pan thereof]: C100 ?150 000 If Call-Out Occurs . A f? M?dmi-?h? I 25 ?137.50 e250 (hourly rate or pan thereof I: Annual limit ?30,000 With the exception of the payments referred to at sub-paragraphs g) and h) above the foregoing rates will be increased in line with general round increases under National Pa)r Agreements. APPENDIX 3 Dra? Order in Lead cases ?The Court having received the Terms of Settlement made between the parties herein dated the day of June 2018 which is set out in the Schedule to this Order the Court dismisses the claims and counterclaims save for the granting of orders in the following A Declaration that the Plaintiff shall be entitled to be paid corrected remuneration as provided for in the Terms of Settlement set out in the Schedule to this Order A Declaration that the Plaintiff shall be entitled to retroSpective payment of remuneration as provided for in the Terms of Settlement set out in the Schedule to this Order. The Plaintiff shall be entitled to an Order for Costs as against the Defendants, such costs to include all reserved costs, costs of motions issued andfor court hearings not covered by speci?c costs orders, including costs of discovery (including making discovery), costs of counterclaims, outlay (including refresher fees of counsel, the trial having commenced on 5* June 2018) for the period of negotiation of this settlement from June 6th to 15th June 2018), to be taxed in default of agreement. The proceedings shall be struck out with liberty to the parties to apply in relation to any issues arising in relation to the implementation of this Order and the Terms of Settlement.? APPENDIX 4 DRAFT Letter of Consent and Release to be signed by litigating Consultants ?To The HSE Re: Litigation concerning the level of remuneration and pension bene?ts payable to Consultants pursuant to the 2008 Consultants Contract. Dear Sir, I refer to your Letter of Offer of the day of 20 in regard to the above. I con?rm that I am willing to settle and compromise my proceedings on the basis of the Terms of Settlement arrived at in the lead cases in relation to Consultants? entitlements under the Consultants? Contract 2003. I note and accept that I am bound by clause 16 of the Terms of Settlement to the extent that that clause applies to individual Consultants. Finally, I con?rm that I have taken such legal advice as I consider appropriate prior to signing this Letter of Consent and Release. Yours faithfully Consultant: Witness: Solicitor: 18 APPENDIX 5 DRAFT Letter of Consent and Release to be signed by non-litigating Consultants ?To The HSE Re: Litigation concerning the level of remuneration and pension bene?ts payable to Consultants pursuant to the 2008 Consultants Contract. Dear Sir, I refer to your Letter of Offer of the clay of 20 in regard to the above. I con?rm that I am willing to accept the offer to apply the provisions of the Terms of Settlement to me. Further I con?rm that I am agreeable to be bound by the provisions of the said Terms of Settlement insofar as same relate to my appropriate remuneration and my appropriate pension entitlements based upon the Consultants? Contract 2008. I note and accept that I am bound by clause 16 of the Terms of Settlement to the extent that that clause applies to individual Consultants. Finally, I con?rm that I have taken such legal advice as I consider appropriate prior to signing this Letter of Consent and Release. Yours faithfully Consultant: APPENDIX 6 Draft Letter of Con?rmation to the Minister for Health ?Re: Litigation in relation to remuneration and pension entitlements of Hospital Consultants under the 2008 Consultants Contract Dear Sir, I refer to the above matter and to the Terms of Settlement which were arrived at in the lead cases in relation to Consultants? remuneration and pension entitlements under the 2008 Consultants Contract. I con?rm, that in consideration of and having regard to, the said Terms of Settlement, the (name of professional organisation) will recommend, and use its best endeavours to ensure, that its members settle and compromise any outstanding proceedings seeking arrears of remuneration and for pension entitlements on the basis of the said Terms of Settlement. recommend, and use its best endeavours, to ensure, that its members who have not commenced proceedings, accept an offer to apply the said Terms of Settlement to them. not take any measures to support any outstanding litigation or any new litigation, seeking arrears of remuneration or pension entitlements pursuant to the 2008 Consultants Contract, to the extent that same are included by way of claim in the ?lead cases?, save as may be necessary and required to ensure implementation of the terms of the said Settlement. Finally, the (professional organization) con?rms that it is committed to the provision of a public health service of the highest quality and recognizes that it is 20 bound by clause 16 of the Terms of Settlement to the extent that that clause applies to [insert organisation] Yours faithfully, For and on behalf of the (Professional Organisation)? 2] MM {In Archive} URGENT FORMAL APPROVAL TO SIGN OFF SETTLEMENT . AGREEMENT Sorcha Murray to: Paula Smeaton 151052013 09:00 James Breslin. Teresa Cody. Paddy Barrett, Lindsey Maidment. Joanne Lonergan. KathyAnn Barrett Archive: This message is being viewed in an archive. Paula Grateful if you could bring this to the Minister's attention as soon as possible he is expecting this request anyway since last night. I would need this formal approval in the next hour - i am due back down in the high court for 9.30 and Court is back in session at 11. Copy of agreement and brie?ng note also attached. Thanks Settlement Agreement Note seeking formal approval 15 05 13.docx Brie?ng Note Consultant Contract 2008 Settlement Agreement 15 06 18.docx Terms of Settlement 2320 14th June 18.docx S_orcha Murray Principal Of?cer National HR Unit E1 Roinn Slainte Department of Health Teach Hawkins. Sraid Hawkins, Baile Atha Cliath 2, 002 vwso Hawkins House. Hawkins Street, Dublin 2, D02 VWEJU ?+353 (0)87 776 3922 +353 (0)1 635 4730 health.gov.ie 1. Hunai Aire Re uest for Formal A roval of Settlement A reement in relation to Consultant Liti ation The approval of the Minister is sought fer the attached Settlement Agreement, reached last night [14 June 2018} between the Department of Health, Department of Public Expenditure and Reform, the Department of Finance and the HSE and the IMO and the IHCA in relation to consultant litigation for pay increases provided for in the Consultant Contract 2008. The agreement will need to be signed by the relevant parties this morning (15 June 2018}, prior to the High Court reconvening at 11am I would be grateful therefore, if the Minister could convev formal approval for me to sign on his behalf as the Minister for Health was a named Defendant in these proceedings. I also attach a short brie?ng note, outlining the main provisions of the settlement agreement, for his information. Submitted for approval please Sorcha Murray Principal Of?cer National HR 15 June 2018 Briefing Note - Consultant Litigation Settlement Agreement A settlement agreement has been reached between the IMO and the IHCA following an adjournment of the High Court case on the 5th June 2018 The agreement provides for payment of the increases specified in Consultant Contract 2008 in particular an increase due on 1th June 2009 that was not paid due to the economic downturn. Those eligible are consultants who signed contracts prior to 15t October 2012. It does not include new entrants who signed after that date. Arrears calculated as discounted rate of 55% of ?basic pay" will be payable for all eligible consultants. Those who submitted claims [litigating consultants and the 10 Lead Cases) will qualify for arrears going back six years from the submission of date of claim. Those who have not yet claimed [non-litigating consultants) will qualify for six years retrospection. All eligible consultants will qualify for the higher rates of pay from the date of settlement, however payment arising will be deferred until 2019. In effect, eligible consultants will be ?earning' at the higher rate from today {151une 2018} but won?t see payment until January 2019. COSTS Indicative costs arising are as follows: - Arrears: ?182 million due to be paid in two payments 1. 40% payable on liilune 2019 and 2. 50% payable on 1it March 2020. Ongoing costs of ?52 million per year payable from 1?t January 2019 Payment of increase for June 2018 to December 2018 to be made in 2019 - ?31 million Legal costs to be met by the State - ?15 million approx. Costs 2018 Costs Payable 2019 Costs Payable 2020 Arrears ?73 million ?109 million Annual Ongoing costs ?52 million ?52 million from Payment of Increase - ?31 million June to Dec 2018 J.e_gal Costs ?15 million Total ?181 million ?171 million How the eligible Consultant benefits: Depending on type of contract held, the annual bene?t to a consultant would typically be between ?20 - 25K per annum. As set out above, most consultants will benefit from 5 years retrospection, some more depending on when they lodged their claims. Consultants who did not take a case and who are eligible will benefit from this agreement, without having been required to undertake any legal proceedings. Provisions in the agreement around Compliance Under the Settlement AgreEment, all parties acknowledge that they are committed to providing a high quality public health service and recognize that the Consultant Contract 2008 is fundamental to that provision. Eligible consultants who settle under this agreement affirm the terms of the Consultants Contract 2008. These include, in particular, terms relating to the scope and extent of private practice on-site and off-site, the ratio of public to private practice, working hours, different work patterns, work scheduling, and arrangements for monitoring and audit of same. [Of note, Senior Counsel pointed out to management during the negotiations that there are provisions in the existing contract around compliance that would be suf?cient to ensure monitoring of compliance. However, these need to be enforced more robustly. The agreement provides that by accepting the settlement, consultants affirm that they shall co- operate in giving effect to such arrangements as are put into place to verify the delivery of the Consultant?s contractual commitments. These are positive commitments that the HSE and the Department can use to strengthen monitoring of compliance and sends a strong signal that there is renewed commitment by all sides to ensuring adherence to publicfprivate ratios as set out in the contract. NEXT STEPS FOR IMO and IHCA: The IMO and IHCA have committed to Supporting the settlement and recommending acceptance to the relevant members. The IMO will need to ballot their members. The typically would not ballot members but rather, leave it to each individual consultant to decide for themselves. It is open for Consultants to accept or reject this settlement. For those that reject the settlement, the IMO and the IHCA have committed within the agreemEnt not to take any measures to support any outstanding litigation or any new litigation pur5uant to those covered by the Settlement Agreement. However, any such consultants would have to progress their case and cover all litigation costs and would take some time before it would be heard in the High Court. They and can still support claims taken by new entrants who are not covered by this Settlement Agreement. In the past 24 hours there has been a signi?cant number of claims lodged (circa 165) which is an indication that these consultants are keen to be included in this settlement agreement. NEXT STEPS FOR DEPARTMENT There will have to be engagement between this Department and DEER around funding of this agreement. it is envisaged at this stage that the funding required must come from the Exchequer. This will have to be agreed in the context of the Estimates process for the next two years [2019 and 2020) and the ongoing cost going forward. There will need to be discussions around how this agreement is to be implemented 'on the ground? by the HSE. In particular, steps such as the identi?cation of eligible consultants, the making of an offer, the acceptance of same and the making of payments. It is likely there will be queries to be answered, disputes around matters such as eligibility of an individual, the amount that they are deemed to be paid, etc. Processes and structures will need to be put in place to manage all of this. Given that the HSE is the employer of most of these consultants, it is envisaged that the processing of these claims will be carried out by the HSE. However, at present, the resources are not in place to deliver on this in the Executive. National HR 15 June 2016 THE HIGH COURT Racord No 2015 BETWEEN PLAINTIFF AND THE HEALTH SERVICE EXECUTIVE THE MINISTER FOR HEALTH THE MINISTER FOR FINANCE AND CORK UNIVERSITY HOSPITAL DEFENDANTS Draft I TERMS OF SETTLEMENT WHEREAS (6) (0 In excess of 700 hospital Consultants have commenced proceedings against their employers and other parties alleging a failure to pay remuneration and/or pension in accordance with the terms of their contract of employment, the Consultants? Contract 2008. A signi?cant number of Consultants are members of the Irish I-loSpital Consultants Association or the Irish Medical Organisation (?the Professional Organisations?). The High Court directed that the 10 cases set out at Appendix One hereto should act as lead cases in respect of such litigation. The parties in the lead cases have agreed upon Terms of Settlement. The arrangements set out in the said Terms of Settlement are to be made available to the other litigating Consultants who fall within the Terms of Settlement, for acceptance or rejection by them. In View of the commitments made by the Irish Hospital Consultants? Association in these Terms of Settlement, it is appropriate that it should be a party to these Terms of Settlement. The arrangements set out in the said Terms of Settlement are to be made available to other non?litigating Consultants who fall within the Terms of Settlement, for . acceptance or rejection by them. The parties have agreed to settle and compromise the proceedings referred to in the recitals hereto on the following terms: apply. For the purposes of these Terms of Settlement the following de?nitions shall ?corrected pension entitlements? means payment in full of all elements of an eligible Consultants? pension entitlements calculated on the basis of and having regard to the provisions of version I of the Consultants? Contract 2008, having regard to applicable deductions under law including the FEMPI legislation ?corrected remuneration? means payment in full of all elements of a Consultant?s remuneration as provided and speci?ed in version I of the Consultants? Contract 2008, having regard to applicable deductions under law including the FEMPI legislation ?date of settlement? means the 15th of June 20l 8. ?eligible Consultant? means a Consultant who is or was employed under the Consultants? Contract 2008 and who ?rst signed any version of such a contract in the Period or who ?rst signed such a contract a?er the Period but had been successfully interviewed for the relevant post in the Period . The term includes: Consultants who continue to work in the Public health service, whether under the Consultants? Contract 2008, or otherwise; (ii) Consultants who retired from the Public health service subsequent to signing the Consultants? Contract 2008; Consultants who le? (ceased service in) the Public health service subsequent to signing their Consultants? Contract 2008 (whether or not they are now retired) save that such Consultants shall not be entitled to the terms of the Consultant Contract 2008 in respect of any new term of employment after the period. For the avoidance of doubt Consultants who take a career break have not ceased service by reason thereof. (iv) Consultants who signed any version of the Consultants? Contract 2008 after the Period but prior to the settlement date, and have not broken service, having previously held either a 1991 or a 1997 Common Contract (or held a permanent Consultant post in the public service of another EU Member State) immediately prior to signing the Consultants? Contract 2008. Consultants who on 301? September 2012 were employed on a fixed term or Speci?ed purpose Consultants? Contract 2008 for a continuous period of at least 6 months immediately prior to that date and who subsequently without a break in service executed a permanent version of the Consultants? Contract 2008 as referenced at Appendix 2 prior to the date of settlement. All other Consultants who signed ?xed or specified purpose contracts are excluded. ?Later Entrant? means an eligible Consultant who ?rst signed the Consultants? Contract 2008 on or after 1SI January 2011 and who was subject to the 10% reduction applicable to all new entrant public servants from that date. ?lead Consultant? means a Consultant who is an eligible Consultant and is a plaintiff in one of the lead cases. ?litigating Consultant? means an eligible Consultant who has commenced proceedings prior to the 14th June 2018 alleging a failure to pay the appropriate rate of remuneration or rate of pension in accordance with the terms of the Consultants? Contract 2008 and who is not a lead Consultant. ?non-litigating Consultant? means an eligible Consultant who has not commenced proceedings prior to the 15?" June 2018 alleging a failure to pay the appropriate rate of remuneration or rate of pension in accordance with the terms of the Consultants? Contract 2008. ?pension entitlements? means all elements of pension payable under any applicable pension scheme including, but not limited to, a pension lump sum (ii) retirement bene?t spousal or dependants bene?t (iv) death in service or death in retirement payments. ?period? means the period of time between the 25?1 July 2008 and the 30th September 2012 (inclusive) . ?Public Health Service? meaning those public service bodies falling within the ambit of the Financial Emergency Measures in the Public Interest Acts. ?remuneration? means any and all sums payable to Consultants pursuant to version 1 of the Consultants? Contracts 2008 including, but not limited to, Annual salary as set out and defined in paragraph 23 of the said contract. (ii) andl?or Factor payments Onwcall, structured weekend or other arrangements to which separate payments attaches pursuant to any of the terms of the said contract (iv) Clinical Directors Allowance Payments during periods of approved paid leave. (vi) Rest days for which payment was made to a Consultant during the period of retrospection (in lieu of the provision of rest days), save that Later Entrants shall remain subject to the 10% reduction of salary and allowances applicable to all new entrant public servants from that date while they remain on a point on the scale to which the said reduction applies and ?remuneration? shall be construed accordingly. ?retrospective payment of remuneration? means 55% of the difference between the remuneration actually paid to a Consultant during the period of retrospection and the remuneration which he or she would have been paid if the provisions of paragraph 23 of version I of the Consultants? Contracts 2008 had been properly and fully applied to him or her, including payment of all increases of whatever nature provided for therein. Retrospective payment shall have regard to applicable deductions under law including FEMPI legislation and the deductions applicable to Later Entrants. The calculation of the difference shall exclude the elements of remuneration set out at numbers (ii) and Structured Overtime at the rate of time and a half after 151 July 2013 which shall from that date he paid at time and a quarter in the de?nition of remuneration above. ?retrospective payment of pension entitlements? means 55% of the difference between the pension entitlements actually paid to a Consultant during the period of retrospection and the pension entitlements which he or she would have been paid during such period if such entitlements had been calculated having regard to the level of remuneration to which he or she 'was entitled pursuant to the provisions of paragraph 23 of version I of the Consultants? Contracts 2008, including any increases of whatever nature provided for therein. Retrospective payment shall have regard to applicable deductions under law including FEMPI legislation and the deductions applicable to Later Entrants. The calculation of the difference shall exclude the elements of remuneration set out at numbers (ii) and Structured Overtime at the rate of time and a half after 15? July 2013 which shall from that date he paid at time and a quarter in the de?nition of remuneration above. ?period of retrospection? means the period during which an eligible Consultant is entitled to receive retrospective payment of remuneration or retrospective payment of pension entitlements pursuant to paragraph 3 hereof. ?Version 1 of the Consultants? Contract 2003? means the Consultants? Contract 2008 containing the version of paragraph 23 contained in Appendix 2 hereto. An eligible Consultant who has accepted the offer within the speci?ed timeframe shall be entitled to full correction of remuneration or full correction of pension entitlements as the case may be effective from the Date of Settlement but payable from January 2019.. Payment of corrected remuneration for the period from the Date of Settlement up to the date of commencement of payment of corrected remuneration shall be made no later than the March 2019. An eligible Consultant who has accepted the offer within the speci?ed timeframe shall be entitled to retrospective payment of remuneration in respect of the period of employment andfor retrospective payment of associated pension entitlements as follows Lead Consultants and litigating Consultants: for a period commencing up to six years prior to the date of issue of proceedings and ending on the Date of Settlement (ii) Non-litigating Consultants: for a period of up to six years prior to the Date of Settlement and ending on the Date of Settlement. All sums due by way of retrospective payment of remuneration andfor retrospective payment of pension entitlements shall be paid to the eligible Consultant who has accepted the offer within the speci?ed timeframe on or before the following dates and in the following amounts: 40% on or before June 2019; and (ii) 60% on or before March 2020. and such sums shall be paid net of all taxes or any other deductions required by law. It is noted that for the purposes of the Public Service Pay and Pensions Act 2017 the ?basic pay? of eligible Consultants immediately prior to the enactment of the Financial Emergency Measures in the Public Interest (No 2) Act 2009 was and is the full corrected remuneration applicable under the provisions of the 2008 Consultants Contract. Nothing in this Settlement shall remove or prejudice the right of eligible Consultants to receive restorations of pay pursuant to the provisions of the 20]? Act or the Financial Emergency Measures in the Public Interest Act 2015 or otherwise. For the purposes of calculating the pension entitlements of eligible Consultants 'who retire from the public health service within three years of the Date of Settlement, their remuneration shall be treated as, and deemed to be, the corrected remuneration payable pursuant to the provisions of the Consultants? Contract 2008, in accordance with applicable pension rules. Each lead case shall be settled and compromised on the terms set out herein and an Order made therein in the terms of the draft Order set out at Appendix 4. A litigating Consultant who has served or serves proceedings shall be offered the opportunity to compromise his or her proceedings on the basis of the terms set out in this Settlement providing such proceedings are served within 14 days of the date of settlement. Such offer shall be made in writing by a solicitor for any of the Defendants to the Solicitor for the Consultant on or before 26th October 20] 8. The Consultant shall have a period of six weeks to accept or reject the offer. In exceptional cases an application to extend such period can be made to the National Director of Human Resources, Health Service Executive whose consent shall not be unreasonably withheld. If the National Director refuses to grant such extension, the Consultant can apply to Court to extend the time for acceptance. Acceptance of the offer shall be by way of the execution of a Letter of Consent and Release in the terms set out at Appendix 4 hereof. Upon acceptance of the offer, an Order shall be made as soon as practicable thereafter striking out the 10. proceedings and providing that the reasonable costs of the proceedings up to the date of acceptance shall be paid by the Minister for Health andfor Minister for Finance andfor Minister for Public Expenditure and Reform, as appropriate having regard to the named ministerial defendants, to be taxed in default of agreement. A Consultant who fails or refuses to accept the offer shall be free to proceed with his or her litigation. In circumstances where the Consultant and his or her employer cannot agree the amount due to the Consultant under the Terms of Settlement, he or she shall be bound by and entitled to rely upon the Terms of Settlement including in any process or proceedings. Nothing in this paragraph shall remove the entitlement of a Consultant to maintain a claim which is permitted by the provisions of paragraph 14. The Defendants will contact such existing Consultant employees as they believe are non?litigating Consultants to circulate the terms of settlement within eight weeks of the date of settlement. A non?litigating Consultant shall apply in a prescribed form to be offered the opportunity to receive the benefits of these terms of settlement. Such applications will be made by the 14th of September 2018. Offers shall be made in writing by on or on behalf of the Health Service Executive on or before 26th October 2018. The Consultants shall have a period of four weeks to accept the terms of the said offer. In exceptional cases an application to extend such period can be made to the National Director of Human Resources, Health Service Executive whose consent shall not be unreasonably withheld. Acceptance of the offer shall be by way of the execution of a Letter of Consent and Release in the terms set out at Appendix 5. In circumstances where the Consultant and his or her employer cannot agree the amount due to the Consultant under the Terms of Settlement, he or she shall be bound by and entitled to rely upon the Terms of Settlement including in any process or proceedings. In the case of an eligible Consultant who has died prior to the date of the execution of these Terms of Settlement, but would have been entitled to payments ll. l2. l3. 14. 15. in accordance with the provisions thereof, such payments subject to application by hislher Executorsf Personal Representatives! survivin Spouse, dependent or next of kin in accordance with the terms set out above shall accrue to the bene?t of his or her Estate and any necessary Letter of Consent and Release may be executed by hisr'her Executorsr' Personal Representatives. The relevant signatory Ministers sanction these Terms and the implementation of these Terms of Settlement. The making of payments due thereunder is not subject to any further Ministerial approval and/or sanction. For the avoidance of doubt, the making of payments to which Consultants are entitled under these Terms of Settlement is not subject to any condition or requirement other than the provision of an appropriate Letter of Consent and Release as may be required in accordance with the terms of paragraphs 3, 9 and 10 hereof. Having regard to, and in consideration of, the provisions of these Terms of Settlement, the professional organisations shall fumish a letter of con?rmation to the Minister for Health in the terms set out in Appendix 6 hereto. The parties acknowledge and agree that acceptance of these Terms of Settlement by an eligible Consultant shall not remove or prejudice the right of such a Consultant to maintain a claim in respect of a matter other than an alleged failure to pay or provide full remuneration or full pension entitlements in accordance with provisions of the Consultants? Contract 2003 as claimed in the ?lead cases?, for example a claim in relation to rest days, holiday entitlements, sick pay, structured weekend pay and claims in respect of Clinical Directors? allowance. Without prejudice to the generality of paragraph 14, the within terms of settlement are in full and ?nal settlement of all or any claims that the lead Consultants or any litigating or non-litigating Consultant who accepts an offer to 16. receive the bene?ts of the terms thereof, may have in respect of an alleged failure to pay or provide full remuneration or full pension entitlements in accordance with provisions of the Consultants? Contract 2008 including but not limited to any claim pursuant to the Payment of Wages Act 199] as amended. The parties hereto acknowledge the following: The the IHCA, Consultants, the Department of Health, the HSE and health employers are committed to the provision of a public health service of the highest quality and recognize that Consultants? Contract 2008 is fundamental to such provision. All eligible Consultants who settle their claims under this agreement af?rm the ternis of the Consultants? Contract 2008. The parties accept the importance of compliance by all parties with the terms of the Consultants? Contract 2003 with a view to ensuring the more timely delivery of effective care to patients. These include, in particular, terms relating to the scope and extent of private practice on site and off-site, the ratio of public to private practice, working hours, different work patterns, work scheduling, and arrangements for monitoring and audit of same. The parties recognise the need for mutual trust, confidence and reSpect in giving effect to the terms of the Consultants? Contract 2008. The parties reaf?rm the mutual obligations set out at Section 4 b) and the regulation of private practice provisions set out at Section 20 of the Consultants? Contract 2008 and affirm that they shall co?operate in giving effect to such arrangements as are put into place to verify the delivery of the Consultant?s contractual commitments. Il Dated this clay of 2018. Signed: Signed: On behalf of the Minister for Finance Signed: On behalf of the Minister for Public Expenditure and Reform Signed: On behalf of the Minister for Health Signed: On behalf of the Health Service Executive Signed: On behalf of the [Appropriate Professional Organisation] 12 List of Lead cases APPENDIX 1 APPENDIX 2 Paragraph 23 of 2008 Consultants Contract as per Consultant Contract 2008 at 25?h July 2008: 23) Salary and other payments :0 The Consultant's annual salary shall be as follows (in June 200? terms) and shall be implemented on a phased basis as set out at 0) below: i} for Type A Contracts a salary scale in four points as follows will apply: ?222,000. ?228,000, ?234,000, ?240,000: ii] for Type Contracts a salary scale in four points as follows will apply: ?205,000, ?210,000, E2 ?5,000. ?220.000; for Type 3* Contracts a salary rate 011090.000 will apply. iv) for Type Contracts a salary scale in four points as follows will apply: ?l 00.000, ?65.000, ?170,000, ?175,000. h) The annual salary for Consultant Academics shall be as follows: i) For a Professor (Type A Contract} a salary scale in four points as follows will apply: ?272,360, ?280,240, ?287,620, ?295,000. ii) Fora Professor (Type Contract] a salary scale in four points as follows will apply. ?265,650. ?235,000 For a Professor {Type 0* Contract} a salary of ?255,000 will apply. iv} For a Professor (Type Contract} a salary scale in four points as follows will apply: ?219,450, ?226,300. ?233, l50. ?240,000 c) All serving Consultants who take up the offer of the Consultant Contract 2008 by 31st August 2008 Will be assimilated to the maximum point of the applicable new salary scale. d) The salary scales at a} and b) above will be phased on the following basis: i} a 5% increase on the Consultant?s existing (June 2007) rate from the l4?h of September 2007: ii) halfthe balance? from 1"1 June 2008: the remaining balance from June 2009. These rates will attract a 2.592 Towards 2016 general round increase from the l?1 of March 2003 and a further 2.5% Towards 2016 general round increase from I"l September 2008. e) An allowance of ?50,000 per annum will be paid to those Consultants appointed as Clinical Directors. f) Saturday. Sunday and Public Holidays: Structured on-site attendance at weekends and on public holidays will be subject to the following premium payments: i} Time 1/2 on Saturdays ii) Double time on Sundays and Public Holidays Continuing Medical Education The CME allowance will be increased to ?3.000 with effect from the PI June 2008. Payment will continue to be on a 1vouched basis. to be adjusted in line with the Consumer Price index (CPL). This allowance may be carried over annually for a maximum of ?ve years. fl": h) Telecommunications The Consultant shall be reimbursed either the cost of home or mobile phone rental. i) Factor (On-Call} Payments An increase in the [lat annual payment to ?6,000 will take effect from the 151 June 2008. The payments for more onerous rosters will increase by 5% from the same date. it Factor (Call-Out) Payments The Consultant will be eligible for payment on a per call-out basis for the provision of on-site services when: i) restored for on?call duty and is contacted by another medical practitioner in the hospital. by a senior nurse or other member of staff speci?cally The term 'hull? the balance' refers to the dill'ereHCe between the 14m September 2007 rate and the fully implemented salary scale. designated for that purpose and attends on-site to provide emergency services: ii} rostered for on-call duty and who. in the exercise of hisfher professional judgment. attends on-sitc and performs clinical work of an urgent nature or carries out urgent diagnostic or therapeutic procedures; requested by another Consultant to provide on-site services in public hospital 1 agency to which the Consultant does not have a scheduled commitment and where such services cannot be provided within the Consultant?s scheduled commitment as adjusted by the Clinical Director! Employer. This payment shall be on the basis of the equivalent payment per call-out. Revised structures and rates for Factor payments from the lit June 2008 are as follows: First 30 31- I 20 12] Call-Outs Call?Outs Call-OuLs or More Per Call-Out {Hourly . rate or part thereof}: ?100 C150 C200 If Call-Out Occurs M'dn'gh? I 25 618150 c250 (hourly rate or part thereof}: Annual limit {30.000 With the exception of the payments referred to at sub-paragraphs g) and h) above the foregoing rates will be increased in line with general round increases under National Pay Agreements. seam Dra? Order in Lead cases ?The Court having received the Terms of Settlement made between the parties herein dated the day of June 2018 which is set out in the Schedule to this Order the Court dismisses the claims and counterclaims save for the granting of orders in the following terms A Declaration that the Plaintiff shall be entitled to be paid corrected remuneration as provided for in the Terms of Settlement set out in the Schedule to this Order A Declaration that the Plaintiff shall be entitled to retrospective payment of remuneration as provided for in the Terms of Settlement set out in the Schedule to this Order. The Plaintiff shall be entitled to an Order for Costs as against the Defendants, such costs to include all reserved costs, costs of motions issued andl?or court hearings not covered by specific costs orders, including costs of discovery (including making discovery), costs of counterclaims, outlay (including refresher fees of counsel, the trial having commenced on 5?11 June 2018) for the period of negotiation of this settlement from June 6th to 15'h June 2013), to be taxed in default of agreement. The proceedings shall be struck out with liberty to the partiesto apply in relation to any issues arising in relation to the implementation of this Order and the Terms of Settlement.? APPENDIX 4 DRAFT Letter of Consent and Release to be signed by litigating Consultants ?To The HSE Re: Litigation concerning the level of remuneration and pension bene?ts payable to Consultants pursuant to the 2008 Consultants Contract. Dear Sir, I refer to your Letter of Offer of the day of 20 in regard to the above. I con?rm that I am willing to settle and compromise my proceedings on the basis of the Terms of Settlement arrived at in the lead cases in relation to Consultants? entitlements under the Consultants? Contract 2003. I note and accept that I am bound by clause 16 of the Terms of Settlement to the extent that that clause applies to individual Consultants. Finally, I con?rm that I have taken such legal advice as I consider appropriate prior to signing this Letter of Consent and Release. Yours faithfully Consultant: Witness: '23 Solicitor: IS APPENDIX 5 DRAFT Letter of Consent and Release to be signed by non?litigating Consultants ?To The HSE Re: Litigation concerning the level of remuneration and pension bene?ts payable to Consultants pursuant to the 2008 Consultants Contract. Dear Sir, I refer to your Letter of Offer of the day of 20 in regard to the above. I confirm that I am willing to accept the offer to apply the provisions of the Terms of Settlement to me. Further I con?rm that I am agreeable to be bound by the provisions of the said Terms of Settlement insofar as same relate to my appropriate remuneration and my appropriate pension entitlements based upon the Consultants? Contract 2003. I note and accept that I am bound by clause 16 of the Terms of Settlement to the extent that that clause applies to individual Consultants. Finally, I con?rm that I have taken such legal advice as I consider appropriate prior to signing this Letter of Consent and Release. Yours faithfully '35 Consultant: MM Draft Letter of Con?rmation to the Minister for Health ?Re: Litigation in relation to remuneration and pension entitlements of Hospital Consultants under the 2008 Consultants Contract Dear Sir, I refer to the above matter and to the Terms of Settlement which were arrived at in the lead cases in relation to Consultants? remuneration and pension entitlements under the 2008 Consultants Contract. I con?rm, that in consideration of and having regard to, the said Terms of Settlement, the (name of professional organisation) will recommend, and use its best endeavours to ensure, that its members settle and compromise any outstanding proceedings seeking arrears of remuneration and for pension entitlements on the basis of the said Terms of Settlement. recommend, and use its best endeavours, to ensure, that its members who have not commenced proceedings, accept an offer to apply the said Terms of Settlement to them. not take any measures to support any outstanding litigation or any new litigation,- seeking arrears of remuneration or pension entitlements pursuant to the 2008 Consultants Contract, to the extent that same are included by way of claim in the ?lead cases?, save as may be necessary and required to ensure implementation of the terms of the said Settlement. Finally, the (professional organization) confirms that it is committed to the provision of a public health service of the highest quality and recognizes that it is 20 bound by clause 16 of the Terms of Settlement to the extent that that clause applies to [insert organisation] Yours faithfully, For and on behalf of the (Professional Organisation)? 2] W3 1.TCod& W6 WF liar #st Edith? m. 2. Secretary General do,? WM Re: Consultant Contract Litigation High Court hearing of 10 Lead Cases I refer to the forthcoming hearing of the above lead cases, scheduled to commence on 30111 May 2018. I attach a draft letter to the Director General of the HSE reaf?rming that private surveillance is to be used as a legitimate method of collecting material in relation to non-compliance with contractual obligations by consultants. A related email from the solicitors is also attached. At the meeting of the Departments, the State?s legal team and the HSE of?cials and its legal team on 17 it: April, the HSE was advised by the Departments that surveillance should be reactivated and that the correspondence sought by Philip Lee con?rming this would be issuing in the near ?iture. Background At its meeting on 14th February 2017 the Government decided on a strategy to defend these cases (Decision $180f20/10t2044). It specifically decided to:~ ?vigorously de?ed the consultant contract cases that are due to he heard in the High Court 1With a de?ance that Speci?cally focuses on the non-compliance by the consultants with the contract?. Following the decision the Departments engaged with the HSE for several months in relation to gathering evidence in relation to consultants private practice, on and off-site. While there was some resistance from hospital management eventually data was compiled in respect of on-site private activity. - In relation to off-site activity, it is more dif?cult to gather data and material. Philip Lee, solicitors for the HSE used a number of methods, including the advertising of private hospitals and phone calls seeking to make appointments with consultants who should not have been working off-site. In addition the Departments were infonned that material was being gathered in relation to some of the lead case consultants through the use of private surveillance. The Departments had no particular issues with this approach. Recently we. became aware that video and other evidence had been collected that would show some of the lead case consultants engaging in off-site activities when it is understood they should not have been and should instead have been ful?lling public dutiesr'?mctions . At a meeting on 20th March, 2018 between the Departments and the HSE arranged to discuss the approach being taken to the counterclaims the use of private surveillance and evidence gathered was outlined 1n some detail. The three Departments present endorsed the approach being taken recognising that the material gathered would support the counterclaim against non-compliant consultants Subsequently, and to the surprise of the Departments, the solicitors, Philip Lee, wrote to the Chief State Solicitors Of?ce on 6ml April stating that the HSE believes it is - inappropriate to continue with the surveillance, that Senior Counsel has expressed reservations about carrying out surveillance, and that it intends to take no further steps to carry out surveillance to gather possible evidence for use in the non-compliance counterclaim. Philip Lee requested an early response if the Departments believe that surveillance should continue. The Department understands that senior HSE management have some concerns in relation to the consequences of this approach on relationships with consultants, that this approach could be interpreted as being heavy handed andfor not be acceptable to consultants. However it is necessary to pursue all avenues in relation to gathering material 1n relation to non-compliance 1n order to put forward the strongest defence possible. The use of private investigatorsfsurveillance would not be unusual 1n the defenceiprosecution of cases before the courts. The Department? 3 Legal Advisor for the cases has con?rmed this approach 15 not unusual. Paddy Barrett National HR TA: I 1":1 r21 '1 1.. Ti pate-11 [51" "Li HEM Q1 [1 til: 3:11 31? H1. 1 lac 1.11111 .11115111"11 1111.. 111 1:11: -- ii April, 2013 Mr Tony O?Brien Director General Health Service Executive Dr Steevens? Hospital Dublin 8 Re: Consultant Contract Litigation High Court hearing of 10 Lead Cases Dear Tony, I refer to the forthcoming hearing of the above cases, scheduled to commence on 30?? May 2018, and the on?going preparations for the hearing. As you are aware the Departments of Health, Finance and Public Expenditure and Reform have regular meetings with the HSE to progress the State?s defences and to coordinate same in accordance with Government policy. At a Cabinet meeting on 14th February 2017 the Government decided on a strategy to defend these cases and speci?ed that non-compliance by consultants with the contract should be a particular line of defence. Following the Government decision the Departments pursued with the HSE the need to gather relevant data and material on the consultants selected as lead cases, focusing on their private practice activities, both on and o?-site. It is recognised that it may be dif?cult for hospital management to fully capture all consultants? off-site private practice. Given this, the Departments were aware that the use of private surveillance would be part of the strategy to gather relevant material in relation to any off-site practice or any other activities of the consultants concerned that would show them tobe in breach of their contracts. The Departments had no issues with this approach when informed and saw it as necessary. On ti-th April the solicitors, Philip Lee, wrote to the Chief State Solicitors Of?ce stating the HSE believes that it is inappropriate to continue with the surveillance and requested an early response if the Departments believe that surveillance should continue. I am writing to confirm that the position of the three Departments, consistent with the Government decision, is that surveillance continue and that any evidence on non- compliance arising, together with evidence gathered to-date, should be presented to the Court as part of the-HSE?s defence and counterclaims against relevant consultants. It is necessary to pursue all avenues in relation to gathering material in relation to non- compliance in order to put forward the strongest defence possible. The use of private investigatorsfsurveillancc would not be unusual in the defencefprosecution of cases before the courts. I wish to con?rm that this matter has been considered by the three Departments, Health, Finance and Public Expenditure and Reform in conjunction with the State?s legal advisors. I must request therefore that you inform the relevant personnel dealing with the defence that the use of private investigators should be reactivated and that any relevant material gathered to date and between now and the hearing may be used to defend these cases. Yours sincerely Jim Breslin Secretary General