New maternity hospital delay is an opportunity

A reworked plan is required to ensure public funding is spent on an authentic national maternity hospital in public ownership and under public control, writes Marie O’Connor.

The ‘new National Maternity Hospital’ — a private Catholic hospital governed by the hierarchy?

The Religious Sisters of Charity have spent the last three years managing their departure from the Irish healthcare scene. 

Are they really relinquishing their hospitals, as claimed, or is a handover to the Hierarchy in contemplation?

The plan for the National Maternity Hospital to be taken over by St Vincent’s Healthcare Group still stands, although nothing has been heard about it for over a year. In 2016, the NMH agreed to become a subsidiary of SVHG. 

The National Maternity Hospital even assented to a single system of governance for obstetrics and gynaecology across itself and St Vincent’s University Hospital, according to the Mulvey report. 

Game, set and match to the Religious Sisters of Charity, owners of the group.

The NMH looks set to move into a strongly Catholic environment. The Religious Sisters of Charity have actively sought to inculcate their mission into staff. 

By 2005, more than a thousand hospital staff had attended SVHG courses in medical ethics. 

Services prohibited by Rome, such as sterilisation on demand, are not provided, understandably, in the nuns’ hospitals.

Arrangements made by private Catholic health care facilities are a matter for themselves. But difficulties arise when public funding enters the picture. 

The State plans to invest €300m in a new build for the NMH, despite its planned status as a wholly-owned subsidiary of a private Catholic entity.

Six months after the Mulvey report, to great fanfare, the nuns announced they were giving up their hospitals. 

Three weeks earlier, 1,500 people had demonstrated on the streets of Dublin against their planned ownership of the new NMH. 

As part of their offer to ‘relinquish’ their hospitals, the nuns announced that they would give up their power to appoint board members.

This suggests, of course, that current board members are congregational appointees. Congregational leader Sr Mary Christian also announced the setting up of an entity to take ownership of their facilities. 

SVHG chairman James Menton clarified that the company, St Vincent’s, would initially be made up of the SVH Group itself, or part of itself, with four board members (including the chair) slated to be involved.

Sr Mary Christian also stated that reference to the nuns’ philosophy and code of ethics would be removed from the group’s constitution, after their hospitals had transferred to St Vincent’s.

Nevertheless, she reaffirmed the nuns’ dedication to preserving the legacy of their foundress, Mary Aikenhead, and expressed confidence the group’s directors would do so.

This was confirmed by the chairman, who reassured the public, and possibly the Papal Nuncio, that the SVHG board, management and 4,000 staff would continue to provide acute healthcare services in line with these values. So far, so unclear.

Public juridical persons

The new charitable entity, Menton said, will have ‘few’ powers and it will be business as usual for the group. So why set it up in the first place?

The obvious answer is that setting up St Vincent’s gave the impression that change was afoot, by enabling the nuns to announce that they are divesting themselves of their hospitals. 

However, establishing a new company also opens up new corporate possibilities.

Could the new entity — soon to own the NMH — be subject to supervision by the Hierarchy? 

Since 1983, Canon Law has provided for the creation of Catholic corporations to ensure that the hospitals, schools and other facilities owned by religious orders are safeguarded in terms of ownership and ethos. 

The same board members may serve on both the ecclesiastical and civil entities.

A system of ‘reserved powers’ provides for congregational control.

Although few have heard of them, ‘public juridical persons’, as they are known, have already been established in Ireland. (‘Public’ is a term of art here: in canon law, it refers to close regulation by the Hierarchy.)

In Cork, to take one example, the Mercy University Hospital is owned by Mercy Care South, a charitable body under the Charities Regulator and a public juridical person under the Bishop of Cork and Ross. 

The hospital’s former owners, the Sisters of Mercy, designed this dual corporate structure in 2016. 

It seems unlikely the Religious Sisters of Charity would not want to follow their example. They have already done so elsewhere.

Archbishop Diarmuid Martin has repeatedly indicated that he does not wish to be involved in the running of the NMH. 

So, if St Vincent’s is being established as a Church corporation, the nuns will have to look to either the Vatican or the Irish Catholic Bishops’ Conference to supervise the laity chosen to govern in their stead. 

If the governing authority is the Vatican, it will require annual reports showing evidence of compliance with Church teaching.

Smoke and mirrors

What lies behind the smoke and mirrors?

All we know at this point is that the Religious Sisters of Charity are set to spin off their hospitals to a new company, St Vincent’s, which to be set up by their own company, SVHG.

Major known unknowns include whether the governance charter of St Vincent’s will require adherence in its hospital activities to the congregation’s ethos and charism. 

Again, taking the example of Mercy Care South, whether St Vincent’s will be incorporated as a civil company and as a Church entity obliged to adhere to Canonical Statutes and By-Laws is not known. 

This is a concern that was raised more than a year ago by Dr Peter Boylan.

Such questions are legitimate, given the planned State funding of the new NMH. 

Lack of transparency, if not disingenuousness, has characterised the Government’s handling of this issue to date, however.

Two key aspects have been veiled. One is the proposed government funding of a private hospital — in contravention of Government healthcare policy separating the public from the private.

Peter Boylan
Peter Boylan

The NMH will be answerable to St Vincent’s and the wider group, not the State, and the hospital’s operational activities will continue to remain outside State control, as they are at present.

The National Maternity Hospital launched a judicial review last January challenging a decision by the minister for health to order a Hiqa inquiry into patient safety issues. 

The inquiry was set up in the wake of the death of Malak Thawley, 34, whose aorta was accidentally torn during emergency surgery at the hospital in 2016 for an ectopic pregnancy.

Last week, the chief medical officer, Dr Tony Holohan, told the High Court that the minister for health had to consider the governance arrangements of a new service [to be provided by the NMH at Vincent’s] in the light of his ‘genuine concerns’ about the hospital’s attitude to patient safety.

The NMH, for its part, claims the minister acted outside his powers, given that there have already been three inquiries, and says a statutory inquiry would be highly disruptive and would undermine public confidence.

The second feature that jumps out is the denominational aspect. It is preposterous to pretend, as the minister for health has repeatedly done, that the new NMH will be free of religious influence. 

The new NMH is set to become more Catholic, not less.

In recent decades, the NMH has portrayed itself as a secular hospital while technically under diocesan control.

Dr Tony Holohan
Dr Tony Holohan

The hospital is now quietly set to take its place as a new acquisition by a Catholic entity.

Wholly owned subsidiaries are owned and controlled by their parent company. 

In this case, the parent (currently SVHG) is owned by a religious congregation, so, at a minimum, the new NMH may find itself governed by the Code of Ethical Standards for Healthcare, published in May by the Bishops’ Conference.

It is clear the new ‘national’ maternity hospital was never going to be either public or secular.

The Government should, therefore, abandon its retrograde plan to fund a new build for a private, denominational entity, where women’s right of access to a full range of services, including appropriate care in miscarriage, is likely be compromised.

The minister has indicated the deal, on which he has sole sign-off, is progressing, but evidence given to the High Court last week shows the deal stalled last January, after the NMH launched its legal challenge to the minister.

The current deadlock is an opportunity. Only public pressure will derail a deal that dovetails so well with vested interests.

A new plan is now required, to ensure that public funding is spent on an authentic national maternity hospital in public ownership, and under public control.

Marie O’Connor is the author of Emergency: Irish hospitals in chaos

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