National Maternity Hospital tells court that inquiry would have 'chilling effect' on care

By Aodhan O Faolain

The National Maternity Hospital (NMH) claims a new inquiry arising over the death of a woman during surgery for an ectopic pregnancy will have a "chilling effect" on the operation of maternity services.

The hospital was today given permission by the High Court to challenge the Minister for Health’s decision to order the Health Information and Quality Authority (HIQA) to carry out a statutory investigation into patient safety issues including the practise of surgery being carried on outside core hours and the readiness of hospitals to respond to major emergencies in such circumstances.

Malak Thawley (34), a teacher and a US citizen, died at the NMH on May 8, 2016.

Two weeks ago, her widower Alan Thawley settled his action over her death against the NMH for compensatory damages. The court heard the doctor who carried out the surgery was an inexperienced junior surgeon and was not supervised.

The late Malak and Alan Thawley

Today at the High Court, Paul Gallagher SC, for the NMH, said it was their case the Minister was acting outside his powers in ordering a new inquiry in circumstances where three other reports into the death of Ms Thawley already taken place, one by the hospital itself, another by the HSE and there was also the coroner’s report.

The hospital’s own review had resulted in the implementation of changes to ensure there is no recurrence of the Thawley tragedy and they were backed by the HSE, the coroner and HIQUA, counsel said.

The Minister had fettered his discretion by telling Mr Thawley that whatever about the HSE report, he (Minister) would still order an inquiry into the matter.

This was effectively giving a third party the discretion as to whether an investigation would be ordered, counsel said.

A statutory inquiry requires that it must be on foot of a specific concern but the Minister had implied that it was because the provision of all hospital services outside core hours was unsafe, counsel said. This is an irrational position and outside the Minister’s powers, he said.

In an affidavit for the proceedings, NMH Master Rhona Mahony says the new investigation, under Section 9(2) of the Health Act 2007, will undermine clinical and public confidence and could be counter-productive in its effect on national maternity services.

Rhona Mahony

It will have a "chilling effect" on the ability of clinicians to delivery high risk and emergency care in an already challenging environment, both at the NMH and nationally, she says.

While no maternity hospital has a 24/7 consultant presence, and emergency obstetric procedures are frequently performed int he absence of a consultant, consultant staff are readily available when called, she says.

This was exemplified in the Thawley case when the consultant obstetrician was in theatre within ten minutes of being called and a consultant anaesthetist within 18 minutes, she says.

As regards the readiness of hospitals to respond to such emergencies, Ms Mahony said very rare vascular complication of the severity sustained by Ms Thawley carries a high rate of mortality even if addressed immediately. The NMH had unreservedly apologised to Mr Thawley, she says.

There is no evidence that the Minister’s decision to hold an inquiry meets the statutory threshold for a Section 9 inquiry, she says.

The Minister had pre-determined whether a fourth investigation was necessary and in doing so, prior to the publication of the HSE, the Minister had effectively conferred that decision on Mr Thawley, she says.

It is a matter of great concern to the hospital, staff and patients that the operational impact of a further inquiry is disproportionate in the context of the thorough reviews already carried out and the measures implemented afterwards, she says.

The NMH is not opposed to a fourth investigation but believes the type of inquiry ordered by the Minister will have serious implications for the hospital’s operations and affect public confidence with patients possibly discouraged from attending hospital because the Minister believes serious safety risks exist, she says.

Instead of a Section 9 inquiry, the NMH has suggested an independent expert body such as the Royal College of Obstetrics and Gynaecology UK should be appointed to conduct a further investigation.

Mr Justice Seamus Noonan granted the NMH permission to bring judical review proceedings against the Minister, with HIQUA as a notice party, and said the case can come back to court next month. The application was made on a one-side only represented (ex parte) basis.

NMH statement

Responding to the ruling and in a statement released this afternoon the National Maternity Hospital again apologised to Mr Alan Thawley, his family and friends and the late Malak Thawley 'who died in our care'.

The statement went on: "The Hospital has from the outset accepted responsibility and acknowledged liability.

"The National Maternity Hospital is very open to assisting a further review of the circumstances surrounding this tragedy. We embrace opportunities for further learning, and have learned a great deal from the three reviews which have taken place since Ms Thawley’s death and have implemented recommendations from our own robust review. These recommendations were endorsed by the Coroner at the inquest, and a number have been incorporated into the National Maternity Strategy. The three reviews have been consistent in their findings.

"However, the particular type of review currently directed by the Minister for Health would be carried out under Section 9.2 of the Health Act, a Section to be used only when the Minister believes there is a serious risk to patients. This conveys to our staff and our patients that the Minister believes that emergency surgical practice in this Hospital outside “core hours” is unsafe.

"Any such belief is not supported by the facts and is inconsistent with the investigation’s own terms of reference and runs contrary to the findings of the three reviews carried out to date. In fact, the National Maternity Hospital operates according to international standards of best practice and is a tertiary hospital providing care for the most complex pregnancy situations in the State.

"Our clinical outcomes are published in brief every month and in detail annually and compare favourably with the very best international standards.

"A Section 9 review will, without justification, undermine clinical and public confidence and could be counter-productive in its effect on national maternity services. We believe that this particular form of review will have a chilling effect on clinicians’ ability to deliver high risk and emergency care in an already challenging environment both at NMH and nationally.

"The Hospital agrees with HIQA that an alternative approach would be more productive. We have suggested an international external review to contribute to further local and national learning.

"The Hospital has sought to meet with the Minister to explain the clinical implications of the Section 9 review but have been unable to secure engagement with him to discuss a constructive alternative.

"It is with deep regret therefore that we find that we must resort to the courts in the interests of patient care and safety, and the ability of staff to continue to provide 24 hour care which is fundamental to maternity care."