Statutory inquiry into NMH could undermine public confidence in maternity services, court hears

By Ann O'Loughlin

Public confidence in the country's maternity services could be undermined under a statutory inquiry into the National Maternity Hospital (NMH) ordered by the Minister for Health after the death of a woman during surgery for an ectopic pregnancy, the High Court has heard.

It would have a "significant de-motivating effect on staff working in the sector", the court was told on a first day of the challenge by the National Maternity Hospital (NMH) to the Minister's decision to order the Health Information and Quality Authority (HIQA) to hold an inquiry under Section 9(2) of the 2007 Health Act.

The inquiry is into patient safety issues including the practice of surgery being carried on outside core hours and the readiness of hospitals to respond to major emergencies in such circumstances.

It follows the death in May 2016 of teacher Malak Thawley (34) at the NMH from exsanguination as a result of an accidental aortic injury on insertion of a trocar during surgical management of a live ectopic pregnancy.

The late Malak Thawley

The Minister denies the NMH claims he is acting irrationally, disproportionately and outside his powers. HIQA is a notice party.

Paul Gallagher SC, for the NMH, said the Minister, in promising a further external inquiry to Alan Thawley, widower of Malak Thawley, had fettered the discretion he enjoys under the legislation permitting him to set up the inquiry.

Reading an affidavit sworn by Dr Rhona Mahony, Master of the NMH, Mr Gallagher said the inquiry would be potentially counterproductive and lead to the undermining of public confidence in national maternity services.

Dr Mahony says the magnitude of the HIQA investigation and its "damaging impact" on the staff and services at the NMH cannot be overstated.

By invoking a statutory inquiry the Minister was implying there was some deficiency in the hospital's services giving rise to a serious risk of the health and welfare of patients.

There had already been three inquiries/reviews which made no such conclusions. In the first of those, the hospital's internal inquiry, 18 of the 19 recommendations in its report were implemented.

The second was the HSE/McKenna review of the NMH inquiry which acknowledged that the hospital’s systems and analysis review not only complied with the requirement of national guidelines for such reviews but in a number of respects exceeded those requirements.

There was also a coroner's inquest which approved the recommendations of the NMH report.

The hospital had no objection to a fourth investigation and what it had proposed was an inquiry by an independent expert body such as the Royal College of Obstetrics and Gynaecology in the UK.

Dr Mahony said the confidence in the three reports from the previous inquiries will be undermined and have "the potential to distort clinical decision making".

Clinician confidence will be impaired and lead to staff avoiding high risk situations with the potential of significantly increased risk for patients, she said.

There will be a significant impact on the "On Call" area and it raises "massive operational and safety issues" because there are insufficeint consultants to perform all procedures arising in a 24-hour period. This will not only affect the NMH but all maternity services who operate similar arrangements throughout the country.

Earlier, Mr Gallagher said the Minister had not taken into account these disproportionate impacts on the NMH services which he was required to do in deciding whether to set up an inquiry.

The NMH was also saying the procedures adopted by the Department of Health in deciding to set up the inquiry made for "somewhat disturbing analysis", Mr Gallagher said. The reasons given for the decision are wholly inconsistent with an internal document prepared for the Minister when he made a public statement announcing the inquiry, counsel said.

The reasons given did not meet the test for such an inquiry and the hospital had never been told why they met that test, he said.

Mr Gallagher also said the HIQA inquiry would take up to three years to complete and would be highly disruptive. An inquiry by UK Royal College, which has a special unit to conduct such inquries, would not be so disruptive, he said.

The case continues before Mr Justice Charles Meenan.