No legal barriers to State owning National Maternity Hospital site – legal analysis

No legal barriers to State owning National Maternity Hospital site – legal analysis

The issue of the ownership and governance of the new hospital site has been the subject of ongoing debate, with concerns raised over the independence of the hospital. File picture: Sam Boal/Rollingnews.ie

There is nothing standing in the way of a publicly-owned National Maternity Hospital, a new legal analysis has said.

Commissioned by non-profit Uplift, the analysis conducted by Stephen Dodd SC says the State would be justified to carry out a compulsory purchase order on the land owned by the Religious Sisters of Charity.

The issue of the ownership and governance of the new hospital site has been the subject of ongoing debate, with concerns raised over the independence of the hospital.

It is proposed to move the National Maternity Hospital from its existing location at Dublin’s Holles St to a site at Elm Park in Dublin 4, where it will be co-located with St Vincent’s Hospital.

St Vincent’s Healthcare Group has rejected calls to sell the land, and has said it must own it “for the delivery of integrated patient care”. It has proposed to change the composition of the hospital’s board, to increase the representation of the public interest.

However, campaigners have said these proposals don’t address fundamental issues and on Tuesday welcomed the legal opinion from Mr Dodd.

Plans 'byzantine in their complexity'

In his analysis, Mr Dodd described the plans for the new National Maternity Hospital as they currently exist are “byzantine in their complexity, almost Kafkaesque, from which it is difficult to clearly ascertain with certainty key matters of ownership, control and governance”.

“One of the main areas of concern relates to whether a religious ethos could still influence clinical services being provided at the new NMH,” he said.

Mr Dodd noted the proposed agreement includes a “golden share” to be held by the Minister for Health in terms of the reserved powers.

“However, the wording of the proposed reserved powers if it designed to avoid any religious ethos influencing clinical independence is not watertight and is ambiguous,” he said.

He said the State would be investing heavily in building the National Maternity Hospital and the status and function of the hospital would mean the State owning the land would remove doubts related to governance and clinical independence.

“Overall, I am of the view that the State could present a compelling case to meet the test to justify the compulsory acquisition of the Elm Park site,” Mr Dodd said.

He said a consideration for the State in terms of invoking its powers to conduct a compulsory acquisition of the site is that it could delay the delivery of the new hospital.

'Mired in controversy'

Mr Dodd said the site for the project was first identified in 2013 and the current situation being “mired in controversy” meant delays were likely no matter the course of action.

He said the project being wholly funded by the State made it clear the State’s interest in ownership “substantially outweighs the interests of the Religious Sisters of Charity or St Vincent’s Hospital Group in retention of ownership”.

Jo Tully, the chairperson of Our Maternity Hospital Campaign Group, said the issue is of the utmost importance.

She said: “It is now clear that if Government is intent on building the new National Maternity Hospital on the site in Elm Park it is now, not only legally possible, but imperative that it pursue it urgently.” 

Eoin Brady of FP Logue Solicitors, which is providing advice to the campaign, said: “The legal opinion is quite clear.

“There are no significant legal obstacles to the compulsory acquisition of lands to provide for a new maternity hospital, and in fact the case law supports the proposition that the provision of such a public service in the common good can be justified as a proportionate interference with private property rights.”

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