Minister's assurances on the independence of a new National Maternity Hospital not enough

It is scandalous that, despite the huge investment by the state in building up the assets of St Vincent’s Holdings Group, and future state expenditures in building the new NMH, the healthcare facilities will not be in public ownership

Wed, 23 Jun, 2021 - 06:41

Don O'Leary

There is widespread public concern that the Catholic ethos will influence governance at the new National Maternity Hospital (NMH).

The events which have given rise to such concerns may be traced back to May 2013 when then Dr James Reilly, Minister for Health, announced that the NMH at Holles Street would be co-located with St Vincent’s Hospital at Elm Park, Dublin. St. Vincent’s Hospital, and the Elm Park site, were owned by St Vincent’s Holdings Group (SVHG), which was in turn fully owned by the Religious Sisters of Charity (RSC). Proximity to St Vincent’s would give swift access to complicated care when needed.

SVGH rejected the minister’s proposal of co-location, demanding, instead, full ownership of the NMH. Property law favoured the stance of the SVHG. No matter how much taxpayers' money was invested in the new hospital it would still become the property of the landowner, consistent with the property law maxim superficies solo cedit ("a building becomes part of the ground") which was affirmed in Section 3 of the Land and Conveyancing Law Reform Act 2009. The new NMH would be effectively reduced to the status of the maternity wing of St Vincent’s Hospital, with limited self-governance and lacking budgetary independence. This was resisted by the NMH. Protracted disputes between the two hospital boards obstructed progress.

In May 2016, the then Minister for Health, Simon Harris, appointed Kieran Mulvey to act as mediator in the dispute. Mr Mulvey proposed that the new NMH should be completely owned by the SVGH. This found majority support in the NMH’s board of management. 'Reserved powers' underpinned by a 'golden share' were included in the articles of the agreement to safeguard the clinical and operational independence of the new NMH. This was, however, very much in question.

Dr Peter Boylan who resigned from the board of the National Maternity Hospital stating that he could “no longer remain a member of a board that is so blind to the consequences of its decision to transfer sole ownership of the hospital to the Sisters of Charity, and so deaf to the disquiet of the public it serves. Collins Photos

Dr Peter Boylan, a former master of the NMH (1991-1997), resigned from the NMH board, stating that he could “no longer remain a member of a board that is so blind to the consequences of its decision to transfer sole ownership of the hospital to the Sisters of Charity, and so deaf to the disquiet of the public it serves… To believe that the new NMH will be the only hospital in the world owned by a Catholic congregation to permit sterilisation, IVF, abortion, gender-reassignment surgery and any other procedures prohibited by the Church is naïve and delusional.”

Dr Boylan argued that the structure of the board of management was weighed in favour of SVHG.

It would have suited government ministers and the RSC if business had proceeded as usual – where schools and healthcare facilities, built and staffed by the state on church land, were managed, controlled, and owned by the Church. This had been happening for decades but was now becoming increasingly unacceptable. Attitudes towards the institutional Church had changed due to the many scandals that had come to light from the mid-1990s onwards.

Hospitals subject to Catholic ethical principles were no longer trusted in matters of reproductive medicine, especially in relation to women’s healthcare. The reputation of the Religious Sisters of Charity was tarnished, not only for its exploitation and abuse of unmarried mothers in the Magdalene Laundries, but also for its refusal to contribute to a redress scheme for the survivors.

When the impending deal between the state and the RSC became widely known, it provoked sustained public and political opposition in April 2017. In May 2017 the RSC announced that they would withdraw from the SVHG and would not have any role in the ownership or management of the new NMH. They intended to set up a new company, St Vincent’s Holdings, into which they would transfer their shareholding.

The nuns were not free to dispose of their assets without taking account of canon law and they could not proceed without the approval of The Holy See. On May 8, 2020 they confirmed that such approval had been granted. The headline of their press release stated that the land for the new NMH would be gifted to the “People of Ireland”. This was clearly not the case. The land, instead, would be owned by a private charitable body to be called St Vincent’s Holdings CLG (SVH). It is scandalous that, despite the huge investment by the state in building up the assets of SVGH, and future state expenditures in building the new NMH, these healthcare facilities will not be in public ownership.

This is part of a greater problem – the legacy of a deep entanglement between church and state which has frequently frustrated public policy initiatives in matters of healthcare and education.

Protestors from the Repeal the 8th movement with posters of Savita Halappanavar, who died at Galway University Hospital in October 2012 after being refused a termination following an imcomplete miscarriage. Photograph: Sasko Lazarov/ RollingNews.ie

The withdrawal of the RSC from any future involvement with the new maternity hospital does not in itself rule out church interference. Against the falling background of religious vocations, the institutional Church has sought to maintain control of schools and hospitals through the mechanism of public juridic persons of pontifical right (PJPs), mostly comprised of lay Catholics. PJPs are directly accountable to the Holy See. Is SVH a PJP? It seems not! On May 27, 2020, lawyers for SVH assured the Department of Health that SVH and its directors “will be bound by Irish law and the provisions of the constitution. The constitution makes no reference to canon law and canon law shall have no impact on the company.” SVH was incorporated in August 2020.

The core values expressed in the SVH constitution are not explicitly Roman Catholic but could be interpreted in conformity with the ethical directives of the Church. For example, 'justice', which demands respect for 'the rights of all' could be applied to deny terminations of pregnancy permitted by law. Donum Vitae (Congregation for the Doctrine of the Faith,1987) states that a fertilised ovum has the rights of a person. 'Human dignity' could be invoked to deny most fertility treatment services because the church teaches that many of these are offensive to human dignity. A religious ethos, therefore, may exert influence through what appears to be secular ethical principles.

Dr Peter Boylan circulated a briefing document to members of the Oireachtas in advance of TD Catherine Connolly’s Dáil motion on maternity services on June 2 2021.

This document indicates that the governance structure at present under consideration for the new NMH is fundamentally flawed. It will not deliver an independent NMH at Elm Park.

The new hospital will be vulnerable to religious influence from SVH, which is subject to Catholic ethical directives. Maternity hospitals need their own governance structures, including full control over their budgets. Failure to secure an independent NMH will be detrimental to women’s healthcare.

Minister for Health, Stephen Donnelly TD, is, like his predecessors Leo Varadkar and Simon Harris, still grappling with the legal complexities of setting up the new hospital. He has acknowledged that the state’s investment needs to be protected to ensure that it remains in state ownership. This objective may not be attainable, considering that constitutional property rights and current legislation seem to favour SVH. Also, it would now be difficult for the state to withdraw from locating the new NMH at Elm Park because it has already invested heavily in developing the site. The state is trapped in a legal quagmire, largely of its own making. SVH is leveraging its property rights to secure control of the new hospital – which will be built and staffed at enormous cost to taxpayers.

Can ownership and governance be separated? Stephen Donnelly has given “an absolute commitment” to the Dáil that no religious ethos will be allowed. He needs to demonstrate this to public satisfaction – unverified assurances are no longer good enough.