Even those with no voice can eventually find justice when a republic does its duty, writes Fergus Finlay.
Sometimes you think you can glimpse the republic. Then a moment later it seems just as far away as ever.
Two unfolding stories told that tale for me last week. The first was the profound and I think transformative ruling by Judge Peter Kelly in the case of Grace. The second was the increasingly bizarre saga of the National Maternity Hospital.
These stories are linked, in ways that may not at first appear obvious. Their importance lies in what they say to us about ourselves. We are citizens of a republic. I know I say that so often that it sounds like a cliché, even to me.
But the notion of a republic is something that if we stop fighting for it, and arguing about it, and demanding more for it, will come to mean nothing at all.
But in the end of the day, our republic owes us only one thing – the principles on which it was founded. You can define those principles in a variety of different ways, but any definition I know will include a number that are common.
Government of the people, by the people, for the people. Separation of powers. Basic principle of justice, including equality before the law. Accountable, answerable and representative government. Human rights, including some that are inviolate.
Last week Judge Peter Kelly, President of the High Court, showed us what a republic means. He did it in his judgment outlining a financial settlement in the case of Grace. We know her story, and we know now that a strong financial settlement ought to accord her the dignity and the comfort to which she is entitled, after half a lifetime of abuse.
Because Grace is a ward of court, it was a “committee” that appeared in front of Judge Kelly. Speaking for the committee, Sara Moorhead SC said that when she got involved in this case: “I genuinely could not believe this was the 21st century in terms of what we were dealing with”.
For years, she said, everyone appeared to “run away” from Grace in relation to her needs and this was “perhaps one of the saddest cases” concerning abdication of responsibility for a very vulnerable, “literally voiceless”, person.
Judge Kelly concurred. He praised the whistleblowers who were the only ones who had stood up for Grace, and he attacked the HSE – our State agency – in the strongest possible terms.
Because Grace has no voice, she cannot accuse. Neither can she defend herself. A child or a young person without the capacity to speak out can be abused with impunity, because she can never confront her abuser, or give evidence against his abuse. It’s why it is so imperative that the state in a republic would regard the right to protection from abuse as one of the absolutely inviolable rights.
But when there are judges who are prepared to listen to the person with no voice, and to stand up for them anyway, you know there is a judge standing by the republic.
But then you read other stuff, and you begin to wonder where the republic has gone.
I wrote here last week that the most bizarre aspect of the controversy surrounding the new National Maternity Hospital is that none of us really know what we’re talking about. We all believe there’s a contract between Holles Street and St. Vincent’s Hospital that appears to have the status of an agreement between church and state.
It covers, or so we think, who owns the hospital, how its run, how its clinical independence is guaranteed (or not), and all the rest. I’ve spent a fortnight looking for this agreement, because it matters.
Two highly distinguished people, Rhona Mahony and Nicholas Kearns, keep referring to is as something that’s unbreakable. Other equally distinguished people, like Peter Boylan, keep saying the opposite.
I’m satisfied now, after a fortnight of searching, that there’s actually no legal agreement at all. How crazy is that? We’re having a national row about something that doesn’t even exist.
What does exist is an agreement to have an agreement. It’s in a report to the Minister for Health. The report is written by Kieran Mulvey, another highly distinguished man (I’ve worked with him before and I’ve nothing but respect for him).
It’s dated last November, and it clearly was never intended to be published. The words “Strictly Private and Confidential” are written on every page. It’s clear from the terms of reference that the Minister wanted it kept secret.
But it’s findable online now, and readable. Although I don’t have what Enda Kenny once called “the gimlet eye of the canon lawyer”, I don’t think it’s possible to conclude that it guarantees the independence of the clinical ethos of the hospital.
In the document, Kieran Mulvey is reporting to the Minister that he has brokered an agreement between St Vincents and Holles Street to do several things.
First, to set up a new company to run the new maternity hospital.
Second, to design a governance structure for the new company.
Third, notwithstanding the fact that the new company will “run” the new hospital, St Vincent’s will own it. Fourth, there will be a “golden share” vested in the Minister, and a lien on the property. There will be “reserved powers” for the new hospital company in relation to a variety of clinical and other matters.
There are other things too, all to be incorporated, not in an agreement between the parties, but in the memorandum and articles of association of the new company. As I read it, if those founding documents of the new company are finally written as the heads of agreement suggest, the new company will be run by a board, equally composed of representatives of both existing hospitals (with no representatives appointed by the Minister).
There will be a ninth member, described as independent but actually chosen from a list of candidates assessed by the St Vincents Group.
It doesn’t say anywhere that the “independent member” will be the chair. Instead, the chairmanship will be rotated every three years. That means that Holles Street will effectively have a majority on the board for three years, and then be in a minority for the next three years.
And then, on page 20 of the document, there’s a highly troubling diagram setting out the “clinical governance structure for the Elm Park Campus”. In that diagram the Master of the Maternity Hospital appears clearly to report to the St Vincent’s Board of Directors, through a “group clinical director”.
In overall terms, the document is a masterful piece of mediation between what were clearly two entrenched positions. But there is no way it can be seen as an absolute guarantee of independence, despite the best intentions of all involved.
More to the point, it’s not how a modern republic, with all its knowledge of the past, and determined to make provision for the future, should choose to provide critical maternity services.
The national maternity hospital should be of the people, by the people, for the people. The state builds it, the state owns it, the state is accountable for it. Anything less is a further devaluing of the republic.
Kelly praised whistleblowers who were the only ones who had stood up for Grace, and he attacked the HSE
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