How Deal Leaves Doors Open For Church Control

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SVHGharris:mahonyNMH

From top: St Vincent’s Healthcare Group, owned by the Sisters of Charity order; Minister for Health Simon Harris and Master of Holles Street, Rhona Mahony with a model of the intended National Maternity Hospital.

Last night A 25-page report on the terms of agreement between the National Maternity Hospital, Holles Street and St Vincent’s Hospital Group – as written by mediator Kieran Mulvey – was published by Health Minister Simon Harris.

We asked Legal Coffee Drinkers, what’s it all about?

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

Legal Coffeee Drinker: “It’s a report on the agreement (“the Agreement”) reached between the National Maternity Hospital Holles St and St Vincent’s Hospital Group regarding the new maternity hospital at Elm Park.”

Broadsheet: “According to the report, who will run the new hospital?”

LCD: “Clause 1.1 of the Agreement says that the hospital will be operated by a designated activity company called the National Maternity Hospital at Elm Park DAC (“the Hospital Company”).

Clause 4 says that the Hospital Company will in turn be run by a Board of Directors consisting of nine directors (“the Directors”) one of whom must be the Master.

Four of the Directors will be nominated by the St Vincent’s Hospital Group and another four Directors will be nominated by the National Maternity Hospital Chartered Trust.

The remaining Director will be an independent international expert in Obstetrics and Gynaecology appointed by a Selection Committee.

The composition of the Selection Committee, however, is not clearly stated, something which is particularly unfortunate given that the expert appointed by it could effectively have the casting vote on Board decisions.”

Broadsheet:
“So that’s the first point of concern? What’s the next?”

LCD:  “Clause 1.2 of the Agreement which says that the Hospital Company will be a 100% subsidiary of St Vincent’s Hospital Group.

This means that St Vincent’s Hospital Group – and not the National Maternity Hospital Chartered Trust – will own the Hospital Company.

Under company law, shareholders of a company have the ultimate control of that company, having the ability to alter the composition of the Board of Directors or the objects and scope of operation of the company by amending its incorporating documents.

The concern is that St Vincent’s Hospital Group could, down the line, use its shareholder status to change the structure of the Hospital Company from that originally set up under the Agreement, undermining its entire effect.

Clause 3 of the Agreement seeks to safeguard against this by providing that the Directors shall be entitled to exercise in an undiluted manner and in a manner designed to preserve the autonomy and clinical and operational independence of the new hospital the power to provide maternity, gynaecological, obstetrics and neo-natal services and control, utilise and protect all financial and budgetary matters as they relate to the hospital and shall also be entitled to retain the existing Mastership model, appoint the Master and other officials and agree the annual SLA with the HSE (all of which are collectively described as ‘the Reserved Powers’).

It further states that a provision shall be inserted in the incorporating documents for the Hospital Company saying that the Reserved Powers cannot be removed save with the prior written and unanimous approval of all Directors of the Board and with the consent of the Minister for Health.”

Broadsheet: “So the Directors retain independence in the performance of maternity, gynaecological, obstetrics and neo-natal services unless they all vote to relinquish this and the Minister for Health also agrees?”

LCD: “Yes.”

Broadsheet: “So that’s all right then?”

LCD: “Not necessarily. Firstly, although the reserved powers cannot be easily removed, they are powers, not obligations, given to a Board of Directors less than half of whom will be appointees by the National Maternity Hospital Chartered Trust.

The remaining members (who could potentially outvote the Trust appointees in all and any decisions relating to the hospital) consist of appointees of the St Vincent’s Hospital Trust and an international expert appointed by an as yet undefined selection committee. They are the people who will determine the extent to which the reserved powers are exercised in practice.

Secondly, the scope of the reserved powers are necessarily limited by the objects of the Hospital Company as defined in Clause 2 of the Agreement, which talks about providing

‘a range of health services in the community as heretofore’.

The words ‘as heretofore’ could potentially be relied on in the future to argue that new health services – possibly abortion, if legal, or new methods of assisted reproduction – fall outside the purposes of the hospital.

As such there are two ways in which St Vincent’s could potentially, under the Agreement, obstruct procedures in the Hospital of which they did not approve.

Firstly, they could argue, as regards procedures which were not previously carried out in Holles Street, that they fell outside the scope of the authority to carry out work ‘as heretofore’.

Secondly – and separately – they could, if supported by the international expert director, use their influence on the Board of Directors to outvote the Master and nominees of the National Maternity Hospital Chartered Trust and in this way prevent the procedures being carried out.”

Broadsheet: “What about the ‘triple lock’ referred to by Master of Holles Street Rhona Mahony?”

LCD: “The triple lock referred to by Dr Mahony locks one door by which St Vincent’s could seek to obstruct such procedures. It does not ‘lock’ the other two doors mentioned above, which are left open by the use of the words ‘as heretofore’ in Clause 2 and the failure of the Agreement to clearly define the composition of the Selection Committee which will appoint the Independent Expert.

The report on the deal states:

‘The independent international expert in Obstetrics and Gynaecology will be chosen from a list of candidates drawn up by SVHG and the NMH Trust.

They will be assessed by a Selection Committee, chaired by the SVHG Clinical Director,and the other members will include the SVHG CEO and a representative from the NMH Trust.

Any proposed nominee will be appointed by the Selection Committee after consultation with the SVHG Nominations Committee.’

Broadsheet: “So St Vincent’s could potentially use these two doors in the Agreement to control the hospital’s future activities?”

LCD: “Potentially, yes.”

Broadsheet: “One final question. Who will own the hospital if and when built?

LCD: “The owners of the ground on which the hospital is built will own the hospital. The Agreement references a ‘lien’ being put in place to protect the HSE investment. A lien is normally a security interest put in place to protect a creditor.

Presumably what is meant is that the HSE will take a charge over the hospital land for the amount of the money expended. However if, as is likely, the building will increase the value of the land to significantly more than this sum, it will be the owners of the land, rather than the HSE, who will get the profit under such an arrangement.”

Broadsheet:Hmm.”

LCD: ‘Indeed.”

Broadsheet: “Thanks Legal Coffee Drinker.”

LCD: “Don’t mention it.”

Last Night: The Maternity Hospital Deal

Previously: Thank You, Peter Boylan

Nun So Blind

62 thoughts on “How Deal Leaves Doors Open For Church Control

  1. Increasing Displacement

    Jesus! So all the politicians are full of dog crap? Seems they would have this information…

  2. Zuppy International

    Finally we see Broadsheet’s real objection to the Maternity Hospital deal: there will be no business opportunity for the Baby Murder Machine.

    ¡Go Nuns!

    1. Nigel

      We saw your real reason for opposing abortion yesterday: the chance to launch ugly attacks on women who have experienced FFA.

      1. Zuppy International

        I attacked nobody Nigel. Stop making things up.

        Abortion kills babie. Are you in favour of that kind of thing Nigel?

    2. Sham Bob

      I thought Zuppy was a vaguely lefty anti-imperialist. I guess that weird Kathy Sinnott flavour of the left in Ireland hasn’t gone away. I’ll eat this fupping laptop if Zuppy isn’t a guy though.

      1. Kieran Nice Young Chap

        Zuppy doesn’t believe in the rocket science (really), but believes in sky fairies.

  3. medieval knievel

    one for LCD – the constitutional ban on the state endowing a religion – does granting ownership of a state funded hospital fall under this definition?

    1. Legal Coffee Drinker

      Traditionally the endowment guarantee in the Constitution has been interpreted narrowly, and presumed to include State assistance to hospitals owned by religious orders and denominations, as long as those hospitals are open to all without discrimination.

      I say ‘presumed’ because the caselaw on the endowment guarantee tends to relate to funding provided to schools rather than hospitals.

      It would be an interesting case!

      1. Cian

        Hmm… but does the State not build schools on grounds owned by religious orders and denominations and the ownership resides with the religious orders?
        And they actively discriminate based on religion. (Although the law specifically allows them discriminate based on religion – so perhaps it’s not actual discrimination).

        Does the whole ‘school building given to religious order that owns the land’ set a precedence that would allow the Minister to grant ownership of a hospital to a particular religious charity?

        1. Legal Coffee Drinker

          There’s the rub.

          Though the separate constitutional rights of education and freedom of religion may mean that special considerations apply in school funding which do not necessarily apply to hospital funding.

          We have so few cases on Article 44 in the medical context that this point has not really been teased out yet.

          However it has to be said that to date the courts have taken a very narrow view of the things that constitute prohibited endowment.

          1. Listrade

            @LCD: so does this statement actually have any value: “without religious or ethnic or other distinction”?

            I’m presuming that SVH cannot discriminate on that basis as it is, at least not openly state that it will be run to a Catholic Ethos and that this will influence clinical decisions. However, clinical decisions are referred “upstairs” for approval, but this is under the guise of “ethics” not religion.

            As long as they keep reference to religion out of their clinical decision making (as they do at SVH), does that statement of the clause have any practical application other than window dressing?

  4. bisted

    …the main evidence of a Baby Murder Machine in this country seems to be in Tuam…Go Nuns…please go…

      1. Zuppy International

        You have evidence that nuns in Tuam murdered babies? Take that to the Guards why don’t you?

        Otherwise, the story in Tuam is that dead bodies were buried in the ground. Problem?

        1. bisted

          …the evidence of infant mortality that is a multiple of the average would ring the alarm bells elsewhere…it was that type of evidence that eventually led to exposing the crimes of Harold Shipman…

        2. Nigel

          And speaking of business opportunities and baby machines, there was the whole thing where they were selling the babies that didn’t die.

          1. jusayinlike

            And they break up still borns and sell the body parts, so regardless of your baby killing fantasy, the nuns make big business of selling tots..

  5. mildred st. meadowlark

    Thanks LCD and broadsheet. Another great job on helping to clarify the issue beneath the political fug.

  6. Milo

    The confirmation bias is strong on this one. Both sides only hearing what suits them and fupp the facts. Rhona seems to be the only one focused on helping women, everyone else settling scores. Charming.

    1. Lord Snowflakee

      Poor little dear. Here let me mansplain it to you.

      Rhona ‘says’ she is only focused on helping women.

      Peter Boylan IS focused on helping women.

      Simon Harris etc is focused on getting photographed doing some Big Important Thing.

    2. Medium Sized C

      I don’t think you know what Confirmation bias means.
      I’m not sure you get what settling scores means either.

      1. Nigel

        It’s when you hold a grudge against someone for not slipping you a few quid outside the church after the bishop blessed you.

    3. Milo

      As I said. More interested in being right than being good. When the hatred of the church over rides your concern for women.

      1. ahjayzis

        You can’t let your hatred for a rapist with a car override the fact that your daughter needs a lift home from school.

      2. Tim O'Donnell

        This is obviously the party line, seen it trotted out on numerous forums now. Interesting, I wonder if someone like Iona is coordinating these trolls?

    4. MoyestWithExcitement

      The confirmation bias is strong on this one…..Rhona seems to be the only one focused on helping women,…”

      Good work.

  7. ahjayzis

    Ignoring WHO gets the free hospital, how much they profit and how the hospital will be run afterward. WHY are we giving anyone a free tax-payer built, funded, staffed and maintained hospital?

    What other country’s health system just gifts assets worth hundreds of millions to private bodies like this?

    1. Barry the Hatchet

      Yes, I would like to see a post examining this aspect. I find it baffling. The nuns are saying they won’t profit from this but, if that’s the case, what’s the incentive for them to make the land available?

      Thanks for the post, LCD. You’re a gem.

      1. MayJay

        @Barry I speculate that the real money is to be made by funneling insured patients from the public Maternity hospital into Vincent’s Private much in the same way as they already do from the existing Vincent’s Public. That way they’re not technically making money on the NMH, but, boy howdy, they’re still making money.

        Just a theory, mind.

  8. Legal Coffee Drinker

    Just responding to an interesting query raised by Tom Stamp @thomasjstamp on Twitter regarding this post.

    Tom asks-

    Is it part of the agreement that the independent expert will have casting vote? Maybe whoever is chair? Surely that’s most important?

    My response:-

    Sometimes the chair of the board of directors may have a casting vote, this may occur where the company documentation specifically provides for this or even if it does not so provide Section 160 of the Companies Act 2014 provides that where Board members are equally divided the Chair may have an additional, casting vote.

    However in this case there is an unequal number of Board members 4 from St Vincent’s and 4 from the NMH so in the event of a split between St Vincent’s and the NMH and assuming no sbstentions it will be the independent expert who has the deciding vote, swinging the result one way or the other. There is nothing in the Agreement to change this as far as I can see.

    1. Sheik Yahbouti

      I would be grateful for LCD’s view on what is to happen to the old NMH premises, as these do not appear to be among the many things transferred (I could be mistaken)? A prime site of considerable value. Is it envisaged that the Nuns would have this also in return for the ‘”free site”?

      1. Legal Coffee Drinker

        Under Clause 4 of the Agreement ‘Guiding Principles’, it is stated that the National Maternity Hospital at Holles Street is to be sold and the proceeds invested in the new facility at Elm Park.

        This is also made clear by Clause 2.3.2 which lists among the reserved powers of the Board of the new company the power to retain and utilise “any moneys received through the disposal of
        assets, gifts and bequests on the sale of Holles Street” (I think ‘on’ is a typo and should read ‘or’ *eyeroll*). Note this proposes to transfer over not only the proceeds of sale of Holles Street but also previous gifts and bequests to Holles Street.

        Although the Agreement refers at Clause 5.1 to a lien in favour of the State to secure its investment there is no reference to any lien arising in favour of the current legal owners of the Holles Street building, the Governors of Holles Street, – potentially the new hospital could be sold without even having to pay back this investment.

        I appreciate that the Agreement is an outline agreement but…!!

        I would think that whatever about the rest of the Agreement Holles St could only be sold and the proceeds utilised without a court order or the consent of a majority of the Governors. I have not seen the provisions of the trust under Holles Street is held so cannot be absolutely certain of this but I would think it likely.

  9. Sheik Yahbouti

    I think the current ‘Master ‘, if her reported remarks are true and her acquiesence to this outrage is real, should consider HER position, as she is no friend to de wimmin.

  10. Mary Jane

    Brilliant article Legal Coffee Drinker. I really don’t want the National Maternity Hospital moved to Vincent’s, and your insight has further settled my view. The Government have no right to spend 300 million of our money (grossly inflated in Germany it would be done for half the price) on a hospital which is being handed over lock, stock and barrel to SVHG. It’s disturbing, corrupt and sinister.

    1. know man is an island

      Legal coffee drinker is the only blogger consistently worth reading on this site. All the rest is mostly drivel.

  11. Legal Coffee Drinker

    Legal Coffee Drinker entirely disagrees.

    This is a great site and I’m very honoured to have the opportunity to post here and engage with commenters.

    Thank you for all your input. It’s great to have this sort of discussion going.

    1. know man is an island

      You’re taking the urine surely? But that’s ok.
      Your stuff is fantastic. Keep it up.

      1. Legal Coffee Drinker

        Not in the least. Huge admiration and respect for Broadsheet, and for anyone who believes in full, accurate and complete media coverage and public discussion of legal issues with respect to all, lawyers and non-lawyers alike, engaging in such discussion.

  12. Paddy McGarr

    Legal Coffee Drinker, please correct me if I’m wrong on this.
    The Board will be of 4 SVHG, 4 NMH and the one independent. Now this is where it gets interesting. The Agreement states;

    “- One Director* shall be an independent international expert in Obstetrics and
    Gynaecology.
    *The independent international expert in Obstetrics and Gynaecology will be chosen
    from a list of candidates drawn up by SVHG and the NMH Trust. They will be
    assessed by a Selection Committee, chaired by the SVHG Clinical Director, and the
    other members will include the SVHG CEO and a representative from the NMH Trust.
    Any proposed nominee will be appointed by the Selection Committee after consultation with the SVHG Nominations Committee, and the NMH Directors on the
    Board of NMH at Elm Park DAC (limited by shares).”

    So there ye have it. The ninth meber will be selected AND appointed by the Selection Committee made up of 2 SVHG and 1 NMH. They will of course consult with the SVHG Nominations Committee (How many are on this committee?) and the 4 NMH Directors. That’s heavily weighted in favour of the SVGH.

  13. Legal Coffee Drinker

    That’s exactly my point, Paddy.

    The Agreement leaves the selection committee composition less than finally conclusive by simply saying it shall ‘include’. But there’s certainly a substantial risk that it will be controlled by St Vincent’s.

Comments are closed.