St Vincent’s Chief Operating Officer Kay Connolly, Minister for Health Simon Harris and Dr Rhona Mahony, Master at Holles Street
The Religious Sisters of Charity will end our involvement in St Vincent’s Healthcare Group and will not be involved in the ownership or management of the new National Maternity Hospital.
For the last two years we have been actively working to find the best way to relinquish our shareholding of the St Vincent’s Healthcare Group (SVHG). It includes three hospitals: St Vincent’s University Hospital, St Vincent’s Private Hospital and St Michael’s Hospital, Dun Laoghaire.
Although the Sisters of Charity no longer have any direct involvement in the provision of healthcare services we remain dedicated to preserving the legacy of Mary Aikenhead, whose mission in life was to heal and care for the sick and poor.
We believe that the future continued success of SVHG can best be ensured by our transferring ownership of the group to a newly formed company with charitable status to be called “St Vincent’s”.
The Religious Sisters of Charity will have no involvement in this new company.
Upon completion of this proposed transaction, the requirement set out in the SVHG Constitution, to conduct and maintain the SVHG facilities in accordance with The Religious Sisters of Charity Health Service Philosophy and Ethical Code, will be amended and replaced to reflect compliance with national and international best practice guidelines on medical ethics and the laws of the Republic of Ireland.
The SVHG Board, management and staff will continue to provide acute healthcare services that foster Mary Aikenhead’s core values of dignity, compassion, justice, quality and advocacy.
They will ensure that the three hospitals in SVHG can continue to meet the need of their patients and families, so that every individual can always access the care and treatment they need to achieve health and well-being.
“St. Vincent’s” will replace the Sisters of Charity as the shareholders in SVHG and will meet the following criteria:
The shares in SVHG will be transferred to St. Vincent’s for a nominal/”peppercorn” consideration in return.
Consistent with the transfer of ownership, the Religious Sisters of Charity will no longer have a right to appoint Directors to the Board of SVHG, and the present two Sister Directors will resign from the Board with immediate effect.
“St. Vincent’s” will not be subject to undue influence by individuals or from any source.
“St. Vincent’s” will not seek to generate any profit or surplus, or to remunerate Directors for their work.
“St. Vincent’s” Directors will have required skillsets in law, finance, healthcare and social care. They will be true to the values of our Foundress, recognising the right of everyone to access the care and treatment they need to achieve the best possible health care outcomes, regardless of race, ethnicity, religion, gender or personal means.
In the event of the liquidation or wind-up of St. Vincent’s at any time in the future, any surplus assets arising therefrom will be vested with the Charitable Regulator and utilised for healthcare purposes and facilities with similar values. This is in accordance with the provisions of the RSC Constitution.
Just as our Founder Mary Aikenhead saw the need in 1834 to establish a hospital to meet the needs of the sick and poor, we believe that it is in the best interests of the patients and children born in the National Maternity Hospital today that they be provided with modern maternity and neonatal services that are women and infant-centred and integrated within the Elm Park campus.
It is now time for us to relinquish completely our involvement in SVHG. We are confident that the Board, management and staff of SVHG will continue to maintain a steadfast dedication to providing the best possible acute healthcare to patients and their families in line with the values espoused by Mary Aikenhead.
This proposal has the full support of the Board of SVHG. It is subject to implementation of all necessary legal, financial and regulatory matters.
A statement released this morning by Sr Mary Christian, congregational leader of the Religious Sisters of Charity.
Dick Spicer, of the Humanist Association of Ireland, his son Norman Spicer, and writer and publicist Peigin Doyle, from Sligo, hold a press conference to explain Dick and Norman’s legal challenge over the Government’s decision to give ownership of the proposed National Maternity Hospital at the St Vincent’s Hospital site in Elm Park to the Religious Sisters of Charity.
Niamh Lyons, in the Ireland edition of The Times, reports:
A High Court summons has been filed by two private citizens, Dick Spicer and his son Norman Spicer, against the state, the health minister and the attorney-general.
Dick Spicer, 70, is a founding member of the Humanist Association of Ireland and has a track record of campaigning on church and state issues. He played a significant role in the divorce referendum.
The plaintiffs believe that placing the maternity hospital under the “religious influence” of the SVHG will be judged to be unconstitutional and are demanding that the government abandon the plan.
Chief Operating Officer at St Vincent’s University Hospital Kay Connolly; Minister for Health Simon Harris TD; and Dr Rhona Mahony, National Maternity Hospital master
Is the deadline for submissions to An Bord Pleanála over the building of the new National Maternity Hospital on the St Vincent’s site in Elm Park, Dublin.
On March 10, the Minister for Health Simon Harris announced that the application was made.
On the same day, Paul Cullen, in The Irish Times, reported:
The move follows the resolution of an 18-month dispute between the two institutions over governance of the new hospital and the recent decision by An Bord Pleanála that the development constitutes strategic infrastructure and can therefore be fast-tracked through the planning process.
Despite this, on May 2, Taoiseach Enda Kenny told the Dáil:
While a planning application has not yet been lodged for the proposed new maternity hospital on the St. Vincent’s University Hospital complex, the proposed structure guarantees that the very best facilities will be available for expectant mothers that one would expect to see in the early part of this century.
After the application was made in March, An Bord Pleanála wrote to Dublin City Council for its views on the application.
“Three buildings on the St Vincent’s site already exceed the maximum permitted heights for the area: the clinical services building at just under 36m, the Nutley Wing at 40m and the private hospital building at more than 45m tall.”
“…Due to the presence of existing taller buildings the council had determined that the application did not contravene the city development plan.”
“However it said, even if the board determined that the building did not comply with the city development plan, it could still grant permission for the hospital, due to its veto powers under the planning acts.”
Participants in the ‘We Own Our Hospitals’ march, organised by Parents for Choice, Uplift, the National Women’s Council of Ireland and Justice for Magdalenes, make their way from the Garden of Remembrance, Parnell Square, Dublin 1 to Leinster House.
The march coincides with the Uplift petition – currently signed by 103,840 people (above) – against the decision to give sole ownership of the new National Maternity Hospital to the Religious Sisters of Charity.
RTÉ reports that “up to 1,500” people are taking part in the march.
A new National Maternity Hospital is urgently needed but cannot be allowed to be owned by the Sisters of Charity. Parents for Choice, Uplift, and National Women’s Council of Ireland and Justice for Magdalens are organising a national people powered march to send a message to Health Minister Simon Harris that he must urgently deal with this crisis and guarantee that the hospital will not be owned by a religious order.
Roisín Shortall, co-leader of the Social Democrats
Article 44 from Bunreacht na hÉireann
The Minister for Health’s announcement that he will re-examine the proposal to hand ownership of the publicly-funded National Maternity Hospital (NMH) to the privately owned St Vincent’s Healthcare Group is to be welcomed.
However, I would like to raise a matter of grave concern, hitherto overlooked, which needs to be addressed before any agreement on relocation can proceed.
At present, Article 44.2.5 of the Constitution confers on every religious denomination “the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.”
In the past the Supreme Court has emphasised the level of autonomy that this Article gives to religious organisations. It has been interpreted as conferring on religious institutions the right to apply their own doctrines in institutions under their ownership. It has also been successfully used to defeat well-founded cases taken against religious denominations under civil law.
For example, in a significant judgment in the 1979 case of McGrath and O Ruairc v The Trustees of Maynooth College, the Supreme Court cited Article 44.2.5 while upholding the right of the Bishop trustees of the college to dismiss two priests from their teaching posts because they wanted to leave the priesthood.
St Vincent’s Healthcare Group (SVHG) is an institution set up by a religious denomination, the Religious Sisters of Charity. As the company’s foundation document makes clear, SVHG is legally dedicated to providing healthcare, “in keeping with the mission of the Catholic Church,” and its facilities operate within that ethos. If the new National Maternity Hospital is part of the St Vincent’s group, it too will come under the umbrella of the Constitutional provision.
In return for being handed sole ownership of the new €300 million maternity hospital, SVHG says it will enter into agreements guaranteeing the clinical independence of the new hospital and permitting it to perform any medical procedures that are lawful in the land – presumably including abortions and various types of contraception including sterilisations.
However, I believe that if the current deal goes ahead, there will be inevitable conflict in the future over how much control St. Vincent’s is to have in the new hospital.
In light of Article 44.2.5, how can we be sure that in any future dispute over the interpretation or implementation of agreements on the new hospital, the courts would not favour the religious denomination and its Catholic ethos?
In the event of a dispute, it seems that the Supreme Court would have to ensure that the Constitutional protection for the religious order must prevail. A court might find it had no option but to favour the Constitution over any other civil contract or agreement, however solemnly and publicly it had been agreed upon by all the parties concerned.
In a prescient piece in this newspaper yesterday, Fintan O’Toole reminded us that a 1982 High Court ruling upholding the right of the Holy Faith nuns to sack school teacher Eileen Flynn because her lifestyle was not in keeping with the Catholic ethos of the order has never been overturned.
In my view, this grave constitutional complication is yet another reason why all parts of the deal that give St Vincent’s Hospital Group ownership of the new National Maternity Hospital should be dismantled, so that the new hospital remains in the hands of those who will pay for it and who will be relying on its services, the Irish public.
Róisín Shortall TD
Fianna Fáil leader Micheál Martin raised the National Maternity Hospital with Taoiseach Enda Kenny.
From their exchange:
Micheál Martin: “Can you confirm that that hospital group [St Vincent’s Hospital Group] and the Sisters of Charity will not have a majority on the board? And, above all, will you ensure that the State, the taxpayer, will own this hospital and will have its investment reflected in it? As a bottom line, given the investment it is taking?”
Enda Kenny: “Yes, I can, I can confirm that there will be complete clinical independence. I can confirm that the Sisters of Charity will not have majority of the board and, in relation of ownership, this is a matter that requires some, some consideration…”
Dr Peter Boylan speaking to Pat Kenny on Newstalk this morning
Further to the resignation of Dr Peter Boylan, former Master of the National Maternity Hospital at Holles Street, from the hospital’s board.
Following more than a week of claims and counter-claims concerning the running of the proposed new National Maternity Hospital on the St Vincent’s site.
And the non-publication of any memorandum of understanding or articles of association between Holles Street and St Vincent’s.
Dr Boylan spoke at length to Pat Kenny, on Newstalk this morning.
During the interview, Dr Boylan said: “the devil of this is going to be in the detail. And the memorandums and articles of association have not been, the work has not even been proceeded yet..”
He also said he hopes “the public debate will persuade [the hospital’s shareholders/governors] that it’s a very fragile deal, flawed and, inevitably, I think will cause huge conflict in the running of the hospital”.
From the interview…
Pat Kenny: “First of all, by text on Sunday, from Rhona Mahony and from Nicky Kearns, you were asked to resign. Did that matter come up as an issue, as a motion at the board meeting last evening?”
Peter Boylan: “No, it didn’t. I don’t really want to say an awful lot more about the meeting last night because I gave an agreement that it would be confidential.”
Kenny: “Yeah. But it did come up? Like there was no great move to oust you or anything like that?”
Boylan: “Well, there was no motion put to the board that my resignation should be given.”
Kenny: “I presume you can tell us what is already in the public domain that there was a vote on the issue in question. Because we know that there is a majority on the board. How big a majority was it and how comfortable of a majority and how many dissident voices might there be?”
Boylan: “The vote was overwhelming.”
Boylan: “In favour of the agreement.”
Kenny: “This leaves you, probably, a bit isolated because you had initially been a lone voice although the Lord Mayor of Dublin has added his voice. And there are two separate issues at the heart of this. One is the ethical issue which you have highlighted and then the second issue is the idea of handing over €300million of taxpayers’ money to a private entity. I’ve suggested already that, you know, they wouldn’t do it to Jimmy Sheehan from the Blackrock Clinic but they have decided to give it to St Vincent’s Healthcare because they want the synergies between the two hospitals. So, addressing both of those issues. One may have been resolved between the two boards that they think they can cobble together an agreement with all the safeguards that the minister thinks he will have in a month’s time. But the other one is a more general thing about what ministers do on our behalf with our money.”
Boylan: “Yes, you made reference there that I was a lone voice. That’s correct, more or less, on the board. But I’m not a lone voice in the community, outside, to which we have a great responsibility, to the women in particular. I’m also not a lone voice in the medical profession in that the previous master of the Coombe Hospital, Chris Fitzpatrick, and the previous master of the Rotunda, Sam Coulter-Smith. They’ve both voiced serious reservations about the governance proposed structures. So with regard to the agreement itself, there is a lot of issues with it. And the major ones are transfer of ownership of the National Maternity Hospital outright, 100% to the Religious Sisters of Charity on land that they own. The company that will run the hospital will be owned outright by the Sisters of Charity.”
Kenny: “Now, last time we spoke, you talked about the structure of the National Maternity Hospital. It’s national in name.”
Boylan: “That’s correct, yes.”
Kenny: “That’s a nice conceit to maintain, you know, but in fact it is not the centre, the national centre, like the national paediatric hospital at St. James’s will be the national centre of excellence, etc, etc, ..”
Boylan: “That’s correct.”
Kenny: “There’s excellence in all of the major maternity hospitals.”
Boylan: “That’s absolutely correct.”
Kenny: “But the structure is that there’s a board of governors who are the people in whom ownership is vested. Are they happy that their ownership is being transferred lock, stock and barrel to the St Vincent’s Healthcare Group?”
Boylan: “Well, they haven’t been asked.”
Kenny: “But how can that be legal? Unless they…”
Boylan: “I don’t know about the legality of it but there is no legal document in existence on which the governors, the owners, the shareholders of the National Maternity Hospital can vote. And the devil of this is going to be in the detail. And the memorandums and articles of association have not been, the work has not even been proceeded yet…”
Kenny: “So is it your understanding that they kind of maybe did a survey of the governors, checked them out and said, ‘will you be in favour of this thing?’. And they kind of gave them the nod. Because it is bizarre that any attempt to move ownership of a resource, whatever that might be, without the consent of the vested owners, would be bizarre?”
Boylan: “It would be bizarre and it is bizarre. I think, to be fair, that it’s likely that the governors would, the shareholders of Holles Street, probably would agree to the transfer because they would be convinced by the arguments. Now, hopefully, the public debate will persuade them that it’s a very fragile deal, flawed and, inevitably, I think will cause huge conflict in the running of the hospital. It’s been said that the nuns are not going to run the hospital, that’s absolutely correct. They’re not going to run the hospital and I have never suggested that they would run the hospital but they own the hospital, they own the company that runs it and they’ve undue representation on the board.”
Kenny: “So you’ve resigned with immediate effect.”
Boylan: “With immediate effect. I can’t remain a member of a board which is so blind to the consequences of its decision to transfer sole ownership of the hospital to the Religious Sisters of Charity and so deaf to the concerns of the public which it serves.”
Kenny: “You have reiterated in your letter of resignation a number of the issues that you’ve been talking about this past couple of weeks. Remind us of what they are.”
Boylan: “Well, as I said, the hospital will be on land owned by the Religious Sisters of Charity, it’ll be 100% owned by the Religious Sisters of Charity. The company tasked with running the hospital will be owned outright by the Sisters of Charity. And to believe that… any hospital that is built on land, owned by the Catholic Church, is obliged to follow Catholic teaching and canon law, medical practices and procedures. And that was clarified by Bishop Kevin Doran and also confirmed by Vincent Twomey last weekend.”
Kenny: “But didn’t one of your successors in the job of master, Declan Keane, I think, said he had performed, I think it was, a sterilisation in his private practice in St Vincent’s.”
Boylan: “No, he performed two, not in his private practice, but some women with very complicated pregnancies where the placenta, the afterbirth, is invading the uterus, will need to have a hysterectomy but sometimes you can preserve the uterus and in those circumstances the reasonable thing and what the women would wish, usually, is that they have a sterilisation…”
Kenny: “But if you could do that in St Vincent’s, does that not suggest that they…”
Boylan: “Well, he had to get permission to do that whereas…”
Kenny: “He had to ask for permission?”
Boylan: “Yes, as a matter of courtesy, from the clinical director of the hospital. So, in the National Maternity Hospital and in hospitals without religious influence, you just do it, it’s a matter between the patient and the doctor herself, as it should be.”
Clinical Director of the National Maternity Hospital Holles Street Professor Declan Keane speaking to Brian Dobson on RTE’s Six One last night
On RTÉ’s Six One.
Clinical Director of the National Maternity Hospital Holles Street, and a former master of the hospital, Professor Declan Keane spoke to Brian Dobson about the new National Maternity Hospital.
During the interview, Prof Keane mentioned that, during his seven and a half years working at St Vincent’s Hospital, he carried out two sterilisations.
Asked if he had to get clearance from someone above him to carry out these procedures, he replied, ‘Out of courtesy, I did discuss it with the medical director at the time’.
In addition, they also spoke about the memorandum of understanding between Holles Street and St Vincent’s in regards to the new hospital. This has not been published even though it’s been a week since The Irish Times reported that the Sisters of Charity will be sole owners of the new hospital.
Prof Keane said he believed the MOU would be published soon.
Meanwhile, this afternoon, The Irish Times is reporting:
[Health Minister Simon] Harris said while there is an agreement drawn up between the National Maternity Hospital and the St Vincent’s Health Group, over the next month, a contract between St Vincent’s and the State still needs to be written up and agreed to.
Readers should note that just after the Six One interview was finished, Minister Harris published mediator Kieran Mulvey’s report on the agreement between Holles St and St. Vincent’s. Legal Coffee Drinker’s thoughts on this report can be read here.
From Six One…
Brian Dobson: “We’re joined here in studio by Professor Declan Keane who is the clinical director of Holles Street Maternity Hospital, a former master of the hospital and a member also of the executive board. Thanks very much, Professor Keane for joining us on the programme. Before we come to the issues which are still being hotly debated on all of this, can I ask you about the situation in relation to Peter Boylan, a former master, a colleague of yours. He spoke out against the agreement that was published at the end of last year. Now, it turns out, he’s been asked by the master, the current master [Rhona Mahony] and by the deputy chair [Nicholas Kearns] of the board to resign. Is that a call that’s supported by all the board members?”
Declan Keane: “Well, the board hasn’t met since that decision was made, it was taken by the deputy chair and the master, following text messages that were sent between Dr Boylan and the chair and the master on Sunday.”
Dobson: “Right. So there was no consultation with, for example, yourself. You weren’t asked whether you would support this?”
Keane: “No, I wasn’t.”
Dobson: “Should the board members have been canvassed in relation to this?”
Keane: “I think that’s something we will be discussing as a board tomorrow [today]. We will be meeting as a board to discuss that issue, amongst others.”
Dobson: “Were you satisfied that there was something within the authority of the deputy chair and the master to do off their own bat?”
Keane: “I think Dr Boylan probably sent some texts to the deputy chair on Sunday that made it very difficult for the deputy chair and the master to continue. I think it’s regrettable, I have great respect for Dr Peter Boylan as a clinician and as a colleague. But, you know, when he publicly goes against the consensus of the National Maternity Hospital, I could see the difficult position it put the chairman in.”
Dobson: “So, you support the call, do you? That he should go?”
Keane: “I think I probably would have liked more consultation on it but, as I say, and this will be discussed at greater detail when we meet as a board tomorrow.”
Dobson: “You see, I suppose, there’s a sense that he’s been got at because he’s spoken out. I mean he obviously has very sincerely held views in relation to all of this and people feel, perhaps, he should be entitled to be able to air those views.”
Keane: “I think Dr Boylan is entitled to share his views. I personally think, on this issue he’s wrong, which I think we’re going to talk about. But, as I say, and, as I say, I think it probably is regrettable that he’s been asked to resign at this point in time. But, as I say, we will be talking about this tomorrow.”
Dobson: “Ok. The central issue here is that, I suppose, the control, the governance of this new proposed hospital. And a lot of the concern arises because we’ve discovered, only in recent times, that the hospital will be owned by the St Vincent’s Healthcare Group, by the Sisters of Charity. A lot of people are scratching their heads about how that situation has arisen and what it might mean for the way the hospital operates.”
Keane: “Well, I mean, Brian, as you probably know, I mean, there was a lot of controversy last year about the clinical governance of how this new hospital is going to run. And I think there is a lot of us who’ve been involved in these discussions since 1998 who were fighting for the best deal possible for the National Maternity Hospital. Indeed, Vincent’s themselves had their own views on the matter and I think what we’ve come to, like a lot of things in life is a compromise that’s going to, that’s satisfying both sides. I have absolutely no doubt, as somebody who is also on the clinical staff at St Vincent’s Hospital that the current deal that we have is going to give us the clinical and financial autonomy that we were seeking. It also retains the mastership system which I think was critical for those of us who work in the national maternity hospital. And I’ve absolutely no doubt that the nuns will not interfere with the clinical workings in the new National Maternity Hospital on the Vincent’s site.”
Dobson: “So you would operate in both hospitals…”
Keane: “I do.”
Dobson: “And carry out the same procedures in both hospitals?”
Dobson: “Under exactly the same regime?”
Keane: “Well, I work in St Vincent’s Hospital and have done for over seven and a half years. And I have never had any of my gynaecological practice questioned or altered by the nuns or the board in St Vincent’s.”
Dobson: “So you’ve carried out, for example, sterilisations have you? On patients in St Vincent’s?”
Keane: “I have carried out two sterilisations on patients in St Vincent’s Hospital.”
Dobson: “And do they have to be cleared? At a level above yourself?”
Keane: “Out of courtesy, I did discuss it with the medical director at the time.”
Dobson: “And you got permission, or you normally would get permission from the medical director of the hospital?”
Dobson: Is that what applies in Holles Street? In the National Maternity Hospital? The same rules?”
Keane: “In the National Maternity Hospital, if we wish to sterilise somebody that is a decision that’s taken between the consultant and the patient.”
Dobson: “Entirely between you and your patient? The privacy of that relationship.”
Keane: “It is and that’s something Brian that we would see continuing when we move onto the new National Maternity Hospital in St Vincent’s?”
Dobson: “And is that clearly spelt out in memorandum of understanding, the terms of the agreement because, of course, that hasn’t been published. We’ve had bits of it released but we haven’t been able to see it in its totality.”
Keane: “Yeah, the memorandum of understanding, we will be able to continue doing all of the clinical work that we do in the National Maternity Hospital currently on the new site and that would include issues such as IVF, sterilisations, gender realignment surgery, all of that.”
Dobson: “You see it’s going to be a Catholic hospital, or at least, a Catholic-owned hospital and the Bishop of Elphin Kevin Doran has been saying, just in recent times, that a healthcare organisation bearing the name Catholic, while offering care to all who need it, has a special responsibility to Catholic teaching.”
Keane: “I think St Vincent’s themselves have come out with a statement, just before we’ve gone on air, that has said the new hospital will not be under any religious or ethnic authority and I’ve absolutely no doubt that that will be the case.”
Dobson: “Well, they say, they do say that in relation to all the medical procedures that are in accordance with the laws of the Republic of Ireland will be carried out in the new hospital, that’s their statement.”
Keane: “And that is exactly how we practice in the National Maternity Hospital currently.”
Dobson: “They’re not quoting, or it seems they’re not quoting from the memorandum of understanding. I mean they’re not actually pointing to a particular part of the memorandum of understanding which gives that guarantee.”
Keane: “Yeah, but, you know.”
Dobson: “Can you cite the memorandum in that regard?”
Keane: “No, I mean, I don’t have the memorandum in front of me but I do know, as I say, from the negotiations that we’ve had with St Vincent’s Hospital, really since, you know, over the last two or three years, that we have got to a point where the agreement that has been reached is that we would be allowed to practice with full clinical autonomy on the site.”
Dobson: “I suppose, you know, it’s fair enough that you would have that confidence and you wold have that understanding but, for the wider public, to share that, they’re going to see more firmer evidence. Are they not?”
Keane: “But Brian, I don’t think we would be moving onto a new campus if we didn’t have that clinical autonomy. I mean if we didn’t have it, I think we would stay put on the National Maternity Hospital as it currently stands even though it’s a building that’s not fit for purpose. We’ve always thought that the most important thing that we will have is clinical autonomy and I’ve heard nothing from St Vincent’s Hospital today that would disagree with that.”
Dobson: “But, for example, when they say the procedures, you know, which are within the law of the Republic of Ireland will be carried out, does that include now and in the future? For example, if there were to be changes in the law on abortion would those services be available in the National Maternity Hospital, as it’s envisaged?”
Keane: “Absolutely, absolutely.”
Dobson: “And where in the memorandum of understanding is that clearly spelled out?”
Keane: “Well, it’s an agreement that has been reached between ourselves and St Vincent’s. It has been overseen by lawyers on both sides. As I say, I’ve no doubt that the actual memorandum will be released, you know, quite soon.”
Dobson: “So, it’s more than an act of trust, if you like? On your part?”
Keane: “Very much more than an act of trust.”
Dobson: “And the memorandum, when it is published and released, will be able to show that?”
Keane: “I’m convinced it will be.”
Dobson: “And the concerns of Peter Boylan are unfounded?”
Keane: “I believe they are and I mean I’m saying that as somebody who works in both institutions.”
Dobson: “Well, there we leave it, Declan Keane, thank you very much for talking to us.”
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?”
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.”