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
Social Democrats
Leinster House
Dublin 2

State funds and private healthcare groups (The Irish Times letters page)