Hospital seeks to halt inquiry in Malak Thawley’s death

The National Maternity Hospital (NMH) will apply on Friday for an injunction halting an inquiry into patient safety issues, ordered after the death of a woman during surgery for an ectopic pregnancy.

The hospital wants the injunction to apply until its High Court challenge over the form of inquiry has been decided. The proposed inquiry arose from the death of Malak Thawley (34) at the NMH on May 8th, 2016.

The hospital secured permission last January to challenge the Minister for Health’s decision to order the Health Information and Quality Authority (Hiqa) to carry out a statutory investigation into patient safety issues, including the practise of surgery outside core hours and the readiness of hospitals to respond to major emergencies in such circumstances.

Ms Thawley’s widower, Alan Thawley, recently settled, on terms including compensatory damages, his action against the NMH over her death. The court also heard a doctor who carried out the surgery was an inexperienced junior surgeon and was not supervised.

Injunction proceedings

On Monday, when the NMH’s judicial review proceedings returned before Mr Justice Seamus Noonan, he granted the hospital permission to serve short notice of its injunction proceedings. If granted, the injunction will prevent the inquiry proceeding until the judicial review has been determined.

Imogen McGrath, for the hospital, said it had been hoped the fact the NMH got leave for judicial review would lead to the Minister and Hiqa putting the inquiry on hold. Despite correspondence between the parties, no such undertakings had been given by the Minister and Hiqa, she said.

Hiqa had also published on its website the terms of reference, and a guidance document, in relation to the inquiry, indicating the process was going ahead.

In the circumstances, the hospital required an injunction preventing further steps in the inquiry as otherwise the NMH’s proceedings would be pointless, she said. Mr Justice Noonan fixed the injunction hearing for Friday.

Judicial review

In its judicial review, the NMH claims the Minister acted outside his powers in ordering a new inquiry when three other reports into the death of Ms Thawley had already taken place – by the hospital, the HSE and a coroner’s report.

The hospital’s review resulted in changes to ensure no recurrence of the Thawley tragedy and they were backed by the HSE, the coroner and Hiqa, the hospital says.

The Minister had fettered his discretion by telling Mr Thawley, whatever about the HSE report, that he would still order an inquiry into the matter, it claims. This effectively gave a third party discretion as to whether an investigation would be ordered.

A statutory inquiry must be on foot of a specific concern but the Minister irrationally implied it was because the provision of all hospital services outside core hours was unsafe, the NMH says.

Challenging environment

In an affidavit, NMH master Rhona Mahony said the new investigation, under section 9(2) of the Health Act 2007, will have a chilling effect on the ability of clinicians to deliver high risk and emergency care in an already challenging environment, both at the NMH and nationally.

Instead of the proposed inquiry, the NMH has suggested an independent expert body such as the Royal College of Obstetrics and Gynaecology in the UK be appointed to conduct a further investigation.