Widow of Malak Thawley fails in legal bid over death inquiry

A man whose pregnant wife died during surgery has lost his bid to be joined as a notice party to proceedings by the National Maternity Hospital aimed at halting a further inquiry over her death.

Mr Justice Michael McGrath ruled Alan Thawley did not meet the legal test to be joined as a notice party.

He had not shown the proceedings would directly affect him or established “exceptional” circumstances required he be joined as a notice party against the wishes of the hospital, he held.

For those reasons, and “not without some hesitation”, he was refusing the application.

The case arises from the death of Malak Thawley (34) on May 8th, 2016. A teacher and a US citizen, she died during surgery for an ectopic pregnancy.

Her husband sought to be joined as a notice party to the hospital’s action against the Minister for Health and Children seeking to prevent a statutory inquiry by the Health Information and Quality Authority (Hiqa) arising out of her death.

The hospital says there has already been its own inquiry, a review of that inquiry and an inquest. It also noted Mr Thawley took civil proceedings which were settled last January.

In opposing the statutory inquiry, the hospital argues it will be extremely disruptive and have a “chilling effect” on the operation of maternity services.

It says the Minister ordered the inquiry on grounds including the practice of surgery outside of core hours, the seniority of staff on site out of hours, and the readiness to respond to major emergencies. These are not grounds for a statutory inquiry, it maintains.

Flawed

In seeking to be joined as notice party, Mr Thawley said he has a direct interest in the outcome of the hospital’s challenge as he wanted an independent inquiry to find out precisely what happened to his wife and why .

The hospital’s inquiry, he claimed, was internal, fundamentally flawed and lacking in impartiality.

He also advanced several other grounds.

In opposing the Hiqa inquiry, the hospital says its own investigation was robust, throrough and peer-reviewed by an independent vascular surgeon and overseas gynaecologist.

It opposed Mr Thawley being a notice party for reasons including its claims that would elongate the proceedings, re-litigate matters, increase costs and cause him additional distress.

In his ruling on Wednesday , Mr Justice McGrath said this was a judicial review and not a private action for damages.

He said the hospital conceded Mr Thawley is the person most directly affected by his wife’s death but that in itself did not meet the legal test to be joined as a notice party.

Mr Thawley had argued he was directly affected because he had still not found out why his wife died but the expression of such “heartfelt and genuine” desires to know what happened did not meet the legal test to be joined as a notice party, he said.

Mr Thawley had not met that test in that he had shown he was directly affected by the proceedings and nor were his legal rights affected.

The judge also rejected arguments Mr Thawley should be joined due to concerns his reputation was affected because he was being “blamed” for the Minister having directed the Hiqa inquiry.

If that amounted to a claim the Minister took into account irrelevant considerations arising from Mr Thawley and his advisers seeking an inquiry, they were doing no more than their democratic entitlement and it not could be said Mr Thawley’s reputation was impugned, the judge said.

Any such claim also amounted to a claim the Minister was wrongly influenced and not that Mr Thawley wrongly influenced the Minister, he added.