Independence over provision of NMH services is ‘clear-cut’ – lawyer

Legal provisions indicating that the new National Maternity Hospital (NMH) will provide "all clinically appropriate and legally permissible" healthcare services are "pretty clear-cut", a medical negligence solicitor has said.

Ciara McPhillips, a partner in Michael Boylan Litigation Law Firm, told The Irish Times that "as a legal practitioner, I would not have the grave concerns that seem to be out there that the term 'clinically appropriate' is vague".

“I’m a woman of child-bearing age and I’d have no hesitation going to the new National Maternity Hospital,” she said.

When women ask her for legal advice about suspected medical negligence, Ms McPhillips said she seeks expert opinion from the relevant peers, usually consultant obstetricians and gynaecologists.

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“They consider what is good and standard practice and what is legally permissible, and are mindful of the relevant professional guidelines,” she said.

“If a scenario ever arose where a woman did not get the best possible care because of fears of backseat driving by a religious organisation, that would be a clear act of negligence.”

It is legally permissible, for example, to do terminations of pregnancy in specified circumstances, she said.

“If a woman has been given the relevant information and consents to that procedure, it’s hard to see how that would not be carried out or how anyone could prevent it.”

Legal documents have to be looked at holistically and in the context of legislative intent, Ms McPhillips said.

Minister for Health Stephen Donnelly’s statement that he could give a “100 per cent” guarantee that sterilisations and terminations will be available in the new hospital was “very clear”, she said, and could be relied on in legal proceedings as evidence of the Government’s intentions concerning the hospital.

‘No hesitations’

While saying she is mindful of the past influence of religious institutions on woman’s reproductive healthcare in Ireland, Ms McPhillips believed there should be no doubt in any woman’s mind about getting the best care should they go there.

“I would not be going to the hospital with any hesitations, I would expect to get all clinically appropriate care and treatment which is legally permissible and in line with my informed consent,” she said.

Ernest Cantillon, managing partner in Cantillons Solicitors specialising in medical negligence litigation, said he had regard for concerns expressed by former NMH master Peter Boylan about control of the new hospital.

However, he considered those to be more about a “point of principle” and said he expected there would be no practical impact on the services available.

“I think people will be able to get abortions and sterilisations and the concerns won’t translate into a practical problem,” he said.

A senior legal source with some expertise in canon law said it has no relevance in relation to the NMH relocation.

In many instances, when religious orders were running out of recruits and divesting themselves of property, they had obligations under civil law as trustees and under canon law as members of religious congregations, he said.

The orders often set up a public juridic person, effectively a corporation in canon law answerable to either the local bishop, the episcopal conference and, in some instances when property was particularly valuable, to the Vatican, he said. That meant the religious order would need the permission of the relevant entity in relation to a proposed divestment of property.

A former master of the NMH, Rhona O’Mahony, has stated the Sisters of Charity never set up a public juridic person in relation to the relocation deal which would give any canon law entitlement, he said.

“That is quite unusual as it’s often done but the effect of that is there are no canonical implications at all.”

The source said the legal documents make clear the new hospital company will be established under Irish law.

Asked about concerns whether all legal healthcare services will be available, he said he considered it relevant that clinicians working in the NMH are supportive of the move.

Nine directors

The core legal document concerning the new hospital company, its constitution, provides the principal object for which the company is established is “the promotion of health, in particular by the provision of all clinically appropriate and legally permissible healthcare services, including research, by a maternity, gynaecology, obstetrics and neonatal hospital, and a range of related health services in the community”, he noted.

It is relevant that the constitution provides those services “shall” be carried out “without religious ethos or ethnic or other distinction”, he said. For legal purposes, “shall” is mandatory.

“That is about as clear as you could get that this is to be a secular enterprise,” he added.

The new hospital company will have nine directors, three nominated by the current NMH, three by St Vincent’s Hospital Group and three independent members nominated by the Minister for Health following a public process.

“The quorum is five, as one would expect, and there is no weighting of entitlements for any set of directors,” the source said.

The constitution provides for the Minister to hold a “golden share” to ensure the directors’ obligations are complied with and that any maternity, gynaecological, obstetrics and/or neonatal services which are lawfully available in the State shall be available in the new NMH. Other provisions stipulate the reserved powers cannot be amended without the prior written consent of the Minister.

Addressing other concerns about the hospital site being subject to a 299-year lease rather than owned outright by the State, the source said there is nothing unusual in the “standard” lease provision and many properties around Dublin are held on a similar basis. Pursuing a compulsory purchase order for the site could take years, he added.