Legal documents on services at new NMH are ‘vague’, barrister says

Legal documents concerning the services to be provided by the proposed new National Maternity Hospital contain "undefined" and "vague" language, according to a senior barrister.

In a preliminary review of the documents released by the Minister for Health Stephen Donnelly, senior counsel Stephen Dodd said the inclusion of language relating to "permitted use" of the hospital, and specifically stating that "all clinically appropriate and legally permissible healthcare services" will be provided, is "vague and generic."

The use of the term “appropriate” in relation to services raises the question of “appropriate” according to whom, he said.

The text should instead use the words “all clinically appropriate services as determined by the HSE”, he suggested.

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The phrase “clinically appropriate and legally permissible healthcare services” is itself not defined and would appear to implicitly include ethical considerations which could extend to matters of religious ethos, the barrister said.

The text should include language such as “for the avoidance of doubt, clinically appropriate and legally permissible healthcare services may include the termination of pregnancy, sterilisation, etc”, he said.

In his preliminary legal analysis, first provided last November and reissued on Tuesday by the campaign group Uplift, the barrister said he was "surprised..that it would appear that the State and HSE will not own the building itself".

“The reality is that Minister Donnelly is proceeding with the NMH deal without owning the lands and it would also appear not owning the hospital building itself, and is thereby acting contrary to the recommendations of the Independent Review Group, “ Mr Dodd said.

Siobhan O’Donoghue, of Uplift, said: “Government ministers have a choice in front of them, continue with the shameful legacy of denying women and people the maternity care we all need and deserve or pushing ahead with a deal that clearly puts control in the hands of a private company we have little or no control over.”

Former master of the NMH Dr Peter Boylan said: "The only way to guarantee women's reproductive healthcare in the new hospital and protect the State's €1 billion investment is for the NMH to be completely independent of St Vincent's is if it is State-owned on State land."

Influence

HSE board member, Fergus Finlay, said religion has no role “whatsoever” in the new NMH and he fully supports, and is “proud of” the proposed hospital deal.

There are "simply no circumstances" under which he would support the development of a new NMH influenced by anything other than the public interest and the interests of women, or run on the basis of a religious ethos or any form of discrimination, Mr Finlay said in his column in the Examiner newspaper.

Mr Finlay said the HSE board’s audit and risk committee, of which he is a member, devoted much time over months to analysing the “huge set” of documents giving legal underpinning to the project, working with senior management colleagues and with legal advice.

The committee was satisfied the new hospital will be the national State owned hospital, built and funded by the State, owned by the State on a leasehold basis for the next 299 years, he said. While the State will not own the land on which the hospital is built, there will be a 299 year lease at an annual rent of €10 which can only be increased if the HSE tries to use the site for any purpose other than healthcare.

The hospital will be a charity, regulated under charity law and managed by a board of trustees, he said. Nobody will have a controlling interest but the Minister for Health will have a “golden share” to protect “the core values” of the hospital.

"What role will religion play? None whatsoever," he said. "The Sisters of Charity have left healthcare in Ireland, their shareholding in St Vincent's has been transferred to another charity regulated by law, not a private company as some allege. The constitution of that charity makes no reference whatever to religious ethos."

All obstetric, neonatal, and gynaecological care permissible within Irish law is available now at the NMH at Holles Street, including abortion, tubal ligation, gender affirming surgery, and assisted reproduction, and all of those will continue in the new hospital.

“I honestly believe that we have put the best protections we can in place for a truly national maternity hospital that will never discriminate nor ever be controlled by any religious influence. I can’t wait for it to be built.

Patrick McCann, deputy chair of the new NMH board, told RTÉ’s Morning Ireland the constitution of the new hospital provides that procedures that are legally permissible and clinically appropriate will be carried out.

Clinically appropriate means all procedures related to women’s healthcare and legally permissible includes all that is legally permissible now and in the future, he said. Rejected claims that a Catholic ethos underpins the constitution, he said the new NMH is “clearly secular” and clinically independent of St Vincent’s.