Dr Peter Boylan: The RTÉ Investigates programme reminds us of the issues facing the State-funded National Maternity Hospital

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A private charity with Catholic values should not be given ownership of a State-funded maternity hospital, writes Dr Peter Boylan.

THE INVOLVEMENT OF the Religious Sisters of Charity in illegal private adoptions, where children’s birth certificates were falsified, identities concealed, and dates of birth changed was starkly revealed in this week’s powerful RTÉ Investigates programme.

While the Sisters of Charity’s original mission in Ireland was caring for the sick with the foundation of St Vincent’s Hospital by the admirable Mother Mary Aikenhead in 1834, their legacy has been tainted by their role in the Magdalene Laundries, illegal adoptions and, more recently, the sudden closure of their Dublin nursing and care homes, to the distress of long-term residents.

Given this history, and the obvious requirement that their hospitals must and do adhere to Catholic ethos, it was beyond comprehension that in 2016 the boards of the National Maternity Hospital (NMH) and St Vincent’s Healthcare Group (SVHG) agreed to a deal brokered by Kieran Mulvey that the Sisters would own 100% of the relocated National Maternity Hospital, a project likely to cost in excess of €500 million of public money.

In April 2017, details of the deal came into the public domain and sparked widespread public and political fury and dismay.

In response, the Sisters announced in May 2017 their intention to withdraw from SVHG and set up a private charity called St Vincent’s Holdings to take over their shareholding. The congregational leader, Sister Mary Christian announced that “upon completion of this proposed transaction, the requirement set out in the SVHG Constitution to conduct and maintain the SVHG facilities in accordance with [our]… Ethical Code will be amended and replaced…”. If this promise were to be carried through, Catholic ethos would no longer dictate medical practice at SVHG.

Unfortunately, we learned three years later in August 2020 that this promise was not fulfilled. In the Constitution of St Vincent’s Holdings lodged with the Companies Registration Office, the ‘core values’ stated are identical to those of SVHG today.

The hospitals are governed by the Order’s 2010 ‘Health Service Philosophy and Ethical Code’ and do not provide contraception, sterilisation, IVF, abortion and other procedures, legal in Ireland but prohibited by Catholic teaching. The Sisters’ new company St Vincent’s Holdings is obliged to uphold this ethos in the future. Previous assurances to the contrary are worthless.

The role of the State in the new hospital 

There is a second major issue in play: why should a private charity own the publicly-funded new NMH? Taoiseach Leo Varadkar told the Dáil in November 2019 that the new maternity hospital (and the planned new Rotunda and Coombe hospitals) would be “State-owned buildings on State-owned land”.

And therein lies one of the major problems holding up the project. SVHG owns the land at Elm Park in Dublin 4. Back in May 2017, chairman James Menton said that the argument that because the State was building the new hospital it should own it, was “inaccurate” and “facile”, particularly since St Vincent’s was providing a site worth “tens of millions of euro”. St Vincent’s needed to have full ownership of the National Maternity Hospital in order to ensure that clinical and corporate governance on its campus was integrated. SVHG refuse to budge on this issue.

So approaching four years after the public furore, what exactly is going on behind the scenes between the Vatican, the Sisters of Charity, St Vincent’s, the Department of Health and the HSE in relation to the new NMH?

As of today, no legal agreement has been reached that the State will own the hospital building or the land on which it is built, despite documents first being exchanged in October 2018.

In a legal briefing provided to NMH governors (of whom I am one) at the 2020 AGM, we were told that there was “complexity” in the legal documents, and that the NMH relocation “is not a regular deal, therefore documents will not be regular…” and there will be “a plethora of different structures and ownerships” in respect of the new hospital. This is not consistent with the repeated assertion that it will be a State-owned building on State land.

The Sisters of Charity, like all Catholic congregations, operate in both the canon and civil law domains. As a result, they are caught in an extraordinary impasse. In order to proceed, they first had to get Vatican permission. In March 2020 conditional permission was granted subject to the observation of five specified Canon Laws. Canon 1293 is particularly relevant. requiring the Sisters of Charity to have “a just cause, such as urgent necessity, evident advantage, piety, charity, or some other grave pastoral reason” to make the transfer. “Harm to the Church” must be avoided.

The problem now facing the Sisters is how to effect a transfer that ends 187 years of Catholic healthcare ministry to facilitate a hospital which will perform abortions and other procedures forbidden by Catholic teaching. Where is the “just cause” and what is the potential for such approval to cause huge “harm to the church” in the eyes of the faithful?

Archbishop Eamon Martin stated last May that “regardless of the eventual outcome of the proposed transfer, the church will remain clear in its public statements that there is no place in a maternity hospital for abortion”.

On the other side of the transaction, because SVHG is a Section 38 Voluntary Hospital, the HSE must also give their permission. Apart from the NMH, the transfer raises a wider issue of huge significance for the future of healthcare in Ireland. It is in fact the first major test of the State’s commitment to the implementation of Sláintecare.

The consequence of the shareholding transfer will be to immediately vest control and ownership of three major hospitals in St Vincent’s Holdings: St Vincent’s University Hospital, St Vincent’s Private Hospital, and St Michael’s Hospital. The directors will be the “de facto shareholders” of SVHG and, as matters stand, the relocated NMH. The Sisters have appointed three current directors of SVHG as interim directors until August 2021. They will select their successors.

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Clause 5.11 of St Vincent’s Holdings’ Constitution gives the directors the power to “acquire, hold, sell, manage, lease, mortgage, or dispose of all or any part of the property of the Company…” including, obviously, the new NMH.

This is a matter of grave concern given that SVHG mortgaged the public hospital in 2010 to build the new private hospital without the consent of the HSE. As a consequence Bank of Ireland now has a fixed charge over the entire St Vincent’s Hospital site and a floating charge over all the undertakings, property and assets of SVHG “both present and future”, including therefore a relocated NMH. According to the 2019 SVHG Annual report, the Private Hospital has outstanding loans of around €150 million.

The Sisters propose to transfer their shareholding for the peppercorn sum of €1. But SVHG was valued at €661 million in 2018 and the State has invested huge sums in the infrastructure of SVHG over the past fifty years since the development of Elm Park, and funds the operation of the hospitals.

Given the extent of the State’s contribution to building up the assets of SVHG, it would surely be more appropriate for the Sisters of Charity to transfer their shareholding in SVHG to the State rather than to St Vincent’s Holdings.

Since the Sisters of Charity are planning to transfer their shareholding for €1, there would be no expense to the State and no loss to the Sisters. The issue of Catholic ethos would be resolved.

If this proves impossible to achieve, sadly the NMH project may have to go back to the drawing board in the interests of the safe care of women and their infants.

Dr Peter Boylan FRCOG, FRCPI is a former Master of the National Maternity Hospital and former Chair of the Institute of Obstetricians and Gynaecologists. He was appointed by the Minister for Health to advise the HSE on the implementation of the Termination of Pregnancy Service in 2019. He was an expert witness at the inquest of Savita Halappanavar in 2013, and an expert witness for the family of Miss P in HSE v PP in 2015. He is the author of In the Shadow of the Eighth: My Forty Years Working for Women’s Healthcare in Ireland (Penguin, 2018) and, with Dr Jennifer Walsh, The Irish Pregnancy Book (6th edition, O’Brien Press, 2020).

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