Why plan to hand over ownership of new national maternity hospital is unworkable

May 9, 2017

This comment piece by Róisín Shortall TD was published in the print edition of The Irish Independent on 9th May 2017. The full text of the piece is reproduced below.

Comment by Róisín Shortall in Irish Independent 9 May 2017

After weeks of controversy and a Dáil debate, we are still no clearer to finding out exactly why the Government is determined to spend €300 million of public money on a new National Maternity Hospital which will be handed over entirely to the St Vincent’s University Hospital Group, a private interest which happens to be owned and controlled by the Sisters of Charity.

The report on the hospital deal which was brokered by Kieran Mulvey last November runs to 25 pages.  The Minister for Health Simon Harris says it contains the full terms of what has been agreed.  If that is true, then there is a lot here for us to be worried about.

St Vincent’s has a triple-lock on ownership

It has been claimed that various safeguards and mechanisms in the document give the new hospital a “triple-lock” on its independence. But what I see is a “triple-lock” on St Vincent’s ownership of what should be our new hospital:

1) St Vincent’s will own the site and the new building on it;

2) St Vincent’s will also 100 per cent own the new company;

3) St Vincent’s will effectively control the board of the new company.

It’s worth noting that the word “lease” does not appear in Kieran Mulvey’s document.  The idea is being put about now in response to controversy. But no-one should think that getting a long-term lease at Elm Park for the new hospital will solve the problem. All the other elements of St Vincent’s ownership have to be dismantled as well.

The new company will be a St Vincent’s company

The new company is to be “The National Maternity Hospital at Elm Park DAC (Designated Activity Company).”  This will be 100 per cent owned by St Vincent’s Hospital Group, and the Minister has still not explained why this should be so.  Mr Mulvey’s report does not say either, nor does it state whether any other structure was discussed.  My own view is that there is no reason for St Vincent’s or the Sisters of Charity to own any part of our new national maternity hospital.  Holles Street has said it already has efficient working arrangements with St Vincent’s, including co-ordinated patient transfers when they are needed.  Why not just replicate those protocols on the Elm Park campus?

The board will not be independent

The new company will have nine directors, four nominated by Holles Street trustees and four by St Vincent’s.  There will also be a ninth director, and a footnote in the Mulvey report reveals that the ninth person will be selected by a panel of three people, two of whom will be from St Vincent’s.  In other words, St Vincent’s will be able to decide who gets the ninth seat on the new board.  This gives St Vincent’s an effective majority (five out of 9 directors) on the new board.

The report says this ninth director will have to be “an independent international expert in Obstetrics and Gynaecology”, which suggests a global expert flying in to make sure that all is well.  But on RTÉ radio recently the deputy chairman of the Holles Street board, Nicholas Kearns told Sean O’Rourke that the expert did not have to be someone from overseas – it just had to be someone who is “recognised internationally”.  For all we know, that could mean someone who used to work at St Vincent’s.  The report does not say how “independent” the new person has to be.

It has been widely reported that this international expert in gynaecology would be the chairperson of the new company.  The report says something else.  It says the position of chairperson of the new company will be occupied on a rotational basis, and for the first three years it is to be held by one of the directors who has come from Holles Street. Presumably the “rotation” idea involves St Vincent’s occupying the chair for the following three years.  If that is the plan, then it would not be possible for the “independent international expert” to ever be the chairperson.  I am concerned about this discrepancy and it needs to be explained.

Reserved Powers and the useless “Golden Share”

The report says the new company will have “Reserved Powers” which will protect its clinical and operational independence.   The very fact that it was deemed necessary to draw up a long list of what the new company should be allowed to do proves that there is trouble coming down the tracks.  Everyone involved knows that there will be a big conflict on the new board, but no one has found a way to prevent it, or to resolve it when it happens.

It has been claimed that the Minister will have a “Golden Share” to protect the Reserved Powers” from being changed.  But the Minister’s veto can only work if the board unanimously agrees to amend those Reserved Powers.  If there is no proposal to amend them, the Minister has no “Golden Share”.  I think this is very important.  We all know how things work in real life.  There could be an effort to get around the Reserved Powers, or re-interpret  them, without anyone ever proposing to amend them.  In those circumstances the Minister has no “Golden share”.

If you need proof that this is likely to happen, it is predicted on page 13 of the report, where it says either group of directors on the new board will be able to go to the Minister “on any matter on which they may feel aggrieved in relation to the exercise or any limitation of these ‘Reserved Powers’.”  The report actually foresees this falling out among the directors.  And what can the Minister do when this occurs?  He will be unable to do anything, if there has been no formal proposal to change the powers. All he can offer the aggrieved directors is tea and sympathy.

Governance by diagram

I am concerned that there is really very little in the report on governance of the Elm Park campus if the new deal happens.  Most of the governance is explained by a diagram, which appears to divide the Vincent’s group into four clinical units, and it shows that the Master of Holles Street will be the head of one of the four units.  It appears that the Master will have to report upstairs, to the clinical director, and to the chief executive, and to the main board, just like the heads of the other units.  There is no detail in the report on how any of this works.

Constitutional protection for the religious orders

As I have mentioned before, the religious orders have a special place in our Constitution.  Under Article 44, a religious order can control what it owns, including institutions set up for religious or charitable purposes.  When the Supreme Court has been asked to interpret this part of the Constitution in the past, it has always supported the right of the religious order to protect its own ethos.  In the future, when we get the boardroom conflict predicted in the Mulvey report, it will end up in the courts and ultimately in the Supreme Court. We know that when it comes down to it, and the ethos of Elm Park is being decided, the Constitution will have to prevail, and the Sisters of Charity will have to win.

The Minister for Health has asked for a month to give him a chance to get to grips with the crisis facing him.  He doesn’t need a month.  If he takes ten minutes to read the report, he should realise that the whole thing is unworkable.

If the citizens of Ireland are to spend €300 million or more on a new National Maternity Hospital, they should own it.  Let’s start from there.