After an unedifying week marked by an unrelenting stream of propaganda following the unexpected deferral of the Cabinet decision, yesterday’s poll in the Sunday Independent shows that the plurality of respondents (excluding ‘uncertains’), 45 per cent, believe there will be religious interference in the new hospital.
Predictably, the role of offshore intermediaries, Stembridge Ltd and Porema Ltd, in St Vincent’s Holdings received scant attention, despite the association of these companies with over 200,000 offshore entities named in the Panama Papers. Documents released by the HSE earlier this week bear out the global ambitions of St Vincent’s Healthcare Group. Under the constitution of the National Maternity Hospital at Elm Park, Dublin 4, the company is empowered to carry on its business in “any part of the world”.
The government has finally published what purports to be “a full set of legal documents” in connection with the State’s proposed investment in the new facility. Missing maps and unattached schedules leave the bundle incomplete. Even more concerning is the omission of documents that define St Vincent’s control over the new facility and enshrine its Catholic ethos.
The public-private mix
The dysfunctional public-private mix in our publicly funded ‘voluntary’ hospitals will deepen if the government signs off on these plans. As many as 40 per cent of Holles St Hospital consultants work in St Vincent’s hospitals. The new maternity hospital incorporates five private-practice suites (in defiance of Sláintecare principles). Consultant obstetricians average €500,000 per annum per head in private obstetric fees alone (not counting private income from gynaecology). St Vincent’s Healthcare Group has a history of being liberal, if not lax, in adhering to public pay guidelines. The Group is unlikely therefore to enforce the existing cap on private practice.
Proposed ownership structure
A large majority of people, 60 per cent, are opposed to the proposed ownership structure for the new facility, as the Sunday Independent poll shows. The National Maternity Hospital at Elm Park is to be a wholly-owned subsidiary of St Vincent’s Healthcare Group. Wholly-owned subsidiaries are wholly-controlled by their parent companies. The new hospital company has two parents: St Vincent’s Healthcare Group is a wholly-owned subsidiary of St Vincent’s Holdings. Both companies are successor bodies to the Religious Sisters of Charity. Their constitutions have been omitted from the ‘legal framework’, for some unfathomable reason.
The lease published last week shows that the nuns’ company, St Vincent’s Healthcare Group, will continue to own the lands and the hospitals vested in it by the congregation. These assets will also be owned by St Vincent’s Holdings. Why St Vincent’s Group needed a second ownership vehicle is unclear. The lease also shows that St Vincent’s Healthcare Group will own the buildings to be built on the land that it owns. The rent, set at €850,000 per annum — abated to €10 for observing six conditions — is being used as a mechanism of control.
Power and control
Not content with being the owner of the land and the landlord to a tenant State, St Vincent’s Group has also defined itself as a member of the National Maternity Hospital at Elm Park, of which it is the 99-per-cent owner. It is also the co-holder of the operating licence. This licence, which is shared opaquely with the new hospital company, further enables the company to control the hospital activities and effectively vitiates the ownership that would otherwise attach to a 299-year lease.
Under the amended constitution of St Vincent’s Healthcare Group, the new maternity hospital company will be just another Vincent’s hospital, to be managed in exactly the same way as Vincent’s existing hospitals. The Group’s powers extend to healthcare policy-making, supervision, determining financial funding, laying down plans, procedures, rules and regulations, discipline, education, patient care, patient records and employing medical staff, including consultants (paras 4.1-4.8).
The golden share
The much-touted golden share of the Minister for Health in the new hospital company grants certain veto rights over decisions in relation to changes in company ownership. However, no golden share can override the 100-per-cent subsidiary-status of the company.
The State’s is unable to compel voluntary hospitals to do anything they are disinclined to do. Holles Street Hospital, for example, won its High Court challenge to Harris (then Minister for Health) preventing him from carrying out an inquiry into the death of Malak Thawley.
Although the Department of Health has claimed that the Minister has the power to ensure that all legally permissible services will be provided in the new facility, Minister Simon Harris, for example, must be painfully aware of the State’s inability to compel voluntary hospitals to do anything they are disinclined to do. Holles Street Hospital, for example, won its High Court challenge to Harris (then Minister for Health) preventing him from carrying out an inquiry into the death of Malak Thawley. She died in 2016 due to what was described as ‘a cascade of negligence’ during routine surgery there for an ectopic pregnancy.
Ethos
Rome set conditions to the transfer of the nuns’ assets into their new vehicle. Communications between the congregation and the Vatican remain undisclosed, with the exception of a letter to the order from Rome setting out these legal terms. One key condition is the avoidance of “harm to Church teaching”.
Despite the oft-repeated claims of ‘independence’, there is “an ongoing chain of connection” between the new holding company and the Religious Sisters of Charity. The directors of St Vincent’s Healthcare Group are clerical appointees. The board nominated three former directors of the Group (also clerical appointees), as directors of St Vincent’s Holdings.
The Main Object of both constitutions ties the patient care to ethical compliance. St Vincent’s hospitals have never provided procedures prohibited by the Church, such as tubal ligation and vasectomy. The constitution of the holding company commits it to continuing the “mission” of Mary Aikenhead, who is named as the founder of the order. Leasing arrangements (para 5.11) and employment terms (para 5.8) may be employed to further the Main Object.
A crucial new phrase, “clinically appropriate”, recurs in the just released documents. Within a Catholic ethos, abortion is considered to be clinically appropriate only when it is necessary to save a mother’s life.
Board members of both St Vincent’s companies are required, legally, to uphold the Aikenhead values. Although the company denies that these values are Catholic, the Aikenhead values are based on the (pro life) philosophy of the Religious Sisters of Charity. Compliance with “national and international guidelines on best practice in medical ethics”, mandatory in both constitutions, must therefore embrace Catholic teaching. A crucial new phrase, “clinically appropriate”, recurs in the just released documents. Within a Catholic ethos, abortion is considered to be clinically appropriate only when it is necessary to save a mother’s life.
Theologians in both Rome and Armagh have evidently satisfied themselves that all of the above will ensure the ethical practice of medicine in St Vincent’s hospitals and enable them, in the event of future courtroom battles, to demonstrate their bona fides as conscious objectors.
Mason Hayes Curran solicitors (for Holles Street Hospital) ask: “can you clarify whether any third party consents/approvals or additional steps are required in advance of the ability of SVHG to grant the lease?”
To what extent the Vatican is supervising the leasing arrangements currently underway is unknown. Lurking in a footnote on page 3 of the Coordination Agreement is a query from Mason Hayes Curran (for Holles Street Hospital): “can you clarify whether any third party consents/approvals or additional steps are required in advance of the ability of SVHG to grant the lease?”. This alone should come with a red flag.
Compliance with the hospitals’ code of ethical conduct is one of the terms laid down contractually by St Vincent’s Healthcare Group for their employees. This has implications for the Holles Street Hospital workforce, given that St Vincent’s Group is set to acquire its “human resources”. Who will be the employer of these staff, and under what terms will they be employed?
The government’s claims
To spend upwards of €1 billion on building a publicly funded hospital, not on a freehold site, but on a leasehold site, makes no legal or commercial sense.
To spend upwards of €1 billion on building a publicly funded hospital, not on a freehold site, but on a leasehold site, makes no legal or commercial sense.
The choreography between the Religious Sisters of Charity and St Vincent’s Healthcare Group has always been impressive. Setting up of St Vincent’s Holdings appears to have been an exercise in manufacturing consent.
The government’s claims to own the new hospital now lie in tatters. The nonsense claim that the State would effectively own the hospital under the terms of the lease has now been overshadowed by the revelation that St Vincent’s Healthcare Group will own the new build. Contrary to claims repeatedly made, the State will not own even the shell.
There are too many known unknowns here. Even Holles Street Hospital lawyers do not know whether or not Rome needs to sign off on the final version of the lease.
The new hospital is to be wholly-owned and entirely controlled by two private companies that are the successors to the Religious Sisters of Charity. The facility’s Catholic ethos can hardly be a matter of doubt. This is an arrangement that can no longer be countenanced.
Only full public ownership of the new National Maternity Hospital can ensure a secular service. However, St Vincent’s Healthcare Group cannot sell the land, lest the Vatican withdraw its consent to the transfer of the nuns’ assets. The government’s assertion that a compulsory purchase order on the hospital site would take five years reflects prejudice, not fact. A CPO remains the only feasible solution to guarantee the provision of services prohibited by Rome and safeguard the €1 billion public investment in the new facility.
