Exclusive: Legal Advisers to the National Maternity Hospital Act For Roman Catholic Hierarchy and for A Majority of Ireland’s Religious Orders

A number of potential ethical obstacles have arisen in relation to the Government decision to proceed with the plan to co-locate the National Maternity Hospital on the Elm Park campus with St. Vincent’s Hospital.

The National Maternity Hospital has been represented in negotiations in relation to the move to the St. Vincent's Hospital site by the legal firm of Mason Hayes & Curran. A partner in the practice, Alice Murphy, appeared before the Health Committee in the Oireachtas to defend the legal aspects of the proposed deal, on behalf of the hospital.

However, Hot Press understands that Mason Hayes & Curran also act for the Catholic Archdiocese of Dublin. While it is in the nature of a large legal practice that they will work for and represent many different clients and that "Chinese walls" are essential to the way in which they must operate, the question nevertheless arises as to whether that might have been seen as material information by members of the Oireachtas, or indeed the Cabinet, when it came to assessing the legal reassurances being offered in relation to the future Governance of the hospital, by the National Maternity Hospital and its representatives.

Mason Hayes & Curran's role as advisors to the National Maternity Hospital is a matter of public record. Hot Press asked the firm if it is factually correct to say that they also act for the Archdiocese of Dublin. However, they declined to comment. "I am not at liberty to disclose the identity of our clients or discuss the affairs of any clients," Alice Murphy told Hot Press.

The reluctance to comment seems strange. There is a section on the Mason Hayes & Curran website which is devoted to 'Religious Organisations', and a sub-section 'Charities'. Here, Mason Hayes & Curran presents itself as the leading law firm in Ireland for religious organisations.

"Working with religious organisations for many years has provided us with an excellent insight into the environment within which they carry out their activities. We understand and appreciate the importance of the history, mission and ethos of each of our religious clients," they say.

The website goes on to make a virtue of just how embedded their work with religious orders is.

"We have acted for many decades," they say, "for a majority of Ireland’s many Religious Orders and Congregations, as well as for the Roman Catholic Hierarchy and its Dioceses, other denominations, and other faiths. In working with our religious clients, we are conscious of the specific issues that concern many of them today."

Alice Murphy, who became a spokesperson for pushing the deal through, and appeared in the Oireachtas and on radio in that role, is named on the website as a top member of the Dedicated Team for religious organisations.

There are three key questions that arise:

– Was this information not material to a full understanding of the process, and should it not therefore, have been put explicitly on the record for the Cabinet and for the Health Committee in the Oireachtas, before any final decision was made?

– What does it say about the decision-making in the National Maternity Hospital that a firm would be chosen to represent them in negotiations with the Religious Sisters of Charity, and subsequently their proxies in the St. Vincents Healthcare Group, which has very close links with the Catholic Church, and with "the majority of" religious organisations in Ireland, when a tough, unapologetically adversarial approach may have been essential to securing the very best deal possible for the State and for the women of Ireland – and in particular the transfer of ownership of the land on which the hospital will be built?

– Was the Minister for Health, Stephen Donnelly, aware of the close links of the legal team acting for the National Maternity Hospital with the Catholic religious orders, congregations, dioceses and hierarchy? If he was, why was this not disclosed in a very public way, to allow Irish people to make their own judgements in relation to the decision-making of the National Maternity Hospital board and staff – not least because this will be at the heart of how the hospital operates in the future? And if he was not aware of those links, then why was he not?

There are wider issues about the truthfulness and accuracy of what has been said and claimed publicly by advocates of the arrangements given the green light by the Cabinet on Tuesday. For example, the deal has been described as "lock-tight" by Government politicians. However, this is a statement that flies in the face of the reality of what is being signed up to.

"The greatest risk," a source close to the deal told Hot Press, "is that the Minister for Health, whoever that might be in the next 299 years, or indeed in the next 20 years, has sole discretion in appointing three members of the National Maternity Hospital board. If, or probably more accurately when, there is an anti-choice Minister, they can appoint three anti-choice members to the board. The three members from SVH are committed to upholding the Catholic values and vision of the Sisters of Charity. Even if the three from NMH are pro-choice there will be a majority of 6:3 for an anti-choice stance.

"Disagreements are supposed to be sorted out via the Ministers 'Golden share' mechanism," the source added. "Well, if the Minister is anti-choice, one can easily see where they can impose an anti-choice ethos irrespective of the laws of the land. The Master's terms of employment are laid down by the board."

There is also another, separate, significant issue relating to disclosure.

One of the less publicised elements in the plan gives consultants based in St. Vincents Hospital a designated area of six rooms in which they can carry on their private practice, on premises that are being paid for in full by the State. The arrangement is highly controversial in any new hospital being funded by the State, given that it runs directly counter to the policies set out in the Sláintecare programme, which is the agreed blueprint for the future development of hospital and health services in Ireland.

This deviation from Sláintecare has now become a potential lightning rod for those who are opposed to the plan to co-locate the hospitals, given that a hugely significant personal financial benefit – most likely in perpetuity – to the hospital consultants was not declared when they went before the Health Committee to advocate for the proposal.

The central importance of what the consultants had to say to the Committee was highlighted on Tuesday by the Taoiseach Micheál Martin.

RTÉ reported that the Taoiseach said that, in making the decision to proceed with the plan, he was "very minded by the appeals from the clinicians.” While this cannot be taken solely as a reference to the consultants from Holles Street who spoke before the Health Committee in the Oireachtas, it is evident nonetheless that what the Master of the Hospital Shane Higgins said to the committee will have greatly influenced not just the TDs of the government parties, and the members of the cabinet, but also the other members of the medical profession around the country.

This isn’t about individuals. As with Mason Hayes & Curran, it is about whether or not there was a conflict of interest that should have been declared to those making the decision to proceed or otherwise. Certainly – in the case of providing private facilities for consultants to generate personal profits – there was very little public knowledge of, or time to consider, what is a highly controversial aspect of the project.

Not only that. It is undeniable that consultants in general will potentially benefit from the provision, in that it sets a further precedent in relation to the segregation of the medical and hospital system in Ireland into public and private. This, despite the fact that the new National Maternity Hospital purports to be a public hospital, built on land that the Minister for Health Stephen Donnelly as late as Tuesday morning erroneously claimed that the State would “own for the next 300 years."

Speaking on his way into Dublin Castle, Micheál Martin also said that he had "no doubt that all the guarantees are there in terms of all legally permissible services being made available."

But this rather obviously misses the point that – while they may not use the term – abortion is already available in hospitals with a Catholic ethos. The problem is not its ‘availability’, but rather the fact that it is only available under extremely restricted and restrictive circumstances. This issue – of the circumstances in which terminations will be delayed or discouraged, even against the express preferences of the woman – has not been dealt with in any way by the Oireachtas, or in the legal documents.

Speaking about the deal in the Dáil, in advance of the vote on the issue, Ivana Bacik emphasised her ongoing concerns with ownership, control and governance issues in the deal for the new hospital, and pointed out that a leasehold interest in land, however long, is still only conditional ownership; that there are worrying conditions in the legal documents, including the right of the landlord – the St Vincent’s Healthcare Group – to appoint one-third of the hospital Board, and to appoint a chairperson every three years.

Lest anyone be in any doubt about the allegiances of the St. Vincent's Healthcare Group, on the website of the Charities Regulator, the Charitable Objects of the St. Vincent's Healthcare Group are set out very clearly. In Clause 2, they state unambiguously that the over-riding links to the Religious Sisters of Charity will govern their activities, in the following terms: 2. "To conduct and maintain the Facilities in accordance with the Health Care Philosophy and Ethical Code of the Religious Sisters of Charity."

It is very difficult to understand how anyone can make the claim that "the nuns are gone" – when their Ethical Code is written specifically into the Charitable Objects of the St. Vincent's Hospital Group – and is therefore binding in relation to their charitable status.

The leader of the Labour Party also pointed out that in Ireland we have a long legacy of investing public money in building schools and hospitals on land that remains ultimately in the ownership of religious orders or their proxies or successor companies. She said that it’s time we put an end to that practice – and ensured that public hospitals would only be built on land in full public ownership.

Dr Peter Boylan, who has been the plan's severest critic and remains deeply opposed to the plan, stressed the need for – or rather perhaps the absence of – transparency in the process.

"We are being asked to believe," the former master of the NMH said, "that the Vatican has approved the transfer of the Sisters of Charity shareholding in SVHG to a private company, St Vincent's Holdings, in order to build a maternity hospital in which procedures directly contrary to Catholic teaching (abortions etc) will be carried out. This is not credible. We need to see all of the correspondence between Ireland (nuns and Archbishops) and the Vatican. If there is nothing to hide, don't hide it."

There is, therefore, a real concern, which has not been in any way allayed by what has been said by the St. Vincent’s Hospital Group, the National Maternity Hospital or the Government – and indeed which it is impossible to properly allay given the arrangements that have been agreed to.

It is that an insidious process of influence can be put into effect by the representatives of the St. Vincent’s Hospital Group; that appointments will be made which push the ethos of the hospital in a religious direction; and ultimately that a hard, minimalist position on the occasions where abortion is deemed ‘clinically appropriate’ will be forced on women in Ireland who use the services of the National Maternity Hospital.

Green Party TD Neasa Hourigan – who, along with Patrick Costello has had the Green Party whip removed for voting with a Sinn Féin motion on the issue in the Dáil last night – has been very public about her unhappiness with the deal. In particular, she has focussed on the way in which the arrangements for private rooms for the consultants goes against the principles of Sláintecare

"I put it to the Minister, in the Health Committee and in the Dáil chamber," she states, "that the current NMH plan calls into question the full implementation of Sláintecare for women's maternal health. Sláintecare requires that all contracts going forward with consultants are fully public in nature and yet the SVHG site will lock private consultation services into the structure in a very real way. That issue was one of the outstanding and unanswered questions on the deal that resulted in my being unable to support it."

There is never a personal aspect to these issues as far as Hot Press is concerned. However, the questions that have been raised here are of such fundamental importance that we are calling on the Minister for Health, Stephen Donnelly, to make a statement which covers all of the issues set out here.