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Joint Committee on Health debate -
Monday, 16 May 2022

New National Maternity Hospital: Discussion (Resumed)

Deputy Bríd Smith will be deputising for Deputy Gino Kenny and Senator Higgins for Senator Black. Apologies have been received from Deputy Hourigan.

There seem to be issues with sound feedback.

We hoped to have representatives of St. Vincent's Holdings in before the committee. Again, the invitation went out at late notice.

Sitting suspended at 1.35 p.m. and resumed at 1.36 p.m.

We are still having feedback issues. I will suspend the meeting again.

Sitting suspended at 1.36 p.m. and resumed at 1.39 p.m.

My apologies for the technical problems. As I was saying, we were hoping to get representatives of St. Vincent's Holdings before the committee. It was very short notice, but that is down to the timescale within which we were trying to work on this matter.

Two of the directors are away and another had a prior engagement. I appreciate the witnesses coming in and giving their time today.

Today, we will meet representatives of St. Vincent's Healthcare Group, SVHG, to continue our discussion on the proposed new national maternity hospital. We are joined by Mr. James Menton, chair of St. Vincent's Healthcare Group and founding partner of St. Vincent's Holdings, and Dr. John Holian, board member of St. Vincent's Healthcare Group and chair of St. Vincent's University Hospital medical board. I have probably pronounced his name wrongly. We will hopefully sort it out during the meeting. We are joined by Ms Imelda Reynolds, board member of St. Vincent's Healthcare Group, Professor Janice Walshe, consultant oncologist, and Mr. Donal O'Raghallaigh, partner at McCann FitzGerald solicitors. They are all very welcome to our meeting.

All members and witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative that they comply with any such direction.

I ask Mr. Menton to make his opening remarks.

Mr. James Menton

I thank the Chairman for the opportunity to meet the committee this afternoon. I act as chair of St. Vincent's Healthcare Group and was a founding director of St. Vincent's Holdings. I am joined today, as the Chair eloquently outlined, by Dr. John Holian, Ms Imelda Reynolds, Professor Janice Walshe and Mr. DonaI O'Raghallaigh.

Everyone at St. Vincent's Healthcare Group believes that Ireland is on the verge of an historic decision about the future of women's healthcare. It is historic with regard to infrastructure development with all the positive and badly needed new facilities that will be delivered with it. The relocation of the National Maternity Hospital to the Elm Park healthcare campus is a key part of the Government's maternity strategy. We are proud to be a partner and play our part in what will be, when operational, a complete transformation of maternity and neonatal care, not only in Dublin but also as a national care centre. From our perspective, the transformation of maternity care services, of which the proposed transfer of the National Maternity Hospital to our Elm Park campus is one part, coincides with and is in part facilitated by the complete transformation of St. Vincent's Healthcare Group after over 175 years of ownership by the Religious Sisters of Charity, RSC. The April 2022 transfer of the RSC's St. Vincent's Healthcare Group shareholding to St. Vincent's Holdings, our new shareholder, was the last formal step in the reaching the board's objective of becoming a truly secular organisation free of any religious influence. The board was determined to achieve this objective and we have done so.

St. Vincent's Holdings is the new owner of SVHG and is a registered Irish charity. It is a not-for-profit company governed by Irish law. It is not a public juridic body and there is no vehicle in the registered constitutions of either company by which any religious authority or control can be exerted. That is a fact. It is also a fact that the RSC transferred its shares to St. Vincent's Holdings without any conditions requiring the practice of any Catholic ethics or any other religious ethos. SVHG is also a registered Irish charity. It is a not-for-profit company governed by Irish law. Our purpose and vision are to be a valuable part of an Irish healthcare system that achieves the best outcomes for patients and their families, to be known for the highest standards of patient care, clinical excellence, medical research and staff education, and to remain a voluntary, independent group that invests all our funds in the treatment and care of our patients. As a not-for-profit company with charitable status, all our funds are reinvested in the treatment and care of our patients.

St. Vincent's Healthcare Group is a secular organisation. The hospital has no religious ethos. Services have been and will continue to be delivered in accordance with best international medical practice, compliant with the laws of the Ireland and to people of all faiths and none. Multiple protections are in place to ensure no religious authority or control can be exerted. Our founding values are dignity, compassion, justice, equality and advocacy. These values are found in many institutions across the world and cannot be interpreted as any attempt to directly or indirectly impose a Catholic ethos. There were many references to our culture in committee meetings last week. Culture in all three of our hospitals is driven by a single focus, namely, to provide the best possible care for all of our patients.

We were approached by Government to become a partner with it and the National Maternity Hospital, Holles Street, in the relocation of maternity services to the Elm Park campus. The opportunity to assist in the provision of world-class maternity and neonatal healthcare, together with our long-standing working relationship with Holles Street, informed our decision to support and partner on this 21st century project. The new national maternity hospital facility will be located in the centre of our campus and will be physically integrated with our university hospital to ensure the best and seamless care for high-risk and pregnant women. The seamless care to national maternity hospital patients will be provided by ready access to over 250 consultants covering more than 50 healthcare specialties. The lands at the Elm Park campus have been owned outright by St. Vincent's Healthcare Group for 20 years. Two landowners, and thus two separate independent hospitals, would make it very difficult, if not impossible, to manage the Elm Park campus and would also present significant risks to patient care. The Mulvey agreement, which was a mediation agreement between all three parties, noted this important principle.

The important decision about to be made about the building of the national maternity hospital on the Elm Park campus is a political decision but involves the essential co-operation and agreement of the two voluntary hospitals involved. We hope our presence today will assist members as legislators. St. Vincent's Healthcare Group has embarked on a new course. It is lay and secular. It is a healthcare organisation which will hopefully soon welcome the national maternity hospital to our Elm Park campus. It is a place that culturally and ethically fully upholds the values and laws of our Republic. I thank the committee.

I thank Mr. Menton for his opening statement and I welcome the witnesses. I acknowledge the unambiguous clarity about church involvement. It is clear from Mr. Menton's statement that he believes there is no religious involvement in the running of St. Vincent's now and there has not been for some time. He stated that after 175 years of ownership by the Religious Sisters of Charity, the order announced that it was ceasing to own the hospital in 2017. Was that cessation in anticipation of or part of the relocation of the National Maternity Hospital or had it been in the ether for some time?

Mr. James Menton

It was in the ether for over seven and a half years. Colleagues and I engaged with the leadership team of the Religious Sisters of Charity to reach a mutually strategic outcome, where it ceased its involvement in Irish healthcare and we became a secular organisation, which was the board's objective. That journey took seven and a half years and the final steps were concluded in April 2022. It is important from the point of view of St. Vincent's Healthcare Group that, having regard to social and other change in modern Ireland in the 21st century, we become a secular organisation. It is good for our organisation and it is good for our patients and their families.

When was there last involvement in the operations by the Religious Sisters of Charity?

Mr. James Menton

That is so long ago that I cannot give a particular year. The only contact is that, under the old constitutions, our former shareholders had the right to appoint two representatives to the board. In 2017, when they announced that they were leaving healthcare in a slightly more formal way, those two representatives withdrew from the board. Over the four years since then, in anticipation of the conclusion of the transfer of the shares, the board and our management teams have worked on the new constitutions of St. Vincent's Healthcare Group free of any Catholic ethos or ethical guidance from the Religious Sisters of Charity. While the final step was concluded a few weeks ago - in April - the direction of travel was clear over the last years.

Okay. I thank Mr. Menton. When was the last time the Department of Health, on behalf of Government, approached St. Vincent's about the purchase of the land? When was it finally accepted that was not going to happen? Does Mr. Menton know the date?

Mr. James Menton

In 2017 we had correspondence with the then Secretary General of the Department of Health which followed a lot of engagement with the Department and its officials where we outlined four key principles that informed our decision-making in terms of our participation as a partner in this project. The board's decision-making frame from the very beginning, quite apart from 2017 - it goes back probably ten years - was four things. The first is there could be no impediment to the efficient and effective delivery of patient care and that in no way would the delivery of patient care on our campus be adversely affected; second was that our ability to develop our campus into the future would not be in any way impeded by the relocation of the maternity hospital to the Elm Park campus; third, that while we would be contributing other forms of consideration we would not be expected to make any financial contribution to the project cost; and fourth, we wanted an overarching system of clinical governance on the campus to ensure it was run to best international medical standards. From that we had a partnership from the beginning.

We engaged in the Mulvey mediation that gave rise to the Mulvey agreement. From our perspective, what we brought to this particular arrangement was a substantial site, access to an integrated care system by virtue of the fact the proposed hospital will be integrated with our university hospital, access to provide patients with not only the excellent medical care our partners in the NMH will bring when they relocate to the campus but access also to more than 250 of our consultant cohort and 50 specialties. All that combines to ensure patient care for women in Ireland comes into the 21st century on a seamless basis. Also, it was very important for obvious reasons that do not need to be stated that we evolved into a secular organisation free of any church influence or religious ethics, in the same way, ironically, that when Holles Street moves from its current constitutional framework to that of the NMH at Elm Park DAC, it will also leave behind any association with church influence in the form of the Catholic Archbishop of Dublin being, or being entitled to be, the chairman of Holles Street. There is also other Catholic representation and former Catholic representation.

I thank Mr. Menton for that. The two issues I have outlined are two of the main sticking points in this whole debate. As public representatives we receive correspondence and obviously there is much media focus on these two particular issues. Is there anything additional Mr. Menton can provide as reassurance to satisfy the concerns people have about ownership and religious ethos?

Mr. James Menton

Okay. Maybe I will start that answer and Ms Reynolds and Mr. O'Raghallaigh might want to comment. Indeed, all of us might want to comment. In the first instance, the legal arrangement for the transfer of the shares was into St. Vincent's Holdings CLG, which is a not-for-profit registered charity under the laws of this country and its constitution is an Irish company under the laws of this country. We were absolutely determined there would be no restrictions placed in the constitution of that company, or indeed in its now subsidiary, or proposed subsidiary, St. Vincent's Healthcare Group, that would have any influence of Catholic ethics, the imposition of religious influence or Catholic ethics. Anybody who has read those constitutions can clearly see that goal has been accomplished. We also ensured specific parties bound under confidentiality agreements had access to our share purchase agreement and the other legal document indemnity which again contains no conditions of what I have just described. Under our agreements the HSE and other stakeholders have had access to those documents and they have been reviewed by their lawyers before they gave consent to the transfer.

Mr. O'Raghallaigh might want to comment, as our adviser.

Mr. Donal O'Raghallaigh

Absolutely. The share is transferred to SVH without any conditions, so there are no legal impositions or otherwise in relation to the ethos of the holding company. That is as clearly as I can state it.

Okay. Does anyone else wish to reply?

Ms Imelda Reynolds

Only to confirm that is the case. There are no conditions attached. There is no hidden agenda. There is nothing there behind the documents everyone has seen. There were no conditions attaching to the shares transferring, so I can give that complete assurance. When I joined the board in 2019 it was post the Mulvey agreement but it was very important for me personally that the direction and strategy for the group was to deliver on the Mulvey agreement, achieve the shareholding and develop a secular hospital, secular medical healthcare facilities, on the campus.

The term "clinically appropriate" has again been raised by many. There have been discussions regarding a codicil or addendum. Has the group had any involvement, sight of it or discussions on that over the past fortnight, since the Cabinet originally postponed the decision?

Mr. James Menton

No. We have observed all the commentary and the concerns expressed about the clinical governance phrase in the various legal documents concerning the establishment of the new maternity hospital in Elm Park. That phrase obviously does not feature in any of our documents to do with the new holding company or indeed the constitution of St. Vincent's Healthcare Group. It is a NMH issue. Having said that, and as everybody is aware, the Minister has accepted there are concerns about that phrase and he has committed to reflecting on those. Originally, that phrase was requested by the HSE and was considered by the board of the NMH, ourselves and our legal advisers and we agreed to the insertion of the term into the various legal agreements.

I am not sure whether Mr. O'Raghallaigh wants to comment further on the legal aspects of the phrase.

Mr. Donal O'Raghallaigh

There has been quite a lot of commentary on the legal aspects. As Mr. Menton has indicated, the Minister has indicated he has listened to concerns about it. From our perspective, it has not been inserted at the behest of SVHG. It was inserted by the Minister with a view to clarifying the protection of the NMH hospital that "clinically appropriate", as the Minister has enunciated it, will relate to the type of procedures you would find in a maternity hospital, as opposed to a broad range of procedures that you would find in other types of hospitals. Personally, from a common-sense approach, that is how it reads but a concern has been raised and SVHG awaits any further comment on it from one of our partners, be it the NMH or the Minister, on it.

Mr. James Menton

The Senator may find it useful to hear from Dr. Walshe as a clinician, given the alignment of that phrase and matters on the ground.

I ask that Dr. Walshe be brought in on some of the other questions.

Dr. Janice Walshe

Okay.

We are out of time on this slot.

I thank the Chairman.

Deputy Cullinane is next. I assure Dr. Walshe there will be plenty of time for her to come in.

I thank the Chairman. We have heard much clinical opinion on this issue, so I wish to very quickly stick with this issue of "clinically appropriate" and, if I can, ask the question again because I am slightly confused. Mr. Menton said there was no engagement between the Minister, the HSE and St. Vincent's Healthcare Group on an addendum, possibly a removal or a definition of the term "clinically appropriate" in either the lease or the constitution. Is that what he is telling us?

Mr. James Menton

No. What I am saying is I am aware - we have had discussions about the fact the Minister has been reflecting on the concerns expressed but no, there has not been a view from the Department or the HSE as to whether the phrase would be deleted or defined or whether the status of-----

But Mr. Menton accepts that those phrases are peppered across the constitution and the lease-----

Mr. James Menton

They are, absolutely.

-----and if there was to be any removal or any definition inserted, or indeed any addendum, it would require the consent of all parties-----

Mr. James Menton

It would, absolutely.

But this is going to the Cabinet tomorrow.

Mr. James Menton

Yes.

So, is it possible that it could be done before it goes to the Cabinet tomorrow?

Mr. James Menton

We believe so. Yes. We have had due consideration to the legal impact. Perhaps Professor Walshe could cover the clinical one presently.

We have dealt with the clinical part. This is something that Mr. Menton said was inserted by the Minister at the behest of the HSE, for all of the reasons they gave. I do not need to go over those again.

Mr. James Menton

Yes.

We are talking now about the potential of either a definition, a removal, or an addendum to what are legal contracts.

Mr. James Menton

Or it remains-----

Or it remains a letter of comfort.

Mr. James Menton

That is my understanding.

My point is that up to now, as Mr. Menton sits here today, he has had no communication from the Minister that there may be an ask, on their behalf, to the St. Vincent's Healthcare Group that they would accept either the removal of the definition or an addendum.

Mr. James Menton

There have been various discussions around all of those options but we have not been asked formally, or otherwise, to state our position.

Okay. Can I come to the ownership of the land? In his opening statement, Mr. Menton said that St. Vincent's Healthcare Group owns the land, which is true. Is it correct to say that the group owns the freehold?

Mr. James Menton

That is correct.

Mr. Menton said in his opening statement, and I have no reason to dispute this at all, that the land was transferred to the group. Mr. Menton said: "The April 2022 transfer of the RSC's SVHG shareholding to SV Holdings ... was the last formal step in the reaching the Board's objective of becoming a truly secular organisation". Mr. Menton also said that there were no preconditions in relation to any religious ethos set down in that transfer.

Mr. James Menton

Yes.

I am accepting that this is the case and this is what Mr. Menton said it was. We will take that at face value. Were there any other preconditions?

Mr. James Menton

None of a religious-----

Mr. James Menton

Clearly, in the share purchase agreement and in the share indemnity agreement there would have been the typical conditions, I would have called them out, in a shared transaction of this nature.

Were any of those conditions shared with the Minister and the HSE?

Mr. James Menton

They were. The HSE has a full copy of all the documentation, within the context of the confidentiality provisions of the share purchase agreement.

Would it have had a copy of, or had sight of, all of the correspondence from the religious order and the St. Vincent's Healthcare Group or St. Vincent's Holdings in relation to the religious order removing themselves completely from it?

Mr. James Menton

The only correspondence as such is the final share purchase agreement and the indemnity.

There is no other correspondence.

Mr. James Menton

No.

Mr. James Menton

There was plenty of discussion, obviously, with ourselves and the RSC, and with-----

I am trying to establish that there were absolutely no preconditions of any nature, apart from the ones that Mr. Menton has cited, which are quite technical. There are no preconditions. So, essentially the St. Vincent's Healthcare Group is the sole owner of the land to do with the land what it pleases.

Mr. James Menton

Yes.

Absolutely no preconditions.

Mr. James Menton

Not as we please. We are bound by the constitution of the St. Vincent's Healthcare Group, and the constitution of St. Vincent's Holdings.

The group could dispose of the land and make decisions around the land, and it is in the gift of the board to make a decision, if it so wanted, to gift the land to the State, if that is what they wanted to do. There is no legal reason that cannot be done. There is no block from the Sisters of Charity and there are no preconditions.

Mr. James Menton

Absolutely not. There is no block, but there are-----

As Mr. Menton will understand, it is a very clear question. It is an issue that many people have raised. I will go through in a few moments this arrangement that we have landed on. Mr. Menton has spoken about the impossibility of managing what I assume he means to be a HSE hospital on the grounds of Elm Park where there is a private hospital and a voluntary hospital. I am not sure that this really holds water when the national children's hospital and St. James's Hospital are co-located. Whatever about the impossibility of that as Mr. Menton will see it - and I do not agree - we have ended up with a very convoluted and complicated company structure, which I might talk through with Mr. Menton shortly. If there are no preconditions imposed on St. Vincent's Healthcare Group in relation to what it does with the land, if the group is the sole owners of the land, and if there is no legal impediment to the board making a decision, then there are obviously other reasons. Is it the St. Vincent's Healthcare Group's right and the board's right to gift the land to the State if that is what it wants to do?

Mr. Donal O'Raghallaigh

The Deputy is correct, and it is correct to say, that St. Vincent's Healthcare Group and St. Vincent's Holdings can make a decision on the disposal of its land. There are a couple of factors in relation to that. One factor is that the group is a charity and must have regard to how it disposes of assets.

That does not prevent it from doing so.

Mr. Donal O'Raghallaigh

It depends. A charity cannot just give away property willy-nilly; that is for sure. There is a consideration process on the disposal of land, whether that is by lease or by freehold, in relation to the purpose to which the land would be put. Another consideration for the board is how it insures land, and what impact that has on its own assets that it needs to run the hospitals for charitable purposes.

Is this not part of the problem here? I am looking at a report from the Comptroller and Auditor General, which I believe is from 2010-----

Mr. Donal O'Raghallaigh

I am not familiar with that.

It looked at 16 voluntary hospitals and I will read the conclusions:

Sixteen voluntary hospitals and a number of other health services providers are effectively integrated into the public healthcare system. However, these entities function as arms-length bodies with their own legal status and with capacity to transact business in accordance with their own constitutional arrangements. Considerable public resources are provided to them for the provision of public health services, and the construction and maintenance of related facilities as required. SVHG has pledged publicly-funded assets in return for bank finance for development of its private hospital.

Essentially, we have a leveraging of a public asset for a private hospital. It goes on to state:

The situation illustrates a hazard that attaches to the provision of services through fully subvented, or nearly fully subvented, private institutions. Their freedom to pursue their other objectives may be exercised in a way that does not protect the State's financial interest.

Mr. James Menton

Although I was not on the board at that point in time, I am aware that remedies were put in place that were appropriate grant agreements between St. Vincent's Healthcare Group and the HSE to protect the State's interest, both on a retrospective basis and a prospective basis, in terms of the new facility that was financed.

A few moments ago Mr. O'Raghallaigh spoke about one of the reasons, or one of the impediments, that is now being put up, which is the first time I have heard this. Up to now we have been told by St. Vincent's Healthcare Group that the reason there is a reluctance on the group's part to transfer the land to the State is because of the need for the integrated campus.

Mr. James Menton

Yes.

That is the reason we have been given. It was not about assets. It was not about any of those issues. It was not me that introduced this, with respect, it was Mr. O'Raghallaigh. The Comptroller and Auditor General's report back in 2010 cited concerns.

Mr. James Menton

We got that and read it.

Do we want to be here in five or ten years' time with a Comptroller and Auditor General report that raises more concerns if the answer is "No"?

Mr. James Menton

I do not believe the framework that is on the table for discussion would in any way expose the State. It is quite the contrary, in my humble opinion.

I will make one final observation if I can. I thank the group for coming in. I said that I would do this. This new company, the national maternity hospital DAC, is to be established that will have directors, we are told, from three different sources. There will be three from the existing maternity hospital, three from St. Vincent's Hospital, and three public interest directors. That is a subsidiary of the St. Vincent's Healthcare Group, which effectively would be the landlord. They will own the land and they will lease the land to the State. The lease arrangement is with the HSE. Is that correct?

Mr. James Menton

That is correct. The landlord would be St. Vincent's Healthcare Group.

That is what I have just said. The St. Vincent's Healthcare Group will be the landlord-----

Mr. James Menton

Yes.

-----and will lease the land to the HSE. Is it correct to say that there will also be a licence agreement in place?

Mr. James Menton

There is. It is for the use of the building.

Then the St. Vincent's Healthcare Group, which is the landlord, is a subsidiary of St. Vincent's Holdings.

Mr. James Menton

Correct.

And St. Vincent's Holdings has its own board-----

Mr. James Menton

It does.

-----and its own directors and own constitution, as does the St. Vincent's Healthcare Group, as does this new hospital.

Mr. James Menton

Correct.

Mr. Menton spoke of an impossible situation in terms of having a public hospital with another public hospital and a private hospital on the same campus. Mr. Menton said that it is difficult and impossible.

It is hard to relate those when we consider the convoluted, complex structure we are being asked to approve, with respect.

I am trying to be fair to everyone. We may have a second round of questioning and Deputy Cullinane has indicated he will not be here for that.

I have made my point and I would like the witnesses to reply.

Mr. James Menton

It is important. At the end of the day, this project is all about improving healthcare for women. It is a partnership approach and we agreed to enter into that partner approach against the four principles I outlined to Senator Kyne. The lease ownership of the land, which is the proposition to the Government, is to ensure there is protection of the State's finances and the construction of the building; it is no more and no less. We were originally asked to grant a lease of 99 years and that was increased to 150 years.

I will not be back so could I ask one quick question?

My final question is on that point. The lease has changed from 99 years to 150 years to 299 years. Has the Taoiseach ever corresponded with St. Vincent's Healthcare Group on the ownership of the land at any point?

Mr. James Menton

It was the Department of Health.

I asked about the Taoiseach.

Mr. James Menton

No, not to my recollection.

I thank the witnesses for coming in. I have a couple of really brief initial questions and I hope they require only brief answers. Did the Religious Sisters of Charity insert or attach any religious ethos conditions into the transfer of shares when departing?

Mr. James Menton

No.

Did the Vatican try to impose any conditions on St. Vincent's Hospital Group or St. Vincent's hospital before the share transfer?

Mr. James Menton

No.

Have the clinicians ever been told to refuse a patient medical treatment on religious grounds?

Dr. Janice Walshe

Never.

That is fine. The nuns announced they were gifting the land and then they did not gift the land. Will the witnesses give a brief explanation of what happened there?

Mr. James Menton

There was a press release, as was correctly pointed out, with a headline that was unfortunate. That is the nicest way I can put it. Reading the detail of the press release, they did exactly what the press release stated. They transferred the shares in St. Vincent's Healthcare Group to St. Vincent's Holdings. I cannot really be held accountable for the drafting by public relations firms of titles on press releases. They did exactly as they intended to do.

People are watching because there is much complexity around the different company structures that have been set up. Watching and listening to the debate, it seems that St. Vincent's hospital owns the land, the National Maternity Hospital will create a new hospital on site-----

Mr. James Menton

Yes.

That hospital will overlap existing St. Vincent's hospital architecture.

Mr. James Menton

Yes.

It makes a lot of sense. Mr. Menton has a background in business and commercial property transactions. It makes sense to establish an entity to govern at the very least the overlapping pieces.

Mr. James Menton

Yes.

The integrity of the campus was an issue going back and the witnesses have spoken about it and covered it. As a political point, in 2017, St. Vincent's Hospital Group was not countenancing any sale or lease of part of the land or any separate ownership of a hospital on-site. That goes to what the current Minister, Deputy Donnelly, has achieved. The HSE actually owns the hospital and the land is being leased at €10 per year for a total of 299 years, with the arguments of many being that this essentially involves ownership.

There is the question as to why this body cannot just gift the land. There was an article in The Currency recently that covers much of this. The witnesses might be familiar with it. St. Vincent's hospital, as Deputy Cullinane indicates, offered its land as collateral when it borrowed to redevelop the private hospital in 2010. That came to the attention of the Comptroller and Auditor General. It seems from the article written by Mr. Thomas Hubert in The Currency that if St. Vincent's Hospital Group gave the land under the new maternity hospital to the State, it would find itself in default of its loans and might become insolvent. Is that correct?

Mr. James Menton

No.

Mr. James Menton

The point I would like to clarify is that the real reason - the only reason - we are offering a lease ownership of this land upon which the State will finance the construction and own, effectively, for 299 years at an annual rent of €10 per annum is that this offers protection to both ourselves and Holles Street in what that building will be used for. That is clearly set out in the lease. The protections afforded under a lease ownership arrangement, as opposed to a freehold ownership arrangement, are radically different. We or Holles Street would have no protections in the absence of the current arrangements as to what that hospital would be used for. The whole purpose of this relocation is that the building would house vastly improved maternity care integrated into a university hospital with access to many specialties and other consultants. That is the whole point from our perspective of this partnership.

Okay. We have dealt with the Vatican papers. One of the witnesses spoke about the model of the Bon Secours group, which was purchased by an international healthcare group. Is that possible here? Is it possible for an international healthcare group to view the entire St. Vincent's hospital campus, including a new national maternity hospital, as one structural entity?

Mr. James Menton

It is a very interesting question and the answer is "No". We cannot sell St. Vincent's Healthcare Group. I will ask Mr. O'Raghallaigh to reaffirm that, as it is under our new constitution.

Mr. Donal O'Raghallaigh

Absolutely. There are a number of protections as seen in the lease. There is an obligation on St. Vincent's Healthcare Group not to permit a change of ownership in its shares without the consent of the HSE. The SVH holdings company that took the shares from the Sisters of Charity cannot transfer that share. That is regulated by the Charities Regulator, as is SVHG. Everything is kind of locked in. These include the SVHG shares in SV Holdings, which are locked into that company. Within the SVHG, the movement of that share is double-locked with respect to a HSE consent.

As a result of the 2010 Comptroller and Auditor General report, the HSE has the first option on what, exactly, if there is a decision to sell?

Mr. Donal O'Raghallaigh

It has first option on the freehold of the site of the national maternity hospital, NMH, within the first 20 to 30 years, depending on when the hospital is finally built. It has first option, so if SVHG offered that portion - just the freehold of the NMH - to a party to sell, it must go through a process with the HSE to see if the executive wants to buy the freehold at that point.

If the group cannot sell the national maternity hospital, could it sell any of the existing St. Vincent's hospital campus?

Mr. Donal O'Raghallaigh

The answer to that is "Yes". The question is whether SVHG can sell property. The legal is answer is "Yes" but it is subject to how it applies proceeds for charitable purposes and all that, but the answer is it could.

Could the national maternity hospital be used as mortgage leverage?

Mr. Donal O'Raghallaigh

No, and I just want to be very clear about this because there has been some commentary on it. Once the 299-year lease is granted to the HSE, the freehold that SVHG holds in the property is obviously subject to that lease. We could say a virtual freehold is held by the HSE or an ownership is held by the HSE. Creating security over that interest is subject to the lease. The lease is protected and it is not a security that takes value from what is on the site. It is a technical point for keeping the entirety of the campus under one ownership.

I am thinking about what is in it for the Religious Sisters of Charity. I may be wrong on this.

I can think of one other example in my constituency where the Sisters of Mercy did not give land away but sold it at below market value to a local sports club on the basis that it would never be developed residentially and that there would be recourse. It just could not be done. As a result, the order has no interest in the land and has essentially vacated it. There is a similar example with the Carmelites. That is also in my constituency. There are examples. I am not saying it is done philanthropically. What Mr. Menton is saying, however, is that in the context of the holding company or the papers, there are no fingerprints or footprints of the Religious Sisters of Charity. If things changed in a century, there would be no route back into this company for the Religious Sisters of Charity or any church-related organisation.

Mr. James Menton

This is covered in the Catherine Day report. In the appendix to that report which was an investigation of the role of voluntary hospitals in the State in public healthcare there is clear documentation which illustrates the significant difference, for example, between the strategy pursued by the Mater and the Sisters of Mercy and ourselves in St. Vincent's and the Sisters of Charity. Looking at the appendix, it is clear in relative terms that when you get to the net surplus of the disposal of assets, however that may arise, the proceeds go through a cascading but eventually go back to the Vatican. That is the position in very simple terms. No such construction has been put on the share purchase agreement of the other legal documentation in terms of the Sisters of Charity transferring their shares to SVHG. I cannot speak for the motivation of the Sisters of Charity other than that it wanted to cease their involvement in Irish healthcare. We want it to be a secular organisation to respond to the needs of our patients in modern Ireland. There was a mutually inclusive objective there satisfied. We have our motivation; they have theirs. We did not question theirs and they did not question ours. I can tell the Deputy categorically, however, that we, as a board, would never have accepted a situation where there was some legacy 100 or 150 years from now that would involve some form of mitigation of the objective of becoming a secular organisation.

I welcome the witnesses. It is important to note that there are multiple examples of shared campuses for different purposes, including health and other services, where there would be a management company that deals with the interface issues. In Texas there is an example of multiple hospitals sharing the same campus but they are all independent facilities. I cannot help thinking that when you look at all the detail involved in this and while there are many concerns, what this boils down is an issue of land value. There is no getting away from that.

I have a number of questions for Mr. Menton. In 2020, SVHG had total liabilities of €450 million. Of that, more than €370 million was long-term debt. Is that not the case?

Mr. James Menton

I do not have the accounts in front of me so I cannot categorically confirm or deny what the Deputy just asserted.

I have them here. That detail is provided. Long-term liabilities are €450 million.

Mr. James Menton

Are they liabilities or deferred grants? I really-----

They are liabilities in the financial report.

Mr. James Menton

Yes. Indeed.

Is it not the case that the financial situation had deteriorated by €20 million on the previous year?

Mr. James Menton

Unfortunately, I do not have the accounts in front of me. I have a difficulty-----

Surely Mr. Menton knows whether the situation is improving or deteriorating.

Mr. James Menton

No. What I can say-----

Sorry. Mr. Menton cannot confirm that?

Mr. James Menton

Sorry, our financial position as a board-----

Sorry, I asked a specific question on the deteriorating financial position. Between 2019 and 2020 it had deteriorated by €20 million. Can Mr. Menton confirm that?

Mr. James Menton

I cannot confirm it because I do not have the numbers in front of me.

The annual deficit has increased every year since 2013. By 2020 it had reached €59 million. Is that the case?

Mr. James Menton

I am happy to accept the Deputy's figures.

Can Mr. Menton confirm them?

Mr. James Menton

I might want to get confirmation on that.

Okay. Have the accounts for 2021 been prepared yet?

Mr. James Menton

They are in the process of completion, yes.

My question relates to the nature of the expectation in relation to those accounts. Does Mr. Menton expect a further deterioration in the liabilities?

Mr. James Menton

Our shareholders funds at the end of December 2020 were €200 million. Positive. Our financial statements for 2021 will be published over the next few months. We are quite happy with the financial performance of all the hospitals.

My question is whether Mr. Menton expects a further deterioration in the group's liabilities. It is an overall question. Does Mr. Menton expect the situation to disimprove or improve in terms of liabilities? What is his expectation as chair of the board?

Mr. James Menton

Sorry. I am concerned that I do not want to mislead the Deputy because I do not have the facts.

I am just asking Mr. Menton his expectation about the liabilities.

Mr. James Menton

My expectation is clearly that during the course of the pandemic in 2021 our financial situation would not be as good as pre pandemic.

So Mr. Menton does expect the situation to deteriorate. Okay.

Mr. James Menton

Broadly similar, actually, to 2020.

Okay. The group has a mortgage with Bank of Ireland on the private hospital.

Mr. James Menton

Yes, we do.

Of €117 million. That is correct, is it not?

Mr. James Menton

Yes, €117 million.

How much is owed on that mortgage now?

Mr. James Menton

Approximately €100 million.

A sum of €100 million is owed.

Mr. James Menton

Yes.

All of the debts are registered as charges on all the properties on the Elm Park campus-----

Mr. James Menton

They are.

----- including the site of the new maternity hospital. Is that correct?

Mr. James Menton

The charges provided to the Bank of Ireland are: a first fixed charge on the private hospital itself; floating charges on parts of the Elm Park campus that have not been State financed; and a floating charge on the proposed site for the national maternity hospital facility in respect of which discussions have been held with the bank.

I just asked Mr. Menton if the registered charges are on all of the properties.

Mr. James Menton

No, not all of the properties. Only the Elm Park campus.

Okay. Will Mr. Menton provide a note on that? Maybe someone on his team will do it.

Mr. James Menton

Absolutely. I am sure we can do that.

St. Vincent's is now granting a lease to the HSE on foot of this leasehold document that we have here.

Mr. James Menton

Yes.

Is it not a term of this lease that St. Vincent's reserves the right to mortgage this new hospital building?

Mr. James Menton

Does Mr. O'Raghallaigh want to take that.

Mr. Donal O'Raghallaigh

It is a power that is reserved for the landlord to create security. Yes.

If St. Vincent's runs into difficulties, it would be able to mortgage the new hospital building? Is that the case.

Mr. Donal O'Raghallaigh

Can I just speak to this?

Sorry. Is that not the case?

Mr. Donal O'Raghallaigh

I need to fully answer this in order to give a proper reflection of what the position is. What SVHG will be able to do is charge the freehold interest, which is subject to the lease. The lease is protected irrespective of what happens up there.

And the group would be able to mortgage the building.

Mr. Donal O'Raghallaigh

Yes. Sorry. I just want to give as full an answer-----

No. I just want the group to confirm that it can mortgage the building. Assuming that it mortgages the hospital building -----

Mr. Donal O'Raghallaigh

Sorry. I just-----

Sorry. Just a moment. Assuming that it may have to mortgage the hospital building, what will happen if the group is unable to meet its debts in the future?

Mr. Donal O'Raghallaigh

I am not rephrasing the question, but it is not the building that is being mortgaged; it is the freehold interest that SVHG has that is subject to the long lease to the HSE. There is an important distinction there.

Mr. Donal O'Raghallaigh

I will answer the Deputy's question. In the event that a mortgage was created over that -----

Mr. O'Raghallaigh has answered. That is okay. I am happy with what he has said.

Mr. Donal O'Raghallaigh

No, I am sorry to answer the Deputy's question about what would happen in the event of a default or if a receiver was appointed over that security. I think that was the Deputy's question. The lease would stay intact. The HSE has an option in those circumstances to acquire the freehold as would have been outlined in the course of discussion.

Going back to Mr. Menton, the group's debt situation is pretty bad now. I am sure he would accept that. It looks like it is going to get worse because the group has had debt relief for the past two years as a result of Covid. That debt relief will run out later this year. Is that not the case?

Mr. James Menton

No, that is an inaccurate characterisation. The true situation-----

How long is that debt relief lasting?

Mr. James Menton

I am sorry but could I just give a broader picture and I will come exactly back to the Deputy's point?

I am sorry; I am under pressure with time. I need Mr. Menton to answer the specific question.

Mr. James Menton

Okay. Can I just explain that as in any typical loan, there are various conditions-----

I am sorry; I am asking Mr. Menton about the debt relief as a result of Covid-19. Is that due to run out this year?

Mr. James Menton

We are currently negotiating with the bank very successfully to have those waivers extended towards the end of 2023. We are very confident, despite the Deputy's observations, that those waivers on our covenants will be extended for another 18 months de minimis.

I also wish to make the point that the board of directors, which is an experienced board, has absolutely no concerns about the financial viability of our group. We would reject wholeheartedly any assertion to the contrary.

I just want a short answer, if Mr. Menton does not mind. In light of what Mr. Menton confirmed, how can he guarantee to the taxpayers of this country that the banks will never repossess the new hospital building?

Mr. James Menton

Because of the legal documentation associated with its creation.

Mr. Donal O'Raghallaigh

It is because of the lease. I am sorry; I did not mean to cut across Mr. Menton. If I tease through this, if there was a mortgage on the freehold interest of the hospital, a receiver would be appointed there. The long lease to the HSE is under that. All that receiver can sell is the freehold interest subject to the lease. Thankfully, in landlord and tenant law, the leasehold is protected. It is an interest in property that does not rely on what occurs at the prehold level. It is a separate interest that is recognised and that interest would remain intact.

If the group runs into difficulties again, it can mortgage the building of the new hospital. Is that not the case?

Mr. Donal O'Raghallaigh

To be clear, and I have said this a few times and will say it one more time if the Deputy could indulge me, what the St. Vincent's Healthcare Group can mortgage, should it choose to, is the freehold interest on the national maternity hospital site, which is subject to the lease to the HSE. The HSE is protected in law in the event of anything that occurs at the freehold level.

Okay. All I can do is read what is in the first schedule, which refers to the premises as "any buildings erected or to be erected thereon".

Mr. Donal O'Raghallaigh

That is correct.

My understanding of that is that it would include the hospital building.

Mr. Donal O'Raghallaigh

I want to be very clear about this. The interest that is demised is the land and the buildings that are built on it. All of the economic interest is down with the tenant. That is a good marketable title, as the Deputy will have heard from several people during the course of last week. The value of the freehold, therefore, is €10 per year provided that is the rent it receives. That is the value of the freehold unless the rent increases because of the charity law purpose. How the Deputy is phrasing it is not fully accurate, in fairness.

I am just reading the schedule; that is all I can go on. The witnesses say the group is a new company now and a secular company etc. I want to ask Mr. Menton whether the Government has asked the group to gift or sell the site to it now that it is a new company and claims it is unencumbered.

Mr. James Menton

The company that owns the land is St. Vincent's Healthcare Group, which has been in existence for 20 years. It is not, therefore, a new company.

Has the Government-----

The Deputy asked a question; she should let the man answer. We are going to move on to Deputy Bríd Smith then.

Mr. James Menton

The landowner is a company that has been in existence for 20 years, that is, St. Vincent's Healthcare Group, which, for the avoidance of doubt, is a fully viable entity. We would reject categorically any observation, insinuation or otherwise that it is not. We have------

I am sorry; my question was has the Government asked St. Vincent's Healthcare Group now-----

The Deputy asked the question.

-----or St. Vincent's Holdings to sell the site?

Mr. James Menton

No, not St. Vincent's Holdings because it does not own the land. We had discussions five or six years ago with Mr. Jim Breslin, the former Secretary General of the Department of Health, as part of the-----

It has not asked St. Vincent's Healthcare Group currently in recent weeks or months.

Mr. James Menton

No.

Will the Deputy stop badgering the witness, please? She asked the question; she should let the man answer. We will move on to Deputy Bríd Smith. Is Mr. Menton finished?

Mr. James Menton

Other than to summarise that we reject categorically that the financial situation of St. Vincent's Healthcare Group is in any way in doubt. Like any other business in the last two years, financially, our performance has suffered slightly but as a board, we are absolutely categorically satisfied with the viability of St. Vincent's Healthcare Group now and into the future in the near term. We cannot see into the future too far.

I thank all the witnesses for coming today. They will understand from our perspective that we in the Opposition have mainly been asking for a discussion around this deal for two years now, which we are only getting in the last two weeks. It is really unsatisfactory for us. Again, I will appeal publicly to the Government to delay this and give us more time because we are being pushed into a position of having to accept much information and many facts without having the time to drill down into them. We are also being hamstrung in the sorts of asks we can make on the witnesses.

One of the things in which I am interested, and I do not want Mr. Menton or anyone else to take anything personal out of my line of questioning, is when Mr. Menton talked about the hospital evolving into a secular hospital. I am interested in that path of evolution. I want to ask Mr. Menton a couple of questions around it. Like other Catholic organisations, the membership of the Sisters of Charity would have been falling consistently over decades now. Was it not inevitable that it would be pulling back from direct involvement because there are too few of them? I believe previous constitutions allowed for the Sisters of Charity or its nominees to make appointments and carry out functions on the boards. Rather than it just being about getting the national maternity hospital done, was it not inevitable that it was going to fade away because of that evolutionary process?

Mr. James Menton

Yes, I concur completely with the Deputy's analysis. There are two aspects to what is under discussion here. Obviously, the national maternity hospital project is the main business of the day but I think the Deputy raises a very interesting point. If we had never been asked by the Government or other stakeholders to partner on the national maternity hospital project, I do not have a scintilla of doubt in my mind that we would have a new holding company with the same constitutions and same share purchase agreement with the share indemnity. The Deputy's point is well made. Demographically, it was withdrawing.

Demographically, it was withdrawing and it knew that this was happening, obviously. Its membership is not stupid. History was taking its course in that the order was not going to be around forever in sufficient numbers. Mr. Menton started working in St. Vincent's Healthcare Group in 2014, is that correct?

Mr. James Menton

In September 2014, I was made the director and assumed the role of chairman.

At what point did Mr. Menton have the first discussion with the Sisters of Charity about that evolution and the possibility of it leaving the group?

Mr. James Menton

I would say in the subsequent one to two months.

Within one to two months.

Mr. James Menton

Yes, it was a very important priority of the board.

Okay. When Mr. Menton was recruited or appointed, did the Sisters of Charity play any role in his recruitment or appointment? Did it seek him out? Did it interview him? Did it appoint him?

Mr. James Menton

I had previously been a member of the board. I had resigned from the board and I was invited to return as a director, so in a-----

Invited by who?

Mr. James Menton

By the Sisters of Charity; by the shareholders.

The Sisters of Charity wanted Mr. Menton back.

Mr. James Menton

Yes.

In a situation where the Sisters of Charity knew its demise was inevitable, the order wanted Mr. Menton back into the position that he is in.

Mr. James Menton

Yes.

There must be a good reason for that. I do not doubt Mr. Menton is a good worker and a conscientious man but there must be a good reason from its perspective. Staying on the question of evolution, Mr. Menton talked about how the hospital is now completely secular. Has he removed all the iconography? Is the Mother Mary Aikenhead picture gone? Are the crucifixes gone?

Mr. James Menton

We have started that process. We have removed the iconography on the grounds of the Elm Park campus. That is a task the board will consider in the ensuing months because, obviously, the final step in the transfer of ownership only took place in April. There is some guidance in Dr. Catherine Day's report about iconography within what were hitherto religiously-owned institutions such as ours. We will take that guidance and ensure that we will display appropriate sensitivity to the needs of all our stakeholders and patients.

Okay, so the evolutionary process is not complete.

Mr. James Menton

No.

It is still in course. We are still removing the church from our healthcare services in St. Vincent's and removing the physical manifestations.

Mr. James Menton

On evolution of church influence, I think the people best placed to give the Deputy some perspective on that are my two consultant colleagues.

I am sorry; I wanted to ask Mr. Menton the questions.

Mr. James Menton

Okay.

My next question to Mr. Menton is on the course of this evolution. As late as 2020, it is my understanding that recruitment required a doctor or nurse who was recruited into the healthcare group to follow the Catholic ethos and have ethical beliefs and commitment to the project of St. Vincent's under Mother Mary Aikenhead.

Mr. James Menton

I think that was long gone at that stage.

When did it go, please?

Mr. James Menton

I would say it was over the past ten years.

Since 2012, therefore, it has not been a requirement of the agreement.

Mr. James Menton

I would not give a specific date, but this evolution has been going on for seven or eight years. I could certainly testify to that.

My question relates to when it was no longer a requirement of the recruitment process for the Catholic ethos to be adhered to.

Mr. James Menton

I would say it was over a similar period.

Will Mr. Menton please get me an accurate answer on that?

Mr. James Menton

Okay, I will.

I am interested in Mr. Menton quoting Dr. Catherine Day as somebody he looks up to examining this process of evolution and how the separation of church and State can be guaranteed. In her report of 2018, however, which was commissioned by the then Minister for Health, Deputy Harris, she stated co-location could be achieved through contractual terms to which both hospitals agreed to collaborate effectively and efficiently without detriment to patient care. Mr. Menton stated St. Vincent’s Holdings must retain ownership for the delivery of integrated patient care. That is an unsatisfactory answer to Dr. Day and to most of us in the Opposition.

Will Mr. Menton clarify this? He stated ownership of the land is crucial to offer protection such that the hospital will be used for what it is supposed to be used for-----

Mr. James Menton

Ownership together with our partners in NMH.

Ownership of the land is crucial to ensure the hospital will be used for what it is intended to be used for, but so is the term "clinically appropriate". Mr. Menton is doubling down on this need to be sure that the maternity hospital is going to be used as a maternity hospital. What is his fear? Is it that if the hospital went into the ownership of the HSE, it might one day be opened as a fun park? Why does he have to double down on both of these controversial counts relating to ownership and clinical appropriateness?

Mr. James Menton

On the latter point, I am not doubling down; it was a suggestion or requirement by the HSE, not by St Vincent’s Holdings or NMH.

Mr. Menton would be willing to have that dropped.

Mr. James Menton

I would certainly engage with our two partners as to whether it continues to be appropriate to be inserted in the various legal agreements-----

We had indications from the National Maternity Hospital witnesses who appeared before the committee that they would be very willing for it to be dropped.

Mr. James Menton

That may be their position but there has not been tripartite engagement between us, the Department of Health and the Minister, and NMH. We would look forward to that and I think that, in the spirit of partnership, we will get to the correct solution, whatever that is deemed to be.

Does Mr. Menton agree that, in the spirit of partnership, those of us who have been elected to the Oireachtas to represent the people's interests in this country should be given more time to allow for the tripartite discussion to examine dropping the question of clinical appropriateness? There seems to be some flexibility on the part of St. Vincent’s Holdings and the National Maternity Hospital on the issue, and it does seem to be required to ensure a maternity hospital will be a maternity hospital.

Mr. James Menton

As I said, I do not think it would involve a great deal of engagement to determine what the desired outcome among the three partners would be. I raised the Dr. Catherine Day report in a different context, responding to a different question. The Dr. Day report contains various recommendations and, when it was published, we had an opportunity to discuss its contents with the then Secretary General of the Department, Mr. Jim Breslin. We welcomed the direction of travel and the various recommendations in the report, and we believe we have very little issue being compliant with the various recommendations. One of the recommendations in the report concerns the State's investments in assets on voluntary hospitals and maintains that, in the first instance, it is more desirable for the State to own the land on which the-----

On that same thread, does Mr. Menton understand how it rankles with us and the general population, particularly women, that anything less than full ownership looks as though the hospital will not be in control of the people of this country? Whatever happens in this hospital over the next 300 years or over whatever length of time I live to be an elected Deputy, St. Vincent’s Holdings will not be fully accountable to this House for that hospital because there will be a private hospital arrangement with private healthcare in the form of St. Michael's Hospital and public healthcare in the form of St. Vincent's hospital. Therefore, St. Vincent’s Holdings as a board will not be fully accountable to us.

Mr. James Menton

Our accountabilities are to ensure our patients have the best outcomes-----

I have no doubt about that-----

Mr. James Menton

That is the motivation-----

-----but if we have worries about that, where can we go?

Mr. James Menton

That is the motivation-----

I did not ask about the motivation.

I ask the Deputy to allow Mr. Menton to finish his point, please.

Mr. James Menton

-----for the construction of the framework.

It is difficult not to interrupt when we are not getting answers to the questions we have asked. I did not ask about the motivation but rather whether Mr. Menton understands why it would rankle with the people that they will not have full ownership, given it is to be paid for by their taxes.

Mr. James Menton

I acknowledge those concerns but I think they are mitigated in the present arrangements because-----

If that was the case, we would all be happy campers and we would not be sitting here. The concerns are certainly not mitigated for the representatives of the people.

I welcome our guests. Obviously, they are concerned about, and aware of, the issues raised by various other committee members who claim to represent the general public in its entirety. I remind everyone that we on this side of the table have also been elected by the people, and we represent the general public and the taxpayer to the same extent as has always been the case. Is Mr. Menton satisfied that the arrangement in regard to ownership versus the lease gives the necessary guarantees the State would ordinarily expect in a lease? Is he satisfied the terms of the lease give sufficient cover to the general public, the taxpayer and patients?

Mr. James Menton

Absolutely.

Without any difficulty.

Mr. James Menton

Without any difficulty.

Is Mr. Menton aware of the concern expressed by some current and former clinicians in the National Maternity Hospital?

Mr. James Menton

Yes.

How will he address those concerns?

Mr. James Menton

I will invite my colleagues Dr. Holian and Dr. Walshe to make some observations in that regard.

Dr. John Holian

With reference to whether the Catholic ethos hangs over everything we are discussing, I have been a consultant at St. Vincent’s hospital for more than a decade, and it is a wholly secular organisation. My appointment in 2010 predated the departure of the Religious Sisters of Charity by several years. Although it is possible to argue that, in theory, a Catholic ethos obtained until their departure, that is not what applied in practice. The ethos that applied then and still applies now, as seen in our mission statement, revolves around our core values of dignity, compassion, respect, quality and advocacy, while striving to maintain excellence in clinical care, research and medical education. These are the values we would expect of any major academic medical institution, whether here or elsewhere in the world. While I fully understand the genuine concerns people have, the assertion that St. Vincent's hospital or the new national maternity hospital at Elm Park might be vulnerable to influence of a Catholic nature does not relate to a hospital I recognise, nor one in which I would wish to work. Personally, and I speak on behalf of the medical board of St. Vincent's, which includes more than 250 physicians, I have never had to explain or justify a clinical decision to a religious person or body. The culture at St. Vincent’s hospital is, very simply, one committed to offering excellence in clinical care to our patients and their families and that is why we see this venture as a necessary step, but also as a natural step given the close collaborative links that exist between our two institutions in allowing us to deliver state-of-the-art medical care in a world-class facility.

Dr. Janice Walshe

I might add that, like Dr. Holian, I have been in position for ten years and wrote the cancer submission that contributed to the Protection of Life During Pregnancy Act 2013. I have a very complex patient group, given I am an oncologist who deals mainly with breast cancer, so I encounter many young women who have developed cancer. We have a significant body of those patients in St. Vincent's hospital for a range of reasons, including the fact we have significant expertise. We have always enjoyed a tight relationship with Holles Street in managing the many concerns they have.

What I can say categorically is that I have never had representation from the religious order, whether directly or indirectly, in terms of trying to influence any of my decisions in that regard.

Our guests are obviously all aware of the regulations incorporated into the Protection of Life During Pregnancy Act 2013, which applies to all hospital groups regardless. Are the witnesses aware of any situation where the full extent of that legislation has been denied to women in general?

Dr. Janice Walshe

I will take that question. The answer is "No", they have not been denied. We know that terminations have taken place on the St. Vincent's campus. If the committee would indulge me for a moment, I will outline how this would generally happen. Let us say that a patient comes to me and is diagnosed with cancer during her pregnancy. I will then lift the phone to the obstetrician who has a specific interest in that and gain information as to where the procedure will be performed. The registration of terminations of pregnancy is completed centrally for patient confidentiality reasons and we know that the vast majority of those terminations are completed before 12 weeks' gestation. In terms of where the termination will take place, that is very much guided by the consultant obstetrician. The more complex terminations will take place in our hospital because they require the multidisciplinary involvement of different physicians. To answer the Deputy's question, there has never been any interference in that regard since that legal framework was available to us to allow us to complete those procedures, as is entirely appropriate for a very vulnerable patient population.

Dr. John Holian

I would add, Senator-----

Deputy, I hope. At last count-----

Dr. John Holian

My profound apologies. Like Dr. Walshe, I have often had to have difficult conversations with patients about the potentially devastating impact of their kidney disease on a longed-for pregnancy or the implications of a pregnancy for their kidney disease. Where termination may be appropriate, it is often best clinical practice to provide that termination in the site that has adequate and specialist resources. The point I am making is that although the perception out there might be that the number of terminations that have occurred in St. Vincent's up until this point has been relatively few, one must bear in mind where patient care is best served and where the specialists are at present. Once that specialist care is available in St. Vincent's, Dr. Walshe and I, along with our colleagues look forward to being able to offer that service on site in much more seamless and integrated fashion than the way we do currently.

It is not a matter of sending somebody to Holles Street because of philosophical or theological reasons. It is purely because that is where it is best resourced at present. That is where the midwives are and where the appropriate counselling and aftercare can occur.

Similarly, are any of our guests aware of the implications of the 2018 legislation arising from the repeal of the eighth amendment to the Constitution? That legislation was debated at great length by a committee similar to this one. Have they have had any difficulty with the implementation of that legislation in the last four years? Do they foresee any difficulty with its continued implementation in the future?

Dr. Janice Walshe

As we have said, to date we have had no issue in that regard and no interference. Those procedures have taken place already. We really look forward to a time when we are co-located with Holles Street so that we can walk those patients who undergo a really traumatic time down a corridor rather than putting them in a taxi and sending them over to Holles Street.

There has been much discussion around tradition, ethos and experiences of the past. Are our guests satisfied that we are looking at a new era, that this is sufficiently guaranteed and that the State's interest is sufficiently guaranteed? In the event of everything being liquidated, for example, are they satisfied that the State's interest is fully protected in so far as is possible?

Mr. James Menton

Yes.

Are they similarly satisfied that no other interest representing the nuns, the Vatican or anywhere else, is likely to exert an influence that would in any way impede the hospital in the context of its responsibility and ability to extend the full range of services required under the legislation for women, women's health and the protection of life during pregnancy?

Mr. James Menton

Yes, absolutely.

In the context of the much-discussed issue of the difference between ownership and leasehold, are the witnesses satisfied that the lease gives them sufficient leverage, in the event of any situations developing, some of which have been discussed and some of which have not, in terms of their ability to be able to control what happens in the hospital thereafter? In other words, is it certain that the entire complex or part of the complex cannot be sold off separately to an entity that might be in conflict with what they are hoping to do?

Mr. James Menton

Yes, the protections in the lease-ownership arrangements are designed to ensure that the building proposed is for the women of Ireland and the delivery of maternity care services both for ourselves and Holles Street.

One could call it ownership, then. Is that correct?

Mr. James Menton

No.

Time is up.

I am watching the clock very carefully. Unlike others, I have not exceeded the limits.

Mr. James Menton

From the State's perspective, absolutely, it is ownership.

Senator Hoey is next.

I welcome our guests and thank them for coming in. I am seeking clarity on an issue. In 2011 the HSE found that the SVHG sought funding for a private development. This came to light through the Committee of Public Accounts. It seems that security for the loan was some form of charge or lien over all of the land there, including the public hospital. The HSE found that while technically no rules were broken, it was not appropriate to be using State assets to fund a private institution. This is not so much a question about the fear that this could happen again because things have changed and the rules are much more stringent now but regarding the land that is currently in question, which is part of the overall land bank, is that still the subject of some form of charge or lien as security for the bank debt? Is this particular piece of land involved in that? One of the conditions of the bank debt is that the debtor shall not sell, gift or dispose of any assets against which the debt is secured. Can the representatives of St. Vincent's clarify whether there is any lien on this particular piece of land. If so, how would that affect the new hospital?

Mr. Donal O'Raghallaigh

As part the negotiation process with the HSE we indicated that lender consent to the creation of the lease would be required. That deals with the security interest. The creation of the lease protects the tenant interest under the lease. There is a due diligence point that we have agreed to on that with the HSE.

Was there interaction with the bank on this?

Mr. Donal O'Raghallaigh

There is an ongoing relationship with the bank and the bank would have been part of the consent process for the share transfer as well..

The bank would have consented to it as well. Okay, that is fine.

As the names of the parties involved are very similar, I ask the witnesses to clarify another issue for me. SVHG owns the land and St. Vincent's Holdings is holding the shares. Who is it that the Minister would have to approach to request that the State be given the land? Who exactly is it that he would have to go to or is there no way to do it because it is tied up in a variety of different things?

Mr. James Menton

Any issue to do with the arrangements of any part of the Elm Park campus would, in the first instance, be the responsibility of the board of SVHG. That has been the case in terms of the negotiations around perfecting the partnership model to construct this maternity hospital, going back to the completion of the Mulvey mediation and the publication of the Mulvey report. Obviously, there have been ongoing discussions subsequent to that. The board was approached by the Department of Health to expand the lease period from 99 years to 150 years and then from 150 years to 299 years.

Our view as a board was that, so long as we had a lease ownership model, which thus enabled the State to effectively own the building it was financing - and I, like any other taxpayer, want our taxpayers' interests to be protected - but, at the same time, afforded protections to us and Holles Street as partners in this framework, that was the-----

It is St. Vincent's Healthcare Group the Minister would have to approach.

Mr. James Menton

Yes, absolutely.

Has the Minister made an approach on that?

Mr. James Menton

There have been requests at various points over that journey in the past five years about the sale of the land. As I said earlier, for the decision-making framework and for reasons of patient care and patient mitigation of risk, it was our view that a lease ownership arrangement was at the end of the day satisfactory to all three parties. I believe it should be and hope it will be.

It is St. Vincent's Healthcare Group-----

Mr. James Menton

Yes.

-----and the Minister who have decided and done that, as Mr. Menton has explained. Will Mr. Menton clarify a point in the significant amount of documentation we have read? I do not have the exact reference written down, so I beg the committee's forgiveness. For the first 20 years, if the land were to be sold at any point, the HSE would have first refusal. That is written into the lease. Then, after 30 years, if that first refusal clause - I do not know if that is the exact term as I am not a legal person - ceases and if the land is sold, first refusal does not have to be offered to the HSE and the interest can be sold to anyone.

Mr. James Menton

The freehold interest in the land. That is very important, but I bow to my lawyer.

Mr. Donal O'Raghallaigh

In protection of the State investment, no matter how the freehold transfers, the lease stays in place. It is a distinct interest. During the negotiations the HSE requested an option to acquire the freehold interest in two default circumstances, as touched on in the discussion with Deputy Shortall. As for a right of first refusal within the first 20 or 30 years, I will double-check that but I think the Senator is right about the 30 years, if the property were to be sold within that short period.

I am still not entirely clear. What does that mean, exactly?

Mr. Donal O'Raghallaigh

If St. Vincent's intends to sell the freehold interest, it goes through a process as set out in the lease within the first 30 years to say it will then sell the freehold interest. The HSE can elect at that point, as a matter of contract in respect of the lease, to acquire that interest. That is it in a nutshell.

After 30 years it is not required to go to the HSE.

Mr. Donal O'Raghallaigh

After 30 years it falls away, yes.

Does Mr. O'Raghallaigh think it is understandable why people are concerned about this? People are taking screeshots of this agreement and sharing them around and losing their minds, to put it politely, about this online. I do not know if this is a normal thing in legal documentation. It is causing a lot of concern to people that the layspeak, if you will, is that in 30 years' time anyone can buy this and the whole thing will be ripped up and out the window. Will Mr. O'Raghallaigh clarify that?

Mr. Donal O'Raghallaigh

It would be unusual for a tenant to have the right to acquire a freehold interest on a right-of-first-refusal basis. There is always a concern in putting a right out to somebody to acquire an interest in one's property for such a long period. There was a lot of discussion about this. The parties felt that 30 years was an adequate period, but then, in the future, the freehold interest in the property can be sold free of that, while the lease still stays intact.

Ms Imelda Reynolds

May I make an observation? It has to be remembered that the context of this is that it is a charity. It is not that the group can just sell willy-nilly to whomever it chooses. It has to be used for charitable purposes, so the fund would have to come back in. That has to be remembered in the context of-----

Ms Reynolds feels that that charitable purpose is watertight. I am just trying to tease this out because I know there are people listening to this who have raised these concerns, and I am as interested as they are in getting clarity on this. Do the witnesses foresee any situation whereby in 30 years' time, when, it is to be hoped, we will all still be around, this could happen?

Mr. James Menton

I would regard the possibility as quite remote. The important thing for people to understand that the Senator has characterised is that if the freehold interest in this land were sold, it would not in any way disturb the 299-year ownership lease interest the State has. It is absolutely academic in substance and, mostly, in form.

I appreciate the-----

Mr. James Menton

It is very much an academic point in law. In practice, I understand the concerns people have. I would try to respond to them by saying that the ownership lease for 299 years - whatever about being around in 30 years' time, we will all have to give up on being around in 299 years' time - is perfect title for the State. It cannot be disturbed.

It comes down to a principle. There are people who just believe that the hospital should be State-owned and on State-owned land and that that should be the future of all capital assets invested in by the State. While Mr. Menton says it is an academic exercise and refers to 200 years, we would not be having this conversation if the layout were different. I reiterate that the crux of the problem is that it is just not going to be in-----

Mr. James Menton

If I may, the idea that we have some objection to a State-owned, State-managed, State-run hospital on our campus is bogus. We do not want a voluntary hospital owned by a charity with a separate board. We do not, for reasons of patient care and patient safety, want two separate hospitals on our campus.

I wish to bring the conversation back to the point Mr. Menton ended on about patient care. I think Professor Walshe outlined the position of women seeking terminations within St. Vincent's currently. While we are discussing it here and it can be discussed in very abstract terms, I think Professor Walshe brought it back succinctly to what we are talking about. We are talking about people who are very sick and who are going through a very traumatic time. We are trying to achieve a gold standard in patient care for women in Ireland after historic underinvestments and historic and multiple traumas on women in this country. We are trying to move away from that. I feel that this plan is a step in that direction.

Mr. Menton mentioned in his opening statement that if the freehold were sold, it would create significant risks to patient care. Could he outline exactly what those risks are?

Mr. James Menton

The patient risks are outlined in our fact sheet and cover three points. One is the need to have seamless integrated patient care on the same campus between the new maternity hospital facility and the physical interconnection between that facility and the current university hospital, which allows clinicians such as Dr. Walshe and Dr. Holian and their 248 other colleagues in 50 specialties to address very quickly acute medical needs without reference to anything other than the primacy of the need of the patient, in very simple terms. Maybe Dr. Holian would like to explain the position on the ground.

Dr. John Holian

The benefits of physical integration are obvious. The removal of those operational barriers might not seem as obvious but are very important from a clinical perspective. These often cause confusion and unnecessary delays that have meant clinical risk. Our goal is to be able to offer the whole suite of services that St. Vincent's enjoys on its campus currently, be that interventional radiology, urology, haematology, nephrology or whatever else. This integration component allows us, without fear or favour, to bring the doctor to the patient rather than the patient to the doctor and to maintain that patient focus, which is what we are all about.

To be clear, is Dr. Holian saying that if the freehold on the site in the middle of the campus were sold to the State, there would be an interference with that seamless care?

Dr. John Holian

I think it is likely to throw up unforeseen bureaucratic types of issues that would be difficult to circumvent in a timely fashion and it would be an unnecessary barrier to delivering effective patient care.

Some colleagues have touched on the mortgage issue and I have questions on that. Perhaps the two lawyers before us might outline how easy it would be to find a banker or another lender to grant a mortgage secured on a freehold that is subject to a 299-year lease that has a rent of €10 per year? Can they foresee a circumstance where any bank would lend in those circumstances?

Ms Imelda Reynolds

I would say, in terms of security on its own, it would not be of any interest to any bank as security. It is really that it is just part of the larger site and it would be part of that that it would be included but obviously with the carve out of the long lease in favour of the HSE. So it is really just as part of the campus. It would not on its own be of any interest.

So it is an ancillary security.

Ms Imelda Reynolds

No.

Please briefly explain why it would not be seen as a good security.

Ms Imelda Reynolds

Because all of the revenue that will come from it is €10 per annum, if granted, and it is subject to a third party having the right to occupy it and use it for a hospital. For a banker who would look for security in income there is no income on that element of the site. It is simply a part of the larger campus, which is why that it would be included.

Is Ms Reynolds saying that the bank would be unable to realise the full value of the freehold because of the long lease subject to a tenure of rent?

Ms Imelda Reynolds

Yes.

Is there anything to prevent clinicians or their colleagues, and I direct my question at the two clinicians, from prescribing contraception for family planning purposes in St. Vincent's currently?

Mr. James Menton

None whatsoever.

A lot of commentary has focused on the Minister, and a future Minister for Health, and his or her personal views on family planning, contraception and termination of pregnancy. Is there any way in which a future Minister for Health could interfere via the golden share or otherwise with clinical practice?

Mr. James Menton

No, is the simple answer.

I have more questions for the two clinicians. Can they envisage any mechanism either now or in the future whereby religious influence could be exerted upon clinicians? What would their reaction be if another person outside of the medical team expressed an opinion on their treatment plan?

Dr. Janice Walshe

I can state that over the past 11 years, I have had no interference with the religious order at all. I cannot see with the absence of them that that is going to change. Did the Senator ask what would happen if one of my medical team disagreed with me?

No, I mean somebody outside of the medical staff within the hospital, such as somebody from the board or somebody else who worked within the hospital structure. Would clinicians ever consult or take their opinion into account?

Dr. Janice Walshe

In terms of any scenario that involves a patient, and it is usually that agreement between myself and the patient that I am more concerned about rather than somebody external. If I had an example of the kind of thing that the Senator is thinking about then I might be able to say more definitively.

How would Dr. Walshe react if Ms Reynolds, for example, who is a board member, expressed her opinion about the way patients in general or a certain patient should be treated?

Dr. Janice Walshe

We have a moral obligation and need to follow the Hippocratic oath in terms of best management for the patient, and we continue to do that on a day-to-day basis. So it is a hypothetical question, I guess, in terms of somebody coming to me but I would continue to complete best practice according to my interaction with patients, which I have always done.

Dr. John Holian

The answer would be an emphatic, "No".

Ms Imelda Reynolds

In other words, mind your own business.

Dr. John Holian

Exactly. Somebody else's opinion does not matter. We are bound by our code of ethics, as outlined by the Irish Medical Council, patient confidentiality and the laws of the land. That is it.

Ms Imelda Reynolds

If I may, I wish to comment since I was named as the perpetrator.

I only used that name as an example.

Ms Imelda Reynolds

I understand. Under no circumstances would any member of the board even consider it within the scope of his or her remit to be able to approach a clinician and make an assertion or intervene. Under absolutely no circumstances. That is just not part of the culture of the board or the hospital. There is complete clinical independence from the board.

Dr. John Holian

There has been an assertion that the board members are obliged to maintain and uphold the Catholic ethos of Mother Mary Aikenhead. That is categorically not the case. We have never made any such obligation and I can categorically deny that for the record.

Perhaps Mr. O'Raghallaigh could outline the limitations placed by charity law on the disposal of the freehold for this site.

Mr. Donal O'Raghallaigh

In considering it for SVHG, if it is disposing of an asset then it uses its assets for charitable purposes in pursuance of its objectives and its provision of healthcare facilities. It cannot give away an asset unless that is for charitable purposes that meet its objectives. Where the lease has been gifted to the HSE as part of that, that we are satisfied that meets the requirement that it is pursuant to charitable objectives to ultimately build the hospital. As one of the witnesses touched on last week, there is provision in the lease to reflect a charitable law piece that in the event the property is no longer used for a charitable purpose, a market rent for the site, disregarding the buildings and it is only a market rent on the site, would be payable so there would be some return for the charitable purpose.

Perhaps Mr. O'Raghallaigh could reiterate the impact that would be on the leaseholder if the freehold was sold.

Mr. Donal O'Raghallaigh

The lease stands alone in law and there would be no impact.

I thank our guests and as I am conscious of the limited time, I will ask four sets of questions.

First, I will ask about an area of concern, that is, the permitted use constraint on which we have heard multiple interpretations here. I believe it was mentioned by one of the speakers today that this related to ensuring that this would be a maternity hospital. However, as there is language which refers to "legally permissible healthcare services, including research, by a maternity, gynaecology, obstetrics and neonatal hospital", there is a line within permitted use that makes it very clear what kind of hospital it is. The question has been what exactly does the phrase "clinically appropriate" add. As an example of the interpretative dangers, we have had one legal advice, I think to the NMH, that they had first heard it as "all clinically appropriate and legally permissible healthcare services" and others have said "all clinically appropriate and legally permissible". It is an example of an ambiguous sentence. I mean the sentence could be seen as giving a double test of "clinically appropriate" and "legally permissible". Crucially, it places that test in legal documents such as leases and, thereby, effectively gives a responsibility to the landlord, the tenant, and the boards of both the landlord and the tenant in terms of interpretation.

I apologise in advance if I am incorrect about the following but I have heard, during the course of this meeting even, that Mulvey has said that it could be removed. I know that the National Maternity Hospital has said that it should be removed or defined and, similarly, the Government has indicated that it is looking in that regard. I require a clear answer as to whether St. Vincent's Healthcare Group is open to the removal of the phrase, "clinically appropriate" even, as we have just heard, that clinical decisions are made on the ground to an extent by the Master due to the Hippocratic oath and all of that, so why are we putting the phrase into a document that requires board interpretation?

Mr. Donal O'Raghallaigh

To touch on an earlier response, this was a request of the HSE in terms of the drafting of "clinically appropriate".

My time is limited so I am not interested in hearing the history of the phrase. I am interested in hearing the position of St. Vincent's Healthcare Group. At this moment there have been calls for the phrase to be defined and removed. What is the group's position on both aspects?

Mr. James Menton

Our position is clear in the sense that we are more than happy to engage with our partners - the Department of Health, the Minister and Holles Street - to get a solution that is satisfactory and addresses the concerns that have been raised. We have a very open mind as to whether it could be deleted, could be defined or could stay.

That is useful to know. We then come to another question of interpretation. In his opening statement, Mr. Menton indicated that the values of St. Vincent's Healthcare Group could not be interpreted as relating to a different ethos but values are, of course, interpreted. That is the nature and it is the job. I note that Professor Deirdre Madden and others specifically stated that boards do have an impact on ethos. One of the ways they do so is through how values are interpreted. One of the values listed by the St. Vincent's Healthcare Group is human dignity. In fact, it is the number one value listed. There are multiple interpretations of that in the world. The Universal Declaration of Human Rights talks about human beings who are born, so from the point of birth, being free and equal in dignity. The Dignitas Humanae Institute in Rome, which has a universal declaration on human dignity, states that human dignity applies to every single human being without exception from conception until natural death, and that the most effective means of safeguarding this recognition is through the active participation of the Christian faith in the public square. Those are two interpretations of human dignity. I could give multiple examples but I will only give two due to time limitations. What is the interpretation of human dignity by the St. Vincent's Healthcare Group? Another of its values relates to the voice of the voiceless. Is that speaking on behalf of women or what is the interpretation of that?

Mr. James Menton

Perhaps Ms Reynolds would like to respond.

Ms Imelda Reynolds

I will try to address some of those points. In terms of the values, we are looking at the culture of the organisation. When we look at the human dignity piece, that has to be read in the context of the phrase "all legally permissible", which is the case.

Sorry, just to be clear but legally permissible is separate. The reference is to the hospital being established under a clinically appropriate and legally permissible framework. We can take that as legally permissible but I am asking about the interpretation of the phrase "human dignity" as, for example, it might apply to "clinically appropriate".

Ms Imelda Reynolds

I am sorry, but I did not catch the Senator's last point.

I gave two interpretations of the phrase "human dignity". The first is from the Universal Declaration of Human Rights and refers to human dignity as beginning from birth. The second was from the universal declaration of human dignity, which refers to every single human being from conception.

Ms Imelda Reynolds

In the context of the group, it relates to delivering patient care is the way we must look at it. The intention is to deliver patient care in a dignified way, respecting people's dignity.

I understand that but Ms Reynolds can see what we mean by interpretable. Those are two different interpretations of that phrase, both of which are in the public domain. She will see why it would be relevant. Perhaps she will follow up in writing regarding what the definition is, given that in one definition it begins specifically at birth and in another it specifically begins at conception.

Ms Imelda Reynolds

It is not defined as such. It is there as a value for the group.

That value is interpreted in relation to patient care and decisions in respect of that, which would impact on the ethos. I note that this is what Professor Deirdre Madden and others identified, namely, that ethos does matter.

The new constitution dating from April of this year refers to the "voice of the voiceless". I want to understand how the St. Vincent's Healthcare Group, which will nominate members to the board of the new entity, interprets that.

Ms Imelda Reynolds

Is Senator Higgins asking how the St. Vincent's Healthcare Group will be nominating members to the NMH?

It will be nominating members to the new proposed national maternity hospital body-----

Ms Imelda Reynolds

That is the holding company.

This is why it is relevant how St. Vincent's Healthcare Group interprets these values.

Ms Imelda Reynolds

Does Mr. Menton want to deal with the nomination of members?

No, not the holding company but in fact the national maternity hospital DAC.

Ms Imelda Reynolds

I do not know what more I can say other than they are the values that will be applied by the group in pursuing those objectives.

The witnesses may follow up in writing. We did not get much of a sense of how the voice of the voiceless argument might be interpreted. That is fine. It is another example of why removing "clinically appropriate" might be useful.

Do the witnesses think it is a little excessive to have three members of the St. Vincent's Healthcare Group on the board of this new entity? It is the landlord. It has all the powers that pertain to the landlord and now it will also have three members on the board but, in particular, a rotating chairmanship. Is a rotating chairmanship really appropriate? We have been told it is to ensure seamless measures in terms of employment and to mind the interests of the group's other properties on the campus. Chairmanship is the most senior role on the board of the national maternity hospital. Why would St. Vincent's Healthcare Group, as landlord, also seek chairmanship on a rotating basis? Is that something the group would be open not to do?

Mr. James Menton

The construction of the board and rotation of the chairman reflect the partnership approach to this project. As a consequence, it is fair and reasonable for each partner to have equal representation on the board and to have the opportunity, on a three-year basis, to rotate the chairmanship. That is perfectly good governance and relatively similar to practice in-----

It creates a tension, however, because the national maternity hospital is effectively there as a tenant of a landlord. Having the landlord chair the board of the tenant seems to create somewhat of a tension. I just might two or three points on the contract.

Mr. James Menton

Could I comment further on-----

I will give Mr. Menton a chance to answer a couple of questions at the same time. I would appreciate a response on the issue of the chairmanship. On the 30-year option for the State, why not 70 years? We have been told 70 years is the expected lifespan of the first hospital, so why not have 70 years in terms of that first lifetime? Would that not give some more security to the State that it could buy the freehold? Any of the reasons that were outlined as a concern in terms of selling the freehold to the State would surely apply to selling it to somebody else.

Mr. Donal O'Raghallaigh

I just missed the last part of the question.

Mr. O'Rallaghaigh mentioned his concerns in relation to selling the freehold to the State. Would that not also apply to selling it to someone else? If it only applies at this point before the hospital is built, then why not continue to have a first refusal on the freehold for the 70 years of the first hospital?

Mr. Donal O'Raghallaigh

It is very unusual for a property owner to leave a right of first refusal out for so long. This was part of the various concessions that were made in relation to the documents, and this was a concession given to the HSE to recognise some of its concerns in the short term.

It is a very unusual situation.

I will have to bring Senator Higgins’s questions to an end.

Senator Higgins should please conclude. We need to move on.

She keeps fading in and out as well.

I apologise. Could I just ask one last question?

We are going to have a second round, so the Senator might get in then.

If it is possible, could the witnesses answer the question on options for the State to exit.

I thank the witnesses for attending. Some of the clarity that was brought to the discussion by the clinicians is very welcome. It is important, however, to put on record that the number of terminations that have taken place in St. Vincent's between 2016 and 2021 is fewer than five, that is, anywhere between zero and four. That information came in reply to a parliamentary question last October.

Furthermore, Senator Clifford Lee spoke about contraception. In the same reply, it was stated clearly by Mr. Paul Gallagher, the head of nursing and midwifery, that sterilisation takes place in St. Vincent's when clinically required, which is important, and that sterilisation as an exclusive procedure is not available in St. Vincent's. It is important to put that on record as well. I will give the clinicians a moment to respond to those figures. The remainder of my questions will be for Mr. Menton.

Dr. Janice Walshe

I alluded earlier to the fact that, as Senator Conway correctly said, only a small number of terminations of pregnancy have happened on the St. Vincent's campus. They have happened, however, and the number we know is five.

According to the reply to the parliamentary question, which is part of the record of the House, it is less than five. That is anywhere between zero and four.

Dr. Janice Walshe

It has occurred on the St. Vincent's campus. I believe the committee had testimony on this earlier in the week from Professor Mary Higgins.

I am afraid we did not get figures.

Dr. Janice Walshe

It has occurred so it is not zero.

I suggest it is fewer than four.

Dr. Janice Walshe

The figures are so low because those particular cases were complex and completed in combination with other physicians required as part of multidisciplinary care. We discuss the need for termination intermittently but regularly. Much of this, as Dr. Holian outlined, does take place in the maternity hospital by virtue of the fact it has more resources available and proper psychological care for those patients undergoing something that is very difficult.

With respect, sterilisation would not fall into this category. What worries me is the phrase "clinically required". If it is not clinically required but patients wish to go ahead with it because they deem it in their best interests, would it be provided? I suggest probably not.

Dr. Janice Walshe

In the current legal framework it is a permitted procedure and therefore it should be provided.

I will move on to Mr. Menton. Would Mr Menton describe himself as a hands-on chair? Would he consider himself more of an executive chair than an non-executive chair?

Mr. James Menton

No, I would not.

How would he describe himself?

Mr. James Menton

I would say I am very active in my role as a chair. The idea of being an executive chair does not have-----

Is he briefed on all strategic decisions the hospital and group consider? Is he aware of major policy initiatives and engagements or discussions with third parties?

Mr. James Menton

The board and I would be aware of them as communicated by management or if I had participated in some of the discussions as appropriate.

That is okay. Deputy Shortall has spoken to Mr. Menton about the debt. He put up a vigorous defence of it. I would describe it as perilous. We are speaking about €452 million of debt and there are €200 million in assets. Through no fault of Mr. Menton, as a result of Covid the situation is deteriorating and the 2021 accounts will make very interesting reading with regard to the deterioration. I put it to Mr. Menton that the lenders and bankers had a view as to whether the site should have been gifted to the State. There was engagement between St. Vincent's and its bankers, lenders and the people it depends on for solvency as to whether the site would be gifted. Am I correct?

Mr. James Menton

No.

There was no engagement whatsoever and no discussion. The financial lenders had no concern as to what would happen with what is probably the most valuable piece of land in the city of Dublin.

Mr. James Menton

We consulted and were granted permission for the change in control by the Bank of Ireland.

Hang on a second. Mr. Menton's initial answer was "No". Now he is telling us it consulted. Which is it?

Mr. James Menton

We consulted on the share transfer because we were required under the standard change in control provisions of our loan agreement to get permission to effect the share transfer. On the land issue-----

The ownership of the land issue.

Mr. James Menton

Indeed.

Mr. Menton must bear in mind he is at a meeting of an Oireachtas committee.

Mr. James Menton

Yes.

It is important to give correct information.

Mr. James Menton

I honestly intend absolutely to do so.

Mr. James Menton

I absolutely intend to do so and I am doing so`, I believe.

Mr. James Menton

As regards Bank of Ireland, which is our financial partner, its involvement in the group is strictly with St. Vincent's Private Hospital. In our loan arrangements with it we have been compliant in performance, in terms of capital repayments and meeting our interest bills, like any other borrower. The reference made to the variation in covenants goes back to the fact those variations relate to covenants written in 2010. Then we had the recession. As part of the process we need to technically revise those waivers on a periodic basis. As Deputy Shortall alluded to, the next revision is in approximately three or four months' time.

Three or four months' time.

Mr. James Menton

Yes. Those discussions have been ongoing and we have had very positive reaction from Bank of Ireland that those waivers will continue through the end of next year. We are absolutely satisfied our performance vis-à-vis our loan obligations is completely in accordance with the loan repayment schedule, the interest payment schedule and, as I explained as best I could, the requirements of covenants.

Mr. Menton can categorically assure the committee and the people looking in that the banks at no stage persuaded or suggested, either covertly or overtly, formally or informally, that it would not be a good idea to gift the land to the State.

Mr. James Menton

There were no discussions.

Is Mr. Menton sure of that?

Mr. James Menton

To the best of my knowledge and belief I absolutely am, yes.

I would think that perhaps Mr. Menton should reflect on this. I will move on to another question.

What is the Senator saying that Mr. Menton should reflect on?

Is Mr. Menton 100% sure there was no engagement or discussion?

Mr. James Menton

With regard to whether the banks had discussions with us formally or informally, covertly or otherwise, suggesting we should not give the land to the State, I can categorically assure the Senator they did not.

Okay, I take Mr. Menton's word on that.

Mr. James Menton

Categorically.

Like many other businesses the hospital has been under pressure, and that is not unusual as we have been through a worldwide pandemic. With regard to the overall business plan, at any point in recent years did St. Vincent's Healthcare Group engage in discussions to sell the business to an international entity?

Mr. James Menton

No, we did not.

And there was no-----

Mr. James Menton

To sell the business? Absolutely not.

That is fair enough. I have one more question on "clinically appropriate". Perhaps the witnesses might advise us on when the engagement or discussion on "clinically appropriate" first emerged. To be fair, the witnesses have been clear it did not come from their side. At what point was the phrase "clinically appropriate", which has caused many problems, concerns and difficulties for people, put on the table as something that needed to be included in the constitution?

Mr. Donal O'Raghallaigh

It was in recent months. If the Senator would like us to reply on exactly when it was, I will gladly do so.

It would be useful. While there has been a lot of explanation as to its context, to enshrine public confidence in this, which is what we are trying to do, and do not get me wrong because I am supportive of the project, we need to ensure the public is brought with us. Our job is to ask questions on behalf of the public. Unfortunately, the public does not have the option to come in here and put questions to the witnesses. As others have said, this is not in any way personal. We have a duty of care to ask the questions. The phrase "clinically appropriate" needs further clarity from all parties, including the witnesses.

Mr. Donal O'Raghallaigh

I will come back to the Senator, very shortly I hope.

I thank the witnesses.

I thank all of our guests for coming before the committee and giving us the information we are seeking. One of the witnesses before the committee last Thursday has now decided to describe freehold and leasehold as freehold being like owning a car and leasehold like owning a caravan. Therefore, when someone owns a caravan they cannot set out the direction they go in. Taking this, it means there are now more than 300,000 people living in houses who technically, in accordance with this interpretation, are living in caravans. Will the witnesses set out the difference with regard to a leasehold? As I understand it, a leasehold is a separate legal entity from a freehold. In other words, there is a freehold legal entity and a leasehold legal entity. The leasehold is taken from the freehold interest. Therefore, someone with a leasehold interest of 299 years has full control of the property.

I think there is a misinterpretation out there on that. For instance, the person goes on to state: "Another control lost over the asset through the leases’ terms, which would not apply if the state owned the freehold, is that St Vincent’s can mortgage the new NMH building." That is what is up there. That is in writing. This is from a legal adviser who was here with us last Thursday. It is important that we clarify what is the legal interest. The HSE is getting a 299-year lease. Is that correct?

Ms Imelda Reynolds

Yes.

Does it have full control over that building?

Ms Imelda Reynolds

Yes.

My understanding is that it is then giving a licence to the new NMH board. Is that correct?

Ms Imelda Reynolds

Yes.

In regard to the building itself, can SVHG mortgage the building as a separate entity?

Ms Imelda Reynolds

No.

Can we have clarification on that?

Ms Imelda Reynolds

At the risk of repeating what was said earlier, we can only mortgage the freehold reversionary interest - the interest out of which the leasehold has been created - but it would be subject to that 299-year lease, so there would be no impact on-----

People are looking for clarification. It is set out in writing that St. Vincent's can mortgage the NMH building. Is that correct or is it not?

Ms Imelda Reynolds

No.

The building is going to be a separate legal entity from the interest of St. Vincent's.

Ms Imelda Reynolds

Yes.

That statement was incorrect in setting that out. Am I right?

Ms Imelda Reynolds

Yes. I do not want to get too bogged down in the details, but the site on which it is being built will continue to be owned by the-----

I am aware of that but the building itself cannot be mortgaged by St. Vincent's.

Ms Imelda Reynolds

No.

This legal person has said also that the building will always belong to the landlord, St. Vincent's.

Ms Imelda Reynolds

No, the building is being constructed by the HSE and-----

While the lease is in place, am I correct that the HSE physically owns the building? That is the position.

Ms Imelda Reynolds

Yes.

Many people have been on about why the State cannot go for a compulsory purchase order CPO. For argument’s sake, if the Government decided tomorrow that it would not proceed and that it wants the freehold interest and, therefore, St. Vincent's decides not to enter into negotiations and this goes down the CPO route, what then would be the reaction of St. Vincent's Hospital to that proposal?

Mr. James Menton

It would completely unravel the partnership framework that is on the table in front of the Government to make a decision in conjunction with ourselves. It would set the project back ten years-plus. It would be an extraordinarily negative development in everybody's agreed objective to improve maternity care for women in Ireland. Without prejudice to a full consideration and discussion at a board level, my personal reaction as a director is that we would seek to the challenge the CPO because we would like to keep the integrity of our campus.

I am not sure whether the witnesses have seen the opinion of Stephen Dodd SC. Many people are quoting it and saying it is a way of dealing with this. He has given advices. My interpretation of his opinion is not the same as what is up on social media. The legal adviser might give us his view.

Mr. Donal O'Raghallaigh

I have not seen that opinion, but I heard reference to evidence or to a witness statement that was given here last week which highlights the constitutional issue with the HSE's current CPO powers. I do not disagree with that. It also said there would be a legislative piece to seek to remedy that. Where a body is seeking to CPO, it is not just about what powers it has and it also has to show that the CPO is proportionate. I think it would be a difficult point for the HSE, where it is being gifted a 300-year lease of a site, to show that it is proportionate for the State to exercise a compulsory power to acquire freehold. It would be hard for the State to justify.

In other words, Mr. O’Raghallaigh is saying that because the HSE is getting a 299-year lease, it would be very hard to argue that we are not getting full control.

Mr. Donal O'Raghallaigh

I think so, yes.

And that the State would have a difficulty on that issue alone.

Mr. Donal O'Raghallaigh

Yes.

There seems to have been misinformation provided at the meeting on Thursday. The word “demise” is set out in the lease and it clearly sets out that SVHG is demising the leasehold interest for 299 years to the HSE. When the legal expert was asked by another Deputy does St. Vincent's still retain ownership of the building, the answer was that, yes, it does. Mr. O’Raghallaigh might translate into layman's terms the word “demise”. As I understand it, it means that we are transferring control for 299 years. Would that be a correct interpretation?

Mr. Donal O'Raghallaigh

Yes, that is fair . The freeholder is stepping away from the property for the 299 years. If we take the freehold here, the depth of enjoyment of the property is there, this is the lease, and the freeholder has stepped away by granting the lease, although there are covenants in the lease for the tenant to continue to enjoy the property. It is subject to the lease but, effectively, for as long as the tenant complies with the lease, it has the lands for the 299 years.

In regard to compliance, the lease clearly sets out that it must be used for medical purposes. In what circumstances could the landlord suddenly go in and take control of the property or forfeit the lease?

Mr. Donal O'Raghallaigh

There are a number of points. If the hospital is not built, for example, there is an ability to take the property back. If there is a material breach of the lease like an abandonment of the building, for example, if it was partly built and then abandoned, the property can be taken back.

As long as it is providing healthcare in that building-----

Mr. Donal O'Raghallaigh

The obligation of the HSE is to provide a public healthcare facility in accordance with the lease.

There are no other circumstances in which the landlord could physically take control of this building from the HSE.

Mr. Donal O'Raghallaigh

No. As I referred to earlier, there are couple of provisions in an option agreement, if it is sought to exercise certain landlord and tenant rights, that the lease could be taken back in those circumstances but, other than that, no.

Will Mr. O’Raghallaigh outline those circumstances?

Mr. Donal O'Raghallaigh

In one of the option agreements which was touched on last week, if the HSE sought to exercise landlord and tenant right to renew the lease beyond 300 years or to change the user, then there is an ability for SVHG to take it back.

That is only if the HSE decides that it wants to use the property for an alternative purpose.

Mr. Donal O'Raghallaigh

Absolutely.

There are no other grounds where it can take it back.

Mr. Donal O'Raghallaigh

That is it, yes.

Therefore, the analysis that I started off with of the car and a caravan does not fit.

Mr. Donal O'Raghallaigh

Not to be glib, I think there are two caravans. We are handing a caravan for 299 years to one person and, subject to certain to certain conditions, as long as that person does certain things with this caravan, it is theirs for 299 years. That is it in its simplest form. The actual use and enjoyment of the property will be at the tenant level; it will be with the HSE.

Mr. James Menton

I want to add a comment because there has been a lot of reference to legal provisions and legal this, that and the other. Our objective is to have this project proceed, to have this building built, owned by the State under a lease ownership arrangement, to improve maternity care and neonatal care for women in Ireland. All of the various legal points that have been validly raised are just to ensure that happens and that the building will be used for the healthcare purpose for which it is being constructed and funded by the taxpayer.

Does Mr. Menton also agree there is a lot of incorrect information in the public domain?

The message being sent out is as if St. Vincent's controlled the building, even though the lease is given to the HSE.

Mr. James Menton

All my colleagues and I can do here today is to testify to the contrary.

I will bring the other members in presently. Before I do so, I make the point that it has been a long negotiation between our guests and the HSE and the Government. What were the main stumbling blocks? Was it the issue of freehold and the land? In his opening statement, Mr. Menton made the point that ownership of Elm Park campus lands is essential to ensuring ongoing provision of best hospital care and so on. Was that the stumbling block all along or was it other issues?

Mr. James Menton

Basically, it was to try to get an agreement between two voluntary hospitals and the State that respects the interests of the State, which is investing substantial amounts of taxpayers' money in the project, as well as the interests of the National Maternity Hospital, and ensures its clinical, operational and financial independence will be respected when it transfers to Elm Park. From our perspective, it was to protect our ability to provide services to our patients. There was a multiplicity of issues around that. I compliment Kieran Mulvey on the mediation and his report. Although there are legal agreements about various matters, the reality is that if the Government gives the go-ahead, the Mulvey report will be essentially implemented in full, save for a rebalancing of representation on the board. The original Mulvey report called for four board representatives from St. Vincent's, four from the Holles Street Trust and one independent expert. That has been rebalanced in the past year such that there will be three, three and three. Each partner will have three representatives. The Mulvey report also referred to a lien over the building. To answer the Chairman's point directly, that certainly has consumed quite a lot of discussion in the context of giving effect to the protection of the State's interest.

I am entitled to ask a question, if that is okay with Deputy Shortall. The Deputy is first on the list, so I do not know what the big problem is.

I ask Mr. Menton to address the issue of the significant risk to patient care.

Mr. James Menton

Dr. Holian referred to an illustration of that risk, involving, to summarise, where the doctor comes to the patient rather than the patient coming to the doctor. Any impediment to that simple observation, which is crucially important to the patient, is what concerns us.

I do not understand. I do not see the link between the State owning the land and-----

Mr. James Menton

It is clear that if the State owned freehold of the land, we would have no further interest in a substantial part of our campus upon which will be built a very fine facility that is designed to be integrated with the university hospital. There would be two systems of governance, two managements and two of everything else. Our concern is that, given the nature of the proposed design of the building, that would impede upon our ability to look at-----

Mr. Menton is saying it would pose a risk in the context of patient care.

Mr. James Menton

Yes, I do believe that. Does Dr. Holian wish to add to that?

Dr. John Holian

Not particularly, but I will provide examples of why this initiative is so urgently required. There have been many occasions when I have been called upon by my colleagues in Holles Street to give a clinically urgent opinion in the setting of a high-risk pregnancy. At times, it is extraordinarily challenging for me to make it from St. Vincent's to Holles Street in a timeframe that the patient deserves. Removing not just the physical impediments but also the operational impediments that ownership alludes to will ensure that our focus, which is on delivering effective and timely patient care, is remedied.

I will move to Deputy Shortall.

I thank the Chairman. I wish to check back on a couple of comments made by Mr. Menton. He stated that the last direct conversation he had about the State purchasing the site was approximately five years ago with Jim Breslin. Is that correct?

Mr. James Menton

No. I am sorry. I directly had discussions on that topic in significant detail but, to be fair, I may need to correct that point. Last June, this issue arose again. The Minister met our shareholders to discuss the topic of-----

Was Mr. Menton present at that meeting?

Mr. James Menton

I was not.

What was the view of the shareholders at that stage?

Mr. James Menton

They referred the matter to us because we are the owners of the land. There was a brief communication between us and the Department and the HSE, where our position of five years ago remained constant.

Mr. Menton was not asked directly in recent times about selling the site. Is that the case?

Mr. James Menton

I do not think you could characterise it as that. There were no serious or meaningful discussions because our position remained unaltered and I think that was well known.

I thank Mr. Menton. As regards the offending phrase "clinically appropriate", the Minister is saying he has no issue with putting in a definition or removing that phrase completely. Holles Street has said the same. As I understand it, Mr. Menton is saying the same. I ask that he confirm that he would not have a difficulty with that phrase being removed from all the documents or a definition being provided in all the documents.

Mr. James Menton

I would not have a difficulty with that. That is a fair summary.

That is grand. When I asked about floating charges earlier in the meeting, Mr. Menton indicated that floating charges do not apply to all assets.

Mr. James Menton

Yes. I refer to our clinical services building, for example. Most people in the room are familiar with the campus and will be aware that building comprises the university hospital and the Nutley wing, a recently constructed specialist ward block. The taxpayers' interest in those buildings is protected under a grant agreement and obviously they are not part or not available-----

Okay, but those charges would apply to all other buildings and sites-----

Mr. James Menton

That are not State-financed.

-----currently and in the future.

Mr. James Menton

So long as they are not State-financed and we do not breach any-----

Okay. I refer to the issue of the ownership of the building. The first schedule to the lease refers to any buildings on the site. That is what premises means in that context. Under the heading of "landlord mortgaging", the lease refers to St. Vincent's Healthcare Group having covenants with the tenant not to mortgage or charge the landlords freehold interest in the premises, including buildings, without the prior written consent of the tenant. The tenant will be the HSE.

Mr. James Menton

Yes.

If the HSE consents to St. Vincent's mortgaging the site and the building, it could do it sooner than 20 years. The other phrase used in this regard refers to such consent not being "unreasonably withheld or delayed". If St. Vincent's gets into serious financial difficulty, as it has been from time to time-----

Mr. James Menton

I do not accept that.

Mr. Donal O'Raghallaigh

I refer the Deputy back to my previous answer on this, to be clear.

I recall Mr. O'Raghallaigh's previous answer. I also recall clearly that St. Vincent's mortgaged the public hospital to build a private hospital, without any approvals. It does have form in this regard.

Mr. Donal O'Raghallaigh

What we are looking at are legal documents in front of us in 2022.

Our guests will be aware that the head of the HSE referred to St. Vincent's private hospital as having a parasitic dependence on the public hospital.

Mr. Donal O'Raghallaigh

I cannot comment on that.

Some of us remember that very clearly and it is our concern now.

Mr. Donal O'Raghallaigh

What I-----

Is Mr. O'Raghallaigh denying that the licence vitiates the ownership issue in the lease?

The Deputy asked a question. I ask that she allow our guests to respond.

Mr. James Menton

A former director general made those comments. I was chairman then and still am, and I wholly reject what was asserted and alleged. St. Vincent's private hospital is an independent entity within the SVHG. It does not receive any funds from the taxpayer-----

I did not say that.

Mr. James Menton

-----and it does not receive funding-----

St. Vincent's mortgaged the public hospitals to raise money for the private hospital.

I ask the Deputy to let Mr. Menton respond, please. She has asked him a question.

Mr. James Menton

I was not party to the decisions in respect of the arrangements to which the Deputy is referring that come out of the report of the Comptroller and Auditor General.

A very important point to make is that all of those were remedied and perfected because, at the time, as I understand it, there was no appropriate legal documentation from the State to exercise the protection of the State's interest.

Is that where all the St. Vincent's debts come from?

Deputy Lahart is the next speaker.

From the private hospital building?

I am moving on.

Mr. James Menton

Sorry-----

The debts come from building the private hospital.

Deputy Shortall, allow Deputy Lahart to proceed.

There does not appear to be an answer.

Provision is made regarding any of the properties of the public hospital such that the HSE would have first refusal on the sale of those. Is that not correct?

Mr. James Menton

Yes, for a period of time

For a period of time. It seems there are no Vatican papers. Mr. Menton said the group could not go down the Bon Secours route of a foreign healthcare group coming in and buying the entire site. The group cannot mortgage the new building; it can only mortgage the freehold interest, which is not really worth-----

Mr. James Menton

Yes.

I can take an interpretation put on the Mary Aikenhead values from the extreme end but it seems even a humanist could stand over the values.

Mr. James Menton

Yes.

They are not Catholic doctrine.

Mr. James Menton

No.

I assume the existing private end to the public hospital will reflect the history of the contribution. All of that cannot be cancelled but the new maternity hospital will have no reference to any of that.

Mr. James Menton

Exactly

Why did the nuns not decide to sell the site? They were getting out and they could have sold it to another healthcare group.

Mr. James Menton

I cannot give the Deputy a definitive answer because I do not advise the sisters as to what they should or should not do with various interests.

I presume the religious sisters established the hospital back in the day.

Mr. James Menton

They did, in 1834.

As religious numbers began to diminish, they brought in a lay element to help them run it. Twenty years ago that was set up into the formal St. Vincent's Healthcare Group.

Mr. James Menton

Correct.

Were the nuns there at that stage?

Mr. James Menton

As board members, I would submit.

They are now gone as board members.

Mr. James Menton

I do not think there is anybody in an executive role.

I am just trying to be objective. They could say, essentially, that what they have done with having a rent of €10 a year is that this is a gift to the State because there is no cost to it but the State does not own the land in perpetuity. The HSE has a lease on it for 299 years. What was that transition from the Religious Sisters of Charity into the St Vincent's Healthcare Group about? This relates to Deputy Bríd Smith’s question. That was about continuing the ethos. Was it not?

Mr. James Menton

Could the Deputy repeat the question? I was distracted there.

That evolution from the sisters being exclusively in charge and then the establishment of the St. Vincent's Healthcare Group, which essentially took over from the Religious Sisters of Charity-----

Mr. James Menton

Directly. Their direct interests, yes.

That group has a Catholic flavour to it and there is nothing wrong with that. This is what Deputy Bríd Smith was asking about. Is the spirit that permeates that influential in anything the healthcare group does?

Mr. James Menton

I do not believe so. I am having difficulty hearing.

There is another meeting, as it were, going on here.

Mr. James Menton

I beg the Deputy's pardon. If he would repeat his line of thinking, I will do my level best to respond.

I presume the Religious Sisters of Charity believe they have handed their legacy into good hands.

Mr. James Menton

I hope so.

Is it into hands that reflect their particular denominational ethos now? Did it reflect that and does it now?

Mr. James Menton

My response to the Deputy's question and observation is as follows. What the Sisters of Charity wanted to do in the construction of the share transfer was to ensure St. Vincent's fulfils its mission of looking after people and getting the best outcomes for our patients. The one big difference-----

That is a kind of legacy.

Mr. James Menton

Yes. They wanted to leave healthcare but they did not want St. Vincent’s to leave healthcare. That is the way I would put it.

Mr. James Menton

The big difference is that the direction of travel was to have St. Vincent's continue in healthcare but without any ethical or religious voice. That is the way I would I put it.

That is an important point. I suppose it is subjective as to whether people believe it or not.

Mr. James Menton

Yes.

The Religious Sisters of Charity had quite a formidable footprint in healthcare in that part of Dublin. Their numbers were diminishing and they wanted to ensure their legacy in healthcare was not forgotten even though they were handing it over to an organisation and structure that over time would simply reflect the Religious Sisters of Charity's values of dignity and compassion but not their doctrine.

Mr. James Menton

Yes.

Regarding the number of terminations, I have the last figures available for them. The Minister is obliged to get those. There were more than 6,500 terminations in 2020, 2,414 of those were in Dublin and only 1.8% of those took place in a hospital setting, which leaves approximately 10% of those, the figure Mr. Menton mentioned, having taken place in St. Vincent's. Given that it is not really a public or private maternity hospital in that sense, it sounds reasonable that 10% of the terminations that took place in a hospital setting took place in St. Vincent's.

I will continue in the same vein as the previous Deputy in terms of the role of the sisters. Have they or their nominees any shares anywhere in the St. Vincent's Holdings or St. Vincent's Healthcare Group?

Mr. James Menton

No. Categorically, no.

Did they make any financial gain from walking away?

Mr. James Menton

No.

Did they sell the shares on to somebody?

Mr. James Menton

No. They sold them to the new holding company, St. Vincent’s Holdings.

Did they make a lot of money out of that?

Mr. James Menton

No.

Did they make any money?

Mr. James Menton

They made no money.

They sold them but made no money.

Mr. James Menton

They transferred the shares.

Transferred them without selling.

Mr. James Menton

No. They sold the shares legally for nil consideration as well as the fact we granted them an indemnity, which Mr. O'Raghallaigh might cover. In common or garden language-----

Please, that is what people want to hear.

Mr. James Menton

-----they sold the shares for virtually no consideration.

For no money. Yes.

Can one sell something for no money?

Mr. James Menton

In common or garden language, we did not give them a big cheque.

Did the group give them a euro?

Mr. James Menton

Did we even give them a euro?

How does one sell something and not get money, or something else be it even a dozen eggs, for it?

Mr. James Menton

I will ask my legal adviser to respond to that.

Mr. Donal O'Raghallaigh

I will try to respond to that question. It was nominal what was paid; absolutely, nominal.

Mr. O'Raghallaigh cannot remember the nominality of it?

Mr. Donal O'Raghallaigh

I cannot remember but it would be considered a gift.

They are now gone out of the picture. Now we have an evolution from religious to nothing. People have sent me photographs in the past hour of crucifixes, mass stands and different items around the hospital. I will again ask Mr. Menton when does the group hope to have all iconography removed from the hospital now that it has evolved into a secular hospital?

Mr. James Menton

As I said earlier, the final transaction was only concluded a couple of weeks ago. Certainly the board has as an objective to reflect the fact we are a secular organisation and that we would anticipate moving along that direction in terms of iconography.

That does not answer my question. That is my second time to ask it. When I ask when that will happen, Mr. Menton could say it would be a month, two months, ten months or ten years. He could answer me that way.

Mr. James Menton

Sooner rather later. Over the next three to six months.

Grand. In the next two to three months Mr. Menton hopes to have all that religious stuff moved.

Mr. James Menton

I said three to six months and we will address that issue in the-----

Grand. There was a discussion earlier, and I cannot remember who asked the question, as to whether a member of the board would ever approach a clinician about his or her decision and the response was categorically, no, that would not happen. Could Mr. Menton envisage a situation where a clinician would approach the board about its decision given the very limited laws we have around abortion? For example, in the case of a fatal foetal abnormality, if an infant can survive more than 28 days outside the womb, the abortion should not be allowed. It would be illegal. The clinician who might carry it out, if he or she thought that infant would not survive more than two months, would be subject to the possibility of prosecution and a jail sentence.

Can Mr. Menton envisage any situation where a clinician might approach the board and that somewhere in the back of all this - particularly with Mr. Menton's appointment given that the nuns trusted him so much - would be a Catholic head that would be saying, "Well what do we do here?"

Mr. James Menton

I might ask the clinicians to cover that.

Dr. John Holian

I would say that board would not be the appropriate forum for that. St. Vincent's has a medical ethics committee which includes ethics professors, clinicians and international experts on human reproduction. That would be a far more appropriate forum to raise that type of issue.

Does that medical ethics committee have any of the ethics of the original Mother Mary Aikenhead group?

Dr. John Holian

No.

Could Dr. Holian send that medical ethics constitution to Members of the Oireachtas?

Dr. John Holian

I am sure we could do that without-----

That would be gratefully received. All the information the witnesses are giving us is very interesting but at some point we need to put pressure on the Government to give us more time to deal with the rest of this stuff. There is a lot of stuff outstanding and a lot of stuff emerging that is causing concern.

I presume everybody is of one opinion on the provision of the much-needed maternity support services, which need to be updated as a matter of urgency to meet the health requirements of women and children in our society. I ask the witnesses to confirm that this is the case and to emphasise if possible, the extent to which it is important to proceed as early as possible.

Mr. James Menton

I could not emphasise it strongly enough.

The word "gifting" has come up several times recently. I acknowledge that the various religious institutions of all shades of opinion have in the past gifted hospital, sports facilities, schools and other facilities to a fair extent. Is such a gift subject to taxation? Is it subject to a particular issue and hence the necessity to have a nominal payment or otherwise? We are aware that, for instance, in family property there are strict rules in gifting to members of the family and associates. Would that apply in this case?

Ms Imelda Reynolds

Without getting too legalistic about it, for there to be an effective contractual transfer of the issue, there must be some consideration. In the case of this particular share transfer, the indemnity was the benefit that passed. There has to be the offer, the acceptance and then the benefit that accrues. That is what happened in this situation. That is just trying to make it very simplistic for this.

My final question is on the extent to which the investment by the taxpayer on the site is protected through the passage of time. For instance, is the taxpayer protected adequately in the event of circumstances, known or unknown, which might affect the arrangement?

Mr. James Menton

I believe so. It is in our interests that the taxpayer is protected because we want the building to be there. Maybe its useful life is only 70 or 75 years; the lease is much longer than that. However, it is not unreasonable to assume that after 75 years the building would need to be remodelled, rejuvenated. That would be a matter of negotiation between the three parties in the same way as it has been, albeit for a longer period of time. I hope the next negotiation will be much shorter.

Mr. Menton mentioned another negotiation, which concerns me. As it seems in the lease there is simply a requirement that there would be maternity hospitals and that if there is not a maternity hospital, there is a return to the €850,000 rent, which is the actual rent that is waived and reduced to €10. We mentioned earlier when that might apply. Permitted use is one of the forfeiture events whereby the site would be given back or St. Vincent's Healthcare Group may reclaim the site as was mentioned. Of course, permitted use includes the undefined phrase "clinically appropriate".

Mr. Menton mentioned the idea of a negotiation in 75 years' time. I would like to be clear about what would happen. Is it the case that either the State would build a new hospital that St. Vincent's Healthcare Group would be happy with or it would return to market rent for the remaining 210 years? I ask Mr. Menton to confirm in terms of permitted use this is another 75 years. He mentioned that in 100 years the national maternity hospital might want to move on. After 170 years, the Religious Sisters of Charity have moved their model on. What is the exit mechanism for the State if in 75 years, the State decides it wants to leave? As I see it at the moment it only has an option to leave in the case of the insolvency St. Vincent's Healthcare Group.

Mr. James Menton

I will ask Mr. O'Raghallaigh to answer that question. The original lease term was 99 years with an option for an extra 50 years. We were then approached by the Government to extend the lease for a further period of time, which we did.

I think the terms of the lease were considerably worse than anybody expected when that was being discussed, in terms of the €850,000 liability, potentially, if the State does not continue to have hospitals on that ground.

Mr. James Menton

I will let Mr. O'Raghallaigh cover that point.

Mr. Donal O'Raghallaigh

Regarding the €850,000, as one of the witnesses last week reflected, charity law points to having to recover the rent if it is applied to a non-charitable use. I know the Senator asked about the 70 years a few times last week and so let me answer it. At 70 years, it would be up to the State to decide if it is going to rebuild. That will be the State's decision. There is not a compulsion on the State pursuant to the lease to rebuild at the end of the life cycle of the building, but it has an obligation to continue to use it as a hospital. So, that would be the State's decision.

We keep saying that to use it as a hospital is the obligation. The obligation is permitted use, which includes reference to using it as a hospital and includes reference to clinically appropriate, so just permitted use-----

Mr. Donal O'Raghallaigh

I will segue to those two points. I know there are two distinct points. I am shorthanding it into the hospital if that is okay.

That would return to market rent at that point. We would have a contract for the 210 years with market rent payable to St. Vincent's Healthcare Group if the State chose not to. There is no exit mechanism.

Mr. Donal O'Raghallaigh

There is no exit mechanism without agreement. For as long as the State complies with its obligations under the lease in relation to permitted use - I will shorthand that to operating a hospital - it pays a nominal rent.

If it does not, it pays market rent for the remaining period.

Mr. Donal O'Raghallaigh

Market rent for the site, not-----

I wish to pick up on the chair's point. He mentioned that significant risk to patient care was being given as the reason. I am not clear why that would not be the case with a HSE or other hospital that had a co-operation agreement. We were told it was about the distance, but a publicly owned hospital built on that site would be a situation. We heard it was about doctors co-operating, but we heard they already co-operate between the National Maternity Hospital and St. Vincent's Healthcare Group. We heard that it was about not wanting two systems of governance. Are we saying that there are not two systems of governance and that St. Vincent's Healthcare Group's is the only system of governance? I am not clear about the reason. Is it that the price of co-operation is St. Vincent's Healthcare Group? I do not see why it cannot co-operate with a public or separate voluntary hospital. Is it that St. Vincent's Healthcare Group does not want to? Is it a price of co-operation that it would be involved in the governance of this new entity?

I need to move on now.

That is my final question.

Mr. James Menton

In addition to the issue about patient care and patient risk, there are other practical issues about shared service, the construction of service corridors. There are many technical issues on the way the campus is constructed.

They are being dealt with by St. James's and the national children's hospital.

Mr. James Menton

St. James's can probably comment for itself. We are St. Vincent's and we were asked to enter a partnership agreement with the State, with Holles Street. We had a set of guiding principles, which we feel have now been complied with.

We would have serious reservations if they were in any way disturbed. We believe that the offer from us that is on the table is fair and reasonable. That is as much as I would like to say at this point.

The group would not co-operate with a different model in the same way.

Mr. James Menton

That is a fair summation. We would not. It was one of our guiding principles in terms of the board's framework for making decisions about arriving at a solution, which is-----

My point on the chairmanship was lost.

The Senator's time is up.

I asked about the chairmanship but my question was not heard. The HSE is the tenant, but is there an inappropriateness in the landlord being chairman of the hospital, which is subject to these leasehold agreements?

Mr. James Menton

In a partnership with three partners, it is reasonable to have equal representation on the board and to have individual representatives of the three partners rotate the chairmanship from time to time. That is fair, reasonable and good governance.

There are important reserve powers in the constitution of the NMH at Elm Park DAC. This has not been emphasised at this meeting, but I will draw attention to them. They are bespoke. There is also a golden share.

We have discussed that and I am conscious of it.

Next are Senator Conway and Deputy Burke.

Mr. Menton stated that the Religious Sisters of Charity had petitioned the Vatican ahead of this process commencing. Clearly, there would have been a communication from the Vatican to the Religious Sisters of Charity. Has SVHG had sight of that correspondence?

Mr. James Menton

We have not. We have not requested it. From our perspective, the negotiations between the Religious Sisters of Charity and the Vatican are matters for the Religious Sisters of Charity and the Vatican. What we are absolutely clear on is that our negotiations with the Religious Sisters of Charity around the transfer of shares has arrived at a legal-----

I completely take Mr. Menton's bona fides on that.

Mr. James Menton

Okay.

For obvious reasons, this is a major public interest issue. From that perspective, would it be appropriate and helpful if the Religious Sisters of Charity published their interaction with the Vatican and could Mr. Menton call on them to do so?

Mr. James Menton

The Senator would have to ask them for their opinion.

I am asking Mr. Menton whether he believes it would be helpful and whether he would call on them to do so. If the information in the communication is benign, publishing it would be helpful.

Mr. James Menton

Frankly, it is unnecessary from the St. Vincent's Healthcare Group's point of view.

It goes to the core of the issue.

Allow Mr. Menton to respond, please.

Mr. James Menton

What is important is to recognise that, until recently, the shares in the St. Vincent's Healthcare Group were held by the Religious Sisters of Charity. No one in this room is unaware of the relationship between the church and the State in modern Ireland. I could use a range of adjectives, but I will not. In that regard,-----

I have another point that I wish to make.

Mr. James Menton

St. Vincent's wants to be liberated from the relationship between-----

It is not going to happen. I get it.

Deputy Shortall referred to section 6.4 in the lease on the landlord's mortgage. The SVHG's legal people are telling us that it is not possible to have a mortgage on a freehold, yet section 6.4 states that the SVHG commits to not taking out a mortgage without the prior consent of the tenant, that a reasonable time would be made available and so on. Why is this section in the lease if the freehold cannot be mortgaged? My good colleague, Deputy Colm Burke, tells me that that is the case, but why is this section in the lease if it is not possible? I need a simple answer.

Mr. Donal O'Raghallaigh

There was a sensitivity to this matter in the discussions. That is the only reason the section is there. It is part of the ongoing-----

From where did the sensitivity come?

Mr. Donal O'Raghallaigh

The lease is in negotiation with the HSE.

The schedule is clear. If something is not legally permissible, why is it in the lease?

Mr. Donal O'Raghallaigh

I am sorry, but I did not understand the Senator’s last comment.

If it is not legally possible to put a mortgage on a freehold, why is section 6.4 in the lease?

Mr. Donal O'Raghallaigh

It is absolutely legally possible to put a mortgage on a freehold.

It is legally possible.

Mr. James Menton

Yes.

Mr. Donal O'Raghallaigh

I have said that three or four times today.

And on the buildings.

Will the witnesses clarify that issue around section 6.4? My understanding is that the landlord can get a mortgage on the freehold interest in respect of the lands on while the buildings are built. I raised this matter earlier. There are two different legal entities – a freehold interest and a leasehold interest – and the landlord cannot mortgage the leasehold interest. Am I correct in that?

Mr. James Menton

Correct.

We have a freehold interest that the landlord can mortgage, but that mortgage is subject to the consent of the lessee, which is the HSE in this case.

Mr. James Menton

Yes.

In other words, if the freehold is mortgaged, it will not give the bank or financial institution the right to in any way interfere with the control of the building by the HSE or whomever it gives a licence to in respect of that building.

Mr. James Menton

Correct.

Let us be clear, as the impression has been given that the landlord can mortgage the entire building. Perhaps the witnesses will clarify.

Mr. Donal O'Raghallaigh

I am sorry, as this is probably due to my explanation. Ignoring section 6.4 for the moment, the landlord can create security over the freehold interest. That security, or mortgage, is subject to the lease, so the lease has a higher priority than the security. The security just catches the freehold, not the leasehold interest where the entitlement to use, build and do everything is contained.

If the mortgage was forfeited and the bank or financial institution decided that it wanted full control over the freehold interest, the €10 per annum would be payable to the bank rather than to St. Vincent’s.

Mr. Donal O'Raghallaigh

Yes.

Likewise, in the event of there being a breach of the lease and €800,000 being the new rent, that would be payable to the bank rather than St. Vincent’s.

Mr. Donal O'Raghallaigh

Correct. Any lender would step into the landlord’s shoes.

The bank or financial institution would have no right to go next or near the building as long as all of the terms and conditions of the lease were being complied with by the HSE at all times.

Mr. Donal O'Raghallaigh

Yes. There is a great deal of law on how a tenant is protected.

One of our problems is that it was put out into the public domain, particularly by a person who gave evidence to us last Thursday, that St. Vincent’s owned the building. That is what was said at the meeting. Is that correct?

Mr. Donal O'Raghallaigh

St. Vincent’s will hold the freehold of the property.

Not the building. It will not own the leasehold-----

Mr. James Menton

We will categorically not own the building.

And therefore will not be able to mortgage it.

Mr. James Menton

Correct. For the avoidance of any doubt, we would be able to mortgage the freehold interest, which is worth €10 per year. From a former life, I can say that that would not be worth the paperwork.

It was mentioned that the Religious Sisters of Charity had sold or transferred their shares and that there was no money-----

Mr. James Menton

“Disposed of them” may be the better term.

Sent off. However one wants to phrase it.

Mr. James Menton

In layman’s language, yes.

No money was transferred but there was an indemnity for the Religious Sisters of Charity. Will Mr. Menton explain what that indemnity involves?

Is the St. Vincent's Healthcare Group guaranteeing that it will continue to offer the suite of services that it currently offers on the site? The whole reason for the move is that there will be co-location and everything will be offered. Is there a guarantee that oncology or other services will not be removed at some point? That would somewhat undermine the State’s commitment to the move.

Mr. James Menton

The clinicians may wish to give a more informed answer on services being curtailed, removed or added to. Certainly from the perspective of the board, we are an acute hospital for men and women. That point needs to be made. I cannot believe that, other than in the context of developments in medical technology or other developments, but I will bow to superior knowledge-----

I ask our guests to deal with the issue of the indemnity as well.

Mr. James Menton

We will come back to that presently.

Dr. Janice Walshe

It is a designated cancer centre. In the context of cancer care, we are increasing the number of medical oncologists and advanced nurse practitioners and we are looking for additional technology. We are a cancer hospital and we certainly do not envisage that maternity care would take precedence over the further development of cancer services.

Dr. John Holian

There will be absolutely no diminution of the spectrum of clinical services that are currently provided. If anything, this will enhance care delivery across both hospitals, not just clinically,but also in terms of academic research and medical education.

Mr. Donal O'Raghallaigh

As regards the deed of indemnity that is given pursuant to the shared transfer agreement, it is in recognition, as not unusual in a charitable consideration-free transfer, that the St. Vincent's Healthcare Group would indemnify the congregation in respect of claims relating to the hospital sites, namely, St. Michael's Hospital, St. Vincent's Private Hospital and St. Vincent's public hospital. As regards how those claims are addressed, most of them relate to the insurance policies the group has in place. The hospital has been trading in its own name rather than that of the congregation for more than 20 years, so the risk is considered minimal.

I thank our guests. We have come to the end of the meeting.

On a point of clarification, there was reference to services in the context of the lease. Are those services provided by St. Vincent's Hospital Group guaranteed in the lease in the same manner as the maternity hospital services are guaranteed in the lease?

Mr. James Menton

I do not believe so. The lease is only for the national maternity hospital. It does not apply to the-----

There is no guarantee, in a legal sense, in respect of those services.

Senator Higgins is pushing it.

I thought we were finished.

Could maps be provided to go with the documents?

Mr. James Menton

Yes.

We were not supplied with those. I ask that they be sent to the committee overnight, please.

Mr. James Menton

Absolutely.

I thank Mr. Menton.

I appreciate the time and effort our guests put into the meeting.

It was a very useful meeting.

It was useful for the general public. As a committee, we would have liked more time to discuss the issues. The lack of time is nothing to do with our guests. We are up against the clock in the context of the possible Cabinet decision tomorrow. I appreciate our guests coming in. The meeting now stands adjourned. The committee will meet in public session on Wednesday, 18 May.

Mr. James Menton

I know the meeting is over, but I wish to thank all present.

I thank Mr. Menton. Our guests brought great clarity.

Mr. James Menton

On the point in respect of whether we were asked to sell the land, there was no formal approach in recent times but it would be unfair to say that the Minister and the Department of Health have not expressed their stated preference for us to sell the land.

There were two big issues. One was-----

The committee stands adjourned.

The joint committee adjourned at 4.33 p.m. until 9.30 a.m. on Wednesday, 18 May 2022.
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