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Joint Committee on Health díospóireacht -
Wednesday, 11 May 2022

New National Maternity Hospital: Discussion

The committee will meet the Minister for Health to discuss the details of the proposed new national maternity hospital. The Minister is joined by Mr. John O'Donoghue, legal representative for the HSE, Ms Mary Brosnan, director of nursing and midwifery, Professor Mary Higgins, consultant obstetrician and gynaecologist, Dr. Rhona Mahony, consultant obstetrician and gynaecologist, Mr. Ciarán Devane, chairperson of the HSE board, Ms Ita O'Sullivan, legal representative for the HSE, Mr. Dean Sullivan, chief strategy officer for the HSE, and Mr. Paul de Freine, head of estates for the HSE. They are all very welcome.

Members and guests are reminded of the long-standing parliamentary practice that they should not criticise nor 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. If, therefore, their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. I remind members that today's meeting concerns the proposed new national maternity hospital and ask them to stick to that theme rather than raise other issues with the Minister and his officials.

I invite the Minister to make his opening remarks.

I thank the committee for the invitation to attend and for the opportunity to discuss the proposal for the new national maternity hospital. I am joined by Mr. Ciarán Devane, chairperson of the HSE board, Professor Mary Higgins, consultant obstetrician and gynaecologist, Ms Mary Brosnan, director of midwifery and nursing at the National Maternity Hospital, and consultant obstetrician and gynaecologist Dr. Rhona Mahony, who knows the history of this project like few others and who negotiated the initial Mulvey agreement and can speak to that. I am also joined by Ms Ita O'Sullivan and Mr. John O'Donoghue, members of the HSE's legal team for this project.

While there is good, proper and important debate about this issue, I believe we all agree on many of the important issues relating to this project. First, clinicians at the National Maternity Hospital, NMH, provide excellent care to women and infants and have been leaders in modernising women’s healthcare. Second, a new and modern hospital building is urgently needed for the National Maternity Hospital and services for women need to be expanded there. Third, the new hospital should be built beside a major adult hospital to ensure women will have access to the widest possible range of healthcare. Fourth, the new hospital must be fully clinically independent and there must be no religious influence, now or in the future. Fifth, the new hospital must provide all services and all procedures that are permissible under law. Finally, the State’s investment must be protected.

The proposal we are discussing meets all of these goals. This is a partnership between the State, the National Maternity Hospital and St. Vincent’s Healthcare Group. The National Maternity Hospital will provide all the clinicians, who will move from Holles Street to the new building, and the National Maternity Hospital will run the new hospital. The State will fund the construction of the new hospital building and retain full ownership of the building as an asset, while St. Vincent’s Healthcare Group will provide lease ownership to the State for 300 years. Each party will appoint three directors to the new board of the NMH, and the NMH will, in turn, appoint directors to the board of St. Vincent’s Healthcare Group. The two hospitals will be physically connected to ensure seamless access to care for patients, which is especially important for critically ill patients. Both hospitals will provide shared services to be used throughout the healthcare campus. Many clinicians will work in both hospitals, as they do now.

A structure was agreed in the 2016, namely, the Mulvey agreement, whereby the shares in the NMH charitable company will be owned by the St. Vincent’s Healthcare Group charitable company. This provides St. Vincent’s Healthcare Group with some administrative rights relating to, for example, accepting annual accounts at general meetings and approving the appointment of auditors. The national maternity hospital will be fully clinically, operationally and financially independent. It will have its own constitution and its own operating licence with the HSE. All procedures that are currently carried out at the National Maternity Hospital in Holles Street will be provided at the new national maternity hospital. The new hospital will provide all maternity, gynaecology, obstetric and neonatal services that are legally permissible. These include, but are not limited to, terminations, tubal ligations and gender-reaffirming procedures. Religious involvement in St. Vincent's Healthcare Group has ended with the transfer of shares. Religious involvement in the National Maternity Hospital will also end. For example, the chairperson of the National Maternity Hospital since its foundation has been the Catholic Archbishop of Dublin. Religious influence of any kind is expressly prohibited in the new national maternity hospital. There is no mechanism for any religious involvement, now or at any time in the future, in either St. Vincent's Healthcare Group or the new national maternity hospital.

Ireland does not have a good track record when it comes to religion and women’s reproductive health.

It has a poor and dark history. Women are, therefore, rightly demanding that when it comes to our new national maternity hospital there can be no religious involvement whatsoever at any point, now or into the future. Women and, indeed, men are right to demand that. People for very understandable reasons are demanding absolute assurances that all legally permissible services are provided, and they are right to make that demand. All of these services are provided in Holles Street today. The same clinicians, some of whom are here today, are going to provide these new services in the new hospital.

Concerns are understandably being raised and questions are being asked about land ownership and other issues. I look forward to discussing these issues with the committee. I also look forward to hearing from the people who provide the services in Holles Street. Those of us who campaigned for repeal of the eighth amendment said we must listen to the midwives, nurses and doctors working in our maternity hospitals. That is what I asked people to do in Wicklow when I walked up and down the streets and knocked on doors week after week. Some of those same clinicians are with us today. I hope that on this important issue, we will once again listen to the midwives, nurses and doctors working in our maternity services and providing these services.

I thank the Minister. We will have ten-minute slots and if there is time, members who indicate may contribute again. I call Deputy Durkan.

I welcome the witnesses. They are all very busy people who have other things to do, as do members. Why does the Minister think there is growing opposition to the proposal? Is there a particular reason he can put his finger on? Can anybody on that side of the table put their finger on the reason?

Yes. I believe this ultimately comes down to a deep-seated mistrust of institutional Ireland based on an appalling track record in our country when it comes to the church and women's reproductive health. Ultimately, I think that is what this boils down to, and I understand that. It has, therefore, been incumbent upon four Ministers for Health - my predecessors, Dr. James Reilly, the Tánaiste, Deputy Leo Varadkar and the Minister, Deputy Simon Harris, and me - and two Governments to make sure those concerns are addressed absolutely and the new hospital we set up not only provides all of the guarantees and services that are needed, but gives space to expand the provision of those services and many other women's healthcare services, including maternity, obstetrics, fertility and gynaecology. I ask for a response to the Deputy's question, because it goes to the heart of everything we are doing here, from some of the clinicians who are working and providing the services.

Dr. Rhona Mahony

I thank everyone for giving us an opportunity to come and tell our stories and to outline why this hospital is so important. I agree with the Minister. Ireland has been through a lot. When we look back at the history of women's health in particular and the interplay between church and State, it has been very difficult for women. It has had a profound impact on women's health and lives. We are now moving forward into a different Ireland. We have seen huge advances in the past ten years. The campaign for the repeal of the eighth amendment was a real moment for me. I remember attending a meeting of a health committee, just like this one, in 2013 when I was pretty much a lone voice. I was not as lonely as all the women who had gone to Europe to fight their cases on their own. By 2018, we had all come together and we had a movement and could talk about and express what happened to women. That was a pivotal point in our history in terms of moving forward in women's health.

With this project, we are moving forward again. We are saying goodbye to the church completely. There is no religious ethos pertaining in St. Vincent's hospital. There is a complete separation. We are moving forward and leaving that behind. However, we are moving forward in a different way. The vision for this hospital is a vision of enormous possibility for what we can give to women in this country. It is not just about the old facilities in Holles Street where women are crowded into tiny wards and long 14-bed wards, where we do not have an intensive care unit, ICU, or high-dependency unit, HDU, where babies are crammed into units in which their parents cannot be with them and where there are no toilets and a lack of showers. We have heard a great deal about this. The new facility is going to be magnificent. We will have a facility where the tiniest citizens in the State, babies as small as 23 weeks and weighing 500 g, will be in a magnificent, dedicated pre-term birth centre and their parents can stay with them and be involved in their care. A neonatal intensive care unit is a really scary place. We know this has much better outcomes for babies. We will have proper labour rooms. We will give expression to the maternity strategy in terms of having all that choice for women, with midwifery-led birthing units, birthing pools and beautiful rooms. Women will have dignified, single-room accommodation across the whole building. We will have proper operating theatres. The key here is that those operating theatres will link into St. Vincent's hospital, the very place we need them to link into, and also into the hospitals ICU and HDU, which Holles Street does not have at the moment.

It is much more than that, however. I think the piece we have missed is what is on the campus of St. Vincent's hospital. Women have been hearing a lot and have been worried that the services available to them will be restricted. It is quite the opposite. We will be hugely increasing services. The St. Vincent's hospital campus deals with 150,000 inpatient and day-patient cases every year. There are 50 clinical specialties, more than 200 consultants and 5,000 staff delivering a whole gamut of healthcare services which will be available for women. The hospital already cares for 500 women with breast cancer every year who are treated there.

Does Dr. Mahony have any worries about any possible religious influence on the procedures that may or may not take place in the hospital?

Dr. Rhona Mahony

I absolutely do not, for two main reasons. The first is the series of protections that are built into the legal framework that has arisen out of Kieran Mulvey's work. This is a series of documents that creates layer after layer of protection. The NMH DAC is a separate company and separate legal entity, which is very important. In the course of our conversation, I would like an opportunity to go through in detail all of those layers that give us those protections.

In parallel, St. Vincent's hospital is now a secular organisation. There is no link to the church. That is over and gone. When the share transfer was completed, it marked the end of any association with the Religious Sisters of Charity and any association with religion. We are now a secular organisation and the constitutions of St. Vincent's Holdings, the holding company that holds the shares, and the operating company, St. Vincent's Healthcare Group, are published in full on the website. There is no vehicle or mechanism through which any religious ethos, any Catholic ethos, can be imposed. That is terribly important.

Professor Mary Higgins

One of the practical points on whether we have any concerns is that we have already provided that care. If we look in particular at termination of pregnancy care, the vast majority who attend us are fit, healthy and well. There is a significant proportion who have medical conditions where I then have to talk to the clinicians in St. Vincent's hospital who give that advice without any issue. They do so appropriately, kindly and respectfully. There have been women who have required termination of pregnancy care on the physical campus of St. Vincent's hospital without any issue from the clinicians or management and administrative staff. I have provided that care. That is why I am confident we can do it.

Does Professor Higgins agree that the Savita Halappanavar case was a benchmark in terms of the need to treat women in an urgent manner?

Professor Mary Higgins

We learned so much from Savita Halappanavar, the poor woman.

She left a legacy whereby we have learned more about sepsis. We have changed the law twice based on her experience, both in protection of life and termination of pregnancy. We must honour her life by continuing this practice.

Have any of our guests concerns about the title, the agreement entered into, the board, the number of directors or the influence on the hospital in the proposal? Has anybody concerns?

Professor Mary Higgins

In one word, "No".

Our guests can honestly give us their assurance that they are happy with the arrangement and that it will work soon. As a result of that, women like Savita Halappanavar will get care and attention from the word go.

Professor Mary Higgins

We have been deeply involved in this from the start. We are interested, of course, because we want to provide the care. We have had to satisfy ourselves. We appreciate that people want to ask questions because they are concerned and worried. We are satisfied with the arrangement. We hope the effect of this debate will be that everybody else in the country will be satisfied as well and that they realise this is the best thing. It is the greatest investment in women's health that the country has ever made. It is a massive step forward. As Dr. Mahony says, it is a massive step forward for midwifery and nursing medicine so we can provide care to women, pregnant people and neonates. We totally support this.

There seems to be confusion about the cost. Depending on who one talks with, the cost may be €10 per annum for a certain number of years, €800,000 or €600,000, or whatever the case may be. Could our guests shed some light on where that conflicting information is coming from? Can they tell the committee from a legal point of view, which is it?

I will give a short answer before I ask Mr. John O'Donoghue, who has been involved on the legal side, to give a more detailed answer. The short answer is that the cost will be €10 per year for the next 300 years. There are conditions on that. The conditions are that we, the State, remain as the tenant running healthcare services there. By agreement, that can be changed but essentially once we are running our hospital on the site, that is that. There is a condition that we do not look to acquire freehold ownership of the site. We are entering into an agreement on a leasehold ownership basis. That is securing that in times to come, this will still be a maternity hospital providing great care. I will ask Mr. O'Donoghue to come in and add to that.

Mr. John O'Donoghue

There is a clause in the lease which, as the Minister has said, provides that there is a commercial rent which will be abated to €10 per annum as long as the HSE complies with certain conditions. That is clearly set out in clause 4 of the lease and those conditions are very clear. Those conditions relate to the State continuing to provide public healthcare facilities from that building into the future and for the term of 299 years. That protects both parties. It protects St. Vincent's Healthcare Group, which owns the freehold interest in the site, to ensure that the State does not try to change the use of the facility to something else. This facility will be state-of-the-art but in less than 299 years, it will need to be redeveloped, replaced and refurbished. There is no guarantee that it will be required as a public hospital facility in the future so there is no reason for the State to have a freehold interest, or an interest into infinity, on that site. There are other protections in that document to ensure that this facility, once constructed, and which the State, through the HSE, has full rights over is used for 299 years for public healthcare.

I welcome all of our guests. I thank the Minister for being here. He is also welcome. I will take the Minister back to last Tuesday's Cabinet meeting. I presume he brought proposals to the Cabinet on the basis that he wanted it to approve them. I assume that in the Minister's head, that would bring talks with the St. Vincent's Healthcare Group to a conclusion. Is that a fair assessment?

I brought a proposal to Cabinet for discussion. It was important that Cabinet saw the proposal. We discussed it as a Cabinet. The point was raised by many that sessions such as this one are important. I know the Deputy and other members of the committee have asked for such sessions. In response to that, and in order to be as open and transparent as possible-----

I understand that. My question was whether it was the Minister's intention to get Cabinet approval at that meeting and following discussion at Cabinet, a decision was then made to pause making a decision for a couple of weeks to allow for these types of hearings? Was the intention of the Minister when going into that Cabinet meeting to get sign-off for this proposal?

My first intention was to ensure the Cabinet got sight of the proposal and we had a healthy discussion-----

I understand that. With respect, I have limited time. My question is a direct one.

I am trying to answer the Deputy's question. Before the Cabinet meeting, there was a lot of discussion. Between us all, we agreed before the meeting that we all wanted to open the issue up and have these kinds of debates.

The Cabinet has paused the process for a number of weeks. Is it paused on the basis that following hearings such as this one, there could be fresh discussions with St. Vincent's Holdings CLG or is it the view of the Minister that he will go back to Cabinet next week, after these meetings, to sign off on what could have been signed off on last week?

As the Taoiseach said yesterday or the day before, the intention is for this proposal to be agreed by the Cabinet. However, it is important that we listen. It is important that this conversation happens. I would not rule anything out.

In not ruling anything out, is it possible that we could have fresh discussions with the St. Vincent's hospital group?

As I said, I would not rule anything out. My view, for what it is worth, is that there will be no further movement. This matter has been discussed for many years.

If there is no potential for further movement, why have these hearings at all? Is this an exercise for the Minister to sell this deal? He has the right to do that. We were told this was an exercise in scrutiny. Many people have concerns. Is this discussion being held on the basis that this agreement is a fait accompli? I have heard the Minister say he is listening. It seems that on the basis of what the Taoiseach said in the Dáil and in the media, and on the basis of what the Minister is telling me now, the intention is not to go back and renegotiate or discuss any changes. The proposal will go to Cabinet next week and will be signed off.

What I would say is that while I believe it is the intention of the Cabinet to progress with this proposal, I would not rule anything out in terms of what is brought to Cabinet.

The Minister and Dr. Mahony said earlier, and I do not dispute it, that the religious order's involvement in this has ended, that the Religious Sisters of Charity has fully divested all of its interests and that its interests and the land have essentially been gifted to St. Vincent's Holdings, which I think happened on 22 April. Is that correct?

I do not have the exact date but it was in the past few weeks.

St. Vincent's Healthcare Group now owns the land.

It is in the gift of St. Vincent's Healthcare Group to gift the land to the State, is it not, if it wanted to or was asked to do so?

It has been asked, to be clear. It was asked by the former Minister for Health, Deputy Harris. It was asked by this Government and the previous Government. It has given its rationale for why-----

We will go into that in a moment.

May I finish the sentence? I want to be respectful of the Deputy's time. St. Vincent's Healthcare Group has been consistent for the past nine years that gifting the land has never been on the table.

It is not the Minister's job to sell the message of St. Vincent's Healthcare Group. It is his job to stand up for taxpayers and the interests of the State. We know the view of St. Vincent's Healthcare Group as it has been expressed. There are some holes in that argument and I will get to those in a moment. However, my point is that before all of this, and this process has been going on for many years, the Religious Sisters of Charity wanted to gift the land to this entity as opposed to gifting it to the State. St. Vincent's Healthcare Group now owns the land. It is free to do what it chooses with the land. Am I correct that there is no legal impediment to St. Vincent's Healthcare Group gifting the land to the State? If it wanted to do that, it could.

I will ask Mr. O'Donoghue or Ms O'Sullivan to come in on that point. I will just make one point first.

It is either a "Yes" or a "No". I do not want long legal arguments. It either has the legal right to gift the land to the State if it chooses or it does not.

I will say one thing before I ask Mr. O'Donoghue to come in. In this proposal, we own the land for the next 300 years. It is a leasehold ownership that we will have.

Mr. John O'Donoghue

On the term "gift" the land, the land will be in State ownership, effectively, for 300 years. That is equivalent to a freehold interest, except the land and what is on it will go back in 300 years to the freehold owner, St. Vincent's Healthcare Group. So-----

We will not agree on that because the State does not own the land. We know the St. Vincent's Healthcare Group will own the land and that there is a lease arrangement-----

Mr. John O'Donoghue

I disagree with that.

We know there is a lease arrangement for 299 years. That is not contested, but we cannot then credibly argue that the State owns the land. The group owns the land. It could gift the land in its entirety to the State, which would remove the need for all the companies that have to be set up. It would enable the HSE to build a HSE hospital on the land.

If other clinicians could not shake their heads when witnesses are speaking, it might be helpful.

Mr. John O'Donoghue

It is not the case that the State will not have an ownership interest in the land. There are two types of ownership interest in Ireland. There is freehold, where you own a property into infinity, and leasehold, where you own a property for a specific period. Many buildings across Dublin and the country and every apartment in this country-----

I will not go down this route.

Mr. John O'Donoghue

If the Deputy is telling the people of this country that a leasehold is not good title, that is wrong.

I am stating facts as outlined by St. Vincent's Healthcare Group in its published fact sheet, which states that group is the owner of the land. I do not dispute the State has a lease - it does - but the owner of the land is St. Vincent's Healthcare Group.

Mr. John O'Donoghue

That is the freehold owner.

I will move back to the Minister because I want him to answer the questions. A new company is being set up, namely, the National Maternity Hospital at Elm Park DAC. Is that correct?

That will have directors coming from three different sources.

That company will essentially run and operate the hospital.

It is a charitable entity. It is a charity-----

It will run and operate the hospital, however.

It is a subsidiary of St. Vincent's Healthcare Group.

It is a subsidiary in terms of certain issues, such as being able to receive annual accounts and approve the appointment of auditors.

It is a subsidiary of St. Vincent's Healthcare Group. That group is the landlord, so it essentially owns the land. The lease agreement is between St. Vincent's Healthcare Group and the HSE. Is that not correct?

At a corporate level, it is. However, the clinical, operational and financial independence lies with the national maternity hospital.

I have already established that. It will run and operate the hospital. A subsidiary company called St. Vincent's Healthcare Group will be the landlord and will own the land, and that company is part of St. Vincent's Holdings CLG. Is that correct?

They all have their own boards and constitutions.

That is the problem for me. The two HSE board members who dissented from the decision, Professor Deirdre Madden and Dr. Sarah McLoughlin, stated they "continued to have concerns regarding legal ownership of the site and building, and the governance and control of the proposed new maternity hospital" and this "led to our dissent from the Board's decision." They go on to say: "The advantages of co-location could be achieved by contractual terms through which both hospitals agree to collaborate effectively[...]." They then go on to say: "The statement from SVHG that they must retain ownership for the delivery of integrated patient care is unsatisfactory and runs contrary to the argument that the location of the underlying freehold ownership has no bearing on the governance [and] operation of the hospital." It strikes me that this is about control by that group. It does not want to give the State the land because it does not want a HSE hospital on that site. As a result of that, we have ended up with a convoluted process, as I have discussed with the Minister in the Dáil and elsewhere, of companies within companies. I am not a legal expert but some such experts talk about phrases and language in the constitution that are ambiguous. All of that is a product of the State not owning the land. That is a fundamental problem.

I will make a point to the clinicians in the room. I have no difficulty with clinicians arguing we need a new hospital. We fully agree. There is nobody in this room who does not want a new national maternity hospital. I do not dispute that Holles Street is not fit for purpose. The Rotunda Hospital is not fit for purpose. Of course we need a new national maternity hospital but we have wider responsibilities. We have to protect patients, clinicians and the interests of the taxpayer. The taxpayer and the interests of patients and citizens are best protected by a public hospital on public land, rather than the convoluted process the Minister is presenting to us.

I respect the Deputy's view but disagree with it. It is not an accurate characterisation of what is happening. St Vincent's is not appointing board members to the new NMH because it owns the land. Let us say a third party such as a developer in Dublin owned the land. That developer would not be appointing board members to the new NMH. This is a partnership and, as Dr. Mahony spoke to earlier, the reason the State, the NMH and St. Vincent's are all appointing members to the board is that this is a partnership. One proof of that is that the NMH does not own the land under St. Vincent's but it is appointing board members to St. Vincent's.

I never argued against any of that. I am stating the fact that we have companies within companies, several constitutions and directors coming from three different sources onto the new company being established. The Minister cannot credibly argue this is not a complicated legal scenario when he looks at all the documents that were published and which we had to go through. It is only complicated because the land is being gifted to the State.

That is where we disagree. It is complex. Of course, an investment of, potentially, €1 billion in a new healthcare campus is complex but the complexity and the governance structures are not based on the land. As Mr. O'Donoghue has said, we have leasehold ownership of the land for the next 300 years. The fact St. Vincent's has freehold ownership of the land and it reverts to it after 300 years is not why it is appointing directors or why we have the corporate structures we have. We have all of this because we are entering into a partnership.

It is because St. Vincent's does not want a HSE hospital but an independent hospital.

I do not speak for St. Vincent's but I have never heard that view being expressed.

Maybe we should have St. Vincent's before us, but we will not have time if the Minister makes a decision next week.

I thank the Minister and witnesses. The HSE board got some publicity today. Two voices demurred but there are 12 members of the board. The bottom line is the board has approved this, regardless of why and how many members did so. We have heard the views of Fergus Finlay as to why he supported it, but we did not get the view of the other eight or nine members as to why they supported it. We got the views of the two who demurred and I respect them and thank them for making their submission to the committee. For people watching, it is important to state the board of the HSE supports the move.

To give some of background on myself, an ad hoc cross-party group was established last year with some members from parties, including, from my party, me and one or two colleagues. It was set up based on those people who had concerns about the move to the St. Vincent's hospital site.

I was a member of that group so that was where I was coming from. I had concerns. The time, energy and detailed interrogation of all the issues involved between last year and this year have been incredibly valuable.

I supported repeal of the eighth amendment and strongly supported women's right to choose and investment of trust in women to make the best decisions regarding their own health and bodies. It is important to state that. The Minister will agree that if we were starting today, everybody would want this hospital built on public land with public money but this process did not begin today. It began in 2013 and he inherited it two years ago. Will he give us a brief two- or three-minute summary of what he inherited and where he has taken it to?

Before I do so, with the Deputy's permission, given he referenced the board, would it be okay to hear from the chair of the board to address the points he made?

I will run the Deputy through the history and with his permission we will hear from Mr. Devane, if that is okay. My understanding is people have talked about this for decades. Doctors hired by Holles Street in the 1960s were asked when they were going to move to co-locate with the adult hospital. The process as we understand it now began in 2013 when the then Minister for Health, James Reilly, announced the intention to move. This was on the back of a KPMG report, which he received. In July of that year, the campus project board was established by the HSE and in 2015 a memo to Government on the relocation of the Coombe and the Rotunda, which we should talk about on another day, noted the recommendation that Holles Street should move to Elm Park, in effect.

In 2016, the Mulvey agreement was brought together. My understanding is the negotiations were complex and at times difficult so Mr. Mulvey was brought in to chair that. The Mulvey agreement was put together and, in essence, the corporate structures and what we see today came out of that agreement. Dr. Mahony was involved in that and she may want to add her comments on it. In 2017, there was a memo to Government from the then Minister for Health, Deputy Simon Harris, with information on the relocation. Planning permission was secured in 2017 and in 2018 there was another memo to Government on the relocation and agreement in principle on some of the key areas. In 2018, the contract for the first phase was announced. As the Deputy will be aware, significant works have already happened, such as pharmacies, car parks and so forth.

What changes have been made since then? In essence, we have moved from a 99-year lease to a 299-year lease, or from 100 years to 300 years. We have moved from one public interest director to three. It was one-four-four; it is now three-three-three and, critically, we have written the constitution. All parties have been involved in that. The constitution is essential to all this because it is the operating manual and the legal instructions for how the NMH will work. What we have done with it is very important. We are not only guaranteeing clinical and operational independence through the constitution, which everyone has rightly demanded, we have gone much further, which I am advised by the Attorney General is either very rare or unique. We are not just saying the new hospital can provide all services; we are saying it must provide all services. We have said six times in the constitution there can never be any religious influence whatsoever. The board of directors is obliged under its constitution to ensure all services are provided. As a final certainty, the Minister for Health has the power to intervene at his or her discretion to ensure that all services are provided without any religious influence at all. The three big changes are boards of directors, the lease and the constitution.

With permission, Mr. Devane will come in on the matter of the board.

Mr. Ciarán Devane

We had a number of very good, very detailed and very robust debates over the past 12 months to try to address all the issues people are legitimately concerned about and to which they want to see a solution. For example, we wanted to see the transfer of shares come through. We wanted to see some of the details on the duration of the lease consistently written into all the documents across the whole agreement. The constitution was one of the things for which I pushed very hard. It is the foundation document around protections for women, the independence of clinical decision-making, and making sure this will be the biggest and most exciting step forward and new hospital the HSE will build for the foreseeable future.

It is not just about moving location but increasing capacity. Some 100 beds will increase to 150 so there will be more and better capacity. It is to allow the innovations to take place, including things we do not really talk about, such as gynaecological mesh, menopausal clinics and so on. Those services will be put in as well. As a board, we saw all these amazing things we were doing. We had very robust debates. The conclusion we came to as a board was that there are sufficient protections for the things people are worried about and a tremendous opportunity to take a major step forward. That was the decision of the board.

This boils down to a few issues, that is, ethos, governance and ownership. It is as if the ethos piece has been forgotten because it seems to have been dealt with successfully. Ethos was a big issue two weeks ago for protagonists and opponents. It seems all the concerns and queries around that have been satisfied. Dr. Peter Boylan will be a witness tomorrow so I have no issue making this point when he is not here as he will have a chance to answer then. One of his major points, repeated in today's newspaper, is no Catholic-ethos hospital in the world, including St. Vincent's public and private hospitals, permits terminations. Do terminations take place at present in St. Vincent's Hospital?

Dr. Rhona Mahony

There is no impediment in the structures of St. Vincent's that allows-----

Is that the existing St. Vincent's Hospital?

Dr. Rhona Mahony

There is no vehicle or structure in any of the constitutions in St. Vincent's that allows any influence by a religious or Catholic ethos. We perform all procedures according to what patients need.

That is in the existing St. Vincent's Hospital.

Dr. Rhona Mahony

In the existing St. Vincent's.

It is either the first hospital under Catholic management in the history of the church that allows terminations or it is not a hospital through which a Catholic ethos permeates. It is one or the other.

Dr. Rhona Mahony

To take that point, often, when Catholic institutions divest their assets, they go into another institution that is called a public juridic body and ethos is maintained. I do not know if we are the first - that is not the point - but specifically in this case St. Vincent's Hospital is absolutely not a public juridic body.

My time is over but I will make this point, especially to people who are watching. Most of the emails I have had regarding this in the past one to two months, related to the justifiable and legitimate fear of women of church interference, or the interference of a religious ethos, in respect of any procedures they are entitled to under law. We seem to have forgotten that very quickly because it has been dealt with. All those fears and concerns that were raised have been very adequately dealt with to the point they are not being raised anymore. It is now all about governance and ownership, but let us not forget the most significant points raised regarding the national maternity hospital were that all procedures and interventions necessary for women's health would be somehow jeopardised under this structure. It is too convenient to now focus on saying it is all about ownership and governance. Up to two weeks ago, it was about ethos, religious interference and no Catholic-run hospital in the world could provide X and Y.

Terminations take place in St. Vincent's hospital right now. The public and women need to be aware of that, and not for the conversation to be contaminated by supposition, catastrophising, conspiracy building and all the rest of it. Those are my questions.

Ms Higgins will quickly respond to Deputy Lahart.

Professor Mary Higgins

I just want to reiterate my point. Now that the Deputy says that, I did not realise what history-making we were doing. However, we have provided care. I have been one of the people doing it.

Can Ms Higgins explain that?

Professor Mary Higgins

I cannot give great detail because the point of repeal is that we would not be talking about this and it would be private. Therefore, I will not give the specific clinical details. For the people who were looked after in St. Vincent's, where I was a member of a large multidisciplinary team that took a lot of time to plan how to do this safely, kindly and well, it was clinically necessary. If I ever could tell the Deputy the details, which I cannot-----

I respect that. That comes under clinical appropriateness.

Professor Mary Higgins

Absolutely. We can talk more about that as well if the Deputy wishes.

I welcome the delegation. I want to put on record that I dispute the points made by the previous questioner. There has been a range of concerns that many of us have had for several years about this entire project. It would be interesting just to get some figures on the earlier claim. Perhaps they could be provided to us in relation to the provision of termination services. My understanding is that those services are not provided in St. Vincent's in line with the 2018 Act. If the situation is different to my understanding of it, perhaps we could be provided with figures in that regard. I am not looking for personal details, only figures.

I go back to comments the Minister made in a earlier reply about the Cabinet meeting on Tuesday of last week. He said the decision was taken to open up the issue prior to the Cabinet meeting. That is hard to understand because I recall very clearly the Taoiseach, on his way into that Cabinet meeting, saying to the media that he was entirely satisfied with the proposals and had no concerns whatsoever. Indeed, the Minister, Deputy Eamon Ryan, made a similar comment prior to the meeting. At any rate, for one reason or another, the decision was taken to open this up. Would the Minister accept that it would have been a better way of handling this matter to make the legal documents and all other relevant documents available so that people had adequate time to consider them, rather than trying to rush it through without those documents being available?

That is exactly what we are doing now. I wish to just pick up on one thing. I think Deputy Shortall is disputing that the witnesses here-----

-----who perform terminations in St. Vincent's are telling the truth. I think that is what was just said. Could we get clarity on that?

That is not what I said. I said I am curious to know about terminations being carried out in line with the 2018 Act.

The Deputy is not disputing that they are carried out though. Is she?

I said that many of us have been looking for details in relation to the scale of that work. It would be helpful if we had those.

Of course. I just want to check that the Deputy accepts they are carried out.

In certain circumstances.

In St. Vincent's.

I am sure there are some circumstances where they are carried out and it would be helpful to get information on that.

Would it not have been better, rather than trying to rush this through the Cabinet last week, if the Minister had made the legal documents available to the rest of us who have a duty to scrutinise Government decisions? Considering the scale of this project and the amount of public money involved, would it not have been better if the Minister, prior to last Tuesday, had made those documents available?

It was important that Cabinet discussed this. We have had this debate in the Dáil and Members in the Oireachtas, including Deputy Shortall, have very reasonably asked to see the detail. Obviously, we have published all of the documents and we are now discussing the detail. It is important though that Cabinet has sight of that as well. Were we to release documents that Cabinet had not discussed, as I think we have all discussed in the Dáil before, questions could arise around whether they represent the Government view or what exactly the detail represents.

Okay. By all accounts, the intention was to sign off on this last week at the Cabinet meeting. As a result of the public outcry, thankfully the documents have now been made available. Given the complexity of this whole project, including the documents, and to be fair about this and give people a reasonable amount of time - we have been given one week, not two weeks - to consider these complex documents, I ask the Minister if, in the interests of fairness, he is prepared to extend that period to allow further scrutiny?

It is two weeks. The documents were released-----

We do not have two weeks in terms of sessions such as this.

It is just this week.

I accept that. However, the documents were shared last week straight after the Cabinet meeting, so the investigation of the matter is for two weeks. The Government decision is that it will be brought back for a decision, but with observations. That goes to Deputy Cullinane's point about whether we are simply closing down any debate or consideration. Of course we are not doing that.

In light of the concerns expressed here and the very serious public concerns, is the Minister prepared to recommend to Cabinet to hold off for another couple of weeks to consider this matter adequately?

That is a matter for Cabinet. There is a Cabinet decision, which stands. The next time the Cabinet will meet is next Tuesday.

Okay. I asked the Minister if he would suggest, as the relevant Minister, that some further time be given. Would he recommend that to his Cabinet colleagues?

Let us see how this week goes. There has been an awful lot of scrutiny.

I believe we have two committee sessions and a Dáil session tomorrow.

So far, there has been very thorough engagement with this.

The Minister has given a potted history of this project going on for almost a decade now. Does he accept the reason for the delay has nothing to do with those of us who have had serious concerns about this project and, rather, has everything to do with the fact that successive Governments and four successive Ministers have not been able to bring this deal across the line in a way that ensured either public or Government confidence?

I do not believe for one second that people-----

Sorry, perhaps the Minister can just give me----

I am trying to answer.

-----a "Yes" or "No" in answer to that.

It is not a "Yes" or "No".

It is not the fault of people who have been raising concerns. Does the Minister accept that?

I am in the middle of answering that and genuinely trying to answer. I do not believe those who are asking questions have any fault, nor have I heard that suggested.

To the Deputy's second point on whether this has taken a long time because of the complexities involved, it has. As the Deputy said, I am the fourth Minister for Health who has had this project.

Fine. It is a result of Government failure to bring the project across the line. I do not want to get back into this issue of ownership and leasing. I think most people would see those as being very different things. However, I will ask about a claim the Minister has made repeatedly in relation to the State owning the hospital and whether it stands up to any kind of scrutiny. I put it to the Minister that the first schedule of the lease agreement states in black and white that St. Vincent's Healthcare Group is the owner. Section 4 of that agreement outlines that the site and the hospital are being leased to the State.

The State is the owner of the building. In 300 years' time, the land would revert to St. Vincent's.

Just on the building then, what I just read out and what is in the first schedule is very different from what the Minister is claiming.

I might ask Mr. O'Donoghue for the legal perspective on why that is the case.

Mr. John O'Donoghue

Again, it comes down to confusion. There are two different interests in the campus at St. Vincent's. There will be a freehold interest, which is held by St. Vincent's Healthcare Group-----

I am not talking about the site.

Mr. John O'Donoghue

-----and there is a leasehold-----

I am talking about the building.

Mr. John O'Donoghue

This document creates a proprietary interest in land for the HSE for 299 years-----

I am talking about the building.

Mr. John O'Donoghue

-----and the building constructed on that land would be constructed by the HSE from its own resources. Anything on that land for a period of 299 years will be used and occupied by the State in accordance with this agreement.

That is not my understanding, or the understanding of many others who are much more qualified than I am, of that first schedule. Will Mr. O'Donoghue facilitate the committee by sending us a legal note on that particular schedule?

Mr. John O'Donoghue


I ask him to do so overnight, please.

I want to move on to the phrase "clinically appropriate", which is used right across the legal documents. The Taoiseach says the phrase was inserted by the HSE to make sure it would not be a cardiology hospital, neurology hospital or whatever else. That is to quote his words.

However, the so-called "fact sheet" that was circulated among Fine Gael backbenchers stated that the HSE will grant an operating licence to the national maternity hospital at Elm Park DAC to run the new maternity hospital and also to St. Vincent’s, which will deliver some other health services in the hospital such as dermatology. Can the Minister explain what that means because it has been put to us, when we query that phase, "clinically appropriate", that is to clarify that it is maternity related services? Why would the fact sheet contain that reference to dermatology services that St. Vincent's would be carrying out in that hospital?

As part of the building - it is a huge new building - some existing services in St. Vincent's are being displaced and they are being accommodated in the new works.

In response to the point on "clinically appropriate", because I agree there are people asking very understandable questions about this, really, they are asking could this in some way be used for a doctor to say that he or she does not believe that a woman's decision to have a termination is appropriate and, therefore, it is being denied, many of the understandable concerns-----

On this specific question, I am asking the Minister because the explanation given for that particular phrase being used was that it is to clarify that it is only maternity-related services, not services such as cardiology, and yet the fact sheet talks about services such as dermatology, which is referenced, and potentially others. That explanation does not then stand up to scrutiny.

It does. It is to facilitate the facilities - the current services which are being displaced by the building.

On "clinically appropriate", I might ask Professor Higgins for her input.

With all due respect, I am asking the Minister about this because the Minister has been giving that explanation for that phrase. Is the Minister saying now there will be dermatology services in the new national maternity hospital?

The facilities that have been displaced by the building of the new national maternity hospital will be accommodated in the new structure.

Then the Minister's explanation does not stack up. Would they be public or private-----

Mr. John O'Donoghue

Can I come in?

Sorry, Minister, would they be public or private dermatology services, or both?

I would have to check for the Deputy.

Mr. John O'Donoghue

Can I come in with one point? The facility that-----

Sorry, I am nearly out of time. If Mr. O'Donoghue does not mind, I want to stick with the Minister. Does the Minister accept then that that explanation does not really stand up if other types of services will be provided in the hospital building?

I do not accept that. The explanation stands up on several grounds. We are to some extent protecting maternity services also against the pressures of the State so that the State does not say that it has a state-of-the-art building, it has a lot of extra beds, it has a lot of extra operating theatres and a lot of extra diagnostics and could it not maybe push in and start using those services. It is very much around that.

To the core concern around "clinically appropriate" because it has been raised repeatedly, maybe Professor Higgins would give a view as to-----

Hold on, Deputy Shortall. You are at the end of your time. Let Professor Higgins in.

Professor Mary Higgins

There is another way of interpreting it. We are just future-proofing for procedures, diagnoses and issues that we do not know about yet. Forty years ago, the most common form of contraception in Ireland was the Billings method. Nowadays we have multiple forms of contraception - I am very glad of that - many of which we provide for free for women who are attending for a termination of pregnancy here.

Thirty years ago, I would never have thought we could have done a hysterectomy for a transgender man - in a million years, I would not have thought it - or provide any kind of care-----

Chair, can we keep to-----

Professor Mary Higgins

I am allowed to finish, Deputy. We did not think these would happen. Twenty years ago, if someone had an accreta, she had a hysterectomy. Now we are doing uterine preservation surgery. There will be tests, procedures and diagnoses coming up in the future that we do not know about yet and having this "clinically appropriate" means what is clinically appropriate for the time so that we can continue to innovate for women. For me, it is very respectful for women to have that term.

I will quote Professor Higgins who has described this as the need for "future-proofing". The Taoiseach is saying something else. The Minister is saying something else. It is easy to list the services that will be provided and to qualify that by saying, "but not limited to", which would future-proof the provision of services.

We are told that the HSE insisted on including this phrase in all of the legal documentation. It is a problematic phrase and the likelihood is it will be challenged in court on several occasions over the next 300 years. In view of that, is the Minister prepared to revisit that issue? Is the HSE prepared to withdraw its insistence on the inclusion of that and to come up with a phrase that will be absolutely crystal clear in relation to the services that will be provided? There are many legal people, and many medics as well, who are seriously concerned about that phrase. Is the Minister prepared to contemplate the removal of that phrase and replacing it with an agreed form of words?

The advice we have from the HSE and from the clinicians is that the phrase matters. It matters in terms of services. It matters in terms of the services provided and protecting those services. However, if it would be helpful to both the Deputy and the Chair, because I agree with the Deputy that this has become something that people are focusing on and really asking serious and important questions about, I would be more than happy to write formally to the committee - it could be countersigned by the HSE - and lay out formally exactly what is meant by this so that we would have a formal position from the Government to the Oireachtas.

With all due respect, all that matters is what is in the legal document.

Deputy Hourigan is next.

I will stay with the issue of "clinically appropriate", if I can. I would agree with Deputy Shortall that what we need is something that relates to the actual documentation. Correspondence between the committee and the Minister and his officials would not be something that in 200 years or 150 years will be laid before a court as legally binding.

I am incredibly disappointed by the phrase "trust doctors". When I walked the streets in Dublin Central on repeal, that is not what I said to people. Our slogan, the Green Party slogan, was "Trust her" - trust women. The issue around "clinically appropriate" is that it places all of the power in the hands of clinicians and in the hands of those legal professionals who will then interpret what "clinically appropriate" means.

Over the past few weeks, I have spent a long time looking over these documents. I listened to lots of legal opinions, both of those who want to proceed with the agreement and of those who question it. Many of them are eminent legal minds saying very different things and the idea that it is not open to interpretation is simply not credible.

I can totally understand how clinicians feel it is important but that does not negate the requirement for more rights-based language here. That is incredibly important when it comes to reproductive care, and that we centre women in it.

There is a trust deficit here and we have ambiguous language. There is a trust deficit between the institutions of the State and the people of the State. Particularly when it pertains to this phrase, what can be done now that does not delay the project but that reaches out to bridge that gap and to close that trust deficit? What can we do now that is legally binding?

For clarity, what I said at the start was not "trust the doctors"; it was just "listen". What I had said to people was, "Let us listen to the midwifes, the nurses and the doctors", but I take the Deputy's point and I agree. The reason we are having this debate is because there is a very understandable deficit of trust because of the history in the State between religion and women's reproductive health.

I do not mean to cut across the Minister but it is not only religion. The institutions of the State, in the Department of Health and in the HSE, have also let down women. I understand the idea of listening to clinicians but Savita Halappanavar died under clinical care. Therefore, it has to be more than locating this in religious ethos.

Deputy Hourigan, I think, is asserting that the term "clinically appropriate" - her concern that has been raised by many others as well - would somehow give a woman's treating clinician the right, the power or the influence to say that he or she does not believe it is clinically appropriate, for example, for the woman to have an elective termination and, therefore, she cannot have one.

My understanding is that is the core. Counter to that, and I might ask Dr. Mahony to come in-----

No, I am sorry, I just want the Minister to accept the point that there is enough ambiguity in the term to pose a problem in the long term for governance. Is there a way for the Minister now, without delaying the project, to bridge that gap in order that he can provide people with some kind of confidence that is not the case? This should be more than what is there right now, because what is in the documents right now is not enough to do that.

I think there are two different questions there. The first is whether there is more we can do. Let us see. As I said earlier, we have to be open to this discussion. One of the things we are doing is clarifying categorically what it does mean on the record of the Oireachtas. This carries legal weight. I have also offered to write to the committee to do that.

The second part of the Deputy’s question was around there being ambiguity, but the constitution is crystal clear. It is important to point out that the clause here that matters states that the powers “must be exercised by the Directors independently, without religious ethos or ethnic or other distinction, in such a manner that any maternity, gynaecology, obstetrics and/or neonatal services which are lawfully available in the State shall” - not may - “be available in the New NMH”. The Minister has power whereby the directors have the duty to carry out any direction that is issued by the Minister, including "to ensure that any maternity, gynaecological, obstetrical or neonatal service which is lawfully permissible in the State shall be available in the hospital, without religious ethos". The phrase “clinically appropriate” does not appear in either of those clauses. It only appears in clause 3(1), for the reasons that Professor Higgins, the Taoiseach and I, along with others, have already outlined-----

We have heard a number times in this session already that some of these phrases appear a number of times throughout the documentation. However, I want to move onto another------

I do not mean to cut across the Deputy. Would it be helpful for me to issue something in writing? She is asking for clarity. Would it be helpful for me to issue something in writing to the committee?

We need something that is included in the deal, in the documents and that has legal standing. A correspondence to this committee does not bear that kind of legal weight, as far as I am aware but I am not a legal professional. It would have to be something that in the 298th year they can still point to.

I want to move on to the business case. I am aware that the business case is still under review. I have a number of questions. First, can the Minister elaborate a bit on that review? My understanding is that the hospital itself is to be 55,000 sq m. I am drawing on a previous life when I say that the healthcare build costs are approximately €5,000 per square metre. That would give us a cost for the hospital of €275 million. If you add on maybe 25% for VAT and fees, 25% for equipping, that still brings us to a figure that is under €500 million. Yet, we are quoting a figure of €1 billion in the general ether of this conversation. How have we got to the figure of €1 billion? Where is that number coming from? By the way, I have factored inflation into my figures.

The figure that I have seen floating around was €800 million-----

That is still an extra €300 million or €400 million.

-----In the course of the week, people were rounding it up to €1 billion. The full costings have not been put together. We need the Government decision. We need the detailed business case. Then it has to go out to tender. When the Stat has a view, it will have an accurate view as to what it should cost. Typically, that figure would not be released, because we want to run a competitive tender.

Okay, but can the Minister accept that the figure of €800 million is floating around? A contractor who knows that this project will be coming out for tender and will know that the actual costs of the construction build for the building at €5,000 per square metre will be €275 million. We have now inflated and almost doubled the cost of the hospital ourselves before we ever put it out to tender.

To go back to the business case, can the Minister give us details about why this is under review? Can he give us details about the enabling works? As I understand it, the enabling works are something in the region of 20,000 sq m, which would result in approximately €50 million in costs. Is that what we are looking out for the enabling works and the car park?

My understanding is that the enabling works at this point are €51 million to date.

Is it correct that the decision has not been taken at Cabinet level but we have moved ahead with the car park and we have spent the €50 million?

That is right. In 2017, planning permission was secured. In December 2018, the then Minister for Health, Deputy Harris, approved the contract for the first phase of the NMH to proceed.

Would it be normal for a Department to bring such a large project to Cabinet without the business case being signed off on?

There are many processes done in parallel.

Would that be standard?

We do not do these projects very often, so it is not like we can look at what is being done across multiple other projects at the same time. However, yes, projects would be progressed in multiple ways while business cases are being developed. This is because if you do everything one after the other, you will just get never get anything done.

Yet, in this case, the business case was completed and then it was not accepted and was sent back for review. Would that be standard?

The business case is with the Department of Health for review. It will go to the Department of Public Expenditure and Reform through the normal process.

Can I ask about the Elm Park site? In 2012 there was a proposal for the use - and believe the NMH agreed to that - of block 1 on Elm Park. That was not proceeded with. Can I ask why? That is an empty building right now. Is that correct?

Dr. Rhona Mahony

In 2012 there was not an agreement, but a high-level feasibility study. It looked at the anterior two buildings, or the McNamara buildings, as they are known, to see-----

I worked on that project actually.

Dr. Rhona Mahony

-----if that could work as a maternity hospital. There were many disadvantages, in that we are not physically linked to the building. For example, with our new hospital that hopefully will be built, we will be directly linked in at ICU and theatre level. That is really important. We will be linked into the whole hospital, will be on campus and we will not be transferring patients down the road again. Even with the Elm Park McNamara buildings, we would still have had transfers from those buildings to the hospital-----

To be clear, did the NMH did agree to originally to that, or not?

Dr. Rhona Mahony

No, it was never-----

Did they reject it?

Dr. Rhona Mahony

It was explored as a high-level feasibility study. It was never in the capital plan. In fact, the Government was looking off-balance sheet financing but no formal agreement had been made. Suddenly, and we do not know why, the project was pulled. I do not have an explanation for that. We were simply told that the project was pulled and then a commitment-----

Can I get clarity from Dr. Mahony that from her perspective was she still open to that suggestion, in or around 2012?

Dr. Rhona Mahony

It was the only suggestion on the table at that time. We explored it. We never got beyond the high-level feasibility study. However, I am certain that in terms of achieving the co-location ideals, where we are right on the campus and where we are physically linked to the building, it would be a much inferior proposition. It was explored-----

I know I am out of time but to come back to this, that building has been sitting empty for ten years.

Dr. Rhona Mahony

Whatever decisions the Government takes are not a matter for Holles Street.

I totally accept that.

We will move next to Deputy Bríd Smith.

I am substituting for Deputy Gino Kenny. I thank all the witnesses for the work they do and for coming along here today.

I have to say that I feel that we are in the middle of something really weird. Drip-fed bits of information keep coming at us, as elected politicians. We are not getting the full truth, the whole truth and nothing but the truth. For example, the Minister has just told the committee this morning that parts of the new national maternity hospital will be occupied by other elements of St. Vincent’s Healthcare Group that have been displaced. He cannot clarify for us if that will all be public, all private or a mixture of both. I find that really upsetting. We are getting this drip-fed information bit by bit when we have an opportunity to delve down.

Earlier, Mr. Ciarán Devane said that for the last year they have been debating and robustly listening to queries about this project. Yet, we have been in here asking questions for the last year and we have been getting no answers. I do not know how many times most of us in the Opposition stood up in the Dáil to ask for full debates about the future of the national maternity hospital. We are now getting it, after kicking up a fuss and having been told that we are guilty of a campaign of disinformation or misinformation.

The Minister has come in today and is remembering the moment of repeal and the seismic shift that was for the women of this country. Members of the Government engaged in that campaign, whether they were knocking on doors or advocating for it and that was helpful but repeal changed everything. When you look back at the history of the debate, discussion and negotiations around the new national maternity hospital that go back to 2012 and 2013, it seems to me from what the Minister has told us today that the bones and structures were all agreed pre-repeal. How much did post-repeal Ireland change that discourse and discussion? It must have changed it. A lot of that discourse and discussion took place when the sisters or nuns were still on the field. We are told that they are gone from the field and we are repeatedly told that no religious influence will be allowed.

I want to put the following thesis to the Minister. In the same week we got the announcement that the Cabinet was about to sign off on this arrangement the US Supreme Court leak happened. It was leaked that Roe v. Wade was about to be seriously challenged and possibly taken down. For me, as somebody who has fought for repeal and abortion rights all of my life, that was shocking. I understand, as many women in this country do, that for women's healthcare and reproductive rights you make two steps forward and you can take four back. That happens because there will always be a kickback and a backlash against women's rights. That is part of the way our society has been structured. Women's oppression has always involved us making gains and them lashing back against us. Religious interference does not always appear in nuns with long veils traipsing the corridors in the image of Mother Mary Frances Aikenhead. That is not what we mean when we talk about religious interference. We mean a deep-seated and deep-rooted prejudice and an in-built thinking about women's health that goes into the heart of the Civil Service, the health service and the political establishment. It is something that cannot be seen and it does not wear a veil but it traipses around our bodies and lives all of the time and I am seriously worried that this concern will be dismissed. The Minister said six times that it is in the Constitution, that there will be no religious interference and that this cannot be true. That is nonsense and that is not the way it works.

I am delighted that the Minister acknowledged this morning that there is a much more deep-seated sociological reason for the mistrust around this deal and that it is not just headcases like me or others giving out misinformation. There is a deep-seated reason for it. We have to deal with that deep-seated reason and to do so we need much more than we have had until now in terms of reassurances from the Minister that there will be no religious interference. For that we need to know why the St. Vincent's Healthcare Group, which will have deep-seated and deep-rooted ties to the religious orders, will have the right to appoint three board directors and to appoint the chair every few years. Why does it have that right? If this is to be an utterly independent national maternity hospital for the women of Ireland to deliver all reproductive and maternity care then why does it want that interest? It seems to really and passionately want it.

Its fact sheet is extremely interesting and it does not provide the sort of facts the Minister gives us when he repeats that we own it. Mr. O'Donoghue keeps telling us that we "effectively" own it because of these leasehold rights but we do not. St. Vincent's Healthcare Group says that it owns the land and the rights and that it is on the board because of this, that and the other. I am deeply suspicious of its interest in this project. The Minister for Health was involved in devising Sláintecare and I do not understand why we would use all this public money and this opportunity to create a truly one-tier medical system with no discrimination against people based on the depth of their pockets or the size of their wallets with a clearly publicly-owned and funded national maternity hospital in this way. Why do we not take the opportunity to have that? That is clearly not what we have and the plot thickens when the Minster tells me about the private elements that will be in the building and about the clinical independence.

Somebody mentioned Savita Halappanavar. I think of her every day but I did not want to mention her name. However, now that she has been dragged up I want to say that as she was dying, somebody took a decision that it was clinically inappropriate to give her the abortion that she and her husband asked for. Somebody took that decision and even then, pre-repeal, it was legally permissible to do that to save her life. Clinical appropriateness can be decided by somebody who does not agree with my view of the right to choose and of a woman's control of her body. That could still happen with that the phrase "clinically appropriate" mixed up with the term "legally permissible". It is obfuscating in terms of where women stand. What about what they want, rather than what the clinicians want?

We need to delve down into this much more and we need more time and reassurance. If we removed the ownership of the land from the equation, we would get rid of this labyrinthine structure that has been described as Kafkaesque, involving three boards of management with three constitutions and three ways of appointing people and the State would deal directly, once and for all, with the future of women's health. I would like the clinicians and the Minster to address those concerns that I still have, despite this long debate.

I fully agree with the Deputy and I appreciate her acknowledging that this is a deep-seated mistrust that goes back for generations and it is understandable that this mistrust is there. I will make a few quick points as follows. First, a view has been expressed that we could just own the land and the building and that it could be a HSE hospital. We could take the current national maternity hospital out of it and it could be a HSE-run hospital. There are 19 maternity hospitals or units in the country and at the start of the year, ten of them provided services. By the end of the year 14 of them will provide services, so we are all moving in this direction. There are 11 maternity hospitals providing services right now and the eight that do not provide services are HSE hospitals. We own the land and the buildings in those hospitals and there are no voluntary structures there whatsoever. The hospitals that have led post repeal are the voluntary hospitals and the people sitting with us today. The idea that has been put forward that if they were just HSE hospitals then that would solve the problem is clearly not correct because the eight maternity hospitals that do not provide services are HSE hospitals.

Second, the ownership of the land is not linked to the appointment of directors. The land under the National Maternity Hospital, Holles St., is owned by the Earl of Pembroke, whoever that is, and he has no influence. If the Deputy owned the land and we were getting a leasehold ownership for 300 years from her then she would not be appointing any directors. The directors are being appointed because this is a partnership. The national maternity hospital, which does not own the land under St. Vincent's University Hospital, is appointing directors to that board as well. I might ask the clinicians about this. Could Ms Brosnan come in on this point?

Before she comes in, I will make a point. Everything the Minister says conflicts with the fact sheet from the St. Vincent's Healthcare Group. The Minister says we own the land but the St. Vincent's Healthcare Group says that it owns the land. The Minister asks what interest the St. Vincent's Healthcare Group has but it says that it has an interest in it. The St. Vincent's Healthcare Group asks why it requires ownership of the land and it says that land ownership is essential to ensure the ongoing provision of the best possible care for patients attending St. Vincent's University Hospital and the national maternity hospital. That is not what the Minister says and it says something different. The Minister says land ownership is irrelevant but the St. Vincent's Healthcare Group says it is very relevant. Why does it have this continued interest in it?

To be clear, I am saying that land ownership has nothing to do with what will go on in the hospitals and that it is not why directors are being appointed.

The St. Vincent's Healthcare Group says something different. The Minister and the St. Vincent's Healthcare Group are singing from different hymn sheets and that does not help. Could the Minister have a meeting with the St. Vincent's Healthcare Group, sit down and ask why it is saying one thing when we are saying another and why it says it owns it when we say it does not? I ask the Minister to get his act together because it does not bode well for a future partnership in our healthcare that the various parties are saying different things about the structures.

The structures have been explained in detail by the lawyers. It has been clearly said that the St. Vincent's Healthcare Group has the freehold and that for the next 300 years the State will have the leasehold ownership. That is the position. I ask Ms Brosnan to come in as she has not spoken yet.

Mr. John O'Donoghue

I would like to make one point on the fact sheet the Deputy is reading from first. There is a question on that fact sheet asking: "Who owns the NMH?" and the answer to that is as follows:

The new NMH DAC will be part of St Vincent’s Healthcare Group [which is the subsidiary and we have all talked about the protections].

The hospital building will be owned by the Irish State and will be operated by the new NMH DAC under an operating licence agreement from the HSE.

The land is owned by SVHG [which is not disputed and which is a freehold interest] and is leased for 299 years to the Irish State [which I have previously said is a sufficient length of time for whatever building will be constructed on that land]. This is not unusual and many state institutions are on lands not owned by the government.

I would say, as a property lawyer, that is not unusual that buildings are constructed on leasehold interests. Ms Brosnan might like to -----

To be clear nothing read out from the St. Vincent's fact sheet is different to anything that has been said here. Can we hear from Ms Brosnan on that point?

Ms Mary Brosnan

Like many others, I have been involved in the project for nine years. I am the director of midwifery for the last 15 years in the National Maternity Hospital. I am passionately interested in this project as are so many stakeholders.

The Deputy asked particularly about why dermatology is in the building. There are very detailed maps available for everybody to scrutinise this. Much of St. Vincent's campus will be disrupted to build this very large structure. It is around 50,000 m2 of which 35,000 m2 to 40,000 m2 will be the national maternity hospital's business. There is another part of that campus that will be shared services, particularly all the catering and all the sterile services department. They will all be shared and quite a lot of other facilities.

The other element is that St. Vincent's current campus will lose a lot of its space. Procurement, ward areas such as dermatology and transitional care beds all had to be planned into the new service. There is a very large, long, L-shaped building in the plans. At the moment it is configured as a red block in the diagrammatic schematic picture. If you drill down, there is an L shape which is built into five or six different elements, that is, our own big build - hopefully- the shared services and what St. Vincent's needs to build to replace what we are taking over. It is very complicated because it is a working hospital. It is the largest campus hospital in south Dublin and Leinster, almost. A huge amount of work will be required to be done in the middle of a working campus. It is complicated. We phased it. There was originally discussion of doing it in two phases and now it will hopefully be built in one. We are very comfortable that the language that was put into the document protects maternity, women's health and neo-natal services for the future.

Deputy Bríd Smith was asking very reasonable questions about a deep seated and not always obvious religious influence.

It is not always in a habit.

Ms Mary Brosnan

Every woman and every citizen in Ireland has been listening to that debate. I can only say from a professional perspective that as midwives and clinicians working in the hospital as nurses working and providing all of the services at the moment - we mentioned fertility, termination of pregnancy and sterilisation - all those things are happening without religious influence and we know they will continue to happen. It is ten years ago that Savita Halappanavar passed away. It was a tragedy for every person involved and in particular her family and all the community. The legislation since then has protected women's interests. Termination of pregnancy is now legal. It is being provided in many of the hospitals in the country. That will continue in the St. Vincent's campus.

My time is up so I want to make a couple of remarks before I finish. Fair play to Ms Brosnan for having such confidence that she can guarantee the future of women's healthcare in terms of abortion in this country. Nobody in the United States can guarantee it for women in America and they have had it long, long before we have had it.

While I have a minute, I want to thank Professor Deirdre Madden and Dr. Sarah McLoughlin for their statement this morning. They have been hugely courageous in providing that statement to us. It should be published and everyone should read it. In the closing paragraph they express their concerns on governance and control. It noted that: "Although the agreed clause in relation to services will facilitate the provision of all legally permissible services at the new NMH boards also influence the culture, values, and ethics of the entity they govern, and this gives rise to the legitimate concerns for us about the potential influence of ethos".

I return to how we have three sets of appointees on a board of management instead of a Minister for Health - who I do not fully trust at the moment because of everything I have heard that contradicts what I am reading; even if I trusted the Minister for Health - being able to appoint the directors of the boards or some entity that does not have the vested interest of the St. Vincent's Hospital group and others. I do not trust it and I think that is shared by many others in the country. We have a statement from these two eminent people who dissented from the decision on 13 March to go ahead with this deal on 14 March. I think people need to take note of that statement. The idea that ethos can influence medicine is always there. We need much more to guarantee that just because the nuns have gone off the pitch, the influence of the St. Vincent's Healthcare Group will have much more weight than it ought to. I want to thank the two women for taking the courageous step of making that statement.

I am publicly asking the Minister to hold off on making the decision until we delve down much further into what is going on. I have heard Dr. Mahony repeatedly talk about how bad things are in Holles Street. I understand that. I disagree with some commentators who have said it is like a slaughter house. It is not like a slaughter house. I have friends who gave birth there in the last year and they got on very well. We need to calm down a bit. We need to step back and really delve down into what we are doing here. We need to give it more time. If we have given it eight or 12 years, it can take another bit more time to get it right. We took a long time with the national children's hospital. That is costing us a load of money but at least it is being built on a campus where they own the land and are sharing the state-of-the-art facilities and medical facilities with St. James's without all this nonsense of three boards of directors and three constitutions and three mixed-up ways of dealing with things. Why could we not do the same as with the national children's hospital and St. James's with this? It is because St. Vincent's Healthcare Group do not want it. It wants a huge influence on this hospital.

Ms Mary Brosnan

If I might come back in on the comment about the slaughter house. I would take grave exception to that description.

Somebody did use it but nobody here.

Ms Mary Brosnan

I would like to put on the record that the existing hospital is an extremely safe facility run by an amazing group of people across the board there. I would really take issue with that comment. We need to make the point that the existing facilities are not purpose-built for 21st century modern healthcare. They are managing to serve a community of people who are giving birth there. Today probably 20 women will give birth over the course of the day.

I think we all accept that.

Ms Mary Brosnan

Okay but I think that language is really unhelpful.

It is not my language.

Ms Mary Brosnan

No but I just wanted to make that point.

I will make one quick response if I may. I know we are well over time. I want to go to the reasonable challenge Deputy Smith put forward. She said she does not trust St. Vincent's to appoint whoever to the board. I think that is very unfair but it is the Deputy's right not to trust any Minister for Health. None of us know who the next Minister for Health will be.

Exactly. Absolutely.

Then we do not trust the State to appoint directors? There are eight HSE hospitals that are all the hospitals that are not providing all the services. Clearly running it as a HSE hospital is not the answer because that is not providing any guarantees. So where do we go? We know that simply having it as a public hospital on public land run by the HSE by definition does not guarantee it because all the hospitals that are not guarantee it because all the hospitals that are not providing services are that model.

The Deputy says she does not trust St. Vincent's to appoint board members and that she does not trust the Government or future Governments to appoint board members -----

No. I did not say that I do not trust everybody. The Minister is making it out that I cannot deal with anybody.

That is not what I am saying.

I promise I am really trying to come down the issue. I am taking what she is saying really seriously and trying to address it. None of us know who the next Government will be or who will be in a position to make appointments on behalf of the State.

We are about to deal with the question of the hospitals and the GPs that do not provide that service under the abortion review.

No I appreciate that. Can I just wrap this up? I am sorry. I do not want to keep going on. The question for all of us is that given the HSE model on its own does not guarantee anything, people have raised concerns about the motivations of people being appointed from various places, we have to ask what we come back to? What is the rock on which we are building these guarantees? It is the constitution of the hospital. That is what matters.

There are three different constitutions here.

No, the NMH has one constitution. There is one document. The document that matters here is the constitution of the national maternity hospital. If people do not have faith in various directors being appointed where do we go? Where we go is to the constitution.

The constitution states not only that the new hospital can provide all services, but also that it must provide all services and it must do so without any religious influence. If, for some reason, the hospital fails in its duties, the Government can step in and direct it to fulfil them.

The Minister is creating a legal quagmire that could potentially see people who do not want women to have the right to choose going in and out of court to challenge the construct of the national maternity hospital on the basis of this deal for the next 300 years. It is not that I do not trust anybody at all on the planet to do stuff. I absolutely trust the clinicians sitting here in front of me. I admire and totally trust the midwives, nurses and doctors. The problem is that we have weak abortion laws in this country that have allowed for conscientious objection to be used all over the place without giving women access to the rights they should have. I want to see a national health service in this country, as does the Minister because he signed up to it, which is freed from voluntary, charity and private medicine. That is where we have to go. We are certainly not going there with this hospital and this structure.

I will move on. I hope there will be an opportunity for a second round.

I thank all of the witnesses who are here for their contribution and for what they do for healthcare and women's health in this country but I have to say that I find myself in agreement with a great amount of what Deputy Bríd Smith has said. It is not overt religious influence I am concerned about but covert influence. The influence of the church is rampant in education and, unfortunately, it is also rampant in healthcare. Does the Minister not think there is something ironic about the Taoiseach reading a letter from the 19 maternity providers in this country in support of this project into the record of the Dáil while eight of them are not providing termination services? I believe there is something fundamentally ironic about that. I have a simple question. The Cabinet postponed the decision for two weeks but is anything going to change with regard to this project? Have the two weeks of engagement led to even one sentence of the constitution of the hospital changing or to any change to the structure? Is all that has happened that we have paused the decision for two weeks? Will the exact same memo that went to the Government two weeks ago be passed next Tuesday? Will anything at all be different in light of the discussions we have had here this morning or the engagement the Minister has had over the last ten or 12 days?

As I said earlier on, I do not think anyone should ever rule anything out. I am certainly finding today's debate incredibly useful. It is really useful to hear the very understandable concerns raised in the debates we are having. Might we hear from Dr. Mahony regarding Senator Conway's concern about some sort of covert influence? Would that be okay?

Dr. Rhona Mahony

It is important to note that while I am here in my National Maternity Hospital capacity today, I am on the board of the St. Vincent's Healthcare Group where I provide clinical expertise. I provide termination of pregnancy services and I advocated, fought and put my professional self on the line to ensure that women should, quite rightly, have access to termination of pregnancy services as autonomous women, services that make healthcare safer for women. That is really important. There is no way that I would engage in anything that would sacrifice that. I fought hard enough alongside all the women and I will never forget the abortion campaign, seeing women coming out and telling their stories, the pain we heard of, how women were listened to on that occasion and how we changed everything. There is absolutely no way that I would ever countenance moving to-----

I totally accept that.

Dr. Rhona Mahony

-----an institution-----

I totally accept that. I have great admiration for the work Dr. Mahony has done over many years. However, does she not believe there is something ironic about the Taoiseach reading out a letter of support for the national maternity hospital's new location when eight of those who wrote the letter are not providing termination services?

Dr. Rhona Mahony

I cannot comment on that but what is important here is that we are-----

Why can Dr. Mahony not comment on it?

In fairness, it is a political question.

It is a political question. The Senator is making reference to the Taoiseach. I am more than willing-----

I am talking about the provision of termination services. Of the 19 hospitals providing maternity services around the country, eight are not providing termination services. I do not believe it is a political question. With respect, it is a health question.

When the Senator asks whether the Taoiseach's actions are ironic, in fairness, that is a political question.

I asked whether it is ironic that he would read out a letter of support from these 19 hospitals when eight are not providing termination services.

One of those clinical directors of midwifery is Ms Mary Brosnan. Would she like to come in on this?

Ms Mary Brosnan

This was a very important statement from the directors of midwifery around the country that they really want to see this infrastructure approved and going ahead. I do not think the letter can be conflated with the argument about the provision of abortion services. The letter relates to these directors' support for the building of the national maternity hospital and the investment in maternity services of which it is a signal. I am very comfortable-----

I just despair because 68% of the people of Ireland voted to provide termination services in this country and yet eight of these hospitals are not doing so. I know I am going off the point somewhat but I am trying to amplify my overarching point, which is that you cannot blame people for being cynical and asking questions. I know the Minister is not doing so and, by the way, I do trust him with this. I know he wants to do the right thing. I want to see this project get over the line but I want it done with absolutely cast-iron safeguards. I will move on to the next point I want to make. I know other-----

I will make a brief response, if that is possible. I thank the Senator. My view is that it is not acceptable that there are eight HSE hospitals that are not providing those services. I do not believe that is acceptable. It is one of the things that is being looked at in the review of the operation of the Act. However, the direction of travel is very important. With regard to what is happening right now, this year, we will have gone from ten hospitals to 14 hospitals providing termination services. That is very important. This is the second year in which the maternity strategy will have been fully funded. This year and last year, we have been in the process of setting up a national network of new women's health services in gynaecology, menopause, endometriosis and infertility. I hope to secure funding in the budget to make publicly funded IVF available next year and to begin to phase that in. We are introducing free contraception this year, starting with young women from 17 to 25. Women's healthcare, including all of the services we are talking about today, is an absolute priority for this Government. An entire national network of service provision is being built at the moment.

I do not want to say the word "ironic" but one of the things that is interesting about this debate is that, although some may have, I have never heard anyone question Holles Street with regard to termination services. Is it not interesting that two of the members of the board of Holles Street are priests? One of them, the Catholic archbishop of Dublin, is the chair. That role is agreed as part of the articles of association of the hospital, dating from the 1800s. What we are essentially doing is moving the National Maternity Hospital, which everyone accepts is a leader in women's health services, to a state-of-the-art building, to which that hospital is contributing because it is selling its building on Holles Street. We are putting in nine new directors and replacing all of those old structures. Right now, we do not own the land under the Holles Street hospital and we do not own the building. The chair of the board is the archbishop of Dublin. There are elected representatives, councillors, on the board but there are no ministerial appointments to the board. That hospital is not obliged, under its constitution, to provide all of these services. We are moving to a new model and a state-of-the-art hospital co-located with an adult hospital. The new hospital will be legally obliged to provide all services, any religious influence is expressly disallowed and the Minister and State have the power to intervene if necessary. It is interesting to look at where we are and what we are proposing.

What we are doing here is taking any religious involvement out. We are moving from relying on the wonderful clinicians in Holles Street to provide the services to mandating that they must provide them. That is what is happening here. It is very interesting to look at where we are and where we are going; we are moving in exactly the right direction. I do not believe there should be any religious involvement in any healthcare provision in our country and we are actually taking religious involvement out of the national maternity hospital with this move.

Professor Mary Higgins

To follow on from that point, Holles Street is a leader in abortion care. Dr. Mahony and I were involved in the model of care and the guidelines. Indeed, we have written most of them with our colleagues. We were one of the first providers to provide under sections 9, 10, 11 and 12 of the Act. We provide care for women in all aspects of legal care and we will continue to do that because that is our ethos as a hospital. The ethos of the clinical staff of the hospital is to provide respectful care to women and transgender men. We have a guideline on abortion care for transgender men. That is how dedicated we are and that is our culture and ethos. I really dislike this assumption that there are nuns out there who are going to somehow mind influence me to stop me from providing care that is respectful for women and transgender men. It is disrespectful to our beliefs as doctors, midwives and nurses.

I do not think it can be argued that healthcare in Ireland has not been influenced by religious denominations and nobody is being disrespectful to anybody by raising that issue. What we are trying to achieve or guarantee here is that there will not be any religious influence at the national maternity hospital. If Professor Higgins takes offence at being questioned on that, I would disagree-----

Professor Mary Higgins

To be fair, I will retract that. I apologise. We were worried about that but we are satisfied now. What we want over these two weeks is for everybody else to be satisfied, for the information to be accurate and for people to understand what is going on.

Dr. Rhona Mahony

I do not want to take up too much time but I would like to explain why I am satisfied and why I say with confidence that I am not fearful about any religious ethos and am absolutely sure that all of the services that are legally permissible, all of the services that women need, will be provided in this new hospital.

We have had a debate about this quagmire of companies. It has been suggested that the national maternity hospital being a separate company is a bad thing but it is actually a really good thing. The Mulvey agreement fell apart for its first two mediations because we were going to be a branch of St. Vincent's and I very much wanted us to be an independent company. People have described us as a subsidiary but we are a separate legal entity. I just want to go through some of the layers. This is a company that is dedicated to the provision of healthcare for women. It is actually different from the other hospitals in Ireland. It is different from the HSE hospitals where one cannot mandate for a termination to take place where one does not have all of the layers of protection. This is a company that has been designed to deliver care.

If I may, I would just like to go through all of the layers because I think it is important. I would also like to address, again, the fact that the nuns are gone because it is central-----

I will have one more question at the end but I am happy for Dr. Mahony to go ahead now.

Dr. Rhona Mahony

It is central to our debate. The first point is that the operation of the hospital is transferring from its charter to a new company, NMH Designated Activity Company, DAC, which is an independent legal entity. That provides protection of itself because company law means that the St. Vincent's Healthcare Group will, from the outset, have very limited scope to interfere. On top of that, as the Minister has said, the next really important piece is the constitution of the DAC, which is really and truly enshrining all of the values and principles that we considered so important, when we were designing this, to protect women. The principle, which is now enshrined in the legal framework, is that the hospital will have clinical, financial and operational independence and without getting too legal, we will be able to provide all legally permissible services without religious ethos or other distinction.

The next layer, and the really big piece, is the reserved powers which cover the independent operation of the hospital. They are exercised independently by the directors and any service that is legally permissible is available. We also have the Minister's direction to ensure that those reserve powers are exercised. People keep saying that this hospital is a 100% subsidiary but it actually has a really special share, called a golden share. That golden share is held by the Minister and it has very special powers. It protects the inviolability of the reserve powers and ensures that the director's obligations are provided for.

The next layer is the board of directors. We have heard a lot of comment about directors and some suggestions that directors coming from St. Vincent's would act against the interests of women's health. That is very egregious. When one is a director of a company or hospital, one takes it very seriously. One has a fiduciary duty to ensure that everything one does is for the benefit of the patients one is serving. When one is on a board - and I am on a board - everything one does has got to be to the benefit of the patients one serves. It is wrong to suggest that directors would break their fiduciary duty when we do not even know who they are yet. That is very unfair.

The operating licence from the HSE is another layer which gives us freedom and independence to protect. Then we have an ownership lease, which is giving us 299 years on the site, and we have a board and the mastership system. These are all the layers and that is even before I get to explaining that there is no religious ethos at St. Vincent's. St. Vincent's is now a secular hospital under the current board. Again, people are saying that the current board is some kind of proxy for the religious but this is the very board that spent the last number of years separating the hospital from the church because it wants to emerge into the future as a hospital whose only ethos is delivering the best national and international practice of care for the patients it serves. This is the very board that has removed a religious ethos.

That was extremely useful and I thank Dr. Mahony for it.

I spoke to the Minister last night about the issue of "clinically appropriate" services. Is there any way of defining that within the constitution of the hospital? This is a major issue for the people who are listening in to this debate. While I may be reassured by the Minister's explanation, the public has to be reassured as well. Can we define "clinically appropriate" in an explicit way within the constitution of the hospital?

I acknowledge that this phrase is causing genuine and understandable concern. At a minimum, what we have already done is to define it explicitly here - what it is and what it is not. I am not a lawyer but the advice is that Oireachtas proceedings would form part of any considerations were matters to ever go to court. The second thing I can do, which I said to both Deputies Hourigan and Shortall, is that I can write formally to the committee so that there is a written record that is absolutely unambiguous. I can engage with the committee on that.

I am going to reflect on this, as is everyone else. There is a lot of debate, a lot of different issues and many really important matters have been raised. Obviously, I and others will reflect on the entire discussion.

In conclusion, we all want to work with the Minister. We all have the same goal and we all want to achieve it. This discussion has been extremely useful and I am glad the Minister is going to take learnings from it. Hopefully, those learnings will influence the new memorandum he brings to Cabinet next Tuesday.

We will take a short break.

Sitting suspended at 11.49 a.m. and resumed at 12.12 p.m.

We will now resume the meeting.

It was nice to have a break to clear our heads. I appreciate why the Minister is saying here and on the airwaves, which is that the approximately eight hospitals that do not provide abortion are HSE-owned. I do not think it is necessarily the "gotcha" the Minister thinks it is. I think it undermines him as Minister for Health because it seems he cannot get his own State-owned hospitals to provide basic healthcare for women for which he and us campaigned and voted yet he expects us to believe that he or some other Minister with the golden share will be able to intervene in this particular hospital and insist it offers healthcare services that he cannot get hospitals under HSE management to provide. This is possibly where people are not feeling assured because the Minister's statement is only confirming people's fears that the Minister may not be able to provide for it or step in and insist on it because he does not have HSE hospitals in order.

Can I respond to that point?

I am highlighting what I think the public perceives when the Minister says that line. It is certainly what people have said to me. I do not think the line is helpful for the Minister in this debate. The Labour Party position is that we hand over too many projects or State assets to voluntary bodies. We are moving forward in Ireland. I appreciate that everyone here is painstakingly explaining to us the different structures, layouts and set-ups but, ultimately, it still seems to boil down to, and this is a public perception, this not being a State-owned building on State-owned lands. This is the crux of the matter. People are unable to marry these two things together. I do not know that we will be able to come out of this committee having married those two things together because I think this is how the public feels and I do not know if a huge amount can be done about that.

I find it difficult to follow some of the companies, set-ups, people and complicated lease agreements. It is company after company and I feel like we are going to end up in the Cayman Islands. I am trying to follow these things. This is not in any way to suggest that anything is going to end up there. It is a complicated thing for members of the public to follow. Things that are making it difficult to follow include the fact that some pieces of the paper trail may be missing. Some of the stuff has been drip fed to us. It has been a bit of a sprint effort to go through the documents released last week. Two things are missing. We are bringing the Vatican back into this so forgive me but in respect of the agreement was sought between the Vatican and the Religious Sisters of Charity, whatever that agreement or paper trail was, we do not have sight of that. That is a cause for concern for the public because we do not know what was agreed. Maybe someone here has seen that but I have not seen it. People have not seen whatever the conditions of the agreement are. This land is extremely valuable. It is a valuable asset. It is hard for people to believe that the Vatican just went "there are absolutely no terms and conditions. You can just do whatever you like with it." If it has said that, it would be really helpful for members of the public to see that paper trail.

Another thing that is a sticking point in public understanding is the fact that what is in the table today is a slightly different agreement to what was touted in 2013. My understanding is that this change took place around 2017. It feels as though there was a change in how this would going to look. We went from public land and public ownership to this agreement. Has the Minister had sight of or examined the correspondence between the former Minister, Deputy Harris, and his senior officials around 2017 outlining how we got to the current agreement? Can this be made publicly available because this is something of a sticking point for a lot of people?

There is a question around the issue of indemnity in the share transfer agreement. I know a couple of legal experts, and I would welcome the Minister's own legal opinion on this, have said that some of these terms of indemnity are perhaps vague and could even cover the Religious Sisters of Charity holding company, RSC Caritas. Is it correct to say that the indemnity will extend as far as that? If so, is it appropriate for the State to give that indemnity to it?

What happens if the Religious Sisters of Charity ceases to exist? We have this layered system. What is the legal follow on if the Religious Sisters of Charity ceases to exist? Could the Minister elaborate on who owns what because these are the questions that have come into my inbox? Who would own what if the Religious Sisters of Charity was to cease to exist within the next 300 years, and we do not know what that will look like?

The first two questions are around this ask from the Labour Party and others who say they want a State-owned building on State-owned land. I understand fully why people want that. The point I was making previously was that this does not provide the guarantee that people may be demanding because when you look at the remaining maternity hospitals or wards that do not provide them, you can see that they are all State-owned hospitals on State-owned land. By definition, that model does not guarantee what people want. In fact, it is the voluntary hospitals that have led the way on this. Regarding the Senator's very reasonable question about why the HSE hospitals are not providing these services, this year, we will have moved from ten to 14 so we are moving quickly in the right direction. Partly this is because we are directing funding. I have ring fenced funding for termination services so several hospitals have the money and investment. We are investing at a level never seen before in maternity services, gynaecology, menopause and endometriosis - a wide variety of areas. All of this money coming into our services is one of the things helping these hospitals to do it.

The question was about why we cannot get HSE hospitals to provide services. I respectfully answer that we are doing so. We are moving from ten to 14 and I intend to move further. We are all interested in the review of the Act, which we will debate here. That is another mechanism that we all want to use to identify the final blockages and to get rid of them.

On the matter of having a State-owned building on State-owned land, we will build the building and it will be ours. We hold the operating licence, appoint three directors and the Minister can intervene at any time to ensure that all services are being provided and that there is no religious influence in the hospital. The State has strong involvement in this new national maternity hospital that we do not have at all in the current National Maternity Hospital, yet it is a leading hospital. We, as Members of the Oireachtas, have to decide on the land issue. I would prefer for us to own the land. The Minister, Deputy Harris, and I asked for that. The position of St. Vincent's from the first day is that this has never been negotiable. The original agreement was for a 99-year lease, which has moved to 299 years. The conditions are essentially that we run a healthcare service on it, for €10 a year, which is basically free.

There is a question about whether we could try harder to get St. Vincent's to give us the land. It would say that it is doing so, for the next 300 years. We cannot get freehold of the land. Others have very reasonably asked if there could be a compulsory purchase order for the land. I asked that of the Department. The answer is that we could try, but I received legal advice that there would be no guarantee of success, because we would have to prove that it has to be built there and nowhere else in Dublin and that 300 years is not enough for us to have lease ownership for a building with a useful life cycle of 50 or 60 years.

Secondly, this is a partnership. It would not surprise me if an involved party said we approached it, asked for a partnership and that it gave us the land for 300 years, and that if we are now going to bring it to court, it is not interested in a partnership since that does not feel like a partnership. It comes down to whether we are willing to move to another site. Those advocating for it present it as a viable alternative. Unfortunately, we cannot own the land, but could we build somewhere else?

Will the Minister answer my question on the indemnity? We are running out of time. It has been raised by a number of legal experts.

I have been advised that as a condition of the share transfer for nil consideration, St. Vincent's Healthcare Group and St. Vincent's Holdings provided the Religious Sisters of Charity with an indemnity for any liabilities that may arise in connection with the Religious Sisters of Charity's prior ownership of the shares, any past activities at the St. Vincent's hospital campus and a waiver from St. Vincent's Healthcare Group regarding any claims connected with the Religious Sisters of Charity's operation, management, supervision or ownership of the hospitals. The Senator asked what would happen if the order ceased to exist. From our perspective, nothing would happen. It has no involvement whatsoever. Finally, any relationship between the order and the Vatican is a matter for them. People have asked if the Government will release their correspondence. We do not have that correspondence, because it is not correspondence with us. St. Vincent's Healthcare Group publicly stated that there were no conditions and that no such conditions from the Vatican would ever have been entertained.

Is what the Minister read out about the indemnity publicly available in the documents or agreements?

Yes. I am advised that it can be obtained in a reply to a parliamentary question from Deputy Shortall from May.

Considering the size and seriousness of this, for the indemnity to be in a parliamentary question and not in the documents does not seem appropriate. It should have been available. We should not have to trek through Deputy Shortall's parliamentary questions to find it out. An indemnity in particular is very important.

Ms Ita O'Sullivan

The State is in no way party to that indemnity. It is entirely between the Religious Sisters of Charity, the new company, St. Vincent's Holdings, and St. Vincent's Healthcare Group below it. The new national maternity hospital designated activity company will have no role or liability. It has nothing to do with that indemnity. It only covers any potential liability or risk to the Religious Sisters of Charity, which it is then indemnified for by St. Vincent's Holdings and St. Vincent's Healthcare Group. We looked at those documents to make sure there was nothing particularly unusual or untoward in them, but they are of no relevance to the State. Hopefully that answers the Senator's question.

The State is not involved in any such indemnity.

We have agreed that the site will not be sold, which is fine, because there were previous financial and legal agreements. What are those financial and legal agreements?

Could the Senator repeat the question?

We were told that St. Vincent's would not sell the land. It stated a couple of years ago that it was because of financial and legal agreements. What financial and legal agreements brought it to a point where it said it could not sell the land to the State? Is the Minister party to those agreements? I do not know that any information about those agreements has been made public. They are significant because those agreements are why the land cannot be sold. It indicated there were financial agreements. We have covered the legal issues, of how healthcare will stop halfway across a bridge. What financial agreements were in place that stated it could not sell?

The rationale I have heard from St. Vincent's has been about the management of the site. The site will have a public hospital, a private hospital, a maternity hospital, general practitioner services, screening services, pharmacies, community-based services and many other services. For the management of the site as a healthcare campus, there should be single ownership. Many of the shared services for the entire campus will also be provided at the maternity hospital and university hospital. We are building shared services for the entire campus as part of the national maternity hospital. I was recently in Texas Medical Center just outside Houston. I am told it is the biggest healthcare campus anywhere in the world. It is a voluntary healthcare campus, with a huge variety of healthcare providers. Despite that, there is one owner of the campus, which is the Texas Medical Center. St. Vincent's is applying the same logic here.

I am in the realm of speculation now, so forgive me. All of the debate is about why we should trust St. Vincent's. People say that it is a fantastic healthcare provider. There is narrative about whether something is inherently wrong with St. Vincent's, even though it has provided fantastic healthcare for many years. From St. Vincent's perspective, it has to ask what the long-term motivations of the State are. It could sell, we could become its freehold owner, then the Government might decide in 70 years that it is done with the maternity hospital, to merge the Coombe and the national maternity hospital, and to build a brand new hospital in Blanchardstown.

St. Vincent's wants this as a healthcare campus for many years to come.

I do not believe anyone is questioning it. I think that is putting words in people's mouths. Our job, as legislators, is to ask questions, including of the Minister. He is the one who is signing off on the deal on behalf of the State. It is only fair and appropriate that we do our job and ask him questions. I do not believe I have cast any aspersions on St. Vincent's Healthcare Group and it is unfair to state that has been done. Reasonable questions are being asked on this, either as a visceral response in respect of who or what owns this or because people are unclear as to the structure, format and lease of it. Those are reasonable and fair questions and it is unfair to cast aspersions on people that it is a reflection on provision or healthcare or anything like that.

May I ask a final question?

The Senator can come back in during the next round. I am conscious that there are five members waiting to come in, as well as Deputies and Senators who are not members of the committee.

That is no problem.

I welcome the Minister and our other guests. I followed the debate from my office and while here in the committee room. As it was going on, it struck me that Mother Mary Aikenhead passed away 164 years ago or thereabouts. She was a physician. All the way along, we have been debating something that needs to happen. We need advanced modern healthcare for the women of Ireland. I do not believe that physician who has now found her eternal reward, or other such people, would want to put any barriers in front of modern healthcare. If she could somehow communicate to the St. Vincent's Healthcare Group, I do not believe she would say that it is truly representing her beliefs. Quality of healthcare is what her life was all about.

Like the previous speaker, I will get to asking my set of questions. Our time is limited. I have a political question, a legal question and a health question. My first question is for the Minister. I am sure he and his advisers have done a hell of a lot of troubleshooting on this. They have probably modelled different scenarios. If the Cabinet, the Government and the body politic reject all of this, what is the drawing board to which we will go back that ensures State land, co-location and delivery of a modern hospital in a quick timeframe? If we go to that other model, what would be the approximate timeframe? Surely there would be a significant delay. Have the Minister and his advisers carried out troubleshooting on that and modelled it? What delays might we face if we all reject what is on offer and go with a plan B that has yet to be even thought of?

Are there cessation or break-out clauses, as Senator Hoey asked, if the Sisters of Charity cease to exist? A modern building built in the 21st century is unlikely to be still standing in 300 years. It will have to be demolished and rebuilt. There are surely some break-out and cessation clauses. I would like to hear about them.

My next question is for Mr. O'Donoghue and Ms O'Sullivan. There is an unfortunate saying that doctors differ and patients die. I am sure it is the same in their world as well. What do they make of the legal advice that was circulated overnight from the Uplift movement? It is from Stephen Dodd, senior counsel, and relates in particular to the whole compulsory purchase order, CPO, argument.

The Minister has repeatedly met politicians and stated there are layers of protection. A question I have been asked, however, is that if each layer is sufficient, why are there multiple layers of protection, up to and including a golden share? I ask the Minister to explain to those who are tuned in to these proceedings why there are so many levels of legal protection.

My final question is for Dr. Mahony and Professor Higgins. It is a medical question. Are their fellow obstetricians and gynaecologists currently limited by any religious, legal, political or ideological barriers in terms of delivering a full suite of healthcare procedures, up to and including abortion, in the current National Maternity Hospital? Are they limited in any way? They have probably answered my next question already but I will ask it nonetheless. Do they believe that, going forward, if they do move - lock, stock and barrel - to the new national maternity hospital, any of the legal protections or political agreements that have been hammered out will be impediments to them carrying out their work? What do they make of what Dr. Boylan has been saying in recent days?

I thank the Deputy. I will take his first question, in respect of starting again. I will pass the question on break clauses and the lease to the lawyers. Dr. Mahony went through issue of the layers of protection. We can do so again. She laid it out very well. The Deputy also asked another question. We can come back to it.

As regards how long it would take to start again, there is no way to accurately answer that question but my estimate, based on how long it takes the State to build hospitals, is that it would add ten to 15 years to the project. Some people may say that sounds like a very long time, and it is, but, unfortunately, the State takes a very long time to build hospitals. We know that from the hospitals in which we are involved. Would we get another adult hospital to agree to co-locate? That may be the case. It may be just a stand-alone maternity hospital. That would take a very long time. One must remember that even if we did that and it was a decade on, let us say, and we were discussing a final Cabinet decision on a new hospital, there is no guarantee that we would not be having some version of this debate. I will be bringing recommendations to the Cabinet in respect of locations for three elective hospitals. There is debate in respect of where they should go. All present know there was a big debate in respect of where the children's hospital should go. No matter what hospital proposal is brought forward to be considered by a government, there always seems to be good and healthy debate because people have different views and they want the right answer. It would add a very long period to the project.

On a human level, the idea of walking across Merrion Square and into Holles Street hospital to tell the clinicians who work there that we had the most exciting and important investment in the future of women's healthcare ready to go but failed to deliver it and we will be back to them in a decade with another site is unthinkable. We, as politicians, must not allow that to happen.

Ms O'Sullivan or Mr. O'Donoghue may wish to respond on the break clauses.

Mr. John O'Donoghue

I will take that question. The lease is for 299 years. The only way it can be terminated is if there is a breach by either party. Basically, the State has to commence construction of the hospital within five years of the date of the lease. That can be extended by agreement between the parties. It sets a deadline for shovels to be in the ground and building to start. We have seen for how long this has gone on so far. If the State does not do that, St. Vincent's Healthcare Group can take back the site. That is not in question. There would be nothing on it. To be clear, if the State breaches its obligations during the 299-year term, St. Vincent's Healthcare Group can take back the site and the building on it. The obligations on the State are to build a hospital and ensure public healthcare is provided from that hospital. If it does not do so, St. Vincent's is entitled to take back the site and the building on it. As the Minister mentioned, if the building is no longer fit for purpose 70 years from now and the State decides it wants to convert it to apartments or to build a shopping centre, St. Vincent's can take back the site and whatever building is on it at the time. The commitments in the document are for 300 years. If in 70 years the parties agree the building needs to be refurbished or rebuilt, that is an agreement they can make. At any stage during the 300 years, the parties can make alternative arrangements.

Forgive me for interrupting. Does St. Vincent's Healthcare Group have any break clauses in respect of something happening on its side of the fence and the agreement being pulled?

Mr. John O'Donoghue

No. There is no such break-out clause. This is a lease for 300 years. Once the group grants that lease, it has no right to terminate it other than where the State is in breach of its obligations. Those obligations are crystal clear in the document.

The next question asked by the Deputy related to the layers of protection.

Yes. Why are there so many layers of protection if each of them is supposedly sufficient?

I will give a short answer and Dr. Mahony may give a more detailed one. It is because of the history of religion and women's reproductive health in this country.

We cannot countenance a new maternity hospital that would have any religious interference. I would never bring it forward. I do not believe the previous Minister, Deputy Harris, would have ever brought it forward. None of the clinicians here would ever countenance it. Therefore, it has been incumbent upon all of us to put layers of protection in place to deliver what people are rightly demanding. Dr. Mahony might speak to some of those.

Dr. Rhona Mahony

Absolutely. We have to come back a little bit to the history of the Mulvey agreement because the nuns have gone now, they are out of the picture, but in 2016 they were not. We knew they might be leaving, but we had to create an entity where it did not matter whether the nuns left or not. We had to create an entity where we had absolute independence in our company. That is why we have all the layers. In the initial mediations we were going to be a branch and being a branch does not give you the same protections as being your own separate legal entity, your own separate company. We had seen from our colleagues in HSE hospitals where maternity services are departments in large acute adult hospitals that there is almost competition for the funding within the hospital and there are different interests in the hospital such as cancer, anaesthetics and all the different specialties. Very often, it seemed that maternity services were right at the end of the list. We wanted our own separate funding as well because when you run a hospital, you need to have control of the building, staff and clinical operations, but you also need to have your own separate funding. In order for us to achieve that, we had to have a separate legal entity. We went on a bit of a journey during the Mulvey negotiation. Two mediations had fallen apart because we were in a branch situation. We could not accept that because we felt it would not give the right governance structure to provide a dedicated healthcare facility for women. During the Mulvey talks, both St. Vincent's and Holles Street went on a journey, and we had to understand that it is all about patients. What we are trying to do here is to create an amazing campus that provides care for women, but also care for adults, one that will elevate Irish healthcare and provide care from birth - from a tiny baby born at 23 weeks weighing 500 g - right up to the end of life. All the research facilities and collaboration between the two hospitals and the doctors is what is at stake here. When we look at all the successful academic health centres in the world such as Imperial Hospital and John Radcliffe Hospital, there is a list of the top 10, and we want to be one of them. That is what this is about. We are ambitious for women's healthcare. We want this hospital to be listed in the top 10.

As time is running out, my other question to Dr. Mahony was about any existing barriers for her and her colleagues as they go into work each day.

Dr. Rhona Mahony

No, there are no barriers.

Is she saying none whatsoever?

Dr. Rhona Mahony

No, there are no barriers whatsoever to providing termination of pregnancy, tubal ligation, gender affirmation surgery or prescribing contraception. That would not be good healthcare. The whole purpose of this is elevating healthcare. Rather than restricting services that are available to women, we are opening up an entire adult campus and adding to the services available to women in the areas of medical, surgical and diagnostic. It is important to remember the number of women who get transferred over to St. Vincent's. We have 122 critical care cases in Holles Street every year, and 73 of those women will need to transfer to St. Vincent's. We have approximately six patients every year who require ICU facilities, but in addition, we have a maternal medicine clinic that sees 500 patients every year that deals with a whole range of issues. I will ask Ms Brosnan to add to what I have said.

We must move on. I am sorry, but I am really stuck for time. A number of members are coming in and if I allow a second round we will run out of time. I apologise. I take it Deputy Shortall does not wish to make a point of order but a point of information.

It is a brief point. Senator Hoey asked about the indemnity for the Sisters of Charity.

Some of my questions remain unanswered. If we are going in to-----

Deputy Shortall is making a point of information to me.

The Minister said he had replied to me in a parliamentary question, but he did not.

I apologise to Deputy Shortall if I misspoke on that. I beg her pardon. I was just seeking clarity. What was the question?

What he said in the reply to me is that the Sisters of Charity had gone. That did not answer the question. I have appealed that to the Ceann Comhairle. I am asking the Minister now to provide a legal note on what the indemnity entails for the Sisters of Charity, past and present.

What may have happened is that I have been given a parliamentary question that is about to be issued to Deputy Shortall. I will clarify the situation and get her exactly what she is looking for.

I thank the Minister.

Senator Higgins is very welcome to the meeting.

Thank you, very much, Chairman. I apologise for the bells in the background. I am substituting for Senator Black, who would like to be here herself if she could.

We have heard from the Minister that the legal advice is that the expected life of a hospital is 50 years to 60 years. There is an embodied emissions concern about such a short lifecycle for a building, but we also heard that the requirement is that maternity health services would be continued on this site for 299 years. This is something important which has not got the necessary focus and it would merit elaboration. While the rent is currently set at €850,000 per year, which is close to €1 million per year, it is waived to be €10 per year, so long as the permitted use, which is subject to the double constraints of being clinically appropriate and legally permissible, continues. The Minister tells us the hospital is only to last for 60 years, so what happens after that? Are we effectively committing to building four or five new maternity hospitals in a row on this site and, if we do not do so, will we become liable for €850,000 or €1 million per year in rent for the site? It is one or the other. Either way, both raise significant financial concerns.

There has been talk about the many grounds pertaining to the St. Vincent's Healthcare Group, as the landlord, such that it may be able to seek a forfeiture in relation to the lease, but if the State decides 100 years in that we do want to build a new national maternity hospital that is an actual public hospital - publicly owned on public land - where is our exit and what are the liabilities that would come with such an exit from the lease? I would like the Minister to comment on those legal issues, and he might also come back on the question of permitted use and the terms "clinically appropriate" and "legally permissible". I will get the answer to the leasehold and rent question first and then I will come back on the question of permitted use.

I thank Senator Higgins for her questions. I will ask Mr. O'Donoghue or Ms O'Sullivan to come in on the clauses and what an exit strategy might look like in 100 or 200 years. To be clear, the covenants around the €10 a year lease, are not linked to the terms "clinically appropriate" or "legally permissible", they are just linked to the HSE being the tenant, running a hospital on the site and not seeking freehold of the site. It is not linked to the NMH's constitution. It is linked to the HSE and the State essentially running public healthcare services on that site.

In terms of what constitutes a breach, I understand that permitted use is one of the grounds under which the landlord may seek a return to the market rent or a forfeiture in relation to the lease.

I thank Senator Higgins. I ask Mr. O'Donoghue to respond.

Mr. John O'Donoghue

That is correct; the building has to be used for the permitted use, which is defined in line with the other documents to include all clinically appropriate, legally permissible services. If the State does not do that, it is at risk of paying market rent and it is at risk of forfeiting the lease in the future. If, for example, as I mentioned, the State in 70, 80 or 100 years' time decides it no longer wishes to use this site for public healthcare services, it risks losing the site with the building on it, but there is an important protection in the forfeiture obligation Senator Higgins mentioned, which is very unusual in that if St. Vincent's did take back the site there is a covenant that it would continue to provide public healthcare services from that building.

The Senator asked about the potential liability of the State in the future. This began as a 99-year lease on the basis that was a sufficient length of term for the building that was to be constructed. Because of commentary, that has been extended to 299 years, which puts an onus on the State to provide healthcare from that facility for that period or to have that conversation in the future with whoever owns the land or the freehold interest at that time.

As I understand it, much of that conversation related to the financial liability that was being imposed on the State, and it seems that even greater financial liability is now being imposed. I certainly do think that conversation envisaged a market rent of up to €1 million a year to which the State might be liable. In that context, is the plan to build five or six hospitals in succession? Are we saying that for the next 300 years, this will be how maternity care operates in Ireland? Our guests talked about St. Vincent's Healthcare Group's holding if it chooses to terminate the agreement. If it emerges this is a bad agreement that is not working successfully and we wish to exit it, what will be the mechanisms available to the State? Will we face liability for the remaining years?

Mr. John O'Donoghue

The State wants this site and has sought it from St. Vincent's Healthcare Group in order to build a public hospital on the site, and the group has agreed to that and to granting a 299-year lease to the State. The State will be obliged to provide public healthcare from that site for that period.

Our guests have not answered my questions about what will happen if the State were to wish to exit. Will it be torn between building multiple maternity hospitals in succession and moving to the market rent? Is that the position the State might face in 70 years, for example?

Mr. John O'Donoghue

This is all very hypothetical, but if the State decided-----

It is very concrete. We need to talk about the 299-year lease.

Mr. John O'Donoghue

I do not know what will happen in 70 years' time. In any event, as an example, if there were no longer a requirement for a public health facility on the site in 70 years, and if St. Vincent's Healthcare Group did not wish to take it back and wanted to charge a rent of €850,000 per annum, the State could decide to use it for something else, such as a shopping centre or an apartment block, because that would force St. Vincent’s Healthcare Group either to terminate the lease or allow the State to do what it wanted for the remainder of the 299 years. That is a decision St. Vincent’s Healthcare Group would have to take at that time.

This is one example of the potential future issue we are setting up ourselves to have to navigate.

On the phrase "clinically appropriate", there are concerns that have not been addressed. Is it to be interpreted case by case by individual doctors? Is "clinically appropriate" subject to clinical direction, and if so, what are the links between the clinical direction at the hospital and clinical direction from St. Vincent’s Healthcare Group? These are concerns because, as we have heard, it is not simply about what services might be available but also under which circumstances they will be available. Ireland has a very complicated history, at times determining, for example, that symphysiotomy was clinically advisable or, in other cases, allowing people to receive tubal ligation but only in certain circumstances.

The phrase "clinically necessary" was used earlier in regard to terminations that have taken place, but that is different from "clinically appropriate". Where will the latter phrase be determined and will it be done on a case-by-case basis by individual doctors or according to clinical direction? How will that be reviewed if concerning trends emerge? As I said, it is not simply about what is available but also when it is available. Abortion was available in Ireland prior to the repeal of the eighth amendment, but there had to be a determination as to the risk of death. These were the kinds of decisions that had to be made. People are rightly concerned, therefore, as to how "clinically appropriate" will be interpreted and that needs clarification. What is the link with St. Vincent’s Healthcare Group in this regard?

I might give a short answer on the phrase "clinically appropriate" and ask Professor Higgins to give a clinical view. The term "clinically appropriate" refers to services that are clinically appropriate for a maternity, gynaecology, neonatal and obstetric hospital. It does not include procedures relating to, for example, cardiology or neurology. The term has caused understandable concern and it is something we have been debating at length during this meeting, but that is what it means under the constitution. Professor Higgins might give a clinical perspective.

Professor Mary Higgins

There are two issues here, relating to ring-fencing and future-proofing. I will give a very practical example of what Dr. Mahony was talking about in the context of having beds and spaces dedicated to women. I recall working in a general hospital, having just come from working at a maternity hospital where there was a dedicated operating theatre. One night, a lady presented with ovarian torsion, which is where the ovary cuts off its blood supply, resulting in a major gynaecological emergency. I was used to working at a hospital where I could bring such a woman straight to theatre after, obviously, asking for her consent because she has autonomy. I could advise her about the clinical necessity and bring her to theatre. At the general hospital, I had to go to an operating theatre and advocate for this woman against orthopaedic, general and vascular surgery all looking for the same space. Ring-fencing, therefore, is incredibly important for women’s healthcare which, as the Senator pointed out, was not suitably looked after for many years.

The second issue relates to future-proofing. We earlier gave the example of the Billings method, which is no longer used. Symphysiotomy was absolutely unacceptable in light of everything we have learned from the women who advocated against it. The Senator is correct that we have clear legal guidelines and frameworks we can work with now. They are not perfect and I will, I hope, return to talk to the committee about the issues we have with them, but we can work within them. It is much easier than it was under the Protection of Life During Pregnancy Act and even than before that was law. We are constantly evolving, and I do not know what procedures we currently carry out that will not be acceptable in 20 years. That is what the phrase means to me.

I asked about clinical direction, which will be determined on a case-by-case basis. As Professor Higgins said, very unacceptable practices have happened in the past and many of them did so on a clinical interpretation, because there is a balancing of what might be most important. The question of elective procedures, for example, which may not be clinically necessary but which people may wish to have and may be entitled to have, has not been addressed. Will clinical direction be entirely contained within the new body? What will be the link between clinical direction from that body and the clinical direction at St. Vincent's Healthcare Group?

Professor Mary Higgins

As physicians, midwives and nurses, we work within the guidelines we have been provided with, which are based on the best evidence. Everything we do is evidence-based care. We can then provide individualised assessment to patients based on their circumstances and on the guidelines for best practice at a given time. That, to me, is what "clinically appropriate" means.

The Senator is correct about elective care. We provide that and we are one of the first hospitals to do so, and I am very proud we provide it-----

To be clear, we are speaking about the new hospital.

Professor Mary Higgins

We will provide it there, but we do not need a fit and healthy person to come to the St. Vincent's hospital site. We can provide that service in Holles Street, the Rotunda or the Coombe. What I need-----

I am asking about the new hospital.

Professor Mary Higgins

I had not finished my point. What we need from the St. Vincent's site at the moment to provide clinically appropriate care is the additional resources it has. When we move to the St. Vincent's site, and I very much hope we will, we will continue to provide that service because Holles Street will move all the physicians and ancillary staff and everything we provide on Merrion Square will, I hope, be provided on the new site. I say "hope" not because I have any doubts about it but because there have been queries about whether it will happen.

With respect, my question about the links between the St. Vincent's Healthcare Group clinical direction and that from the new body has not been answered. There was also the question relating to interpretation and elective procedures. We have heard that they will be provided if they are clinically necessary, but there is a significant history of issues with that.

My final questions relate to St. Vincent’s Healthcare Group, which I hope we will get to ask questions of as well-----

The Senator's time is running out.

Briefly, on the constitution of St. Vincent's Healthcare Group, "human dignity" was mentioned and we have been told that is just a general lovely phrase.

I am curious. It is not a reference to human rights but a reference to dignity. There is an encyclical from 1965 on human dignity. We know the Human Dignity Alliance party was founded in Ireland after 2018 specifically with the goal of opposing the outcome of the referendum on the repeal of the eighth amendment. Human dignity is a term that has been interpreted through Catholic social teaching, whereas human rights are a little clearer in that we all know the associated documents. With regard to the phrasing in question in the new constitution of St. Vincent's Healthcare Group, the question of where clinical direction comes from is extremely relevant.

The St. Mary's site has not been discussed. Could we purchase it? In that context, is it the case that St. Vincent's Healthcare Group would not support or work with us if we purchased the St. Mary's site, which is adjacent? I have been very concerned by the idea that somehow it is acceptable for the group to say it will not work with the public hospital but only with a charitable hospital. Could a hospital on the adjacent St. Mary's site access St. Vincent's hospital very quickly in an emergency? Would that not be a possible solution?

Could we provide a note on that?

Yes, but we are working on the clock-----

For that reason, we will provide a written response to the Senator.

Would a written reply satisfy the Senator?

I would appreciate at least a brief reply on the St. Mary's issue. On the issue of human dignity, I actually wrote to the Minister and did not get a reply. I would like that followed up. I will take a written note on clinical direction because I have not really had an answer on it.

Could we all have that reply?

Once one of the members seeks it, the information will be for the whole committee.

Of course. What would the Chairman like us to do? Does he want me to give a short answer?

St. Mary's has not come up yet. Does the Minister want to give a reply in that?

I will get a note on St. Mary's. On the question on dignity, I would not cede the word and concept of "dignity" to any individual, religion or philosophy. I would never accept that just because some group sets itself up and uses the word dignity, its definition of it is the one we should use. I have a very clear idea of what dignity means. The clinicians have a very clear idea of what dignity means for patients and, indeed, our workers. I understand the Senator's question but I would never cede the concepts of dignity and compassion or any such concept to any group set up with a particular agenda.

But effectively they are the only ones whose interpretation matters. I, of course, believe in dignity very passionately but I note that the people for whom the interpretation is relevant are those in the St. Vincent's Healthcare Group. We have not really got clarity on its interpretation. Dignity means different important things to different people. This is not the case with human rights, in respect of which we can refer to relevant, agreed texts. There are many interpretations, of course, but the relevant question concerns the interpretation that is applied.

We have two clinicians here who work in St. Vincent's. Maybe we could ask them how they interpret dignity.

We are really over time on this. We are not going to get an answer on it. Again, could we get a written reply? I am against the clock.

A written note on the clinical direction, having regard to the decision-making mechanism on a case-by-case basis, or general guidelines would be useful.

I apologise to Senator Higgins as I have to move on. I am against the clock. I was asked by the Ceann Comhairle to facilitate non-members also. I am going to finish with the members of the committee. There will not be time for a second round, so I apologise. I do not see how we can do it.

Are non-members going to be allowed to contribute?

Yes, because I was asked by the Ceann Comhairle.

Before the second round?

Has the Deputy a difficulty with that? I do not see any other way of doing it. I am trying to be fair to everyone. We were asked by the Ceann Comhairle. An extra hour has been allowed.

Can I make one point? It is not directed at the Chairman. It was agreed that we would have four hours and two rounds of questions. These are very difficult and complex issues. We had ten minutes each, which had to include the responses of the Minister and others. For members of the committee, this does not do justice to the matter. I am not blaming the Chairman but just stating a matter of fact. We obviously have to have a discussion ourselves afterwards on what we do next. All of that is bound up with whether the Cabinet will sign off on this next week. That is the source of our frustration. That has to be at least accepted by the Minister. We are up against the clock and cannot carry out the scrutiny that we were told could be done, simply because of time constraints.

I accept that.

Do I get 15 minutes as well?

Not 15 minutes.

The last speaker did.

Yes, and many of the previous speakers. I am trying to be fair to everyone. Everyone has something to contribute to this debate.

I am aware of that. In fairness, the witnesses are here-----

We are wasting time. Will the Deputy move on?

It is why we need another session.

I thank the Minister and all the medical and legal people for attending. May I deal with the legal issue and the issue of the 299-year lease? If I told the legal people present that I was going to buy a house for 299 years and intended to get a mortgage, would it be regarded as having good legal title? Would I have full control and possession of the property even though there would be a 299-year lease?

Mr. John O'Donoghue

The answer to that is "Yes". The Law Society definition of good title in terms of length involves a freehold or a lease with at least 70 years to run, so that-----

So it is good legal title?

Mr. John O'Donoghue

It is good legal title.

So I would have full control over the property for which I would have a 299-year lease?

Mr. John O'Donoghue


There are senior counsel and other legal people with opinions in circulation. One opinion states that in terms of the ownership of the lands, the owner of the lands is St. Vincent's Healthcare Group and that there is no proposal to change this. Is that correct?

Mr. John O'Donoghue

I do not accept that. The freehold owner of the land is St. Vincent's Healthcare Group. St. Vincent's Healthcare Group will be entering into a lease of that land for 299 years. That is a legal interest. That is not disputed. It is a legal estate and title that the HSE will have. That is an interest in land for 299 years. As I said before, as long as the State complies with its obligations, St. Vincent's will have no way of getting that title back. Whatever is there at the end – people make comments about the building – or whatever is on the land goes back to the freehold owner.

The opinion of the senior counsel – I believe a second one has been issued in the past few days – is that, technically, the HSE will not own the building and that it will be owned by the St. Vincent's group.

Mr. John O'Donoghue

The building is built on land regarding which the HSE will have a legal interest for 299 years. In any layperson's language, that is considered ownership. You can make many arguments about buildings being fixed to the land – Deputy Shortall made the point about the first schedule – but the site being leased includes the buildings on it. The reason is that if there is a breach by the State and the lease is terminated, one cannot just take back the underlying land without taking back the buildings on it. That is what is part of the lease for 299 years.

In layman's terms, clause 4 of the lease, entitled "DEMISE", states "the Landlord HEREBY DEMISES unto the Tenant ALL THAT the Premises ...". What does demise mean in layman's terms?

Mr. John O'Donoghue

To demise is to convey. It is effectively an assurance of the property for 299 years, and that is the legal wording to create a leasehold interest.

Under the terms of the lease, is the tenant or lessee totally responsible for the maintenance and upkeep of the building such that the landlord has nothing to do with the building in real terms?

Mr. John O'Donoghue

The landlord has nothing to do with the building. The obligation on the State is to maintain the exterior and the structure. That is to make sure within the estate that it does not detract from the rest of the estate. However, because this building could be there for a long time, we do not want to create obligations on the HSE in relation to internal repairs, etc. Any repair obligations will be passed on to the NMH DAC through the operating licence, which is effectively a 299-year obligation, as long as NMH DAC complies with its obligations to provide all the services it is required to provide from the land.

There is a further provision in that lease, at clause 6.1, quiet enjoyment, which again is a fairly standard provision. It provides:

... so long as the Tenant pays the rents [again that is a nominal rent for as long as it complies with certain obligations] ... and performs the covenants ... the Tenant may hold and enjoy the Premises [which includes the land and the buildings on it] and the rights hereby granted peaceably during the Term [which is 299 years] without any unlawful interruption by the Landlord or any person lawfully claiming under or in trust for the Landlord.

Mr. John O'Donoghue

It is very clear. People will make arguments and they can quote Latin phrases and they-----

Is Mr. O'Donoghue saying that what is there-----

Mr. John O'Donoghue

-----can go back to feudal times but for anyone's understanding in layman's language, what is happening here is that there is a site being devised, granted or whatever word we want to use, to the State for 299 years. That lease contains a right for the State to build a hospital on those lands, maintain that hospital, and grant an operating licence to an operator of that hospital. There are certain obligations that it continues to maintain it for public healthcare. That is in the interests of the State and of St. Vincent's. They want public healthcare. Again, if this lease is terminated or was terminated or in the unlikely event that the State - we are talking about the State here - does not comply with its obligations, St. Vincent's has to continue to use the building on that land for public healthcare services.

Is Mr. O'Donoghue saying what is circulating at the moment from the legal people is incorrect? Are they incorrect to say the State does not own the building?

Mr. John O'Donoghue

I have not seen the opinion the Deputy mentions is circulating but, as I said, if you were to tell-----

There is more than one legal opinion circulating.

Mr. John O'Donoghue

Yes, but if you were to tell somebody that they own-----

Both of them-----

Mr. John O'Donoghue

Many people in this country own apartments and I would say virtually 99.9% of those apartments are held under long leaseholds. If you told those people they did not own their buildings, they would not accept that. Likewise, many buildings across this city and country are held under leaseholds and it would not be unusual in this type of structure. As Dr. Mahony explained, the building being built on this campus is a maternity hospital but it will also have shared facilities for the remainder of the campus and it will have some St. Vincent's hospital areas. I think it is replacing dermatology facilities in the main.

Deputy Shortall may have made a point earlier about this "clinically appropriate" language. That language relates specifically to the maternity areas to make sure that is captured. That is the language used in the lease, the operating licence and any of the documents relating to the maternity hospital. When we refer to the maternity hospital it is probably the majority of the building but it is not all of the building.

I move to the issue of compulsory purchase. I refer again to the senior counsel's opinion, in which he states on page 62:

Insofar as the State proposes to compulsory acquire the lands, the appropriate legislation is under the Health Act 1947 which confers on the HSE the power to compulsorily acquire lands. However, significant issues relate to whether the procedure under Health Act 1947 is constitutional in affording sufficient independence in the process for confirming a CPO.

Thus, even the senior counsel's opinion that is circulating is, on the one hand, saying the State should go and compulsorily acquire, yet the paragraph I have just cited sets out that there may be constitutional issues. Will Mr. O'Donoghue give further clarification of why it would be unsafe for the State to proceed by way of CPO?

Mr. John O'Donoghue

To go back to a point the Minister might have made earlier, this building will be interlinked with the existing hospital on St. Vincent's campus. We all agree that is part of the co-location. That can only be done with co-operation.

The Deputy is out of time.

Mr. John O'Donoghue

As the Deputy mentioned, there are views on CPO. There are views that the CPO powers under the health legislation are potentially unconstitutional and would require a potential amendment to legislation. The opinion the Deputy mentioned may have referred to those. If the constitutional issues can be overcome, through the amending legislation the Houses would have to pass, and one then tries go through the process-----

In fairness, although the senior counsel is supporting the use of a CPO, he is highlighting that there are significant issues relating to whether the procedure under the Health Act 1947 is constitutional. He has placed a question mark over that.

Mr. John O'Donoghue

If one goes through years of High Court, Court of Appeal and Supreme Court challenges, and one ultimately gets a CPO, this hospital cannot be built on that land because it cannot be interlinked. It will be-----

Mr. O'Donoghue believes the 299-year lease is a better option.

Mr. John O'Donoghue


I need to move on. Senator Clifford-Lee is next.

I thank the Chairman and all our guests for attending. I have a few questions and will try to get through them as quickly as possible. I will ask Professor Higgins about terminations in St. Vincent's currently. I am aware that terminations are usually carried out in maternity units but are sometimes carried out in non-maternity units. Have terminations been carried out in St. Vincent's in circumstances where a woman's life was not at risk?

Professor Mary Higgins

I have stated three times - this is the fourth time - to this committee that we have performed them. The times we have needed to perform them is when we needed the input of St. Vincent's hospital and the services it gives us.

Those are circumstances where the woman's life is not at risk.

Professor Mary Higgins

I really feel very uncomfortable being continually asked about this because this is highly confidential information. Morally and ethically, as I said, I campaigned before not to have to discuss this in public.

Dr. Rhona Mahony

Just to follow that, if I am correct, and I ask the Senator to please correct me if I am wrong, I think we are getting at the termination of pregnancies under 12 weeks when that is a woman's choice, there is no qualification required and it involves a woman who says she does not want to continue the pregnancy. That is a service we provide at the moment under the current legislation. The vast majority of terminations in those cases are provided in the community. That is where the majority of terminations take place at less than nine weeks. After nine weeks, we perform these terminations in Holles Street either using medication or using a surgical technique, just because the pregnancy has advanced a bit more and there are more risks of bleeding. We feel, therefore, that it is safer to perform those procedures in the hospital. We do not do that many, actually, because the majority of the cases happen in the community, which is totally appropriate. It is where women can be at home instead of having to come into a hospital.

If we look at the experience in Scotland, what we found there was as that service developed and improved, far fewer cases came to hospital because those terminations were being given earlier in the pregnancy when it is safer. That has been the experience in Scotland and we certainly hope we will follow that. Even in Holles Street today, we do not perform many procedures under 12 weeks because most are done in the community. The point about this is that under the legislation, terminations under 12 weeks could be performed in St. Vincent's hospital. There is no barrier in St Vincent's to performing everything but we have to rationalise services. At the moment, as regards the kinds of services provided in St. Vincent's hospital, it should be remembered that the hospital has not moved yet so we do all of the routine and normal work, including all of the caesarean sections.

We do approximately two caesarean sections at St. Vincent's per year because we need additional medical backup. We must remember the hospital has not moved yet. There is no barrier at St. Vincent's to doing that. It is just that with the cases at St. Vincent's now, there is a limited gynaecological service and it is generally devoted to cancer. We are not going to cancel a cancer patient just to make a political point that we can do a termination at less than 12 weeks gestation. It would be totally inappropriate.

I thank the witness. My next question is for Mr. John O'Donoghue because it is a legal question. There has been much talk about the option of a compulsory purchase order, CPO, of the land. Will Mr. O'Donoghue bring us through the legal process and tests used by the court when deciding a CPO application?

Mr. John O'Donoghue

I do not have enough experience in CPOs to give that level of detail other than what I have said in the past and from the information I have seen. I do not know when a CPO was completed under the Health Acts or if a CPO was ever completed under the Health Acts. I work in different areas of law and in the housing sector I am working with local authorities dealing with potential CPOs of vacant properties for use as social housing. I know the process that can be undertaken and it is an application to An Bord Pleanála to which third parties may object. If there is an objection, it can go to court and the High Court may make a determination. It can go on and on up to the Supreme Court. If the process of a CPO is undertaken, the party involved is not likely to consent, and it could take a long number of years and many challenges to get that CPO.

My understanding is that under the Planning and Development Act 2000, the provision to substitute the Minister for An Bord Pleanála was not included for the Health Acts, and that is where the unconstitutionality may arise. The Minister may potentially decide on whether the CPO is right or not rather than a third-party body such as An Bord Pleanála.

I might come in here as well, although not on the legal requirements of a CPO clearly, but rather the terms of the partnership. My view is there is every likelihood that if we initiated a CPO, never mind what happens in court, at least one of the parties involved would say "We are no longer interested in this, this is clearly no longer a partnership". In my non-legal world, I can imagine two people living relatively close together where one has a big old garden. The other person might suggest selling his or her house if the person gives him or her a quarter of the big garden. They would be close neighbours and get on very well so would it not work? The other neighbour might agree and find it interesting but suggest giving a quarter of the garden for the next 300 years for free. He or she might say, "Let's do this, it is exciting". The other party may disagree and look to bring the person to the courts, trying to get the garden from him or her, and then believe they will live together in harmony in the two buildings and remain great friends. The other party would clearly say "Thanks very much but no" to the offer. It would not sound very much like a partnership but a very difficult way for them to be great friends.

The CPO approach is fraught with risk and, critically, the specific risk of years of extension. It is also entirely likely it would simply be never put to the test because the concept of the partnership could dissolve.

Mr. John O'Donoghue

I have some other points on a CPO-----

My understanding of the CPO process is that if a viable alternative is available, such as a long lease of 299 years, a CPO would not be granted. There is a very high test for parties to reach in circumstances where a very long lease has been offered at nominal rent. I will touch on the St. Mary's site and building a hospital on the adjacent site. What would the clinicians' opinion be of that?

Dr. Rhona Mahony

I am not familiar with the adjacent site. The point is it does not achieve the physical integration that this co-location would achieve. One of the points of the co-location is that in an emergency, where someone is haemorrhaging, with 4 litres of blood loss, for example, we must try to manage such cases in a stand-alone facility. Sometimes we must transfer a patient when we cannot stop the bleeding. We might need intervention radiology, for example, where we can put little plugs in blood vessels to stop the bleeding using an imaging technique. We may need vascular or haematology backup. We feel very lonely at 4 a.m. when we have a major haemorrhage.

In the new hospital we would be physically linked with the St. Vincent's hospital at theatre and intensive care unit level. We would not be going outside from one building to another. We would be wheeling a patient down the corridor to the interventional radiology, the intensive care unit or the theatre. It is the really critical and brilliant element of the co-location that we will not find on another site. That is as well as all the other services. It is one of the really important elements.

We could build a hospital on the St. Mary's site or wherever else. If it does not have the physical co-location, we would be missing a really important part of what this would achieve. We want to be in a big hospital setting where we would not have to make transfers down any road because we would be right there and integrated where we need to be, particularly in emergencies.

It would be an inferior option.

Dr. Rhona Mahony

In my opinion, it would be inferior.

Ms Mary Brosnan

The only point that has not yet been really mentioned is the unmet gynaecology need in the region. There are hundreds of women on various waiting lists around the Ireland east area - not just in the Dublin south area - that are awaiting procedures. We have had big investment in women's health this year and we will have big investment next year. The Minister keeps mentioning the €9 million programme and it is very helpful for women's health. It will take more than a few years to get into this hospital but when we do we will have the extra operating facilities to meet that unmet need. Gynaecology is still secondary to all the other sub-specialties in surgery that are required. In the St. Vincent's hospital, for example, it is really hard to get theatre time.

We must keep site of what we are trying to deal with just to meet women's health. It is not just maternity but women's health across a region. This will be an Ireland east hospital and it will provide an enormous resource for all the women across Ireland and equally in the region of Ireland east, which is all of Leinster.

We have run out of time in the Senator's slot.

I have a few other questions but I am happy to move on and allow in another member. I thank the witnesses.

Is the Minister okay with allowing the non-members of the committee to ask questions?

What time is left? There is to be a private session of the meeting as well.

Yes. We will extend the time for 15 minutes.

With respect, we need to know the time.

One hour should be enough.

It will not go on for an hour. The remaining members can have five minutes each.

That would put us at 1.45 p.m. or 1.50 p.m.

It will be 2 p.m. at the latest.

We were told this would finish at 1.45 p.m.

I apologise. I did not know how this would go.

I welcome the Minister and witnesses. I know they have had a long session. I acknowledge that the Minister mentioned in his opening statement the six points and the proposal we are discussing this morning meets all those goals and provides those reassurances. As members of the committee, we received correspondence from two members of the board yesterday who dissented from the decision. Does the Minister understand why they cannot be convinced or why they dissented? Is it something that concerns the Minister? He is trying to convince us as members and the general public through this committee of the bona fides of the decisions and the plans put to the Government on which decisions are to be made. Is the Minister concerned that two members of the board dissented for the reasons they outlined?

With the Senator's permission I will ask the chair of the board to come in on this. He is certainly best placed and closes to that.

Mr. Ciarán Devane

I am quite comfortable we had a really robust process over the past 12 months or so where we were challenging a number of things.

Collectively as a board we were very happy that things moved on with regard to strengthening the constitution, in making sure the documentation was coherent, in addressing some of the issues we had around forfeiture, and so on. I am very comfortable that we had a robust debate and that some of the real issues, which are understandable issues, were discussed around making sure that we put in sufficient protections to address this issue of trust, which we have been talking about this morning. I think that is okay. It is good now. The board, collectively, did not share that view with those two colleagues. Equally, we respect their right to have those opinions. As a board we were saying that we have sufficient protections, that things have moved on hugely over the last 12 months, that the excitement of having these extra services and greater capacity for reducing the risk, for example at 4 a.m. if something is going wrong, that all of those things remain true, and that we have a much quicker, stronger and coherent set of legal principles now then we even did 12 months ago. I am very comfortable that the governance process, which is the HSE board, did a really good job on this.

I thank Mr. Devane. My next question is for Mr. O'Donoghue. If I was in a position to buy a home out in the country, and if I wished to see that passed on to future generations, or loved ones or relations, I would prefer a freehold title to a leasehold title. That is just a layperson's view. What rights does the State have after 200 years or 250 years in extending the leasehold on the new national maternity hospital? Would that happen automatically or would it be negotiated? What rights do we have as a State after that period? I appreciate that it is a long time away and I appreciate that there has been an extension from the original plans with regard to the lease, but I believe that the ownership issue is one of the fundamental concerns that people have. If the State wishes to renew or extend the lease after 250 years what rights does the State have?

Mr. John O'Donoghue

I will first answer the Senator's first question on buying a house or a property. As I said previously, many people may not know that they own a leasehold interest because there is nothing wrong with a leasehold interest and there is certainly nothing wrong with a long leasehold title. It is seen as a good and marketable interest in property. Anyone on the market today who is buying an apartment will buy a leasehold. If they are selling on their apartment it is selling a leasehold. Banks take a charge over leaseholds. There is no problem whatsoever in that regard.

With the 299 year lease between St. Vincent's Holdings and the HSE there is a specific agreement within this document that provides that the HSE will not seek to extend the term of the lease or acquire the underlying freehold. In certain circumstances where money is spent on land or buildings are built, the leasehold owner would have, under the landlord and tenant Acts, a right to acquire the freehold. It goes back to the fact that this site is specifically being used by the State for the purpose of building a state-of-the-art maternity facility, on foot of a planning permission that was granted in 2017, and not for any other purpose. There are some restrictions, including that the State will not sell on its interest to a third party. That is agreed with St. Vincent's. It wants to operate a public healthcare campus. In 250 years' time, if the State decided that it no longer wished to carry out public healthcare, it would need to speak to St. Vincent's and hand it back the site. It is agreed that it will not be seeking to extend the lease, other than by agreement between the parties. The parties can agree to whatever they want but there is a minimum 299 year period. The State will not try to use legislative provisions, under the landlord and tenant Acts, to acquire the underlying freehold.

I am very satisfied that the interest the State will acquire by way of a 299 year lease is absolutely protecting the State's interest in that building in order to deliver public healthcare facilities in the future. If it is decided that a maternity facility is no longer required, in 50, 70, 90 or 100 years' time, and if the parties are happy with that, including the new designated activity company, DAC, that is set up, the State can use this site for other public healthcare facilities. It does not necessarily have to be used as a maternity facility for 299 years. That does not breach the terms of the lease.

I wish to correct a point that was made earlier. The permitted use in the lease is to provide clinically appropriate and legally permissible services for maternity, but also any other public health care services. It has been argued that this wording could provide a third party with a way of preventing certain services being provided. It does not allow St. Vincent's to terminate any property rights or prevent the hospital being used by the State.

On the letter of dissent from the two board members, they gave a clear view on the separation of church and State and that it would be better if the State owned the land on which the hospital was built. With regard to the transfer of shares that has taken place since the original board decision on 4 March, was this part agreed to in the Mulvey process? Was there push back on this or were there protracted negotiations on this transfer?

Perhaps Mr. Devane or Dr. Mahony could come in on the Mulvey agreement, but I will make one point. The idea that the ownership of the land has anything to do with church influence at this point is simply not true. The church, the nuns, the priests, the rabbis, the imams: none of them are involved. St. Vincent's Healthcare Group is a secular and voluntary healthcare group that we are partnering with. Whether the St. Vincent's Healthcare Group has the freehold, whether the national maternity hospital has the freehold, or whether the HSE has the freehold, has nothing to do with the church. The church is off the pitch completely. We really owe it to people to keep repeating that and reminding people that the church is gone. The order is gone and the nuns are gone. This is a secular healthcare organisation, with both of the groups involved.

The Senator made a point about where the governance structure came from. It is my understanding that it came from the Mulvey agreement in 2016. Dr. Mahony was involved in that and perhaps she will speak to it.

Dr. Rhona Mahony

Absolutely. The legal framework that we are seeing now arises from the heads of agreement that were in the Mulvey agreement. The Mulvey agreement was a partnership, which was an agreement between three parties: the State, St. Vincent's Hospital, and the national maternity hospital. We sat down at the beginning of that to see how we were going to deliver this hospital, and how were we going to make sure that we would have a dedicated maternity facility that is totally protected to do all of its services and also protected in relation to budget and operations. It is not just about termination of pregnancy. It is about the whole service and having our own funding. We did not want to be at the end of the line when we were looking for funding in a general hospital setting. As I said, we had two mediations falling apart because we were going to be a branch. That really was why we had the Mulvey mediation. Very early on in that mediation we realised that ethos was not an issue at all and that religion was not a problem. Actually, as always, the problem was making sure we were not a branch that would be promised ring-fenced funding. Our colleagues in Cork had had a similar experience when joining a big general hospital and they were told funding would be ring-fenced for them. It was not so easy for them. We did not want any ring-fenced funding. We wanted a proper company structure where we had our own service arrangement and where we had control of our building and control of our staff so we could run our hospital and every aspect of it. That really was the key of the Mulvey mediation. As I said, ethos actually was not an issue.

On the share transfer, it is important to make the point that when we were negotiating Mulvey, we knew that the nuns were leaving but we also knew that would be a process. This is also why we made sure that the board of St. Vincent's could have no impact on the operation of the new national maternity Hospital DAC.

To make the point again, St. Vincent's is a totally secular organisation. The current board has achieved that and it is something of which it is very proud. It is proud to leave the church behind and to move forward into its future strategically as a hospital that provides great healthcare to its patients.

We need to move on, Senator Kyne.

To reply to the Minister, I am convinced, but the issue is that two members of the board were not convinced. They are both medics so they have an expertise in it. That is the point regarding their letter of dissent from yesterday.

I call Deputy Duncan Smith.

Thank you, Chairman, for allowing this and I thank the witnesses. It has been a gruelling session, so I will keep my questions as concise as possible and remove any commentary.

The first is a legal question regarding the proposed 299-year lease. Under clause 6.5 of the lease, the HSE loses its right of first refusal to acquire the premises on the later of 20 years after the HSE, as tenant, complies with its obligations under the sixth schedule, which refers to the building covenant, or 30 years from the date of the lease. Why would the HSE forgo this right so soon into a 299-year lease under this clause? Should the St. Vincent's Healthcare Group decide to sell the premises, will that open the HSE and this model to an unseen vulnerability? There may be a simple legal response to that, but it is one of those matters that leaps out to the layperson when trying to digest all these complex documents.

My second question is for the Minister. There is no doubt that this model is bespoke. Whether one is in favour of it or against it, it is a bespoke model with the golden share element. If a hypothetical similar arrangement were to come down the line somewhere else and if a future Minister for Health were to ask the current Minister if he would recommend this model to be used again, given his experience, would he recommend it? I know he has confidence in this particular one but, as a model in the future, would he tell the future Minister to run a mile away from it and to go about it a different way as this was too much trouble legally and politically and that there will always be some concerns and risks inherent in it? I would appreciate an answer to that.

I will answer first and pass the legal question on. The golden share in this case is a name but what is important is the legal powers that are attached to it. There are other golden shares in other situations that may have different legal powers. Essentially, it means that if for some reason the directors of the NMH fail in their obligations and their duty to ensure all services are provided and are provided without any religious influence, the Minister for Health can direct the board at his or her sole discretion. It says at the end, for the avoidance of doubt, that the directors must comply with this. That is very sensible.

Does the Minister think that is something we should be doing in future arrangements and that the Minister should have this golden share in whatever new big piece of infrastructure there is, be it maternity hospital, paediatric hospital or otherwise?

One would have to look at it case by case. Certainly, I am comforted, as the current Minister, that it is a power that I am not sure will ever need to be exercised because the hospital is going to do exactly what it is being set up to do, but it is useful because ultimately there is a mechanism for the State and for the Oireachtas via the Minister to intervene directly if needed.

Mr. John O'Donoghue

On the legal question, what is the specific issue with paragraph 6.5?

Why would the HSE forgo its right of first refusal to purchase the site? The HSE loses its right of first refusal to acquire the premises on the later of 20 years after the HSE, as tenant, complies with its obligations under the sixth schedule or 30 years from the date of the lease. Should SVHG decide for whatever reason to sell the site, which it is entitled to do, the HSE would lose the right of first refusal in what would be very early into a 299-year lease.

Mr. John O'Donoghue

That was specifically put in as a result of a situation arising where the current public health campus is subject to a third-party charge for funding, and it was to cover the period between now and that effectively expiring. We felt a 30-year period or 20 years from when the hospital would be built would be sufficient. Second, there are option agreements there. There is an option agreement for the HSE to acquire the freehold interest where there is a default by St. Vincent's or where St. Vincent's becomes insolvent. That is still there. Giving somebody a right of first refusal for 299 years is tying, and we are not seeking to tie the hands of St. Vincent's Healthcare Group. That was never part of this and it is the reason it is specific for a certain period of time.

I call Deputy O'Donnell.

Thank you, Chairman, for allowing me to contribute. Has the Department or the HSE signed any confidentiality clause with St. Vincent's in terms of what can be released in respect of the contract? That is the first question, because there is a myth.

Okay, that is good. Second, to get to the nuts and bolts, if I go to the Property Registration Authority after the hospital is built, who will I see has title to the land?

Mr. John O'Donoghue

At present, and this is probably trying to give a lesson in land law in a short time-----

Mr. John O'Donoghue

At present, there is an unregistered title, so when one goes to the Property Registration Authority one will not see any-----

I presume that is because it is there for so long-----

Mr. John O'Donoghue

Correct, it was never first registered.

It is a registry of deeds rather than title.

Mr. John O'Donoghue


When it goes through, what name will I see in the Property Registration Authority?

Mr. John O'Donoghue

When this lease is signed, it will be lodged for registration in the Property Registration Authority. There will be a leasehold folio issued and the registered owner of that leasehold folio will be the HSE, and it will state on that-----

No, it is the nuts and bolts in the short time I have.

Mr. John O'Donoghue

-----299 years.

There is the land.

Mr. John O'Donoghue


We are told the building on top of the land will be built by the State and the HSE. It will be interlinked with St. Vincent's Hospital to provide the synergy of services for the women of Ireland, which we all welcome. We need to dispel all the myths and get down to nuts and bolts. The impression is being given to ordinary people that the building will be in the ownership of the HSE. From what I have heard today, I get the impression it will be leased to the HSE. These points have to be clarified. I am assuming the land will be in the title of St. Vincent's Holdings.

Mr. John O'Donoghue

The freehold title.

The building on top of it will be registered in some form.

Mr. John O'Donoghue

The leasehold interest for 299 years will be registered in the Land Registry with the HSE as the leasehold owner.

Who physically pays the €1 billion for the cost of building the hospital?

It is a combination of the National Maternity Hospital and the State.

What is the breakdown?

It depends on the sale price of Holles Street.

It will not be strictly fully funded by the State.

No, there is a very important contribution from Holles Street as well.

That needs to be put in the public domain as well. When the building goes out to tender, who will issue the tender?

Okay, it will be the principal. When the building is built, I need to get from it being built to who owns it physically. What percentage is the State going to fund?

It depends on various things that we cannot know yet. It depends-----

That is a major fact for the public to know. It is not being totally funded by the State; it is being funded by Holles Street as well.

Dr. Rhona Mahony

The receipts for the sale of Holles Street.

Fine. Is that in the public domain?

Dr. Rhona Mahony


For many people, it is not. When that is sold, will the HSE and the State own the building or will it physically be owned by St. Vincent's Healthcare Group?

Mr. John O'Donoghue

I will answer that. It is very simple. People can make it very difficult and say a lot of-----

I am trying to simplify it.

Mr. John O'Donoghue

Simply, the HSE has a 299-year interest in the land. It will build a building on that land. One can get into Latin maxims in respect of buildings attaching to land, but for 299 years the only party that will control that building will be the HSE.

I accept all the points about control. The bottom line is to explain what the facts are. The public - and I am one of them - want to see the hospital built but they need to understand in their own heads how it is getting to that point. Once I understood how it would get to that point, I was quite comfortable with what is proposed. We need the hospital.

Finally, if this goes ahead now, when will the hospital be built and when will it be in operation for the women of Ireland? I know what the Minister and the witnesses are telling me in legalistic language but I want some layman's language.

I will give the Deputy an answer on timing. One of the things that typically takes a very long time and adds years to such projects is planning. The good news is that the planning for the hospital is done.

That is right. The detailed design is done. All the partners are ready to go. We have already had enabling works with pharmacies, car parks and so forth. Obviously, something this complex will still take several years, but the various pieces-----

Will the Minister give me a date?

I cannot at this stage.

Ms Mary Brosnan

At least 2028.

The hospital could be up and running in six years' time at a minimum.

Ms Mary Brosnan

At an optimum, I think-----

Otherwise, if the project is set back, it will be 15 years.

Ms Mary Brosnan


Finally, am I correct in saying the State will fund a large portion of the building itself and that the proceeds of Holles Street will fund the balance but that if I go to the land registry, I will see that the freehold of the building itself will be held by St. Vincent's and then given back as a long lease to the HSE? Is that correct?

Mr. John O'Donoghue

The lower interest there is the 299 years, so-----

I accept that, but am I correct in what I said?

Mr. John O'Donoghue

Yes. There is freehold and leasehold. There are two separate interests-----

Yes, but the freehold on the building will be held by St. Vincent's but it will come back to the State as a 299-year lease.

Mr. John O'Donoghue

Yes, and if the Deputy looks at the lease, he will see that St. Vincent's cannot, other than in a default situation, take control of the building. That needs to be made very clear. I ask the people putting out information about title to tell us why the State needs a freehold, what is wrong with the lease arrangement and, in particular, how a freehold would work without all the rights we have built into this document. As has been pointed out before, the hospital will be on a shared campus. There will be shared access routes and shared facilities. That cannot be done with a freehold agreement, with a two-page transfer of land, with a "there you go". There will still need to be an agreement between the State and St. Vincent's as to how they operate both those buildings. That is all dealt with. I ask anyone, including Deputy Shortall, to go through the document and tell me what is wrong with the State's interest for the next 299 years.


There are multiple things wrong with it. I am sure all of us have plenty of answers to that.

Hold on, Senator. Deputy Pringle is next.

Thank you, Chairman, for the opportunity to contribute. I was not present at the start of the meeting but was watching it from my office. I have a number of questions. For most of them, one-word answers will suffice, so we should get through them fairly quickly.

May I ask the Minister about St. Vincent's Holdings CLG? Can the constitution and articles of association of that company be amended?

I will ask Ms O'Sullivan to come in on that.

Ms Ita O'Sullivan

Yes, they can. Every company has to have a constitution-----

I am aware of that.

Ms Ita O'Sullivan

-----and its members can amend it.

It can be amended.

Ms Ita O'Sullivan

Yes, but may I explain the point? People are talking about a few different constitutions flying around and so on. What it says in the constitutions of the companies further up the line is irrelevant to the operation of the national maternity hospital DAC. We are all delighted now, for all the historical and emotional reasons, particularly for people of my generation, that any reference to the nuns or the sisters has been taken out. Fundamentally, however, whatever is in those constitutions, whether as they are now or as amended in the future, has no bearing on how the national maternity hospital DAC operates.

I thank Ms O'Sullivan. I would like to keep the questions and answers short because I am running very short on time and the meeting will wrap up soon.

Has the Minister or any other member of the Government a say or power of veto over any potential amendment that may be made to the constitution and articles of association of St. Vincent's Holdings?

Of the NMH, critically, to Ms O'Sullivan's point, to the-----

No. I asked about St. Vincent's Holdings.

I will answer the Deputy, but the constitution that matters in respect of the NMH-----

No. I am not asking about the one that matters; I am asking about St. Vincent's Holdings.

On the one that matters, though, because it matters-----

We will get to that one. My questions about the one the Minister says matters will come later.

Sure. All I am trying to say is that the Minister has a veto over any change to the reserve powers of the NMH constitution. I will ask Ms O'Sullivan to come in on St. Vincent's Holdings. I am not aware of powers in respect of changes to the holding company's constitution for the Minister.

Ms Ita O'Sullivan

The two St. Vincent's companies are also charities, so the Charities Regulator has to sign off on any change to those constitutions.

But the Minister has no say or power of veto in respect of the constitutions.

Ms Ita O'Sullivan

No, not at all.

Has the Minister or any other member of the Government a say or power of veto over the appointment of the directors of St. Vincent's Holdings CLG?

Ms Ita O'Sullivan

I am sorry to interrupt, but the national maternity hospital will have the right to appoint two directors to the board of St. Vincent's Healthcare Group.

I have lost my pace now. The three current directors of St. Vincent's Holdings CLG were previously directors of St. Vincent's Healthcare Group DAC as well. Is that correct?

Ms Ita O'Sullivan


Were they appointed by the board of the healthcare group company at the time when the Religious Sisters of Charity were the shareholders of that company?

Ms Ita O'Sullivan

I do not know, but Dr. Mahony would.

Dr. Rhona Mahony

They would have been because they had been the shareholders right up to then. As I keep saying, however, this is the board that has managed to separate out the church and the board that has overseen the end of any association with the Religious Sisters of Charity.

Can Dr. Mahony confirm that it is the case that the current directors of St. Vincent's Holdings CLG have the sole right to appoint successor directors?

Dr. Rhona Mahony

Yes, but I think there is a point in the documentation that the nominations are to be vetted by external bodies - the relevant accountancy body, the RCPI and the RCSI - so there is an added layer of vetting of nominations there.

The terms of reference are such that the company must have directors of St. Vincent's Holdings CLG on its board. It can pick only from directors of St. Vincent's Holdings CLG, so it has no control over who is appointed a director of St. Vincent's Holdings. It just has to accept whoever is there. Am I right in saying, then, that the direction and ethos of that company has the potential to change and evolve over time?

Ms Ita O'Sullivan

I am sorry. I know we are short on time. I am not entirely sure about the Deputy's last point. Was he talking about appointments to the board of the St. Vincent's company or appointments by St. Vincent's to the board of the national maternity hospital DAC?

Currently, the directors of St. Vincent's Holdings CLG have the sole right to appoint successor directors to St. Vincent's Holdings CLG.

Ms Ita O'Sullivan


Am I right in saying, then, that the direction or ethos of that company has the potential to change and to evolve over time and that the Minister can provide no guarantee as to what direction it may take?

Ms Ita O'Sullivan

That is why we have built all the safeguards into the constitution of the DAC.

Critically, if I may say-----

Will the Deputy give me just one moment? The whole debate is about the new national maternity hospital.

Yes, my questions about that are coming.

I turn now to St. Vincent's Healthcare Group DAC. Can the constitution of that company be amended?

Has the Minister-----

Deputy Pringle, can we hold the debate? We are quite close to 2 p.m.

I have a number of other questions. Maybe-----

We do not have the time to take them. I do not know if we can-----

Will the committee undertake to ask them-----

-----of the Department to get answers?

May we put the questions to you later, Minister?

Yes, of course. No problem.

I apologise to anyone who has not got in today. I have tried to facilitate everyone. I do not think anyone went under their time. If anyone did, I apologise to them. There have been a number of requests of the Minister today. Deputy Shortall had a number of questions about issues on which the Minister has agreed to come back to her, including a legal note on the first schedule of the lease agreement and so on.

There was a request from Senator Higgins in regard to St. Mary's and for a note on the clinical direction and the indemnity issue, and Deputy Neasa Hourigan referred to "clinically appropriate".

I had asked that if this committee writes to the Minister asking that he and the Cabinet would defer making a decision to allow this committee to meet others, will he take that letter from the committee to Cabinet when he brings his proposals? Can that be answered because it is important for the session we are going to have now?

I have no doubt the Minister is going to take on board whatever proposals come from the committee.

Sound. There were legitimate questions and genuine concerns raised here today. If we had another four hours, we probably would have brought up a lot more questions as well. The timing is appalling in this regard. We are against the clock on this issue. As a committee, it has been impossible to try to organise witnesses to come in at the last minute. People are very busy and they are coming from different backgrounds, so it has been very difficult. We have not put ourselves in that position. It is a result of whatever schedule the Minister and the Government are working to. I think it has been very unfair on the committee the way we have been dealt with. We are meeting now to try to arrange a meeting tomorrow and possibly the next day. It is literally like that and we are going from A to B.

I have to close the meeting. I thank the Minister and the witnesses for the comprehensive discussions with the committee today. We will now go into private session.

The joint committee went into private session at 2.02 p.m. and adjourned at 2.29 p.m. until 4.30 p.m. on Thursday, 12 May 2022.