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National Maternity Hospital to seek injunction against inquiry into Malak Thawley's death

If granted, the injunction will prevent the inquiry from proceeding until the hospital’s judicial review challenge has been determined.

The National Maternity Hospital
The National Maternity Hospital
Image: Mark Stedman via Rolling News

THE NATIONAL MATERNITY Hospital (NMH) is to seek an injunction stopping an inquiry into the death of a woman during surgery for an ectopic pregnancy until its High Court challenge against the process has been resolved.

In January, the hospital secured permission to challenge the Minister for Health’s decision to order the Health Information and Quality Authority (Hiqa) to carry out a statutory investigation into patient safety issues including the practise of surgery being carried on outside core hours and the readiness of hospitals to respond to major emergencies in such circumstances.

The inquiry arises out of the death of Malak Thawley, aged 34, at the NMH on 8 May 2016.

Earlier this year her widower Alan Thawley settled his action over her death against the NMH for compensatory damages.

The court heard the doctor who carried out the surgery was an inexperienced junior surgeon and was not supervised.

Judicial review action

The NMH’s judicial review action returned before Justice Seamus Noonan today, who granted the hospital permission to bring an application for an injunction.

If granted, the injunction will prevent the inquiry from proceeding until the hospital’s judicial review challenge has been determined.

Imogen McGrath Bl, for the hospital, said it had been hoped that the bringing of the challenge would result in the Minister and Hiqa putting the inquiry on hold.

Despite there being correspondence between the various parties counsel said no such undertakings have been given by the Minister and Hiqa.

Counsel said Hiqa had published on its website the terms of reference and a guidance document in relation to the inquiry indicating that the process is going ahead.

Counsel said the hospital now requires an injunction preventing any further steps in the inquiry from being taken, as otherwise, the NMH’s proceedings would be moot.

Justice Noonan fixed the hearing of the injunction application for Friday.

In its proceedings, the NMH claims the Minister was acting outside his powers in ordering a new inquiry in circumstances where three other reports into the death of Thawley already taken place, one by the hospital itself, another by the HSE and there was also the coroner’s report.

The hospital’s own review had resulted in the implementation of changes to ensure there is no recurrence of the Thawley tragedy and they were backed by the HSE, the coroner and Hiqa, the hospital says.

The Minister had fettered his discretion by telling Thawley that whatever about the HSE report, he [Minister] would still order an inquiry into the matter.

This was effectively giving a third party the discretion as to whether an investigation would be ordered.

A statutory inquiry requires that it must be on foot of a specific concern but the Minister had implied that it was because the provision of all hospital services outside core hours was unsafe, which the hospital says is irrational.

In an affidavit, NMH Master Rhona Mahony said the new investigation, under Section 9(2) of the Health Act 2007, will undermine clinical and public confidence and could be counter-productive in its effect on national maternity services.

The inquiry will have a chilling effect on the ability of clinicians to delivery high risk and emergency care in an already challenging environment, both at the NMH and nationally, she added.

The NMH is not opposed to a fourth investigation but believes the type of inquiry ordered by the Minister will have serious implications for the hospital’s operations and affect public confidence with patients possibly discouraged from attending hospital because the Minister believes serious safety risks exist, she says.

Instead of a Section 9 inquiry, the NMH has suggested an independent expert body such as the Royal College of Obstetrics and Gynaecology UK should be appointed to conduct a further investigation.

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Aodhan O Faolain

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