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Explainer: Where 'clinically appropriate' stands as Government green lights NMH deal

The term has been defined in the government’s decision but not the legal documents of the agreement.

The existing National Maternity hospital on Holles Street in Dublin
The existing National Maternity hospital on Holles Street in Dublin
Image: Sasko Lazarov/Rollingnews.ie

SENIOR GOVERNMENT MEMBERS have given their seal of approval to the National Maternity Hospital deal but questions remain over its future as TDs prepare for a possible vote calling for it to be a public hospital on public land.

Yesterday, Cabinet signed off on the legal framework for moving the NMH to its new site in Elm Park, where it would be co-located with St Vincent’s Hospital.

The framework had already been approved by the boards of the NMH, the HSE, and St Vincent’s Healthcare Group.

The green light came two weeks after the deal was first put before ministers but pushed back to give more time to assess concerns about the hospital’s ownership and secularity.

In its meeting yesterday, Cabinet did not ask for any changes to the legal documents but did internally clarify some elements of the arrangement, including the use of the phrase “clinically appropriate”.

The HSE published the legal documents regarding the planned move for the first time after Cabinet’s first appraisal of the deal at the start of this month, including the 299-year lease between the health service and St Vincent’s Healthcare Group for the land the hospital will be built on.

As clinicians, politicians and the public scrutinised the documents, one clause in particular raised concerns: a stipulation that the hospital would provide “all clinically appropriate and legally permissible healthcare services”.

The phrase is included in the lease as part of a definition setting out the hospital’s “permitted use”.

The full explanation outlines that to be “in relation to the National Maternity Hospital Area as a public hospital primarily for the provision of all clinically appropriate and legally permissible healthcare services, including research, by a maternity, gynaecology, obstetrics and neonatal hospital, and a range of related health services in the community and any other public healthcare service or services.”

As concerns were aired over the last three weeks about the future of the hospital from both sides, that “clinically appropriate” term became a flashpoint in debates – what it meant, why it was included, and whether it could limit access to certain procedures.

The government’s defence

It’s understood that the “clinically appropriate” phrase was inserted into the lease agreement by the HSE.

The chair of the St. Vincent’s Healthcare Group, which is entering the agreement with the HSE, indicated it would be possible to remove or define the term in the legal framework of the deal before it went to Cabinet. 

However, senior government members have repeatedly defended its inclusion on the basis that it would ensure the hospital is used for the maternity services it is intended for rather than other specialities such as cardiology or neurology.

Speaking at the Oireachtas Committee on Health last week, which convened to scrutinise the proposals for the hospital, Minister for Health Stephen Donnelly argued that the term protects the maternity services against State “pressures” and to avoid a situation in which the hospital’s facilities are used for other purposes.

Professor Mary Higgins, a Consultant Obstetrician & Gynaecologist at the National Maternity Hospital, said that it future-proofs the hospital in relation to “procedures, diagnoses and issues that we do not know about yet”.

“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,” Professor Higgins said.

“For me, it is very respectful for women to have that term.”

Opposition

However, others raised fears that the language could be interpreted in a way that allowed clinicians to refuse procedures such as abortion, tubal ligation, or gender reassignment surgery.

Speaking at the Oireachtas Committee, former master of the NMH Dr Peter Boylan described the term as a “major red flag”.

Dr Boylan said that imposing a test of ‘clinical appropriateness’ would remove autonomy from women and provide a justification for refusing legal treatments.

Solicitor Simon McGarr said that a lack of definition of the term’s meaning within the lease created ambiguity.

“There are multiple interpretations possible and it is the fact that those multiple interpretations are possible that creates the problem,” McGarr said.

The solicitor said that ambiguity “results in unexpected, unwanted and sometimes even perverse-seeming interpretations being placed on disputed phrases”.

He called for the term to be removed, and said that if it was not removed, it should be defined by giving a list of “controversial procedures” presented as “including but not limited to”.

“This allows for the evolution of medical technology and medical processes in the future.”

No change to deal

Although the SVHG offered to work with other parties to adjust the use of ‘clinically appropriate’, the deal came before Cabinet again unchanged.

The Taoiseach told reporters before the meeting that no changes had been made to the legal documents.

This morning, speaking on RTÉ Radio One’s Today with Claire Byrne, Tánaiste Leo Varadkar said there were “three differences in the government decision that came to Cabinet yesterday versus the one two weeks ago”.

He said that one was a “clear definition as to what clinically appropriate means”.

It defined clinically appropriate as all legally permissible obstetric, gynaecological, neonatal and foetal medicine services.

However, the definition is included in the text of the government’s decision, not the legal documents of the deal.

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The Tánaiste said that the decision also added provision for a review to check that “all procedures that are legal in the State are happening in that new hospital just as they are now in the existing one” and for a programme around women’s health.

“So there were three changes made to the government decision. Not to the legal text, but to the government decision,” Varadkar said.

A vote may be taken in the Dáil this evening on a motion calling for the new NMH to be a public hospital built on public land, which would spark further re-evaluation of the deal between the HSE and St Vincent’s.

Sinn Féin health spokesperson David Cullinane introduced a motion in the Dáil last night that would compel the government to bring the site at Elm Park into State ownership, rather than continuing with the current plan to lease the land.

Sinn Féin’s David Cullinane said in a statement that the new hospital must offer the “full provision of the range of legally available sexual and reproductive health services”.

“The full range of legal permissible services, from fertility treatments to termination of pregnancy, whether medical or surgical, must be available in the hospital to any qualifying patient,” Cullinane said. 

Rural Independent Mattie McGrath called for a vote on the motion last night as TDs debated the motion, which will be triggered this evening if 10 TDs seek it.

Two of the Green Party’s 12 TDs – Neasa Hourigan and Patrick Costello – have said that they would vote in favour of Sinn Féin’s motion, breaking rank from the government if necessary and risking losing the whip.

The vote may be called in the Dáil this evening during Weekly Divisions from 8.30pm.

About the author:

Lauren Boland

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