The Gist: The Maternity Hospital’s Difficult Birth

After a busy day urging active citizens to call their TDs to register their unhappiness with the plan to transfer ownership and control of a €1bn new National Maternity Hospital, the whole thing ended with the Cabinet getting spooked and telling the Minister for Health to publish his plan and come back in a fortnight.

So, instead of holding a victory announcement the Minister presided over a sort of zombie press conference after the Cabinet meeting broke up. All the same guests, but now, instead of praising him for his achievement in getting the deal over the line, they were left trying to argue that everyone should just sit still and do nothing for two weeks.

This is unlikely to occur. However the meaningless press conference, carrying on like the afters at a cancelled wedding, was overshadowed by something real. The HSE released the up-until-then secret terms of the deal between the HSE, Holles Street Hospital and St Vincents Hospital Group. Let's take a look at some highlights.

What they say in the papers

We should say, to start, what the Minister said we would find in his bushel of paperwork.

"People will be able to see within the Memorandum of Understanding the clinical protections in the NMH and indeed the obligations on the new National Maternity Hospital to provide all services."

Will we though? Because a careful reading of the full set of documents reveals something else- A set of powerful hooks left hidden inside the relationships between the parties undermining the controls the Minister so ardently wanted to point to.

What follows are notes from an initial reading of the documents the HSE made available last night. They aren't a legal opinion and, as you might imagine from a publication called the Gist, they don't represent the last word on these papers. Nonetheless, it is hopefully helpful.

Still missing pieces

The first thing to say is that the papers released last night represent only part of the documents constituting this deal. They are missing the documents which govern and control the company which the nuns have set up and transferred their shareholding to. Under canon law, this transfer required the approval of the Vatican and is subject to whatever conditions were set by the Vatican to proceed. The Minister does not appear to know what those rules are, telling the Irish Times

“I guess you’d have to talk to the Vatican about that. We don’t have any such documents."

In fact, the state has been kept so in the dark on the matter that Mason, Hayes and Curran, the solicitors working for Holles Street Hospital, have a footnote at page 3 of the Co-Ordination Agreement meekly asking "MHC Note: Can you clarify whether any third party consents/approvals or additional steps are required in advance of the ability of SVHG to grant the Lease." This seems like something of a loose end to leave unresolved when you're bringing a supposedly oven-ready deal to cabinet.

The papers released also lack basic elements on their own account- the Operating Licence is missing the Facility Operations Agreement, which is meant to be attached as a Schedule and the Lease is missing the maps and Annexes which would show the parts of the St Vincent's campus the current hospital management would control and which parts would actually be under the control of the new hospital's management. Those maps are also missing from the various option agreements.

This last point is particularly interesting in the light of the eye-opening clause of the Lease which commits that a portion of the land and/or the building being leased is still going to be left in control of the nuns' new vehicle.

"“Landlord Area” means that part of the Premises to be constructed by the Tenant for the exclusive use of the Landlord comprising an area of approximately [ • ] and shown coloured [ • ] on the plan numbers [ • ] annexed hereto which area is also defined in the Operating Licence as “SVHG Areas”"

We don't know the area of this constant ongoing presence in the Leased property, we don't know what the nature of the buildings that the State (the Tenant here) is promising to build their new landlord and we don't know what it is intended to be used for. These seem like the sort of things one ought to know about before agreeing to a lease with someone. Especially a lease that promises to make this space and its publicly-funded buildings available to their new landlord for the next 299 years.

"The Tenant has agreed to give certain assurances in this Lease to ensure that the Landlord’s use of these areas will always be available to the Landlord." (Section 3.5, Lease)

Until we get the full set of papers dealing with this relationship released into the public domain- which includes the Vatican's requirements for the new company which will eventually own the €1bn hospital the state is building for it- we can't assess it in any really complete way.

What is Appropriate?

The Operating Licence, the Co-Ordination Agreement and the 299 year lease are all agreed what services are permitted to be offered at the new hospital;

the provision of all clinically appropriate and legally permissible healthcare services.

You will remember that the current St Vincent's Hospital says that

"There is no prohibition on any medical procedure, whether elective or emergency, that is clinically indicated, including vasectomy or tubal ligation.”

However, its own doctors acknowledge that the effect of the restriction to procedures which are clinically indicated is that

tubal ligations are not performed in St Vincents Hospital

Why is there an undefined test of 'clinical appropriateness' for legally permissible healthcare services added to every one of these documents? The Minister has responded to that question by deflecting, saying

the Government can therefore give a “rock solid guarantee” that all services will be provided.

I certainly don't know what that guarantee is based on. And, without any definition of what the test for clinical appropriateness will look like in any of the documents between the parties, it is certainly more than I could say.

The Rent is Too Damn High

There is a real financial threat to the state if it turns out that it doesn't like how the management of the new NMH (and the holders of 99% of its shares, St Vincents Hospital Group) intepret the meaning of that double test for the provision of services at any point in the next 299 years.

The Taoiseach has been highlighting the great value rent of €10 per year offered by the Lease agreement.

Except that isn't actually the rent defined in the lease. The Lease defines the Rent as

€850,000 per annum or such revised rent as may be payable in accordance with the provisions of this Lease from time to time.

There's a rent review clause that triggers every ten years. Presumably, the rent will go up at some point over the 299 year term of the Lease across 29 rent reivews.

The €10 payment the Taoiseach is discussing is actually another mechanism of control by St Vincents over the new NMH. If they ever feel that the State-funded hospital is offering medical procedures that are outside the test of 'clinical appropriateness' they can threaten to revert to the standard rent- from €10 to €850,000 a year in one jump.

"the yearly rent shall be abated to €10 per annum for so long as each of the following conditions are complied with;... (c) there is no change to the Permitted Use without the consent of the Landlord"

This is a far cry from "ownership… by any objective analysis" as the Taoiseach told the Dáil.

Conclusion (and a solution?)

Basically, there are two agreements. There is the one the State is willing to make. And there is the one the nuns were willing to make.

These two agreements do not overlap.

The effort made to date has been to find a combination of words which would conceal this incompatibilty.

This might get you through the one-way door of signing documents and getting Cabinet approval. But it just means that the first crisis will shatter the appearance of comity. By the time we know what form that crisis is- whether it comes from the Vatican, from a disagreement on what is clinical appropriate or from a breakdown in the relationship between the various Directors of the new NMH- it will be too late to walk away from this deal.

The solution is, surprisingly, contained in an option agreement released along with all the other papers.

In it, the nuns' new corporate vehicle agrees, under certain circumstances, to just sell the NMH site at market value to the HSE "free from any encumbrances, mortgages and/or charges."

Its exactly what should have happened at the start, and should be taken as the simple answer to all the fumbling explanations why it can't happen now.

Its time to cut the Gordian Knot this project has snared itself in.

The State and St Vincents have agreed it can be done.

Now it just needs the political will to grasp the opportunity to do it.