Mr Justice Charles Meenan recently delivered his judgment in respect of the High Court case of The National Maternity Hospital -v- The Minister for Health and The Health Information and Quality Authority (“HIQA”).
On 8 May 2016, the late Mrs Malak attended the National Maternity Hospital (“the Hospital”). Following an ultrasound Mrs Thawley was found to have a right-sided ectopic pregnancy which required surgery. The surgery to be performed was a laparoscopic salpingectomy.
During surgery, bleeding was noted by the operating doctor and it was ultimately decided to proceed to a laparotomy in order to confirm the source of the bleeding. The Consultant Surgeon subsequently arrived at theatre and discovered that the source of the bleeding was a major vascular injury and sought the assistance of the vascular team and the cardio thoracic team from St Vincent’s University Hospital. Mrs Thawley’s heart continued to fail and she passed away despite ongoing resuscitative attempts being made.
A Coroner’s Inquest was held in June 2017. An internal investigation was also carried out by the Hospital as well as an external HSE investigation.
Section 9 of the Health Act
On 3 November 2017, the Minister for Health directed that HIQA, who ultimately became a notice party to the judicial review proceedings, carry out an investigation pursuant to Section 9 of the Health Act 2007 (“the Act”).
In directing HIQA to carry out an investigation under Section 9 of the Act, the Minister was required to hold a belief on reasonable grounds that there was a serious risk to the health or welfare of a person receiving services from the Hospital.
Judicial Review Proceedings
On 29 January 2018, the Hospital were granted leave by the High Court to bring judicial review proceedings against the Minister for Health, in respect of his decision to direct that an Inquiry be held pursuant to Section 9 of the Act following the death of Mrs Malak Thawley at the Hospital in May 2016.
At the substantive hearing of the case, the Court considered whether the Minister had reasonable grounds to believe that there was a serious risk to the health or welfare of persons receiving the services at the Hospital and in doing so considered the sources of information upon which the Minister based his decision.
Mr Justice Meenan concluded that in light of the legal principles and authorities considered, “…the decision of the Minister to require the Authority to undertake an investigation under s. 9(2) of the Act of 2007 was “unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense” (as per Fennelly J. in Meadows v. Minister for Justice).
Mr Justice Meenan set out in his judgement that prior to the Minister’s direction for HIQA to carry out an investigation under Section 9 of the Act, the Minister did not carry out his own investigation in respect of the matter but claimed to rely on the report from the National Maternity Hospital, the HSE report and the evidence given at the Coroner’s Inquest. Mr Justice Meenan found that that it was clear that:
“…the findings, recommendations and conclusions of these reports were not properly considered. Further no regard was given to the evidence on oath, at the coroner’s inquest.”
Mr Justice Meenan found that the grounds relied upon by the Minister in the statement of opposition were not supported by the relevant reports, by correspondence or by evidence given at the hearing.
Mr Justice Meenan also found that the Minister failed to communicate to the Hospital both the “reasonable grounds” and the “serious risk” identified by him despite repeated requests from the Hospital to do so.
In respect of his examination of the correspondence exchanged between the Minister and the Hospital, Mr Justice Meenan noted in his judgment that the Minister and/or his officials had stated on more than one occasion that the reason for the Section 9 investigation would be a learning exercise. Part of Mr Meenan’s rationale for ultimately quashing the decision of the Minister was that the object of a section 9 investigation must be to eliminate risk rather than to be a learning exercise.
One particular issue raised in this case that may be of interest to Regulators generally relates to the submission made by the Hospital that the Minister had breached fair procedures which the Hospital claimed it was entitled to in the lead up to the decision to direct the HIQA investigation.
In this regard, Mr Justice Meenan pointed to the decision of the Supreme Court of Crayden Fishing Company Ltd v. Sea Fisheries Protection Authority & Ors  IESC 74. In this case O’Donnell J stated as follows:
“…I would approach the case on the basis that the default position is that a person conducting a preliminary investigation which itself does not lead directly in law to a binding and adverse decision, is not normally under an obligation to comply with a requirement of a fair hearing.”
Mr Justice Meenan concluded in respect of this particular issue that
“…I do not accept the hospital’s submission that they were entitled to fair procedures in the lead up to the decision of the Minister to direct the investigation. I have referred to the judgment of O’Donnell J. in Craydon and adopt what he described as the ‘default position’.”
The full judgment can be accessed here.
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