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THE OWNERSHIP OF the new National Maternity Hospital (NMH) remains contentious since it was first announced that the Sisters of Charity would be gifted ownership of the NMH after its transfer from Holles Street to the St Vincent’s Hospital campus (which is owned by the religious order).
Such a proposal has given rise to widespread public outrage and concern regarding the potential influence of the Church over the country’s National Maternity Hospital should this arrangement go ahead.
In the intervening period, the Minister for Health Simon Harris has done his best to calm public hysteria and counteract the negative rhetoric purveying the story.
Minister Harris insists there is “creative space”
The latest development has been the Dáil’s backing of the Sinn Féin motion on Wednesday (May 3) which calls for immediacy of action in respect to the hospital’s construction and for the provision of legal guarantees on its independence from all non-medical influence in clinical operations.
Minister Harris wisely withdrew the government’s counter motion during the debate and instead insisted there was “creative space” to examine the ownership issue. He has also sought more time to engage with pertinent stakeholders over the coming weeks and to consider the legal mechanisms necessary to “absolutely protect the State’s investment including ownership”.
It will remain to be seen what legal instruments will be utilised by the government to ensure such protection but many have been mooted in recent weeks.
A long-term lease
The latest suggestion from Minister Harris is a possible long-term lease, which was also previously mentioned by his Cabinet colleague Charlie Flanagan, Minister for Foreign Affairs, during a recent RTÉ interview.
The option of a long-term lease will be based firmly on what tenancy agreement is devised between the State and the Sisters of Charity and how commercially prudent it is for the tax payer. A long-term lease such as this could conceivably be for up to 999 years at a peppercorn (nominal) rent or be a lease with a view to acquiring freehold in the future.
At present it appears to be the most favoured and viable option. However, it will untimely be up to the potential landlords to convey how willing they are to enter such an agreement with State.
A compulsory purchase order
Another legal option for the State to consider would be a compulsory purchase order (CPO) in the acquirement of the lands upon which the new hospital will be built. The CPO process involves the taking of and without consent, lands for public infrastructure projects such as road improvements which are deemed to be in the common good.
CPO’s are inherently complex and contentious in their own right, where objections and delays are frequent and expected. Although the CPO option will be examined by the Government in this instance, it will be unlikely such drastic measures would be adopted.
Talk of CPO’s could also raise unwelcome questions about the governance of other voluntary hospitals, many of which are privately owned but entirely State-funded.
A “lien” can be an effective tool
The option of a “lien” has also been suggested by Minister Harris in recent interviews to protect the State’s future investment and was also contained within the 25-page report by former chairman of the Workplace Relations Commission Kieran Mulvey who acted as mediator on the terms of agreement between the National Maternity Hospital, Holles Street, and St Vincent’s Hospital Group.
A lien can be an effective tool in such relationships as it acts as a type of charge upon real or personal property for the satisfaction of a debt and is essentially a security interest put in place to protect a creditor.
In this instance however, it would be questionable whether a lien would make commercial sense given the real benefactors would be the Sisters of Charity rather than the State as the lien would be presumably secured on the lands the hospital is built.
The very fact the hospital is being built on these lands would increase the market value extraordinarily to the benefit of the religious order.
Corporate law issues also prevail from the agreement which was reached last November between the Sisters of Charity, the sole shareholders of St Vincent’s Healthcare Group and the board of the NMH. The ownership issue as alluded to above present’s challenges not only from a “Property Title” perspective but also raises legitimate fears about the possibility of undue influence by the Sisters of Charity on the hospitals clinical and operational independence.
“Reserved powers” cannot be easily removed
Despite assurances that the hospital’s autonomy will be safeguarded through “reserved powers” that only the Minister for Health can amend as well as holding a “golden share” for added protection, uncertainty prevails.
The perceived protections have actual limits, for although these “reserved powers” cannot be easily removed as they are merely powers rather than legal obligations. Such “reserved powers” could be influenced in theory through the Board of Directors, which will be comprised of nine Directors, four nominated by the St Vincent’s Hospital Group and another four nominated by the National Maternity Hospital Chartered Trust, leaving one vacancy to be filled by an independent international expert in Obstetrics and Gynaecology as appointed by a Selection Committee (as yet undetermined).
This leaves the real possibility that such an expert could have a casting vote on important Board decisions which could severely alter the extent these “reserved powers” are exercised.
Saga likely to run for some time
Another obvious legal concern is the ultimate control which could be enjoyed by the Sisters of Charity in their ability as sole shareholders to use such legal status with the purpose of changing the corporate structure of the NMH and deviate from the initial agreement and specific safeguards as contained therein.
The NMH saga is likely to run for some time, and continue to be lampooned with accusations of mistrust and concern, however legitimate or unwarranted. It will therefore take an impressive charm offensive by government and in particular Minister Harris to restore some sense of decorum and stability to these proceedings.
The ownership challenge is one that will need to be resolved post haste and despite what legal mechanism is eventually favoured, trust will need to be restored so as to ensure that we do not lose sight of the grand prize, a new National Maternity Hospital for Irish citizens.
Jason O’Sullivan, is a Solicitor and Public Affairs Consultant at J.O.S Solicitors.
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Feel sorry for anyone not within walking distance of it as they won’t get parking anywhere now. It’s been a great place to walk and whittle down the hours of lockdown 1 and 2 so far. There is more than enough space in Europe’s biggest public park to accommodate cars and people to maintain distance.
@Thomas Quinn: it isn’t Europe’s biggest park. It is Europe’s biggest walled park, very different. Cars always park illegally there so if that can’t be followed there is no hope of following guidelines. Can’t even get pedestrians to not walk in cycle lane there either.
@Craic_a_tower: it’s actually not even that though because Château de Chambord in the Loire Valley in France is enclosed and it’s about 5 times the size.
It’s Europe’s biggest enclosed park in a capital city…doesn’t sound as good.
@Thomas Quinn: unless you live within 5k of the park you shouldn’t be going to the park
@Craic_a_tower: what is the biggest park in europe?
@Craic_a_tower: the paths on Chesterfield avenue have become pedestrian only since lockdown so that cycle lane isn’t in operation though there isn’t much signage in the park to explain this… cyclists should use the cycle lane on the road / the hard shoulder that’s blocked off for cycle lane purpose
@Craic_a_tower: splitting hairs I point up for you
The people (drivers) who pay for the road maintenance are again being railroaded by the cycling lobbyists to get their own way. No consideration given to those who live either side of the park and need to use it get around or those who are unable to walk/cycle. The green party are destroying this city for those who live in it.
@FerucaSalt:Well pointed, pity Salad brain in the Green party, doesn’t take on board, local people’s needs.
@FerucaSalt: road maintenance is paid for out of general taxation, whether it’s income tax, VAT, capital gains tax, motor tax or any other form of taxation. Except for carbon tax, which is ring fenced for environmental use. Also, most people who cycle also own a car, and therefore pay just as much motor tax as non-cyclists. Bicycles have as much right to use the roads as cars. The idea that we have drivers to thank for road maintenance perpetuates this ridiculous drivers vs cyclists narrative, and leads to cyclists being killed by drivers (regardless of who’s at fault) every year. Anyway, the Phoenix Park is a park, not a road. There are roads around the perimeter of the park for traffic. The two main gates are still open for people who must drive to access a safer park, with less traffic.
@FerucaSalt: “The green party are destroying this city for those who live in it.” Not for me. I drive, walk and run
@FerucaSalt: How do drivers pay for road maintenance?
@FerucaSalt: clearly we’re fighting two pandemics. Covid 19 & ignorance. At least we should have a vaccine for Covid-19 soon! :)
“The OPW said the decision has been made in the interest of public safety for users of the Phoenix Park.”
I second this. Traffic just passing through the park from one gate to another has become a danger since reopening so this decision to close them at the weekend will allow more people to safely use it again. Why do you need to dive 5km to use a park to then walk? Walk or cycle to the park. You’ll reduce unnecessary traffic on city roads and make them even more safer for everyone.
The only reason the side gates reopened was because of bully boy Chambers getting his way.
@Bren: spot on with your entire comment!!
@Bren:
Not everyone is young enough or fit enough to walk to the park , however if they can be driven I’m sure they would get great enjoyment and benefit from being there and seeing the colours of the trees
etc.
@Bren: Because some people find a 5km walk to the Park and back again a little too much. By the the way I’m in the Park Every Day and the volume of Traffic has been the LOWEST I have encountered since I went into Recovery from Cancer in the past 7 years.. 1750 Acres of SPACE I believe are at our command…..
@Bren: A bit of a selfish comment, not everyone has the luxury of being fit and able to walk to the park, but would still like to be able to amble in the park.
@Bren: because bren, it’s not possible for me to transport my two sub 3 year olds the 8km round trip to the phoenix park on foot. I cannot transport both of them on one bicycle either You’ll find that’s a stretch for most 1 year olds to walk or cycle, distance wise. You’ll find it’s a stretch for a large percentage of the population within the 5km radius in fact. Sure, we can go to parks closer to our home but they are smaller and much more congested making distancing much more difficult. Also, from a mental health perspective it’s beneficial to be able to switch around your surroundings now and again because looking at the same landscape for weeks in end is certainly not healthy. The reasoning behind the decision is weak and lacks any kind of understanding regarding where real risk lies/rush reduction.
@Annette Griffin:
You don’t need a car to transport kids..
@Alan Kelly: yeah or people could just drive. Not everyone wants to cycle. We live in a few world. Or we did!
@Bren: I take it you live within walking or easy commuting distance . The park has not suddenly become a dangerous place to be as a result of traffic . It’s for all of us , every tax payer should have regulated reasonable access to the park not just those locals who suddenly are laying claim to it since March
@Bren: your comment is astoundingly arrogant. Many people who cannot walk far or who do not wish to walk still want to be in THEIR park. I would bet my life that you are a cyclist!
@Joe: Drive if you want. but don’t moan about no parking etc.
Following a request from the garda, because they know they can’t have a checkpoint at every gate except the two main ones ensuring everyone is within 5km of their homes.
Nothing to do with public safety at all.
@David Lee: Traffic through the Phoenix Park has been deemed to be non essential, unless you’re on a bicycle, and the names of the various gates will be changed to Penny’s Gate, Dunne’s Gate etc. as long as Level 5 restrictions are in place. Alcohol and getting plastered in the Park is totally permitted at any hour of the day or night.
So the cycling lobby group, sorry I ment city council have taken more roads from motorists.
Absolute lunacy
@A -AFC: cars being allowed into a recreational park sounds even worse. There are plenty of good roads around the parameter of the park you know, and the main avenue is still open to motorists
@A -AFC: the City Council have no say or input, its the OPW and the Gardaí who implemented this!
@Michael Burke: 95% of city council board are involved directly and indirectly with cycling lobby groups.
Ireland is turning into little Russia
Closed due to safety concerns? Have cars started to drive on the paths now? There is ample room for pedestrians, cyclists and cars in the park, this is a ridiculous decision. People who don’t live within walking distance to the park deserve to be able to drive there and go for a walk.
@Michael Byrne: Yes they have been driving on the paths and the grassland. Do a search and you will see lots of illegal parking by motorists in the park. Even just look outside on the road, rampant speeding, breaking red lights and illegal parking is normal for drivers.
@Joe Clery: Breaking red lights? There’s only one set of lights at each entrance. Yes, some people do park at the edge of the grass but that’s not really a problem, just families wanting to use the park. It’s for everyone, not just cyclists.
@Michael Byrne: yes! Driving on paths, parking on patch’s parking on the grass, parking on the cycle lanes… the list is endless.
Awful. I used to take my elderly wheelchaired cocooning mother there for a drive around to see the deer every week and take in some fresh air as she loved it and it was still within our 5 k. Really wish decision makers would consider such things .
@AnneMarieCunningham: you can still go – main gates remain open.
@AnneMarieCunningham: use the main gates maybe. All the best to your mother.
@Joe Clery: oh great thank u
Great news plenty of narky drivers nearly running over cyclists last weekend – be a lot safer now
@Greg O’ Neill: The narky drivers were driving in the cycle lanes ?
@Tommy Roche: no the cyclists demanded the whole road!
@Tommy Roche: I wish all the roads in the Park had cycle lanes
An awful lot of needless whining going on here. Castleknock Gate and Parkgate will be open. Those who use Cabra Ashtown or Knockmaroon can easily get to Castleknock, those who use Chapelizod Islandbridge or NCR can easily get to Parkgate.
Ridiculous my partner relies on this shortcut getting to and from the train station on his weekly journey from Ashbourne to Portlaoise to see his kids. One of lifes little pleasures denied again! I suppose he should start cycling…
@Fi Wyse: sorry but they are not denying him seeing his kids. They are just asking him not to drive through the park!!!
@Fi Wyse: using the main gates or driving around the park could only add maybe 15 t 20 mins tops. Is he driving from ashbourne to Houston for the train or what? Probably a mild inconvenience. Certainly not denying him see his kids.
@Maria: I never said they were, but the park is the biggest park in Europe plenty of room for bikes and cars. Ridiculous decision to close it.
@Seaniecp: Uses the gates to get too and from train station, 15/20 mins is a lot of time when you work shift driving people for a living and trying to make another form of public transport for your personal use. Little things like this mean a lot to people. Time is precious we don’t have it to waste sitting in traffic of all things.
@Fi Wyse: Ashbourne to Portlaoise?? We’re in lockdown. That’s a long 5km
@Sean O Callaghan: People are still allowed access to travel to see their children the limits don’t apply when you have a court order.
@OPW when will the gates removed for cleaning and restoration at the popes visit be restored and cleaned?
It was supposed to take six months and the six months was well up before Covid was even dreamt of
Good. I hope they stay closed permanently. Go for a walk.
So parks are non essential also???? More confusion in this messed up level 5
I am relieved as people were parking dangerously on both sides of the grass verges up from the Furry Glen and it was seriously hazardous to drive through the bikes/people/cars on the winding road in that part of the park at weekends. I live locally and had stopped driving up there.
Do the same for Bull Island please
have your say