The National Maternity Hospital v The Minister for Health
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 06 September 2018 |
| Neutral Citation | [2018] IEHC 591 |
| Docket Number | [2018 No. 81 J.R.],[2018 No. 81 JR] |
| Court | High Court |
| Date | 06 September 2018 |
[2018] IEHC 591
[2018 No. 81 J.R.]
THE HIGH COURT
Judicial review – Order of certiorari – Health Act 2007 s. 9 – Applicant seeking an order of certiorari quashing the decision of the respondent requiring the notice party to undertake an investigation under s. 9 of the Health Act 2007 – Whether the respondent's decision was unreasonable
Facts: The late Mrs Thawley, on 8 May 2016, attended with her husband at the applicant hospital, the National Maternity Hospital. She was found to have a right side ectopic pregnancy. At 16:08 she was taken to theatre for a laparoscopic salpingectomy. She was certified as dead at 19:57. The Coroner's inquest in June 2017 recorded that the cause of death was by reason of exsanguination caused by a laceration of the abdominal aorta due to trauma sustained in the course of the laparoscopic salpingectomy. A verdict of medical misadventure was recorded. Mr Thawley commenced legal proceedings on 24 January 2017. On 25 January 2017 the hospital admitted negligence and breach of duty and apologised to Mr Thawley. The claim was settled on 16 January 2018. On 3 November 2017 the respondent, the Minister for Health, directed the notice party, the Health Information and Quality Authority, to carry out an investigation under s. 9 of the Health Act 2007. By order of the High Court (Noonan J) on 29 January 2018 the hospital was granted leave to apply by way of judicial review for certain reliefs. The reliefs sought were, inter alia: (i) an order of certiorari quashing the decision of the Minister to commence an investigation pursuant to s. 9 of the 2007 Act; (ii) a declaration that in making the said decision the Minister acted ultra vires; (iii) a declaration that the Minister fettered his discretion and/or failed to lawfully use his discretion in deciding to commence the said investigation; (iv) a declaration that the decision of the Minister was irrational, unreasonable, vitiated by errors of fact and arbitrary; (v) a declaration that in making the said decision the Minister acted in breach of fair procedures and/or natural and constitutional justice; and (vi) a declaration that the Minister failed to provide reasons and/or adequate reasons and/or articulate grounds for his decision.
Held by the High Court (Meenan J that), having applied State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 and set out its findings on the documentation, the affidavits and the evidence of Dr Holohan, the decision of the Minister to require the Authority to undertake an investigation under s. 9(2) of the 2007 Act 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 [2010] 2 IR 701).
Meenan J held that the hospital was entitled to an order of certiorari quashing the decision of the Minister requiring the Authority to undertake an investigation under s. 9 of the 2007 Act.
Relief granted.
On 8 May 2016 the late Mrs. Malak Thawley attended with her husband at the applicant hospital (the hospital). Earlier that day Mrs. Thawley had attended a private clinic and was directed, after having had an ultrasound scan, to attend the hospital. In the hospital Mrs. Thawley was taken to the Foetal Assessment Unit for review. Following an ultrasound Mrs. Thawley was found to have a right side ectopic pregnancy. At the Foetal Assessment Unit Mrs. Thawley was seen by a second year specialist registrar. After carrying out a review on Mrs. Thawley, the specialist registrar contacted a consultant obstetrician and gynaecologist who was on-call. The specialist registrar was advised to proceed to surgery in the form of a laparoscopic salpingectomy. At 16:08 Mrs. Thawley was taken to theatre.
The laparoscopic operation commenced under general anaesthetic at 16:38. A Veress needle was inserted, following which carbon dioxide flowed into the abdomen. A primary 11mm trocar was inserted by the operating doctor. When the laparoscope was inserted some blood was noted and visualisation of the abdominal cavity was obscured. The laparoscope was removed and then reinserted but blood was still noted. The doctor carried out a number of procedures to identify the source of the bleeding. At that stage Mrs. Thawley's vitals were reported as being stable. At 16:50 the operating doctor was informed by the anaesthetist that Mrs. Thawley's pulse was 96 beats per minute and her blood pressure unreadable. The operating doctor decided it was necessary to proceed to an immediate laparotomy due to the extent of the bleeding as he suspected either a ruptured ectopic pregnancy or a vascular injury. The telephone records indicate that the consultant obstetrician and gynaecologist on-call was contacted at 16:53 and he was asked to attend theatre immediately for a laparotomy. The consultant was in attendance in the theatre at 17:03.
The pneumoperitoneum was released while a laparotomy set was being prepared. The anaesthetic nurse went to the laboratory to obtain a number of units of blood and red cell concentrate. The consultant took over as the primary surgeon upon arrival. He proceeded immediately to the laparotomy. On opening it was clear that they were dealing with a major vascular injury and the consultant immediately sought the assistance of the vascular team from St. Vincent's University Hospital. This team arrived at approximately 17:35.
Despite ongoing resuscitative attempts, Mrs. Thawley's heart continued to fail and the cardio thoracic team from St. Vincent's University Hospital was called. This team arrived at 19:13. Despite further attempts to save her life, Mrs. Thawley was certified as dead at 19:57. The Coroner's inquest in June 2017 recorded that the cause of death was by reason of exsanguination caused by a laceration of the abdominal aorta due to trauma sustained in the course of a laparoscopic salpingectomy. A verdict of medical misadventure was recorded.
The death of Mrs. Malak Thawley was a profound tragedy for her husband Mr. Alan Thawley and their families. The Court expresses its condolences to them on their tragic loss.
Following the tragic death of Mrs. Thawley a number of inquiries ensued. Firstly, the hospital directed an internal inquiry on 9 May 2016 (this resulted in the NMH Report). A Coroner's inquest took place over two days in June 2017 and there was a further HSE report under the chairmanship of Dr. Peter McKenna of the National Women and Infant's Programme (the HSE Report). There is reference to a report by Mr. Lynch but, in fact, this was a contribution to the HSE Report. I will be referring to the inquest and reports later in my judgment.
Mr. Thawley commenced legal proceedings on 24 January 2017. On 25 January 2017 the hospital admitted negligence and breach of duty and apologised to Mr. Thawley. The claim was settled on 16 January 2018.
On 3 November 2017 the respondent (the Minister) directed the notice party (the Authority) to carry out an investigation under s. 9 of the Health Act 2007 (the Act of 2007).
Section 9 (as amended) provides:
'(1) The Authority may undertake an investigation as to the safety, quality and standards of the services described in section 8 (1)(b) if the Authority believes on reasonable grounds that—
(a) there is a serious risk –
(i) to the health or welfare of a person receiving those services ...
(2) The Minister may, if he or she believes on reasonable grounds that—
(a) there is a serious risk of the kind mentioned in paragraph (a) of subsection (1), and
(b) the risk may be the result of any act, failure or negligence of the kind mentioned in paragraph (b)(i)...
require the Authority to undertake an investigation in accordance with this section.'
In requiring the Authority to undertake the investigation the Minister must have believed, on reasonable grounds, that there was a serious risk to the health or welfare of a person receiving services from the hospital. It is necessary to pause for a moment to consider the implications of this decision. The Minister, through various agencies, has responsibility for the safety and welfare of patients using services provided by various health institutions, including the hospital. The hospital is a major tertiary maternity hospital in the country. Patients are frequently referred to the hospital by general practitioners, consultants and HSE units for complicated and major surgeries. In reaching his decision the Minister is stating that he believes, on reasonable grounds, that there is a serious risk to the health and welfare of persons receiving services at the hospital. The far reaching implications of this are self-evident for patients, those who refer patients and the medical and nursing/midwifery staff of the hospital. This is all the more so, as what gave rise to this decision was the tragic death of a young woman whilst in the care of the hospital.
Prior to making his decision to direct an investigation under s. 9 there were lengthy exchanges of correspondence and a number of meetings between the Minister and/or his officials involving the hospital and also involving Ms. Caoimhe Haughey of C.M. Haughey Solicitors, the solicitors acting on behalf of Mr. Alan Thawley. I will return to this correspondence and meetings in the course of the judgment but, at this point, it should be stated that the hospital accepted the need for an external review and suggested that it be carried out by the Royal College of Obstetricians and Gynaecologists (RCOG) a UK body which, in the opinion of the hospital, had the expertise to carry...
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