Hospital fears inquiry into Thawley death may have ‘chilling effect’

The National Maternity Hospital claims a new inquiry arising over the death of a woman during surgery for an ectopic pregnancy will have a "chilling effect" on the operation of maternity services.

The hospital was on Monday given permission by the High Court to challenge the Minister for Health’s decision to order the Health Information and Quality Authority (Hiqa) to carry out a statutory investigation into patient safety issues there. The inquiry includes the practise of surgery taking place outside of core hours and the readiness of hospitals to respond to major emergencies in such circumstances.

Malak Thawley (34), a teacher and a US citizen, died at the hospital on May 8th, 2016. Two weeks ago her widower, Alan Thawley, settled an action over her death for compensatory damages. The court heard the doctor who carried out the surgery was an inexperienced junior surgeon and was not supervised.

Paul Gallagher SC, for the hospital, said it was his client’s case that the Minister was acting outside his powers in ordering a new inquiry into the circumstances of the case given three other reports into the death of Ms Thawley had already taken place. One was carried out by the hospital itself, another by the HSE and there was also a coroner’s report.

The hospital’s own review had resulted in the implementation of changes to ensure there is no recurrence of what happened in the Thawley case and they were backed by the HSE, the coroner and Hiqa, counsel said.

The Minister had fettered his discretion by telling Mr Thawley that whatever about the HSE report, he would still order an inquiry into the matter. This was effectively giving a third party the discretion as to whether an investigation would be ordered, counsel said.

A statutory inquiry requires that it must be on foot of a specific concern but the Minister had implied that it was because the provision of all hospital services outside core hours was unsafe, counsel said. This is an irrational position and outside the Minister’s powers, he said.

Undermine confidence

In an affidavit for the proceedings, Rhona Mahony, master of the hospital, says the new investigation, under Section 9(2) of the Health Act 2007, will undermine clinical and public confidence and could be counter-productive in its effect on national maternity services.

It will have a “chilling effect” on the ability of clinicians to deliver high risk and emergency care in an already challenging environment, both at the hospital and nationally, she says.

As regards the readiness of hospitals to respond to such emergencies, Dr Mahony said a very rare vascular complication of the severity sustained by Ms Thawley carries a high rate of mortality even if addressed immediately. The hospital had unreservedly apologised to Mr Thawley, she says.

There is no evidence that the Minister’s decision to hold an inquiry meets the statutory threshold for a Section 9 inquiry, she says.

The Minister had pre-determined whether a fourth investigation was necessary and in doing so, prior to the publication of the HSE report, the Minister had effectively conferred that decision on Mr Thawley, she says.

The hospital is not opposed to a fourth investigation but believes the type of inquiry ordered by the Minister will have serious implications for its operations and affect public confidence, she says.

Instead of a Section 9 inquiry, the hospital has suggested an independent expert body such as the Royal College of Obstetrics and Gynaecology UK should be appointed to conduct a further investigation.

Mr Justice Seamus Noonan granted the hospital permission to bring judical review proceedings against the Minister, with Hiqa as a notice party, and said the case can come back to court next month. The application was made on a one-side only represented (ex parte) basis.