The legal settlement did not negate the requirement for an inquiry into what exactly had happened. There were a number of questions about how the hospital had handled the matter, both before and after the termination. The hospital had agreed to conduct a review into the case, but the couple were not happy with such an inquiry because it lacked independence as it was being commissioned by the hospital.

The NMH attempted to source personnel to conduct a review through the Royal College of Obstetricians and Gynaecologists. The terms of reference for the proposed inquiry laid out how the investigation would be dealt with once completed. 

“The review report, when finalised, shall be presented to Prof Shane Higgins, the Review Commissioner, and thereafter he shall be responsible for ensuring that the local managers responsible for the service where the incident occurred implement the recommendation of the review report.”

Effectively, Mr Higgins, the master of the NMH, would be charged with implementing a report that could be critical of his colleagues, who were his peers. The couple were not prepared to accept such a review.

“How can we have faith in a review which is led by Master Shane Higgins, who was a defendant in our case and have a hospital leadership examining its own failings,” Ms Price says. 

“Proper governance standards should demand that any such process should be commissioned independent of the hospital.”

Mr Higgins would not be leading the review but as stated above he would be commissioning it and determining what action to take on completion of it.

Attempts at mediation were made but there was no satisfactory outcome. At the conclusion of the mediation process last March, a report on the matter was compiled by Peter McKenna, the HSE’s clinical director for the National Women and Infants Programme.

“The aim was that the family could obtain an acknowledgment of the significance of the event that occurred, an apology for that event, and an explanation as to how the hospital had ensured a similar event could not happen again,” the report states.

The process broke down, despite a series of meetings over three months. Dr McKenna points out that in recent years there have been two cases at the NMH in which the department felt an independent inquiry would be appropriate.

“The first case was a maternal death and this current case involving a termination is the second. In both cases the personnel suggested by the institution [the NMH], to do the review, were appropriate and their integrity beyond reproach. 

"What can be said is that the independence of the review could be called into question if it was organised by the institution in which the adverse event took place. That the funder of the service [department/minister] cannot mandate an independent review seems inappropriate, indefensible and ultimately unsustainable.”

Yet that is the position as it pertains to voluntary hospitals. The Minister for Health has absolutely no power to order an inquiry into a catastrophic event, despite the State being the sole funder of the service. 

For instance, the three maternity hospitals in Dublin have voluntary status. By contrast, the main maternity hospital in Cork is HSE run. In the event of an incident requiring investigation in Cork, Hiqa can carry out any review by law. In the voluntary hospitals, any such investigation can only be commissioned by the hospital, robbing it of, at the very least, the perception of independence.

A spokesperson for Hiqa said the body had a remit to conduct a statutory investigation on any service which is directly provided by or funded by, the HSE.

“Acute voluntary hospitals are funded under Section 38 of the Health Act 2004 and, as such, Hiqa can both monitor them or conduct a statutory investigation,” the spokesperson said. 

“Hiqa does not have a remit to investigate individual cases — this responsibility falls to the provider in the first instance.”

There is a provision in law for the minister to inquire into a specific incident in voluntary hospitals in specific circumstances under Section 9 of the Health Act 2007. This can be invoked if there is reason to believe a particular incident indicates there is an ongoing problem that could place others in danger. Such a provision was invoked by the minister for health in 2017 following a tragic incident at the National Maternity Hospital the previous year.

Malak Thawley was expecting her first baby with her husband Mark when she died at the NMH on May 8, 2016, during surgery for an ectopic pregnancy. In a subsequent High Court action, it was stated that what happened was “a cascade of negligence” and “one negligent act after another”. 

There had been controversy around the tragedy when it was earlier stated that somebody in the hospital had to run to a nearby pub to get ice because there was none available in the hospital. This was later given proper context when it emerged that ice can’t be stored in hospitals due to risk of infection.

The hospital did commission two external examiners to conduct an inquiry, but despite that, then health minister [Simon Harris determined a Section 9 inquiry by Hiqa was merited. A HSE report into the case backed such a course of action.

“Internationally it is recognised that the potential for learning from some patient safety incidents is so great, or the consequences to patients, families and carers, staff or organisations so significant that these incidents warrant a comprehensive response.” 

The NHM challenged the direction in the High Court and won. And so the minister’s capacity to order an inquiry into a voluntary hospital went up in smoke.

In the ruling on that case, Judge Charles Meehan concluded “there is agreement between the hospital and the minister of the need for a further review. This should be followed up so that the lessons learned from this tragedy can be applied across the health service and such a tragic event avoided in the future.” 

Despite that, there was no further independent review in line with one as mandated by Section 9.

Nearly four years after the High Court ruling, the Government has yet to amend the law to ensure the minister retains the capacity to order an investigation. A spokesperson for the Department of Health told the Irish Examiner the case was reviewed and an amendment to Section 9 was drafted in December 2019.

“The department is bringing forward an amendment to clarify and strengthen the Minister for Health’s powers to request an investigation by Hiqa,” the spokesperson said. “The bill is due to go to the committee stage shortly.”

That is little comfort for Rebecca Price and Pat Kiely. It also remains to be seen whether the new National Maternity Hospital will, in this respect, continue to be governed in the same manner. The Department of Health refused to say whether this would be the case.

“A draft legal framework has been developed to copperfasten the clinical and operational independence of the new hospital and to ensure the protection of the State’s investment. Work is ongoing to finalise the legal arrangements, however, the minister will not be making any further comment on the nature of this engagement until the process has concluded.”

Meanwhile, there continues to be something of a stand-off between the Price/Kiely family and the National Maternity Hospital over a review of their case. 

In a statement to the Irish Examiner , the NMH said it had been working hard to establish an independent external review since the tragic death of baby Christopher. The statement outlines why the hospital will not acquiesce to a request by the couple to appoint Peter McKenna as chair of the review, as, in their eyes, this would provide it with a modicum of independence.

“We fully respect the expertise of Dr McKenna as national clinical director of National Women and Infants’ Health Programme, but it was felt it would not be appropriate for him to chair the independent review given his role in the design and oversight of the State’s termination of pregnancy service. However, the hospital communicated in July 2020 that they were happy to add Dr McKenna as a member of the proposed review team.

“Independent scrutiny is a crucial element of a proper medical oversight and our efforts to undertake the review underpin our commitment to ensure that this situation never happens again. The care of women, and providing safe and compassionate support to parents, remains at the centre of NMH’s services.”

Rebecca Price and Pat Kiely remain of the opinion that they cannot accept a review commissioned by the hospital.

“We are extremely disappointed that 31 months after the wrongful termination of our son, Christopher, there still has been no independent, external investigation into what happened at the NMH,” Ms Price said.

“We have exhausted all avenues to get an independent review established, going through two mediation processes, meeting with two ministers for health, the chief medical officer and multiple people within the HSE and the Department of Health, yet no independent review has taken place. There is every chance that this has happened before and could happen again unless a root cause analysis and robust safety structure is implemented.”