The High Court refused an application by Alan Thawley to join as a notice party the National Maternity Hospital’s challenge to a ministerial inquiry into the death of his wife, Malak Thawley.
Mr Justice MacGrath ruled on 18 July 2018 that Mr Thawley was not directly affected by the judicial review within the meaning of the court rules. The decision concerned only whether he could join the proceedings. It did not determine whether the Minister for Health lawfully ordered the inquiry.
Mrs Thawley died at the hospital in Dublin on 8 May 2016 during surgery for an ectopic pregnancy. The judgment records that she died from blood loss after an aortic injury during insertion of a trocar, and that the hospital admitted negligence. Her husband sought an independent inquiry and said he wanted to help prevent similar events.
The hospital’s judicial review challenges the Minister’s decision to direct an inquiry under section 9(2) of the Health Act 2007. The hospital alleges that the Minister lacked reasonable grounds to believe there was a serious risk to patients, acted disproportionately and unlawfully fettered his discretion. It also alleges that he was wrongly influenced by representations from Mr Thawley and his legal representatives. The Minister denies those allegations. They were not decided in this judgment.
Mr Thawley argued that the allegations affected his interests and reputation, and that he wanted to support an inquiry. The hospital opposed his application, saying the challenge concerned the Minister’s decision-making and that Mr Thawley’s legal rights would not be affected by its outcome.
The judge accepted that Mr Thawley had been most personally affected by his wife’s death and had an interest in whether the inquiry proceeded. But he found that this did not meet the legal test for joinder. The allegations concerned whether the Minister had acted unlawfully, not whether Mr Thawley had improperly influenced him. Even if his reputation were implicated, the judge said, that would not establish that he was directly affected under the rule.
The court also rejected the argument that its general jurisdiction provided a basis to join him in this application. It made no ruling on whether an arguable-case standard applied, but said that Mr Thawley had not met the direct-effect test even on that suggested basis. The application was refused. The substantive judicial review remained unresolved by this ruling.