by Caroline Crowley March-18-2013 in Healthcare Law
Caroline Crowley, Partner, recently acted for a hospital in seeking a Court Order to compel a pregnant woman to undergo a caesarean section.
The pregnant woman at the centre of the case was, according to the hospital, 13 days overdue. The mother disputed her estimated delivery date. Doctors had formed the view that the placenta was aging and the blood supply to the baby was diminishing, increasing the risk of intra-uterine death. The situation was complicated by the fact that the woman had undergone a previous caesarean section in December 2010 which had left a scar on her uterus. Doctors felt that if the scar ruptured during a natural delivery, there would be a grave risk to the woman and her baby. At the time of the Court application, the results of the latest CTG trace scan (which monitors a baby’s heart rate) were not reassuring. In these circumstances, doctors treating the patient felt that a caesarean section was required however consent was not forthcoming.
At an emergency sitting of the High Court, Senior Counsel, Eileen Barrington, instructed by Hayes solicitors, asked the Court to grant an Order permitting the hospital to perform a caesarean section in the absence of the patient’s consent.
The crux of the case facing the Court was the balancing of a woman’s right to refuse treatment against the right to life of her unborn child. In the Irish context, this balancing act is complicated by the provisions of the Constitution which oblige the State to protect the right to life of the unborn, as well as granting rights to privacy and bodily integrity. In other jurisdictions, such as England and the United States, the weighing of rights as between the woman and the foetus has been avoided on the grounds that the foetus is not regarded as an independent person until it is born.
Eileen Barrington SC submitted to the Court that in light of the unique position afforded to the unborn child in the Irish constitution, the foetal right to life should supersede the maternal right to self-determination particularly in circumstances where the risk to the mother from a caesarean section was relatively low. She suggested to the Court that in the circumstances presenting in this novel case, it would not be disproportionate to grant the Order sought.
Ultimately, matters were overtaken by events. As Mr. Justice Hedigan was adding the final full stop to his ruling, the patient at the centre of the case agreed to undergo a caesarean section. In these circumstances no Order was required and the caesarean section proceeded.
The cases raises complex questions concerning the conflict that can arise between the patient’s right to autonomy and the right to life of the unborn child and how to properly balance those occasionally competing rights. While the case brings to the fore significant constitutional issues which merit detailed consideration in the wider context and are particularly topical at present, it is perhaps most important, certainly from the perspective of the parties involved, that a satisfactory resolution was achieved in this case.
For further information, please contact Caroline Crowley at ccrowley@hayes-solicitors.ie.
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About the Author
Caroline Crowley
Caroline practices in the Healthcare team at Hayes solicitors. She has over 25 years’ experience in civil litigation with particular emphasis on professional negligence including medical, dental and veterinary negligence. She has extensive experience in cerebral palsy and high value catastrophic injury claims.