by Caroline Crowley September-17-2013 in Healthcare Law
The High Court recently held that a woman was not entitled to a declaration that a decision by the HSE, effectively preventing her from having a home birth, was unlawful.
Aja Teehan applied to the HSE for a home birth of her second child, due later this year, and was refused in accordance with the HSE’s policy of not providing clinical indemnity to self employed Community midwives attending home births where the mother has previously given birth by Caesarean section. Ms Teehan’s first child had been delivered by Caesarean section 6 years ago, but she argued that the risks of now having a vaginal birth at home were, in her case, minute.
Following an unsuccessful engagement with the HSE, Ms Teehan sought judicial review of its refusal on the basis that it had applied a blanket policy without considering her individual suitability and that a policy denying a home birth to a mother who had previously given birth by Caesarean section irrespective of her individual circumstances was unlawful. In short, she claimed that the guidelines by virtue of which she had been refused a home birth were unreasonable in that they were inflexible. Judge Iseult O’Malley held that she was not entitled to the declarations sought.
Self employed Community Midwives were historically excluded from the Clinical Indemnity Scheme after it was introduced in 2002 but were able to avail of professional indemnity insurance through membership in the Irish Nurses Organisation until 2008 when the INO ceased to provide this facility. The State then offered self-employed midwives participation in the Clinical Indemnity Scheme provided they adhered to the terms of a Memorandum of Understanding (MOU). According to Judge O’Malley “The MOU in effect constitutes a contract between the individual self employed community midwife (“SECM”) and the HSE. In it the HSE sets out “guidelines and a clinical governance framework for the provision, control and supervision” of the community midwifery services provided by the SECM.”
Provided a SECM adheres to the Memorandum of Understanding he or she will be paid by the HSE for their services and will be covered for medical malpractice claims should something go wrong. Such clinical indemnity is lost in certain circumstances including where a home birth is provided to a woman who has previously had a Caesarean section on the basis that vaginal deliveries after Caesarean (VBAC) were safer in hospital.
In giving judgment, Judge Iseult O’Malley pointed out that although there is an obligation on the HSE to provide maternity services, there is no statutory obligation on it to provide a home birth service (O’Brien v South Western Area Health Board) although it may, in the exercise of its discretion, do so if it considers it appropriate. She also pointed out that the HSE is entitled to adopt such policy guidelines associated with the provision of home birth services as it sees fit provided they are not wholly unreasonable. She concluded that the guidelines contained in the MOU where the outcome of a careful and prolonged process and were based on, and justified by, extensive statistical evidence.
In refusing the declarations sought, Judge O’Malley stated “The effect, therefore of the claim made by the applicant in this case would be to compel the HSE to accept, or rather, to consider in good faith whether it should accept liability for a risk that it does not believe is justifiable. As a matter of law I do not consider that she is entitled to that…the applicant is not just asking for her case to be considered on the merits, she is asking that the HSE assume the burden of liability relating to a risk that it considers, on reasonable grounds, is better avoided”.
Judge O’Malley subsequently made no order as to costs meaning that both sides were obliged to bear their own costs, and Ms Teehan did not have to pay the HSE’s costs.
The judgment in Teehan v Health Service Executive and another [2013] IEHC 383 given by Judge Iseult O’Malley on 16 August 2013 is available on Courts.ie.
In a separate case, the Coroner for Mayo yesterday returned a verdict of misadventure after the tragic stillbirth of a baby boy in May 2011 following an abandoned home birth. According to reports of the Inquest, the full term infant’s heartbeat began to decrease during prolonged labour. On admission to Mayo General Hospital, some 14 miles from the family home, staff were unable to find a heartbeat and the baby was declared stillborn.
In reaching his verdict, the Coroner recommended that:
- The burden of a home delivery is too great for a midwife to bear alone and steps should be taken to ensure that no midwife dealt single-handedly with a home birth.
- Ambulance services should be notified of planned home deliveries.
- The distance of the home to the hospital is a factor to be considered in planning a home birth.
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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.