O'Brien v South Western Area Health Board

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date05 September 2002
Neutral Citation2003 WJSC-HC 10124
Date05 September 2002

2003 WJSC-HC 10124

THE HIGH COURT

[No. 299 J.R./2002]
[No. 281 J.R./2002]
[No. 297 J.R./2002]
[No. 341 J.R./2002]
O'BRIEN & ORS v. SOUTH WESTERN AREA HEALTH BOARD & ANOR

BETWEEN

CAROLINE O'BRIEN
APPLICANT

AND

THE SOUTH WESTERN AREA HEALTH BOARD
RESPONDENT

AND

BETWEEN

SARAH CLARKE
APPLICANT

AND

THE SOUTH WESTERN AREA HEALTH BOARD
RESPONDENT

AND

BETWEEN

MELISSA LOCKHART

AND

THE SOUTH WESTERN AREA HEALTH BOARD

AND

O'BRIEN & ORS v. SOUTH WESTERN AREA HEALTH BOARD & ANOR

BETWEEN

ANN T. BRANNICK
APPLICANT
AND THE EAST COAST AREA HEALTH BOARD
RESPONDENT

Citations:

HEALTH ACT 1970 S62

HEALTH (AMDT) (NO 3) ACT 1996 S2(1)

HEALTH ACT 1970 S62(2)

MEDICAL PRACTITIONER'S ACT 1978 S28

RSC O.84 r24(2)

HEALTH (EASTERN REGION HEALTH AUTHORITY) ACT 1999

HEALTH ACT 1970 S62(1)

HEALTH ACT 1970 S62(3)

K V NORTHERN AREA HEALTH BOARD UNREP HIGH 8.5.2002

HEALTH ACT 1970 S56

HEALTH ACT 1970 S60

SPRUYT V SOUTHERN HEALTH BOARD UNREP SUPREME 14.10.1988

R (G) V BARNETT LONDON BOROUGH COUNCIL 2001 2 FLR 877

R V EAST SUSSEX CO COUNCIL EX PARTE TANDY 1998 2 AER 769 1998 AC 714

R V GLOUCESTERSHIRE CO COUNCIL EX PARTE BARRY 1997 AC 584

CHRONICALLY SICK & DISABLED PERSONS ACT 1970 S2 (UK)

HEALTH ACT 1970 PART IV

HEALTH ACT 1970 CHP II

HEALTH ACT 1970 CHP III

HEALTH ACT 1970 CHP IV

HEALTH ACT 1953

H(D) (A MINOR) V IRELAND & ORS UNREP KELLY 23.5.2000 2000/10/3812

J (A MINOR), RE 1993 FAM 15

HEALTH SERVICES REGS 1971 SI 105/1971 ART 9(A)

HEALTH (AMDT) (NO 3) ACT 1996 S2

Synopsis:

HEALTH

Health boards

Medicine - Public health policy - Judicial Review - Obligations of Health Board to provide domiciliary midwifery services - Statutory interpretation - Financial assistance - Provision of services - Whether Health Board in breach of its statutory duty - Whether issues justiciable - Health Act, 1970 (2002/281JR; 297JR; 299JR & 341JR - O Caoimh J - 5/9/2002)

O'Brien v South Western Area Health Board

The applicants had brought judicial review proceedings seeking declarations and damages in relation to the provision of domiciliary midwifery services by the South Western Area Health Board. The applicants claimed that the Health Board had failed in its obligations under section 62 of the Health Act, 1970 and sought damages to defray the cost of hiring an independent domiciliary midwife. The Health Board contended that section 62 of the 1970 Act did not oblige the Health Board to provide the services claimed and section 62 imposed general statutory obligations on a health board for the benefit of the general public only. In addition it was submitted that section 62 conferred a discretion on health boards as to how midwifery services were to be provided and the policy of the respondent Health Board to make midwifery services available in staffed maternity hospital was intra vires the respondent and rational. The duty imposed on health boards under the Health Acts was to provide the best service based upon need, priorities and resources. In this case orders were being sought for the payment of public monies for private purposes relating to the personal choice of applicants.

Held by the Ó Caoimh J in dismissing the applications. Section 62(3) of the 1970 Act dealt with the provision of maternity services but could not be construed as providing maternity or midwifery services at a place of choice for the woman concerned. The respondent Health Board had fulfilled its statutory obligations by providing the services in question in a maternity hospital. A rational basis has been advanced by the respondent as to why the services in question would take place in a maternity hospital and the applicants were not entitled to any relief.

1

JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 5th September, 2002.

2

Each of these applicants have been given leave by this Court for relief by way of judicial review as directed against the respondents in circumstances where each of the applicants is pregnant and seeks the following relief:

3

a) an order of Mandamus or an order of injunction directing the respondent to provide the applicant with a domiciliary midwife service, that is, a duly qualified and registered medical practitioner or midwife who will assist the applicant in giving birth in her own home when the circumstances warrant that she would be transferred into hospital;

4

b) a declaration that the respondents" failure to provide a domiciliary midwife service to the applicant whether by way of direct provision of the service or defraying all or part of the costs the applicant is obligated to incur in purchasing such a service from an independent domiciliary midwife contravenes its obligations under s. 62 of the Health Act, 1970 and;

5

c) an order awarding damages for such statutory duty or for the restitution to the applicant of the sum she has been obliged to pay for the purchase of domiciliary midwife services.

6

Each of the applicants was given leave to seek these reliefs on the ground that s. 62 of the Health Act, 1970 creates a legal enforceable right in favour of the applicant.

7

At the heart of these proceedings is the interpretation to be given to s. 62 of the Health Act, 1970 which provides as follows:

8

2 "62(1) A health board shall make available without charge medical, surgical and midwifery services for attendance to the health, in respect of motherhood, of women who are persons with full eligibility or persons with limited eligibility.

9

(2) A woman entitled to receive medical services under this section may choose to receive them from any resident medical practitioner who has entered into an agreement with the health board for the provision of those services and who is willing to accept her as a patient.

10

(3) Where a woman avails herself of services under this section for a confinement taking place otherwise than in a hospital or maternity home, the health board shall provide without charge obstetrical requisites to such extent as may be specified by regulations made by the Minister."

11

The applicants" case is grounded upon an affidavit of Colm MacGeehin Solicitor who states that he is a partner in the firm of MacGeehin and Toale Solicitors of 15 Prospect Road, Glasnevin, Dublin 9. In the case of Sarah Clarke he says that he has been instructed by the applicant that she is pregnant with her second child and the expected date of delivery is in early September 2002. Mr. MacGeehin says that he is further informed by the applicant that she applied to her local health authorities, the respondent herein, for home birth services. He states that the respondents do not employ domiciliary midwifes and the applicant therefore engaged the services of Sarah P. Canning, domiciliary midwife, and pronounced her as suitable for home birth. He says that by letter of the 22 ndof April last the respondents refused to provide any financial assistance in regard to her home birth. Notified to the applicant, Sarah Clarke, was the decision of the respondent Health Board which indicated that a decision had been taken in the overall interest of patient safety and bears in mind the following:

12

1. criteria for suitability for home births per the report of the expert group on domiciliary births i.e. home births should live within 5 miles of the hospital, and also, time spent getting to a hospital in an emergency situation;

13

2. legal advice to the Board at present.

14

The respondent indicated that maternity services are provided by the Board through the general practitioners and the maternity hospitals.

15

An affidavit has been sworn on behalf of each of the applicants by Philomena Canning who describes herself as an independent midwife of 86 Loretto Avenue, Rathfarnham, Dublin 14.

16

She describes each of the applicants as clients of hers. Ms. Canning describes herself as an independent domiciliary midwife and she states that she practiced as such in Australia and in the State since 1983. She states that over the last 24 months or so the respondents appear to have adopted a more and more restrictive approach to mothers who seek to give birth in their homes rather than in hospitals. She believes that they have adopted a policy not to facilitate any such deliveries with the narrow arguable exception of mothers who come within the "domino" area, i.e. live quite near the major Dublin maternity hospitals and the delivery is to be in hospitals. She says it appears that the reason for doing so is the assertion that a home delivery in most circumstances constitutes some kind of significant danger to the mother and child.

17

This she believes to be a pretext for some other agenda and she believes that there is no scientific basis whatsoever for the attitude adopted by the respondent Health Boards. She states that most health boards in the State do not provide a domiciliary midwife service and that such service as they provide is a midwife in a hospital setting.

18

The applicant Sarah Clarke is described by Ms. Canning as being a 33 year old in excellent health and is expecting her second child due on the 25 thof September next. She states that she wants to have the birth at home and not in hospital. She applied to the respondent for a grant to pay for Ms. Canning's services as a midwife but this was refused in writing by the respondent. It appears that Ms. Clarke lives approximately one hour from Dublin but is twenty minutes from Portlaoise where there is a maternity hospital service. Ms. Canning says that Ms. Clarke is adamant that she will have her baby at home but, if complications arise and on her advice if necessary, she will transfer to a hospital. Ms. Canning does not anticipate any complications whatsoever.

19

Ms. Canning in the course of her affidavit states that this Honourable Court is not being asked to adjudicate on the question whether or not home births are a good or a bad thing. She says that since in 1970 the Oireachtas...

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