Teehan -v- Health Service Executive & anor, [2013] IEHC 383 (2013)

Docket Number:2013 470 JR
Party Name:Teehan, Health Service Executive & anor
Judge:O''Malley J.
 
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THE HIGH COURTJUDICIAL REVIEWRecord No. 2013/470 JRBetween/AJA TEEHANApplicant-and-THE HEALTH SERVICE EXECUTIVEFirst Named Respondent-and-MINISTER FOR HEALTHSecond Named RespondentJudgment of Ms. Justice Iseult O'Malley delivered the 16th August, 2013Introduction1. The applicant is a pregnant woman who is expecting her second child on 13th October, 2013. Her first child was delivered in hospital by way of caesarean section in April, 2007. As a result of concerns arising from that experience the applicant wishes to deliver her second child by way of vaginal birth in a home setting. The first named respondent ("the HSE") has refused to provide her with a home birth service. The issue arises from the fact that, under a Memorandum of Understanding ("the MOU") governing the relationship between the HSE and self employed midwives, clinical indemnity is not available to midwives attending at a home birth if, inter alia, the mother has previously had a caesarean section. This policy is based on a view that vaginal birth after caesarean ("VBAC") is not safe in the home setting.2. The applicant does not seek a mandatory order that midwifery services be made available to her for a home birth. Rather, she claims that the respondent has fettered its discretion and applied a blanket policy without assessment of her individual suitability. She has researched the issues involved and has concluded that the risks associated with home births are, in her case, minute. She considers that if she attends a hospital for the birth she is more likely to undergo a repeat caesarean section, which also carries risks. She is fully aware that, should a home birth not progress or should anything give rise to concern she would have to transfer to hospital immediately.3. In summary, the reliefs sought are: certiorari of the decision; a declaration that the failure to consider her case on its merits amounts to the application of a "blanket" policy and fetters the discretion of the HSE; a declaration that the second named respondent's policy on home birth services and its implementation by the HSE, precluding the provision of a service to mothers who have had a previous caesarean section (irrespective of their individual circumstances or the evidence) is unlawful; a declaration that the HSE's refusal, along with the threat of criminal sanctions for any medical practitioner who attends such a home birth, violates the applicant's rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, and an order of mandamus directing the HSE to consider the applicant's request in accordance with law.4. The reference to the "threat of criminal sanctions" is a reference to s. 40 of the Nursing and Midwives Act, 2011. This provision is not yet in force.5. The respondents contest the justiciability of the policy in question and further argue that it is a policy based on sound medical considerations, adopted in order to safeguard the life and health of mothers and babies.The Memorandum of Understanding6. The importance of the MOU lies in the fact that professional indemnity insurance in this area of work has become unavailable in the private market.7. In 2002 the State-backed Clinical Indemnity Scheme was introduced in response to the fact that private insurance companies would no longer offer cover to obstetricians and gynaecologists. The CIS covered all public hospital employees but not the self-employed midwives. The latter were, at the time, members of the Irish Nurses Organisation. INO membership benefits included professional indemnity insurance, and it continued to include coverage for private sector nurses and self-employed midwives until 2008, when it ceased to provide this facility.8. The State then offered the self-employed midwives participation in the CIS, but only on the basis of adherence to the terms of the MOU drawn up specifically to provide a framework for their relationship with the HSE.9. The MOU itself has its origins in the report "Delivery on Choice: Homebirth options for women in Ireland" published in 2008 by the National Implementation Committee. This Committee had been set up to implement the 2004 Domiciliary Birth Report, put together by the Chief Executive Officers of the then-extant Health Boards and accepted as a working document by the newly-established HSE. The membership of the Committee and its sub-groups comprised a range of practitioners, officials and consumer representatives.10. By the time of publication of the report in 2008 the issue of insurance for midwives was a significant problem and the Committee devised the MOU as part of its strategy to fulfil the primary objective of "provision of a safe, evidence based homebirth service for low-risk women".11. It is perhaps worth noting that in the foreword to the report, the Chairperson of the Committee observed that"Proponents and opponents of a Homebirth option for low risk women are, in equal measure, both passionate and resolute in the pursuit of their respective objectives.The arguments for and against the provision of a homebirth option for women are well documented. Experience both here and in other health care services demonstrates that it is possible to provide for a homebirth option, with an associated but acceptable level of risk, which can be managed to maximise the safety of both mother and child ....... Given that there is no statutory obligation on the HSE to provide for maternity services in settings other than hospital or maternity units, there are many who would say there are too many associated risks for either mother or child, to make it feasible for the HSE to provide such a service ...... The withdrawal of insurance cover for self employed community midwives by the INO could have made it impossible to have the option of homebirths in the Republic of Ireland ... "12. 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. The SECM must be registered in the Midwives Division of the Register of Nurses held by An Bord Altranais and operate within its Code of Conduct and Scope of Practice. The services to be provided are defined as"such services as can appropriately be given by the SECM and which the SECM, having conducted a Risk Assessment, has established that it is safe to provide such services, the provision of which are not contra-indicated".13. The Schedules to the MOU cover a range of topics including payment for the service provided by the SECM, professional conduct and practice, performance management and reporting, continuing professional development, complaints and so on.14. There then follows a series of Tables. Table 1 sets out a list of medical conditions "indicating increased risk suggesting planned birth at an obstetric unit." Table 2, with which this case is concerned, deals with "other factors suggesting planned birth at an obstetric unit". These are grouped into four categories relating to previous pregnancy complications; current pregnancy; fetal indications and previous gynaecological history. Caesarean section comes into the first category.15. Tables 3 and 4 deal respectively with medical conditions and other factors "indicating individual assessment when planning place of birth". These range from cardiac disease without intrapartum implications to female circumcision.16. Tables 5 and 6 deal with issues that may arise during or after labour and are not relevant to this case.17. In summary, a SECM who adheres to the MOU will be paid for his or her services by the HSE in accordance with the schedule of fees set out therein and will be covered for medical malpractice claims. The provision of services where Table 1 applies is "contra-indicated" and will result in loss of cover.18. Having regard to the history and genesis of the MOU, the second named respondent in these proceedings says that the relief claimed by the applicant in respect of the policy is misconceived insofar as it refers to it as his policy. He does, however, endorse and support it.Correspondence between the applicant and the HSE19. When the applicant became pregnant for the second time she carried out her own research as to her options. She was anxious to avoid a hospital delivery because she felt that certain interventions by hospital staff on the previous occasion had led to the caesarean section. Having regard to the risks associated with a repeat caesarean she felt that she would be safest giving birth at home.20. As the applicant lives in Thomastown, County Kilkenny, she contacted the Designated Officer for home births in the counties of Kilkenny and Carlow, Ms. Eithna Coen, and explained to her that she wished to have a VBAC in a home setting. She was told that HSE policy precluded home birth services for women who have had caesarean births. Ms. Coen suggested that the applicant contact Ms Sarah Philomena Canning in Dublin. Ms. Canning is a very experienced self­ employed community midwife who has sworn an affidavit in the case, considered below. The applicant proceeded to do so and received a reply from Ms. Canning on the 14th May 2013."Thanks for getting in touch and you're by no means alone as I regularly get enquiries about homebirth after caesarean but as you're already aware previous c/section excludes you from the HSE homebirth scheme in operation here since 2008. It isn't clear to me why Eithne Coen has given you the application forms and referred you to me as she would be aware the terms of the scheme are applicable nationwide. I'm sorry if your hopes have been raised as I must confirm on behalf of the HSE that your application for homebirth is declined on grounds of your previous c/section and it's important to also understand there's no room whatsoever for negotiation on it.You should also...

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