Teehan v Health Service Executive & Min for Health

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date16 August 2013
Neutral Citation[2013] IEHC 383
CourtHigh Court
Docket Number[2013 No. 470 JR]
Date16 August 2013

[2013] IEHC 383

THE HIGH COURT

Record No. 470 JR/2013
Teehan v Health Service Executive & Min for Health
JUDICIAL REVIEW
Between/
AJA TEEHAN
Applicant
-and-
THE HEALTH SERVICE EXECUTIVE
First Named Respondent
-and-
MINISTER FOR HEALTH
Second Named Respondent

NURSING & MIDWIVES ACT 2011 S40

R v PORT OF LONDON AUTHORITY, EX PARTE KYNOCK 1919 1 KB 176

BRITISH OXYGEN LTD v MIN OF TECHNOLOGY 1971 AC 610

MISHRA v MIN FOR JUSTICE 1996 1 IR 189

MCDONAGH v CLARE CO COUNCIL UNREP O'SULLIVAN 19.7.2002 2002/19/4958 2002 IEHC 78

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

TERNOVSZKY v HUNGARY UNREP ECHR 14.12.2010 (APP NO 67545/09)

O'BRIEN v SOUTH WESTERN HEALTH BOARD UNREP SUPREME 5.11.2003 2003/42/10165

M (D) (A MINOR) v IRELAND & ORS 2012 1 IR 697 2012 2 ILRM 305 2012/9/2311 2012 IESC 10

HEALTH ACT 1970 S62

SPRUYT v SOUTHERN HEALTH BOARD UNREP SUPREME 14.10.1988

HEALTH ACT 1970 S62(3)

HEALTH ACT 1970 S62(1)

HEALTH

Health services

Statutory body - Provision of services - Maternity services - Home birth - Discretion on statutory body to provide home birth service - Blanket policy - Right to choose place of birth - Right to respect for private life - Liability for risk - Whether statutory body obligated to provide for home birth - Whether guidelines unreasonable - Whether unreasonable fettering of discretion - O'Brien v South Western Area Health Board (Unrep, SC, 5/11/2003) applied - British Oxygen Co v Bd of Trade [1971] AC 610; MD (a minor) v Ireland [2012] IESC 10, [2012] 1 IR 697; McDonagh v Clare County Council [2002] 2 IR 634; Mishra v Minister for Justice [1996] 1 IR 189; Rex v Port of London Authority. Kynock, Ltd, Ex parte [1919] 1 KB 176; Spruyt and Wates v Southern Health Board (Unrep, SC, 14/10/1988) and Ternovszky v Hungary (App No 67545/09) (Unrep, ECHR, 14/12/2010) considered - Health Act 1970 (No 1), s 62 - European Convention for the Protection of Human Rights and Fundamental Free-doms 1950, article 8 - Relief refused (2013/470JR - O'Malley J - 16/8/2013) [2013] IEHC 383

Teehan v Health Service Executive

Facts: The applicant was a woman who was pregnant for the second time and who had applied to the first named respondent (the 'HSE') to facilitate a vaginal birth at her home following her experience of delivering her first child by caesarean section in a hospital setting. This decision was made pursuant to a Memorandum of Understanding ('MOU') between the HSE and self employed midwives which outlined how such midwives were not clinically indemnified by the HSE for such procedures as a result of the belief that a vaginal birth after a caesarean section ('VBAC') was not safe in a home setting. The applicant launched judicial review proceedings claiming that the risks associated with VBAC at home in relation to her specific circumstances were minimal but that the HSE"s policy did not leave room for discretion where suitability was established. The reliefs sought were an order of certiorari quashing the HSE"s decision; a declaration to the effect that the HSE"s policy on this issue was unlawful because it did not leave an option of a discretion in appropriate circumstances; a declaration that the policy violated 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.

Expert medical evidence was submitted by the applicant in support of her application. The report of a Mr Richard Potter, a consultant obstetrician and gynaecologist, outlined that the biggest risk involved in VBAC in a home setting was the delay in transferring the patient to hospital for an emergency caesarean section should the need arise. However, he considered that the risk to the applicant was much reduced as she thoroughly researched the relevant issues and was fully aware of the risks involved and the need to transfer to a hospital immediately if any difficulties arose. Mr Potter therefore concluded that any delay in attending a hospital for emergency caesarean section would be minimal thus reducing the risk. Other expert evidence suggested that VBAC was the safest option available though it was admitted that there were few studies available on VBAC in a home setting. In those circumstances, it was argued by the applicant that the HSE should incorporate a discretion for special circumstances into its policy of VBAC in a home setting.

In response, the respondents submitted medical experts" reports which concluded that there was little consensus between health professionals as to the risks involved in regards to home births never mind VBACs in a home setting. Due to the lack of conclusive studies, it was argued that the risk assessment contained within the MOU was correct and that the policy of refusing to indemnify midwives for such a procedure in a home setting was justified.

Held by O"Malley J that O'Brien v. South Western Health Board made it clear that there was no statutory right to a home birth. This clearly suggested that the HSE"s policy of offering home births only in particular circumstances was lawful. It was also said in that decision that the HSE was entitled to adopt whatever policy guidelines it desired provided they are not "wholly unreasonable". In those circumstances, the applicant was obliged to show that the HSE"s policy of refusing all VBAC in a home setting was unreasonable.

On consideration of the applicant"s expert reports and the fact that the MOU had been drafted in accordance with extensive statistical research with its policies were justified by same, it was held that the applicant had been unable to sufficiently demonstrate that the HSE"s policy on VBAC in a home setting was wholly unreasonable. It was further held that the Court was of the opinion that the applicant was not asking the HSE to consider her case on its specific circumstances, but to accept the burden of liability for a risk that it had reasonably determined was better avoided. It was pointed out that the HSE was entitled to provide maternity services in such a way as to minimise any risks to the health of the mother and child.

Relief sought refused.

Introduction
1

The applicant is a pregnant woman who is expecting her second child on 13 th 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 Understanding
6

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...

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