Squaring Circles: Recent Case Law on Medical Decision-Making and the Unborn

Dr Conor O’Mahony

On November 2, the High Court ruled in Health Services Executive v B that a woman could not be forced by court order to undergo a caesarean section in circumstances where her previous medical history posed an elevated risk to the life and health of both mother and child in the event of natural delivery. This is the latest in a series of recent High Court decisions that have addressed issues touching on medical decision-making and/or the rights of the unborn child. At the very least, it seems that there is some tension between the principles established in these various decisions, and it is worth discussing whether they can be reconciled.

In HSE v B, the HSE sought an order compelling a pregnant woman to have a caesarean section against her will on the basis that she had had three previous deliveries by caesarean section, and had never had a natural delivery. The risk of uterine rupture during natural delivery increases after a caesarean section. Medical evidence indicated that it reaches 1 in 150 after one previous c-section, rising to 1 in 50 following two previous c-sections. As uterine rupture can potentially result in the death of both the mother and the baby, natural delivery is not contemplated after three previous c-sections. Since the practice is unheard of in this country, expert witnesses were reluctant to put a figure on the risk, but when pressed, gave a “guesstimate” of 1 in 10.

The mother, for her part, wished to attempt natural delivery at first, while remaining open to a c-section if ultimately needed. (In the event, this is precisely what happened, and the baby was successfully delivered.) Her medical advice was that an emergency c-section would carry increased risks when compared with an elective c-section. Ultimately, her consultant declined to offer her the service due to the risks involved, and evidence indicated that no hospital in the country was willing to do so. In these circumstances, the application made to the High Court to compel the c-section.

The High Court accepted that the mother’s decision was exposing both herself and her unborn child to unnecessary risk. As regards the risk to herself, it was held (relying on Fitzpatrick v K [2009] 2 IR 7) that the mother had full decision-making capacity, and accordingly that she had the right to make a decision of this sort. As regards the risk to her unborn child, it was found (relying on Northwestern Health Board v HW and CW [2001] 3 IR 622) that the right of the State to intervene to protect unborn children could not be any greater than its right to intervene to protect born children. As such, intervention could only be justified if the case was an “exceptional” one within the meaning of the Constitution. It was found that this case did not come within this bracket, essentially on the basis that the level of intrusion on the mother’s rights was disproportionate to the level of increased risk involved in the case. The Court stated at para.19:

“The Court does not understand why she does not follow medical advice, just as it may have been puzzling why the parents in the HW and CW case did not follow medical advice. However, this Court does not believe that the increased risk which she is undertaking for her unborn child is such as to justify this Court in effectively authorising her to have her uterus opened against her will, something which would constitute a grievous assault if it were done on a woman who was not pregnant.”

Before turning to the contrast with other recent High Court decisions, numerous aspects of the judgment merit comment in their own right. First, the analogy to Northwestern Health Board v HW and CW is a less than perfect one, as that case involved a mere risk to health and not a risk to life.  However, it seems that the two decisions are probably on all fours with each other. Northwestern Health Board only contemplated intervention in the case of an “imminent” or “immediate” threat. Even though natural labour presented a one in ten chance of uterine rupture, this does not equate to a one in ten chance of death for the unborn child (which only occurs in a minority of cases of uterine rupture). Thus, it seems that the risk to the unborn child was too remote to meet the very high threshold set down in Northwestern Health Board.

Also interesting was the failure of the judgment in HSE v B to engage with the description of the threshold for intervention set down by the judges in Northwestern Health Board. Only one passage from the four majority judgments in that case was cited, and it was not one of the passages that defined the threshold for intervention. The decision in HSE v B seems really to have turned more on proportionality analysis – i.e. that the level of risk was not high enough to justify the level of intrusion – rather than on the “exceptional cases” test; but this was not fully articulated, and no case law on proportionality was cited. Neither was there any engagement with the reasoning underpinning the test set down in Northwestern Health Board (namely the protection afforded to the marital family; and it is not clear from the judgment whether Miss B was married), or with the question of whether the threshold for intervention to protect children has been in any way affected by the replacement of Article 42.5 (on which Northwestern Health Board was based) by the new, slightly re-worded Article 42A.2.1°. Instead, it was taken as read that the same test applied. Some further analysis of this issue would have been welcome.

Another notable point was the relatively absolutist language used to describe the mother’s right to make decisions for her daughter; for example, at para.30, it was stated that the mother may make a decision “even though it may not be in her daughter’s best interests”. An added layer of complexity was that unlike in Northwestern Health Board or other landmark cases like N v Health Services Executive [2006] 4 IR 374, the child did have her own independent legal representation. (It is an irony of Irish constitutional law that unborn children are afforded this privilege, but born children are not – and the insertion of Article 42A has not rectified this situation, since it only requires that children have their views ascertained where they are capable of forming them, and in any event, does not extend to cases on healthcare decision-making.) However, even having allowed counsel for the unborn to make submissions on the question of whether the reporting restrictions on the case should be lifted (which counsel for the unborn did – opposing the lifting of restrictions), the Court made its ruling on this point without even referring to submissions made on behalf of the child. Instead, it was baldly stated at para.30 that “this remains a matter exclusively for Ms. B to decide, and not a matter for the HSE to decide”. Since the HSE was not the only party opposing this matter, the failure to explain why the arguments on behalf of the child were not decisive suggests a failure to properly engage with them. Perhaps the confusion around the status of counsel for the unborn acting at a point after the birth of the child may account for this, but it is to be hoped that measures aimed at implementing the provisions of Article 42A.4 around the right of the child to be heard are taken somewhat more seriously.

Finally, perhaps the most interesting aspect of HSE v B is the evident tension between its outcome and the outcomes of two recent High Court decisions by Humphreys J. The most obvious is the decision in AB v CD [2016] IEHC 541, in which it was held that prisoners (unlike members of the general population) do not have the right to refuse medical treatment leading to their own death. The tension between the two cases arises because a decision by a prisoner to this effect has no impact on anyone other than the prisoner himself or herself – and yet the High Court ruled that the right cannot be exercised. By contrast, in HSE v B, the mother was allowed to exercise her right to refuse medical intervention, even though the effect of doing so was to create an unnecessary risk to the constitutionally-protected right to life of her unborn child. Depending on one’s philosophical standpoint, either decision might be viewed as suggesting that the other was wrongly decided – but it seems difficult to reconcile the two, short of accepting that prisoners forfeit all constitutional rights upon incarceration (which flies in the face of multiple decisions, such as State (Richardson) v. Governor of Mountjoy Prison [1980] ILRM 82 and Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, among others).

The other decision by Humphreys J that is worth mentioning alongside HSE v B is IRM v Minister for Justice [2016] IEHC 478, in which it was held that the rights of the unborn child under the Constitution are not limited to the right to life, but include other rights protected under Articles 40.3 and 42A. At para.68, it was held that “[h]ealth and welfare of the unborn must also be an actually effective right.” This expansive reading of the constitutional rights of the unborn does not sit easily with other High Court case law (most notably Ugbelase v Minister for Justice [2010] 4 IR 233), and had been strongly criticised by Mairéad Enright here. On one view, it does not contradict the reasoning of the High Court in HSE v B, since that decision was premised on the unborn having no greater rights than a born child. However, reading the two Humphreys J decisions together, it is interesting to speculate on how his willingness to override refusal of medical treatment (even where no one else was affected) in AB v CD, coupled with his concern for broad rights of the unborn in IRM, might have led him to decide HSE v B.

Finally, a brief mention should be given to PP v Health Services Executive [2014] IEHC 622, in which the High Court declined to compel the maintenance of life support for a pregnant woman who had suffered brain death. The case turned on medical evidence indicating the absence of any realistic prospect of the baby (who was at thirteen weeks’ gestation) surviving until a live birth. However, the High Court noted that the case might have been decided differently if there had been a prospect of survival:

“…when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.”

In other words, the judgment contemplates highly invasive medical intervention, without the mother’s consent, in order to save the life of the unborn. (This is a descriptive statement of the law, and not a normative endorsement of compulsory medical intervention in such circumstances.) However, this case can be distinguished from HSE v B on several grounds: first, removing life support from a pregnant woman before the foetus is viable would result in the certain death of the unborn. It therefore satisfies the “imminent” or “immediate” risk of death threshold set down in Northwestern Health Board, unlike the much more remote level of risk present in HSE v B. Second, the mother in PP v HSE was described by the Court as “no longer living”, which obviously cannot be said of the mother in HSE v B. Thus, although PP did envisage that a mother might be subjected to compulsory medical treatment to save the life of her unborn child, there is no real contradiction between that decision and the decision in HSE v B.

What should be noted is the failure to cite PP at all, notwithstanding the fact that it is the only other written judgment from an Irish court considering whether a pregnant woman may be compelled to undergo a medical procedure to protect the unborn. Perhaps because of this, the two cases approach a similar issue from very different perspectives: PP framed the issue purely in terms of a conflict between the right to life of the unborn and the right of the mother to refuse medical treatment/die a natural death/dignity. It did not examine the power of the State to intervene to protect children in exceptional cases at all, presumably on the basis that it did not view this provision as being applicable to unborn children. HSE v B, by contrast, framed the issue as one of intervention to protect the child; it scarcely mentioned Article 40.3.3°, and did not cite any case law interpreting that provision. As a result, what we are left with is parallel lines of authority rather than a coherent body of precedent, with associated question marks about whether the outcome of a future case might hinge on which of the two approaches is taken. It would be preferable to see this uncertainty resolved.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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