The High Court last week rejected a case taken by University lecturer Aja Teehan who sought to secure orders compelling the HSE to grant her application for a home birth.
Ms Teehan is due to give birth to her second baby on 13th October and wants to have her baby at home, assisted by an independent midwife. The HSE however refused her request, relying on a policy of refusing to cover home births for women who previously had Caesarean section births. Ms Teehan has a six year old daughter born by Caesarean section and was therefore ineligible for a home birth under the policy.
Ms Justice Iseult O’Malley issued a 21-page written judgment in which she concluded that there was no statutory obligation on the HSE to provide for a home birth service. She also stated that it was not the role of the Courts to change the criteria for women who wanted to have a home birth as this would be a clinical decision based on assessment of the risks involved.
It was interesting that Justice Iseult O’Malley found indemnity insurance to be “at the heart of the problem”. The HSE has an agreed memorandum of understanding (MOU) with independent midwives who assist with home births. This does not indemnify independent midwives for potentially risky births including vaginal birth after Caesarean section (Vbac), which applies to Ms Teejan. Justice O’Malley acknowledged that it is not possible for obstetricians and midwives to practice without insurance and she recognised the absolute need to have in place liability insurance for claims of obstetric negligence.
The decision of Justice O’Malley may be disappointing but it is not surprising. The Court will always be extremely reluctant to intervene in clinical assessments of risk or to compel any party to perform a specific act. The decision does serve to highlight the predominance of obstetric-led maternity services in Ireland. It also acknowledges that claims in relation to births account for a very high proportion of medical negligence claims. We can perhaps take from the decision that the availability of indemnity insurance may an underlying factor in determining the type of maternity care available to women, in some instances eclipsing their informed decision of the type of maternity care they would choose to receive.
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