The High Court says we can't say no - Mind The Baby

The High Court says we can’t say no

So the High Court rubberstamped a human rights violation last week. In the same fell swoop, it also gave a big fat thumbs up to denying a pregnant woman’s right to informed refusal; removing a woman’s right to be the decision-maker and expert of her own body; and supporting provider preference for delivering non-evidence based care. The country was up in arms! Oh wait, hang on…

…nobody even bloody noticed. The Irish Examiner seems to be the only newspaper that covered it, presumably because our other two broadsheets didn’t deem it newsworthy enough. And yet now we’re basically in a situation where a judge has said that a midwife – and not the labouring woman under her care – is the person “entitled, authorised and qualified” to make a decision about performing an unnecessary intervention in labour even when a woman has refused consent.

Let’s back up a minute. What am I talking about? A woman sued Kerry General Hospital following the birth of her second baby by emergency Caesarean section. The C-section became necessary after the midwife attending the woman performed an obstetric intervention called an amniotomy or artificial rupture of membranes (ARM), where she used a crotchet-like needle with a hook on it to break the woman’s bag of waters around her baby. The ARM resulted in a cord prolapse – where the umbilical cord moves down the birth canal before the baby’s head – and is a very serious complication of birth with significant risk. The woman claims that the midwife performed the ARM against her wishes and was a unnecessary intervention in her normally progressing birth that led to long term consequences for both herself and her son.

It isn’t reported in the Examiner, but it is understood that the woman was also aware that she had tested positive for Group B Strep and ran a small risk of passing on this serious infection to her newborn baby. Group B Strep can be passed from a mother to her baby in the birth canal but the bag of waters around the baby acts as a barrier to the infection once it is intact. Prematurely releasing the waters as routine practice increases the chances of the infection passing from mother to baby.

In a nutshell, something really bad happened here. Something that has serious consequences for every current and future childbearing woman in this country. Let’s break it down into the event itself and then the High Court decision.

The event itself

The woman suing Kerry General claims that the midwife caring for her broke her waters without her permission after she expressly said she didn’t want them broken. Until it is confirmed, we can only surmise that the woman was also likely to know that breaking her waters could have additional implications on top of the normal risks of ARM, given her positive Group B Strep status.

The routine breaking of waters by health care professionals is considered to be bad practice, is not evidence-based and in fact is listed on the NICE Guidelines DO NOT DO list. However, it is regularly practised in Irish maternity units and is considered a key element of the Active Management of Labour philosophy. It is a bad thing. It can lead to cord prolapse – like in this poor woman’s case, it can increase your chances of having a Caesarean section and it has not been proven to shorten labour. Some women report that it made a manageable labour more intense and out of their control. In short, unless your baby is showing signs of distress, it should simply not be done.

This woman’s normally progressing labour ended with a cord prolapse and an emergency Caesarean section due to an unwanted intervention that was performed without her consent. Potentially, there were further implications if the baby went on to develop Group B Strep, but again I don’t know this.

The High Court Judgement

Mr Justice Sean Ryan decided last week that all of the above is fine by him. It’s so fine by him, in fact, that he threw the case out and awarded costs against the woman to the HSE. Here’s what the Examiner reported:

“the midwife at Kerry General Hospital and the hospital responded in a competent manner to the situation which arose when Ms Hamilton was having her second baby”

He found that:

“it was reasonable for the midwife involved to seek reassurance with an artificial rupture of the membranes.”

But hang on though. What was she seeking reassurance for? The woman claims that her labour was progressing normally and that the procedure was performed without her consent. Was there an obstetric emergency that hasn’t been reported that required ARM? It doesn’t look like it.

“The midwife was the person entitled, authorised and qualified to make the decision, the judge said.”

Frankly, this statement should have us marching in the streets. This is the human rights violation right here. A third party is not entitled to make a decision to perform a procedure on anybody when they have refused it or even without seeking their informed consent. They are also not authorised to do so. They may be qualified to make a decision but the ultimate decision-maker in ANY medical procedure is the person receiving the treatment.

Except now Justice Ryan has said its okay. It’s fine for healthcare professionals to performed non-evidenced based interventions on our bodies without our permission and in fact to over-ride our refusal. We’re not allowed to say no. Or maybe that should be, we can say no but it doesn’t matter what we think, it’s the HCP who is “entitled, authorised and qualified”.

There’s many other comments he made that I could pick holes in all day, including finding out who these medical experts were who supported the midwife’s non-evidenced based practice and said it was acceptable standard practice (which is it most definitely not), but I’ll let you read the article yourselves and draw your own conclusions.

But let me just finish off with this: this case needs to go to the Supreme Court. It mightn’t if the woman in question can’t afford the risk of losing and having further costs awarded against her, but it really needs to, because based on this judgement, woman’s voices and their bodily autonomy have just been ripped away. We need to get them back.

We should all be shit scared. Because something really scary just happened, and nobody gives a damn.

UPDATE Wednesday 6 August 15:05pm:

It has been confirmed this afternoon that the woman at the centre of this case alleged that she did not consent to ARM because she was not informed that the midwife in question had any intention of performing it in the first place. So the intervention was performed without the woman’s knowledge. Justice Ryan has judged that performing an intervention that is not based on evidence or best international practice without the knowledge or consent of a labouring woman is acceptable and appropriate. Even in this case where the intervention itself caused an obstetric emergency and had long term negative consequences for both mother and baby. Where does the average woman who has an intervention during labour without her permission or knowledge but doesn’t have such serious long term effects stand? If the action in this case has been deemed appropriate in the High Court, God help us all.

UPDATE Thursday 7th August: A support fund has been established to help the Hamilton family with the significant financial burden of paying both their own legal costs and those of the HSE. 15,000 people have read this blog post so far. Only half of these people donated just one euro, it would go very far towards helping this family out. Don’t let our health and courts system think it’s okay to shut us up and prevent us from pursuing our rights in the courts by awarding punitive costs against families who have been brave enough to fight for them.

You can donate here:

Related Posts:

Hamilton v HSE: An update and clarification

photo credit: Scott* via photopin cc

55 thoughts on “The High Court says we can’t say no”

    1. The judge awarded costs against the woman so she not only has her own legal fees to pay for a High Court case but also the fees of the HSE’s ridiculously expensive legal team. Taking it to the Supreme Court is dependent on her having the means to cover the cost of losing again which, let’s face it, very few people in Ireland could. The only other possibility is if her legal team decided to represent her for free at Supreme Court level but again in that case, she could still be liable for the HSE’s costs if she did lose. God help us all if she did.

  1. That’s frightening. And strange that it didn’t make the news – even from the perspective that it’s so often a misunderstood and controversial topic, where for every person arguing that the woman should have the ultimate right to refuse any procedure, there is another arguing the opposite.
    I had my waters broken during my third labour, and it definitely made the pain worse – I had no idea that there was any reason to refuse, which is my own fault for not reading up on everything beforehand. But hopefully people will read this and be better informed.

    1. Absolutely not your fault Office Mum, not your fault at all. Your healthcare providers are ethically obliged to make sure that you understand and consent to any intervention before it is performed. It was your midwife or doctor’s job to inform you.

    1. “Routinely appalled” – I like that Emily. It’s just such a disgrace that it’s our ongoing state of affairs when it comes to women’s rights in this country. I won’t be surprised if we see this discussed at a UN committee in a few years/decades time…

  2. I hadn’t heard of this story at all until I read your article. I’m horrified. This is the same argument that was used to justify symphysiotomy – ” We know what is best for you and you have no rights over your own body”. This needs to be more widely known.

  3. any decent lawyer out their that is worth their salt should go visit this lady and hear her story in greater detail because this sounds like she needs better representation, i’m no legal expert by any means but reading the article it sounds like a supreme court positive judgement would see a serious $$$ for the violation of her human rights by the HSE, no win no fee representation fees is obviously the way to go.

    1. I can’t but agree Kieran but I think the biggest issue is even if she has pro bono representation at the Supreme Court, she could still get hit for the HSE’s legal costs which would be exorbitant. The High Court got it badly wrong this time. We’d like to think that the Supreme Court would get it right but unfortunately Ireland isn’t known for falling down on the side of human rights, as our recent trip to the UN once again confirmed.

  4. I am disgusted that women’s rights seem to have retreated to the dark ages in Ireland. Judge Sean Ryan did not do his job properly and aren’t Irish taxpayers paying his salary? It doesn’t take much to ask for all the facts on both sides. Did he even listen to testimony from Ms Hamilton’s medical experts? It seems that women are only viewed as vessels once they are pregnant and all bets are off when it comes to bodily autonomy and medical decision-making. Grrr….

  5. Yet again I’m shocked and horrified by the treatment of women by the medical establishment & by their own government. My question is what can we do about this?

    1. I don’t know the answer to that one Gwen. I think in an ideal world, some wealthy person would swoop in at this stage and guarantee to cover the costs of a Supreme Court action. Money, money, money – as we all know so well in this country.

  6. That’s the scariest thing I have read all year. When people say Ireland is the safest place to give birth, I don’t think they look at the fine print. It may be the safest because they can keep you and your baby alive, but at what psychological cost to you?

  7. Hang on, we’re missing information here. We’re told the midwife was responding to a situation which had arisen, but nowhere does it say what the situation was. This article says that the woman claimed labour was progressing normally, but the original Examiner article includes no such claim. This article also says she refused the ARM, but they went ahead anyway, but the original article doesn’t say she declined it at all, she may simply have regretted it given what happened. There is also the possibility that she felt underinformed when she consented, but basically there are facts missing, the idea of a High Court Judge ignoring Right of Refusal in any case seems ridiculous to me, there has to be more to this story. I suspect that fully informed I’ll still disagree with the judge on this one, but there isn’t nearly enough information to assess that here.

    1. Richard, the Examiner article says that “there was an alleged, inappropriate interference in the progress of Ms Hamilton’s labour by the performance of the artificial rupture of the membranes and allegedly causing the complication of cord prolapse to occur”. The defence appears to have agreed that latter occurred but have denied the former.

      Take a look at this article from the Irish Times which covered the first day of the case. (This link will expire in a couple of months for anyone who is coming to this late)

      They have not been reported in a newspaper as of yet but additional details of the case are emerging elsewhere online and obviously need verification. But there’s more to this than meets the eye, I agree with you. I think we’ll see further details emerging in the next few days/weeks. Have a look at some of the comments on this AIMS Ireland Facebook thread:

      I’m not sure if you’re familiar with our national consent policy produced by the HSE? You can read it here. When it comes to right to refusal in our courts system, all things are not equal when you’re talking about a pregnant woman. Article 40.3.3 has direct implications for any pregnant woman and the policy does state this.

  8. Could someone please organise crowd funding for the appeal? If Ireland’s supreme court also rules against the woman I think it should go to the European Court of Human Rights. It’s easiest if people can use PayPal. Thanks

    1. I think this is a great idea Margaret but any fundraising would need to be done with the family’s permission. They may not want to pursue this any further at this stage.

  9. This story horrifies me to my core. Could be set up a kickstarter or similar to raise funds for her legal bill? I would be happy to donate.

  10. This is awful and outrageous. So let’s actively help. Can a gofundme page be set up to pay the woman’s current legal bill debt and the legal fees to mount a Supreme Court challenge? If every women in Ireland gave €2 united wouldn’t there be enough money to demand we be treated as human beings. This is the same patriarchal control that had the syphitiosomy women held down by nurses and sawn in too. Please let us have a productive outlet for this fury in active solidarity with this woman.

  11. AIMS Ireland have been inundated with support and offers of help for the Hamilton family following the loss of their case in the High Court against Kerry General. A fund had been established to help them with their legal costs. You can donate at the link below. Please share wherever you have seen discussion and support on this important issue:

  12. In a country where the active management of labour was conceived, still widely used and sold to other countries as the only way to have a baby, why did this lady attend a hospital that routinely practices this system? Surely the lack of birthing choice for women in Ireland should be considered more closely, especially if we are no longer allowed to refuse consent to out dated practices?

    1. I get what you’re saying Karen but I suppose a pregnant women in Kerry has only two maternity choices really. She can have a homebirth with a self employed community midwife if she is low risk and there’s a midwife available – or, she has to attend the local maternity hospital. Women really only have multiple choices in maternity care in Dublin and the surrounding areas where they can access a few different care types but the reality is most woman are limited by what’s available locally to them. Consultant-led care represents over 90% of care in Ireland and is the only option that is available right across the country. Even with the various options in Dublin, you have to be very well informed in the first place to not only know what your options are, but also how quickly you have to move after a positive pregnancy test to get the option that you want. When the majority of women visit their GP to confirm their pregnancy, usually the options presented are “private” or “public”.

      1. That’s exactly my point, by being left with limited choice most women end up at a hospital where antenatal care and birth are typed up as a standard “one fits all” set of policies and procedures, with little to no care in the postnatal period. This case only highlights how medicalised care is now the social norm.

        1. Sorry yes Karen, we’re completely on the same page. I’m not sure if you saw the article in Broadsheet yesterday – there’s a link to it above in the comments – but the comments underneath reflect how accepting we are as a society of this medicalised care model. An awful lot of people are trying to figure out what the problem with this case is…

  13. Kind of scary how I have completely missed this – I go off facebook for 4 days and I didn’t hear about it in the media??? Sudden realisation that we are really preaching to the converted a lot of the times. But what next – surely this can’t be let stand. How do we Shout Back…

  14. ok now i am a man but my own experience of Kerry hospital isnt better!!!!!
    I was admitted in Kerry hospital years ego (2003) after a building accident. I was operated on by a unknow doctor to me and then the local doctor took credit. The treatment by the latest after operation were more than rough, especially on my left foot wish was totally rebuild (in some case even a nurse a nurse asked him to take it easy!) Later on my foot started to rote ! the doctor never saw this happen, if not the good nurse who knows what could have happen!!!(in between a young nurse came to clean my very smelly rotting foot making a disgusting face!!!! thanks alot ) during this incident i was bounced around by 2 incompetent plastic surgeons who argued in the front of me leaving me in shock (until again a nurse told them to %%%%%off) My left wrist was in a very bad condition too but the doctor told me that it will be just fine even if months after months it s condition did not get better, even after therapy etc ( now i ve lots most of my capacity to use it, after few years it got worse , i can barely hold my plate with it never mind carrying my kids) my injury were not fake, this days i suffer of daily pain (about 10 years later) but at the time when i was to be compensated my doctor did more than the minimum on stating the facts!! i do not live in Ireland any more (asia) but i wish i could come over and see his face again and maybe go to some news paper! INCOMPETENT !!! My life is a nightmare as i was told by a doctor that the bones in my foot were not put back properly so they havent healed ether.
    Any way i support you

  15. I’m actually on the fence with this one. I do think we know our bodies but when it comes to Obstetrics, it is important to trust in your Midwife (this case aside-and there will always be cases where they get it wrong, just as doctors do. Yes they shouldn’t, but mistakes happen; we’re just human, right?).
    I’m more disturbed by the fact that everyone is second guessing their Midwife. At the end of the day, they are the professional. Our bodies can’t be trusted to do the right thing, that’s why sometimes, intervention is needed. And I speak from experience here! Anyway, totally prepared for you to all jump down my throat now! Go ahead!

    1. No throat jumping at all Mummytothree but I think we might be talking about two different things. No one is second guessing the midwife. Yes, midwives and doctors are the experts in supporting normal and complicated births but it’s their job to give their expertise and the mother’s job to make a decision made on that expert advice. No one had the right to take the decision making from us. If a healthcare professional recommends a course of action, it’s up to is to make a decision on how to proceed. No health are professional should just go ahead and do something to a woman without telling them, nevermind getting their consent, particularly when it’s not an emergency situation.

      1. Just wanted to add, if a woman decides that she’s happy to hand over the decision making process to her doctor or midwife, that absolutely her choice and as legitimate as any other if it works for her.

  16. At face value, it seems to me that the European Court of Human Rights would see this for what it is. Unfortunately, before being allowed to appeal to the ECHR, national appeals must be exhausted so it will have to go to the Supreme Court before it can go to the ECHR.

    I hope the support fund raises sufficient to allow these appeals. The Irish establishment must learn that it does not own women’s bodies and neither can it make it decisions for women about their birth choices.

  17. This is dreadful news. In my first induction I had ARM at 2cm and the dr didn’t tell me it was going to happen. I complained to him personally immediately because he didn’t ask me. I told him it was my body and he needed my permission to do something to it-he was completely gobsmacked. The midwife grinned throughout and returned to my bedside shortly afterwards to say well done for standing up for myself. Now God knows where I got the courage to do it from but I have never been so proud of myself. Women need to stand up for themselves in labour-we can’t let medical professionals bully us. But to do that women need to be more informed before hand. I don’t subscribe to the ‘is better not to know’school of thought. Women need to know how labour could and should be given the right supporting circumstances instead of a 12hour deadline!

  18. I went for a sweep around my due date and didn’t know what to expect. She was telling me what date they will induce me if I didn’t go into labour to which I replied no, it would be my choice and I haven’t made that decision yet. She went ahead and did the soo called “sweep” proceedure using a long tool. It’s only now I’m pregnant again and wanted to read more into the sweep procedure as my labour was difficult to say the least.
    It now appears it’s not right to use a amniotic hook for a sweep proceedure. I believe she fooled me due to the altercation not to be induced and sent me on my way saying extra discharge normal. In reality I believe I was slowly leaking my waters without knowing. Mid labour during an attempted home birth, the midwife kept asking are you sure your waters haven’t broke, I can’t feel any.
    Makes me sick to my stomach what risks she took without my knowledge or concent. I thought that’s how a sweep was performed until now.

    1. Jo, I’m so sorry to read this happened to you. It’s never okay for any health professional to perform a procedure without your consent. Congratulations on your pregnancy! Wishing you all the best x

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