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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.

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