7 points on the High Court’s refusal to force a woman to undergo a C-section against her will
Posted on November 2, 2016 by Krysia
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These points relate to the case of HSE vs B. The in-camera reporting of the case was lifted on 2nd November 2016, over a month after the original case was heard. The case relates to the HSE who took a heavily pregnant woman, Ms B to the High Court to seek an order for a forced sedation and c-section against the woman’s consent.
- This case is clear proof of what AIMS have been saying for years now; that the HSE coercively use the existence of the 8th amendment to the Irish Constitution against birthing women. The fact that they tried to prevent their defeat in this case being publicly reported is cause for ongoing concern about their continued desire to use the 8th amendment as a tool of coercion in this way, both in hospital wards and in the courts.
- That this woman had the support and strength to go and vindicate her right to informed refusal in the High Court whilst heavily pregnant makes her very unusual. Ms. B deserves our very great thanks for publicising this practice by the HSE.
- Whilst a case with a formal judgement such as this is unusual, AIMS Ireland are aware of many cases in which heavily pregnant women have been threatened “with the guards coming to get them” if they don’t turn up for their scheduled induction. In fact a cohort of women reported such statements are regular commentary at antenatal classes at one particular hospital. AIMSI can also confirm that there are other women who felt they had no other option than to be coerced into a section they did not freely consent to.The fear of being taken to the High Court and being sedated for forced obstetric procedures is usually enough to ensure that women comply with whatever the HCP may be suggesting whether it is evidenced based or not.
- AIMS Ireland are aware of these situations in a variety of settings and geographic locations. It is not limited to large tertiary referral hospitals or to smaller units. It is endemic and a result of article 40. 3. 3 which informs the HSE National Consent Policy, enabling High Court Actions to be taken against pregnant women who exercise their right to informed refusal of medical treatment.
- The ruling makes clear that the 8th amendment can be, and is used against women in continued pregnancy and birth. It finds in this particular instance that the threat to the baby’s life is not great enough to warrant forcibly sedating and sectioning a woman, but it gives us no examples of when that threat might be great enough. This leaves the door open to the HSE to continue to interpret this “risk” as they please. It enables women to be forced into processes and procedures such as CEFM (Continuous Electronic Fetal Monitoring) which the evidence base acknowledges does not improve outcomes for mothers or babies.
- The judge’s comments on Ms. B having to bear the whole financial weight of any potential care baby B would have needed shines a light again on an issue that AIMS Ireland have repeatedly highlighted; that of babies who need lifelong care from injuries acquired at birth only being financially supported if someone is found to be ‘at fault’ for those injuries.AIMS Ireland have long argued that instead of the State Clinical Indemnity Scheme paying out huge sums in compensation and families needing to pursue litigation, a care fund should be established, from which monies can be allocated for the lifelong care of any child injured at birth without the need to assign blame.
- Ms. B’s decision to request a c section despite having been vindicated in her right of refusal goes to prove AIMS Ireland’s position that women’s experiences of their care are differentiated entirely by whether their autonomy is respected or not, rather than what form their birth actually takes. It is clear that Ms. B did not want to avoid a section at all costs including her own health and the health of her baby, but instead to be supported by her healthcare providers in her decision to attempt a trial of labour as far as she felt was safe, with the most information and support she could obtain available to her. AIMS Ireland is delighted that Ms. B fought and won this right for herself, and by extension all other women in Ireland in her position.
Ultimately this case highlights supporting a woman’s right to weigh risks for and against each care option and make the best decisions for her in her current circumstances taking on board her medical history. The unit refused to engage and instead decided threatening her & taking her to court was the best option. And they were backed by our National Health Service under Constitutional personhood law. The foetus, like many other cases, had its own legal representation against its mother.
If we want to make it about “risk”, if discussing the 3% chance of uterine rupture, we must discuss all the risks and that it’s up to the woman to weigh them out. There are real and substantial risks in repeat Caesarean; most severe maternal morbidities in Ireland (the near misses) are involving repeat Caesarean section. There are no absolutes in maternity care, it’s about balancing risk and making the decision you feel safest in *at that moment * with scope to revisit the issue if medical indication arises. As in this case. The woman requested a Caesarean when she no longer felt vbac was a safe option. Women are not stupid. Women do not take risks. They make good decisions for themselves and their baby. They need to be supported, not violated and threatened.
Find out more on this case here http://www.irishtimes.com/news/crime-and-law/judge-refused-to-order-woman-to-undergo-caesarean-section-1.2852130