Not a “consent” issue – Hamilton v HSE

As much as you may not like something, there is some comfort in knowing what you are up against. You can work towards change. You can acknowledge it – face it head on. You can rally in a united stance. But this week finds pregnant women and maternity advocates in a strange limbo. We now face the unknown. A High Court judgement has changed everything – setting a terrifying precedent with broad implications for birthing women in Ireland.

High Court

On Friday last, a woman who sued Kerry General hospital over the care she received while giving birth to her second child, lost her case in the High Court. The woman had her waters artificially ruptured – ARM- (also known as “breaking the waters”) and needed an emergency caesarean section due to a cord prolapse. Further details have emerged that the woman was a known carrier for Group B Strep (GBS). (Mind the Baby Blog) The woman has indicated that she did not consent to the ARM and that it was performed by a midwife during a routine vaginal examination. Justice Ryan ruled that the woman did not make a case against the HSE and is responsible for full costs.

From the Examiner:

“Mr Justice Ryan said 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.”

“Mr Justice Ryan found that it was reasonable for the midwife involved to seek reassurance with an artificial rupture of the membranes. The midwife was the person entitled, authorised and qualified to make the decision, the judge said.”

“He added that the management of Ms Hamilton accorded with a practice supported by a responsible body of expert opinion.”

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

Read that again.

And again.

It will come to haunt you as the reality drips in.

In that one statement, Justice Ryan has eroded every right of birthing women in Ireland. Where we once thought we knew where we stood, with the National Consent Policy, we now are fighting a ghost. A notion of entitlement over birthing women’s bodies. An unapologetic exemption to use medical intervention where a midwife sees fit. And seemingly regardless of best practice or evidence! The midwife is the person entitled, authorised, and qualified to make the decision. Not the birthing woman. Not the woman in labour. The midwife. Not the woman who has to live with the consequences. The midwife. Because a judge says so.

This judgement is a ruling for Active Management of Labour. It laughs in the face of evidence based practices and high quality research. It mocks science. Who are these ‘responsible body of expert opinion’ who disregard international best practice?

This is a ruling in favour for Active Management of Labour. This is a ruling for routine admission policy. This is a ruling for speeding women up, intervention, interference. This is also a ruling which contradicts the Irish National Consent Policy, leaving a Nation of women without clear understanding of our rights.


Every Irish citizen has the right to informed consent during medical treatments. This includes the right to informed refusal. For pregnant women in Ireland, these rights are diluted and challenged by the Irish Constitution and Article 40.3.3, both of which are enshrined in the National Consent Policy.

The National Consent Policy states:

Page 41: 7.7.1 Refusal of Treatment in Pregnancy

The consent of a pregnant woman is required for all health and social care interventions.
However, because of the constitutional provisions on the right to life of the “unborn” (12), there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary.

Citation: (12) Article 40.3.3 of the Irish Constitution (1937)

Relevant factors to be considered in this context may include whether the risk to the life of the unborn is established with a reasonable degree of medical certainty, and whether the imposition of treatment would place a disproportionate burden or risk of harm on the pregnant woman.

AIMSI have been vocal in our condemnation of the National Consent Policy, and article 40.3.3, both used to violate women’s rights in pregnancy and childbirth. We have supported women threatened with the High Court. We have supported women who have been doorstepped by Child Protection. We support the survivors of symphysiotomy, brutally maimed in childbirth, in their quest for justice. We have supported women in their right to continue pregnancy, or not, and to decide how and where their baby is born – from planned caesarean section to homebirth after caesarean. We support women. We have actively campaigned on all these issues – all of which are bound by the same constraints. This is the reality of what Ireland has collectively signed up for, and as a result, pregnant and birthing women live with the consequences of restricted rights. From Symphysiotomy, Neary, Mother and Baby homes; all examples of rights lost.

Despite all this, there was some slight reassurance that a birthing woman’s right to consent and informed refusal was recognised at all in a National Consent Policy, despite these limitations. The Consent Policy stating a pregnant woman could consent or refuse treatment unless refusal “would put the life of a viable foetus at risk”.

But Friday’s judgement completely contradicts this rational.

In fact, Friday’s judgement does the complete opposite.

We are now in a situation where a woman can refuse a procedure which is shown to increase risk to her baby, but the midwife can over-rule her and do it anyway.

This woman did not consent to have her waters broken. But the midwife did it anyway. Despite the woman having known risk factors in which an ARM would put her baby at risk. And Mr Justice Sean Ryan says this is OK. He has essentially enshrined Active Management of Labour into Irish law. He has handed women’s decisions and bodies over to health care providers to do as they please.

This is NOT OK.

This month, the UN Human Rights Committee had harsh criticism on the Irish Government in its failure to secure civil and political rights. Ireland was flagged on 19 areas with a heavy focus on the rights of, and, crimes committed against pregnant women in Ireland. Ireland was publically and globally dragged over the proverbial coals. Our dirty laundry out for all to see; a unified call for the Irish Government to make good – demands for justice – send a signal of change…… This judgement is Ireland’s answer. No, we do not take women’s rights seriously and No, we will not change.

Further Information on amniotic fluid, ARM, Cord Prolapse, and Group B Strep (GBS), and AML

Protecting your baby – the important job of amniotic fluid.

Amniotic fluid is a clear, slightly straw coloured fluid which surrounds the baby in pregnancy. During pregnancy, the baby is protected in the amniotic sac, which is in the uterus, and is made of two membranes. These membranes seal around the baby and the amniotic fluid. The baby floats in the amniotic fluid safely within the amniotic sac for the duration of your pregnancy.

The amniotic fluid is constantly circulating and the amount corresponds to the baby’s growth. At the beginning of a pregnancy, the amniotic fluid will only be a few millimetres. At its peak volume, around the 36 week mark, there may have around 800ml to 1000ml of amniotic fluid. This gradually decreases until the baby is born. The baby uses the amniotic fluid to practice ‘breathing’ – swallowing fluid into the lungs and urinating it out. For this reason, the fluid levels are constantly moving.

The amniotic fluid protects the baby in the following ways:

– acts as a cushion for any sudden blows, shocks, bounces received

– maintains the right temperature around the baby

– helps mature the baby’s lungs

– protects the baby from infection – such as GBS/Strep B

– helps the baby explore movements in pregnancy – to strengthen bones and muscles

– helps mature the baby’s swallowing reflux

What is ARM?

One of the most common forms of routine interference in labour is an artificial rupture of membranes (ARM) – sometimes referred to as ‘breaking’ or ‘releasing’ your waters. To do this, the health care professional, inserts a plastic hook into the vagina and cervix to make a tear in the bag of amniotic fluid.

What the Evidence Says

Evidence does not support artificial rupture of membranes for women in normally progressing spontaneous labours or where a woman’s labour has become prolonged. The evidence shows that ARM does not shorten the first stage of labour.

ARM is on the NICE “Do Not Do” list and is shown to increase risks to women and their babies.

Despite this, most Irish units follow an Active Management of Labour policy as routine.

Active Management of Labour (AML) is an approach to labour which was created in National Maternity Hospital, Holles Street, in Dublin and is now practiced in many obstetric led units. The principal of AML is to manage the time a woman is in labour to prevent ‘prolonged’ labour. The definition of ‘prolonged labour’ has changed over time. In 1963, prolonged labour was defined as 36 hours. This was changed to 24 hours in 1968 and was finally reduced to 12 hours in 1972. The main principals of AML are that you will have your waters broken, be given frequent vaginal exams to track your progress, and that your labour is considered to be progressing if you dilate 1cm per hour. Continuous electronic foetal monitoring is also used. Women who are not dilating 1cm per hour, have labour accelerated with a drug called syntocinon.

 Risks of ARM:

* possible increase of Caesarean section
* many women report ARM makes contractions stronger/more painful
* increases your baby’s risk of exposure to infection in vaginal track (Group B Strep and others)
* does not shorten first stage of labour
* increases a risk of cord prolapse
* may increase risk of distress in the baby and cord compression
* your health care provider may introduce time limits to your labour once an ARM is done
* introduces further interventions
* ARM may cause your health care provider to recommend continuous electronic foetal monitoring
* ARM may cause your health care provider to restrict your mobility or from using a birth pool or bath

 What is Cord Prolapse?

A cord prolapse is when the cord is carried by the breaking waters before or beside the baby’s head resulting in compression of the cord which cuts off the baby’s oxygen supply. Artificial rupture of membranes (ARM) is a risk factor for cord prolapse.

What is Group B Strep?

GBS is a common streptococcus bacteria which can cause illness which lives in the digestive system, rectum & vagina.

* In the cases in which GBS is transferred to the baby, it can lead to serious health implications and be life threatening in about 1-2% of cases.

* The University of Oxford suggests 3 out of every 10 adults carry GBP and about 1 in 2,000 babies a year in England and Wales are infected. 1 in 17,000 babies in the UK will die of GBS a year.

* Babies are at increased risk of being exposed to GBS if the waters are broken (ARM). The waters act as a protective barrier for babies, keeping the baby away from the infection in the vaginal tract.

* other risk factors include: baby born before 37 weeks, previous baby born with GBS, high temperature of mother in labour, prolonged rupture of membranes, urine testing positive for GBS.

Related Reading:

Woman sues after alleged inappropriate interference during birth of her baby – See more at:

Mother who sued over care at Kerry General Hospital faces massive legal bill:

National Consent Policy:

May I break your waters? Information on Artificial Rupture of Membranes:

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