Caesarean Section Refusal in the Irish Courts: Health Service Executive v B

Abstract

In the Irish High Court case of Health Service Executive v B, it was held that a competent woman could not be forced to have a caesarean section against her will notwithstanding the fact that her refusal increased the risk of injury and death to both her and her unborn child.¹ This case is of particular interest since it is the first reported case on caesarean section refusal in Ireland. This commentary provides a critical analysis of the judgment, focusing on aspects of the law on informed consent and the way in which the judge reached the conclusion that an order for an enforced caesarean section should not be made. It is argued that, while the outcome can be justified, the reasoning appears at times to be unpersuasive.

I. INTRODUCTION

The case of Health Service Executive v B and Anor (HSE v B)² is the first reported case on caesarean section refusal in Ireland and is, therefore, important in articulating how the right to life of the unborn under Article 40.3.3º of the Irish Constitution should be interpreted in cases where this right comes into conflict with a woman’s right to refuse medical treatment. Much of the focus regarding the interpretation of Article 40.3.3º to date has been on the issue of abortion, with relatively little guidance as to how the provision is to be interpreted in the context of treatment refusal by a pregnant woman.³ The case is also of interest more generally because there are few Irish cases concerning treatment refusal, meaning that it also provides an insight into the requirements for informed consent. This commentary explores the court’s reasoning relating to the requirements for informed consent and to the decision that a caesarean section should not be enforced. It is argued that, while this case provided an opportunity to engage with issues of informed consent and treatment refusal by a pregnant woman, there are some issues regarding capacity which could have benefited from further exploration. Furthermore, it is argued that the reasoning regarding the conflict between the constitutional rights of the pregnant woman and the unborn child is unpersuasive.⁴ This is, however, understandable given the ex tempore nature of the judgment and the limited time for engagement with the central issues, which are often characteristic of treatment refusal cases.⁵

II. FACTS AND JUDGMENT

This case involved a woman, Ms B, who refused to consent to an elective caesarean section at 40 weeks gestation. Since Ms B had given birth three times previously by caesarean section, the medical advice was that natural birth would pose a risk of uterine rupture, which could lead to the death of both Ms B and her unborn child.⁶ The consultant obstetrician who gave expert evidence in this case estimated that there was a ‘1 in 10 chance of Ms. B’s uterus rupturing and a consequent risk of serious injury, even death, to the unborn and Ms. B if she were to proceed with a natural birth’.⁷ It was also stated that even if a natural delivery were attempted and uterine rupture did not occur, a caesarean section would still be medically advisable.⁸ The Health Service Executive (HSE) applied for an order from the High Court that it would be lawful to force the woman to have a caesarean section ‘in order to vindicate the life of her unborn child’.⁹

Twomey J began the judgment with the issue of informed consent and held that the presumption of capacity was not rebutted.¹⁰ It was stressed that if this case involved a decision affecting B’s health alone, she would be entitled to refuse but that this was ‘a more difficult issue because of Article 40.3.3º of the Constitution which protects the right to life of the unborn’.¹¹ This states that:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

In seeking to resolve these seemingly competing rights, the judgment relied on the Irish Supreme Court case of North Western Health Board v HW and CW.¹² In that case, it was held that a Health Board could not compel parents to allow their child to have a test to screen for biochemical or metabolic disorders, known as the PKU test and that courts would only substitute their decisions for those of parents in ‘extreme, and therefore exceptional cases’.¹³ In HSE v B, Twomey J stated that:

… the right of the Courts to intervene in a parent’s decision in relation to an unborn child could not be any greater than the Court’s right to intervene in relation to born children. Accordingly, the principles laid out in the HW and CW case regarding the right to the Courts to intervene in a parent’s decision are equally applicable to this case.¹⁴

He then addressed whether the case before him was ‘an exceptional case’ which warranted such state intervention as set out in HW and CW.¹⁵ In considering this, he relied on the wording of Article 40.3.3º, which states that the right to life of the unborn must be protected ‘as far as practicable’.¹⁶ Noting that the HSE requested the court to authorise the use of ‘such reasonable and proportionate force and/or restraint’ to perform surgery upon Ms B against her will,¹⁷ he stated:

If Ms. B was not pregnant, the performance of invasive surgery upon her, against her will, would be a gross violation of her right to bodily integrity, her right to self-determination, her right to privacy and her right to dignity.¹⁸

Given these considerations, Twomey J stated that:

… this Court does not believe that the increased risk which she is undertaking for her unborn child is such as to justify this Court in effectively authorising her to have her uterus opened against her will, something which would constitute a grievous assault if it were done on a woman who was not pregnant.¹⁹

On one reading, the judgment appears to state that in this particular case the risk which is posed to the unborn child does not reach the threshold of exceptionality to justify state intervention within the definition of HW and CW, but that in future cases, this threshold might be reached.²⁰ However, Twomey J also stated, ‘… this Court concludes that it is a step too far to order a forced caesarean section of a woman against her will …’.²¹ This seems to indicate that given the ‘grievous assault’ which would be done to the woman by enforcing an operation upon her against her will, such an intervention would not be justifiable in seeking to vindicate the right to life of the unborn, regardless of the risk level posed to its life.

III. CRITICAL ANALYSIS

A. Capacity and undue influence

The reasoning in this case begins with the matter of Ms B’s capacity. Capacity has been the subject of relatively little judicial development in Ireland, with the notable exception of Fitzpatrick v K in 2008.²² Following the English case of Re C,²³ Laffoy J set out that there is a presumption of capacity, which can be rebutted if the patient has not comprehended and retained the treatment information, has not believed it, and has not weighed it (including the alternative choices and likely outcomes) in the balance in arriving at the decision.²⁴ This test has been more recently set out in the Assisted Decision-Making (Capacity) Act 2015 (ADMA). Although this act is yet to be commenced, it sets out the presumption of capacity to make a decision,²⁵ which can be rebutted if a person is unable to understand, retain, use or weigh that information or to communicate the decision.²⁶ Section 83(2) is clear that an adult with capacity is ventitled to refuse treatment for any reason notwithstanding that the refusal appears to be unwise, at variance with sound medical principles, or may result in his or her death.

One issue relating to capacity that warrants attention in this case is the requirement for understanding. It is apparent from the facts of the case that there is a difference of opinion regarding the risk of uterine rupture. Ms B thought that the risk to her life and the life of the foetus posed by uterine rupture was 3%, while the obstetrician estimated a 10% risk. The issue which arises is whether this discrepancy means she misunderstood the risks as explained to her. There is also a question as to whether the risk of 10% was only brought up in court but not explained to her. It could also mean that, having been told of the estimated 10% risk, she did not believe it. This raises the question about the extent to which failure to believe information regarding treatment affects a person’s understanding.²⁷ While it is not present in the ADMA, one of the limbs of the test to rebut the presumption of capacity in Fitzpatrick v K is whether a patient ‘has not believed the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient’s death, has not believed that outcome is likely’.²⁸ The nature of the ‘understanding’ requirement of the capacity test and the duty of care incumbent on doctors to disclose material risks about medical treatment to their patient are important questions, the particular nuances of which could have been more fully addressed in the judgment.

Another point regarding capacity in this case is that the HSE raised the question of whether Ms B ‘was being unduly influenced by a doula, or birthing assistant, who was constantly with her and was introduced to Nurse and Midwife C as Ms B’s friend’.²⁹ The case of Fitzpatrick v K endorsed the Re T³⁰ test for assessing voluntariness, stating that the court or doctor ‘… must be satisfied that the patient’s will was not overborne in such a way that the refusal will not have represented “a true decision” …’.³¹ Given the lack of law on undue influence in Ireland, it is regrettable that this case did not provide further clarity on the application of the law in this area.³² Further guidance would have been welcome, since undue influence can invalidate consent and has serious implications for patient autonomy. However, it was stated that, on the evidence, the court had no reason to believe that the presumption of capacity was rebutted, and therefore no further guidance was set out in this case.³³

B. The right to life of the unborn and caesarean section refusal

As noted, the right to life of the unborn is protected under Article 40.3.3º of the Irish Constitution. Notwithstanding that the original purpose of this article was the prohibition of abortion,³⁴ the wording does not indicate that the right to life of the unborn is only relevant in this specific context.³⁵ In this respect, Twomey J was clear that the right is engaged in the context of caesarean section refusal. While acknowledging that a competent person can refuse treatment,³⁶ he stated that:

the refusal of Ms B to follow medical advice, in the context of her unborn child, is a more difficult issue because of Article 40.3.3º of the Constitution which protects the right to life of the unborn.³⁷

In seeking to resolve this conflict, Twomey J cited the case of North Western Health Board v HW and CW wherein it was held that, in cases involving decisions for children, courts would only substitute their decisions for those of parents in ‘extreme, and therefore exceptional cases’.³⁸ Twomey J reasoned that the court’s right to intervene in a woman’s decision regarding an unborn child could not be any greater than its right to intervene for born children and that the principle in the HW and CW case was equally applicable to this case.

However, a number of points can be made about this reasoning. First, it can be argued that the principles of HW and CW are not equally applicable to HSE v B. The HW and CW case is about court intervention in parental decision-making for a born child in circumstances in which the parents’ decision would not have a potentially fatal impact on the child.³⁹ In contrast, HSE v B is about interfering with a woman’s decision about her treatment and potential intervention on her body in circumstances where there is thought to be a risk to both her own life and that of an unborn child. Secondly, the HW and CW case is clear that in exceptional circumstances the state should intervene in parental decision-making, and this approach is illustrated in later cases. For example, in South Western Health Board v K in 2002 an order was made to ensure that a child received treatment which would reduce the risk of the transmission of HIV.⁴⁰ Similarly, in Temple Street v D in 2011, an order was made allowing for a blood transfusion to be administered to a three-month-old baby, notwithstanding the refusal of his parents to consent.⁴¹ Therefore, the principle from HW and CW is clear: the state will intervene in parental decision-making in ‘exceptional circumstances’ and this will be the case where the child’s life is at risk. If the HW and CW principle applies to the unborn, where the life of the unborn is threatened, state intervention can be argued to be justified. While the exact risk to the life of the unborn was not clearly set out in HSE v B, it appears that the woman’s refusal of a caesarean section was resulting in a risk of death to the unborn child,⁴² and therefore state intervention would arguably be justifiable under the HW and CW principle.

Twomey J held that in considering whether this was an exceptional case, the court had to take account of the wording of Article 40.3.3º which states that the right to life of the unborn must be protected ‘as far as practicable’.⁴³ He noted that the HSE requested the court to authorise it ‘to use “such reasonable and proportionate force and/or restraint” to perform invasive surgery upon Ms. B against her will’.⁴⁴ Bearing this in mind, he stated that:

… this Court does not believe that the increased risk which she is undertaking for her unborn child is such as to justify this Court in effectively authorising her to have her uterus opened against her will, which would constitute a grievous assault if it were done to a woman who was not pregnant.⁴⁵

Therefore, the judgment appears to state that while the right to life of the unborn must be protected, an enforced surgical intervention is not ‘practicable’ in this regard. However, it can be argued that the judge’s use of the ‘as far as practicable’ limb in Article 40.3.3º to decipher the meaning of ‘exceptional’ in HW and CW is unclear, since the meaning of ‘exceptional’ was in fact interpreted in later case law, as detailed above.

As noted, the judgment can also be read as stating that the increased risk which Ms B is posing to the unborn is not sufficient to justify intervention. However, the judgment does not clearly articulate the risk level which is posed to the life of the unborn in this case or the risk level which might justify intervention. In addition, the position that an enforced caesarean section could be ‘practicable’ in one set of circumstances and not in another is unclear. The judgment should have instead focused on the specific clash of rights at issue, concentrating on the interpretation of the woman’s right to refuse treatment when it comes into conflict with the right to life of the unborn child, drawing on relevant precedents in the area.⁴⁶

C. Balancing rights: the rights of the unborn

In Ireland, much of the focus regarding the right to life of the unborn has been in relation to abortion. The Protection of Life During Pregnancy Act 2013 (PLDPA) sets out when a medical procedure can be carried out to end unborn human life.⁴⁷ It states that a medical procedure ‘in the course of which, or as a result of which, an unborn human life is ended’ is permissible where ‘there is a real and substantial risk of loss of the woman’s life from a physical illness’.⁴⁸ The risk of loss of life may also be posed ‘by way of suicide’.⁴⁹ In both circumstances, it should be the case that ‘the risks can only be averted’ by carrying out the procedure.⁵⁰ However, ending a pregnancy and refusal of a caesarean section, which is thought to be needed to protect the life of an unborn child raise distinct issues. While terminating a pregnancy will generally result in the death of the unborn,⁵¹ refusal of a caesarean section by a pregnant woman often presents a threat to its life. Neither Article 40.3.3º nor the PLDPA provide direct guidance on the level of risk which must be posed to the life of the unborn to justify state intervention.⁵² In other words, while there is guidance on the circumstances in which a pregnancy can be terminated, there is little guidance as to the level of risk that must be posed to the life of the unborn through a woman’s refusal to have a caesarean section, which would justify state intervention.

Additionally, judicial statements on this point have been unsupported by reasoning. For example, in South Western Area Health Board v K and Anor a woman refused to undergo a treatment which would reduce the risk of transmitting HIV to her foetus. Finnegan P advised the woman that if she refused to give birth in a hospital, he would have to make ‘much more serious orders affecting her bodily integrity’.⁵³ However, since this is an unreported judgment, that there is no guidance as to how a balance should be struck between the constitutional rights at issue.

The recent case of PP v Health Service Executive gives some insight into the extent of foetal rights.⁵⁴ In that case, the High Court declined to make an order for the continuation of life support for a pregnant woman who had been declared brain dead, in order to enable the unborn child to become viable and be delivered by caesarean section. However, it was noted that the case might have been decided differently if the unborn had a greater chance of survival, seemingly indicating that highly invasive medical intervention could be justifiable in certain circumstances.⁵⁵ It was stated that:

… when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.⁵⁶

The issue in the PP case is again distinct from a case of caesarean section refusal. The argument that life-prolonging treatment should be imposed on a brain dead woman to protect the life of the unborn does not necessarily mean that surgical intervention on a competent woman is justifiable. While the right to life of the unborn is protected under Article 40.3.3º, the pregnant woman also has right to refuse treatment, stemming from her right to bodily integrity, privacy, and dignity which have been recognised as constitutional rights under Article 40.3 of the Irish Constitution, as discussed further below. In this situation, balancing of the relevant rights is required, and any relevant law on treatment refusal by competent adults should be drawn upon to resolve this tension.

D. Balancing rights: the right to refuse treatment

There are strong judicial statements in relation to a person’s right to refuse treatment in the Irish Courts. In In Re a Ward of Court, involving cessation of artificial nutrition and hydration from a woman in a near persistent vegetative state, the Supreme Court held:

Medical treatment may not be given to an adult person of full capacity without his or her consent … The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.⁵⁷

The right to refuse treatment, or the ‘right to patient autonomy’, has been held to be one the ‘personal rights of the citizen’ which are protected by Article 40.3 of the Irish Constitution.⁵⁸ It has also been interpreted as an aspect of the constitutional rights to bodily integrity,⁵⁹ privacy,⁶⁰ and dignity⁶¹ which are also protected by Article 40.3.⁶² As was noted above, the right of a competent person to refuse treatment is also set out in the Assisted Decision-Making (Capacity) Act 2015. The PP case is also clear that Article 40.3.3º does not mean that women’s right to dignity and respect for autonomy can be disregarded.⁶³

Instead of relying on the reasoning of the HW and CW case, the judgment should have addressed the direct conflict of constitutional rights at issue. The reasoning should have relied on the rationes decidendi of In Re a Ward of Court and Fitzpatrick v K, to clearly set out the constitutional rights of the pregnant woman, in assessing how the balance should be struck between these rights and the right to life of the unborn child.

In relation to how the balance should be struck, guidance could also have been drawn from both English and European human rights law. It might be thought that the English case law is not illustrative for the Irish jurisdiction, since the foetus has been held not have a separate legal personality.⁶⁴ However, in the English Court of Appeal case of St George’s Healthcare Trust v S, involving a woman who refused a caesarean section which was medically advised due to pre-eclampsia, Judge LJ undertook a balancing of competing interests.⁶⁵ Regarding the foetus, he stated that ‘[w]hatever else it may be, a 36-week foetus is not nothing; if viable, it is not lifeless and it is certainly human.’⁶⁶ His Lordship went on to balance the sanctity of life principle against the rights of the woman and stated:

When human life is at stake the pressure to provide an affirmative answer authorising unwanted medical intervention is very powerful. Nevertheless, the autonomy of each individual requires continuing protection even, perhaps particularly, when the motive for interfering with it is readily understandable, and indeed to many would appear commendable … .⁶⁷

One of the very strong arguments in deciphering where the balance should be struck between the competing interests relied on the fact that the law would not compel parents to undertake interventions against their will for the benefit of born children.⁶⁸ Judge LJ stated that if persons were compelled to agree to interventions for the sake of others, or rendered helpless to resist, ‘the principle of autonomy would be extinguished’.⁶⁹ The argument expounded in this judgment is that the law must closely guard the right to autonomy and to avoid concessions in the case of pregnant women. The justification for not over-riding pregnant women’s autonomy is strengthened by the fact that the law would not force a person to undergo an intervention to save another’s life. Given the careful balancing of interests, the judgment could have been used as persuasive authority in HSE v B.⁷⁰

Moreover, European human rights law should have been relied upon.⁷¹ In A, B and C v Ireland, for example, in determining whether Ireland’s legal position on abortion amounted to an breach of the applicants’ right to private and family life under Article 8 of the European Convention on Human Rights, it was held that the protection of pre-natal life pursued the legitimate aim of the ‘protection of morals’.⁷² In deciding whether the interference with the applicants’ Article 8 rights was proportionate to the legitimate aim pursued, the court examined whether the prohibition of abortion for health and/or well-being reasons ‘struck a fair balance between the applicants’ rights under Article 8, on the one hand, and the profound moral values of the Irish people regarding the need to protect pre-natal life, on the other.⁷³ The reasoning in HSE v B should have addressed whether an enforced surgical intervention strikes a ‘fair balance’ in this respect. Given that a caesarean section requires an anaesthetic, a surgical incision, and carries risks to the pregnant woman, it could be argued that an enforced caesarean section does not strike a fair balance and is not ‘proportionate to the legitimate aim pursued’.⁷⁴

IV. CONCLUSION

The case of HSE v B concerns central issues in Irish medical law, ranging from capacity, undue influence, the right to refuse treatment, and the protection of the right to life of the unborn. As it is the first reported case on caesarean section refusal, it presented an opportunity to clarify important points of Irish law. It was argued that the case could have benefited from further engagement with the concept of ‘understanding’ in the interpretation of the test to rebut the presumption of capacity. Furthermore, the reasoning for the decision that a woman should not be compelled to undergo a caesarean section against her will was unpersuasive and lacking in clarity. The reliance on the HW and CW case led to a lack of direct engagement with the competing rights at issue. A clearer articulation of the content and scope of a pregnant woman’s right to refuse treatment in circumstances where the right to life of the unborn may be threatened should have been undertaken with reliance on existing Irish constitutional law, guidance from English law and jurisprudence from the European Court of Human Rights.

Conflict of interest statement: None declared.