On the last day of August 2014, in a ruling the country and the media barely noticed, Mr
Justice Ryan in the High Court in Kerry found against Ciara Hamilton and for the HSE in an
utterly terrifying moment for every person becoming pregnant or giving birth in Ireland
from here on out. Ciara Hamilton had taken a case against the Health Service Executive
after the birth of her second child, during which a midwife had, without obtaining
consent, broken her waters, leading to an umbilical cord prolapse and an emergency
caesarean section. http://www.wsm.ie/sites/default/files/AIMS%20Survey.jpg ---- The
breaking of waters during labour, in medical terms, amniotomy or Artificial Rupture of
Membranes (ARM), is not recommended best practice precisely because it can lead to a cord
prolapse, which is a serious emergency when giving birth as it cuts off the blood flow and
air supply to the baby. If the person giving birth is a Strep B carrier, as Ciara Hamilton
was, it can also carry an increased risk of Strep B transferring to the newborn and
causing serious damage to the baby, as happened to Ciara Hamilton’s child. It is listed as
a Do Not Do under NICE recommendations. Despite this, and despite ARM being known to carry
dangers and risks to both birthing woman and baby, it is still a widely carried out
procedure in many Irish maternity hospitals. In the case of Ciara Hamilton’s birth, it was
a procedure carried out by a midwife without seeking consent to do so.
Denial of autonomy is not an anomaly
This, too, despite being obviously grossly unethical and a fundamental violation of both
human rights and bodily autonomy, is something which routinely occurs in Irish maternity
hospitals. In the spring of 2014, AIMS Ireland carried out a survey of those who had given
birth in Ireland between 2010 and 2014. The survey was available to be filled out online,
and was spread through various social media channels, as well as through media coverage.
The pool of respondents was a self-selecting one, and numbered 2,836. It found that only
half of all those giving birth - 50.2% of respondents - were given an opportunity to
refuse tests, procedures or treatments being carried out on them. This is a truly
frightening figure. What is, however, more frightening, was the wording of Mr Justice
Ryan’s finding against Ciara Hamilton.
“Mrs Hamilton would have seen the hook and would have known what was going to happen
because of the sheet that was put under her in bed. Since, on the evidence, this was a
routine procedure that Ms Kelliher was carrying out for the purpose of diagnosis to see if
her fear of foetal distress was justified or not, it does seem strange that she would not
have mentioned to the patient what she was going to do and have obtained her consent. The
very fact that it was so routine suggests that the midwife would have done so. I am
satisfied that the probability is that Midwife Kelliher obtained the plaintiff’s consent
and informed her about the ARM that she was going to perform.”
What the judge has here concluded is that the midwife obtained consent because she should
have done so - and that a woman giving birth who had consented only to a vaginal
examination, NOT an ARM, should have known that ARM would have happened because of the
presence of an amnihook and a sheet. This is a truly bizarre conclusion. Why would a
person giving birth be assumed to be able to identify an amnihook - a specialised piece of
medical equipment - and further be assumed to know that it would mean an ARM would be
carried out on them without having been consulted or informed about the risks and benefits
of the procedure? Again, this judge with no evidence to prove this assumption - and indeed
the more recently published evidence from AIMS shows that not giving women a chance to
refuse procedures is a large part of normal practice - asserts that a health care provider
would have obtained consent because they should have done so, with no onus on the
healthcare provider to prove evidence of informed consent being obtained. The fact that
Ciara Hamilton testified to the fact that she was not given an opportunity to consent to
an amniotomy is not even mentioned by the judge in this decision. Even more disturbingly,
he went on to say:
“The patient’s co-operation was needed in terms of re-positioning on the bed, the
procedure might take some time and the implement was quite long, so it is not something
that a person would or could do without the knowledge of the patient. The plaintiff got
into position, was cooperative and consented to the vaginal examination. Ms Kelliher used
a hook and gel and of course surgical gloves. She put a sheet under the plaintiff and got
her to move down in the bed and discussed with the plaintiff what she was going to do.
Midwife Kelliher said that she “would have discussed”, but in my view that was a matter of
usage and she clarified that she actually meant, not that she would have in the sense of
describing a practice in a conditional sense, but that she did with Mrs Hamilton.”
A muffled voice in the Republic of Gilead
Mr Justice Ryan is here saying that Ciara Hamilton positioned herself in such a way as to
consent to an ARM. She consented to the vaginal examination and moved down the bed. Is
this really so different from the “short skirt” argument put before courts in trials of
other forms of violation of women’s bodies? Yet again, with no proof, he asserts that an
ARM could not be carried out without the knowledge of the person giving birth, despite the
evidence of a woman who had undergone it that indeed it had been. AIMS Ireland has heard
from many more women around the country who have had non consensual amniotomies - and
indeed many other procedures - performed without their knowledge. This is a far from rare
occurrence; yet the voice of the woman upon whose body this was perpetrated is once again,
in the arena she sought redress for her exclusion from the decisions being made about her
body and her birth, being spoken over, ignored, and deemed uninformed, inconsequential,
and irrelevant.
But by far the most frightening aspect of all in this case is that, despite clearly
stating in his ruling that Ciara Hamilton had “underwent a frightening and disturbing
experience that would leave long term troubling recollections”, Mr Justice Ryan punitively
awarded the full costs of the HSE’s defence against her and her family. This was
unarguably a move designed to discourage other women and people who have experienced
violations of their consent during pregnancy and birth from pursuing legal action against
those responsible. A move meant to punish a woman and her family who did dare to speak up
against the unacceptable, indefensible treatment AIMS Ireland hear of in Irish maternity
wards all too often, and whose experiences, as before during their birth, were once again
ignored by the State and its enforcers, quite literally judged to be meaningless. The
truth of what happened to Ciara Hamilton and her recounting of it and its consequences for
her and her son was callously dismissed by a judge who simply refused to believe it
because he thought it shouldn’t happen.
No say and no support
What this ruling means is that it is now legally not a requirement for any Irish maternity
ward or healthcare provider to prove either that a procedure is necessary for the person
giving birth or the baby they’re giving birth to, or that they obtained informed consent
from the person giving birth to carry out that procedure. In a country in which pregnant
women are specifically excluded from the HSE’s National Consent Policy as being the final
arbiter of what happens to their own bodies, with the High Court cited instead as the
appropriate decision maker for these cases, this ruling is a further reminder to anyone
with a uterus that if they are, or if they should become pregnant, they are no longer in
control of their own body. They are lesser; they do not own themselves. Instead the State
owns them.
This, of course, is in part a consequence of the 8th amendment; but it’s also in part a
consequence of a larger prevailing attitude in maternity care in Ireland, that women in
general and specifically women who are pregnant and giving birth are not trustworthy
decision makers and cannot be allowed to make choices around their pregnancies and births
as they cannot be trusted to be concerned with a safe outcome for their baby. This is
bizarrely at odds with the State and HSE attitude to those who have given birth; they
become at once the only possible caretaker for that child, not in need of any support or
care in so doing, left entirely alone to do so with no formalised system of support around
them even when they look for the assistance of one.
Again, Ciara Hamilton and her family are an example of this; a family who need specialised
supports for their son, damaged due to the poor management of his birth, they live in a
state that will do its utmost to avoid shouldering the cost of it and avoid recognising
Ciara Hamilton’s son as a valued member of our society who should be provided with all
that he needs in order to allow him to participate in that society in a just and equal
way. Now both they and he have been further punished for their attempt to right that
balance and address the wrong done to him and his mother during their birth. For a family
to be faced with the crippling financial burden that is the HSE’s extravagant legal costs
of defending a birth claim will further deepen the gap between what their child needs and
what they can afford to give him. Their situation is a haunting and horrific one that
should never have been allowed to happen, and in many other jurisdictions never would have.
There’s no consent like informed consent
Contrasting the judgement in the Hamilton vs HSE case with a recent UK Supreme Court
judgement, Montgomery v Lanarkshire Health Board, is an exercise designed to induce both
heartbreak for the Hamiltons and rage on behalf of all pregnant women in Ireland. In this
ruling, the Supreme Court held there exists for those giving birth an explicit right to
information about ‘any material risk‘ in order for them to make fully informed decisions
on the process; without this information being provided, informed consent cannot be said
to have been given. In this instance, Nadine Montgomery was pregnant, diabetic, carrying a
large foetus and was not informed by her doctor of her increased risk of shoulder
dystocia, which is, in the words of an expert witness of the case, “a major obstetric
emergency associated with a short and long term neonatal and maternal morbidity [and] an
associated neonatal mortality”. She did indeed experience a shoulder dystocia during
birth, which was a horrendously traumatic experience for her and caused severe long term
brain damage to her son.
Despite the fact that Nadine Montgomery had repeatedly expressed concerns about giving
birth vaginally, her doctor said that she as a matter of course chose not to explain the
risk of shoulder dystocia to diabetic women because the risk of serious injury to the baby
was very small and that if she did, “then everyone would ask for a caesarean section”. The
doctor makes no mention of the risk to women’s health and wellbeing of shoulder dystocia
in her decision making.
A key and obvious difference here between the Montgomery case and the Hamilton case
already is that the very concept of explaining risk of interventions, or of not performing
interventions, to women is discussed at all in the Montgomery case. It does not appear at
all in the Hamilton vs. HSE judgement. Given Mr Justice Ryan’s discussion of how Ciara
Hamilton was treated it is probably safe to assume that informed consent is completely
outside his frame of reference - again, a terrible but unsurprising indictment of the
Irish maternity system as well as the Irish court system. The idea of informed consent
literally does not make any showing here. Extensive discussion of the idea of informing
women and how that should best be performed by healthcare providers takes place in the
Montgomery case and yet the Hamilton judgement does not mention this concept even once.
In stark contrast, not only was the concept of informed consent discussed at length during
the hearing of the Montgomery case itself, but it is also given a strong legal definition
and set of requirements in the ruling itself.
“An adult person of sound mind is entitled to decide which, if any, of the available forms
of treatment to undergo, and her consent must be obtained before treatment interfering
with her bodily integrity is undertaken. The doctor is therefore under a duty to take
reasonable care to ensure that the patient is aware of any material risks involved in any
recommended treatment, and of any reasonable alternative or variant treatments. The test
of materiality is whether, in the circumstances of the particular case, a reasonable
person in the patient’s position would be likely to attach significance to the risk, or
the doctor is or should reasonably be aware that the particular patient would be likely to
attach significance to it.”
An appalling gap in the treatment of women
The final and deepest cut of bitter envy from the Montgomery judgement to those of us in
Ireland forced into the maternity system here, comes from Lady Hale’s part of the
judgement, thus making it case law in the UK from the highest court in the land. It is as
follows:
“In this day and age, we are not only concerned about risks to the baby. We are equally,
if not more, concerned about risks to the mother. And those include the risks associated
with giving birth, as well as any aftereffects. One of the problems in this case was that
for too long the focus was on the risks to the baby, without also taking into account what
the mother might face in the process of giving birth.”
Could any paragraph and context more succinctly highlight the appalling gap between the
treatment of pregnant women in Ireland and the expected sheer basics of human rights of
pregnant women elsewhere in the world?
WORDS: SINEAD REDMOND
Sinead Redmond is a Maternity Rights activist and secretary of AIMS Ireland
Image from What matters to you, 2014 survey by AIMS Ireland
2014
For more on this see AIMS Ireland – www.aimsireland.ie
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» (en) Irish Anarchist Review #11 - Island of No Consent - Maternity Care and Bodily Autonomy in Ireland