Anyone reading coverage of the recent case concerning a pregnant woman on life support could only be moved to tears by descriptions of the tragedy that befell the young mother and her unborn child and the harrowing ordeal of her father and partner.
Anyone reading the full judgment of the High Court, however, is left wondering why her family were put through the further ordeal of a court hearing. Why was a court application necessary at all? Some have sought, simplistically, to suggest that the necessity arose as another sad consequence of the eighth amendment to the Constitution. The eighth amendment has a lot to answer for, but a more detailed and detached consideration of the judgment suggests that the failings and want of courage that gave rise to this case may have their origins in something more complex, more recent, and not necessarily political.
All the medical evidence available to the High Court at its special hearing on Christmas Eve could or should have been available to the Health Service Executive (HSE) in the middle of December. It seems to this writer that the health service should have withdrawn life support for this woman weeks ago, at or shortly after the point when she was determined to be clinically brain-dead.
It was clear then, surely, that no substantial conflict arose between the right to life of the unborn child and a dignified death for the mother. The medical evidence suggests that it was always clear that the unborn child could not survive even if the mother’s body was maintained on life support.
Legal nuances
Sometimes the facts relieve a court from the necessity of considering legal nuances. The issues raised in this case were important and the evidence was traumatic, but the decision itself could not have been difficult in light of the consensus in the medical evidence. The father of this woman was placed in the intolerable position of having to bring a court application because of the HSE’s refusal to withdraw life support. Yet, in the court case itself, the HSE was in favour of its withdrawal.
There was no conflict within the woman’s family, as both her father and her partner wished the treatment to cease.
There have been distressing cases such as this in other jurisdictions. Many of these came to court because the husband or partner of a fatally ill pregnant woman and her family differed on what should happen. In some such cases, there has been conflict in the medical opinion about the prognosis for the unborn child. There have, however, been few instances where the medical consensus on the consequences for the child has been as clear-cut as it was in this case.
The High Court’s judgment was appropriately couched in careful and compassionate terms. While it did not say so, one gets a sense from reading it that the judges themselves, having heard the medical evidence, were not convinced the application was necessary. The court summarised the position on the evidence as follows: “The entire medical evidence in this case goes one way only and that is to establish that the prospects for a successful delivery of a live baby in this case are virtually non-existent.”
In their ruling, the judges described the decision to keep the woman alive for the previous two weeks as “a futile exercise which commenced only because of fears held by treating medical specialists of potential legal consequences”.
The judgment does not specify what the feared “potential legal consequences” were. Presumably they related to a subsequent allegation of failure to vindicate the right to life of the unborn. It is difficult, however, to see any real basis for such fears. Since all the medical specialists agreed the unborn life could not endure, how would they or the hospital authorities be exposed to such consequences? As the High Court emphasised last week, the relevant constitutional provisions impose an obligation to vindicate the right to life of the unborn “as far as is practicable”.
Complex issues
Doctors in these situations should not have to address the complex medical, ethical and legal issues involved on their own.
One worrying feature of the evidence in this case is that the medics did not have the benefit, at least initially, of clear written advice from the HSE on its view of the legal situation. This, it could be argued, arises from an absence of medico-legal guidelines, but one might expect that the HSE could call on leading legal and medical experts to assist at the earliest stages of such cases. It had access to such legal and medical expertise in presenting its case in court last week.
If the HSE’s view is that court orders or rulings are required in all such cases – even one where the medical evidence is as clear-cut as in this case – then that of itself highlights significant issues for Minister for Health Leo Varadkar to raise with HSE senior management.