Wednesday, 20 August 2014

The Constitution is not the only legal enemy of Irish Women

The Constitution is not the only legal enemy of Irish Women

by Breda Kerans, AIMS Ireland

It has been said many times that this is no country for pregnant women, and it is true. Most of us are very familiar with the role that the 8th Amendment to the Constitution plays in removing rights from pregnant women in terms of abortion rights. Some people are familiar with how this same amendment removes a woman’s right to informed consent and refusal to medical procedures during pregnancy and birth. But I would imagine that most people outside the dry and dusty corridors of the courts would be familiar with the role a man called Mr. Bolam plays in the removal of pregnant women’s rights.

In 1957 Mr. Bolam was a patient in Friern Hospital. Friern was a mental health institution in the UK. He underwent electro convulsive therapy, to which he had consented. However he was not given any muscle relaxant & was not restrained. As a result he sustained serious injuries. He sued on the grounds that a. he was not given relaxants, b. he was not restrained and c. he was not informed of the possible risks.

Mr Bolam lost his case. Mr. McNair, judge, took on board the evidence of expert witnesses, which stated that some medical opinion was opposed to using relaxants or restraints. They also stated that many did not warn patients of small risks, unless asked.

The judge summed up the point of law to the jury as follows: "….he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."[1]

The jury delivered a verdict in favour of the hospital. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years. So with that judgment, the Bolom principle entered both legal and medical practice.

This is the principle which was can see running through many judgments against women who have questioned the medical procedures carried out on them in Irish maternity hospitals. The Bolom principle has been criticized by many, in that it is heavily weighted in favour of the professional and not in favour of the patient. In effect it is merely necessary for a medical professional to find a number of expert witnesses to attest that the practice carried out was one they themselves would do. It is irrelevant if such practice is not recogonised best practice. It was seen very clearly in the case taken by Ciara Hamilton, Co Kerry who sued the HSE over her care at Kerry General Hospital, Tralee, when she was having her second baby in 2011. The midwife caring for her carried out Artificial rupture of the membranes on her, causing cord prolapse and a subsequent emergency C-section became necessary. Following Judge Ryan’s, the Irish Examiner reported: 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. “In the circumstances, I do not consider that the midwife was negligent.” He said he accepted the evidence of the midwife supported by two expert witnesses that the treatment provided by the midwife was not deserving of criticism or condemnation and that the prolapse of the cord was a rare but known complication of the procedure. “The midwife responded in a competent manner, as did the hospital,” Mr Justice Ryan ruled. He added that the management of Ms Hamilton accorded with a practice supported by a responsible body of expert opinion. [2] This is the Bolom principle at work. It would be a similar principle at work in a court ordered Caesarean or other procedure. The judge would take into account that the medical procedure recommended was supported by a responsible body of expert opinion, not that it was grounded in best practice. And there can be a very big difference between what a few expert witnesses agree is reasonable practice and what is defined as best practice by internationally respected bodies such as NICE or the WHO. These guidelines are based on huge bodies of research. Don’t all women deserve to be treated with the best evidenced based care?

For that to happen in Ireland then two things must happen. Firstly the 8th amendment to the constitution must be removed. Secondly we must demand that our courts move away from the Bolom principle, which as Ruth Fletcher of Queens University of London notes “continues to adopt a more professional oriented, rather than a patient oriented, standard of care” [3]

These issues are at the very heart of why pregnant women in Ireland have little or no rights to informed consent or refusal in any meaningful way. Until both this issues are tackled we will continue to see woman after woman abused in our hospitals and in our courts. [1]

Think the 8th Amendment is only an abortion issue? Please read.

What does maternity rights have to do with the 8th Amendment?

AIMSI have been asked this many times over the last year. Further discussion has been ignited this week, following events in which an abortion was denied to a suicidal teen who became pregnant following a rape. Many consider repealing the 8th Amendment only in the context of reproductive health and abortion. But the 8th Amendment is a piece of legislation which directly affects every pregnant women, over-lapping on choices for contraception, abortion, and in continued pregnancy, labour, and birth.

With the 8th Amendment in place, pregnant women do not have the same rights as non-pregnant women. Pregnancy immediately reducing a woman's right to make informed decisions on her care and decisions which will affect her and her baby in pregnancy, labour, and birth.

AIMS Ireland strongly campaigns for recognition of informed choice in maternity care. The issue of informed consent/informed refusal and coercion (threats of legal/child protection orders) to obtain consent are prevalent in reporting to AIMSI by women accessing services and health care providers who offer witness accounts of consent violations. Many of the interventions performed without consent have implications for the health and welfare of the birthing woman and or baby.

The HSE's published National Consent Policy restricts informed consent and informed refusal of treatment for pregnant women. It is important that all women are aware of this Consent Policy and the legal ramifications of the 8th Amendment (Article 40.3.3 of the Irish Constitution) on their right to informed decision making in their maternity care. See as follows:

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."

AIMS Ireland firmly believes that in order to offer full support to women and campaign for improvements in maternity services, we must recognise all women in their right to autonomy of choice. The 8th Amendment of the Constitution, Article 40.3.3, affects all pregnant women, their birth choices, their right to accept or refuse a test or treatment, their right to individual assessment, their right to be pregnant or not.

At the our 2013 AGM, the committee asked its members to ratify AIMS Ireland’s stance to support all women in their right to autonomy of choice and to call for the repeal of the 8th Amendment to ensure women’s human rights in childbirth in Ireland. The motion was unanimously carried by AIMS Ireland members.

We hope that the discussion around the 8th Amendment is broadened to include the rights of women in continued pregnancy, labour, and birth and practices which violate these rights within Irish maternity services.

Sunday, 17 August 2014

AIMSI Statement on Irish Independent article 'Pregnant woman refused abortion gives birth by caesarean' August 15, 2014

AIMSI made this statement in relation to this article by Dearbhail McDonald posted online late Friday August 15th, 2014 in the Irish Independent:

In May 2013, AIMSI made a submission to the Joint Oireachtas Committee on the Heads of Bill that would eventually become the Protection of Life During Pregnancy Act (2013). One of the statements made in this submission was that “as long as Article 40.3.3 remains as an impervious legal barrier to a woman’s right to a termination...the risk to a mother’s life will precariously hang in the balance. The stark reality for a pregnant woman in Ireland is that Article 40.3.3 hangs like a spectre over her care as there are myriad instances where this ambiguously worded and legally flawed amendment overrides a pregnant woman’s human rights.”

This chilling case is a bleak reminder of how this legislation is profoundly flawed. Rather than doing anything to help mitigate the stigma attached to both mental health difficulties and abortion, the legislation continues to distance the medical profession and the government from the woman at the heart of the matter and it further perpetuates a negative stereotype. The discrimination of women who find themselves in this emotionally devastating position – of carrying an unintended pregnancy and of seeing no way out of this difficulty - only serves to isolate women at an extremely vulnerable time and to highlight power differences between a woman and so called ‘experts’. While there is very little detail reported on this story, there is enough to tell us that a woman’s right to bodily autonomy, consent and dignity continues to be eroded in the name of legislation that is supposed to protect her life. The fact that current legislation was used to deny a woman her legal right to an abortion, due to risk of self destruction, and then used to force her to undergo major abdominal surgery (presumably against her will) is unconscionable in a civilised society. 

The main thrust of the argument for supporting the rights of women across the maternity services, whether they are choosing a home birth, a cesarean section, an intervention-free birth or an abortion is summed up succinctly by Anand Grover, UN Special Rapporteur on the Right to Health. At a UN General Assembly in August 2011, Mr Grover presented a report, in accordance with the Human Rights Council entitled: Right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This report is seen as a milestone in the area of rights to reproductive and sexual health as it plainly articulates the reasons why legal restrictions in this area constitute a violation of a woman’s right to health and an “unjustifiable form of State-sanctioned coercion” (UN, 2011, p. 5). The report is disparaging of the human rights violations that are perpetuated in the few remaining countries, such as Ireland, where abortion is completely criminalised or where it is only allowed to save the life of a woman. Anand Grover said at the UN General Assembly meeting, when presenting this report: 

“Realization of the right to health requires the removal of barriers that interfere with individual decision-making on health-related issues and with access to health services, education and information, in particular on health conditions that only affect women and girls. In cases where a barrier is created by a criminal law or other legal restriction, it is the obligation of the State to remove it. The removal of such laws and legal restrictions is not subject to resource constraints and can thus not be seen as requiring only progressive realization. Barriers arising from criminal laws and other laws and policies affecting sexual and reproductive health must therefore be immediately removed in order to ensure full enjoyment of the right to health.” (UN, 2011, p. 2)
AIMSI fully supports the reproductive rights and choices of ALL women and we will continue to advocate and campaign for these rights. 

United Nations Human Rights Council (UNHRC), 66th Session. Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover (A/66/254)3 August 2011.

For more information and commentary on this case, please see the following:

Doctors for Choice Ireland blog post 17/08/2014 -

Friday, 8 August 2014

Is this 2014 or the dark ages in Ireland? Guest Blog by Noreen Barron

Is this 2014 or the dark ages in Ireland?

Guest Blog post by AIMS Ireland member, Noreen Barron


The recent high court ruling by Judge Sean Ryan has made a mockery of a woman's human and legal right to informed consent and refusal. Ryan's judgement also sets a very dangerous and frightening precedent for any woman giving birth in Ireland. In a nutshell, pregnant women in Ireland no longer have any legal or human rights to bodily autonomy.


Essentially what this means is that the bodies of pregnant women belong to the state and it is the state who will decide what procedures will be performed on a pregnant woman. A woman's consent, whether informed or not, is negligible and not needed. This is demonstrated by Ryan stating that: The midwife was the person entitled, authorised and qualified to make the decision. Read that statement again and again until the reality of it sinks in. It means that women are not the people who are entitled, authorised or qualified to make the decision about whether or not a medical procedure is performed on them. His ruling is morally and ethically reprehensible.


I dont believe that the majority of women realise the gravity of Sean Ryans ruling, because if they did, there would be a major outcry. At least I hope there would be. Maybe that outcry will only happen when enough women suffer the effects of the fact that they have absolutely no legal say anymore about what happens to them during pregnancy or birth when issues arise. They will be performed on whether they like it or not. Maybe they'll even be strapped down, or dragged by the police to the hospital ... who knows where this precedent will lead?


We have seen evidence of what other countries are capable of when it comes to pregnant women, Adelir Carmen Lemos de Goés, from Brazil, was forced to have a caesarean section against her will for example. And right here in Ireland, Waterford Regional Hospital brought a woman to the high court in 2013 in order to force her to have a caesarean. She decided to have the procedure herself before a judgement could be made, under extreme distress I am sure, but rest assured of the fact that a hospital prepared to go to those lengths is not a good sign for any pregnant woman. Women should be absolutely outraged at this recent ruling.


Along with this appalling ruling, Ryan has also sent out a clear message that if any woman dare have the audacity to stand up for themselves and sue the state, they will have the states costs awarded against them. Now, is it just me, or does that seem like a bullying tactic? Might that decision have been made in order to deter other women from coming forward because they dont want to be saddled with massive legal bills? Is it not intimidatory? Does that decision have anything to do with the fact that we are in a recession because we bailed out the private debt of banks and there's not much money left in the coffers for women who have been injured (or have died), both physically and psychologically, as a direct result of the state's actions or inactions?


What is interesting about legal precedents being set, is that, on any particular day, and with any particular prejudices, a single judge can decide on a legal matter, set a precedent, and the entire legal system will follow suit from thereon. No judge undergoes any psychological evaluation to make sure that they are up to the very important job of settling legal matters and setting legal precedents. Perhaps it is a good idea that this be changed? After all, the law is a very serious matter and it affects each and every one of us, which is why we need to care very much about the people who make and implement the law.

Wednesday, 6 August 2014

Not a 'consent' issue

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 allegedly performed by a midwife during a routine vaginal examination without discussion and without the woman's knowledge that the intervention was about to take place. 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 means tests, procedures, and interventions are to be discussed clearly with an individual, both the benefits and risks, in order for them to make the best decision for themselves at that time. 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, (or indeed even have a procedure done with no opportunity to consent or refuse), which is shown to increase risk to her baby, but the midwife can over-rule her and do it anyway.

This woman says she did not consent to have her waters broken. The woman says she didn't even know that this was about to happen, but that 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.

** Edit Note 5:30pm, Wednesday August 6th. AIMSI has received confirmation that the woman in this case has alleged that she was unaware the midwife was going to break her waters - ARM was performed during a routine exam with no discussion or opportunity for the woman to consent or refuse treatment.

AIMS Ireland have been inundated with support and offers of help for the Hamilton family following the loss of their case in the High Court against Kerry General. A fund had been established to help them with their legal costs. You can donate at the link below. Please share wherever you have seen discussion and support on this important issue:

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:







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