Contesting the cruel treatment of pregnant women – Ruth Fletcher

We are pleased to welcome this guest post from Dr. Ruth Fletcher of Queen Mary University of London.

I want to respond to Máiréad Enright’s thoughtful call to discuss what happened in this recent case of abortion refusal and cruel treatment.  How have certain forms of legal thinking got us to this place? How might this case have gone differently?  Does this woman have any remedies? And if not, why not? These are my initial thoughts.  They focus on the legal significance of the abortion refusal decision.  I hope to address the hydration order and the performance of the Caesarean section at a later date.  Comments are welcome.

The basic facts that gave rise to this legal decision appear to be these: A pregnant woman presents to the health service for abortion care.  She is distressed and says that she wants to die.  She is pregnant as a result of rape.  She is a foreign national with limited English language skills.  She is young and vulnerable.  Her ability to leave the country to avail of abortion care elsewhere is legally curtailed, it now appears because she is an asylum seeker.  A panel is convened under section 9 of the Protection of Life During Pregnancy Act 2013 (PDLPA), around 12 weeks after she first presented, and finds that her life is at risk.  But the panel of two psychiatrists and one obstetrician refuses to authorize the abortion.  Instead it puts in motion a process, which would culminate in the delivery of a live child by Caesarean section at about 25 weeks gestation and includes a High Court order to hydrate the woman who went on hunger strike.

To justify the original care decision of denying an abortion under section 9, the HSE appointed panel must have decided that a termination was not the only reasonable way of averting the risk to the woman’s life, given the need to preserve unborn human life as far as practicable.  Her constitutional right to a life-sustaining abortion was engaged, but outweighed by the possibility of delivering a live child, as regulated by the PDLPA and the (as yet unpublished) Guidelines.   Their grounds for refusing this life-saving abortion seem to have been that they thought it was reasonable to perform serious abdominal surgery on a woman against her wishes in order to preserve the life of the foetus.

Although the woman is reported as having ultimately consented to the C section, it is also reported that she did not consent initially and that the HSE were preparing to ask for a High Court order authorizing the C section.  In other words, the performance of a C section against her wishes was clearly anticipated as the reasonable and practicable alternative to a termination, an alternative which justified refusal of that termination.  As Maeve Taylor of the Irish Family Planning Association pointed out to me recently, this HSE interpretation appears to have narrowed the scope of a woman’s constitutional right to abortion under the X case, through the means of a problematic implementation by the PLDPA test under section 9 and the Guidelines.

This is the first troubling aspect of this case from a legal perspective.  There weren’t many optimistic moments during the recent passing of the PDLPA (on the discussion of suicidal women see Murray’s presentation, and forthcoming article).  But occasionally some of us clung on to the hope that at minimum the Act would enhance women’s procedural rights to have their abortion requests heard in a life-saving context (on the importance of procedural rights, see further Erdman’s chapter in Cook, Erdman and Dickens, 2014).   This case however seems to have delivered on our more pessimistic interpretations of those procedural rights.   The abortion approval/refusal process may in itself harm women by subjecting them to the kind of judgmental scrutiny which produces mental anguish.

Irish civil society voiced this concern to the Oireachtas (or Irish Parliament, for non-Irish speakers) before the Act was adopted, to the UNHRC in July 2014 a year after the Act was passed, and to the media all the time.  Indeed, the national statutory body responsible for human rights promotion and protection, the Irish Human Rights Commission, noted that the Bill could be in breach of human rights norms for failure to provide effective and accessible procedures for protecting the right to life of women and girls.  The UNHRC found that the panels entail ‘excessive scrutiny’ in breach of civil and political rights.  At minimum, the HSE needs to revisit interpretation of the test under section 9, as interpreted by the Guidelines, in order to comply with the ECtHR decision in ABC.  They need to ensure that women’s procedural rights deliver on the purpose for which they were intended: the provision of life-saving abortion care to women at risk of suicide in a manner which respects their Convention rights to private life and freedom from discrimination.

The second troubling aspect of this abortion refusal is that it reiterates just how unethical the substance of Irish abortion law is.  Irish abortion law imposes CIDT, violates integrity and autonomy, discriminates against women in general, and against women with mental health issues, women with few economic resources and women with limited mobility options, in particular. It does all this to conscious, sentient, thinking, feeling women in the name of protecting unconscious and non-sentient life forms in one of the more spectacular examples of upside-down thinking in human rights discourse (for an example see Binchy, for a critique of this kind of thinking see Rodley).  I won’t say any more on this now, but see any one of the 6 pro-choice civil society submissions to the UNHRC for the July 2014 hearings for arguments and evidence in relation to the human rights violations performed by Irish abortion law. There is ample evidence of past and continued efforts to push the state further towards harm reduction and rights promotion in this context and many others.  But right now, the state is not listening.

A third troubling aspect, and the main point I want to focus on here is the panel’s apparent views of what counts as reasonable and practicable treatment of women who are pregnant, at risk of suicide, survivors of rape, young, possibly incapacitated and of precarious migration status.  Section 9 requires that “in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.”  Footnote 22 of the Guidelines provides: “If the unborn has reached viability, and the best course of action is deemed to be an early induction or caesarean section, this medical procedure would not fall under the Act as it is not a medical procedure during which or as a result of which an unborn human life is ended.  Once delivered, the medical staff should ensure the necessary care for the neonate in accordance with clinical guidelines and best practice” (emphasis added).  I want to suggest that the HSE panel may well have been legally wrong in its assumptions about what counts as reasonable and practicable treatment, and the best course of action (hereinafter referred to as ‘reasonable’) for the following four reasons:

1.  The abortion refusal may not have been reasonable because it was not likely to avert the risk of suicide and in fact did not avert that risk.  As Doctors for Choice have consistently argued, the evidence of an obstetrician is not relevant to the assessment of suicide risk, and operates as a barrier to access on this ground.  In the context of suicide risk, where the woman is severely distressed by her unwanted pregnancy and the possibility of being denied an abortion, treatment options such as C section and early delivery, are not likely to address her distress and reduce risk.  A C section may be a reasonable treatment option in cases of physical threat, if the woman wants, and is not threatened by, a live delivery.  But it is unlikely to be a reasonable option in cases of mental anguish and suicide risk.

If the offer of a Caesarean was unlikely to avert the risk of suicide and the threat to the woman’s life, it was not a reasonable or practicable way of vindicating her right to life with due regard to the unborn’s right to life.  And indeed this seems to have been borne out by the consequences of the refusal.  Rather than experience some relief from her distress, her distress seems to have been exacerbated as she turned to hunger strike as a means of making herself heard.  In going on hunger strike, she was acting on her threat of suicide.  The risk to her life, which the HSE had an obligation to reduce, eventuated in the form of acts of self-harm through the refusal of food and water.

Given this key legal and clinical distinction between kinds of life-risk, which require different kinds of clinical expertise in their assessment, the best way to interpret footnote 24 of the guidelines is to read it narrowly as applying only to those rare cases where a suicidal woman’s distress is likely to be alleviated by C section and early delivery, because they accord with her wishes.  Otherwise the Guidelines have introduced a foetal viability criterion as a way of limiting the scope of a woman’s right to abortion due to suicide risk, in a manner which is not authorized by the legislation or the X case precedent (thanks to Maeve Taylor and Mairead Enright for discussion of this point).

In X, the Supreme Court decided that when there is a direct conflict between a woman’s right to biological life and a foetal right to biological life, the woman’s has to take precedence.  The court was silent on the issue of whether this was limited by gestation.  I would argue that it is unreasonable to think of it as limited by gestation because a woman’s life should always trump a foetus’s life in situations of conflict (see here, here and here).  Of course, it is possible that a court might decide differently on the length of gestation issue, as de Londras and Graham have argued.   But I think there are strong legal and ethical arguments for avoiding such an interpretation since it would still require sustenance until viability and performance of serious surgery, against the woman’s will.

2.  The abortion refusal on grounds of the C section alternative may not have been reasonable, because the C section was not a real, voluntary alternative for the woman in this case.  The apparent consent to the C section may not have been ‘real’ in the legal sense, potentially rendering the C section a trespass on the person for which the state could be liable in civil law.  In Fitzpatrick and another v K and another[2008] IEHC 104, Laffoy J cites Walsh J in G v An Bord Uchtala [1980] IR 32 (SC) in emphasizing “that to be valid the consent must be “free and willing”, in other words it must be voluntary”.  K turned on issues of capacity in the context of treatment refusal, so these comments are obiter dicta.   But they are an articulation of the generally accepted legal rule that consent needs to be voluntary, as well as informed and capacitated, in order to be valid.

On the assumed facts, there seem to be 2 reasons why this woman’s apparent consent may not meet the legal test of voluntariness.  First, the HSE had already got an order for forcible hydration, to which she had been subjected.  Second, the HSE was planning on seeking an order for a C section, if she did not consent.  Asking someone to consent to a C section in these circumstances seems like an invocation of a superficial ‘tick box’ exercise, rather than the execution of legally meaningful consent.   Could her consent have been free and willing if it was obtained through the implicit threat of force, and with no other realistic options available to her?  If consent was not real, then the C section was a non-criminal battery (assuming the absence of bad faith) and she may have a civil case against the Health Service for trespass against the person.

3.  Offering a C section to a woman who is at risk of suicide may not be a reasonable action because it falls below standards of good medical practice.  The woman in this case had a legal right to abortion on grounds of suicide risk.  The norms of good medical practice, which include minimizing harms to her, as well as listening to her and taking her views seriously, should have applied in this case.  And if doctors acted below the norms of good medical practice in treating her, they may be liable in negligence if any harm resulting from the abortion refusal was caused by that breach in standards.

Such negligence would probably be difficult to prove in this instance since negligence law continues to adopt a more professional oriented, rather than a patient oriented, standard of care (usually known as the Bolam standard, see Dunne v National Maternity Hospital [1989] IR 91 (SC)).  This means that if some body of healthcare professionals thinks it is reasonable to treat women in this way, then it is difficult to prove a breach of the standard, even if goes against the mainstream views of the profession.  As there are a significant number of doctors who believe that abortion is not an appropriate treatment for women at risk of suicide, it is possible that an abortion refusal may not fall below the standard as set by ‘a body of professional opinion’.

But we should always be arguing for a more patient-centred standard in medical negligence law’s response to maltreatment.  And indeed Irish law together with most other common law jurisdictions (except the UK) does adopt a reasonable patient standard in the context of medical negligence’s response to the issue of information (see Fitzpatrick v White [2007] IESC 51).  If the courts do move more towards a patient-centred perspective in all aspects of medical negligence law, then care which fails to take patient’s reasonable views of harm seriously will not be satisfactory.  As Mark Murphy discussed recently, ‘doctors of pro-choice conscience’ have consistently pushed clinical standards more towards a patient-centred, human rights norm as they argue for those standards in their clinical practice.

[There may be other aspects of this woman’s treatment which could give rise to a negligence claim.  First, the reported delay between her reported presentation at 8 weeks and the eventual triggering of a s 9 process at around 20 weeks gestation could be a failure to observe good medical practice which resulted in harm.  Second, the forcible administration of fluids would also seem to many people to be a harmful breach of the norms of good medical practice, particularly in these factual circumstances.  This is why we need to know more about the High Court’s reasons for ordering forced hydration, as Enright says.  Why did the Court think this was legally justifiable?  Were there grounds for appeal?  Third, it seems possible that the usual process of informed consent, which does adopt a more patient-centred standard, see Fitzpatrick v White [2007] IESC 51, was not properly observed in the context of her apparent consent to the C section, which could also ground a negligence claim.  But I will have to leave further analysis of these issues aside for now.  Thanks to Mary Donnelly, Claire Murray and Peadar O’Grady for discussion of these points.]

4.  Refusing an abortion on grounds that a C section is an alternative treatment is not likely to be reasonable when a) performing that C section and 2) delaying treatment until foetal viability are forms of cruel, inhuman and degrading treatment.    

If women’s constitutional and international human rights are legally significant, then the standards by which health care decisions are made have to be interpreted in light of those rights.  Ending a pregnancy by C section and delivery of a live child against that woman’s wishes violates her bodily integrity and autonomy and subjects her to cruel, inhuman and degrading treatment (CIDT).  ICCPR and ECHR rights norms clearly recognize that denying abortion to a rape victim is a form of CIDT.  Irish law has not yet taken this formal step, but clearly it should if it wants to ring true in its commitment to human rights and ethical principles.  The Health Service could have chosen to interpret practicality and reasonableness as excluding the imposition of CIDT.  But it didn’t.  Instead it appears to have interpreted reasonableness and practicality as ensuring the delivery of a viable foetus against a woman’s will and as forcibly hydrating a woman who has already been violated through rape.

The case has been reported in the Irish media, who have commented that the baby is doing well.  This seems unlikely given birth at 25 weeks gestation approx. It provides another problematic example of ‘bare life’ being represented as wellness.  They have said little or nothing about how the woman is doing.  Is it too cynical to suggest that the mainstream media is a little too accepting of a HSE version of events?  In whose name does the Irish state subject pregnant women, women who are vulnerable and distressed, victims of crime, and precarious migrants, to such cruel treatment? Not mine.

Contesting the cruel treatment of pregnant women – Ruth Fletcher

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