PP v HSE: Practicability, Dignity and the Best Interests of the Unborn Child.

The High Court handed down judgment in PP v. HSE today.  The Irish Times provides a useful summary here.  P., who was 15 weeks pregnant, died on December 3rd, but her body  was subjected to medical processes to ‘facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability’ for several more weeks.  We call the experimental treatment her body received ‘somatic care’. ‘Somatic care’ seems a benign phrase, but it involved a tremendous amount of intervention designed to postpone the inevitable collapse and decay of P.’s other organs following the cessation of blood flow to her brain, thereby sustaining the pregnancy. Medical evidence given in court made clear that the eventual effects of these interventions on her appearance, and the consequent distress to her family, undermined her dignity in death. Nevertheless, doctors in both hospitals where she was treated apparently believed that the law required them to follow this unusual course of action, given that the foetus still had a heartbeat. By the time the case came to court, P.’s body was deteriorating rapidly. There was no real prospect that, even if treatment were continued, the pregnancy could be maintained until viability. Her family and partner wanted the somatic treatment discontinued, and her father applied to the court for this purpose. This morning, the  High Court exercised its inherent jurisdiction and authorised P.’s doctors to discontinue treatment, at their discretion.

The judgment is, to my mind, a very strange one. I happened to be in Dublin when the case was being heard, and watched both days of the hearing. While it seemed clear to me that the court would grant the order, I did not anticipate the reasoning. This is not a conservative or cautious judgment.  It seems to me to go further than was necessary to resolve the precise dispute before the court and, as such, it is likely to have significance for future cases. This is the first reported medical law case in which a court has used the Eighth Amendment outside of the direct abortion context. The court was invited by the plaintiff to hold, following Roche v. Roche and Baby O, that this case, since it is not about abortion, has nothing to do with the Eighth Amendment. But it insisted that the Eighth also creates an independent right to life of the unborn which applies to other cases.  In addition, the court invents a new concept of the ‘best interests’ of the unborn child out of thin air. It is hard to predict what might happen to this concept in future cases.

Reasoning.

Although the outcome was the one P.’s family sought, P. herself has precious little impact on the court’s reasoning. Talk of ‘vessels’ is not too wide of the mark.

  • First, the only major legal interest which she has, following her death, is dignity. Although her counsel had painted a more detailed (if shallow and problematic) picture of her interests as a mother, partner, and mother-to-be, these did not form part of the court’s reasoning to any great extent. Her dignity seems to be understood primarily in terms of ‘the feelings of grief and respect’ which others associate with her body. Her autonomy is briefly mentioned in the judgment but not discussed. There were opportunities to provide a fuller discussion of P.’s position, but they were not taken.
  • Second,  her interests are subordinated to the rights of the foetus under the Eighth Amendment: the court says so explicitly at p. 23. P.’s interests are ‘not discounted’, but they do not count for much. So, for instance, we do not see any analysis of whether it was disproportionate to subject her body to such massive intervention in order to preserve the pregnancy. Discussion of the limits of the obligation to preserve foetal life is located entirely in the foetus’ prospects for survival, with the woman’s dignity as an aside.
  • Third, the court’s concept of her dignity is confined to the process of her death and the condition of her body after death. The court discusses whether being subjected to somatic treatment harms her interests. It does not discuss whether being kept in this condition and pregnant – being kept in this condition in order to preserve the life of another – is such a harm. This is so even though the court acknowledges that there is no evidence that P. would have acceded to being treated in this way if she had been able to be consulted. When P.’s pregnancy does appear in the judgment it is either before her death, when she was happily planning the birth of her third child with no sense of the catastrophe that awaited her, or after her death when her sole function is to provide an unstable ‘uterine environment’, or ‘life support’ system which is not up to the task of upholding the unborn’s interests. The foetus’ clear dependence on the mother is eliminated – her sustaining environment is simply taken for granted. Dignity in death, and pregnancy are kept curiously separate in the analysis – any opportunity for a more feminist reading of maternal-foetal conflict is lost. ((Counsel appointed to represent P.’s interests would have had the court adopt a worse version of this fallacy – he argued that by the time the case came to court, P. had lost any dignity that remained to her, so that her only remaining interest was in the continuance of the pregnancy.))

As we have said, the court is primarily concerned in this judgment with the right to life of the unborn. The judgment focuses on the obligation under the Eighth Amendment to defend that right in as far as it is ‘practicable’ to do so.  The court interprets ‘practicable’ in line with the principles on withdrawing life support in In re a Ward of Court. The state has an interest in preserving life but it need not be prolonged at all costs. The mechanism of ‘practicability’ is the Eighth’s safety catch. This judgment  applies the Eighth to a non-abortion context but appears to reassure us that the Eighth works, that it cannot push us too far, that it contains within it some grain of humanity. However, this is a case at the very edge of practicability. The medical evidence did not establish that the foetus had any chance of being born alive. The somatic care was futile. Accordingly there was no constitutional reason to prolong the ‘life support’ of the unborn. Whether medical treatment can be considered impracticable where it is not entirely futile is another question. Again, ‘practicability’ is not ‘proportionality’: it is conceivable that the test might require deeply invasive treatment. ((Before the judgment, many of us thought In re a Ward would be cited in respect of P’s right to die with dignity. Because the court holds that P. is already dead, In re a Ward is invoked as an authority governing the withdrawal of medical treatment  -the somatic care of P. – from the unborn. Yet again, P.’s interests melt into those of the unborn. When the court cites Denham J.’s judgment in In re a Ward about ‘caring for the dying, loving and cherishing them and freeing them from suffering’ it is talking about the foetus and not about P. ))

The court could have stopped there. However, it felt compelled to flesh out ‘practicability’ by reference to the best interests of the foetus. Ultimately the order is made on the grounds that is not in the unborn’s best interests to prolong its life. The court reasons by reference to S.R.; a 2012 wardship case about withdrawing ventilation in the best interests of a six year old  who had suffered a catastrophic brain injury as a toddler. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy. The unborn can make no future claims on the state (at least not when, as in O, it is carried by a foreigner liable to deportation). This judgment suggests that, within the womb, the unborn can make extensive claims on the state to sustain the bare life of the pregnant woman in its ‘best interests’.  The innovation here is brisk and without supporting authority, but allows the court to shore up its conclusions with worrying rhetoric. Under the influence of the best interests test, the foetus at 18 weeks becomes capable of suffering ‘distress’ (p.19). It is caught in the dangerous environment of P.’s womb, facing a ‘perfect storm’. The court summarises: ‘The unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and is failing at an alarming rate’. Again, the court refuses to see these beings’ interests as intertwined. It accounts for each separately. P.’s womb is not her pointlessly mutilated body, but a dying incubator. That her dignity and the unborn’s best interests point in the same direction is coincidence.

It is worth noting that the concept of the unborn child’s best interests is, to say the least, a very unusual one. In England and Wales, for example, a court cannot exercise its inherent jurisdiction in respect of an unborn child in utero, though it may sometimes make orders to take effect in the event of its birth. The language of the best interests of the unborn is most often associated, in law, with anti-abortion campaigners who argue for the application of the Convention of the Rights of the Child to the foetus. On the one hand, it seems sensible to read it as an offshoot of the Eighth which would not survive repeal. On the other, it may point to possibilities for re-creating unborn rights out of other ill-fitting constitutional materials.

In short, this may not be the Costello judgment in X, but it is scarcely evidence of progress.

Future cases.

 Some commentators have been keen to suggest that P.P. is an exception, of little possible relevance to later cases. I disagree.  P.P.may be a guide to the interpretation of the Eighth Amendment in future cases, including abortion cases, if they come to court. P.P. lies at the outer limits of the Eighth, but it gestures to the principles which should govern cases of other kinds. (Of course, we must bear in mind that abortion cases are rare. Women do not willingly put themselves through them, but seek terminations elsewhere instead. Pregnancies miscarry before cases can be heard.)

The notions of futility and best interests might be relevant in a future ‘termination for medical reasons case’. The court was clear that its judgment was not influenced by the fact that the foetus if born might be ‘impaired to any greater or lesser degree’, and it frames the case as being about ‘withdrawal of medical treatment’ rather than abortion (a neat distinction which again elides the physical interdependence of pregnant woman and foetus). Nevertheless, following the argument from practicability, a future court might accept, by analogy with P.P. that an abortion is permissible under Irish law in circumstances in which there is little prospect of a foetus surviving to full gestation. Famously in D v. Ireland the state argued that this was a permissible interpretation of the Eighth Amendment. It may also be that P.P. could be used to argue for access to abortion where foetal anomalies do not lead to death in utero, but a baby dies soon after. Otherwise we are dealing with the incoherent proposition that the foetus which will almost certainly die in utero has best interests before birth, but the foetus which will probably die immediately after birth does not.

This judgment might also be used to less liberal ends. It is worth noting that, in this case, there was no disagreement between the numerous medical expert witnesses. This is not a judgment about controlling medical practice. It is a judgment about deference to ‘highly experienced medical practitioners’, about removal of a legal obstacle to the exercise of medical judgement. This is a problem because the judgment seems to shore up Irish approaches to maternal care and abortion which are of dubious validity from a human rights perspective. For example, it seems entirely possible that if P.P.’s pregnancy had been more advanced, and if medical care had made it possible to provide a more stable ‘uterine environment’ for the unborn child, then the court would not have acceded to a family’s request requiring somatic care to be withdrawn. Indeed one of the doctors treating Ms. P testified that he had maintained a woman for 2.5 weeks in similar circumstances – the woman’s body was unable to sustain the pregnancy and attempts to deliver the baby early by C-section failed.

We also need to think very carefully about how the interpretation of ‘practicability as foetal best interests’ might interact with the doctors’ duty to ‘preserve unborn human life as far as practicable’ under the Protection of Life During Pregnancy Act 2013.  The Guidelines to that Act already direct doctors to consider that very early delivery may be required instead  of abortion where the foetus is viable. Might an idea of ‘best interests’ like that in P.P. give weight to efforts to prolong pregnancies to the point when a foetus has the best chance of surviving birth? Remember that it has been reported that doctors planned to prolong Ms. Y’s pregnancy to 30 weeks. If ‘practicability’ under the 8th is primarily about the chances of enabling live birth, even at grave cost to the woman’s body, we are in dangerous territory for human rights.

Medicine and the law.

It is worth saying something, briefly, about how this case came to court. Doctors in court  repeatedly asserted that they and their colleagues felt bound by law to pursue a course of action which subjected a woman to treatment which they recognised as not only extraordinary but grotesque. Organisations such as the I.F.P.A. will test and sometimes outright defy the law, but leading doctors tell us again and again that they will follow it to the last gruesome letter. In the absence of any research on how the Eighth has infiltrated Irish medical practice, I can only guess at how it is that such people come to feel bound by the cruellest possible interpretation of an ambiguous and rarely litigated law.  But some of the blame must lie with government. There is no good reason for criminalising doctors who are required, sometimes, to bring ‘unborn life’ to an end.  There is no good reason for the absence of settled guidelines on circumstances of this kind.  Listening to the medical evidence, it struck me that P.’s father might not have had to bring the case to court if she had collapsed in one of the major maternity hospitals, where medics are more confident about the requirements of the Eighth. The expert witness from the public voluntary hospital where P. was first treated was less confident. He described futile efforts to obtain legal advice from their own in-house team or from the HSE, and conjured up the spectacle of doctors reading the Eighth Amendment for themselves. Eventually P.’s family were directed to seek their own legal advice. This cannot be good enough. We are stuck now with a government which will neither repeal the Eighth nor administer it. We are stuck with the impossible.

PP v HSE: Practicability, Dignity and the Best Interests of the Unborn Child.

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