Dáil Éireann debate -
Thursday, 20 Nov 2003

Vol. 575 No. 1

Home Births.

Mr. Gormley

I thank the Ceann Comhairle for allowing me to raise this issue. I was quite shocked by the decision of the Supreme Court to award costs against Sarah Clarke, Melissa Lockhart, Anne Brannick and Caroline O'Brien, who had appealed against an earlier High Court judgment of September 2002. The Supreme Court decision of 21 October 2003 was itself a serious blow to those who promote home birth in this country, and indeed against those of us who advocate equality of access to health care. It now means that women who can afford it can have a home birth by paying a midwife privately, while those who are not financially well off are forced to have a hospital birth.

This is further evidence of our two-tiered health system. The awarding of costs sends the clearest signal yet that those who seek to vindicate their rights in the area of home birth in the courts should be extremely wary. No doubt those in the medical establishment who are opposed to home birth will herald this as an important victory.

Reading section 62 of the Health Act 1970, it is very difficult to understand how the High Court and Supreme Court came to their conclusions. Section 3 is explicit and derives from the 1954 Act, a period when home birth was more prevalent. The judgment also seems to have ignored the 1988 Supreme Court judgment in a case taken by my Green Party colleague, Jeremy Wates. In that judgment, Mr. Justice Finlay made it clear that the health board had a duty of care to those who choose a home birth and that section 62 applied to "hospital or maternity home or at home". Be that as it may, the Supreme Court in its wisdom has decided to ignore this judgment and in effect to overturn the decision.

The only recourse the women now have is the European Court of Justice, where I hope they will get some justice, or at the very least some credible legal argument. In the meantime, it is the duty of the Government to protect the rights of all women who choose to have a home birth. The Minister for Health and Children can do this by immediately amending section 62 of the 1970 Health Act, making it absolutely clear to even the most hostile judge that section 3 covers home birth.

In response to a parliamentary question I asked yesterday, the Minister stated that the expert group set up in 1997 following the report of the maternity and infant care scheme review recommended three home birth pilot projects. An external evaluation of the three projects is to be completed shortly. The expert group will engage in a public consultation process and report in March 2004. This is being used now as an excuse by the Minister not to introduce legislation to deal with the consequences of the Supreme Court decision. Perhaps he is hoping, along with certain elements in the medical establishment, that the review would be quite negative in relation to home birth.

Certainly, the comments of Dr. McKenna suggest that home birth appears to be frowned upon in certain circles. His report on the safety of home birth succeeded in frightening many people, including members of the Joint Oireachtas Committee on Health and Children. However, there are many who are of the view that his report does not stand up to scrutiny. I understand it is to be thoroughly rebutted in an article in December by some Irish midwives and those acting for them.

It is important that we have a rational debate on the issue. To my knowledge, there are many other reports that show home birth is extremely safe, is more pleasant for the woman giving birth and the after care is superior to that of a hospital. This is not to criticise the midwives and obstetricians who work in hospitals who are under enormous pressure, so much so that they are often forced to get women in and out of maternity hospital as quickly as possible. Perhaps this accounts for the highly interventionist approach in Irish maternity hospitals. Caesarean section rates are very high, as are the number of inductions. If the Minister is serious about increasing breast feeding rates, he ought to promote home birth as breast feeding rates among home birth mothers are much higher.

If the Minister fails to amend the Health Act 1970 to ensure equality of access to home birth, the Green Party will take up the challenge by introducing a Private Members' Bill. We will publish the Bill in the next two weeks and I am certain the Home Birth Alliance will lobby political parties to support it. I hope the Minister will reconsider his position and, if he is serious about promoting home birth, as the Tánaiste claimed in a reply to me recently, he will accept the Bill when we bring it before the House.

I congratulate the women for their courageous stance and thank those who have given so much time and energy to the cause of home birth, including Anne Kelly, Philomena Canning and Marie O'Connor. They have had to endure difficult times in recent years but I am confident their struggle will be rewarded and they will get what they deserve – justice.

Mr. Callely

I welcome this debate. Deputy Gormley touched on many issues and I will refer to some statistics on the safest options for child birth. It is important when dealing with issues of this nature that we do so on an informed basis.

Mr. Gormley

That is what I said.

Mr. Callely

The judgment by the Supreme Court, delivered on 5 November, involved four appeals of refusals by the High Court to grant a judicial review, the effect of which would have been to compel the respondent health boards to provide or fund home midwifery services.

In all four cases, leave to bring judicial review proceedings was granted on the grounds that section 62 of the Health Act 1970 creates a legally enforceable right. Counsel for the women involved argued that although there is no explicit provision in section 62 of the Health Act 1970 that compels a health board to provide for home births, such an obligation must be read into the section by implication. I note that Mr. Justice Geoghegan dismissed all four appeals stating that he could find nothing in section 62 to justify interpreting it as creating such an obligation.

In one of the cases a second point was considered – that it is discriminatory for one health board not to provide home midwifery services of a kind which other health boards do provide. This refers to a 1998 request from the Ombudsman that all health boards apply a standardised approach to applicants for home birth services. On foot of this request, the Department asked the health boards to make the same ex gratia payment to applicants who engage an independent midwife to attend a home birth.

Following a High Court ruling in 2001, however, the Department was advised that health boards in the eastern region had departed from the agreed ex gratia system. The East Coast Area Health Board suspended payment of grants in respect of applicants whose medical, practical or geographical circumstances would exclude them from qualification from the DOMINO/home birth pilot project in the National Maternity Hospital, Holles Street. The applicant in that case had been found unsuitable by the health board for a home birth by reason of the distance of her home from the nearest maternity hospital. In the recent case the applicant's estimated travel time from home to the nearest maternity hospital was again a factor in considering her claim for a home birth.

Mr. Justice Geoghegan, when considering this point, stated that section 62 does not lay down a national prescription as to how these services are to be provided and that unless a health board was to adopt a wholly unreasonable policy, its decisions in this regard cannot be impugned. He went on to say:

There appears to be nothing unreasonable in the policy of the East Coast Area Health Board. It is irrelevant that some other health boards may provide limited home midwifery services. There is no unfair, unlawful or, still less, unconstitutional discrimination.

I am advised that the 2001 High Court ruling is being appealed to the Supreme Court. It would, therefore, be inappropriate for me to comment on health boards' current practices with regard to the home birth grant until all legal issues are resolved.

The Department's policy is that birth in a consultant-staffed maternity unit is the safest option both for mothers and babies. It is generally accepted that this policy has contributed to the marked decrease in the level of maternal, perinatal and infant mortality.

Mr. Gormley

Not true.

Mr. Callely

For example, the maternal mortality rate decreased from 24.8 per 100,000 live births and still births in 1971 to 1.8 in 2000. The perinatal mortality rate fell from 22.8 per 1,000 live births and still births in 1971 to 9.0 in 2000, while the infant mortality rate fell from 18.0 per 1,000 births to 5.8 in 2001.

The report of the Maternity and Infant Care Scheme Review Group in 1994 endorsed the Department's policy that the safest place to give birth is in a well equipped and staffed maternity hospital or unit, but also recognised that arrangements must be made for those who wish to give birth at home. The group suggested possible approaches to the provision of a home birth service.

The then Minister for Health, Deputy Michael Noonan, in April 1997 announced, "Each approach is to be piloted in a health board to establish feasibility and comparative effectiveness, or whether different approaches may be required in different geographic or demographic circumstances." The following pilot projects were later established and funded by the Department of Health and Children: a community midwifery service, conducted in Cork by the Southern Health Board; a hospital outreach approach conducted by the Western Health Board based at the University College Hospital, Galway; and a DOMINO/outreach project – domiciliary care in and out of hospital – based at the National Maternity Hospital, Holles Street.

These pilot projects are now being evaluated under the auspices of the domiciliary births group, which was established by the chief executive officers group earlier this year at the request of my Department, with the following terms of reference: to prepare an up to date progress report on the implementation of the recommendations from the expert group on domiciliary births in 1997; to make recommendations on the long-term approach arising from the outcome of the pilot schemes, and to establish protocols and procedures; and to commission an external evaluation of the three pilot home birth projects.

The external evaluation of the three pilot home birth projects in Dublin, Cork and Galway, and the service in the South-Eastern Health Board area, is due for completion shortly. The domiciliary births group will then engage in a public consultation process and report to the chief executive officers in February or March 2004. The group's report will inform the development of future national policies, procedures and protocols for domiciliary births. Bearing that in mind, consideration of the issue of legislation or regulations regarding home births should await the outcome of the deliberations of the domiciliary births group.

The Dáil adjourned at 8 p.m. until 10.30 a.m. on Friday, 21 November 2003.