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]

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