The newest Irish case: the High Court’s decision

December 2014

The High Court in Ireland handed down its judgment in the case of P, the pregnant woman who died earlier this month but was being kept on life support and complex treatment in an effort to allow the fetus she was carrying to survive long enough to be delivered alive. Her father and her partner went to court to ask for her to be taken off life support and allowed to die, which the Court agreed to and which has now taken place.

The Irish Times provides a useful summary here.

Possibly the best journalist reporter of proceedings was by Dearbhail McDonald, a journalist for the Irish Independent. On an RTE programme aired this morning she spoke at length at the outset of the programme about the implications of the judgment. Here is the link: http://www.rte.ie/radio1/saturday-with-claire-byrne/ . Click on the 27 December at the right of the screen.

See also these articles on 26 and 27 December by Dearbhail McDonald:

http://www.independent.ie/irish-news/courts/family-embrace-as-court-rules-to-turn-off-life-support-for-mum-30864481.html

http://www.independent.ie/opinion/comment/it-is-sadly-inevitable-that-further-tragic-cases-will-end-up-in-the-high-court-30864580.html

http://www.independent.ie/opinion/comment/children-left-waiting-far-too-long-for-angels-to-appear-30864458.html

The court judgment can be accessed here in full:

http://www.documentcloud.org/documents/1385958-p-p-v-hse.html#document/p1

Below is the first part of an analysis of the judgement and its implications from a women’s and human rights point of view, in Human Rights in Ireland by Máiréad Enright, published online 26 December 2014. Enright lectures at Kent Law School, and is also a PhD candidate in the Centre for Criminal Justice and Human Rights, University College Cork. She listened to the proceedings both days in the High Court on 23-24 December 2014. Her comments can found in full at: http://humanrights.ie/gender-sexuality-and-the-law/pp-v-hse-futility-dignity-and-the-best-interests-of-the-unborn-child/

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

Dec 26, 2014 By Máiréad Enright+inGender & Sex1 Comment

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.

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.

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…