Wednesday 20 March 2019

Doctors told they can withdraw life support for clinically dead pregnant woman

Lawyers for the unborn and the mother will not appeal the ruling.

The Four Courts in Dublin
The Four Courts in Dublin
High Court President Nicholas Kearns
Dearbhail McDonald

Dearbhail McDonald

The High Court has ruled that doctors can switch off life support to a brain dead mother of two who is 18 weeks pregnant.

Lawyers for the unborn and the mother will not appeal the ruling.

The woman aged in her 20s "in the prime of her life" was declared dead on December 3rd last after suffering a major brain trauma.

But she has been on life support against her family's wishes for more than three weeks because of legal uncertainty about the status of her unborn.

A specially convened three judge Divisional Court, led by its President Mr Justice Nicholas Kearns - sat for two days this week to hear an application by the woman's father to have her life support switched off.

Judge Kearns, presiding with Ms Justice Marie Baker and Ms Justice Caroline Costello, today said that it was satisfied, in the circumstances of the case, that - in the best interests of the child - it should authorise at the discretion of the medical team the withdrawal of ongoing static support being provided for the woman in this "tragic and unfortunate case".

"The case raised issues of great public importance," said Judge Kearns who ordered that the family and the woman and unborn's legal teams will not have to pay costs of the proceedings.

The court, which paid tribute to the woman's father and father of the unborn - for their "immense courage and fortitude in dealing with the catastrophe which has befallen them and which has been compounded by the necessity of coming to court to give evidence" - found that there was no realistic prospect that continuing life support would lead to the delivery of a live baby.

"The entire medical evidence in this case goes one way only, and that is to establish that the prospects for a successful delivery of a live baby in this case are virtually non existent" said Judge Kearns in a 29 page written ruling.

"To maintain and continue the present somatic support for the mother would deprive her of her dignity in death and subject her father, her partner and her young children to unimaginable distress in a futile exercise which commenced only because of fears held by treating medical specialists of potential legal consequences," said the court.

After the hearing, Health Minister Leo Varadkar said: "I wish to convey my heartfelt sympathies to the family and partner of the woman at the centre of this case at this most difficult time – particularly given the season.

"This case and the judgement will need to be carefully examined before I can make any further comment on it. In the meantime, I would ask that the privacy of this family is respected, at this so difficult and challenging time."

The HSE confirmed new guidelines may have to be issued for medics in similar positions.

“The particular amendment was not to designed to deal with those types of cases and certainly at this point, while there is a degree of clarity brought to the matter, guidelines will have to be seriously considered,” said Paul Connors, HSE’s National Director of Communications.

Earlier, the three judges ruled that highly experienced medical practitioners with the best interests of both mother and unborn child in mind do not believe there is any medical or ethically based reason for continuing with a process obstetrician Dr Peter McKenna described in evidence as verging on the "grotesque" on the particular facts in this case.

This case turns on its own particular facts, said Judge Kearns, which said the court found that continuing support will cause distress to the unborn child in circumstances where it has no genuine prospect of being born alive.

"It would be a distressing exercise in futility for the unborn child," said Judge Kearns.

The court found, as a fact, that there is no realistic prospect of continuing somatic support leading to the delivery of a live baby and granted an order declaring that ongoing somatic support be withdrawn at the discretion of the medical team.

Although there had been instances where lengthy somatic support had led to the birth of a live baby, the court said that it found the evidence in the case, particularly that of intensive care expert Dr Frances Colreavy  persuasive "to a conclusive degree" that ongoing somatic support for the mother is causing her body increasingly to break down and that overwhelming infection from various sources will, as a matter of near certainty, bring the life of the unborn to an end well before any opportunity for a viable delivery of a live child could take place.

On Christmas Eve, lawyers for the unborn told the court that it must be satisfied that there is no real possibility of the unborn child surviving before allowing the machine to be turned off.  

Senior Counsel Conor Dignam, representing the interests of the unborn,  said that the Constitution requires the right to life of the unborn be vindicated where "practicable" and that that right surpasses the right of a non-sentient woman to a dignified death.

But he added that the court's decision whether maintaining somatic support was both justifiable and proportionate  would ultimately rest on the evidence as to the unborn's prospect of achieving viability outside the womb.

Lawyers appointed to represent the dead mother's interests said maintaining a brain dead person on life support for such a long time had been described as grotesque and experimental but said that one man's experiment may be another's pioneering treatment. 

Senior Counsel Cormac Corrigan, representing the woman's interest, said her wishes can be inferred from her love of her other children and the fact that she was a Catholic, that she was happy to be pregnant again and was proud of her pregnancy.

The application to discontinue life support was supported by the father of the unborn who told the court that the couple, who have been together for four to five years, had selected names.

There was unanimous medical evidence that the woman was dead and the court heard that It appeared unanimous among the clinicians who have evidence that the prospect of this unborn surviving to viability - let alone birth - is "small, almost negligible".

On Christmas Eve, when the court sat to hear legal submissions, Judge Kearns indicated that it was the view of the court that this was not an abortion case at all.

Senior Counsel Mary O'Toole, for the woman's family, agreed  and said both the woman and her unborn would be dead were it not for medical intervention.

Ms O'Toole argued the evidence from medical witnesses went a lot further than saying there does not seem to be a reasonable prospect of survival.

The evidence was it seemed highly probable that this unborn would not survive, said Ms O'Toole, adding that in those circumstances, the eighth amendment was not engaged.

Ms O'Toole described the events leading up to the woman being declared dead as "an act of God" in circumstances where she had suffered the dreadful catastrophe of brain injury.

In its legal submissions, the HSE told the court that doctors must be reassured that they can trust their clinical judgment about the best interests of their patients. The HSE supports withdrawal of life support in the particular circumstances of the case and said clinicians treating the brain-dead woman felt constrained by a lack of clarity.

Senior Counsel Gerry Durcan, for the HSE, told the court that the right to life of the unborn in the Eighth Amendment to the Constitution was "undoubtedly engaged".

But he said that it was the agency's view that the appropriate remedy is a permissive declaration, stating that the discontinuance of somatic support to the woman is lawful.

Earlier this this week Diarmuid Martin, the Catholic Archbishop of Dublin, said that it is a pity that these cases come before the courts to decide and said that the High Court would have to make the decision on the basis of medical evidence.

"From the point of view of Catholic teaching and general medical ethics, there's no obligation to use extraordinary means to maintain a life," said Archbishop Martin.

"That applies to both the woman and the child. The woman isn't simply an incubator, the relation between a woman and a child is a relationship and it is very clear that one has to look at what stage is this foetus, what are the possibilities, is it even right to use extraordinary means to prolong life if".

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