Sunday 8 December 2019

Midwife's bid to prevent HSE withdrawing indemnity cover dismissed in High Court

The midwife claimed the denial of her indemnity cover was in breach of an agreement signed in April 2014 between herself and the HSE.
The midwife claimed the denial of her indemnity cover was in breach of an agreement signed in April 2014 between herself and the HSE.

A High Court judge has dismissed a midwife's bid for an injunction preventing the HSE's from withdrawing indemnity cover from her practice.

The application was brought by Philomena Canning, who specialises in providing home birth services. She claimed the HSE's decision to withdraw her indemnity cover, taken earlier this month, is unlawful and has effectively shut down her practice.

The HSE, which opposed the application, said it temporarily suspended her insurance cover pending an investigation into the circumstances of two home births at which Ms Canning provided midwifery services.

The HSE argued while no findings of wrong doing had been made against Ms Canning of Loreto Avenue Rathfarnham Dublin, it had to act in the interest of public health until the investigation into the incidents had been concluded. 

In respect of the complaints Ms Canning said she did not accept the standard of care she provided fell below the required levels. 

Last night at the High Court, following submissions from both parties Mr Justice Max Barrett said he was not prepared to grant Ms Canning an injunction restraining the HSE from withdrawing indemnity cover under its Clinical Indemnity Scheme.

The application was for an injunction to remain in place pending the final outcome of the dispute between the sides.

The Judge said while Ms Canning had made out an arguable case, she had not made out that damages would not be an adequate remedy. In order for any injunction to be granted the court must be satisfied damages cannot be an adequate remedy for the alleged wrong.

The Judge urged the HSE to conclude any investigation into incidents involving Ms Canning as soon as possible.  He also suggested Ms Canning consider an "open offer" from the HSE that would allow her return to work. The HSE had said it would restore her insurance if she worked alongside another midwife, 

Following the ruling Ms Canning represented by Eanna Mulloy SC, said it was his cleint's hope the full hearing would come before the courts as soon as possible.

Counsel said the HSE "rushed to judgment" in respect of Ms Canning. No other midwife provided home birth services had been treated in this way, counsel added, and news of her suspension hit her like "a bombshell".   The two mothers whose care are at the centre of the incidents are supporting Ms Canning, counsel said. 

Earlier Counsel said his client would not accept the HSE's offer that would allow her return to work. It was an attempt by the HSE to justify the suspension it was never entitled to do in the first place and further damaged her reputation,counsel said.

She launched proceedings after she received a letter last month informing her of a hospital report concerning a “serious incident” involving a planned home birth.

She says the mother in that case had to be transferred by ambulance to hospital due to pain and dizziness after giving birth. The mother was discharged by the hospital some 10 hours after being admitted.

Ms Canning issued a notice of the incident to the designated midwifery officer at the HSE.  Counsel said the HSE later informed her that her indemnity cover had been removed because of the August hospital report, and other incidents.

She was ordered to shut down her practice. The removal of her insurance was in breach of an agreement signed in April 2014 between herself and the HSE.

The HSE represented by Paul Anthony McDermott Bl said his side was fully entitled and justified in taking the steps it did.

Counsel said the HSE had to take stapes once it was informed, in once case y an external party to the HSE, of the incidents at the two home births. Both incidents involved concerns of loss of blood to the mothers, counsel said.

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