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Department of Health slammed HSE over 'Ms Y' care


Health Minister Leo Varadkar

Health Minister Leo Varadkar

It is now clear that the young woman’s plight triggered a major legal drama (picture posed)

It is now clear that the young woman’s plight triggered a major legal drama (picture posed)


Health Minister Leo Varadkar

Senior officials in the Department of Health were seriously concerned about the Health Service Executive's handling of the Ms Y case and intervened to stop the agency from forcibly hydrating her, the Sunday Independent can reveal.

The unprecedented intervention took place over the August bank holiday weekend as the young asylum seeker known as Ms Y was six months pregnant, suicidal and in hospital hoping for an abortion.

Department officials were alarmed to learn that the HSE had obtained a High Court order to forcibly hydrate the woman after she went on hunger strike, and that it was preparing a second legal action in relation to the legality of terminating her pregnancy.

Officials contacted the HSE's senior management to protest at the legal action, who turned out were totally unaware of the proceedings. It is understood the proceedings were taken at local level.

It is now clear that the young woman's plight triggered a major legal drama at the highest levels of the Department of Health and the HSE, as lawyers and clinicians dealt with the first case of a suicidal woman seeking an abortion under new legislation.

The Department of Health confirmed this weekend that it was notified by the HSE at "a very late stage" about Ms Y, one of the first women to seek an abortion on grounds of suicide under the Protection of Life During Pregnancy Act.

A spokesman for the Department said: "The Department became aware of the course of action being followed by the HSE legal team at a very late stage. The Department was very concerned at the approach the HSE legal team was taking, and following discussions between the Department and the HSE leadership, the HSE legal team decided not to pursue its planned approach."

Soon after she sought refuge in Ireland, Ms Y discovered she was pregnant, which she said was a result of rape, and immediately sought an abortion. However, she was close to six months pregnant when she was finally assessed for a termination, on the grounds that she was suicidal.

She was in hospital receiving care when she was told it was too late in her pregnancy for an abortion and her baby would be delivered by Caesarean section instead.

Ms Y went on hunger strike in protest. The team caring for her received legal advice.

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On the Friday of the August Bank Holiday, the Department was informed for the first time about Ms Y's case. It was told that lawyers acting on behalf of the HSE had obtained a High Court action to forcibly hydrate a young woman and her unborn foetus, and was in the process of making a second High Court application based around the legal position of a termination under the new Act.

According to informed sources, the Department officials were "very concerned" to learn about the High Court proceedings around the Ms Y case. They were particularly concerned that the HSE team had secured a High Court order to forcibly sedate and hydrate the young woman, given her vulnerable condition.

The Department of Health officials were also given to understand that the decision to take the legal actions were taken on foot of legal rather than medical concerns.

The case was escalated to the highest levels within the Department, and senior officials contacted the HSE's "leadership" - including the Director General, Tony O'Brien, to call off the court actions over the course of the bank holiday weekend, sources said. According to sources close to the HSE, the senior management were unaware of the legal actions around the Ms Y case. When they found out, "the HSE leadership countermanded the legal strategy being pursued".

In a statement this weekend, a HSE spokesperson confirmed that the court proceedings in the Ms Y case were dropped on the instruction of senior management and that it has hired a senior counsel to a review the "reasonableness or otherwise of the legal approach" pursued in the Ms Y case. It said the HSE's senior management became aware of Ms Y only after she was referred for assessment.

"On review of the matter, and having ascertained that a termination of pregnancy under the Protection of Life in Pregnancy Act was being certified by the relevant clinicians, HSE senior management directed that no further court proceedings were required, and directed that the legal actions be brought to an end and that the verification be acted upon without further recourse to the courts," the statement said.

It added: "Separate to this report, the Director General has retained senior counsel to review the reasonableness, or otherwise, of the legal approach taken in this case and to identify any learnings there from."

It is understood that the woman was not forcibly rehydrated and the High Court was told that she had consented to her unborn child being delivered by Caesarean section. The baby was delivered on Wednesday, August 5, at 25 weeks and is now in State care.

The conflict highlights the complexities raised by the Protection of Life During Pregnancy Act. The legislation contains no cut-off point for an abortion, yet the constitution requires doctors to preserve the life of the unborn "where practicable". A foetus is generally acknowledged as being viable at 24 weeks and sometimes earlier. The case has led to calls for the constitutional amendment on abortion to be repealed.

The HSE appointed a four-person panel to establish the facts around her care as a preliminary step. The Government will decide whether further inquiries are necessary. An incomplete draft copy was leaked to the media last week, but it did not address the conflict that arose over the legal strategy pursued by the HSE. Ms Y has not yet been interviewed by the HSE's review team.

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