The High Court has refused a woman’s challenge to the HSE’s refusal to provide a home birth service for her planned vaginal birth after a previous caesarean section, finding that the policy behind the decision was reasonable.
The woman, anonymised in the judgment as AJA Teehan, sought judicial review of the refusal. She argued that the HSE had applied a blanket policy without properly considering her individual circumstances. She sought to have the decision quashed and her request reconsidered, among other reliefs. She did not ask the court to order the HSE to provide a home birth service.
The HSE’s Memorandum of Understanding with self-employed community midwives excludes women with a previous caesarean from the home birth service covered by the scheme. The judgment says the restriction is linked to clinical indemnity: professional insurance was unavailable in the private market, and midwives participating in the State-backed scheme had to follow the MOU. The HSE and Minister defended the policy as based on medical considerations and the risks of complications that may require urgent hospital care.
The applicant submitted that the HSE had fettered its discretion and should assess her case individually. Her supporting experts considered a home birth feasible in her circumstances, while acknowledging that hospital birth would be safer. The respondents’ expert evidence raised concerns including monitoring during labour and the time needed to reach hospital and perform an emergency caesarean. The judge did not resolve the competing medical evidence. She said the question was whether the policy was reasonable, not which experts were right.
Justice Iseult O’Malley said the Supreme Court’s decision in O’Brien v South Western Area Health Board established that the HSE has no statutory duty to provide home birth services. If it chooses to offer them, it may adopt guidelines provided they are not “wholly unreasonable”. The court found that the MOU followed a careful process involving stakeholders, relied on statistical evidence, and allowed individual assessment for other listed conditions. Reclassifying previous caesarean as an individually assessed factor would require a clinical decision the court was not entitled to make absent manifest irrationality.
The judge also rejected the applicant’s reliance on the European Convention on Human Rights decision in Ternovszky v Hungary, saying it did not establish an unqualified right to a publicly provided home birth service and concerned different facts. She expressed no view on section 40 of the Nurses and Midwives Act 2011 because it had not been brought into force. She noted a potential policy problem where a woman might give birth without skilled assistance, but said there was no reason to believe that issue would arise in this case.
The court refused all relief sought. It did not order the HSE to reconsider the application or provide a home birth service.