The Supreme Court dismissed four appeals seeking orders that would compel health boards to provide or fund home midwifery services. In a judgment delivered on 5 November 2003, Mr Justice Geoghegan held that section 62 of the Health Act 1970 did not impose a statutory obligation on health boards to provide those services.
The appeals followed the High Court’s refusal of judicial review orders. Leave to bring the cases had been granted on the shared argument that section 62 created an enforceable right to the services. In the case of Anne T. Brannick, leave was also granted to argue that it was unfair and unconstitutional discrimination for her health board not to provide services available in some other board areas.
The appellants’ counsel accepted that section 62 did not expressly require home births to be supported, but argued that such an obligation should be implied. The judgment said subsection 3, which addresses obstetrical supplies when a woman uses midwifery services for a confinement outside a hospital or maternity home, showed that the Oireachtas contemplated that boards might provide home midwifery. It did not, however, require them to do so. The provision dealt with what followed if those services were provided; it did not create a duty to provide them.
The Court considered that a board could meet section 62’s requirement to make appropriate medical, surgical and midwifery services available by providing them within a hospital. It found no basis for reading a national obligation to provide home midwifery into the section.
On Brannick’s discrimination argument, the Court said the legislation left each board to decide how to provide the services. Different board policies were permissible unless a policy was wholly unreasonable. The judgment found nothing unreasonable in the East Coast Area Health Board’s policy, which its general manager described as treating consultant-staffed maternity units as the safest setting, particularly given possible complications. The Court rejected the discrimination argument.
Each health board had also filed a cross-appeal concerning the effect of the Health (Amendment) (No. 3) Act 1996 on its statutory duties. The Court did not decide those issues, saying it was neither necessary nor desirable to address them after dismissing the appeals.