During Christmas week December 2014, the High Court was called upon to decide on a matter of great urgency – to resolve a medical legal issue of significant public importance.
To date nothing has changed regarding medical legal guidelines for the management of exceptional circumstances during pregnancy.
This paper by Maria Watson BL seeks to explore that decision in great detail, from the medical perspective highlighting the lack of clear medical legal guidelines in emergency situations such as those described hereafter.
In the a tragic case of PP v. HSE, a 26 year old pregnant woman, mother of two, was pronounced clinically dead, having suffered a brain stem death on the 3rd of December 2014.
The father of the deceased arrived at the hospital to see the remains of his daughter in the ICU unit.
However, against the wishes of the family, the father was informed that for legal reasons the medical staff were “constrained to put his daughter on life-support because her unborn child had a heartbeat”.
The medical team experienced a chilling effect from the Constitution, Article 40.3.3 ‘the right to life of the unborn’.
Background to the Case
Explanatory Note: PP was the individual taking the case against the HSE and was the father of NP the 26 year old woman in question. MJ was the woman’s partner and father of the unborn child.
At the time of death her pregnancy was at the gestational age of 15 weeks. She was not married but at the time of her death was engaged to MJ, father of her unborn child.
Both were described as happy and looking forward to the pregnancy. She had then been admitted to hospital complaining with persistent headaches and nausea.
On the 29th of November, 2014 she sustained a fall while in hospital and was later found to be unresponsive and was urgently incubated. She was later transferred to a Dublin hospital where it was determined she had suffered a brain stem death. She was then discharged back to a hospital outside Dublin.
Over the next two weeks the family traumatically had to watch their loved one change before their eyes. She became unrecognisable, swollen, infected and her body deteriorated in front of them.
It had been explained to her children that the nurses were looking after her “until the angels appear”.
One of the children became very distressed by the appearance of their mother when they last saw her despite the make-up the nursing staff had applied.
The family had a meeting, the father of the deceased, his sister-in-law (who was like a mother to the deceased when her own mother died in 2007) and the partner father of the unborn.
They all agreed life-support should be withdrawn because his daughter was dead and the likelihood of the unborn child surviving under the circumstances was extremely doubtful.
They wanted their loved one to have a dignified death and be put to rest.
Her father and family was left with no alternative than to take a case to the High Court as the hospital was unable to seek written legal clarification directing them on the matter. The medics’ hands were tied in legal uncertainty restricting their medical expertise managing the situation independently.
Medical professionals take an oath to uphold, protect and preserve life. But when the woman was pronounced clinically dead that obligation moved to the unborn.
However, the clinical prognosis of the unborn was not good due to the rapid deterioration of the mother. This posed great challenges to the medics to sustain her on life-support. They needed to bring the unborn to a reasonable age of gestation to allow a medical team to carry out a caesarean section if the foetus had any chance of survival.
High Court Legal Teams & Submissions
The High Court heard the case on Tuesday the 23rd of December for a full hearing when it normally would be closed for Christmas.
The matter was one of urgency and grave public importance. A specially convened Divisional Court comprised of three judges, the President of the High Court, Mr. Justice Nicolas Kearns, Ms. Justice Marie Baker and Ms. Justice Caroline Costello presided over the case.
Five legal teams gave submissions to the court representing the father (plaintiff) of the deceased, the clinically dead woman, the foetus, the hospital and the HSE.
The law requires that the best interests of the unborn were met due to the constitutional right of the unborn before the judges could come to a decision to continue or withdraw life-support.
Medical Expert Evidence
Seven medical professionals (detailed hereunder) gave evidence on the matter of the clinically dead woman, NP.
The medical evidence varied based on their expertise of NP’s condition and of the prognosis of the foetus but they agreed on one point which was the inability to sustain the clinically dead woman in order to bring the unborn to term successfully, or the likelihood of survival, and if any, to what degree without handicap.
The negative prognosis of the foetus was based on the medical condition of NP. She had ongoing infection, extremely high temperature which was abnormal to maintain a foetus in those conditions.
In addition, the level of drugs given to manage the infections of MRSA and urinary tract infection which would not be recommended in pregnancy. To sustain NP on life-support, in order to bring the foetus to term was becoming increasingly challenging with increasing organ failure.
Intensive Care Medical Evidence
Dr. Brian Marsh, Consultant in Intensive Care Medicine, gave evidence of the level of infection and management required. He also stated the importance of the age of gestation at the time of brain death being a crucial factor for the survival of the unborn child.
He referred to a study in Germany called Heidelberg Study. The report was over a thirty year period covering thirty cases, of which only seven fitted into the category of seventeen weeks or less gestation.
Of those, there were only two survivors, one of whom died at thirty days post-delivery. The report indicated the number of cases reported were too small to determine a survival rate.
Dr. Frances Colreavy, Consultant in Intensive Care Medicine, described a rotten brain which was leaking to the outside with an open wound and infection.
She went on to give evidence of fluid in PN’s lungs, urinary tract infection with lower abdominal wall inflamed. Dr. Colreavy said it was unlike any she had seen before which indicated infection underneath. Her medical view was that it was not appropriate to continue somatic support as it was ‘experimental medicine’.
Obstetrics and Gynaecology Medical Evidence
Dr. Peter Boylan, Consultant Obstetrician, gave evidence that the CT scan result showed 6 x 4cm cystic lesion on the left hemisphere which caused a catastrophic event.
He believed the cyst had developed in PP’s brain over time which caused her headaches and nausea and explained her fall on initial admission.
In carrying out further tests the doctors became increasingly concerned in treating her having regard to the pregnancy, and not to do anything that would “get them into trouble from a legal point of view and were awaiting legal advice”.
Dr. Boylan believed the stage of gestation was more likely to be thirteen weeks rather than fourteen or fifteen weeks.
He distinguished the withdrawal of ongoing support rather than the direct termination of life. He described the present treatment as an extraordinarily rare situation and he could find no case where somatic support began at fourteen or even thirteen weeks with a successful outcome.
A particular concern was the open wound in her skull causing sepsis and infection of her blood stream resulting in infection of the unborn child causing a pre-term delivery.
Dr. Peter McKenna, Consultant Obstetrician, calculated pregnancy at fifteen weeks when PP was declared brain dead, describing her high temperature of 39 degrees as worrying.
Dr. McKenna, stated based on the medical evidence he heard, that any continuance of treatment would “be going from the extraordinary to the grotesque”.
He confirmed that what the mother PP is suffering from would in turn be causing distress to the unborn child.
Dr. David Mortell, Consultant Obstetrician who had dealt with PP and her unborn child and provided reports stated he was now aware of “the dreadful state the patient was in” upon hearing Dr. Colreavy’s evidence in Court.
Dr. Timothy Lynch, Consultant Neurologist gave evidence confirming the evidence of her brain death.
Dr. Stephen McNally, Consultant Neurosurgeon and national lead in neuro-oncology gave evidence.
He stated that in dealing with PN’s family he found “their frustrations and their humanity both touching and humbling”. While he had seen “some dreadful things in neurosurgery he had never seen this”.
He said how difficult it was not to follow the family’s wishes because of the lack of clarity to the legal position of the unborn child.
A ‘Chilling Effect’
The chilling effect in the absence of medical legal guidelines arising from the 8th Amendment to the Constitution left the medical profession with their hands tied and unable to act in their professional capacity.
The medical challenge to maintain this clinically dead woman was described as “experimental”. She was rapidly deteriorating, before the eyes of her family looking on to witness their loved one becoming unrecognisable to them. It was both cruel and traumatic to endure such treatment against their wishes.
The High Court Decision
At the outset, the Court gave tribute to the plaintiff and to the partner of PN for what could only be described ‘as 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 in this matter’.
The Court decided that this was not a case of abortion as it had been accepted by the Court that all parties were looking forward to the pregnancy.
The Court held that the entire medical evidence went only one way, to show the ‘prospects for a successful delivery of a live baby in this case are virtually non-existent’.
Therefore, the constitutional right of the unborn had been exhausted and medical evidence stated there was no prospect of a baby surviving.
It was not in the best interests of the unborn to continue. The mother PN should be given a dignified death and be put to rest.
In its decision the Court considered the jurisprudence of well-known wardship cases. In particular, the words of Lord Browne Wilknison in Airedale NHS Trust v. Bland described the case of PN when he set out the general principle in regard to withdrawing life support as follows:
In my judgment it must follow from this that if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person.
An Irish perspective was found and stated in Maternal Brain Death – An Irish Perspective (Farragher, Marsh and Laffey – Irish Journal of Medical Science, Vol. 174 – No. 4, p. 55) where they say:
‘In contrast, if the available medical evidence suggested that there is no realistic prospect of delivery of a live baby then maternal somatic support would be considered futile, and not be permitted.’
In the final concluding remarks of the judgment the Court held;
To maintain and continue the present somatic support for the mother would deprive her of 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.
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 which Dr. McKenna described as verging on the grotesque on the particular facts in this case.
The Court is therefore satisfied, in the circumstances of this case, that, in the best interest of the unborn child, it should authorise at the discretion of the medical team the withdrawal of ongoing somatic support being provided for N.P. in this tragic and unfortunate case.
It will accordingly make a declaration and order to that effect. This case raised issues of great public importance.
The Court will therefore grant to the plaintiff the costs of the proceedings and will also make similar orders for the costs of the representatives of both N.P. and of the unborn child.
This judgment emphasised a case of great public importance in the absence of medical legal guidelines arising from the 8th Amendment.
It is about removing the chilling effect of the Constitution under Article 40.3.3 for the Medical Profession.
In effect, it is to untie the hands of doctors to allow them the legal freedom to carry out their professional duties as medical practitioners and make those difficult decisions, of which, they make on a daily basis whilst caring for the best interests of their patients.
In addition, it must be noted doctors have an ethical duty to make every reasonable effort to protect the life and health of pregnant women and their unborn babies, not end it.
The chilling effect experienced by medical doctor’s practising defensive medicine illustrates the great urgency for medical legal guidelines in such matters.
This tragic case was not an abortion case, yet it became one.