The Attorney General refused to become a party to High Court proceedings seeking a court order on continued life-support for a brain-dead pregnant woman.
The planned action included seeking to make her and the foetus a ward of the State.
Meanwhile, The Irish Times has learned that the woman, from London, was in her early 30s and on a visit to the Waterford area when she suffered a brain haemorrhage in a hotel swimming pool. She was taken to Waterford Regional Hospital. She had been married last year and was expecting her first child.
The woman was put on a life-support machine in the hospital. However, she was found to be brain-dead.
Because of her pregnancy, the hospital sought legal advice on how to proceed, and lawyers for the hospital prepared to take the legal action. They informed the Attorney General and said they intended to join him in the action as "legitimus contradictor", that is, to argue the other side.
But, unlike his predecessor, Mr Harry Whelehan SC, Mr McDowell refused to champion the rights of either side of the argument.
In the X case in 1992, which eventually made abortion lawful in this State in limited circumstances, Mr Whelehan, in his role as guardian of the public interest as distinct from chief law officer of the State, initiated a High Court action to vindicate the right to life of the unborn.
Mr McDowell told the hospital's solicitors, BCM Hanby Wallace, in a letter on May 25th: "The necessity for joining the Attorney General would arise from my role as chief law officer of the State. My own preference would be that if any interest required representation, the court would make an order appointing persons to represent that interest."
He added that he could well imagine circumstances where, were the Attorney General to be joined in the action because of the public importance of the issue, the court might request the Attorney General to give an undertaking as to "the costs of an unprotected interest which the court felt to be in need of representation".
The Attorney General said: "I feel it would be undesirable for the Attorney General to be fixed with the obligation to argue for a proposition at the election of a party to the proceedings."
He disagreed with legal opinion of Mr Gerard Hogan SC and Mr Peter Ward, counsel for the hospital, who advised that "under no circumstances should the ventilator be switched off without a court order for so long as the organs of the mother are viable and have not come to a natural end, thereby inevitably terminating the life of the foetus".
Mr McDowell said he did not think such High Court proceedings were necessary at all.
"While it is always open to a hospital to seek protection and guidance from the courts in the handling of a difficult issue involving life and death, the facts of this case would not prohibit the hospital from making its own ethical judgment and from acting on it, even to the point of withdrawing the life support regime currently in place," he said.
"Based on the medical opinions furnished to me and my own limited acquaintance with medical literature on the issue, I am not of the view that a court order would be necessary before the life support regime for Mrs. . . could be withdrawn."
The Attorney General said he was making his views known on the issues of "legitimus contradictor" and the necessity for court proceedings "to prevent any misunderstanding should similar circumstances arise in the future."