In a decision appearing to bring to a close the long-running legal controversy over home birth services, the Supreme Court has unanimously ruled there is no statutory obligation on health boards to provide home birth services.
While Section 62 of the Health Act 1970 required health boards to make available appropriate medical, surgical and midwifery services, that obligation would be fully complied with by providing those services within the confines of a hospital, the court found.
In an eight-page judgment, the five judge court yesterday dismissed appeals by four women against the refusal by the South West Area Health Board and the East Coast Area Health Board to provide them directly or indirectly with home birth services.
The four women had appealed against a High Court judgment of September 2002 which found that Section 62 of the Health Act 1970 did not confer on the women a right to have a midwife provided for them in order to enable them to give birth in their homes.
Since their proceedings were initiated against the South Western Area Health Board and the East Coast Area Health Board, all four women have had private home births. They are Ms Sarah Clarke, Ballyvass, Castledermot, Co Kildare; Ms Melissa Lockhart, Craddockstown Road, Naas, Co Kildare; Ms Anne Brannick, Quill Road, Kilmacanogue, Co Wicklow and Ms Caroline O'Brien, Ballinclea, Glen of Imaal, Co Wicklow.
The women had claimed that the Boards' failure to provide home birth services to them, whether directly or through defraying all or part of the costs of securing the services of an independent domiciliary midwife, breached the Board's obligations under Section 62.
Giving the Supreme Court decision yesterday, Mr Justice Geoghegan said the heart of the proceedings lay in the interpretation of Section 62.
Section 62.1 provided for a health board "to make available without charge medical, surgical and midwifery services for attendance to the health, in respect of motherhood, of women". Section 62.2 provided that a woman entitled to receive services under the section "may choose to receive them from any registered medical practitioner who has entered into an agreement with the health board for the provision of those services and who is willing to accept her as a patient.
Section 62.3 stated: "When a woman avails herself of services under this section for a confinement taking place otherwise than in a hospital or maternity home, the health board shall provide without charge obstetrical requisites to such extent as may be specified by regulations made by the Minister." Mr Justice Geoghegan said Dr Michael Forde SC, for the women, while conceding there was no express provision in Section 62 compelling a health board to provide for home births, had contended such an obligation must be read into the section by implication.
The judge said counsel relied heavily on the historical context in which Section 62 came into existence, replacing Section 16 of the 1953 Health Act. Counsel had argued that in 1953 it would have been unthinkable that a provision for free maternity services would not have involved the private home as much as the hospital.
Mr Justice Geoghegan said he did not believe it would be legitimate for the court to enter into speculation regarding the context of Section 62. The question did not arise because new, albeit similar, provisions were enacted by the Oireachtas in the Health Act 1970 and it was the construction of Section 62 of the 1970 Act which the court was engaged in.
The furthest that could be said in favour of Dr Forde's interpretation of Section 62 was that in Section 62.3 it would seem the Oireachtas clearly had in mind the possibility at least that the midwifery services provided by a health board, might include home midwifery services.
However, that was "a far remove from a national statutory obligation on a health board to provide such services". The judge said he could find nothing in Section 62 to justify interpreting it as creating such an obligation.
Section 62.3 simply dealt with what is to happen if there were in fact home midwifery services provided and an eligible woman availed of those services. It had no relevance whatsoever to whether there was an obligation to provide home midwifery services.
The judge also dismissed a claim by Ms Brannick that it was discriminatory for the ECAHB not to provide home midwifery services of a kind which other health boards did provide. He said he could find no justification for that argument.
