An expectant mother who lost her High Court bid to force the HSE to provide her with midwifery services so she could have a home birth will not have to pay legal costs well above €100,000.
Last Month, Ms Justice Iseult O’Malley dismissed Aja Teehan’s action against the HSE and the Minister for Health and adjourned until today the question of costs.
Ms Justice O’Malley had decided that Ms Teehan, a university lecturer, was not entitled to compel the HSE to accept liability for risk involved in a home birth which it did not believe was justifiable.
Today the Minister and the HSE sought orders that Ms Teehan pay their legal costs. Both argued that no point of public importance had been raised in the case and that the normal practice, where the losing party should pay all the legal costs, should apply.
Ms Teehan’s lawyers argued that no order in regards to costs should be made. They claimed the normal practice should be departed from as Ms Teehan had raised issues of public importance in her action.
Ms Justice O’Malley said she would not make any order in relation to the costs of the action, which means each side will have to pay their own legal fees.
She agreed with submissions made by Ms Teehan’s lawyers that she had raised issues of public importance in her action. She said the case had brought clarification to certain matters.
Ms Teehan, who was not in court, and who is expecting her second child on October 13th, 2013 wanted the birth to take place at her home in Thomastown, Co Kilkenny, assisted by a HSE midwife.
Indemnity cover
Her first child was born following a caesarean section. She claimed a HSE blanket policy of refusing to cover home births for women who have previously had caesarean section births meant a midwife would not get indemnity cover to attend the delivery.
In her judgment last month dismissing Ms Teehan’s action, Ms Justice O’Malley said the issue of insurance cover had been at the heart of the problem.
Medical professionals could not practise without insurance and if something went wrong in any childbirth the consequences were immensely tragic in human terms as well as extremely expensive in financial terms.
The judge said while Ms Teehan argued the risk in her case was minute, there was no suggestion she would waive liability in respect of any injury resulting from a decision to engage a midwife for a home birth.
It was also clear the midwife she proposed to use would not act without insurance. Ms Teehan was asking the HSE to assume the burden of liability relating to a risk it considered, on reasonable grounds, was better avoided.
Ms Teehan had sought an order quashing a decision of the HSE earlier this year refusing her application for a home birth. She had also sought a declaration that the HSE’s failure to consider the merits of her application was unreasonable and unlawful because it amounted to the application of a blanket policy that fettered the HSE’s discretion.
She claimed the HSE’s refusal breached her constitutional rights and the European Convention on Human Rights.