The Cedar Lounge Revolution

HIQA Report let government off hook. November 14, 2013

A very welcome post by Brendan Young, member of Action on X. As Brendan notes “‘Action on X’, which campaigned for legislation based upon the ‘X Case’ – but regards James Reilly’s recent abortion law as unacceptably restrictive. Action on X has the support of the National Women’s Council of Ireland, SIPTU, UNITE the Union, the ICTU Women’s Committee, USI, and the African women’s support network AkiDwa.”

Recent comments by Dr Sam Coulter Smith (Master of the Rotunda maternity hospital) about the strains the hospital is under, and the findings in the recent HIQA Report (into the death of Savita Halappanavar) that our maternity hospital records are not systematically centralised and monitored, highlight the deep problems in the Irish health service. But the HIQA Report, while it revealed problems with the medical care given to Savita Halappanavar, avoided the issue of the law. And there is a risk that the Galway University Hospital medical team, who may have made errors, will be scapegoated for Savita’s death. Yet it is Irish law, including Art. 40.3.3 of the Constitution and the recently-passed Reilly Act on abortion, that continues to pose risks to women – including those going through inevitable miscarriage.

Doctor Peter Boylan hit the nail on the head in saying that the state, through HIQA, did not ask the obvious question in relation to the death of Savita Halappanavar. What impact did the law on terminations have on the actions of the Galway medical team? Would an earlier delivery – a termination of pregnancy – have saved her life? In his opinion it probably would have. HIQA didn’t ask. Why not?

Last year’s HSE Report into Savita’s death raised the legal issues. It said ‘concerns about the law … impacted on clinical professional judgement’. It quoted the consultant obstetrician as saying “If there is a threat to the mothers’ life you can terminate. If there is a potential major hazard to the mothers’ life the law is not clear…. There are no guidelines for inevitable miscarriages.” The same consultant also said: “Under Irish law, if there’s no evidence of risk to the life of the mother, our hands are tied so long as there’s a fetal heart (sic).”

The HSE Report’s Recommendation 4b makes clear that the law restricts clinical decisions, and suggests change: “… We recommend that the clinical professional community, health and social care regulators, and the Oireachtas consider the law including any necessary constitutional change and related administrative, legal and clinical guidelines in relation to the management of inevitable miscarriage… These guidelines should include good practice guidelines in relation to expediting delivery for clinical reasons. We recognise that such guidelines must be consistent with applicable law and that the guidance so urged may require legal change.”

It is also clear that the consultant obstetrician considered a termination when Savita asked for it but felt legally bound to rule it out because there was a fetal heartbeat – even though the demise of the fetus was inevitable. Yet the HIQA Report poses the issue exclusively as management of sepsis – making no suggestion that ‘expediting delivery’ could have been done to avert infection / sepsis in its list of 13 ‘missed opportunities’ to intervene.

Flowing from its enquiries, HIQA’s Recommendation N10 says: “The HSE should develop a national clinical guideline on the management of sepsis… This guideline should incorporate an escalation/referral pathway that includes clinical, legal and ethical guidance for staff at critical clinical points …”

HIQA’s ‘escalation/referral pathway’, by definition, assumes the woman’s health is deteriorating due to sepsis. Recommending ‘… legal and ethical guidance for staff at critical clinical points’ is to accept that a woman must reach a critical condition before termination can be considered – the only issue where the law becomes relevant. Why would a woman, her loved ones or her doctors wish to allow sepsis to develop to such a potentially lethal extent? Yet termination of pregnancy to prevent infection is not considered in HIQA’s Recommendations. The HSE Report is commended in passing, but its key arguments to legislators are glossed over.

By placing the blame for Savita’s death on the consultant obstetrician’s failure to manage sepsis and ignoring the legal restrictions upon her clinical choices, the HIQA Report is letting Fine Gael, Labour, Fianna Fáil and Sinn Féin off the hook. They can all comfortably point to the need for better management of hospitals and / or more resources – all of which are needed. 

The consultant obstetrician may have made errors, but she should not be made the scapegoat for Savita’s death. A fundamental problem in dealing with inevitable miscarriage is that Art. 40.3.3 of the Constitution, and its interpretation by the Supreme Court, effectively preclude termination of pregnancy during miscarriage if there is a fetal heartbeat – until a woman’s life is at risk. This legal restriction on clinical action contributed to Savita’s death and politicians have a responsibility to deal with it.

If the HIQA Report is used to inform the medical guidelines accompanying James Reilly’s abortion law, its focus on management of sepsis will entrench a perverse situation where medical conditions due to pregnancy that are not in themselves life-threatening (eg inevitable miscarriage) must be allowed become life-threatening before it is legal to perform a termination of pregnancy – on a fetus that will die anyway. The same legal restriction that allowed sepsis to develop in Savita Halappanavar will remain.

James Reilly’s abortion law, based upon Art. 40.3.3, codifies this restriction by giving legal protection to the ‘unborn’ from the moment of implantation in the womb until delivery. Such restriction on doctors, which HIQA did not examine, must be removed so that women’s lives can be protected. At minimum, the HSE Recommendations must be acted upon. Both Art. 40.3.3 and Reilly’s abortion law must be repealed.