Supreme Court dismisses appeals against health board refusal to fund home midwifery services citing statutory interpretation and policy discretion.

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

BETWEEN/

CAROLINE O’BRIEN

344 & 363/02

Applicant/Appellant

and

SOUTH WESTERN AREA HEALTH BOARD

Respondent

BETWEEN/

ANNE T. BRANNICK

345 & 362/02

Applicant/Appellant

and

EAST COAST AREA HEALTH BOARD

Respondent

BETWEEN/

SARAH CLARKE

346 & 361/02

Applicant /Appellant

and

SOUTH WESTERN AREA HEALTH BOARD

Respondent

BETWEEN/

MELISSA LOCKHART

347 & 360/02

Applicant/Appellant

and

SOUTH WESTERN AREA HEALTH BOARD

Respondent

JUDGMENT delivered the 5th day of November 2003 by MR. JUSTICE GEOGHEGAN

These are four appeals from refusals by the High Court (Ó Caoimh J.) to grant various orders by way of judicial review the effect of

which would have been to compel the respondent health boards to provide or fund home midwifery services for the respective

applicants and appellants.

In all four cases leave to bring judicial review proceedings was granted on the grounds that section 62 of the Health Act, 1970

creates a legally enforceable right in favour of the respective applicant. In three of the cases that was the only ground on which

leave was granted. These were the O’Brien, Clarke and Lockhart cases. In the Brannick case however a second ground of relief was

permitted in the order granting leave. That second ground read as follows:

“Unfair and unconstitutional discrimination as compared with comparable expecting mothers in other health board areas and

such disparate treatment is remediable in damages.”

I will treat of this second ground later on in the judgment but I will first confine myself to the common ground on which leave was

given in all the cases.

At this point I should mention that in each case the respondent has served a notice of cross-appeal from so much of the judgment

and order of the High Court as held and ordered:

“1. That the provisions of section 2 of the Health (Amendment) (No. 3) Act, 1996 do not qualify the statutory duty imposed on

a health board pursuant to the provisions of section 62 of the Health Act, 1970, and

2. that the provisions of section 2 of the Health (Amendment) (No. 3) Act, 1996 cannot be construed as overriding any clear

statutory obligation to provide a specific service by a health board in the discharge of its statutory functions or obligations.”

The cross-appeal raises such wide issues that it would be unwise to express any view on them as a moot. If this court is disposed

towards dismissing the appeals, it is neither necessary nor desirable to consider the cross-appeal.

I turn now to what the learned High Court judge described as “the heart of these proceedings” that is to say the interpretation to be

given to section 62 of the Health Act, 1970. It is important to cite the section in full. It reads as follows:

“62. (1) A health board shall make available without charge medical, surgical and midwifery services for attendance to the

health, in respect of motherhood, of women who are persons with full eligibility or persons with limited eligibility.

(2) A woman entitled to receive medical services under this 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.

(3) 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.”

Counsel for the respective applicants and appellants, Dr. Michael Forde, concedes, as he must do, that there is no express provision

in section 62 compelling a health board to provide for home births, but he says that such an obligation must be read into the section

by implication and furthermore he says that if there is a breach of that obligation proceedings lie at the suit of an individual damnified.

In other words, he argues that the section does not just create a duty to the public but creates a duty owed to individuals who

might want to avail of the services referred to. Dr. Forde places heavy reliance on the historical context in which section 62 came

into existence. He rightly points out that the section replaces section 16 of the Health Act, 1953 which as to its relevant part, is

couched in more or less identical terms. Dr. Forde reminded the court that the 1953 Act was introduced in the wake of the famous

mother and child controversy and he invited the members of the court to speculate on what the TDs and senators would have had in

mind as of that time. He says that as of 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. Where there is ambiguity in the interpretation of a statutory provision,

context may in many instances be relevant but I hardly think that the kind of speculation which counsel suggests that this court

should enter into would be legitimate. The question does not arise because new provisions albeit similar were enacted by the

Oireachtas in the Health Act, 1970 and it is section 62 of that Act and not any other section which the court must construe though

the court must, of course, construe it in the light of other provisions in the Act and may have regard if appropriate to statutory

antecedents.

In my view, the furthest that can be said in favour of Dr. Forde’s interpretation of the section is that having regard to the terms of

subsection (3) of the section it would seem that the Oireachtas clearly had in mind the possibility at least that the midwifery services

provided by a health board might include home midwifery services. But this is a far remove from a national statutory obligation on the

health boards to provide such services. I can find nothing in section 62 to justify interpreting it as creating such an obligation. If

subsection (3) did not exist I cannot see how one could conceivably interpret subsection (1) as compelling home as well as hospital

midwifery services. The subsection simply does not say so and there is no justification in the court adding words which are not there.

The expression “midwifery services” could only be given some special interpretation as distinct from the ordinary natural

interpretation if there was some other provision in the section or indeed in the Act which clearly indicated that it was to have such a

special meaning. But subsection (3) of section 62 is not such a provision. That subsection simply deals with what is to happen if there

are in fact home midwifery services provided and an eligible woman avails of those services. The subsection requires that the health

board should provide without charge obstetrical requisites listed in regulations made by the Minister. It has no relevance whatsoever

to the question of whether there is an obligation to provide home midwifery services. In my opinion subsection (1) cannot be

interpreted as requiring such services.

It would be reasonable to interpret subsection (1) as requiring a health board to make available appropriate medical, surgical and

midwifery services. But that obligation would be fully complied with by the provision of medical, surgical and midwifery services within

the confines of a hospital.

I turn now to the point which arises only in the Brannick case. This is the argument that it is discriminatory for one health board not

to provide home midwifery services of a kind which other health boards do provide. I can find no justification for this argument.

Section 62 of the Health Act, 1970 does not lay down a national prescription as to how these services are to be provided. It leaves it

to the individual health board. That must mean that each health board is entitled to consider the matter itself and there may

obviously be different policies in different boards. Unless a health board was to adopt a wholly unreasonable policy, its decisions in

this regard cannot be impugned. Apart from what is contained in the papers before the court it is common knowledge that there is

widespread difference of opinion within medical circles as to the desirability or otherwise of home births. The policy of the East Coast

Area Health Board has been set out in the affidavit of Dr. Brian Redahan who is general manager of that area health board. He has

stated that within the functional area of that board there are comprehensive medical, surgical and midwifery services available for

expectant mothers and their unborn children. He explains that the view of his board is that consultant staff maternity units are

deemed to be the safest environment for deliveries especially in the event of the many complications that can arise. Dr. Redahan

goes on to assert that even if Ms. Brannick’s construction of section 2 was accepted the domiciliary services claimed could only be

provided on behalf of the board by registered medical practitioners who had contracts with the respondent for the provision of such

service and he goes on to say that there are no medical practitioners in the functional area who have entered into such contracts.

There appears to be nothing unreasonable in the policy of the East Coast Area Health Board. It is irrelevant that some other Health

Boards may provide limited home midwifery services. There is no unfair or unlawful or still less unconstitutional discrimination.

I would dismiss all four appeals. For the reasons already indicated it is neither necessary nor desirable to consider the cross-appeal.