Turf war reaches
Supreme Court
© Marie O’Connor

On Tuesday, 21 October, the State's refusal to provide community maternity services was once again ventilated in the Supreme Court. Last autumn four women took the Eastern Regional Health Authority (EHRA)) to the High Court over its failure to pay a “grant”- payable under the 1970 Health Act - to mothers planning to engage a midwife for a home birth. In recent years, the Authority has been increasingly loath to fulfill its obligations under the Act and this reluctance has landed it in court on a number of occasions. Last September, Mr. Justice Aindrias O Caoimh decided that the 1970 Act did not entitle mothers to a free home birth service from the State, hence the Supreme Court appeal.

This case is interesting in a number of respects. It can be seen, firstly, as an attempt by citizens to enforce their legal entitlements to primary health care from a recalcitrant State, secondly, as a war between doctors and women for the control of childbirth, and thirdly, as a (health) board game of (medical) Monopoly.

Recent years have seen a veritable procession of mothers, whose children have special needs, taking the Department of Education to court in an attempt to force the State to provide appropriate education for their sons and daughters.

Over and over again, the Department has proved its readiness to spend enormous amounts of money in legal fees fighting rearguard actions against parents in vain and misguided efforts to prevent them from accessing their rights to services that, in other European Union countries, citizens take for granted.

At best a nuisance, at worst a deviant, such a citizen is seen as presenting an obstacle to the maintenance of the status quo; efforts to access care are to be thwarted at all costs, lest the State be obliged to extend its parcimony to all of its children, equally.

This is precisely the attitude that has prevailed for years towards women seeking maternity services from self-employed midwives. The current Supreme Court case marks 20 years of litigation from disaffected consumers trying to enforce their rights under the 1970 Act. The first such case was taken in 1983 against the Southern Health Board by the aptly-named Human Family. Five years later, another case taken against the Board went to the Supreme Court: the judges opined that, while women were legally entitled to community midwifery care, such services could be provided by family doctors. This was akin to saying that, while women in residential institutions are entitled to hairdressing services, such services can be provided by barbers.

The judges did rule, however, that merely indemnifying the applicant against her costs did not amount to providing a service under the Act, but this aspect of the case, although significant, was not aired this week in the Supreme Court.

In the good old days when services cost buttons, health boards entered into service agreements with independent midwives. The fees paid by the State in the 70s and early 80s were nominal: 30 pounds was supposed to cover antenatal care, unlimited attendance during labour and birth, plus home visits for up to 14 days after the birth. Midwifery fees at that time, however, ranged from 50-300 pounds, making home birth an option only for those who could afford it.

During the 80s, as consumer interest in home birth grew, doctors’ opposition intensified: independent midwives were, and are, obstetricians’ sole competitors. Health boards, whose top management was often drawn from the ranks of the medical profession, mirrored medical hostility to midwifery care. Hostility, intransigeance, obstructionism and intimidation were frequently reported by mothers seeking home birth services at local health clinics.

Some women were so determined not to go to hospital that they gave birth at home with only their partners to assist them: many had been refused a midwifery service by the State. Between 1981-85, 11 per cent of all planned home births in the Republic were professionally unattended.

Home birth mothers were looking for a different style of service, one that was based on physiology and “nature”; many were driven by a desire to avoid the drugs and technology used routinely in labour wards under “active management”. Most of the women choosing home birth did so because they believed that home offered a safer environment for their babies to be born into.

For the majority, control was central to their decision as to where to give birth to their child. Nearly all the women opting for home did so in the belief that, if they went to hospital, they would probably find themselves at the receiving end of a standard package of interventions, reducing what should have been a major life event, the birth of a treasured baby, to a medical procedure controlled by hospital staff.

Despite the many obstacles placed in their way, 1990-99 saw an increase of 59 per cent in the numbers of women attending self-employed midwives.

During this decade, health board grants became increasingly real, increasing 12-fold. In 2000, following a number of legal actions, the grant was raised to £650; professional fees were then around £1,200. The following year, the grant was increased to £1,000 pounds, but the leapfrogging continued: midwifery fees rose to around £1,500.

For VHI and BUPA subscribers, the gap between professional fees and health board grants was more then filled. But those unable to afford private health insurance found themselves in difficulty. As home birth once more became an option reserved for the rich, women took to the courts: a tidal wave of litigation broke on a number of health board shores.

But by the late 90s, health boards had elected to pay consumers directly, refusing to recognise midwives as independent professionals. This refusal to enter into service agreements with midwives, which began in the mid-80s, was related to the boards' fear of litigation. It was a maneuver that backfired badly, however. Health boards now found themselves checkmated, unable to control the rising costs of providing a service, thanks to their refusal to pay midwives directly.

Some authorities engaged in delaying tactics, cynically obstructing grant applications from pregnant women, secure in the knowledge that biology would, inevitably, triumph over justice. Mootness was all: with the arrival of the baby, the case, legally speaking, died. Eight women were trapped in this way, their cases stayed, or put on ice.

Faced with growing price increases, ERHA was the first to mutiny: the Authority capped the payment at £1000 and refused to pay midwives’ travel expenses. But other health boards continued to reimburse midwifery fees in full, on top of travel expenses.

Health boards then introduced eligibility “criteria” for the service, although no such requirements were ever provided for in law. Mothers who lived fifteen miles from a hospital were told they were “unsuitable” for a home birth; so were mothers who lived just two miles away. Strangely, the argument that living fifteen, or two, miles from a maternity unit constitutes a risk to mother and child is one that is never heard in the run-up to closing a maternity unit.

By then, in Dublin, ERHA had entered the market itself as a provider of home birth services, through its agent, the National Maternity Hospital. Like the Western Health Board in Galway, the Authority began a “pilot scheme” in 1999. This involved giving the hospital half a million punts to make a delivery suite look like a living-room, with all machines hidden behind closed chipboard doors, so that a small number of women - 2 per cent of the overall intake - could feel at "home" in the biggest maternity hospital in Europe; these women, additionally, were provided with community midwifery services, during pregnancy and after birth, while a tiny number - less than 0.25 per cent of the total hospital population - succeeded in having a home birth.

The scheme was, and is, so restrictive that only 14 women per year, on average, qualified for a home birth over the past four years. Northside women, for example, some of whom live ten minutes from NMH, are excluded altogether from the scheme, on grounds that have never been explained by Holles Street hospital.

But the pilot served its purpose, which was to enable health boards to play Medical Monopoly for real, reserving the market for community midwifery to their own agents. Henceforth, women looking for a home birth service could be told to get lost, and apply to NMH, the Board’s own service provider. Consultants' incomes - averaging e600,000 annually from obstetrics - were secure.

In January 2002, all home birth grants under the Act were suspended by ERHA. Since then, however, a couple of its health boards have opted to shell out, rather than face legal action. Today, only the East Coast Area Health Board continues to refuse mothers home birth payments. In six weeks or so, however, when judgment is given, all will be clarified.

Research shows that over half of the women who choose home birth have previously had a negative hospital birth experience. Some years ago a women was interviewed about her experience in the Rotunda Hospital, being transported, like a parcel, from one part of the hospital to another: “They were so busy in there” she said, “I was afraid they were going to lose me”.

© Marie O’Connor
As published in the Northern Standard late October

© National Birth Alliance
An Chomhghuallaiocht Naisiunta Breithe