Looking East and West on Advance Decision-Making in Pregnancy: The Pregnant Advance Directive Holder in Irish, English and New York State Law Aoife Marie Finnerty LLB, MA Doctor of Philosophy in Law University of Limerick Supervisor: Eoin Quill Submitted to the University of Limerick, May 2021 Abstract In Western society, the point in a woman’s life when she routinely ceases having control over her person in a treatment context – if such a point in time arises – is pregnancy. The Assisted Decision-Making (Capacity) Act 2015 typifies this, providing that advance directives intended to apply in pregnancy be referred for High Court adjudication. The singling out of pregnant women for special treatment where their bodily integrity and self-determination are concerned did not suddenly start with this Act. Instead, impingement on the interests of pregnant women has existed in many domestic legal frameworks for decades. This research discusses the development of such laws and the underpinning moral issues to explain why the Irish legislature drafted the Act in this manner. In doing so, it highlights the many and varied issues – ethical and legal – with the position adopted. Perhaps obvious, but it is only by describing the law applicable to non-pregnant individuals that the extent of these ‘pregnancy exceptions’ are fully articulated. Aiding this exposition, is a discussion of the law in other jurisdictions, namely England and Wales and New York State (and the greater United States). The Irish legislature was undoubtedly guided by the now-repealed 8th Amendment to the Irish Constitution, which protected the right to life of the unborn, however, there is a wealth of international law demonstrating that in pregnancy, exceptions have always been made to the usual rules governing medical treatment. These exceptions can be explicit in laws prohibiting life- sustaining treatment from being withdrawn from pregnant women, despite their wishes. Or, they can be more subtle in laws that allow, however inadvertently, for consent to treatment to be coerced. Spanning seven chapters, this thesis comprehensively discusses informed consent, end-of-life decision-making, advance directives and critically, how the law operates in these areas when the individual is pregnant. Acknowledgements First and foremost, sincere thanks to my supervisor Eoin Quill for his advice and guidance over the past 4 years. I am sure it is rare to find a supervisor whose style of mentoring so suits his supervisee and for that I am eternally grateful. Thanks also to the School of Law at the University of Limerick, which was ‘home’ for the past four years. I wish to express my sincere and heartfelt thanks to Professor Mary Donnelly in University College Cork her generosity of time; without her invaluable, well-timed and considered advice my journey would have been so much tougher. Thanks also to Dr Oliver Feeney in UCC for his advice. Sincere thanks also to Professor Irene Lynch Fannon of UCC for her support and flexibility during my time in UCC and to my colleagues Molly and Jen for their good humour and advice. On a personal level, there are so very many people who provided support, help and friendship along the journey towards PhD. Although it is difficult to understand what is required to complete a PhD thesis unless you have completed one yourself, that has never stopped my closest friends from trying. To my dear friends Dee, Jen, Triona and Niamh, a much-needed listening ear was always there when I needed it and for that, I thank you from the bottom of my heart. In particular, thank you Niamh for your willingness to be where I needed you to be, when I needed you to be there. Without my family, I could not have managed to complete this PhD. To my parents Pat and Maggie, thank you for all the support you have provided over the past four years and throughout my education. Mam, I remember you saying quite some time ago that you thought I would end up going back to do a PhD, so you can definitely claim some of the credit for the idea. To both of you: I am pretty sure this will be my last graduation, so enjoy it! To my brothers, Seán and Brian, thanks for the laughs. Lastly, to my husband John, thank you for everything. Without your support and patience, this would not have been possible. Although these past few years have not been the easiest of times for us, we can look forward now knowing that the best is yet to come. To Annalise and Lila Table of Cases England and Wales AA Re, [2012] EWHC 4378 Re A (A Minor) [1993] 1 Med. L. Rev. 98 A (Children) (Conjoined Twins: Surgical Separation), Re [2000] EWCA Civ 254 A (Medical Treatment: Male Sterilisation), Re [2000] 1 FLR 549 A Hospital NHS Trust v K [2012] EWHC 2922 (COP) A Local Authority v E [2012] All ER (D) 96 A NHS Trust v DE [2013] EWHC 2562 (Fam) A Primary Care Trust v CW [2010] EWHC 3448 Abertawe Bro Morgannwg University Local Health Board v RY [2017] EWCOP 2 Aintree University Hospital Foundation Trust v James [2014] 1 All ER 573 Airedale NHS Trust v Bland [1993] 1 All ER 821 Re AK (Medical Treatment: Consent) (2001) 58 BMLR 151 Al Hamwi v Johnston and another [2005] All ER (D) 278 An NHS Trust v X [2005] EWCA Civ 1145 B (Adult: Refusal of Medical Treatment), Re [2002] 2 All ER 449 B v A Local Authority [2020] Fam 105 Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 Bolton Hospitals NHS Trust v O [2003] 1 FLR 824 Briggs v Briggs [2016] EWCOP 53 C (Adult: Refusal of Treatment), Re [1994] 1 WLR 29 Cambridge University Hospitals NHS Foundation Trust v BF [2016] EWCOP 26 Chatterton v Gerson [1981] QB 432 Chester v Afshar [2005] 1 AC 134 Collins v Wilcock [1984] 3 All ER 374 D (Withdrawal of Treatment), Re [2012] EWCOP 885 E (A Minor)(Wardship: Medical Treatment), Re [1993] 1 FLR 386 F v West Berkshire Health Authority [1989] All ER 545 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 Freeman v Home Office [1984] 1 All ER 1036 Gillick v West Norfolk and Wisbech Area Health Authority and another [1985] 3 All ER 402 Gold v Haringey Health Authority [1988] QB 481 HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam) Heart of England NHS Foundation Trust v JB [2014] EWHC (COP) Hills v Potter [1984] 1 WLR 641 ITW v Z and M [2009] EWHC 2525 (Fam) King’s College Hospital NHS Foundation Trust v C [2015] EWCOP 80 L (Patient: non-consensual treatment), Re [1997] 2 FLR 837 LBL v RYJ [2011] FLR 1279 Local Authority X v MM [2007] EWHC 2003 (Fam) M v N and ors [2015] EWCOP 9 M (Adult Patient)(Minimally Conscious State: Withdrawal of Treatment), Re [2012] 1 All ER 1313 M (Statutory Will), Re [2009] EWHC 2525 (Fam) M (Withdrawal of Treatment: Need for Proceedings), Re [2017] EWCOP 19 MB (Medical Treatment), Re [1997] 2 FLR 426 Montgomery v Lanarkshire Health Board [2016] 1 LRC 350 NHS Cumbria CCG v Rushton [2018] EWCOP 41 NHS Trust 1 v G: Practice Note (2014) 142 BMLR 209 NHS Trust A v M, NHS Trust B v H [2001] Fam 348 NHS Trust v L [2012] EWHC 2741 (COP) NHS Trust v L and Ors [2012] EWHC 4313 (Fam) Norfolk and Norwich Healthcare (NHS) Trust v W [1996] 2 FLR 613 Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1136 Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317 Paton v British Pregnancy Advisory Service Trustees [1979] QB 276. Pearce v United Bristol Healthcare NHS Trust [1998] 48 BMLR 118 R (Burke) v The General Medical Council and Others [2004] EWHC 1879 Rochdale NHS v C [1997] 1 FCR 274 Royal Free NHS Foundation Trust v AB [2014] EWCOP 50 S (Adult: Refusal of Treatment) Re, [1992] 4 All ER 671 Sheffield Teaching Hospitals NHS Foundation Trust v TH [2014] EWCOP 4 Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 All ER 643 Slater v Baker and Stapleton 2 Wils KB, 95 ER 850 (1767) St George’s Healthcare NHS Trust v P [2015] EWCOP 42 St. George’s Healthcare NHS Trust v S, R v Collins and others, ex parte S [1999] Fam 26 T (Adult: Refusal of Treatment), Re [1993] Fam 95 University Hospitals NHS Trust v CA [2016] EWCOP 51 Wilson v Pringle [1986] 3 WLR 1 Wyatt v Curtis [2003] EWCA Civ 1779 X Primary Care Trust v XB [2012] EWHC 1390 (Fam) Y (Mental Patient: Bone Marrow Donation), Re [1996] 2 FLR 787 Ireland A Ward of Court (withholding medical treatment), Re (No. 2) [1996] 2 IR 79 AB v CD [2016] IEHC 541 Attorney General (SPUC) v Open Door Counselling Limited and the Wellwoman Centre Ltd [1988] 1 IR 593 Bolton v Blackrock Clinic & Others (SC, 23 January 1997) Buckley v O’Herlihy & the National Maternity Hospital [2010] IEHC 51 Daniels v Heskin [1954] IR 73 Dunne v National Maternity Hospital [1989] IR 91 Farrell v Varian (1995) MLJI 29 K, Re (HC, 22 September 2006) Fitzpatrick v FK [2009] 2 IR 7 Fitzpatrick v White [2008] 3 IR 551 Fleming v Ireland [2013] 131 BMLR 30 Geoghegan v Harris [2000] 3 IR 536 Governor of X Prison v PMcD [2016] 1 ILRM 116 Health Service Executive v B [2017] 1 ILRM 54 Health Service Executive v JM [2017] IEHC 399 Health Service Executive v KW [2015] IEHC 215 Health Service Executive v R (A person of unsound mind not so found represented by his Solicitor) and ors [2016] IEHC 445 Healy v Buckley [2010] IEHC 191 JM v The Board of Management of Saint Vincent’s Hospital [2003] 1 IR 321 McGee v Attorney General [1974] IR 284 Morrissey v Health Service Executive [2020] IESC 6 Nolan v Carrick [2013] IEHC 523 Norris v Attorney General [1984] IR 36 North Western Health Board v HW and CW [2001] 3 IR 622 O’Donovan v Cork County Council [1967] IR 173 PP v Health Service Executive [2015] 1 ILRM 324 Pyne & Anor v Western Health Board & Anor [2005] IEHC 415 Ryan v Attorney General [1965] IR 294 Shuit v Mylotte [2006] IEHC 89 Simpson v The Governor of Mountjoy Prison [2019] IESC 81 SR (A Ward of Court), Re [2012] 1 IR 305 Walsh v Family Planning Services [1992] 1 IR 496 Warnock v National Maternity Hospital [2010] IEHC 25 Wolfe v St.