Philomena Canning: The ‘warrior who stood up for what was right’

Philomena Canning: The ‘warrior who stood up for what was right’
Philomena Canning leaving the Four Courts in February 2015 after the HSE’s agreed to reinstate her clinical indemnity insurance. Three expert reports found no failings in the standard of her care. Picture: Courtpix.

Independent midwife Philomena Canning was devastated that she was going to die before getting to tell the full story of her battle with the HSE, writes Michael Clifford.

Philomena Canning died on 22 March last. She was 59 and had been suffering from ovarian cancer. She had forged a career as an independent midwife specialising in home births.

That vocation had brought her into conflict with the HSE which, she believed, was culturally hostile to home births. In 2014 her licence to practice was suspended. She appealed the decision and three independent reports all suggested that she had been suspended in the wrong.

She never recovered professionally from the whole affair and brought an action against the HSE. A generous settlement was offered to her but she refused, insisting that she wanted what she considered the truth to be aired in open court.

As she approached the end of her life she changed her mind on the basis that she needed money for a drug that offered her only hope of survival. The HSE settled but she still lost her battle for life.

Philomena Canning was devastated that she would not get to tell her story. In interviews before her death, she laid out what happened with a view to publication at a later date. She also made available to the Irish Examiner a body of paperwork related to her case.

Life-changing call

Just before 6pm on Friday, September 12, 2014, Philomena Canning got the call from the HSE that would change her life irrevocably. She had had a typically busy week in her midwifery practice. At the time she had a total of 29 expectant mothers on her books at various stages of pregnancy.

“I was told that my indemnity was to be removed with immediate effect,” she said.

I was in shock because it came out of the blue. And I was responsible for mothers who were in my care. In homebirths, the mother has one-to-one care with a midwife and all of that was now swept from under their feet.

Philomena had had a difficult relationship with the HSE for a number of years prior to September 2014. She was strongly of the opinion that women who wanted to avail of homebirths were not receiving proper recognition, that the practice was merely tolerated within the HSE.

Her professional relationship with the HSE consisted of a Memorandum of Understanding which included indemnity cover for home births. The withdrawal of that cover effectively put her out of business.

The suspension was on foot of concerns expressed within the HSE about two recent homebirths at which Philomena had provided services. In both cases, the mothers had been admitted to hospital after their births due to minor complications.

Neither of the women in question complained about their care. Both subsequently spoke in glowing terms of the service provided by Ms Canning. And neither was contacted about alleged “concerns” into their midwifery care until long after the respective investigations had begun.

Subsequently, it would emerge that one of these concerns involved the inappropriate phasing of a medical term in a text message.

The suspension of a medical practitioner is a sanction in that it carries with it the whiff of “no smoke without fire”. It is a move of the upmost seriousness, as reflected in the Dáil by then health minister Leo Varadkar a month after Philomena was suspended.

“I understand from the HSE that her indemnity has been suspended temporarily due to specific and serious concerns expressed by other clinical staff about patient safety,” he told Fianna Fáil’s Billy Kelleher.

“The HSE suspends an individual as a precautionary measure subject to a review/investigation, it does not do so lightly.”

After recovering from the shock of what had occurred, Philomena immediately sought an injunction to stop the suspension. Her application was heard in the High Court on September 29, 2014. At the hearing, lawyers for the HSE told judge Max Barrett that the HSE had to act in the interests of public health by suspending Philomena’s indemnity until an investigation into the two incidents was completed.

Judge Barrett refused the injunction. He urged that the investigation be completed expediently. He was being told that Philomena could present a danger to public safety and he wasn’t in a position to dispute that.

Outside the court, a group of Philomena’s supporters gathered to protest. They consisted, for the greater part, of mothers whose children had been delivered by Philomena.

The optics spoke for themselves. Homebirths in some quarters of the medical profession and wider society were viewed as something indulged in by people who might dismissively belabelled “hippies”.

And here they were camped outside the court, protesting against the real world where sober and serious legal and health professionals were engaged in protecting human life. So said theoptics, perfectly spun to propagate a big lie.

The appeal

Philomena appealed the ruling. Her legal team commissioned two expert reports into the cases at issue. The HSE commissioned its own report. Until that point, the courts had taken the HSE at its word that Philomena Canning might be a danger to expectant mothers and babies. Now the full picture was to be sketched out by professionals.

The first report on behalf of Ms Canning was compiled by Cecily Begley, Professor of Nursing and Midwifery at Trinity College Dublin.

She examined the HSE’s allegations in the two cases. She commented on the HSE’s position that it was obliged to suspend the midwife in order tomaintain “the safety of patients”.

“I was expecting from that description to find that two mothers and/or babies had been harmed with a need for continued hospitalisation and treatment. Instead I found two case histories that described mothers and babies being discharged from hospital on Day 3 following 48 hours antibiotic treatment for the baby due to an issue unrelated to the reason for admission (Mother A) and approximately 10 hours after admission (mother B).”

She went on to address the allegation of inappropriate language in a text sent by Philomena who had used the phrase “uneventful” about the birth and afterwards despite the requirement for the mother to be briefly hospitalised.

“I do not think that a perceived inaccuracy or inadequacy in a text message is indicative of any poor practice on the part of PC,” she wrote.

The report concluded: “I have seen no evidence that would lead me to think that PC is a danger to the women for whom she provides home births. There was certainly no evidence in the two cases described above that PC’s actions in any way represented a risk to the women’s safety.

“On the contrary, I am impressed with her clinical acumen, knowledge and expertise and I believe the two women were lucky to have her caring and advocating for them.”

Richard Porter, a consultant obstetrician and gynaecologist in the UK at the Royal Hospital in Bath also provided a report.

He commented on the contentious text, which he said could have been written better.

“However it is my understanding that the process being undertaken is an attempt to establish whether PC’s professional practice raises clinical risks for her clients.

I would respectfully suggest that intense textual criticism of text on a mobile phone is not a reasonable or appropriate way of establishing whether that is so, and I would propose that a serious issue such as this should be considered on the basis of the evidence of the clinical actions taken and their consequences, without focussing on issues that have no clinal impact.

As for the general criticisms of her practice in the two cases at issue: “I am at a loss to see why there is any criticism of PC’s actions in this case. It seems to me that her actions were at all times consistent with good and safe practice.”

The HSE commissioned its own report from Fiona Hanrahan, Assistant Director of Midwifery at the Rotunda Hospital. This differed in detail and language, but conveyed the same result.

“I have carried out a detailed analysis of the care provided by P Canning in both these cases. The clinical scenarios presented are different but both represent unexpected events at homebirths which resulted in transfer to a maternity unit.

"In both cases, the midwife was required to make a rapid assessment and analysis of an evolving situation, use critical decision-making skills and implement planning and decision making. P Canning’s actions in both cases show that her care was of a standard expected of an experienced homebirth practitioner.”

HSE reversal

The HSE’s case was blown to shreds. A week before the scheduled appeal was to be heard in February 2015, the HSE withdrew its suspension of Philomena’s practice. In the circumstances, this was the only course of action open to the organisation. No judge was going to uphold a suspension disputing the three expert reports.

The big question left unanswered was how did it ever get to that point? Who within the HSE was responsible for depriving this midwife of her livelihood and damning her reputation on an entirely spurious basis?

Who thought that bad phrasing in a text message was a reflection on the care Ms Canning had provided to expectant mothers over the previous fourteen years?

Despite reinstating her indemnity, the HSE drove on with a “systems analysis” investigation into her practice. This was conducted by two appointed personnel, a health manager and a physiotherapist. Neither had experience in midwifery.

The HSE did not refer any concerns to the Nursing and Midwifery Board which deals with fitness to practice issues. If the matter was referred there the probability, based on the expert reports, was that no issues of concern would be found. Meanwhile, Philomena found herself in a form of limbo.

“What the system analysis meant in practice was that I couldn’t take on any more clients because of the risk if they found something against me. I would have been faced again with telling pregnant women that I could no longer care for them.”

The systems analysis was scheduled to be completed in March 2015, the month after the HSE reinstated Philomena. It eventually concluded in September of that year. The result was that relatively minor restrictions on Philomena’s practice were recommended by the health manager and physiotherapist.

By then Philomena had begun her legal action against the HSE over her suspension. The outcome of the systems analysis drained her of any residual confidence she had in the heath body.

I went to my solicitor immediately and said it’s all over, I’m never going to able to go back into practice as a midwife again. I would have been continually looking over my shoulder. Any clinician needs to be in an environment of support and I wasn’t going to get that. There was no way I was going to put a mother and baby’s life at risk.

The depravation of her livelihood had serious implications.

“For a long time afterwards I couldn’t go home to Donegal,” Philomena said.

"]I’m from a small village and I had been in the papers saying that this midwife is unsafe. I couldn’t face any of it."

There were also financial implications. She came under severe pressure with mortgage repayments on her Dublin home.

“I had to rent it out to pay the mortgage. For a while I contemplated living in my car but then a friend, a batchelor offered me a place in his home. Unfortunately he needed help himself and the house was damp, had broken windows and I had no access to even a shower.

“I lived there for four years but then the rent I was getting for my home wasn’t paying the mortgage so in the end I had to sell my home. That was the one thing I wanted to hold onto.”

Despite the hardship, Philomena was determined to have her day in court. The HSE offered to settle in 2015 but she refused. She wanted everything out in the open in court.

The discovery process for the case hardened this view. Documents that she received suggested that the HSE had registered up to half a dozen of her homebirths as “near miss” incidents without informing her. It is unclear whether the mothers in question were informed of it or whether they were even interviewed about their care.

And it also emerged that the homebirth which had precipitated much of the conflict between Philomena and the HSE (see panel) was not registered at all. This, despite the birth taking place without the presence of any professional medical personnel.

Late last year, with her court date finally drawing closer, Philomena was told that she had inoperable ovarian cancer.

“I’ve run out of time,” she told the Irish Examiner last February from her hospital bed.

The HSE has been dragging its heels with this court case and the only thought on my mind since the day I was diagnosed was am I going to last till I end to the end of this case. The idea of going to my grave without getting to the end is unbearable.

She didn’t get to the end. Her last chance was the drug pembrolizumab, which was not available through the HSE. She would have to pay for it herself. With that in mind, she switched tact and agreed to settle with the HSE in order to raise funds.

The case was settled with a payment of €353,000 from the HSE to Philomena. The HSE’s legal costs came to €206,161 and Philomena’s legal team was paid €274,016, according to figures from the HSE.

Philomena Canning died on March 22, 2019. Her friend Ciara Considine delivered the eulogy at her funeral.

“She was a warrior who stood up for what was right at all costs,” Ms Considine told the congregation.

“Mothers and activists for birth and reproductive rights countrywide will be forever in her debt.”

Questions for the HSE

The Irish Examiner submitted a number of questions to the HSE.

  • Question: A case that involved a major dispute between Philomena Canning and the HSE involved an unattended homebirth on October 29, 2013. This incident was not recorded on the National Incident Management System. Why was this the case?Was there any internal inquiry into the decision to cancel Ms Canning’s indemnity in September 2014? This decision was based on two cases and reports compiled for both Ms Canning and the HSE for a February 2015 appeal showed the grounds for her suspension were spurious. Has anybody been held responsible for this decision, which ultimately cost the HSE a settlement with Ms Canning and very considerable legal fees and caused considerable damage to Ms Canning’s reputation and livelihood?
  • Reply: In August 2014, concerns were raised by the Midland Regional Hospital, Portlaoise, involving the transfer of a planned homebirth mother to the hospital. The self-employed community midwife involved was contacted to seek information on the issues raised. In addition, written information was sought from the hospital in respect of the matter raised.The following month, on the basis of clinical advice indicating that there was a significant potential risk to patient safety in the event of a postpartum haemorrhage and its subsequent management in the community, a decision was made to temporarily suspend the indemnity of the self-employed community midwife involved. This decision was made as a precautionary measure pending further investigation given that:The HSE’s statutory duty of care to the public and individuals for whom it provides care (directly and indirectly);There were immediate impending births and there was an absence of time to put in any contingency measures to address concerns.
  • Question: In the years 2013-14 six incidents concerning clients of Ms Canning were recorded on the National Incident Management System. According to HSE documents seen by the Irish Examiner she was not informed about these and only became aware of them through discovery in her legal action. Is it policy to inform a midwife or any health professional if a case they were involved in was recorded on the system? If so, why was Ms Canning not thus informed?
  • Reply:It is normal practice to inform a healthcare professional if a case they were directly involved in, and are directly involved in at the time it becomes an incident, is subsequently recorded on the system.
  • Question:In 2014-15, a “systems analysis” of Ms Canning’s practicewas reportedly conducted by two individuals, a physiotherapist and a health manager. Why were people who had no experience in midwifery appointed to conduct this exercise?
  • Reply:The investigation took the form of a Systems Analysis Incident Investigation into each of the incidents pursuant to the HSE Safety Incident Management Policy (at that time) which stated that it is the HSE policy that all safety incidents are “identified, reported and investigated” and that “in the interests of patient safety it is the policy of the HSE that safety investigations should always proceed where possible”.Such investigations were carried out by two persons from a pool of trained investigators who are trained in the Investigation Process and Policy. It was the normal and agreed HSE practice, that the investigators were not experts in the subject area under investigation but rather they are trained in the process of investigation; and they can elicit expert advice as part of their investigation.Subsequently, and with the intention, of expediting the completion of an investigation, a separate parallel peer review Supervisory Report Investigation was carried out by two midwives (from the HSE and NHS NI).
  • Question:Why if Ms Canning’s practice was giving rise to concern was she not referred to the Nursing Board which is charged with dealing with fitness to practice issues?
  • Reply:As a general approach, the HSE would carry out its own investigation and subsequently a decision would be made (or not) to make a referral to the relevant regulatory body, based on those findings.Homebirth Service Governance — the HSE acknowledges that the investigations outlined took much longer to complete than originally envisaged,despite the best efforts and intentions of all concerned.
  • In the time that has since elapsed significant steps have been taken to enhance the governance of the HomebirthService to ensure a high-quality safeservice for mothers in the community.

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