I move: "That the Bill be now read a Second Time."
I stand before the House today fully aware of the sensitive and complex nature of the matter we are about to deal with. I am also fully cognisant of the wide range of views that exist in the House and throughout our country so from the outset I want make very clear this legislation is about saving lives, the life of the mother and her child wherever possible, and that it upholds the constitutional equal right to life of the unborn. I believe it is a Bill which is measured and provides for a robust framework around a very real legal vacuum that currently exists.
The main purpose of the Protection of Life During Pregnancy Bill 2013 is to restate the general prohibition on abortion in Ireland. It does not confer any new substantive rights to a termination of pregnancy.
Twenty-one years ago, the Supreme Court legalised the termination of pregnancy in cases where the mother's life is at risk. At present, nobody is able to say how many terminations have been carried out in Ireland since then. Nobody has accurate figures on the number of terminations that were performed in Ireland last year. Nobody knows whether one hospital is responsible for the lion's share of these procedures or whether a small number of doctors carry out a disproportionate number of terminations. It is not possible to inform the House whether uncertainty over our termination laws is being abused. Worse, we do not know whether women's lives are put at risk from this lack of clarity. Equally disconcerting for me is the fact that I cannot assure the House with certainty that women have clarity regarding the medical interventions available to them to save their lives.
Article 40.3.3° of the Constitution was inserted by the eighth amendment in 1983 and reads, "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The Supreme Court decided in 1992 in Attorney General v. X that the Constitution permitted a termination of a pregnancy where there was a real and substantial risk to the life of a woman which could only be removed by terminating the pregnancy. It must be remembered that the X case decision did not bring about a change in the law on abortion in Ireland. In the X case, the Supreme Court set out the correct interpretation of the law as it has stood since the eighth amendment. The difficulty is that no statutory framework has ever been established to vindicate the equal right to life of the mother and her unborn. Sections 58 and 59 of the Offences against the Person Act 1861, which in various ways provide for a broad offence of doing acts with the intention of procuring the miscarriage of a woman, whether the act be committed by the woman or not, is, of course, qualified by the X case. There is no legislative or regulatory framework which currently exists to determine whether a woman is entitled to a termination of pregnancy according the X case test. This situation is dangerous for women who may be denied treatment to which they are entitled when a real and substantial risk to their life exists, and dangerous for the unborn as there is no procedure whereby unscrupulous operators who wish to abuse the X case test can be checked.
As a result of this uncertainty, the European Court of Human Rights in A, B and C v. Ireland found:
the [Irish] authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which [C] could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3° of the Constitution.
At no stage did the European Court of Human Rights require that the law should be altered or amended. The decision simply called for a legislative or regulatory regime to be established to allow a woman to ascertain whether or not she qualified under the X case test, and to provide for a review mechanism where a woman is refused treatment. The Government decided the most appropriate way to provide for this clarity was by legislation with regulations, strictly within the parameters of Article 40.3.3° of the Constitution as interpreted by the Supreme Court. Legislation is required to amend the 1861 Act and provide for the general prohibition on abortion in Ireland in an effective way, and to set out clearly the situations in which doctors are allowed to intervene to treat a pregnant woman where a real and substantial risk to her life exists.
In short, as matters stand, there is no clarity around the issue of terminations of pregnancy in Ireland. This means that the chilling effect of the 1861 Act can cause uncertainty for doctors. It also means that terminations of pregnancy can be performed under the Constitution as interpreted by the Supreme Court, by any doctor anywhere in Ireland at any gestational age if he or she believes that suicidal risk can only be averted by a termination of pregnancy. The Protection of Life During Pregnancy Bill corrects all of this.
For the first time, there will be legal clarity that any terminations are only carried out where the risk to the woman's life has been fully assessed and certified by specialists. For the first time, information on these rare terminations will become publicly available. It will become crystal clear to all of us whether certain hospitals or certain medical professionals are responsible for a disproportionate number of terminations. If the legislation is abused I will have the power to suspend it and I will not be afraid to exercise this power. For the first time, medical professionals will be provided with clear guidelines detailing where and when a termination can take place to save a woman's life. Most importantly, Irish women can be assured that everything possible will be done to save their lives in Irish hospitals.
I will now go through the Bill section by section to clarify its provisions. The Bill is divided into three Parts and includes a Schedule. Section 1 makes standard provisions setting out the Short Title of the Bill and arrangements for its commencement. Section 2 deals with the interpretation of the Bill; it defines the meanings of some of the terms used for the purposes of the Bill, including appropriate institutions, reasonable opinion, and relevant specialty.
Section 3 defines what is meant by "appropriate institutions" for the purposes of the Bill. Locations for the delivery of this treatment will be limited to public obstetric units or, where needed, large public multi-disciplinary hospitals with critical and intensive care facilities. This definition widens the definition of "appropriate institutions" somewhat from that set out in the general scheme published in April. This was deemed necessary from the information provided by the Institute of Obstetrician and Gynaecologists to the Oireachtas committee and to the Department of Health. It indicated a small number of pregnant women with severe illness, such as cystic fibrosis or congenital heart conditions, require delivery in locations with immediate access to intensive and critical care facilities which are not available in some obstetric units. For this reason, the definition of "appropriate location" includes a small number of large multi-disciplinary hospitals with intensive and critical care facilities. However, I believe the State's constitutional obligation and its responsibility to act in the common good demand that provision of terminations of pregnancy only be allowed in public health care facilities where they can be duly monitored and investigated, should the need arise.
Section 4 deals with regulations, allowing me as Minister to make regulations to bring the legislation into operation and other such procedural matters. In this regard, I will be making regulations to set out the way in which medical practitioners will certify their opinions regarding the risk of loss of life to the woman and whether a termination of pregnancy is required. These regulations will require, for example, certificates to indicate the clinical grounds for the opinion and other relevant details of the case at hand. Under the legislation, any such regulation will need to be laid before the Houses of the Oireachtas for approval.
Section 5 repeals sections 58 and 59 of the Offences against the Person Act 1861, as they are replaced by the provisions made in sections 22 and 23 of this Bill.
Section 6 allows that approved expenses associated with the administration of the Bill may be paid for from public funds.
Sections 7 to 9, inclusive, deal with medical procedures permissible under this Bill. Section 7 deals with the risk of loss of life from physical illness. It provides that it is not an offence for an obstetrician or gynaecologist to carry out a medical procedure in the course of which or as result of which unborn human life is ended under certain circumstances - those being that the procedure is carried out in an appropriate institution and that two medical practitioners registered on the specialist division of the Medical Council register, having examined the woman, have certified that, in their reasonable opinion, there is a real and substantial risk to her life, as opposed to her health, arising from a physical illness that can only be averted by carrying out that medical procedure. Some people have interpreted the Bill's provisions as meaning that termination would be used as the best treatment. The law is clear - termination must be the only treatment available to avert the risk.
The process requires an assessment on medical grounds to determine if the test set out in the Supreme Court judgment in the X case is met. The Supreme Court held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that there was a real and substantial risk to the life of the mother, and that this risk could only be averted by the termination of her pregnancy. It is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate.
The definition of "reasonable opinion" requires that this opinion must be formed in good faith and must have regard to the need to protect the right to life of the unborn and preserve unborn human life where practicable. The emphasis on preserving unborn human life means that a doctor will be obliged to make every effort to safeguard the unborn and, where it is potentially viable outside the womb, to make all efforts to sustain the life of the child after delivery. The registered medical practitioners will be obliged to record this opinion in writing if certifying a procedure that will end unborn human life.
One of the two medical practitioners involved in the certification process will always be an obstetrician or gynaecologist and the other will be a medical practitioner in a specialty relevant to the risk to the life of the woman, for example, an oncologist, cardiologist, etc., or another obstetrician. As indicated in the definition of "reasonable opinion", the test requires a clinical diagnosis in respect of the risk to the life of the pregnant woman and a foetal assessment. Therefore, the expertise of an obstetrician will always be required in ensuring patient safety, as well as in accessing services. In addition, the Bill now makes it the duty of the obstetrician involved to deal with the issuing of the required certification so that the medical procedure may be carried out. In such situations, the obstetrician or gynaecologist involved is responsible for making the arrangements with the appropriate institution. Provision is also made in the legislation for consultation with the woman's general practitioner in the course of the diagnostic process where she has given her permission and where it is practicable and feasible to do so.
Section 8 deals with emergency situations where there is an immediate risk of loss of life arising from physical conditions only. In an emergency situation, the opinion of one registered medical practitioner will be sufficient for the termination to be lawful. Doctors should not be prevented from saving a woman's life in a situation of acute emergency because, for example, the required numbers of doctors are not available to certify or the woman in question arrives at a health facility that is not covered as an appropriate institution under this Bill - that is, not a public obstetric unit or large public multidisciplinary hospital. Therefore, in emergency circumstances, the reasonable opinion of one medical practitioner is required to certify, after having examined the pregnant woman, that the medical procedure is immediately necessary to save her life. The medical practitioner who carries out the procedure will be required to certify the reasons for his or her actions before carrying out the medical procedure. If necessary, the certification for the procedure may be issued by the medical practitioner after the medical procedure has been carried out and reported as soon as may be, but in any event no later than 72 hours afterwards. Again, this opinion must be formed in good faith and have regard to the need to preserve unborn life where practicable. The emergency exception will not apply in the case of a risk to life from suicide.
Section 9 deals with a risk to the life of the pregnant woman from suicide. Assessment of self-destruction is more subjective and there are recognised clinical challenges in accurately assessing suicidal ideation - for example, the absence of objective biological markers. Therefore, this assessment requires that more safeguards be put in place. In these cases, three medical practitioners registered on the specialist division of the Medical Council register must certify that, in their reasonable opinion, there is a real and substantial risk of loss of the woman's life by way of suicide that can only be averted by carrying out that medical procedure. Of the three medical practitioners, one of them must be an obstetrician or gynaecologist practising in an appropriate institution and the other two must be psychiatrists, one of whom must practise in an appropriate institution and the other of whom must practise at an approved centre or for or on behalf of the HSE. In addition, the Bill now specifies that at least one of the psychiatrists must have experience in providing mental health services to women during pregnancy and childbirth and after delivery.
This section contains similar provisions to those made in section 7 regarding the duty of the obstetrician involved to issue the required certification for the medical procedure and for consultation with the woman's GP with her consent where practicable.
I am aware that questions have been raised about the role of the obstetrician in this assessment. However, the test in this case will always be a multidisciplinary one, as it requires a clinical diagnosis in respect of the risk to the life of the pregnant woman as well as a foetal assessment. Therefore, the expertise of an obstetrician will always be required.
The establishment of a formal framework providing for an accessible, effective and timely review mechanism is one of Ireland's obligations under the judgment in A, B and C v. Ireland. The purpose of this formal medical review process is to provide a mechanism for the woman, where she so requests, to have access to a review of the clinical assessment made by the original doctor or team of doctors. In practice, this will only arise where the woman's request for a termination in line with the X case criteria has not been granted or when she has been unable to obtain an opinion in this regard. The review process is provided for in Chapter 2 of the Bill, sections 10 to 15. It is important to note that this formal review pathway is in addition to and not in substitution for the option of a woman's seeking a second opinion as in normal medical practice.
Section 10 sets out the process for applying to have a medical opinion reviewed. The woman or a person acting on her behalf must apply in writing to the HSE for a review of the relevant decision.
Section 11 provides for the establishment of a review panel by the HSE, which may be drawn upon to form a review committee. The panel will consist of at least ten relevant experts for the purposes of the formal medical review, all of whom must be medical practitioners under the terms of the Bill. Members will be nominated by the Institute of Obstetricians and Gynaecologists, the College of Psychiatrists of Ireland, the Royal College of Surgeons in Ireland, the Royal College of Physicians of Ireland, and the HSE. The HSE will draw from this panel when it needs to establish a review committee to consider an application for a review made under the Bill.
Section 12 deals with the establishment of the review committee. The Health Service Executive will act as the convenor for the purpose of the formal medical review process. As soon as possible, but no later than three days after receiving a written request from a pregnant woman, the HSE will establish and convene a committee drawn from the review panel to consider the relevant decision in question. The composition of the review committee will exactly mirror the requirements in sections 7 to 9, inclusive.
Section 13 specifies that the committee shall complete its review as soon as possible, but no later than seven days after it is established, and that it must inform the woman in writing as soon as possible as to its decision.
Section 14 sets out the procedures of the review committee. It provides for the woman herself, or a person authorised to do so on her behalf, to be heard by the review committee. It also aims to empower the review committee to obtain whatever manner of clinical evidence it requires to reach a decision and to call any relevant medical practitioners to give evidence in person. It provides that the HSE will make administrative arrangements for the operation of the committee, including providing facilities and covering expenses. The provisions contained in this section make failing to comply with a direction issued by the committee an offence, for which a fine may be imposed.
Section 15 provides that the HSE must submit a report to me, as Minister for Health, not later than 30 June each year regarding the operation of review committees. Information that will have to be provided in the report includes the total number of applications received; the number of reviews carried out; in the case of reviews carried out, the reason the review was sought; and the outcome of the review. This information is required to monitor the implementation of the legislation to ensure the principles and requirements of the system are being upheld. This section also clarifies, however, that any information that might identify a woman who has made an application for a review shall be excluded from the report by the HSE.
The third Part of the Bill deals with miscellaneous matters. Section 16 deals with consent, and states that nothing in the Bill will affect the law relating to consent to medical treatment. The intention is that the provisions of the Bill will operate within the existing legal provisions in regard to consent for medical procedures.
Section 17 concerns conscientious objection. In this regard, professional health personnel, namely, medical and nursing personnel, will not be obliged to carry out or assist in carrying out lawful terminations of pregnancy if they have a conscientious objection, unless the risk to the life of the pregnant woman is immediate. Where a doctor or other health professional has a difficulty in undertaking a required medical procedure, he or she will have a duty to ensure another colleague takes over the care of the patient, as is normal in current medical ethics. I point out that the right to conscientious objection is a human right, which is limited to persons only and which cannot be invoked by institutions. The prohibition of conscientious objection for institutions was removed from the wording of the Bill because the provisions make it clear that this right is limited to persons involved in the delivery of the treatment.
Section 18 reaffirms the freedom to travel and freedom to information as per the 13th and 14th amendments to the Constitution, for the avoidance of doubt.
Section 19 deals with certification and states that it must be made in the prescribed form and manner and must contain the prescribed information, which may include the clinical grounds for carrying out the medical procedure.
Section 20 provides for a notification system in respect of all terminations of pregnancy carried out under the terms of this Bill. I consider it very important to record the number and nature of terminations of pregnancy to monitor the Bill's correct implementation and to detect any potential abuse of its provisions. Therefore, the legislation includes a clear requirement on providers to notify me, as Minister for Health, of all terminations carried out under this legislation within 28 days. The report will contain the following information: the Medical Council registration number of the medical practitioner who carried out the procedure; the grounds for carrying out the procedure; the name of the appropriate institution concerned or other location used in emergencies; and the date on which the procedure was carried out. This section also contains a requirement on me, as Minister for Health, to prepare and publish an annual report on the notifications received. This will be done without disclosing the names of the women involved.
Section 21 amends section 9 of the Health Act 2007. These amendments were necessary to permit me, as Minister for Health, to suspend relevant medical procedures in an institution when an investigation is being undertaken by the Health Information and Quality Authority, HIQA, in regard to a serious risk of failure by an institution to comply with the provisions of this Bill. Such medical procedures may be suspended until I am fully satisfied that the institution in question is compliant with the legislation.
Section 22 sets out the offence of intentional destruction of unborn human life. This updates the law in this area, which as I mentioned earlier, was until now governed by the Offences Against the Person Act 1861. The penalty for the offence is up to 14 years imprisonment, or a fine, or both. Prosecutions may only be brought by, or with the consent of, the Director of Public Prosecutions. For the avoidance of doubt, the Bill clarifies that the offence does not apply to a medical practitioner carrying out a necessary medical procedure as laid out in sections 7, 8 and 9. Section 23 provides for the offence by a body corporate.
I reassure the House that the only purpose of this legislation is to clarify what is lawfully available by way of treatment in cases where there is a real and substantial threat to the life of a pregnant woman, and to set out clearly defined and specific circumstances in which this treatment can be lawfully provided. My Department has begun a consultation process with the relevant professional bodies, including the College of Psychiatrists of Ireland, the Institute of Obstetrics and Gynaecology, and the Irish College of General Practitioners, with the ultimate aim of developing guidelines for their members on the implementation of the legislation following enactment of the Protection of Life during Pregnancy Bill. It is expected that a multidisciplinary committee to develop these clinical guidelines will be established before the Bill is enacted. It will be asked to complete its work as soon as possible.
As Deputies will be aware, a significant amount of work was involved in producing the Bill. More than 50 drafts were composed as we moved to produce what we believe to be balanced proposals that meet our obligations. The public hearings held by the Oireachtas Joint Committee on Health and Children informed the composition of this Bill and I wish to express my gratitude to the Chairman, Deputy Jerry Buttimer, and members of the committee for their invaluable contribution to the issue and for the assistance they provided to me and my officials. I also wish to acknowledge the Deputies on both sides of the House who have discussed these matters with me and I thank all those who recognise the great sensitivities involved and the need for our discourse to be respectful of differing views. I genuinely wish to reflect that such was the nature of the debate on this extremely sensitive and often divisive issue.
I am a doctor. For more than 30 years, I have looked after patients with a view to helping them with their problems and improving their quality of life, and indeed sometimes saving their lives. Sometimes we are presented with the most difficult and challenging problems. I believe this legislation strikes the right balance in providing legal clarity around existing rights while at the same time providing the clearest reassurance that any attempt to abuse this legislation will be thwarted.
I would not support the Bill if I did not believe it strikes this balance. This is about clarifying the law so that the women of this country who use our health services are in no doubt about what is legally available to them and how they can access these services, and the many excellent men and women who work in our health services know what is legally permissible for them to provide. It will remove any doubt or danger of delay in the making of decisions that can be the difference between life and death. I commend the Bill to the House.