Joint Committee on Health and Children debate

Heads of Protection of Life during Pregnancy Bill 2013: Public Hearings (Resumed)

Medical Law

Chairman

I believe in starting committee meetings punctually every Thursday morning, although this is our third day. I thank members. We have a quorum of six members, at least one being from each House. Is it agreed that we begin in public session? Agreed.

I remind committee members, Members in the Gallery, witnesses and members of the media to switch off their mobile telephones instead of leaving them on silent, as they interfere with broadcasting.

I welcome everyone to our ninth session in the series of hearings that the Joint Committee on Health and Children has been asked to conduct to discuss and analyse the heads of the protection of life during pregnancy Bill. I ask committee members and non-members to be brief in their questions and relevant to the heads of the Bill. I will be strict with time today. I also want to be fair to people. I apologise to those who did not have an opportunity to contribute yesterday, in particular Deputy Maloney. I hope that he will have an opportunity today.

Deputy Eamonn Maloney

I did not sleep all night.

Chairman

I remind members to make balanced and fair remarks and to use temperate language. We should hold our debate in a balanced, fair and calm manner that befits the Houses of the Oireachtas. I thank them for their co-operation during the past three days. I ask members to focus their remarks on the Bill on a head-by-head basis.

I welcome Ms Caroline Simons, Mr. Tony O'Connor, Mr. Paul Brady and Dr. Simon Mills, who have given freely of their time to assist us. Every expert who has appeared before us - they are witnesses, not experts - has given of his or her time freely to assist us.

I remind members and witnesses of privilege, in that witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter to only a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of the proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice or ruling of the Chair to the effect that, where possible, they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

We have 50 minutes for opening statements, with four speakers. I invite Dr. Mills to begin.

Dr. Simon Mills

I thank the committee. I compliment it on the extensive amount of work involved in the hearings of recent days as well as in the preceding hearings and the output of same, namely, the committee's report and the heads of the Bill that we are discussing today. The Bill encapsulates the terms of the X case. My broad overview of matters is that it does so adequately. As the Government was entitled to do, the Bill leaves to one side broader considerations of Article 40.3.3° for another day.

The committee has my brief written submission. Due to tight timelines and as with everyone who has contributed to the hearings, not everything that I originally thought about the Bill was contained in that submission. As I have considered the Bill, a number of other matters have also come to mind. I propose to use my opening submission to address a number of matters, aside from those set out in my written submission, that would be of relevance for the committee and, in due course, the Oireachtas to consider. I will do so in the order of the heads of the Bill, precisely as one would do if making a written submission.

The definitions of unborn and implantation as set out in the definitions section could be merged into one. Implantation is defined as "implantation in the womb", but the word only appears once in the legislation, that being in the definition of unborn. It seems logical that, if unborn is to be defined in the Bill, one could simply refer to implantation in the womb.

The requirement to form a reasonable opinion is set out in heads 2 and 4 and defined in head 1. As currently drafted, the reasonable opinion provision requires the doctors to have regard, in so far as is practicable, to the right to life of the unborn. If this definition is to articulate fully and properly the tests laid down in the X case, the expression it gave to Article 40.3.3° and the language of that Article, the reasonable opinion should also include, by way of balance, the obligation to have regard to the right to life of the mother.

I will address heads 2 and 4 together. Head 2 deals with a threat to the life of the mother arising other than by the threat of self-destruction. Head 4 deals specifically with the question of suicide and suicidality. Clearly, a decision has been taken to treat suicidality in a different and contingent fashion when compared with the threat of physical injury. We must all be pragmatic about this - the reasons are, to some extent, political. However, a number of issues should be considered in respect of heads 2 and 4 if head 4 is to survive and become part of the legislation. I will refer to that matter in a moment.

Heads 2 and 4 do not give sufficient detail to the test that is to be applied by doctors in assessing the threat to life. An aspect of the X case judgment and the articulation it provided of Article 40.3.3° is a requirement that the threat to life must be present as a matter of probability. In so far as this formed part of the X case judgment, the requirement that the standard to be met on the part of doctors assessing the threat to the life of the mother should be expressly stated to be a matter of probability.

Under heads 2 and 4, which require that there be an examination of the mother, it occurs to me that "examination" is the wrong word. I touched on this issue in my written submission. It may well be that there are assessments of the pregnant woman that do not require an examination of the woman herself, but an assessment of radiological images or blood tests. It may be that a particular condition is so rare that a consultation must be held at a distance, meaning that a physical examination is not possible. Where the word "examination" is used in heads 2 and 4, it might be made the subject of a definition under head 1 or be dealt with more extensively in heads 2 and 4 to address, among other issues, the express requirement for a consultation with the woman and the possibility that an examination might be other than a physical examination or might require something more than a mere physical examination.

I anticipate that the issue of whether heads 2 and 4 should be separate will arise in questioning and I do not propose to deal with it in this submission. I propose to speak to it later.

Heads 6 to 9, inclusive, address the issue of reviews and appeals of decisions that are or may be made under this legislation. I will deal with them collectively instead of breaking them down. Having given the Bill consideration subsequent to the preparation of my written submission, a number of issues occurred to me that may be matters that the committee and, in due course, the Oireachtas wish to consider. First, the requirement or otherwise for the provision of a scheme of legal representation for those who may require it in the setting of any review.

It strikes me that this requirement may arise in two possible settings. One relates to the simple fact that a person may not be best placed to put her own case and may require it to be put for her. Whether some form of assistance will be required is, of course, a matter for the Oireachtas. However, there is also another area that arises, relating to the question of capacity to argue one's case. Issues were touched upon yesterday by a number of the witnesses in regard to capacity in terms of age and mental capacity. It may well be that the committee and, in due course, the Oireachtas, may wish to give consideration to those.

I mentioned the issue of a matter of probability, namely, the requirement that the risk be present as a matter of probability in respect of heads 2 and 4. This issue also arises in any assessment that is to be made by a review panel under heads 6, 7, 8 and 9. The question may be asked whether ultimately there is, or should be, a role for the court in determining aspects of disputes that may arise - such as whether the High Court has a role to play as the ultimate arbiter of disputes that may arise in respect of the operation of the Act. It may be that nothing like that needs to be expressed because the court has its jurisdiction.

I refer to head 12 which deals with conscientious objection. I dealt with a number of matters in my written submissions. One issue that arises is how extensive is the right of conscientious objection, in particular to what extent, for example, conscientious objection arises where an opinion is sought; to what extent there is an obligation on an individual to notify either the existence of a conscientious objection or of previously publicly expressed views of which a patient may not be aware. It may be there is no such requirement but there is a necessity at least to consider the balancing of rights involved in freedom of conscience on the one hand and access to a constitutionally available right on the other.

The last matter I wish to deal with, briefly, is head 19, which provides for the criminalisation of certain acts. In my written submissions I set out a number of specific criticisms but it strikes me there is one more general observation to be made which, now that I think of it, was so obvious it did not occur to me at the time, as is often the way. This is the fact that head 19 is simply over broad in the offence it creates. The idea that any act done with intent to destroy human life would be a criminal offence is, on its face, a significant over-statement of the position contained within the 1861 Act. If what is intended by head 19 is a simple restatement of the criminal prohibition in the 1861 Act I would think head 19 misses that mark. It may also be wished to give some thought to the question of the criminalisation of the vulnerable and desperate pregnant woman, which the Act also contemplates. It may well be that this is dealt with by the need to bring prosecution only through the Director of Public Prosecutions but it is certainly a matter to which I ask the committee and, in due course, the Oireachtas, to give consideration.

Chairman

I call Mr. Paul Brady.

Mr. Paul Brady

I thank the Chairman and the committee for inviting me to attend. I echo the sentiments of my colleague, Dr. Mills, in commending the Chairman and the committee for the manner in which these hearings have been organised and conducted, both this month and earlier in the year.

I provided short written submissions that deal with two specific issues. As was noted, it was hard to be comprehensive in the time provided for preparation so I thought it best to focus on two issues. Before I speak on those, I wish to introduce myself briefly because I have not been before the committee up to now. I am a practising barrister and a co-author of the second edition of a book, Psychiatry and the Law. In addition to my primary degree in philosophy, I have postgraduate degrees in legal theory, or law, from University College London, Harvard Law School and the King's Inns, and am currently completing a doctorate in the philosophy of law at Oxford. My areas of interest are constitutional law, mental health law and medical legal ethics. My publications include a piece on Irish constitutional law and statutory interpretation in the light of the European Convention on Human Rights. My current area of research is the role of moral argument in judicial reasoning. It does not take much imagination, therefore, to see how abortion law might feature is such research. I am not here to argue for any particular moral or policy position on the question of abortion, however, nor, of course, am I here to give expert medical opinion. Rather, I believe the role of the lawyer in the legislative process is at least a twofold one although my colleagues may have other insights in this regard.

First, I believe professional legal opinion can assist legislators in better understanding the legal meaning and legal effects of different draft proposals. Supporters of a proposal may have a particular goal in mind but the draft may not accurately give effect to that goal. Perhaps the examination requirement is a good example of that. Second, professional legal opinion can assist legislators in better understanding the legal constraints within which they must operate. The most obvious and perhaps the overarching legal constraint is the requirement under Article 15 not to enact any law that is repugnant to the Constitution, including the Constitution as it is interpreted by the courts pursuant to Article 34. The converse of this is that legal advice should help critically to scrutinise claims that political decision making and legislative freedom are in some way restricted by certain legal requirements. To my mind, a very noticeable feature of the political debate on the draft heads of the Bill, especially on head 4, has been the extent to which its political proponents fall back on arguments of legal necessity, which emphasise the Government's lack of freedom of choice, rather than offering stand-alone or policy-based arguments to justify the drafting choices that have been made.

In sum, I believe the two functions of the legal input today are to help to clarify two issues, first, what is the legal effect of what is actually being proposed and, second, why it is being proposed. My submission speaks of these two points as they relate to head 4 of the Bill. I do not intend to summarise here those observations in detail but will be happy to take any questions members may have. I will make a few brief points, however. Many have called this Bill restrictive but that only begs the question - restrictive compared to what? Obviously, any regulated abortion law will be restrictive compared to a wholly deregulated approach. The absence of any estimates as to the level of need which head 4 is designed to address - an absence that is based in some cases on a lack of information, studies and so on - is problematic. What will be the benchmark against which the operation of this Bill will be measured in order to confirm whether it is, in fact, as restrictive as its sponsors intend?

Rather than talk of restrictive or non-restrictive, I prefer to examine what is permissible and possible under head 4 - I stress the words permissible and possible. This does not mean "probably". Probability is not the only consideration. One of the functions of legal advice with respect to the drafting of any legal instrument, be it a will, a business agreement or a Bill, is to help to anticipate and avoid possible unforeseen or undesired consequences of a particular wording. I stress that this is a professional responsibility of lawyers and legislators alike. It is not about casting aspersions on anybody, no more than, for example, various default clauses in a contract imply ill will or distrust of the person with whom one is dealing. For lawyers and legislators not to ask difficult questions about the possibly unintended legal effects of a proposed wording would be irresponsible.

With respect to head 4, and in that light, I note in my submissions a number of legal effects which I believe, on its face, the Bill contains. First, it is clear that head 4 marks a change in the law. It is not accurate to say otherwise. It creates, for the first time, a statutory basis in Irish law for what may be a direct and intentional termination of an unborn child's life. In the January hearings Dr. Rhona Mahony articulated extremely well what she stated was the current practice in this area.

She stated:

In my hospital last year we had three cases in which we had to intervene prior to foetal viability because of our concern that a woman would die. We never kill a foetus. That is not our aim. Occasionally it is required that we deliver a pregnancy before the baby is viable or capable of surviving in our neonatal intensive care unit. When there is any possibility at all that we can preserve the life of the baby we will do so.

She continues:

In other cases we are required to terminate a pregnancy as part of a treatment of a medical condition because we feel a woman will die. That is not killing the baby. That is simply delivering the baby before it is viable. There is a difference. It is always our wish to preserve life.

That is a statement of how the practice proceeds currently.

Under head 4 it will be provided for statutorily that the aim of the procedure can be to bring about the death of the unborn child and that will be desired aim of the procedure and not some other form of treatment, relocation or therapy to the mother which has that consequence. Having that as the goal of the procedure is new, and it is a question of being honest about that. It is clear that head 4 permits such procedures at any stage in pregnancy. It has been stated by many that it will never be legal for an intentional termination to take place after viability but that does not reflect what is in the draft Bill. I can say more about that point if people so wish. I also note that head 4 does not require that the procedure be offered as a treatment for a recognised medical condition in the way in which Dr. Mahony stated those current treatments take place. I believe the committee heard from psychiatrists yesterday that they do not perceive it as a treatment in that sense either.

Head 4 does not require that the abortion be an option of last or ultimate resort, and I believe the committee has also heard this from psychiatric evidence. It may be the case that a psychiatrist's job is simply to certify that it is permissible but not a question of ensuring that it is the last or ultimate option. Following from the definition of "unborn" referred to by Dr. Mills, it is important to point out that the Bill seems to provide for the possibility of a termination occurring at any stage until the baby has been completely delivered. That may be unintentional. The definition of "unborn" includes an unborn child or a child in the process of delivery. Although it may not be likely in practice, we should be careful about how we word the issue, as that may allow for a procedure to take place even upon a partially delivered child.

The requirements for certification by three doctors may seem very restrictive on the face of it but in practice there are reasons to believe the process may operate otherwise. I would be happy to take questions in that regard.

Mr. Tony O'Connor

I am a practising barrister with no particular expertise in the abortion area, and the use of the word "abortion" may heighten people's feelings on the subject. Before proceeding, I echo the comments of my colleague barristers on the conduct of the meetings and I congratulate the Chairman on the way they have been conducted. It is a good exercise in democracy.

I am here to try to assist the committee and others who may wish to ask questions about practicalities in the practice of medicine and law. I find myself, in practice, most of the time trying to keep people out of court as opposed to fighting in court. With particularly sensitive areas like this, courts are the not the appropriate venue to fight in an adversarial way about who is right or wrong. There is some merit in the Mental Health Commission structure regarding inquisitive processes as opposed to the adversarial process.

I thank the committee for asking me to attend the committee meetings and I focused on two particular issues, which have already been covered. I took the opportunity of reading the transcript from last Friday and have had the benefit of reading in particular the views of Professor Kieran Murphy from the Medical Council. When I prepared my written submission I had not been aware that he would cover this area and I should say for the sake of full disclosure that I attend meetings in my professional capacity before the Medical Council. I have had no communications with the Medical Council with regard to its submission. Nevertheless, Professor Murphy summarised very concisely the facts on the capacity issue and I echo and endorse the view of the Medical Council regarding the public interest in ensuring clarity for doctors in making clinical decisions.

In the somewhat rushed draft I submitted early Friday morning in advance of any of these hearings I made a submission setting out present law regarding capacity and the scenario regularly faced by doctors. Such doctors come to lawyers for advice on what to do. It may be somewhat unsatisfactory in dealing with a woman's capacity to consent or refuse a procedure when there is impairment. I note the Oireachtas Joint Committee on Justice, Defence and Equality last year led to useful work by the Centre for Disability Law and Policy and I sincerely hope the assisted decision-making (capacity) Bill, which is due to be published shortly, will be enacted this year, as it will help in many areas for doctors and clinical practice. It is not seemly or right that many of the areas concerning capacity end up in the High Court. Although it is not a frequent occurrence, one or two cases have been outlined in the written submissions of people going to the High Court in that respect.

I have suggested in the introduction an amended wording for head 2(5). It covers two or three issues that should be taken in by the legislation and although it is not perfect, it is suitable for discussion purposes. It reads:

Following certification in writing by the two registered medical practitioners in accordance with head 2(1)(b), including certification has been had with regard to the right to life of the unborn, a decision by or on behalf of the patient must be made and communicated in accordance with law before the medical procedure is undertaken by a registered medical practitioner.

I am trying to cover two elements. Head 2(1)(b) as currently drafted indicates that the patient has the ultimate decision but I am anticipating instances where the patient would not have the capacity to consent or refuse permission, and I am trying to anticipate the introduction of the assisted decision-making (capacity) Bill, which will assist rather than substitute decisions. I will go into that in more detail if this committee so wishes, although I note the justice committee has already dealt with it.

Even if that Bill is not enacted, I suggest to the committee that the wording I propose would cover the area where a substituted decision must be made. It also helps to fulfil the duty of the State as required by Article 40.3.3° of the Constitution to ensure that regard has been had to both mother and baby.

It is important. Under the present draft I believe it maybe covered but there is no harm in copperfastening the certification by the doctors regarding the defence and vindication of the rights of both parties. I note the repeated request by contributors last Friday for the merging of heads 2 and 4 and that is a decision to be made by the committee, and subsequently when it is presented to the Dáil. It is principally a matter for the Parliamentary Counsel, however I see merit in attempting to rule out possible different applications under the different headings.

I endorse the opinion of the Medical Council that the monitoring system to be provided under heads 11 and 14 should incorporate appropriate requirements to preserve confidentiality of the patient and the certifying practitioners. The provisions already in the draft heads are of the type that would allow the Minister to bring in regulations, and this would be helpful. This is a very sensitive area and I suggested the Minister would be given a focus as to what those regulations are about. The regulations should provide that this is for monitoring as opposed to enforcing any particular regime.

I have heard the comments by my colleagues, in particular Dr. Mills, about criminalisation and I echo those views. These provisions are too widely drafted. Criminal provisions should be focused on what is to be criminalised as opposed to leaving it uncertain as to what can be prosecuted in time. Again, I can address that if the members of the committee wish.

Dr. Mills in particular referred to the definitions section and, again, I believe the Office of the Chief Parliamentary Counsel will pick up on many of the topic discussed at this hearing and when this Bill goes through the Oireachtas. However it is very important to scrutinise each of the terms used in the definitions section because it will have an impact on its application. For example, the word "patient" needs a definition in light of what may happen in the future. Perhaps it is tangential to all this, but the patient in this case is clearly intended to be the woman who is carrying the foetus, as opposed to any other person who has an interest in that foetus and therefore perhaps some focus is needed in that regard.

I repeat my view that the High Court and the Supreme Court are not the places to fight out the issues that can be anticipated here. I am prepared to answer any questions and if I can provide any assistance, now or in the future, I am more than willing.

Ms Caroline Simons

Good morning Chairman, members of the committee, Senators, Deputies, members of the press and the public. Once again I thank you for the invitation to attend today now that we have the heads of the Bill. I have tried to listen, not to everybody's contribution over the last two days, but to some of them. We have all been impressed by the professionalism and dedication shown by the medical experts. I use that term to cover the experts from all the areas of medicine who we have been listening to. In this phase of the committee's deliberations it has been particularly nice to hear testimony from some of the doctors who work in related areas.

Yesterday we heard from Dr. Janice Walshe, the consultant medical oncologist from St. Vincent's University Hospital. I was particularly struck by her when she said that oncologists who are dealing pregnant women who are suffering from cancer strive for foetal maturity rather than viability while providing all the care and cancer treatment the patient needs. We also heard from Dr. Kevin Walsh, consultant cardiologist at Crumlin and the Mater hospitals, who spoke of the outstanding success of the Mater and Rotunda team approach to dealing with congenital heart disease in women. I was delighted to hear about that because women listening to these proceedings need to know the medical teams in the hospitals are doing their best for patients with whatever complication of pregnancy they have and, happily, with great success.

If the opportunity and time allows I might suggest the committee might also seek the advice and testimony of doctors from another branch of medicine which touches on this. I refer, of course, to consultant neonatal intensive care doctors, who might have something valuable to tell us too, given the kind of conversations we have been having over the last few days about delivery of very premature babies.

Our function today as lawyers is to assist the members in their analysis of the Bill. As lawyers we can look to the formulation of the words in the heads of the Bill and advise the members as to its meaning and, more importantly, to the possibilities to which it might give rise based on our knowledge and understanding of the law. We are not obstetricians or psychiatrists and so we rely on those experts for their expert testimony within their area of expertise. I was interested and particularly impressed in the last couple of days with the understanding the psychiatrists have shown of the law and what this Bill will mean regarding the practice, although it is not their area of expertise. When I hear Dr. Mills and others talk about merging heads 2 and 4, I think there will be some difficulty with that given the difficulty there has been around the suicide issue, which is the subject, as members know, of head 4.

It is interesting that we have come to a point yesterday, which is a considerable development, when we heard the chief medical officer of the HSE talking about this Bill conferring procedural rights on a woman who believes she has a life-threatening condition. We heard another psychiatrist talk about this Bill providing a service which should be accessible and efficient, which is a slightly different requirement than was made of us by the decision in A, B and C v. Ireland. We need to examine what exactly this Bill is doing. Is it about a service provision? Does it have the backing of medical evidence? It seems that it does not. Even though medicine does not prescribe this procedure, it seems the law will demand it. I agree with Mr. Brady beside me that, potentially, the law will allow it throughout the nine months of pregnancy, on a fair reading of the X case from paragraph 35 on and a subsequent case I dealt with in my submission.

In my written submission to the committee I made a number of points. The decision in the X case and these heads of Bill permit the termination of the life of an unborn child, not just the termination of pregnancy, and without any time limit, notwithstanding any of the statements of comfort which appear in the explanatory notes. No evidence has been given to the committee that abortion is efficacious in the clinical care of suicidal women in pregnancy, while there is evidence of increased risk of suicidality following abortion. The decision in the case of A, B and C v. Ireland does not require Ireland to legislate for the X case. There are alternatives which this committee ought to consider, even at this point.

The Bill proposes a procedure as a treatment which is untested, without any scientific basis and which must, therefore, be considered experimental treatment. The usual criteria for the use of an experimental treatment cannot be satisfied by this formula. There is an inconsistency throughout the Bill regarding what procedure the Bill permits. I referred to this in my submission. In head 1 it refers to the medical "procedure that will end unborn human life". In heads 2, 3 and 4 the wording is "medical procedure in the course of which or as a result of which unborn human life is ended" and in head 12 the wording is "termination of pregnancy". There are differences between these three wordings that have very different outcomes and this has ramifications throughout the rest of the Bill particularly regarding the conscientious objection clauses.

Members will see that in my written submission I have dealt with the requirements of the European Court of Human Rights decision in the case of A, B and C v. Ireland and the requirements of the X case, and then I have looked at the law regarding experimental treatments. Finally, because it is so important, I have looked extensively at the law on conscientious objection internationally. Having said that, the law on conscientious objection should have no relevance whatever where we are talking about doctors wanting to practice good medicine and wanting to avoid something which has not been proven to be in any way useful to the management of a patient in circumstances where suicide is an issue. I shall leave it at that and welcome questions the committee raises.

Chairman

Members of the committee will be allocated 70 minutes and 11 members have indicated. Not everyone will get in but I will try to be fair to everybody. I ask members to be brief in their questions.

Deputy Billy Kelleher

I welcome the witnesses. I shall address my questions to Dr. Simon Mills first. Can Dr. Mills elaborate what he meant in the context of capacity and representation under heads 6 and 9? Is he saying, for example, that a woman who has been refused through the panel and who lodges an appeal with the review panel would be entitled to legal representation or that somebody else could represent her if she felt she was not in a position to attend for whatever reason, medical or otherwise? I seek clarity on the matter.

Dr. Mills also mentioned a conflict of interest in the panel. Is that a conflict in the context of conscientious objection or is it a conflict for some other reason? He referred to being obliged to declare a conflict of interest. I seek clarity on the matter.

When Dr. Mills referred to criminalisation in the context of head 19, was he referring to the criminalisation of a person who would carry out the termination or also the criminalisation of the woman? He referred in that context to it being quite problematic, so I want to get clarity on that as well.

On the broader issues, Mr. Brady referred to the fact that a termination could take place up until birth. He implied that it would be the intentional destruction of the baby. Where is that stated in the legislation? Where could that possibly happen? Is he saying that the legislation overrides the right of the unborn contained in Article 40.3.3° and explicitly stated in the Constitution?

Head 4 has been quite contentious in discussions and we have had varying views. The Government has made the decision to legislate, although the Oireachtas will decide at the end of the day. Is there not a constitutional obligation on the Oireachtas when legislating to include the threat to the life of the woman because of suicide? I seek clarity on the matter because I have heard varying views. The Attorney General has a view but the senior counsel and BLs may also have a view.

Deputy Caoimhghín Ó Caoláin

Go raibh maith agat. I thank each of our guests for attending this morning.

I have a question for Dr. Mills on his proposed rewording of head 2 regarding GP involvement, where the current wording includes "shall consult" and "where practicable" and he suggests "where clinically appropriate" as an alternative wording in that regard. This view argues for a less direct involvement by the GP, although the Bill as drafted does not require GP involvement as an absolute, only where practicable. This contrasts with the views expressed by psychiatrists yesterday who argued that the GP should be fully involved, even to the point of suggesting that the GP should be the first to determine the need, or possible need, for a termination in the context of head 4. Did Dr. Mills note their views? I know it is very difficult to follow each of the day's submissions. Would Dr. Mills like to offer any elaboration on his view in this regard and his view of their arguments, if he has had such an opportunity?

On Mr. Brady's submission, specifically his written submission, which I have gone through, he is at pains to point out his position on the X case decision. He says that a point not argued is a point not decided and references the two specific concessions, as he describes them. Counsel for the Attorney General formally conceded two points. The first was that abortion is lawful under Article 40.3.3° in certain circumstances, and the second concession was that in certain circumstances, an abortion could be the only way to avert the death of a woman from suicide.

In his conclusions, Mr. Brady makes the point that the fact that these concessions, as he describes them, have determined the fate of such an important court case is perhaps regrettable. He concludes that 21 years later, this is determining the fate of our legislators' deliberations. As a legislator, I would like clarification of his view of this process. Is it the failure of the Legislature to address the issue over the past 21 years that is inexcusable, which is his very last word in his written presentation, or is it that a decision, albeit a flawed decision in his view, of the Supreme Court, with its pre-eminence in law, is dictating the parameters for addressing these matters that is inexcusable? I would appreciate it if he could clarify his position regarding these remarks.

I record my thanks to Mr. Tony O'Connor for suggesting that we redraft head 2(1) and for the points he made specifically on head 2(5). That is what this committee is about. It is trying to find a way to improve the legislation and make it fit for purpose. That is something we must evaluate.

Ms Simons makes the point in the opening page of her written submission that the evidence given by every obstetrician and psychiatrist to the committee in January 2013 is totally contradicted by what is now being presented. This has been strongly refuted during the course of these hearings by the most senior perinatal obstetricians in the land. Ms Simons must understand that we are trying to go through all of this information and it seems that there is a strong difference of opinion in that respect.

Deputy Seamus Healy

I welcome the experts and thank them for their presentations. We have received quite a number of presentations and heard a lot of information. In the process we may have forgotten the basics. Am I right that the proposed legislation will be operated on the basis of Article 40.3.3° of the Constitution, which contains a constitutional commitment to the life of the woman and the unborn, on the basis that there is a real and substantial risk to the life, rather than the health, of the woman, that it will be permissible only where the risk can be averted by a termination, and that the woman make the final decision?

Senator Jillian van Turnhout

I thank the panel for their expertise. I would like to raise head 12 on conscientious objection, because it has come up several times and all of the experts have testified to their appreciation of the right to a conscientious objection. However, it seems it has always been seen from the perspective of the doctor or the consultant. Does a patient have a right to know if their medical practitioner has a conscientious objection? We have seen it from one perspective.

With regard to heads 2 and 4, the majority of governing and regulatory bodies have proposed that the two heads be merged. Yesterday, for example, we heard that while in psychiatry there may be no biological markers, there are clinical signs and symptoms, and there was clear testimony to that fact. I would welcome the panel's views on why they would agree or not agree with the proposal that the two heads would be merged.

I note on head 19, which deals with the scope of the offence, that Dr. Mills' comments are in line with comments that have been made by me and others over recent days. It is an issue we must look at.

Several experts have raised with us the silence of the Bill when it comes to children, to girls, in particular Dr. Maeve Doyle's testimony on children who are in care because of an abusive situation. It greatly troubles me that we will have a Bill that will totally ignore this small cohort of children who are voiceless and, yet again, may be left voiceless. Is this an issue that we could or should address within the parameters we have?

Senator Colm Burke

I thank each of the panel this morning for their constructive contributions.

First, I want to ask Dr. Mills and Mr. O'Connor about the issue of where the expectant mother is under 18 years of age. The question at present is that the heads of the Bill are silent on dealing with that issue. Is it their view, when three medical persons come to a conclusion no matter what way we structure this, that there should be a procedure put in place to deal with that from a legal point of view? In particular, there is a distinction between someone who is under 16 and someone who is over 16. I wonder would they clarify their own views as regards how we should go forward with that issue.

Mr. Brady used the quote from Mr. Justice McCarthy from page 82 of the Supreme Court judgment in the X case. It is important that I would quote what Mr. Justice McCarthy stated: "In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan's case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable". That was 21 years ago. His criticism was about the lack of legislation. I am not clear on Mr. Brady's criticism this morning as regards what he thinks is the best way of dealing with this matter. The Supreme Court was quite critical of the Oireachtas for not having legislation.

Ms Simons stated there are alternatives. I presume to what she refers is that there should be no legislation and it should be by way of guidelines. I may have misinterpreted her view. I am wondering under what existing legislation is she talking about guidelines. For guidelines to be put in place, there has to be legislation. Perhaps she might outline alternatives to the way we are dealing with this.

Chairman

Dr. Mills may want to start. There are eight other members who have indicated.

Dr. Simon Mills

In fact, I can deal with a couple of the questions in a way that I hope will respond to two or three of the Deputies and Senators at once, and I mean no disrespect if I do not deal with each of the questions raised by individual members.

To deal with the first broad rubric which is that of capacity, and that arises from Senator Colm Burke's question, from Deputy Kelleher's question and from Senator van Turnhout's question. Capacity comes in two forms when it comes to medical treatment. The first is one's mental capacity, that is, whether or not one has the cognitive ability to take the decision in question. The second aspect of capacity is one's capacity in terms of age - whether one was of sufficient age such that the law recognises one's ability to take a decision.

To deal with Deputy Kelleher's question first in relation to capacity and legal representation, it is a somewhat complex issue. In fact, capacity arises somewhat earlier in the process than merely heads 6 and 9 because one wonders what is the situation, for example, for a patient who may require a termination in a life-threatening emergency or who may require a termination under head 2 and who lacks capacity. How are such decisions to be taken? They are likely to be taken by reference to the mental capacity legislation, which is due to be introduced. It currently goes by the Title, assisted decision-making (capacity) Bill. It strikes me that a big part of the conversation we are having in so far as it concerns those who are vulnerable in terms of capacity can be answered by the prompt introduction of that legislation.

The question that flowed from that is, "What is the story then about representation when it comes to a review panel?" Again, the answer to that question starts slightly earlier. What is the right of review for a person who lacks capacity? If somebody lacks capacity - it has been suggested, for example, that she might well be somebody to whom head 2 applies and a decision is taken that head 2 does not apply to her - how is it determined whether that person has a right of review and how is that review to be exercised? It is something that the Bill might consider.

In terms of the specifics of representation, it seems that one of two approaches can be taken. The first is that the Bill would provide for a general right of representation such that a person can be represented if the person wishes. The alternative would be that some form of representation is guaranteed. One thinks about, for example, the model under the Mental Health Act 2001 where a person is entitled to a review of his or her involuntary detention and legal representation is appointed for him or her.

In regard to age, which Senator Colm Burke raised and which also touches on Senator van Turnhout's question, the law in relation to age is reasonably straightforward for over 16s. Once one is over 18, one is an adult and there is no issue. One has the right to consent to and to refuse medical treatment. If one is 16 or 17, section 23 of the 1997 Non-Fatal Offences against the Person Act, which is, perhaps, an odd legislative instrument in which to repose the right to consent to treatment but which is where it resides, gives those aged 16 and 17 the right to consent to medical, surgical and dental treatment. It does not give them the right to refuse, which is a significant omission that has been identified by the Law Reform Commission. We simply do not know what the legal position is in the case of under 16s. The Law Reform Commission has called for reform in this area and reform is certainly required. The United Kingdom has adopted a doctrine called Gillick competence, which confers on under 16s a limited right to consent to treatment. There is no such equivalent doctrine here, although the Law Reform Commission has recommended that one be adopted.

To deal with Deputy Seamus Healy's question, the three assertions that he makes are absolutely correct. It is worth observing that the three interpretations he invites us to agree with are also part of the bulwark which is, in effect, erected against many of the so-called floodgates arguments that are advanced, that however this Bill is ever to be interpreted, it is always to be interpreted against the backdrop of Article 40.3.3°.

Lastly, to deal briefly with Deputy Ó Caoláin's question about GP involvement, it may well be that there is a wider role for the general practitioner than that which is currently countenanced by the legislation. A GP is a doctor on the register of medical specialists. He or she is on the register of medical specialists as a general practitioner. The issue that I raise, I suppose, is the requirement that a GP shall be consulted where practicable raises at least the possibility of a bizarre procedural wrangle over the question of whether or not a particular decision is defective because sufficient efforts were not made to contact the GP prior to the termination being carried out. It strikes me that the rationale offered in the Bill, which, ultimately, relates to follow-up care, certainly places an obligation on doctors to liaise with the GP on follow-up care but it is not clear to me that there must be an obligation for certifying doctors to deal with a GP, although there may well be a role for a GP in the certifying process. I hope that answers all the questions that were put.

Mr. Paul Brady

The Chairman indicated I have five minutes and I will try to do justice to the questions in that time.

Briefly, in response to Senator van Turnhout's question regarding children, I would echo much of what Dr. Mills said. The issue of consent to medical treatment of various kinds and children in Irish law is really a neuralgic point in Irish law because of various conflicting provisions, particularly the conflict between the definition of child in the Mental Health Act and also the provisions in section 23 of the 1997 Act. Given what we have heard about how this Act might be applied and who may be using it, it seems to me that this is an issue that probably needs to be addressed in a determined and focused way by the Oireachtas, perhaps before this other issue of termination of pregnancy is addressed. It is a stand-alone problem in its own right - consent and medical treatment for children. It should not be dealt with as a kind of tag-on to this issue. It deserves full consideration. It would be very problematic indeed if this legislative machinery is set up while that issue is left parked and unclear. It is a recipe for many problems ahead and unnecessary anguish, and perhaps cases before the courts. That might give pause for thought.

That issue should be dealt with first and properly before the current Bill is pushed through.

As regards Deputy Ó Caoláin's and Deputy Kelleher's questions, I will take them together. To be clear, what I regard as inexcusable in my final line, and I am paraphrasing Mr. Justice McCarthy who used it in a different context - and I acknowledge that, of course - is that there is a perception that the Oireachtas is bound to legislate for threatened suicide as a grounds for termination of pregnancy on the basis of the X case decision. What I am trying to point out in my submissions is that that part of the decision was based on a concession made by the parties at the start. It was not argued and therefore it was not decided. That is not an esoteric point, it is a well-established point in constitutional law. I have given some quotations in my submissions. I cannot really do better than to quote that short extract from Mr. Justice Brian Walsh, whom Professor Joe Lee referred to as being one of the leading, outstanding legal reforming minds of his generation. He was a member of the European Court of Human Rights, the Irish Supreme Court and the Irish High Court. He was also chairman of the Law Reform Commission. In 1992, shortly after the X case decision, he said that Article 40.3.3° confers no immunity for taking life, and that its stated objective is the preservation of and respect for life.

It is perfectly consonant with the idea of safeguarding the woman's life without intentional and direct intervention to terminate the life of the foetus. The claim that it admits of direct termination has never been fully argued. In the X case it was conceded. There was no legitimus contradictor to argue against such a construction and therefore the court's decision can only bind the particular case as it was based on a conceded and unargued construction. It is well established that neither a constitutional provision nor even a statutory provision can be construed on the basis of a concession if it were to be binding in rem.

It is unfortunate that in discussing this issue, and having had the benefit of so much expert opinion in January and over the last few days, legislators should feel under some strait-jacketed legal obligation to bind themselves to what was a concession in that decision. I am making that point purely as one of legal analysis. As lawyers, we should be allowing members of the committee as great a freedom as possible to do what they think is right as regards a good, evidence-based law, and not to feel that with a heavy heart they have to legislate for something they think is unwise, imprudent or not beneficial because they feel they are under some over-bearing constitutional obligation in that regard.

Of course, legislators are under a constitutional obligation to comply with the Supreme Court and to interpret the Constitution appropriately, but I would say they also have freedom to explore options in this regard. When it comes to the question of options, there has been a failure to explore creatively the great scope that is given to a contracting member in the Council of Europe in how we responded to the A, B and C case in Ireland. The expert group set out four possible options and dealt with them in a cursory way. In fact, all four of the options given - guidelines, regulations, legislation, or legislation and regulation - could have provided a route for what the European Court was seeking. The expert group defined guidelines as exclusively non-statutory, but guidelines would have some statutory basis and there are various mechanisms by which that could be done. The Government has made a decision that it wishes to go with legislation and regulation. As to what that encompasses, my point is that we should not feel under an artificial strait-jacket in that regard. Legislators should be able to do what they think is best on a substantive basis and not on some procedural basis.

Mr. Tony O'Connor

I will deal with the questions that arose from each member of the committee as they were put. Forgive me if I do not get to them all. Deputy Kelleher mentioned conflicts of interest and legal representation. On a pragmatic front, I believe the evidence which has been given to this committee by people like Dr. Mahony, Dr. Boylan and others, shows how doctors deal with this. They are not out there to terminate the life of the unborn. It works well but in a perfect world there should be a procedure, something like the mental health tribunals, in cases where a conflict is identified. If the committee does not mind me saying so, I think it should be lawyer-free as much as possible. We are here to help but we do not want to end up in the courts when we can avoid it.

I agree with the Deputy's perspective on criminalisation under head 19. I think it needs to be more focused. He mentioned the point about the constitutional obligation to legislate and that is undoubtedly the case. It must be accepted by everybody that we are now 21 years on from the X case and there cannot be any further delay in implementing legislation.

I thank Deputy Ó Caoláin for his comments on the draft and I note that he will consider that. He also made the point about the failure to legislate for 21 years. It is time to proceed.

Mr. Brady raised the issue concerning the capacity of children to make the decisions. He suggested that perhaps the legislation would be delayed pending the legislation on capacity both for children and vulnerable adults. My own view is that we have waited long enough and we should get on with it. However, this committee certainly should send a message concerning the legislation on the capacity of children.

Senator van Turnhout mentioned Dr. Maeve Doyle's evidence, which I did not read. However, it is a matter that perhaps this committee should forward to the relevant Oireachtas committee and ask it to get on with the legislation about capacity for vulnerable adults and children.

I agree with all the points that Deputy Seamus Healy made, including that this law will comply with what he has sought to explain.

Senator van Turnhout mentioned the obligation of a doctor to explain a conscientious objection. This legislation does not provide for that, but it is my understanding that the evidence already before the committee is that in its code of conduct the Medical Council has provided that it should be. The new code is to be introduced with the new Medical Council and that point should certainly be made to the Medical Council.

Senator Colm Burke asked a very relevant question on under-18s. There is a deficit there but the doctors have shown the committee how it is working. However, for legal certainty, I would urge the committee to send the message out that legislation is required.

Ms Caroline Simons

Picking up on the point that my former classmate, Mr. O'Connor, has just made, we are not obliged to bring in legislation. Mr. Brady has made that point very well. We do not have to bring in legislation to give effect to every expression of an unenumerated right in the Constitution. For instance, there is a right to bodily integrity but we do not have legislation bringing that into effect. In my own submission, I referred to Kenny's decision in The People v. Shaw in which he said that the word "laws" in Article 40.3 "... is not confined to laws which have been enacted by the Oireachtas but comprehends the laws made by judges and by Ministers of State when they make statutory instruments or regulations". Therefore, we are not talking about something that is not entirely clear. This is a feasible alternative and might very much get one out of the difficulty concerning suicide, if the committee feels that is a difficulty.

Senator van Turnhout's question concerned who could exercise the right to conscientious objection, whether the woman could, and whether she would be entitled to know if a doctor has a conscientious objection to the treatment she is requesting. I agree that she is entitled to that information. However, I am a little wary of the suggestion that has arisen in the discussions over the last few days that there might be some kind of a list made of conscientious objectors. I feel that is a little sinister. I do not like the sound of that.

I do feel that the list of people to whom conscientious objection is afforded under the Bill is very limited. It is just given to midwives and doctors.

We must appreciate that under Article 9 of the European Convention on Human Rights, conscientious objection is not something that is limited in the sense that freedom to manifest religion is. I found the explanatory notes a little confusing in that regard and I will tell members the reason. Under Article 9.1 of the European Convention on Human Rights, the freedoms are expressed in an absolute way. These are the freedom of conscience, thought and religion, and when one then considers Article 9.2, the freedom to manifest one's beliefs and one's religion is limited. However, there is no express limitation in respect of conscience. Conscience is something that is, if one likes, bigger than any religious objection one might have. One need not have any religion in order to have a conscientious objection. A religious objection is something that comes from the tenets of a particular faith of which one is a follower, whereas conscience is a different thing altogether. Consequently, it is something that is very important and it is important that it be protected in the highest and most noble way for people who have a difficulty, particularly in the area of abortion, which we have found throughout the world in any legal text one might look at in this regard.

Eight speakers have indicated and I again ask members to co-operate. Deputy Fitzpatrick, Senator Bacik and Deputy Naughten are the next three speakers.

Deputy Peter Fitzpatrick

First, I thank the witnesses for their attendance and presentations. I have a few questions for them. In the event of a later stage termination being carried out under head 4 at 24 weeks where there is a known high risk of disability and where the child is born disabled as a result, will the State, the HSE or the doctors be liable if the child or either parent subsequently takes a civil action? In the event of a later stage termination being carried out under the legislation and where the child lives, who will be responsible under the law for the subsequent care of the child? In a case where a woman has undergone an abortion under head 4, the risk of suicide, and where she subsequently regrets this action and suffers a psychiatric illness, will the State, the HSE or the doctors be liable if the woman takes a civil action on the basis she was not competent to make such a life-changing decision at the time? In the event of a later stage termination being carried out under the legislation and where the child lives, will the biological father be liable for the costs in bringing up a child or will the mother be similarly liable? If the taking of civil litigation by either a surviving child or mother is possible, what records will be available under the proposed legislation to assist a court in making a judgment? In the event of a later stage termination being carried out under the legislation and where a child lives and if the biological father or a biological family member wishes to take over the care of the child, will this be permitted or will the mother be given complete control over the fate of her baby? In the event of a woman presenting with suicidal ideation because of the baby's gender, under head 4 will she be entitled to an abortion? Finally, is there any evidence to suggest that abortion is good for women?

Senator Ivana Bacik

First, I thank those witnesses who engaged with the terms of the heads of the Bill as members of this committee are required to do. Since the Oireachtas is required to legislate for the X case in accordance with the judgment of the European Court of Human Rights and as the Government has decided to legislate, it is helpful to have submissions that engage with the heads of the Bill, as witnesses were asked to do.

Chairman

If we could all engage with the heads of the Bill, it would be absolutely beneficial to us all.

Senator Ivana Bacik

I will do that and I thank the Cathaoirleach.

Chairman

It would be a blessing.

Senator Ivana Bacik

I wish to ask Dr. Mills and Mr. O'Connor in particular about the issue regarding the general practitioner, GP. I take the point about the current wording, "where practicable", being rather vague. Would it be helpful to include a specific requirement that the GP be consulted with the consent of the pregnant woman? In a second point on definitions, Mr. O'Connor picked up on the definition of "patient". However, looking through the heads, I note the word "patient" is only used in head 4(4) and head 2(5) and elsewhere throughout the rest of the Bill, the term "pregnant woman" is used. This might answer Mr. O'Connor's issue in that rather than being obliged to define "patient", one could simply not use that term but instead could use the clearer term "pregnant woman". I seek his comments in this regard.

In respect of head 1 and the definition of the unborn, this is something to which Dr. Mills referred in January. At present, it appears to me as though this definition goes further than is required by Article 40.3.3° and appears to cover, for example, both where there is no prospect of life outside the womb and where the foetus is in fact dead. Should the definition of "unborn" at least be restricted to exclude this particular aspect, in accordance with what representatives of the Institute of Obstetricians and Gynaecologists told the joint committee last Friday, which was that in this instance, they do not regard it as coming under the definition of "unborn"? Finally, I was glad to hear both Mr. O'Connor and Dr. Mills state that head 19 is too broadly drafted. I had taken the view that it is so broadly drafted, it would in fact be inconsistent with the Constitution, in line with the precedent in King v. Attorney General that it is too vague and covers too broad a range of activities. I am grateful to both witnesses for pointing out the excessive broadness. In particular, should members consider not criminalising the pregnant woman, in line with the Criminal Law (Suicide) Act 1993, where the person who attempts suicide is not him or herself criminalised? This is the Act referred to as a model in the notes to head 19. I believe everyone is in agreement there should be some sanction for the doctors or persons who aid and abet outside of the legislation, at least within the terms of the Constitution.

Chairman

Thank you.

Senator Ivana Bacik

However, should the pregnant woman herself be criminalised?

Deputy Denis Naughten

I thank the witnesses. In their evidence to the joint committee this morning, both Mr. Brady and Ms Simons stated the heads of the Bill as currently drafted would allow for the termination of life of the unborn baby. They should clarify this point because my interpretation of head 4 is that the consultant psychiatrist must come to a reasonable opinion that there is a risk and that it can only be averted by the medical procedure. However, the definition of "reasonable opinion" states there must be due regard to the need to preserve the unborn life, where practicable. Based on this definition, how can they state it would be legally possible to terminate the life of the unborn baby? I ask them to clarify their interpretation in this regard.

In his initial contribution, Dr. Mills made the point that the threat to life will be on the basis of probability.

We had evidence yesterday from some eminent specialists that a 5% threat to life is a significant threat and in those cases they would feel it was a sufficient threshold for the mother to consider a termination of the pregnancy. I would welcome clarification on that point.

In the C case, which related to a rape victim, the High Court set out a very low threshold on the test for a real and substantial risk of suicide - far lower than is currently drafted in the legislation. Do the witnesses believe that if the legislation is challenged in the Supreme Court or there is an Article 26 referral, it will stand up to the challenge?

Deputy Robert Dowds

I thank all the expert witnesses. Is there any way the criminalisation provisions in head 19 are a danger to a person who is trying to operate within the confines of the Bill, assuming it is enacted?

Is it possible to write a provision into the Bill to cover consent in the context of girls aged under 16? It is clearly a difficult area because part of the problem nowadays is that people mature physically before they mature in other respects. Would it be possible to come up with a wording to cover the issue?

My final question is prompted by my colleague Deputy Regina Doherty. It is directed to Mr. Brady in particular. How does the judgment of the Supreme Court differ if it is conceded as opposed to argued? Was this particular judgment unanimous and how does that position affect the judgment?

Deputy Mary Mitchell O'Connor

I thank all those who presented to us today. Dr. Mills mentioned conscientious objection in passing. He referred to the freedom of medics in terms of the woman’s right to be granted a termination. What are his views in that regard and does he have concerns? I address the same question to the other expert witnesses who have spoken.

Ms Caroline Simons

On Senator Bacik’s question on the obligation to legislate, I refer her to page 6 of my submission, in which I deal with the obligations on us under the European Convention on Human Rights and Irish constitutional law. I refer her in particular to the decision of Mr. Justice Murray in the case of McD v. L in 2010, in which he said that national law always takes precedence over international law. He continued by saying that the obligations undertaken by a Government that has ratified the convention arise under international law and not national law. Accordingly, those obligations reside at international level and in principle the State is not answerable before the national courts for a breach of conventions or obligations unless provision is duly made in national law for such liability. Thus, contracting states may in principle, in so far as the effect of the convention at national level is concerned, ignore the decisions of the court. Although I do not advocate that, I have pointed out in my submission that we are exemplary in our observation of decisions that are made in regard to us - much better, in fact, than Germany, Italy and other countries that I cited in the text.

On the question on head 4, which is where we find the idea that perhaps this Bill and the X case would allow termination of life rather than termination of pregnancy, if one looks at paragraphs 36 to 38 of Judge Finlay’s decision in the X case, one will see his consideration of the test that was proposed by the Attorney General, namely, that the life of the unborn could only be terminated if it were established that an inevitable and immediate risk existed. The judge said that the formula proposed by the Attorney General insufficiently vindicated the mother’s right to life. In a later case, in the matter of Article 26 of the Constitution and in the matter of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill, 1995, Judge Hamilton said the case of Attorney General v. X established that, having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of her pregnancy.

Where we are talking about a situation in which a woman who does not have a mental illness but who is suicidal because of a pregnancy requires treatment - namely, her suicidality is to be addressed - it will not be enough to deliver her so that she is not pregnant. It may be the continuing existence of the baby that is causing her suicidality. There is room to see in the judgments that she could look for a termination of the life of the unborn. It would be reasonable to think that most people who would avail of the procedure would wish that result. We do know that in 2005 in the UK 66 babies survived NHS abortions. That figure was published in 2008. Following that, the Royal College of Obstetricians and Gynaecologists introduced a guideline which required that once a woman who had elected for an abortion was 21 weeks and six days pregnant she was entitled to have a foeticide either before or during the termination. Those are the kinds of things the members will have to think about. As lawyers we have to tell the committee about the possibilities that are raised by the heads of the Bill, which must take cognisance of the decision in the X case, so there is room for manoeuvre.

In response to Senator Bacik and others who have inquired on the matter of the criminalisation of women in abortion law, it is still a crime in the UK and the 1861 Act still applies there. Members are probably aware that last autumn there was a successful prosecution of an abortionist in the UK and in recent times there was a prosecution of a woman who aborted her baby at 30 weeks' gestation. She was given eight years by UK courts. It is easy to say we do not want to criminalise women but there may be cases in which that is appropriate, and it would be unwise to remove the law.

Mr. Tony O’Connor

Deputy Fitzpatrick’s questions related to matters that are outside the scope of the Bill, but I am open to correction in that regard. They were theoretical questions about civil actions and biological fathers which would only prompt me to again advocate that the committee encourage the Legislature to introduce legislation on assisted human reproduction. That is an area in which I have a particular interest and I take the opportunity to suggest that if the Deputy has an interest in it he should deal with it. I do not mean to be dismissive of his questions.

Senator Bacik raised a number of points and I hope to deal with all of them. I agree that the consent of the patient to go to a GP is important in the context of what we are talking about. I also accept her point that the term “pregnant woman” is used in other areas of the Bill and perhaps the term “patient” could be married with that. I acknowledge her expertise, particularly in the criminal law area. She is correct in stating, about head 19, that the phrase “It shall be an offence for a person to do any act with the intent to destroy unborn human life” is too broad and will not stand up to scrutiny. It needs better definition.

Dr. Mills has dealt with the broadness of the term “unborn”. I have had a discussion with him on the matter of whether it covers ectopic pregnancies. If one wishes to be clear then why not take the opportunity now to make sure it does not?

Deputy Naughten did not address a particular question to me, but I understand his concerns. The legislation has been awaited for 21 years and we must get on with it.

The practice is there and this reflects it.

Deputy Mitchell O'Connor asked about conscience. I reiterate my earlier remarks, the guide of the Medical Council requires doctors to disclose a conscientious objection to the patient. Senator van Turnhout raised this issue as well, so perhaps that message can be sent out. It should be addressed but it am not sure it is appropriate for primary legislation.

Mr. Paul Brady

Senator Bacik's point goes the essence of one of the points I am trying to make in as far as I respectfully disagree with the Senator that we are required to legislate for the X case by reason of the A, B and C v. Ireland decision. I do not think that is an accurate reading of the A, B and C v. Ireland. I have put into my written submissions detailed references to some of the jurisprudence of the ECHR regarding the implementation of its decisions.

A decision of the ECHR is primarily a declaratory judgment, it is not like a judgment in a domestic court, which generally gives a declaration as to who wins and states what the losing side must do about that. Unless it is under a pilot scheme judgment, which was not the case in A, B and C v. Ireland, the court is declaratory. That discretion of a contracting member state to implement a decision is increased when it comes to the implementation of a positive obligation. The breach in A, B and C v. Ireland was a breach of the positive obligation on the State towards the third applicant under Article 8, not a negative obligation, to facilitate accessible and effective procedures to a woman in the situation of Ms C. When implementing a decision regarding a breach of positive obligations, there is an even greater area of discretion. That has been played down in how these matters have progressed.

This leads to the second point raised by Deputy Naughten regarding my view as to how, in the case of head 4, a termination of the life of the unborn as opposed to the pregnancy, could occur after viability. This comes down to the application of the test of real and substantial risk beyond physiological conditions. In the case of a medical condition arising due to a physical aspect of the pregnancy, there will be a distinction between terminating the pregnancy and terminating the life of the child in that the death of the unborn child itself will avail nothing. It may well be, however, that it occurs in the context of a procedure designed to assist the woman, whereas in the case of suicidal ideation or intent, as proposed under head 4, it is conceivable that the refusal of an abortion itself may be the cause of suicidality. That was a possibility canvassed by many of the psychiatrists. In those situations, to say that we will induce an early delivery is not responding to the threat to the life from suicidality on the grounds of that pregnancy. The requirement in the Bill to have due regard to human life as far as practicable was also the test the Supreme Court was applying when it allowed for a direct termination of the life of the unborn on the grounds of suicidality. It is not safe to assume that simply because at the moment best practice is not to do anything post viability that would directly end a life, that will continue under head 4. I do not think head 4 requires that at all.

To go back to the significance of the conceded point made by Deputy Doherty, Mr. Justice McCarthy, who other members referred to, in the course of the X case judgment himself at page 77 of the report referred to an earlier decision of SPUC v. Coogan and said he disagreed with that decision. He was in the minority because he did not consider the point to have been decided in an earlier case which the court was referring to. He applied the doctrine I raised, that an unargued point is not a decided point and is only binding for the case. It leaves room for action, therefore, if the will be there. That is not my business, but it is my business to point out if an artificial constraint has been put upon a person when that person is in fact free to make decisions.

Dr. Simon Mills

On the question of merging heads 2 and 4, there are a number of ways of looking at this. They can be dealt with separately but if they are to be dealt with separately it should be done by the application of the same legal test, whatever the threat to life of the mother. No distinction was made in the X case and no distinction is made in Article 40.3.3o to the effect that with due respect to the life of the mother, except for those threatening suicide. By that logic, once it is accepted, and I perfectly understand that there are those who do accept this view, there is no ground for discrimination between those threatening suicidality and those whose threat to health is physical, save for the expertise of doctors who may be called in aid when it comes to the provision of medical expertise. It does not seem to me that the distinction stands up.

That becomes clear when we look at head 4. It asks for two consultant psychiatrists and a consultant obstetrician and gynaecologist. It leaves open the prospect that two psychiatrists might form the view that suicidality is present such that it poses a threat to the life of the mother only to be vetoed by the consultant obstetrician and gynaecologist. That is a vanishingly unlikely prospect but it is a curious prospect to have in the legislation. Mr. Brady and Ms Simons talked about this earlier. What are the consequences of the rules the Bill is laying down? That is one consequence.

Mr. Brady mentioned that head 4 changes the law. I think the position is precisely the contrary. To exclude suicidality is to change the law because the law as it currently stands is the law as laid down in the X case by the Supreme Court in its interpretation of Article 40.3.3o. When that argument is put forward, there is curious burden shift that is not being dealt with in these hearings, which is that when the burden is all of a sudden about changing the law to exclude suicidality, that burden requires a heavy onus to be discharged by those looking to change the law. It is for the committee to decide if that onus is being discharged.

Deputy Fitzpatrick asked about consequences of delivery. I agree with Mr. O'Connor that it lies with the discussion of the heads of the Bill as they stand, save for one observation that might commend itself to the committee and the Oireachtas, whether or not there is a requirement, as there is under the Mental Health Act 2001, to deal with questions of civil liability that may arise from acts done in good faith under the provisions of the Bill. It may be that some such section would be appropriate.

Senator Bacik asked three questions. She referred to the scenario where there is no fetal heartbeat and whether some form of clarification is necessary. Once that is the scenario, one is talking about a wholly different medical phenomenon, missed miscarriage, and that falls to be treated in the way that a missed miscarriage would ordinarily be treated. There is a half-way scenario that relates to the question of the inevitable miscarriage of the non-viable early pregnancy. That remains a grey area.

On the question of consultation with the GP and the woman's consent being required, that is a difficulty created by the introduction of the world "shall", saying doctors "shall" consult with the GP. The requirement for the consent of the woman is atomised by that requirement. She does not have an entitlement to give or withhold consent. That might be a problem.

On the question of attempting a termination and whether it should be criminalised, the confounding element is Article 40.3.3o itself, which contains an obligation to have regard to the life of the unborn. It may well be, therefore, that an attempt to terminate the life of the unborn should be regarded as a criminal act.

While that is obviously a matter for the Oireachtas, I certainly believe that head 19, as currently structured, needs to be broken down very minutely to deal with different aspects, possibly with different penalties.

Deputy Naughten asked a question about probability which, with the greatest of respect, confused two issues. Noting that if the test to be applied must be whether, on the balance of probability, there is a real and substantial risk to the life of the mother, the Deputy asked about those doctors who are saying that a 5% risk is enough. That is to confuse two different things. On the one hand, there is the question of whether a risk is present that could be termed a real and substantial risk to the life of the mother. This is where the balance of probability emerges. The first consideration is whether a risk is present. The second question is what measure we apply to determine that the risk that is present is real and substantial. It may well be that 80% of something that is not especially serious is not a real and substantial risk, whereas 2% of something potentially catastrophic may be real and substantial. It will be a clinical judgment made in all of the circumstances of the case. The first question to be asked, however, is whether there is anything that, on the balance of probabilities, can be characterised as a real and substantial risk present. One then goes on to analyse the risk.

The penultimate questioner asked whether head 19 could criminalise acts carried out under heads 2 to 4, inclusive. As currently drafted, the answer is "Yes" because clearly there is a termination that could be carried out under head 2, 3 or 4 which has, as its intention, the destruction of unborn human life. The scenario outlined is certainly perfectly possible. While it may not be directly intended, it may well be an intention. If that is the case, some kind of saver needs to be inserted in head 19 referring to acts carried out under heads 2 to 4, inclusive. I addressed this issue in my written submissions.

I will briefly address the question put by Deputy Mary Mitchell O'Connor because she is my local Deputy and I want to keep her on side. There is a requirement for a balancing act. On the one hand, one has the right of the doctor to his or her conscientious objection while, on the other, one has the right of the woman to exercise her right to obtain a termination in certain circumstances.

Chairman

Could we have one speaker at a time, please? Members should show respect.

Dr. Simon Mills

These rights must be balanced in every circumstance. This goes back to a question asked by Senator van Turnhout on whether there would be a requirement to disclose at the outset of a doctor-patient relationship. While I do not believe that would be the case, the disclosure obligation arises when a difference arises between what the patient wants and what the doctor is prepared to do. There is a tension here but it is one that has been resolved in many other jurisdictions.

Chairman

As there are only 14 minutes left in this slot, we will not have time for all four remaining speakers. I call on Deputies Catherine Byrne and Robert Troy and apologise to the other two speakers.

Deputy Catherine Byrne

This Bill is about conscience and the judgment we will make having listened to the evidence over the course of the committee's hearings. The witnesses are all experts in medical law. I ask them to answer with a "Yes" or "No" to be helpful to me and others outside the proceedings. Will the passing of the Bill result in widespread termination of pregnancies? Will the Bill legalise the killing of babies?

Deputy Robert Troy

I will repeat a question I asked last week to which I did not receive a reply. Perhaps the legal professionals will be able to reply today. Does the inclusion of a separate head on deliberate self-harm create a rebuttable presumption that mental illness is a reason to carry out an abortion? On the capacity of a person to make an irrevocable decision, whether based on a state of mind or being a minor, perhaps the legal professionals will clarify whether it would be better to address this issue before the legislation goes before the Oireachtas?

Senator Jim Walsh

Should the law reflect section 21.1 of the Medical Council's guidelines, which requires that due regard be had to clinical research in the area of psychiatry? On an issue that arose in the discussion with psychiatrists yesterday, a person who is not suffering from a mental disorder and cannot, therefore, be forced to undergo any treatment may well present herself for an abortion. If abortion is considered the only outcome that can be offered to such a person, would there be an automatic obligation to provide the abortion purely on those grounds?

Ms Caroline Simons

On the earlier suggestion that the law was not being changed by the proposed Bill, what the Bill will do, if one likes, is activate the X test. It may not change the law but the law has not actively been practised in terms of medical practice. The Bill will change medical practice and abandon the two patient model, which has been used. Having heard Deputy English being congratulated on Friday, and as I know myself, there may be even more than two patients in a pregnancy. The two patient model will go out the window if the legislation is implemented. As I stated in January, doctors, in this case psychiatrists, will for the first time be faced with a request for abortion to treat suicidal intent or ideation. They would not have considered abortion a treatment previously and still do not appear to consider a treatment. Obstetricians will also be asked to carry out terminations of pregnancy on physically healthy women. These are profound changes in the practice of medicine in Ireland.

On whether we believe the passing of the Bill will result in widespread abortion, while we cannot look into crystal balls, it would be very foolish not to have regard to what has occurred in other jurisdictions where abortion has been introduced on grounds similar to those provided for here. I am already hearing from lawyers in the United Kingdom where abortion is allowed on the basis of risk to a woman's mental health. Suicide brings something that is incapable of prediction. As we have been told by psychiatrists, abortion is not a treatment. This legislation is potentially wider than that in place in the UK but we will have to wait and see. I will not predict in the matter.

Does the legislation legalise the killing of babies? There is a very fair argument to be made that this is something that is understood by the breadth of the X case decision. Again, it would be unrealistic of us not to look at what it is a woman wants when she says she is suicidal and wants an abortion. There is certainly enough ground in the X case and the heads of the Bill to allow her to look forward to that.

On Senator Walsh's question as to whether the psychiatrist would be obliged to certify for an abortion, as psychiatrists have stated in recent days, they would err on the side of caution. Where there is nothing else they can offer and the woman is competent and perfectly entitled to refuse what they are offering, they would be in difficulty in relation to this.

Mr. Tony O'Connor

Deputy Byrne put the issue very well. She should be a lawyer asking "Yes" or "No" questions. She can answer her question on whether the passing of this Bill will result in widespread terminations as well as I can. My answer, however, is "No" as one would need a change of law in relation to it. On whether the Bill would legalise the killing of babies, it will not do so any more than that which exists at present.

Senator Walsh asked whether the Bill should refer to section 21.1 of the Medical Council guidance. While I have not considered the issue in any great depth, I believe that to do so would complicate matters. Unfortunately, I did not get the other question asked.

Deputy Robert Troy

I asked about creating a rebuttable presumption for mental health as grounds for abortion by including it in a separate head.

Mr. Tony O'Connor

If I understand the Deputy's point correctly, the mental health presumption provides for a presumption of capacity. Is that the question?

Deputy Robert Troy

Does the inclusion in the legislation of a separate head on mental health create a rebuttable presumption that mental health is a ground for abortion?

Mr. Tony O'Connor

I will have to consider the question as I do not fully understand it. I ask the Deputy to excuse my ignorance. I will return to it if necessary.

Mr. Paul Brady

I will answer Deputy Byrne's two straightforward and direct questions. I do not believe the legislation will lead to widespread termination of pregnancy, although it is hard to make predictions in these matters.

I do not think that is the question. The question I am suggesting, as a lawyer looking at the draft legislation, is whether it will permit more than is intended. Will the Bill permit more than people are legislating for? In that sense, head 4 gives false comfort, having heard how it will operate in the absence of mental illness. If a woman presents with suicidality and no accompanying mental illness, there is no other option for a psychiatrist in terms of what can be done in those circumstances. Effectively, by framing the request in those terms, it becomes self-fulfilling because one cannot look behind the expression or double-think the situation. The presumption is that the woman will be believed. That is what we have heard or at least, that is the testimony that was given. Therefore, effectively, there is no other option but to certify. Professor O'Keane said that she would not be prescribing it or advising it but if a woman asks for it, she will certify it in those circumstances.

Senator Ivana Bacik

That is not what Professor O'Keane said.

(Interruptions).

Chairman

Quiet please. I will chair the meeting and if I want help I will ask for it.

Mr. Paul Brady

Sorry, I will clarify what I just said.

Chairman

Can we all take a deep breath and calm down? It is a bright, sunny morning. Let us all relax and allow the expert witnesses to give their testimony.

Mr. Paul Brady

In case there was any misunderstanding, I said certify as opposed to prescribe and not certify simply because the request was made; that is obviously not what Professor O'Keane said. However, she did refer to circumstances where there was no underlying mental illness and other expert witnesses have said that they believed that the majority of women presenting under head 4 would be women with no mental illness, which makes this a real issue in terms of what that will mean in practice.

To answer the second question as to whether this Bill is legislating for the killing of babies, as Deputy Byrne put it, I would say that by moving the test for real and substantial risk to the grounds of suicidality and away from physical issues, if the woman's threat is based on the existence of the child and the continuation of the pregnancy, whereby she says that if she has to give birth to the child she will kill herself, then what that woman is looking for is an abortion and not some other form of treatment. In that sense, therefore, it can only be a fair reading that the Bill legislates as the Deputy has suggested.

In response to Deputy Troy, the position is that there is a presumption being stamped here that the legislature will create a statutory pathway, a formal legislative framework, whereby one can access a termination of unborn life on grounds of suicidality. That would seem to suggest that the Legislature regards that as a valid proposition, a worthwhile end and something that needs to be done and in that sense, it does create such a presumption.

I have mislaid my note on Senator Walsh's question but will respond to it later, if I may.

Dr. Simon Mills

I agree entirely with the answers given by Mr. O'Connor in response to various questions. I wish to deal with only one issue, namely the assertion that by legislating for mental health in similar ways, other countries have somehow found themselves on a slippery slope. I would simply observe that I am aware of no country that has introduced a test along the lines that is being proposed in the 2013 Bill. I am aware of no country that has introduced a test that is as restrictive. The 1967 Californian legislation, which has been advanced as some sort of analogue a number of times, was a paragon example of bad legislative drafting. Whatever else about this legislation, it is precise in what it is aimed at. The California legislation was scatter-gun in its approach and involved a bowdlerised application of a legal test intended for other purposes. The text of the penal code was at odds with the text of the statute and the Act was struck down for vagueness. The English test is a far vaguer test than the one proposed in this jurisdiction. The assessment that an analogy can be drawn between the proposed Irish scheme and other schemes introduced in other jurisdictions is flawed. No one has been able to point to a statutory principle identical to that set out in the 2013 Bill that has been introduced in another jurisdiction and has, in fact, been abused in the way that is so often contended.

Mr. Tony O' Connor

My apologies to Deputy Troy for not initially understanding the question he raised. If I understand him correctly, he is asking whether the legislation creates a presumption. My view, which may well differ from his own, is that it is representing the existing law. It may be putting it into a statute, but it is the existing law.

Mr. Paul Brady

I said that I would come back to Senator Walsh's question. He asked whether the Bill itself should include an expressed requirement that the decision should be based on evidence. I recall from my preparatory work for this meeting that it was a recommendation of the Medical Council that the diagnosis should be evidence-based and that a requirement for same should be included in legislation and/or regulation, but I do not have a view on that.

Chairman

We are now moving on to time allocated for non-members of the committee. There are 13 non-members indicating that they wish to speak and the time allowed is 30 minutes. Therefore, not everyone will have a chance to contribute and I apologise for that in advance. I ask Members to speak to the heads of the Bill and to be as brief as possible, which will allow as many members to contribute as possible.

Senator Fidelma Healy Eames

I welcome and thank the panellists. I am very grateful to Mr. Paul Brady and Ms Caroline Simons for clarifying that we are absolutely not obliged to legislate for the X case. This has become a mantra in this debate. No sooner had Mr. Brady said it than there was an intervention by Senator Bacik that it was a requirement---

Chairman

Excuse me, with all due respect to everyone, I ask the Senator to allow for a divergence of views and to speak to the heads of the Bill.

Senator Fidelma Healy Eames

Indeed. My first question is directed to Mr. O'Connor and Dr. Mills. Are we, as legislators, obliged to legislate for the X case, a Supreme Court judgment that is now 21 years old, given that there is now unanimity among all the psychiatrists, as shown again yesterday, that abortion is not a treatment for a suicidal pregnant woman? Indeed, Dr. Janice Walsh said that there was nothing new in the Bill to improve practice in the case of pregnant women with cancer, which was, of course, the C case.

My next question is directed to the entire panel. Bearing in mind the separation of powers, where does my duty lie as a legislator? I realise that the Government wants us to legislate but where does my duty lie? Am I to be enslaved by a 1992 judgment that is now out of date or am I to give due regard to best practice for pregnant women and the unborn and to reflect section 21.1 of the Medical Council guidelines, which ask me to give due regard to clinical-based research? Can we, as an Oireachtas, satisfy the requirements of the European Court of Human Rights without legislation or by excluding head 4, which is clearly problematic? Indeed, as Dr. Mills acknowledged at the outset, should head 4 survive? If so, what is the way forward that the panellists would propose? Are there other examples of Supreme Court judgments that have not been legislated for? If so, I ask the panellists to list them. Has the Oireachtas acted unconstitutionally for the past 20 years by not legislating for abortion on the grounds of suicide? I ask for a "Yes" or "No" response to that question.

Deputy Terence Flanagan

I have two questions for Dr. Mills. Does he think that the evidence presented in the X case would have been sufficient to justify a termination under this draft Bill? I ask him to comment on the testimony of Dr. Sam Coulter-Smith, the Master of the Rotunda Hospital, that the inclusion of suicidal intent as grounds for a termination was not evidence-based. He said that it posed major ethical dilemmas for obstetricians and could lead to an increase in women seeking terminations. In that context, are there any other areas in medicine or medical law that Dr. Mills has come across where a treatment is legislated for that is not effective and that leads to an increase in the suicide rate?

My next question is a general one for all of the panellists and I ask that they give me a "Yes" or "No" answer. The question relates to conscientious objection and head 12. Earlier today the patient was mentioned, as were the doctors and midwives, in the context of conscientious objection. Does an institution have a right to conscientious objection, as endorsed by the Council of Europe?

Should head 12.3 be removed? I seek a "Yes" or "No" reply.

Deputy Bernard J. Durkan

On the suggested lack of obligation on the part of the legislators to introduce legislation following the X case decision, I ask Mr. Brady to elucidate whether he has argued in the past for the introduction of legislation when the courts have identified a void or lack of legislation in order to facilitate them in their procedures.

To what extent must the legislators and the courts have regard to the decision of the Supreme Court in the X case regarding the degree to which conscientious objection can prevent particular procedures or treatments from being made available to women or unborn babies?

Is it permissible for the Government or legislators to introduce legislation that they know to be in breach of a constitutional court's decision - the Supreme Court's decision - regarding a particular issue in legislation in which the court has already decided, notwithstanding the time lapse in the intervening period? I, as a legislator, am not a member of any organisation, either pro-choice or pro-life, but I would feel I am a reasonably-----

Chairman

I ask the Deputy to address the heads of the Bill.

Deputy Bernard J. Durkan

This is part of our discussion. Is it possible that in some instances people can be tainted in their judgment by virtue of their predilection to a particular opinion?

(Interruptions).

Chairman

We will have one speaker.

I will take the first seven names on the list because that is what the norm has been in terms of the numbers who have spoken at this session. I know that may be a bit uncomfortable for our experts, but I want to get a balance. I call Senator Bradford.

Senator Paul Bradford

I welcome all the witnesses and thank them for their very interesting contributions. One of the phrases very strongly used by the people who genuinely are proponents of this legislation is that there is no new law and no change in legislation. I believe that was said by the Taoiseach in Boston yesterday. As I believe Ms Simons has already addressed the matter, I direct my question to Mr. Brady. Does he believe new law is being proposed? Does he believe this is a change in legislation? If so, what are those changes?

Among all the interesting documentation we have received and read, sometimes one little sentence will jump off the page. Dr. Mills made a very fine contribution this morning in addressing head 19. His submission contained the following statement, on which we need to reflect and on which I have a question: "To claim that such terminations ... are not intentional destructions of the foetus is a legal ... fiction." That is important. I fully agree with him that claiming it is not intentional destruction is a legal fiction. How does the proposed legislation stand regarding the constitutional right to life of the unborn?

Chairman

I call Deputy Mathews. If he could be equally brief, we might get more in.

Deputy Michelle Mulherin

I thank the witnesses for their presentations. We have heard from all the medical professionals, including the psychiatrists, who, while they might not agree on some aspects of the heads of the Bill, agree that abortion is not a treatment for suicidal intent or a suicidal pregnant woman. My question - courtesy of Deputy Timmins - is as follows. Are we now actually legislating for abortion to be a treatment for a suicidal pregnant woman? Is that what the legislation asks us to do?

I wish to address the situation of the viable child. At 22 or 24 weeks, where this decision comes to be made, there could be an early delivery of a child with a disability that he or she will have to live with for the rest of his or her life. Who is protecting that child? I know Mr. O'Connor declined to answer some questions from Deputy Fitzpatrick. Given that we are discussing heads of a Bill and not specific clauses, I respectfully suggest we are entitled to consider everything that flows from this. Who will stand up for and protect this child from any such injury or disability with which he or she might have to live for the rest of his or her life? Would the child potentially have a cause of action against his or her own mother, the surgeon or the people who made the decision?

Can we address this through some sort of rephrasing or reframing of the legislation to address the concern that there is another option?

Deputy Michael Creed

I thank the witnesses for their presentations. I wish to focus on three areas. In his opening remarks on head 4, Mr. Brady said we should not be under any illusions that we are creating new law. Law emerges in many forms - through statute law, court interpretation, precedent, etc. Section 21.1 of the current Medical Council guidelines states:

Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide.

My reading of that is that the current law, to which medical practitioners are obliged to have regard, states that there is a legal entitlement to a termination on the grounds of suicide. Is that not the current law? If it is, is it true to hold the view that we are creating new law?

Ms Simons stated that to proceed with head 4 is effectively to abandon the two-patient approach.

Does she see any contradiction in her holding that view and her earlier praise of the contribution made yesterday by Dr. Janice Walshe, consultant medical oncologist, who clearly stated she felt that the operation of this legislation would not in any way adversely impact on her obligation to pursue the two-patient approach? It appears to me that to praise Dr. Walshe on the one hand and on the other not have reference to what she clearly stated in terms of the impact of the legislation is slightly contradictory. I would welcome if she could address this.

On head 6, the debate on the issue of capacity has been informative. While that debate dwelled on the issue of under-age minors, such as Miss X, and diminished capacity in terms of vindicating or accessing rights, I would like to discuss the issue of capacity in a slightly different context. Head 6 makes provision for the pregnant mother who may in her original application have been denied a termination on the grounds that she is suicidal to access an appeals process. I do not have a difficulty with that. However, in terms of the legal capacity to vindicate one's rights as outlined in Article 40.3.3° in relation to the unborn in that situation, is it not a clear and flagrant deficit in terms of the heads of Bill as drafted that there is no authorised officer of the State empowered to vindicate the rights of the unborn in a situation where the woman is granted permission to terminate the pregnancy? Do the witnesses see any reason, in terms of the content of Article 40.3.3° and due regard to the equal right to life, an authorised officer of the State should be empowered to vindicate the rights of the unborn?

Chairman

The Deputy is way over time.

Deputy Michael Creed

My next question relates to head 4. Section 18 of the Offences against the State Act provides for a renewal mechanism of that legislation on an annual basis. In the context of head 4 and the considerable concern about whether what is provided therein will open the flood gates, do the witnesses believe the Oireachtas should, following a defined period following enactment of this legislation, review it by way of a provision similar to that provided for in the Offences against the State Act to see if a consequence of its enactment has been an opening up of the flood gates, as some have argued will be the case?

Ms Caroline Simons

Because it has not been asked before I would first like to respond to Deputy Flanagan's question on the right to conscientious objection of institutions. I refer to page 18 of my written submission wherein I point to a number of cases of the European Court of Human Rights which deal with that very issue. In one case, Rommelfanger v. The Federal Republic of Germany , the court held that a hospital was entitled to dismiss a plaintiff because he took ethical positions which were contrary to those of his employer. This would confirm that a hospital is capable in law of holding ethical positions. That case was then confirmed in Lambardi Vallauri v. Italy in which it was held that a Catholic institution can limit the rights and freedoms of other people in order to protect its ethos. I have also appended at the back of my written submission an extensive survey of the laws in the various states of the United States of America in relation to conscientious objection. Members will note that many of them do afford a right of conscientious objection to institutions. There is no difficulty at all in providing for that.

On Senator Healy Eames's question of whether we are obliged to legislate for the X case, in my opinion, we are not, most particularly in light of the evidence that we received in January and during the past couple of days from the psychiatrists. I believe it would be unwise and that members of the joint committee, as legislators, have a duty to the people they represent to implement good laws which are representative of the best of medical practice and evidence-based. The degree of dissatisfaction among the doctors, as expressed over the past few days, should be a considerable cause of concern to members. The division which seems apparent among the ranks of the psychiatrists would appear to be an ideological one rather than one based on medical evidence. It might have been more appropriate for the institute to have made a representation on its own behalf, similar to the Law Library and solicitors-----

Chairman

I ask that Ms Simons not stray into that area.

Ms Caroline Simons

A number of questions were posed to all of us. I will try to respond first to those specifically addressed to me. On Deputy Creed's question in relation to the two-patient model, I believe there will be a change in this regard and for the following reason. Currently, if a woman who is suicidal in pregnancy presents she is given appropriate treatment, including counselling and so on. It appears that this is to be abandoned. We heard from the perinatal psychiatrists in January that in their combined 40 years of experience they had never prescribed abortion as a treatment for suicidality and they did not consider such to be a treatment. It is now proposed as a treatment under the heads of this Bill. With respect, I suggest that for that very reason - at least in relation to head 4 and suicidality - the two-patient model will be abandoned. I will hand over at this point to my colleagues but am happy to respond later to any further questions.

Mr. Tony O'Connor

Senator Healy Eames asked about the obligation to legislate for the X case. Mr. Justice McCarthy stated in respect of the X case that there was a deficiency and it was up to the Legislature to legislate. The Legislature can abdicate its responsibility and leave it to the courts to decide issues as they arise. However, my personal view is that the Legislature should legislate. Senator Healy Eames also asked about other examples where the Supreme Court may have been critical of non legislating. There are quite a few cases, the most recent being the case involving Roche, in which parties had to go to the High Court and Supreme Court to vindicate their rights. There are many instances. I note the Senator is nodding in agreement.

Although not directed to me, Deputy Flanagan asked if the view of the psychologist in the X case would be sufficient under this legislation. The answer to that question is, "No, because there was only one person involved." If I understood him correctly, Deputy Durkan asked if the obligation to legislate was in contravention of the Supreme Court or if the Legislature takes it upon itself to legislate contrary to what the Supreme Court suggested. That is dangerous territory. I am not sure if the Deputy is advocating that. The Supreme Court is the ultimate arbiter of the Constitution. If the Constitution has been ruled upon by the Supreme Court the Legislature cannot ignore that.

Deputy Mathews, my local representative, referred to the six line recommendation I made as being too wordy. It is only a suggestion. Members may feel free to amend it. I do not believe Deputy Mulherin was overly critical. Deputy Fitzpatrick asked a number of questions. Each case, particularly in terms of negligence and duty of care, what loss will be compensated by doctors and so on, will have to be considered on its own merits. I cannot give a general answer to that question. It is worthy of a good article. I could not understand all of the facts which the Deputy provided but I am more than happy to sit down with him and to advise in relation to each of them. The Deputy will be aware that each case must be looked at on its own merits. As regards the relevancy of this to the heads of the Bill, my understanding is that the heads of the Bill do not deal with negligence and duty of care.

Deputy Creed asked some interesting questions. I will try to address his question on whether, in terms of capacity and under-age, there is a deficit in there being no authorised officer to vindicate the rights of the young mother or unborn child. There is a deficit. I suggested at the beginning of my presentation that the joint committee send out the message that we need legislation to cover capacity and representation for other parties. There are examples in other jurisdictions. The Law Reform Commission report on vulnerable adults and under-age provides examples. The Deputy also referred to the sunset clause provided in other legislation, whereby legislation falls after a specified period.

My answer is that it is a political decision. If members want a sunset clause it is up to them to introduce one. As legislators, they can also decide that the Act is not working as they anticipated. I am putting the onus on them to do that.

Mr. Paul Brady

I apologise to members if I am unable to answer their questions. It will not be possible to address all the valuable and important questions raised. I will group the questions together.

On the obligation to legislate for the X case, which was raised by Senator Healy Eames and Deputy Durkan, Mr. O'Connor put it very well when he said his personal view was that the Legislature should legislate. That is the only position a lawyer can take on this issue. If a judge points out a gap in the law it is important that we note it. In most cases it is absolutely something to be remedied. However, I do not think that creates a legal or constitutional duty on members to the effect that they do not have to consider whether they wish to legislate. I do not think anyone is suggesting that is the case. They are left with the duty of deciding what they think is best. We hope that in most cases our Supreme Court will make decisions with which all of us are happy. If it does not, the Legislature has various options, such as to propose a referendum, but it does not have to follow every judicial statement seeking further legislation. It is certainly not a legal obligation.

As regards whether one's own views can taint legal advice, it is fair to say that is a standing fear or problem on any issue and in any profession. All I can say is that if barristers are asked to provide legal opinion on a set of papers they will not get far if they insert their own personal opinions instead of what they consider the law to say. As lawyers we are trained to stand back from our own personal views to provide an opinion on the law. I hope that is taken at face value by everyone here.

Senator Bradford and Deputy Creed asked about changing the law. There are ways in which this is implementing the judgment on X and other ways in which it is changing the law. It is changing the law because it is repealing a statute and creating a new offence. Many of the reservations expressed about section 19 would not make sense unless changes were being proposed to the law. It is inaccurate to argue otherwise. Regarding the substantive issue, a statutory framework is being created, with tests, procedures and particular personnel identified, and this has not previously been the case. With respect to where the onus lies, this is clearly a debate which will go back and forth but the Supreme Court decision on X was based on a concession between the parties rather than an articulated point. If it had been argued, the court would have had to consider various implications regarding treating suicidality like any other medical condition but it did not decide on that basis. The onus has never been discharged in so far as it was decided on a concession.

Deputy Creed referred to the right of the unborn and asked whether it should be represented. A number of parallels have been drawn with the Mental Health Act 2001, including the suggestion that only a GP and a psychiatrist should be required under head 4 on the basis that such a combination was provided for under the Act. However, that overlooks the fact that four doctors are involved under the Act. One GP can recommend and one consultant can admit but an automatic review process takes place within 21 days under which a second opinion is sought from a consultant and a tribunal which includes in its membership another consultant. Up to four doctors may in fact be involved because the patient's constitutional right to liberty is at stake. The expert group recognised the logic of arguing that two constitutional rights are at issue in these decision making processes, one being the right to life of the unborn. Encapsulating that is a political decision but I do not think it is legally unfounded.

As regards a sunset clause, I agree with Mr. O'Connor that it is ultimately a political decision but against what is such a clause is to be benchmarked? We know from Dr. Rhona Mahony's estimate that between ten and 20 procedures may take place under head 2. As I do not know if any number has been suggested under head 4, what benchmarks will be used if there are two procedures per year or 50 procedures per year? Will such figures been seen as a success or a failure of the restrictions? The current lack of figures may feed into the question of whether the policy is viable.

Dr. Simon Mills

As with Mr. O'Connor, Mr. Brady and Ms Simons, there is a limit to the number of questions that I can answer in the time available to me. I will start with Deputy Terence Flanagan's questions. He raised an interesting issue pertaining to conscientious objection by institutions. There is a tension in the Bill between the conscientious objection granted to individuals and the assertion that institutions are not entitled to conscientious objections. If no institution is entitled to a conscientious objection, what happens if every individual in that institution exercises a conscientious objection? It could possibly lead to the bizarre scenario of an add-on question at job interviews along the lines of how the applicant feels about the protection of life during pregnancy Bill 2013. That is not necessarily an absolute tension and there may be flexibility in terms of the provision of medical services but it strikes me as a tension none the less. The Deputy and I did not agree about much during on the last occasion we discussed these issues but I think we can agree that head 12 creates a certain tension.

However, I disagree with Deputy Flanagan on the question of suicide and termination. I do not accept the premise of his question on the indication for prescribing a treatment that increases the rate of suicide. The evidence to support that assertion is simply not available because the group of women we are discussing for the purpose of this Bill have not been studied in the way suggested by the Deputy. His question does not bear the weight of its closing premise.

We have exceeded the time for this session by five minutes. I apologise to those who could not contribute or make interventions. I am obliged to take people on a first-come-first-served basis. I extend my sincerest thanks to Ms Caroline Simons, Mr. Tony O'Connor, Mr. Paul Brady and Dr. Simon Mills for attending. We will now suspend proceedings.

Sitting suspended at 12.05 p.m. and resumed at 12.20 p.m.

Constitutional Law

Chairman

This is the tenth session of the Joint Committee on Health and Children dealing with the heads of the protection of life during pregnancy Bill. I remind all members that we should be temperate and moderate in the phraseology, terminology and in the language we use. I ask members to please be conscious of time as well.

I very much welcome our expert panel of witnesses for this session, Professor William Binchy, Dr. Maria Cahill, Mr. Frank Callanan and Mrs. Justice Catherine McGuinness. You are all very welcome to our hearings and I thank you for attending. I remind members that all four of our expert witnesses are voluntarily giving of their time to be here today to assist us in the analysis of the heads of the Bill and I thank them for that most sincerely.

Before we commence, I remind witnesses and members regarding privilege. Witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if you are directed by the committee to cease giving evidence in respect of a particular matter and you continue to do so, you are entitled thereafter only to qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, your should not criticise or make charges against a person or persons or an entity by name or in such a way as to make him or her or it identifiable. Members are reminded of the long-standing parliamentary practice or ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. With that, I will allocate 12 minutes to each of our opening speakers. Professor Binchy, you may begin.

Professor William Binchy

It is a great honour and privilege to be among the committee members. I was delighted to be here last January and it is a privilege to be here again today. It is the third day of the committee's deliberations, second time around, as it were, so I will not weary the committee with a reiteration of points the committee will have heard many times before. However, in the few minutes I have I would like to concentrate my opening remarks upon the suggestion by the Taoiseach that it is a necessary requirement that we introduce legislation to deal with the European case and, specifically, that we introduce legislation in accordance with the X decision, the Supreme Court decision. I wish to challenge both of those propositions and I hope we will have an opportunity during questions to address in more detail the points that I would wish to make on those two points.

First, do we need to implement the X case through legislation as a result of the European Court of Human Rights decision? The answer is emphatically "No". If one listens very closely to the Government, it will concede that point. No legal argument has been put forward that I am aware of which argues that we are legally obliged as a result of the A, B and C v. Ireland decision, to implement that decision simply through the process of legislation. There are many other ways that we can implement that decision. What that decision requires is clarity in the law and also an assurance that if an individual, a woman who is seeking an abortion, gets a "No" that she has some system whereby she can, as it were, appeal that decision to get a second view or second opinion on the matter. Essentially, that is what the European Court of Human Rights requires. It does not require us to implement the X case decision and it does not require us to take any position whatsoever in terms of constitutional law as regards the fundamental policy of the State. I will say more on that matter at a later stage but it is a crucially important point because it means that the Oireachtas, far from being constrained into having to introduce this legislation, actually has a range of options to introduce clarity into our law.

The second point I make by way of a side-point. When one actually reads this legislation it is clear that it does not introduce one ounce of extra clarity into the law in the sense of actually giving specific medical content to decisions that doctors have to make. Doctors have to make decisions every day in the context of pregnant women, but also in the context of non-pregnant women and men. They make judgments about medical treatments. The committee members will note when they read this particular Bill that it does not contain the details of medical treatment. Rather, it contains a principle which was already there, a principle which is contained in the amendment itself, that is, in Article 40.3.3° of the Constitution.

The third point I wish to make is that the Supreme Court decision, of course, represents the law of the country. It gives the authoritative constitutional interpretation of this country. Of course it is true to say that one cannot defy a Supreme Court decision, which is part of the law of the land. However, that is only the beginning of legal analysis rather than the end, as the Government would suggest. This is because sometimes the courts get things wrong. Sometimes the courts get things in ways that frankly are either out of sync with the science or out of sync with fair, reasonable values. In this particular case, the decision of the Supreme Court over 20 years ago sadly got it wrong on the science, on the medicine, on the psychiatry and also in terms of a fair human rights protection.

This is because what the Supreme Court did in that case, as the committee is aware, was to authorise the intentional taking of the life of an innocent human being during pregnancy on the basis of suicidal ideation. We would immediately reject that proposition in respect of any other human being, a born human being, for example, however pressing the circumstances, and we can think of very pressing circumstances where suicidal ideation might occur as a result of a close dependency relationship in regard to people who have been born. That proposition is unstatable, unthinkable in regard to children who have been born. However, the Supreme Court embraced that proposition as an interpretation, a wrongful interpretation, we would suggest, of Article 40.3.3° in the decision. Therefore, far from being a decision that the Oireachtas must follow, I would respectfully say it is a decision that the Oireachtas must not follow, because if the Oireachtas were to introduce that decision into law through legislation, it would be introducing bad medicine, bad psychiatry and a violation of human rights. It is absolutely not the way for the Legislature to go.

What are the options for the Oireachtas in these circumstances? The first thing the Oireachtas can contemplate is simply in the exercise of the separation of powers and in the exercise of the legislative powers of the Oireachtas so as not to make the mistake of going down the wrong scientific route and the wrong route as far as human rights protection is concerned. It is the entitlement and the prerogative of the Legislature not to implement a bad law. Would that put the Oireachtas in conflict with the Supreme Court decision? Not necessarily, as it happens, because the Supreme Court decision decided the case on the basis of the facts as presented to it. As the committee is aware, the facts as presented to it did not involve any expert psychiatric evidence from a psychiatrist, none at all.

In other slightly less contentious or controversial cases the Supreme Court has accepted that it makes judgments on the basis of the evidence presented and it does not purport to have the last scientific word. If I may, I will mention a case to the committee. It is a case that some committee members may remember, namely, Best v. Wellcome Foundation, which involved the question of whether a vaccine had caused brain damage to a little boy. The Supreme Court came to the conclusion in that case that the vaccine had caused damage to the plaintiff. In that case the then Chief Justice, Mr. Justice Finlay, made it plain that when it comes to a decision on a scientific matter it was not purporting to make a final scientific or authoritative scientific judgment. Rather, it was simply making an adjudication on the basis of the evidence presented to it. In that case there was a very understandable and appropriate judicial modesty as to the court's role in regard to matters of science.

We now come forward 21 years. The committee has heard the evidence from the psychiatrists. The committee has heard that to introduce this particular ground would be highly controversial from a psychiatric point of view. The science has not been with the Supreme Court over the past 21 years, but that is not its fault. It received no scientific evidence and no psychiatric evidence. As I will stress to the committee during the questions and the discussion, there is no obligation to implement the Supreme Court judgment as it articulated that principle in the context of the facts in that case. The Legislature is perfectly entitled and, I would suggest to the committee, absolutely obliged in conscience on the basis of human rights protection not to go down that route.

I wish to point to another aspect of the X decision, the Supreme Court decision which the Government is very unwilling to talk about. I have been watching, listening and waiting to hear a considered analysis from any Government member during the past six months - indeed, I put it to the committee, any Government member in the past 20 years, but that is another matter - but specifically now as we are actually putting forward legislation. I would love to hear the Government case in the context of an issue that has arisen. Indeed, it is an issue that has always been asserted by the pro-life campaign, namely, that the Supreme Court decision in the X case does provide for abortion during the nine months of pregnancy. It sounds like a horrendous and horrific proposition. One must ask would the court, if it actually had to address the matter again, take that particular position in terms of its normative preference? Who knows? The actual normative preference, the way the court approached the issue of suicidal ideation in the X case is as follows: essentially, it stated that if a woman is suicidal in circumstances that the only solution is to terminate the life of the child, one terminates the life of the child.

I refer the committee to the general principle stated by the then Chief Justice, Mr. Justice Finlay, in paragraph 36 of his judgment.

The Government is saying it does not actually mean that, that it actually means just simply terminate the pregnancy. A number of the judges talked about termination of pregnancy and the then Chief Justice, Mr. Justice Finlay, did so in the following paragraph, paragraph 37. There is nothing in that case to support, and no fair reading of it would support, the argument that it means that the Supreme Court has a sophisticated view that when viability occurs, it will protect the life of the unborn child. The notion of practicability in those circumstances, to do what is practicable to save the life of the child, might not be sufficient in the case of a particular suicidal ideation.

Psychiatrists say that these hypothetical suicidal ideations can be better dealt with by other means, but let us assume for a moment the hypothesis of head 4 of the Bill. It is premised on the fact that these cases do arise and in that context it is not fantastical to put forward a proposition where a woman says, and the psychiatrist believes, that the very existence of her child is in itself a source of suicidal ideation for her. She is not concerned about the pregnancy per se, she does not just want to get this child relocated elsewhere out of her body. The very existence of that child, for some particular circumstances associated perhaps with the child's conception or the circumstances of the child's health - we can fill in our own hypothesis on that - is the reason that woman wants to kill herself. In those circumstances, removing and relocating the child geographically outside her body unfortunately will not remove the suicidal ideation. I suggest that the principles on which the X case was decided in that situation will allow for the termination of such a child in late pregnancy.

Let us imagine if we were to heed what the Government says in this area. To the extent that it has said anything, the essence of what it has said is that there is nothing to worry about because we will do our best to save the life of the child. At what point are the psychiatrists entitled to stop saying, "Please terminate the life of the child", and at what point are they obliged to say, "Please do your very best to keep this child alive"? The Government is totally silent on that point. For example, if we imagine a situation at 21 weeks of gestation, what is the situation in terms of the psychiatric edict? Is the psychiatric edict to terminate the life of the child, not to terminate the life of the child, to give birth in those circumstances or induce a birth at an early stage and do what one possibly can for the child who may well suffer disability at this particular stage? These are not theoretical or academic questions. These are very real consequences of the legislation. It is not attributing any bad faith to anybody, not to the Supreme Court or to the Government of the day, but it is to suggest that the thinking on this particular point has not gone as far as it should. Frankly, the unthinkability of late abortion, which I think would be shared by probably all Members in this room, is also qualified or enhanced by the unthinkability of the taking of an innocent life in the earlier stages of pregnancy. The general principle which the Supreme Court adopted in the X case is a principle that is not acceptable for legislation.

I will conclude my remarks by saying that the two points I wish to stress to the committee are, first, there are other ways that the Legislature can go which would be entirely compliant with the European Court of Human Rights and, second, to implement the X decision would be a disaster in term of human rights protection and contrary to science and good medicine.

Chairman

I thank Professor Binchy. I call Dr. Maria Cahill.

Dr. Maria Cahill

Good afternoon. I am delighted to be here and I thank the Joint Committee on Health and Children for its invitation to be a witness before the members today. My interest in the legislation is as a constitutional lawyer who works on the institutions of Government, separation of powers and, in particular, on the relationship between national law and supernational or international law. I am also keen to ensure, as we all are, that the fundamental rights guaranteed in the Constitution are upheld and vindicated fully. All of us come to this question from different perspectives with different professional expertise to offer as well as different personal experiences, but as a constitutional lawyer speaking to the members as legislators, our Constitution is our common ground and the starting point for this conversation and discussion today.

It is a Constitution that is uncompromising in its defence of human life. According to Articles 40.3.1o, 40.3.2o, 40.3.3o, 15.5.2o and 28.3.3o, the direct and intentional taking of a life is prohibited. The Constitution prohibits the taking of innocent life but it also prohibits the taking of guilty life by banning the introduction of the death penalty in the strongest possible constitutional terms. If we were to assess the compatibility of this legislation simply with the text of those articles of the Constitution, it would be very difficult not to conclude that head 4 is unconstitutional. That is because it targets a specific subset of those who are guaranteed a right to life under the Constitution and makes the direct and intentional taking of their lives permissible under certain circumstances. A court faced with that kind of scenario would apply a proportionality analysis, examining the legitimacy of the infringement on the right in question in the light of the rationality of the means chosen to pursue that infringement. Head 4 would fail parts 2, 3, and 4 of the test for failing to choose a means that is rationally connected to the ends sought, for failing to impair the right as little as possible, and for being disproportionate to the ends.

The genesis of head 4 is not to be found here in Leinster House but rather in the Four Courts in the decision of the Supreme Court in the X case. In seeking to uphold the Supreme Court decision, head 4 succeeds in replicating the conditions of the test laid down in the X case. Where there is a real and substantial risk to the life of the woman which can only be averted by abortion, reading head 1 in conjunction with head 4, we find that human life can be ended at any time following implantation until such time as it has completely proceeded in a living state from the body of the woman.

In its detail, the legislation is faithful to the test laid down by the X case. It appears, however, not to be cognisant of the fact that there has been a development in the X case test in later cases that deal with suicidality. One of those is the 2006 case of Cosma v. Minister for Justice in which a woman sought that her deportation order be quashed on the grounds that if she were to be deported, she would commit suicide. The Minister refused to allow her to stay even after he had seen two psychiatric reports that detailed the strong possibility that she would commit suicide, and the court upheld the Minister's decision. In this case the High Court adopted and developed the test from the X case of real substantial risk to life in a decision that was not overturned by the Supreme Court.

There are three important findings from that case to which I want to draw the members' attention. The first is that the High Court held that the absence of a treatment plan for a presenting psychiatric condition and the fact that a person was not undergoing therapy for counselling are relevant factors in determining just how real is the real and substantial risk to life. Second, the court held that the fact that a claimant has not seriously considered another option and has not considered removing the risk to life by treatment or by some other means is relevant to considering whether the risk can really only be averted by the means she prefers. Third, the Minister, the Minister for Justice and Equality in this case, was entitled to take into consideration arguments of public policy. He had argued very strongly in submissions that he should be allowed to take into account that "to permit the threat of suicide to act as a stop on the execution of administrative decisions, such as deportation, would be to open a Pandora's box of potential abuse with possible effects of paralysing administrative activity in any given area of Government".

On the basis of the Cosma decision's reading of the X case test, head 4 would fail to meet the necessary standards because it basically violates those three findings that I mentioned. It does not require evidence of a treatment plan, it does not require that there should be serious consideration of other means to end the risk to life, and it does not take into account, as the Minister had insisted we should, the arguments of public policy that would lead to an opening of a Pandora's box which would, ultimately, if carried to the extreme, undermine the rule of law.

The first point I am making, therefore, is that head 4 is out of line with the recent developments in the X case test in the Cosma decision from 2006.

Turning now from the detail of the test to the principle behind the test, head 4 is premised on the principle that abortion is legally permissible in a case of a threat to life by suicidality. At this point I am sure there is not one member who is not aware that the judges in the X case did not hear psychiatric evidence. They heard evidence given by one clinical psychologist with six years experience in child psychology who met the young woman at the centre of the case on one occasion and who, according to his testimony, had never dealt with a situation like this before. None the less, when he was asked in Question 78: "Is it your professional view that she would destroy herself if matters continue as they are?", his answers was, "I would not have taken it on myself to leave that girl alone". Later he said, "My recommendation would be she was not safe unless under supervision". He did not argue in his evidence that abortion was an appropriate treatment for her suicidality. As members know, the court did not hear any psychiatric evidence to that effect, and the court also did not hear any legal arguments on that question. What happened was that counsel for the Attorney General conceded that point and therefore all medical, legal and public policy arguments one could make either for or against the proposition were not given consideration by the court.

Going back to an earlier precedent, in the 1965 case of the Attorney General v. Ryan's Car Hire Ltd, the Supreme Court held that where a point has been entirely overlooked, or conceded without argument, the authority of the decision may be weakened to vanishing point. As members know, the doctrine of precedent is central to the operation of our legal system and any legal system but it is central to that doctrine that the court must rule on the question. If the point has been conceded, it is not part of the decision of the court. If something is not argued by counsel before the court, it cannot be held by the court. The precedential value of the X case, therefore, as an authority for the proposition that it is legally permissible to allow abortion in the case of suicidal ideation is weakened to vanishing point, according to the Supreme Court. This point, which is not my idea, and I believe the members have heard it already this morning, was made in 1992 by Mr. Justice Brian Walsh who served as Supreme Court judge for 29 years. I posthumously promoted him to Chief Justice in my written submission but he was the greatest Chief Justice we never had.

Many members have heard many times, as I have, that they are compelled to legislate for the X case but there is no theory of precedent that supports that rhetoric. I hope I have expressed these points clearly to members. I am happy to take questions at the appropriate time but, in summary, my two messages for members are, first, that head 4 is not faithful to the recent developments of the X case test in the Cosma decision and, second, that members are not legally compelled to legislate for a principle that has been conceded at law. The members are not impotent. They have a choice and, above all, they have a duty and a responsibility to legislate to uphold the Constitution and respect the human right to live.

Chairman

Go raibh maith agat. Our next expert witness is Mr. Frank Callanan. Mr. Callanan has 12 minutes.

Mr. Frank Callanan

I thank the committee for allowing me to make a submission to it. It is 21 years since the Attorney General v. X was decided and it is useful to recall the order of the High Court. That was restraining the first defendant from leaving the jurisdiction for a period of nine months or from procuring or arranging a termination of pregnancy or abortion either within or without the jurisdiction. That was the order appealed from. There had been an earlier ex parte order which resulted in X and her parents returning from London where they were arranging for the termination of her pregnancy.

There has been a great deal of talk about the fact that there was no psychiatrist in the case. There was what is described as a very experienced child psychologist whose evidence was of an extremely cogent kind, most strikingly as set forth in the judgment of the Chief Justice, Mr. Justice Finlay. He had told the High Court that when he had interviewed the girl he wanted to have a continuing discussion with her parents but did not have anybody available to sit with her in his waiting room. His view, on his past experience, of the risk of her committing suicide was so real that however inappropriate it might have been he asked her to remain in the room while he discussed the problem with her parents.

It is well also to recall that the judgment of the then Chief Justice, Mr. Justice Finlay, contained in a single, plain, unadorned but forceful paragraph, invokes the preamble to the Irish Constitution where it is stated:

We, the people ... seeking to promote the common good, with due observance of Prudence, Justice and Charity [which Chief Justice Finlay emphasised], so that the dignity and freedom of the individual may be assured, true social order attained ... Do hereby adopt, enact and give to ourselves this Constitution.

In the passage leading into the formulation of the test the then Chief Mr. Justice Finlay, said the court must, among the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. He went from that to formulate the test of a real and substantial risk to the life, rather than the health, of the mother. That is how the then Chief Justice Mr. Justice Finlay, dealt with what he characterised as the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life.

Some pro-life advocates have strenuously denied that Attorney General v. X was correctly decided, particularly in extending the principle of a real and substantial risk to the life of the mother to suicide. That is an argument which they are perfectly entitled to make. However, I do not believe, and this separates me from Professor Binchy and Dr. Cahill, that a lawyer who believes that Attorney General v. X was wrongly decided can credibly or responsibly approach the question of the constitutional position in Ireland in relation to abortion on the basis of a denial that the decision of the Supreme Court in Attorney General v. X represents at the present time, until such time as it is departed from by the Supreme Court or there is a further amendment by referendum of the Constitution, an authoritative statement of the constitutional position. This might seem a fine distinction but it is clear. One is perfectly entitled to disagree with the judgment of the Supreme Court but that does not entitle a lawyer to deny that the law in Ireland is as expounded by the Supreme Court in Attorney General v. X, that is to say that the termination of the pregnancy is constitutionally permissible where it is established as a matter of probability that there was a real and substantial risk to the life of a mother if the termination was not effected. The obligation to accept that this is at the present time the constitutional position is something that is bound up with the sovereign, independent and democratic nature of this State.

The decision of the Supreme Court in Attorney General v. X was affirmed in the clearest terms three years later in the reference to the Supreme Court under Article 26 of the Constitution of the Regulation of Information (Services Outside the State For Termination of Pregnancies) Bill 1995. That was the Bill that sought to prescribe the conditions under which information relating to services lawfully available in another State could be provided as contemplated by the fourteenth amendment. In the single judgment of the Supreme Court given by the then Chief Justice, Mr. Justice Hamilton, the judgments of the Supreme Court in Attorney General v. X, particularly that of the former Chief Justice, Mr. Justice Finlay, are relied upon throughout.

The court was specifically invited in that case including with reference to the fact-----

Chairman

Five minutes remain.

Mr. Frank Callanan

No psychiatrist gave evidence in the X case. The single judgment of the Supreme Court of the then Chief Justice, Mr. Justice Hamilton, given on an Article 26 reference, specifically affirmed the correctness of the decision in the X case. There has never been the slightest suggestion that the X case was wrongly decided. Moreover the State has itself elected to rely on the X case in resisting challenges brought against it under the European Convention before the European Court of Human Rights. This is particularly true with regard to the argument successfully advanced by the State in D v. Ireland that the applicant had failed to exhaust her domestic remedies. This entailed the State arguing, as it did based on the opinion of counsel, that there was at least a tenable argument that a foetus suffering from a fatal abnormality was not an unborn for the purposes of Article 40.3.3° or that even if it was an unborn, its right to life was not actually engaged as it had no prospect of life outside the womb. Of course it goes further than this.

Constitutional amendments which sought to exclude suicide were rejected by the people in 1992 and 2002. In 1992 in rejecting the exclusion of a risk of suicide the people adopted the 13th amendment which provided that Article 40.3.3° did not limit freedom to travel and the 14th amendment which provided it did not limit freedom to obtain or make available information relating to services lawfully available in another state. The 13th and 14th amendments can be seen as responses by the people to the facts of the X case and to the judgments of the Supreme Court. The judgment of the Supreme Court in the X case is to this extent not merely something that is established in law; it is woven into the fabric of modern Irish democratic politics. The reason this is a point of importance which is necessary to emphasise is there is a concern, and the committee can see the reality of this concern from what we have just heard, that behind the argument, which I struggle to comprehend, that legislation of the character contemplated in the heads of the Bill is not necessary, lies a mute refusal to accept the position in Irish law as enunciated by the Supreme Court in Attorney General v. X and Others that the X case is part of the Irish constitutional acquis.

There are several dicta in case law which illustrate the difficulty of leaving a lacuna in Irish legislation. In A and B v. Eastern Health Board, District Judge Mary Fahy and C, Mr. Justice Geoghegan asserted it would be wrong to turn the High Court into some type of licensing authority for abortions. In A, B and C v. Ireland the European Court of Human Rights held the court does not consider the constitutional courts are the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawful in a state. In particular, this process would amount to requiring the constitutional court to set down on a case-by-case basis the legal criteria by which the relevant risk to a woman's life would be measured and further to resolve through evidence largely of a medical nature, whether a woman had established this qualifying risk. The court went on to state it would be equally inappropriate to require women to take such complex constitutional proceedings when their underlying constitutional right to an abortion in the case of a qualifying risk to life is not disputable.

I wish to comment on the heads of the Bill which will be dealt with in due course. The scheme of the Bill is conceptually conservative. It seeks to translate into legislation and give legislative effect to the decision of the Supreme Court in the X case without either widening the category in the X case or adding to the categories in the X case. It might appear a Bill which is so conceptually conservative and so restrictive is of little consequence in that it does not add to what is already established by the X case. I do not think this is right. It is not simply that it introduces a scheme which gives effect to the rights established in the X case. It is true we are obliged to legislate for the X case because of the decision of the European Court of Human Rights in A, B and C v. Ireland. The introduction of the Bill seems to be none the less a momentous event in the sometimes turbulent journey of Irish statehood. On the enactment of this legislation the rights enunciated by the Supreme Court are no longer external to, or divorced from, the Houses of the Oireachtas. The Bill achieves the repatriation of this fraught and deeply divisive question to where, subject to the Constitution, it primarily belongs.

Mrs. Justice Catherine McGuinness

I thank the Chairman and committee members. I am very much honoured to be asked again to discuss the questions arising out of the heads of the Bill. I noted in the letter the Chairman sent inviting me that witnesses were asked to discuss the actual heads of the Bill and go through them rather than go back over the same arguments we had the last time. I am disappointed to find we are going through the same arguments about picking over the analysis of the X case. As I made very clear the last time I was here, my strong belief is the decision in the X case is the law of the land and it is necessary to introduce legislation.

Professor Binchy stated we have a range of options. This comes a bit strangely from the mouth of someone who, since 1983, has been trying to reduce the range of options available to legislators to deal with the question of abortion by the very introduction of the amendment in 1983 which, for instance, means one cannot legislate for the question of what happens in the case of rape which is, according to present opinion polls, approved of by 75% of the Irish people, and which may indeed be more easily dealt with than the question of suicide, which is a complicated question, as I perfectly well acknowledge.

We also see the point made by Archbishop Diarmuid Martin and again by Dr. Binchy about the dangers of late abortion. It brings the whole question of abortion into a human rights area. Where one puts it into the Constitution one creates this question of constitutional rights of the unborn and the constitutional rights of the mother. The arguments can be very readily made that one cannot put a time limit on constitutional rights and the Government is probably right in saying this. Therefore, one cannot do what Dr. Martin suggests in the last line of his letter is done in other jurisdictions; one is not free to introduce a time limit.

We must remember when we speak about a range of options that this range of options is dealt with by what happened in 1983 much more than merely the Supreme Court's interpretation of what happened in 1983 in the X case. I should state when giving evidence here I am a member of the working group established by the standing committee of the General Synod of the Church of Ireland which has already made written submissions to the committee and I am in general agreement with these submissions.

I appreciate and entirely agree with what Mr. Callanan stated about the legal interpretation of the X case and the fact it is the law of the land. The Government is constitutionally constrained to bring forward this legislation, and in framing the general scheme of the legislation. By and large I am in general support of the heads of the Bill as set out and it appears they are consonant with the provisions of the Constitution as interpreted in Attorney General v. X and Others.

As I stated in my previous oral evidence, I see myself as expressing the middle ground in the debate which has surrounded the proposed legislation, and therefore I do not stand for either extreme side in the argument.

On the whole, the heads of the Bill have been carefully drafted to try to provide for the termination of a pregnancy where it is constitutionally permitted and to clarify the position of medical personnel. I can deal with other aspects in more detail later, but I wish to make a number of remarks.

I am disappointed that the definition of the unborn and the way in which heads 2 and 3 are drafted do not allow for the situation of the foetus that is incapable of independent life, where the mother may have to continue the pregnancy of nine months knowing that the child is dead within her or will die almost immediately upon birth. In D v. Ireland 2006, the State asserted that there was a reasonable chance that termination would be allowed in such cases. It should be allowed for in the legislation.

I have a concern about the reference to the general practitioner. I understand that, while it may be desirable to refer to the woman's GP, that it is "shall refer" apparently means that a reference to the GP and discussion of the woman's position can be done without her consent. In all medical situations, it is important that a person should give consent before her or his medical records can be discussed with a third person. This issue should be considered. Perhaps a substitution of "may" for "shall" would be sensible.

Head 4 is the most controversial of the heads. We must consider these matters from a human point of view as well as a practical one. It seems that, as the legislation has set up such a conservative and difficult procedure through which to have a pregnancy terminated under head 4, suggesting it will open the doors to a significant number of abortions is unrealistic. From a practical point of view, it could well be argued that the procedure is so rigorous that women in this situation would be most likely to choose the option of going abroad for a termination rather than even applying under this head. Discussion on the medical aspects of the head is best left to the medical profession. As written by Ms Miriam Lord in this morning's The Irish Times, it appears that the end result will be "Doctors differ, patients fly". I understand that this poses a difficulty for legislators but I suggest that they view it from the human point of view. People make legal arguments about the X case judgment being flawed or not flawed, as the case may be, but what precisely would they do if faced with a 14 year old girl who had been raped by her neighbour? They discuss the law in a theoretical way, but let us consider what we do with human beings.

There is a certain illogicality in the argument that head 4 will open the floodgates. On the one hand, it is strongly asserted that Irish people in general reject abortion and that the various forms of public lobbying demonstrate the idea that the Irish people reject the idea of introducing legislation, particularly under head 4. On the other hand, it is argued that, if the door is even slightly opened to the obtaining of a termination of pregnancy, even in the extremely narrow terms of the proposed legislation, there will be a flood of Irish women seeking abortions on false excuses, supported by a flock of doctors willing to collaborate with them. Who are these supposed women if they are not the Irish people, too? Where are these doctors if they are not the caring doctors who have appeared before the committee to date? Is there not an inherent contradiction in this? The floodgates argument is an assumption about reality, namely, that there is a large proportion of the Irish public who want wider access to abortion and will get it unless they are legally prevented by a minority who oppose it. The results of public opinion polls on the subject may be relevant to considerations in this regard. For example, 75% of people are in favour of abortion in rape cases. While considering all of the ins and outs of head 4 and so on, legislators should keep in mind the reality of life in this country. They and I know that thousands of Irish women avail of abortion in other jurisdictions. This legislation is at least an effort to regularise the situation and make a sensible reply to what is a human situation as well as a legal one.

Chairman

We now move into members' time, which is 70 minutes. I remind Members of the Houses that their language and terminology should be temperate and moderate. Members do not need to use all of their three minutes. I want to allow as many Members, both of the committee and beyond, to contribute as I can. Eleven speakers have indicated. I call Deputy Kelleher.

Deputy Billy Kelleher

I welcome our witnesses. Since the Government has decided to legislate, that part of the debate is over. However, the debate on whether the Oireachtas supports the legislation is not over. For this reason, we as Oireachtas Members are trying to go through the legislation.

I assume that no Government could present legislation to the Houses if the Attorney General advised that it was unconstitutional. Experts on both sides can make their arguments, but we as Oireachtas Members must assume that, given the fact that the Bill has been presented to the Houses and in light of the Attorney General's role as the Government's legal officer, the legislation is at least constitutional. Subsequently, we can argue in the abstract about the other issues.

Some witnesses have stated that, under this legislation, the intentional destruction of the unborn could occur up until the time of birth. They assert that the Bill will not vindicate the life of the unborn. I am referring to intentional destruction as opposed to the termination of a pregnancy. Is this not at variance with Article 40.3.3° of the Constitution?

The issue of term limits has been mentioned. In this context, we are discussing heads 2 to 4, inclusive, rather than just head 4. Where a pregnant woman beyond a certain term quickly becomes sick, presenting a medical emergency, having a term limit would mean that her life could not be vindicated. Will the witnesses elaborate on these issues?

The broader substance of the matter has been debated and expert witnesses have appeared before the committee. We cannot dismiss the fact that suicide in pregnancy is a real issue. It has happened in rare circumstances and we must be conscious that this fact has been stated at our hearings. While there may be varying opinions on the matter, most witnesses accept that it happens. Whether a termination is a treatment for suicidality is the issue most in dispute.

Deputy Caoimhghín Ó Caoláin

I thank the panel. In Professor Binchy's presentation, he stated: "In some cases the very existence of the child may be the basis of the suicidal ideation". He also stated that, in such circumstances, "the goal must be to terminate the life of the child".

I must ask Professor Binchy whose goal he means because such an intent will not be served by this Bill. Not one of the health professionals who have attended and presented at these committee hearings would serve such a goal. Irrespective of their range of strongly held views given in evidence, all are cognisant of and accept the fact that the constitutional protections of Article 40.3.3° still stand and are unchallenged by this Bill. There is a subtext to much of this. I am an Opposition spokesperson on health yet I do not believe for one moment that such a goal, as Professor Binchy so describes it, forms any part of what the Government is seeking to address in this legislation.

I refer to Dr. Maria Cahill's contribution, specifically to point 4 of her executive summary. She seeks to make the case that there is an inequality in the treatment of a woman presenting with mental illness as against that of a woman presenting who is suicidal. I am concerned by the point made in the opening of point 4, on page 2 of Dr. Cahill's presentation. She describes the right to equality of women who are treated under head 4 as "jeopardised" because, under head 4, a woman officially certified as being suicidal will be offered no psychiatric treatment of any kind for her life-threatening condition. Dr. Cahill goes on to describe this as discrimination as, of course, it would be but this has not featured anywhere in all the engagement we have had. Throughout yesterday we spoke with people from the psychiatric profession, including those who specialise in the perinatal area, and on Friday we spoke with obstetricians. According to all the care professionals there is no way that such a woman would not be treated, supported and given due cognisance of her circumstances. I find it difficult to understand how Dr. Cahill can suggest she would be offered no treatment of any kind.

The clock is ticking and my three minutes is less time than others have had. I refer to Mrs. Justice Catherine McGuinness's point, in which she regretted that some of the historical situation relating to the X case had come into the presentations in this Chamber. I wish to thank Mr. Callanan, and also Mrs. Justice McGuinness for her written contribution, because we have been subjected, including this morning, to the continued assertion that all of this is based on a poor judgment and flawed decision of the Supreme Court 21 years ago. I thank Mr. Callanan again and Mrs. Justice McGuinness their submissions today which properly clarify that is not the case.

Deputy Mattie McGrath

I welcome our guests. Head 11 of the Bill removes freedom of information from the ambit of the proposed Bill. Nobody proposes that individuals' names and addresses be mentioned in any official record keeping yet head 11 goes much further than that. Bearing in mind the seriousness of what this Bill proposes, and the political and cultural struggle with matters of transparency, do the witnesses believe the breadth of what is proposed in head 11 is an unwelcome aspect of the Bill? It also seeks for the law to provide a register of pro-life psychiatrists so that these persons would not be able to make abortion more difficult. In the interests of equality, and bearing in mind the various procedural abuses recorded in the UK by pro-choice psychiatrists, should a register of pro-choice psychiatrists also be provided to ensure that access to abortion will not be widened in a way that would be contrary to the spirit and letter of the law?

I have some questions for Professor Binchy. Is there a definite constitutional obligation to legislate for every higher court decision? Has the Oireachtas acted unconstitutionally for the past 20 years by not legislating for abortion on grounds of suicide? Should the law affect section 21.1 of the Medical Council guidelines which require that due regard be given to clinical research in the area of psychiatry? A person who is not suffering from a mental disorder as defined by the Mental Health Act 2001 cannot be forced to undergo any treatment against his or her will. In light of the X case, which attested that termination of pregnancy should be the only means of averting the risk to the life of a mother, does it follow that abortion will become the only means available if the woman refuses all other interventions?

Chairman

I will take two other speakers in this section, Deputy Ciara Conway and Senator Jillian van Turnhout.

Deputy Ciara Conway

I thank the contributors on this issue. I have a question for all of them. In recent days we have heard from some of the medical professionals, in particular some of the college obstetricians, about the amalgamation of heads 2 and 4 which would mean we would not differentiate between the health threats to a woman's life and would not distinguish between the threat from suicide or from a physical illness. Late last night we heard from a cardiologist who said this will change matters for some of the patients he treats, and that no longer will women who suffer with life-threatening heart defects have to suffer the stress and stigma of having to go to the United Kingdom to have a termination, He stated that things will be changed for the better for those women. Is that something about which we should be cognisant? Should we give serious consideration to amalgamating heads 2 and 4?

I have a final question on criminalisation for which I seek some input. The Bill stands to criminalise women and girls who procure abortions, for whom there would be a sentence of 14 years. That has a chilling effect. Medical personnel are also involved. In reference to the Suicide Act, I have stated before that although a person who dies by suicide is not criminalised those who aid and abet the person are sanctioned. Is that something we should replicate in this Bill?

Senator Jillian van Turnhout

I will not get into a debate on Supreme Court judgments. My role as a legislator is to uphold the Constitution. I refer to head 4. Many legal debates occur about the X case but I am very conscious that it was about a 14 year old girl. That is what we are discussing. As Mrs. Justice Catherine McGuinness noted, it is about that human life. In regard to head 4, to exclude suicidality is to change the law. As Mr. Callanan stated, the people voted in referendums in 1992 and 2002. In Article 40.3.3° no distinction is made. The application of whatever is the threat to the life of the mother needs to be the same in all cases. Should we merge heads 2 and 4 in order to ensure the application of the law is the same?

Adding to Deputy Conway's question, I refer to head 19 and the scope of the offence, which is extremely broad. It deals with the criminalisation of any act that has the intent to destroy human life. We need to be clearer and more precise about the activities that would be covered and on this I ask for the opinion of the witnesses.

Chairman

Panel members have five minutes each to respond and then there are eight further speakers. I ask Mr. Callanan to begin.

Mr. Frank Callanan

The issue of term limits, raised by Deputy Kelleher, has been a source of much concern. The answer on that point relates to the absolute constitutional imperative to preserve the right to life of the unborn, even in an X type situation, if the unborn is viable or on the cusp of viability. The reason this is a matter of great public concern is the Irish abhorrence of regimes in other jurisdictions which are believed, rightly or wrongly, to permit abortion on demand. The scheme of this legislation to give effect to a constitutional right is entirely different. For that reason, I do not believe the inclusion of prescriptive time limits is called for. Inclusion of such limits also opens up the unwelcome prospect of a constitutional challenge on the grounds that the legislation infringed the equal right to life of the mother as construed by the Supreme Court in the X case.

Deputy McGrath raised the interesting question of whether the Oireachtas could be said to have been in breach of its obligations since 1992.

I do not think anybody would take that position. However, it is worth mentioning that while it is an unexplored area of constitutional law, it may not simply be a matter of the European Court of Human Rights holding that the State is in violation of the convention, although one could perhaps envisage circumstances in which that argument was made under the Constitution.

On the question of the amalgamation of heads 2 and 4, as both Deputy Conway and Senator van Turnhout suggested, one can see some merit in that. The justification advanced by the Minister is related to the subjective nature of a diagnosis of suicidal intent and that, at least, provides an argument for what is not a radically different regime under head 4 as against head 2. Senator van Turnhout also raised a concern about the scope of the offence created by head 19, which is to replace sections 58 and 59 of the Offences Against the Person Act of 1861. Those sections will be repealed by head 18 and I would share the Senator's concern in that regard. The offence could be better crafted to correlate to the rest of the legislation and should probably be narrowed. One would have a slight concern at the very broad wording. The language is quite broad, and reads that it shall be an offence for a person to do "any act with the intent to destroy unborn human life". Given that this is such a vexed area, it would be desirable to avoid any argument that the offence under the Act could possibly encompass the advocacy of abortion rights.

Professor William Binchy

The discussion has been very interesting and the questions that were raised have advanced the progress of the debate. Both Deputy Kelleher and Deputy Ó Caoláin raised the question of late abortions. It is very interesting to listen to my colleagues who take a different point of view and who are here as experts today. I hope I am not misrepresenting Mrs. Justice McGuinness or Mr. Callanan, but they seem to advocate no time limits. That is what the Bill has - no time limits, right up to birth. Indeed, Mr. Callanan said that if there were time limits, there could be a constitutional challenge to the legislation. This is worth looking at because everybody agrees that in the late period of pregnancy, if some disastrous or life-threatening condition arises for the mother, the doctors must do everything they can. This is not a point of disagreement; it is a point of complete agreement. The doctors will do whatever is necessary and sometimes there will not be a safe delivery of that child. Sometimes that child will die and that is absolutely, as it were, the way it has to be. There is no dispute about that. It is necessary, in that context, that term limits in this area continue right up to birth so as to allow doctors to intervene at all stages during the pregnancy in order to protect the life of the mother. That is absolutely clear.

However, Mrs. Justice Mc Guinness - I hope I am not misrepresenting her, and she will have the opportunity to clarify her position if I am - takes the view that the X case provides for the termination of pregnancy and, indeed, the termination of the life of the child at all stages during pregnancy. That brings us back to the suicidal ideation situation, which is quite different. It is not about removing the child from a danger zone, from the mother, but about terminating the life of the child. That is what the suicide issue raises. The mother says, in these circumstances, "If this child lives, I die." Doctors in these circumstances are faced with a stark choice. It does not matter how many obstetricians come in here and tell the committee that they will not terminate the life in such circumstances; if the law requires them to do so, subject to conscientious objection, they will have to do so. They will have to do so, for example, at 20 weeks, it is agreed. They will have to terminate the life of that child. That is agreed, so the question is, how many weeks more will they have in which to terminate the life of the child? I repeat - and this issue has not been answered by my colleagues here today or by the Government - that the basic principle of the X case decision is that suicidal ideation, on the basis of the very existence of the child, requires terminating the life of that child, not relocating the child. It is important to get an answer from the Government on that particular point. That is my primary response to the contributions today.

Dr. Maria Cahill

I will start with the question posed by Deputy Kelleher on the constitutionality of the legislation. I am sure the Deputy is aware that it is the duty of the Legislature, under Article 15.4, not to legislate in a manner that is incompatible with the Constitution. It is not a duty of the Attorney General but of the Legislature itself. None the less, there are two options provided under the Constitution whereby, if the Legislature fails in that duty, the legislation in question can be challenged, under Articles 26 and 34. I am not a legislator so I do not start with the assumption that the Bill is constitutional. Certainly, all of these issues can be raised. I raised the Cosma decision to illustrate that what the Government is doing under head 4 is not compatible with what was done in the High Court in 2006. That must be taken seriously in order to be sure that the Legislature wants, in this instance, to trust the advice given.

On the question of late-term abortion, the Deputy is right that abortion fails to vindicate the right to life of the unborn under Article 40.3.3 in all circumstances, including pre-viability and post-viability. I am sure the Deputy, and indeed most people, would like to prevent the possibility of late-term abortions or partial-birth abortions and that is also indicated in the explanatory notes. However, when it comes to interpreting the section, the Supreme Court is not going to ask for the personal views of Deputies or look to the explanatory notes. It will look to the text of the legislation as provided. The text allows, under the definition in head 1, that an unborn is a person post-implantation until the moment that he or she has been successfully delivered from the mother's womb. That is what we are dealing with as a matter of law. I just wanted to make it clear that, as a matter of law, that is where we stand.

On the question posed by Deputy Ó Caoláin, I am not calling into question the integrity of psychiatrists or the care that they would give. What I am saying is that under head 4, there is no provision for an ongoing psychiatric relationship between the person who is being certified as suicidal and the professional who can help her with that suicidality. Again, perhaps that is something that has been overlooked, but there is no provision in head 4 for an ongoing treatment plan or for ongoing counselling and care of that woman. That is my concern as a woman and as a lawyer.

Finally, I will refer to the human element, because it has been raised a number of times. It just so happens that I am not much younger than the girl who was at the centre of the X case. It was, in fact, the first time my parents had to explain to me both what had happened to her and what she wanted to do. I am in no way impervious to the gravity of her situation and to the human element involved in her life and the lives of many other women in this country.

Mrs. Justice Catherine McGuinness

In response to Deputy Kelleher's question on the constitutionality of the legislation, in a way one must start from the fact that governments produce legislation all the time, legislation is passed and when that legislation is before either the High Court or the Supreme Court for interpretation, there is a very strong presumption of constitutionality. While I have held some legislation to be unconstitutional in my time, there is a very strong presumption that the courts should not be lightly arguing with the legislators. We can take it that when the legislation is brought forward, it done so with the best legal advice that the Government feels it can obtain.

On the question of term limits and the difficulty of introducing them, as I pointed out, once one starts bringing this into an argument about constitutionality, which basically is as a result of the insertion of the original amendment into the Constitution, it is that itself that is creating the problem about term limits.

If the freedom suggested by Professor Binchy allowed the choosing of one's own legislation, there may be the idea that this is a legislative rather than constitutional matter and term limits could be arranged. One must also consider what will happen in real life, and the doctors have replied to that element. They will not set out to kill viable babies; we are talking about real Irish doctors rather than some type of legal concept.

With regard to Deputy Ó Caoláin's question, I know he has heard over and over again that the X case is a flawed judgment. Personally, I do not consider it a flawed judgment by any means and it was a very careful and harmonious interpretation of the Constitution with - as noted by Mr. Callanan - emphasis on the other Articles of the Constitution which stress the importance of the mother in the home and the people dependent on her. All of this was considered, particularly by the former Chief Justice Finlay. It was not a flawed judgment, although the discussion is in a sense irrelevant, as whether the judgment has its weaknesses, it is the law of the land and it is in accordance with that judgment that the heads of Bill have been produced. The Government has made a genuine effort to stick to constitutionality and the laws interpreted by the Supreme Court.

With regard to comments from both Deputy Conway and Senator van Turnhout, I also have considerable concerns about head 19 and the level of the maximum sentence which applies to all cases. A distinction should be made between somebody running a "brothel mill" or doing the sort of things for which the doctor in America was convicted - who would deserve a heavy sentence - and an individual woman and doctor who may have stepped outside the law but who had better intentions. It should be made clear that good faith should be a defence, to some extent at least, with a distinction. I also agree with Mr. Callanan's comments on whether the definition of the offence is broader than the 1861 Act. We really thought we would do something more modern and sensible than the 1861 Act. I can leave it at that.

Chairman

There is a long list of speakers and we will not get to everybody, for which I apologise.

Senator Colm Burke

I thank each of the panel for coming forward and giving evidence today. Professor Binchy and Dr. Cahill expressed dissatisfaction with the X case judgment and referenced Cosma v. Minister for Justice, Equality and Law Reform. In the X case a psychologist report was produced while in the case of Cosma v. Minister for Justice, Equality and Law Reform there were two psychiatric reports produced. The legislation we are discussing would necessitate three medical reports. The argument is that by having legislation where there must be evidence from three experts, there is clarification of the issue. Professor Binchy seems to be very concerned that the X case was a wrong judgment. Is the argument not that there is nothing preventing the Supreme Court from getting it wrong again and even widening the interpretation of what was intended by Article 40.3.3°? Dr. Cahill states in the submission that the "courts have determined, therefore, that a medical opinion on the existence of a real and substantial risk is not the same as legal determination of that criterion" and that they are free to depart from the opinion of a medical expert. Is that not more reason for legislation?

I have raised a point with all the people who have come before us over the past two days. This is the matter of people who are under 18 and the lack of any reference to them in the heads of the Bill. In what way should that be clarified so as to deal with expectant mothers who are under 18? If we go forward without legislation, there is a proposition for guidelines and regulations. I asked the question this morning but it was not answered by those four people so will the witnesses tell me under what legislation can we bring in those guidelines and regulations?

Deputy Eamonn Maloney

I have long held the view that any woman who finds herself in a position with an unwanted pregnancy is in a difficult and dark place. A woman with an unwanted pregnancy and with additional suicidal tendencies, I am sure we would agree, is in an even darker place. That is the challenge for us as legislators, with all due respect to the people on my left, as well as the medical witnesses yesterday and the witnesses who attended on Friday. As has previously been said, this does happen, although it may be rare. Some of those who attended on Friday described the occurrences as very rare, which is a good and welcome fact. Nevertheless, this is the reality and as legislators we must deal with it.

I cannot get into all the arguments because of time constraints but one of the main reasons given for not introducing this proposed legislation is the terrible question of "floodgates". The floodgates have been open since the mid 1960s, and the accumulated figure is shameful. It takes in our neighbours and friends. The floodgates have opened but we are not dealing with them.

To paraphrase Mr. Callanan, he indicated that this was a "conservative" Bill. I am one of the people who will vote on it and I see it as a very conservative Bill because it is dealing with a very restricted area. That may change. If, for the sake of argument, the legislation passes in July and if somebody finds themselves in a position of having an unwanted pregnancy with suicidal tendencies, do we really believe the person will go a GP, psychiatrist or get a draft of the Bill from a politician? That person will not do so but she will travel to England instead.

Deputy Peter Fitzpatrick

I thank those present for the presentation and making themselves available today. The Supreme Court X case decision facilitates the introduction of abortion legislation but is there anything in the Constitution that makes the introduction of such legislation an obligation? Does the definition of "reasonable opinion" in head 1 give significant weight to the duty of care towards the unborn and the equal right to life under the Constitution? In the event of a later-stage termination being carried out under the legislation and where the child lives, will the child have a legal right to know the circumstances of his or her birth and the identity of his or her mother? If a patient is a minor, suicidal and suffering mental health problems, how will she be able to give permission for an abortion in accordance with head 4? Can a well-founded reasonable opinion as defined in head 1 be formed by a medical practitioner where a patient is suicidal but not suffering from any mental illnesses? Will the proposed legislation create a legal precedent in making something legal that would otherwise be illegal merely because of the threat of suicide?

Under the Constitution, the unborn has an equal right to life to that of a person. Will the proposed legislation create a legal proceeding whereby the right to life of a person could be diminished in circumstances where there is a conflict of rights?

Deputy Denis Naughten

I thank the speakers for their evidence. I ask Mr. Callanan to comment on Dr. Cahill's evidence on the Cosma v. Minister for Justice case and give us his perspective on that. Both Mr. Callanan and Mrs. Justice McGuinness have said the legislation before us is quite conservative and Professor Binchy made the point that the Supreme Court decision on the X case allows for the termination of the life of the unborn rather than terminating the pregnancy right up to term. In light of that, does head 19 not restrict that right in that it makes it illegal to kill the unborn as set out in the legislation? If so, is it the case that the legislation before us does not go far enough and could be unconstitutional on that basis? If the legislation, as it is framed, does not provide for late terminations on the grounds of suicide, does that raise constitutional issues regarding the ability of a woman to avail of the legislation and does it raise issues for the decision of the European Court of Human Rights? Senator Colm Burke raised the issue of guidelines and regulations without primary legislation. Would that not facilitate a mechanism of regulatory creep regarding what is allowed depending on the Minister of the day? Could someone clarify that for me?

Senator Ivana Bacik

I thank in particular to Mr. Callanan and Mrs. Justice McGuinness for their comments on head 19. I share their concerns about the over-broad drafting of that criminal offence. Could I ask them both specific questions about this Bill being conceptually conservative, in particular in head 1 in respect of two definitions? I agreed with Mrs. Justice McGuinness when she said she regretted that the proposed legislation does not exclude a situation where a foetus is already dead or has no capacity for life outside the womb. In that instance it seems overly conservatively drafted compared to Article 40.3.3° of the Constitution and it should at least exclude that situation. Also under head 1, the definition of "reasonable opinion" is probably too conservative in that it makes no reference to the right to life of the pregnant woman, only to the need to preserve unborn life. Some balance is required there.

I am amazed to hear Dr. Cahill suggest the Cosma v. Minister for Justice case is in any way relevant to an interpretation of the X case. Cosma was a 2006 decision of the High Court in the context of deportation proceedings in which the High Court did not accept that the evidence established a risk of suicide. I utterly refute the suggestion that it is relevant to an interpretation of the X case. Professor Binchy raised the issue of time limits, and that was dealt with very clearly in Friday's hearings. Mr. Callanan's submission points out that when a foetus is viable, or on the cusp of viability, it is constitutionally mandatory that every effort must be made to protect the life of the unborn. That is very clear and it is current clinical practice.

I have a final question for Professor Binchy. As one of those responsible for drafting Article 40.3.3°, the amendment from which this derived, does he not accept that the amendment was flawed? In 1983 Mary Robinson and others predicted that a case like the X case would arise and that ultimately we would be left with a situation where this matter is in the Constitution, where it does not belong, and the Legislature is therefore, as Mrs. Justice McGuinness has said, utterly constrained in its ability for legislate for the real needs of the thousands of Irish women who are travelling abroad every year for abortion, as Deputy Maloney has said.

Under head 4, do Professor Binchy and Dr. Cahill have any compassion for or trust in the young women and girls who are actually going to be affected by this, in particular the girls who are unable to travel because they are in the care of the HSE? It was accepted in yesterday's evidence that these are the real people who will be affected because any other woman is going to travel rather than put herself through these utterly restrictive procedures. Do they have any compassion for those girls or trust in them and their psychiatrists?

Senator Jim Walsh

From a legal perspective, if the Oireachtas were to pass legislation providing clinicians with full legal clarity, excluding suicide - by which I mean not prescribing for suicide but leaving it as case law - is it possible the Supreme Court could deem it to be in line with Article 40.3.3° having regard to the up-to-date evidence from the psychiatric profession? Former Chief Justice Cearbhall O'Dálaigh said a point not argued is a point not decided, and this doctrine goes for constitutional cases. Mr. Justice Brian Walsh, the best Chief Justice we never had, according to Dr. Cahill, said therefore the court decision can only bind the particular case as it was based on the conceded and unargued construction. The Government is arguing that women are currently entitled to abortion under the X case, so it is obviously not taking that position, and that it is only codifying the law, which is currently allowed. Is the Government correct in that presumption?

The unborn has, inter alia, a constitutional right, the equal right to life. Head 4 deals with suicide. All the evidence before us from the psychiatric and medical professions is that it is very difficult to predict suicide. The heads allow for a review where abortion is refused and that review is confined to the mother making the application for the review. Given the equal constitutional right of the unborn to life, is the constitutional right of the child not entitled to advocacy in that scenario, or are we in fact depriving the child of its constitutional right by allowing for no advocacy on behalf of that child in that process?

Mrs. Justice Catherine McGuinness

I take the points made by Senator Colm Burke. One leaves it open for the Supreme Court to get it wrong again if one argues that the Supreme Court was wrong in the first place. This seems like quite a logical argument but it is unforeseeable and that is one of the reasons legislation is necessary. Otherwise one is leaving it as it is. The Supreme Court has repeatedly said it does not want this to be left in its hands to be decided on a case-by-case basis. This also refers to what Senator Walsh said, that a point not argued is a point not decided. This is one of the difficulties about saying the Supreme Court decided abortion could take place right up to the end of the pregnancy. Those were not the facts before the Supreme Court, and courts really do decide on the facts and the cases before them. While it may be inferred that the Supreme Court meant that if it had been asked that at the time it may not have agreed to that at all. This whole argument that the Supreme Court had decided that one could have a termination right up to the ninth month is unrealistic in a sense. It is also clear from the medical evidence before the committee that cases would be dealt with in a way that would preserve the life of the child in so far as that was possible at all.

I appreciate what Deputy Maloney said. It seems to me too that the gateway and referral path put up in head 4 is so complicated and lengthy that the likelihood is that anyone who has the means and the understanding to be able to go abroad, will go abroad. On the other hand, as was mentioned, we are probably dealing with the case of the under-18s and we need something more about that in the legislation. We also need to deal with the area of people who have not got proper capacity to consent to medical procedures of any kind and that should be dealt with by the enactment of the assisted decision-making (capacity) Bill, which is being prepared by the Department of Justice and Equality and was produced by the Law Reform Commission, if I may refer to it.

I very much hope that Bill will be passed relatively quickly because that would be a great help in dealing with those with lacking capacity, which is an important issue.

In fact, what has happened is that it is the cases of minors who are in care that are the cases that have come up before the High Court, in the cases where we do not have written judgments necessarily but we have had the situation where a child in the care of a health board or the HSE has been permitted to go to England for a termination. Anybody who practises in family law or in public law child care cases knows that this has happened on a number of occasions but, because it has been held that it is following the X case, the court has not felt it necessary to issue a written judgment. I believe we should deal with that. I would agree with much of what Senator Bacik stated and her emphasis on the younger persons in care, as I have just said.

We were asked should the child have advocacy. That raises an enormous number of questions of procedure, etc., and I really do not feel competent to deal with that in detail. It could be argued, I suppose, but I think it would have to be left to be decided as a constitutional question. I think I have dealt with most of what was asked.

Dr. Maria Cahill

To start with something that must not have been clear in my presentation, I am not saying that the X case is a flawed decision. I am saying it is a non-decision on the question of whether suicidality can be treated by abortion. The court did not hear arguments on that point and it did not make a decision on that point. I am not saying it made a mistake; I am saying it did not decide. That is the first point.

I thank Senator Colm Burke and Deputy Ó Caoláin for taking the time to look at the written submission as well as my oral comments, and for the question that Senator Colm Burke raised on the reasonable opinion of the psychiatrist. Now, with the heads of Bill, the Minister is adding in three medical experts. What I want to draw to the attention of the committee is that in the X case the expert, who in this situation was the psychologist, stated that he would not leave that girl alone and the court decided the opposite, that she should have an abortion. In the Cosma decision, the two psychiatric reports stated there was a strong possibility this woman would committ suicide and the court disagreed, stating it thought the real and substantial risk to her life had not been established. What happened there on both occasions is that the court has found the opposite of what the expert has found. One matter on which one must be careful in the definition of reasonable opinion is the fact that the legal test laid down in the X case was to be determined at law whereas in the heads of Bill one is only determining that as a medical question which means that there is also a constitutional vulnerability and a professional vulnerability for psychiatrists who would make determinations of that kind. I thank them for raising that.

I did not discern a question from Deputy Eamonn Maloney for me. Deputy Fitzpatrick asked is there an obligation to legislate. To take it back to the start, what the Constitution does is give Members an enormous privilege. One of the matters that this debate is about is the role of the Oireachtas. It gives Members an enormous privilege to legislate. What the Oireachtas is bound to do is legislate within the terms of the Constitution. Sometimes what comes up in the rhetoric is that the Oireachtas is bound to legislate for the X case, even though the X case, as I stated, did not decide the question of whether suicidality could be treated by abortion, and the Oireachtas is bound to decide by reference to the two referenda that were failed. The Oireachtas is not obliged to legislate for what the people did not put into the Constitution. What the Oireachtas is given is the possibility and the constraint that is on the Oireachtas,is the Constitution, and fundamental to that constraint in this situation is Article 40.3.3°.

On Senator Bacik's questions, of course, I am not saying that the Cosma decision is of relevance to the X case because that would be time-travelling. On the other hand, in the High Court, Mr. Justice Hanna, in the Cosma decision, decided that the X case was highly relevant to his determination. He used it verbatim. He analysed the different elements of the X case test very rigorously. What I am saying is that the Cosma decision has built on the X case and now it is relevant as the Oireachtas goes forward to legislating in respect of the heads of this Bill.

Finally, on the question of what is my concern about children under head 4, I think everybody under head 4 is vulnerable. All of those who will come under head 4 will be vulnerable persons. We should be concerned about all of them, both over 18 and under 18.

On the last question on advocacy rights,-----

Senator Jim Walsh

I think-----

Chairman

I will chair the meeting. I thank the Senator.

Dr. Maria Cahill

-----procedure rights and advocacy for the unborn is not mentioned anywhere in the legislation.

Professor William Binchy

Following on the questions by the Senators and Deputies, it is a little unfortunate that Senator Bacik raised the question of the compassion of my good colleague, Dr. Cahill. I must defend Dr. Cahill. Maria is the most compassionate person. Maria is compassionate about mother and child. She cares deeply about both of them. Senator Bacik has been debating-----

Chairman

In fairness, that comes across today from Dr. Cahill's presentation. We do not know her at all, but she has that personality about her. We will not defend the indefensible.

Professor William Binchy

Let us not go there, but it is unfortunate that we had that comment made.

Let us look at the way the debate and the discussion has developed. We have the privilege here of having with us a former Supreme Court judge, who was in the courts for many years and on the Supreme Court for a number of those years. It is worth examining what she said on the question of late abortions because the Government has said nothing other than that there is no problem. Let us examine what Mrs. Justice McGuinness has said in order to enlighten us in terms of the analysis here. Mrs. Justice McGuinness stated that she was confident that doctors would do the right thing. As I say, obstetricians would wish to do the right thing but if legislation constrains them to carry out an abortion in circumstances where they do not wish to do so, their only strategy in those circumstances is conscientious objection.

Mrs. Justice McGuinness also stated we are not dealing with a kind of legal concept. Sadly, that is exactly what we are dealing with. We certainly are dealing with a legal concept. The legal concept in question here is the legislation which allows for abortion from the very beginning of implantation up to birth. We are dealing with a legal concept. What is striking is that neither of my two colleagues here who are advocating in favour of the legislation have presented any argument that, in fact, the legislation does not embrace the termination, which means the intentional termination, of the unborn child in the latter stages of pregnancy based on suicidal ideation where the mother says the very existence of this child is intolerable for her. This is a crucial question and it is interesting that the two speakers who have come along to advocate for the Bill have, as it were, supported our analysis as lawyers rather than contradicted it in any coherent way. I think that is a fair point.

On that issue, I would like to say - because my remarks have been, perhaps, a little concentrated in that area - we are not in favour of time limits. Time limits is absolutely the wrong way to go. Mrs. Justice McGuinness more or less made the argument it is unfortunate we have to start here because it is all the fault of the original pro-life amendment. I would suggest that, perhaps, the difficulty lies in the Supreme Court decision, but we have to start here. We very definitely have to start here.

The question is: do we implement the Supreme Court decision which allows for abortion throughout pregnancy or do we take a different course of action? In the light of the changed information - the 21 years of scientific experience so that we can test that particular issue - the Legislature is perfectly entitled and would be very well-advised to take a different course. The Constitution does not require the Legislature to implement the X decision. It has a range of strategies.

The common ground here is that all necessary medical treatment should be given to women during pregnancy. That is not a question of contest. The contest is on the suicidal ideation issue.

On the suicidal ideation issue, we have had support today, rather than contradiction, to the proposition that the opponents of the Bill have put forward, which is, that this allows for suicidal ideation being a ground for termination, not only of pregnancy but of the life of the unborn during the currency of the pregnancy. That is a startling proposition but, nonetheless, it is a legal concept. With respect to Mrs. Justice McGuinness, it is one that the legislators have to contemplate and, I would respectfully say, they should decline to implement that type of legislation.

Mr. Frank Callanan

Senator Colm Burke made a valid point on what head 4 provides in regard to psychiatrists. I have to say we seem to keep coming back to the point of there being no psychiatrist in the X case. It is hard to see how that, in any event, would affect the correctness of the principle that was annunciated in the decision in the X case.

Senator Burke also referred to the position of children under 18, and the age of consent for medical treatment going to 16 years under the 1997 Act. That is something that in practice, between the courts and parents, I do not think has given rise to a great deal of difficulty.

Deputy Maloney made some valid points on the floodgates argument in terms of what actually happens to women travelling out of the jurisdiction for terminations. Deputy Fitzpatrick raised the issue of the obligation to legislate which had come up earlier. The argument has never really been made that the Oireachtas had to legislate and could not leave a vacuum. As Justice McGuinness has said, judges have frequently lamented - not least in this particular area - the absence of legislation. It is at least theoretically conceivable that one could make an argument that it was incumbent on the Oireachtas to legislate on a particular subject and, irrespective of the content of the legislation, that there was a pure obligation to legislate. It has never come to that, but it would give rise to complex separation of powers issues. However, I suppose it is at least a theoretical possibility.

Deputy Naughten asked about the Cosma judgment. I was quite surprised at Dr. Cahill's reliance on the Cosma decision with which, I have to say, I am not that familiar. It seems inconceivable that one could argue that a High Court judgment on an immigration matter could be considered to have overturned the X case judgment. I do not think she was suggesting that it superseded X, but was suggesting that it represented some sort of new norm of which X was deemed to fall short. However, that is an untenable argument. One might as well Google "suicide" and use whatever comes up to say that it must remove X and take it off the field. I do not know where that argument comes from.

Senator Bacik referred to the need in the "reasonable opinion" to refer to the life of the woman. It might assist but I am not sure it is necessary because the legislation will be construed in the context of the Constitution.

I do understand that but her-----

Chairman

I apologise to Dr. Cahill. Teaching is sometimes easier than this.

Dr. Maria Cahill

Not that much easier but sometimes, yes. First, I find it alarming that Mr. Callanan would equate a Google search as having the same judicial value as a High Court decision. This appears to me to be not entirely in sync with what the Constitution requires. In response to Senator Crown, I repeat my statement about the X case, which was not that it was a flawed decision but that it was a non-decision. Moreover, for that I am relying on a Supreme Court decision. It should be borne in mind that the precedential value of court decisions is not determined by the Senator, the Taoiseach or the Minister for Health but by the Supreme Court. The Supreme Court has held that if a point is conceded, the precedential value of that case is vanished. The Supreme Court in 1965 has provided an answer to what has happened in the X case. It has stated that when the argument is conceded, the precedential value has disappeared to vanishing point. The person on whom I am relying and who first made that argument is a person with 29 years' experience on the Supreme Court. Consequently, I believe we can take what he says seriously.

On the point of referendums, I have heard the Senator making this argument many times and have been answering him on the television at home-----

Chairman

Thank you.

Dr. Maria Cahill

When we vote to reject a proposal to amend the Constitution, nothing happens. There is no change in the law and the Senator is not under an obligation to legislate for what is not included in the Constitution. That makes his job far too hard.

Chairman

Finally, Mrs. Justice McGuinness has two minutes.

Mrs. Justice Catherine McGuinness

Senator Fidelma Healy Eames

My question to Dr. Maria Cahill, Professor Binchy and Mrs. Justice McGuinness is whether the Oireachtas can satisfy the requirements of the European Court of Human Rights without head 4 of the Bill? After all, this is what the joint committee has been asked to do, namely, to offer such clarity to the European Court of Human Rights.

I also have difficulties with head 19, which I consider to be overly stringent with regard to criminalising the woman. In particular, I wish to raise the issue of time limits. Yesterday, Dr. Peadar O'Grady stated that eight to nine weeks was the critical or best time to intervene in a pregnancy. As the witnesses are aware, this Bill introduces no time limits. This next question is addressed to Mrs. Justice McGuinness because she has asked members to look at it from a human point of view, which I am doing.

It would be barbaric if we had to enact the Bill without time limits because we are quite literally saying that up to the third trimester, including up to 40 weeks gestation, a baby's life could be ended. My question to Mrs. Justice McGuinness is whether it would be unconstitutional to introduce time limits.

My final point is addressed to Professor Binchy and Dr. Cahill. Arising out of Article 40.3.3° and the equal right to life of the unborn and the woman and in view of the fact that there is a direct attack on the unborn in head 4, should the unborn be entitled to the right to legal representation and, if so, at what point?

Senator Paul Bradford

I welcome the witnesses to the Chamber of Seanad Éireann. I wish to make an aside which I consider relevant. Professor Binchy mentioned the adoption referendum of 1979, which was necessary and was passed overwhelmingly. On the same day, the people voted to extend the Seanad voting rights to allow additional people to vote in Seanad elections. That was 34 years ago and we have not legislated for that particular proposal. Others now have an idea of legislating for another future for the Seanad.

Chairman

Senator Bradford should refer to the heads of the Bill.

Senator Paul Bradford

It again proves that we do not always respond by legislating for particular judgments or constitutional provisions.

Head 4 is the point of dispute. We like to be in a comfort zone politically. I certainly do. One likes to believe that one is doing something because one has to do it. That brings me back to the central divide between the witnesses before us now and the earlier witnesses on whether we are obliged to legislate. We can produce tomes and have legal presentations but it requires a "Yes" or "No" response to the question of whether we are obliged to legislate. I direct my question to Mr. Callanan and Professor Binchy. Could they indicate "Yes" or "No", not whether it is right or preferable, not the reasons for either position, but whether we are obliged to legislate.

Deputy John Paul Phelan

I wish to refer to two areas and I do not wish to rehash what has been said. In the previous session Mr. Paul Brady strayed into the area of constitutional law. He made particular reference to the suicide grounds in the X judgment. Dr. Cahill made reference to it in her report. I will ask Dr. Cahill specifically and Mrs. Justice McGuinness as well to respond to me. If the suicide ground was conceded in the X case and was not argued and therefore is not binding other than on the specific facts of the X judgment itself, is that currently the legal position following on from the 1965 judgment to which Dr. Cahill referred in her presentation? If it has not been argued before the court, is it binding and is it correct that we should put an elaborate arrangement in the legislation, with 95% of which Members in both Houses of the Oireachtas agree? The central issue is head 4. Should we build such an elaborate mechanism if the decision in the X case on that specific area is not binding?

My final question is specifically for Mrs. Justice McGuinness, whom I have observed for years. I was present in January for the three days of hearings and I have been present for virtually all of the current three days of the hearings also. She was asked directly in January about the question of fatal foetal abnormalities. I remember it distinctly and it stuck in my mind that she said to legislate would be unconstitutional. Perhaps I misheard her earlier. I have an infection at the moment which is affecting my hearing but I think she said that she regretted that the heads of the Bill do not include a provision to deal with the case of fatal foetal abnormalities. Perhaps I misunderstood or she was expressing the wish that the constitutional provision would be amended. Could she clarify the position please?

Deputy Terence Flanagan

I join in the welcome for the expert witnesses before the committee. I wish to inquire about head 12 which relates to conscientious objection. Reference has been made to patients, doctors and midwives being allowed a conscientious objection, but does an institution have a right to conscientious objection, as endorsed by the Council of Europe? Should head 12(3) be removed? Could the witnesses indicate a “yes” or “no” response?

Is there a definite constitutional obligation to legislate for every decision of a higher court? Deputy Mattie McGrath asked a question which was not answered yet by the panel on whether the Oireachtas has acted unconstitutionally for the past 20 years by not legislating for abortion on the grounds of suicide.

My final question is for Dr. Cahill. Could she explain why we are not compelled to legislate for the X case? Why does she think we have been told repeatedly that we must do so?

Deputy Billy Timmins

I respect the expertise of our witnesses and their ability to cross-reference other experts. Time and again we have heard the claim that abortion is not a treatment for suicide. Everyone, including the medical experts, are weary of it. Could Mr. Callanan clarify, if we enact head 4, whether we are creating abortion as a treatment or measure to deal with suicidal intent? Could he also comment on Dr. Cahill’s point that if we are to legislate for the X case, we are legislating in defiance of science?

I wish to address two questions to Mrs. Justice McGuinness. It is unique that we have someone who has served for such a long period in the Supreme Court. I would like to get her general view on which she touched in her contribution about the concept of the intent of the Legislature and the literal meaning of the legislation. In Britain they call it the golden rule and the mischief rule. What is her view on the Supreme Court decision of 1992? Does she believe it interpreted the intent of the Legislature at that time or did it go along with the literal meaning?

In her contribution she also mentioned opinion polls and lobbying. It is important to point out that relying on opinion polls on social issues can be most unreliable. In the children’s referendum the poll was on 10 November. In a Red C poll of 19 October, 91% of people said they would vote but only 33.5% did.

Chairman

Could Deputy Timmins stick to the heads of the Bill rather than referring to opinion polls?

Deputy Billy Timmins

In fairness, you allowed a witness allude to polls and lobbying and it is important that I address the issue for the record. The Red C poll stated that 4% would vote “No” while on the day 42% voted “No”. Mrs. Justice McGuinness also referred to lobbying individual Members of the Oireachtas. I can only speak for myself but in so far as I was lobbied, I have been lobbied by those who are in favour of the legislation to a far greater extent than those who are against it. I can only speak for myself. I did not get elected to respond to lobbyists or to represent the will of the people. I got elected to do what I believe is right in the common good, as did most Members. I do not wish the myth to develop that some people might be responding to lobbying. I certainly am not.

Deputy Olivia Mitchell

My question is to Mrs. Justice McGuinness and Mr. Callanan. It relates to the possible need to include some enhancement for the legislation. I refer in particular to a clear pathway to an assessment. Given the basis of the European Court of Human Right’s criticism of us was that we failed to provide such a path, that the legislation provides that the path will be established by specialists, and that the only way to a specialist assessment is by referral from a GP, who if one likes are the gatekeepers to specialist treatment, unless one is admitted to an accident and emergency unit; it seems that the legislation should be at pains to provide a clear path out of the GP’s surgery and how one establishes the right to eligibility. More importantly, there should be a clear timescale. There is clarity on a timescale, what happens and how it happens when one is making an appeal, but there is not clarity when one is trying to access the system.

I have concerns under both heads 2 and 3. In the case of head 2, the woman has no role until the very end.

She can respond to the decision others have made on her behalf. In the case of head 3, she can trigger the situation but the heads assume she will already be in the health system and under the care of a specialist. That is not what will happen in most cases and under head 2, a woman in the very early stages of pregnancy might have a pre-existing medical condition which may present a real and substantial threat to her life but that threat may not be imminent. Time is of the essence in terms of getting a non-invasive procedure.

On the constitutionality of the Bill, it is clear on a fair hearing of all the depositions that we are not obliged to legislate in terms we have been presented with in the Bill.

The psychiatrists have said that given the probability of the presentation of someone with strong inclination to suicide is so rare, they will become the qualified adjudicators for suicidal intent to such a degree that the mother's life is impaired and, therefore, they will be signing off that the baby must be killed.

Chairman

I asked that people use language that is tempered and moderate and I ask Deputy Mathews to respect that.

Senator Aideen Hayden

Irrespective of there being or not being any legal obligation on us to legislate, and I believe there is, would the witnesses accept there is a moral obligation on us to legislate, given in particular the evidence this committee has received in the last number of days, especially the evidence of the experts in the fields of both psychiatry and obstetrics?

I refer to an earlier question asked by Senator Bacik on the definition of the unborn. Would the witnesses accept that the definition of unborn should be extended to remove a situation where a foetus is clearly unviable or indeed where it is already dead? Would they accept that there is a need to ensure an adequate and effective procedure to access lawful abortion under the ECHR ruling?

Chairman

I apologise to the panel for taking questions from all Members but they have been here for the entire day.

Mrs. Justice Catherine McGuinness

There was a range of questions and I will try to deal with as many as I can. With regard to the question from Senator Mullen, which is trying to flush out whether we have any dire back-up here, I do not belong to any group of any kind on this. I have already made it clear in my initial statement that I am a member of the Church of Ireland and was part of its working group to frame its statement on this, which clearly takes the middle ground in saying it is very much opposed to abortion but accepts there are cases of strict medical and other necessity in which it may occur. Members all received that submission.

Perhaps I should, to make clear what my position might be to Senator Mullen, repeat what was stated by the standing committee of the General Synod of the Church of Ireland in 1983:

In our opinion a proposed amendment to the Constitution and a referendum will not alter the human situation as it exists in this country, contribute to its amelioration or propose a responsible and informed attitude to the issue of abortion. We gravely doubt the wisdom of using constitutional prohibitions as a means of dealing with complex moral and social problems.

I still agree with what was said in 1983 but we must deal with what we have now. That is my background for Senator Mullen, but I have no political background. He has a religious background as well.

Senator Rónán Mullen

We all have our own.

Mrs. Justice Catherine McGuinness

I appreciate there is that difficulty about term limits but as I said before it arises from the sort of constitutional law we have. Senator Healy-Eames asked if we can satisfy the A, B and C v. Ireland judgment without head 4 or the Supreme Court decision in X and I do not think we can. Is it unconstitutional to introduce time limits? Perhaps the Oireachtas should try it and see if it is ruled unconstitutional. It might be something the Oireachtas could consider but, as things stand, it is difficult. The Government probably does not want to introduce new difficulties that are going to make constitutional challenges practically a certainty but it might be worth a go.

I entirely agree with Dr. Binchy that it is possible to change everything by referendum. Perhaps the reason we feel wary of the idea of a referendum is the level of virtually abusive lobbying that goes on every time there is a referendum and every time this issue comes up. Perhaps we should be looking at the psychological care of the various, particularly Fine Gael Deputies, who have been subjected to this kind of lobbying. Perhaps they are the ones who should be looking for psychological care.

Senator Rónán Mullen

Does Mrs. Justice McGuinness have a reason for thinking that?

Chairman

Mrs. Justice McGuinness should include Senators in that statement.

Mrs. Justice Catherine McGuinness

And Senators.

As regards the question of the Oireachtas having acted unconstitutionally in the past, I do not think that can be said. It has acted neglectfully in not bringing in legislation but that was not unconstitutional. It is free not to legislate. The situation changed, however, after the A, B and C v. Ireland case and because the present Government decided it was time to bite the bullet.

Was X in accordance with the intent of the legislation? That does not arise because there was no legislation at the time. The Supreme Court was only looking the Constitution, not the legislation and therefore could not refer to it.

We should improve the pathways to treatment and the fact many of the people who will be involved in these procedures, apart from the emergency situation, but particularly under head 4, are those who have little money and cannot avail of the services offered abroad. They are often, as shown in Dr. McCarthy's evidence, involved in the drugs scene, young and unmarried. Those people might not have a GP.

On the other hand, it is made clear in the report on suicide published in recent days that 60% of the people who committed suicide were already being treated by the health system. As to the arguments about treatments and so on, treatment may or not work. That is probably as much as I can deal with at the moment.

Dr. Maria Cahill

To respond to the housekeeping question, I am not involved in any political party and I have never campaigned, although today makes me want to do so.

Senator Healy Eames asked whether it would be possible to legislate to satisfy the requirements of the European Court of Human Rights without head 4. The answer to this question is to be found in rule 6 of the rules of the Committee of Ministers for the supervision of the execution of judgments and decisions of the European Court of Human Rights and the terms of friendly settlement. Countries are supposed to legislate to prevent the recurrence of the breach which gave rise to the violation that was found in the relevant judgment. In that circumstance, one is dealing with a woman, applicant C in the A, B and C v. Ireland decision, who discerned herself, by means of a Google search, that there was a risk to her life and wanted to have this risk recognised. It was a physical, medical risk to her life and does not, therefore, come under head 4. For this reason, it would be possible under the legislation to remove that head and still be in conformity with what the European Court of Human Rights decided. In general, as was reiterated on 10 April this year, the principle that the Committee of Ministers uses is the principle of subsidiarity under which a member state should choose how it wants to become compliant with a decision of the European Court of Human Rights. To respond to Deputy John Paul Phelan, that is the Supreme Court decision on the X case.

Deputy Terence Flanagan asked whether the Oireachtas had been acting unconstitutionally for all these years. I agree with Mrs. Justice McGuinness that is not the case. On the constitutional obligation to legislate for every Supreme Court decision, there are several Supreme Court decisions, for example, the re a ward of court case, the P.K.U. test case, the Ryan v. the Attorney General case and the Kennedy case, where the Oireachtas has not legislated for the rights that were recognised. It cannot be said, therefore, that there is a constitutional obligation to legislate for every decision or right that has been recognised.

I ask myself if I dare to restate my position on the X case. My position is that the court did not determine the question of whether suicidality could be treated by abortion and, therefore, suicidality is not part of the judgment of the court. I do not know why Members of the Oireachtas have been told so often that it is necessary to legislate. That view must be based on non-legal considerations.

Professor William Binchy

To answer Senator Mullen's inquiry, in the 1960s, when I was young, I was a member of the Labour Party at a time when it was committed to justice and the protection of all human beings.

Chairman

I ask witnesses to refrain from those types of remarks, please.

Professor William Binchy

It is important to note that this is about remembering all human beings because if we forget that we are discussing all human beings, including unborn children, the debate becomes restricted to a narrow medical question, regardless of the wider issues. The basic question was whether we should legislate. I compliment Mrs. Justice McGuinness on her open and honest contribution. We should listen closely to what this former Supreme Court judge stated because she essentially confirms the argument being made by this side of the argument, namely, that legislation is not necessary and that the Legislature has not been in breach of the Constitution since 1992 in not legislating. I suggest that to legislate now on the basis of the X decision, which was based on absolutely discredited medical and scientific evidence, would be wrong.

When one considers the totality of the contributions of the speakers today, they support the argument we have been making. They have been met by silence from the Government, except for one rhetorical statement that nothing has changed and one need not worry. We have put the argument that this legislation extends throughout pregnancy and Mrs. Justice McGuinness has not contradicted that position. It is interesting to show the dilemma in which the Government finds itself if it is seeking to legislate in accordance with the X case. Mrs. Justice McGuinness stated that, in the term limit area, the Oireachtas might consider "having a go" - that was the expression she used - at putting forward legislation with term limits and see how it goes with the Supreme Court. I suggest a more radical course of action, namely, Members should have a go and, if they believe it is appropriate, introduce legislation dealing with the medical matters. These are matters of no dispute in the country and the Bill, as it is addressed in heads 2 and 3, does not give any specificity in regard to medical matters. These are areas of complete non-controversy. The single area of controversy is the suicidal ideation ground in head 4. In this context, to introduce that legislation would be a complete abnegation of the responsibility of the Legislature to protect the lives of human beings in this country. This is an important point. In recent years, the issue of principle has been one that has come before Members. It is of great significance but that does not mean abortion is the most important issue in the world - of course that is not the case. There are many issues of social justice that are hugely pressing. However, underlying this proposed legislation is a principle which contradicts the fundamental basis on which the Constitution is based, namely, respect for every human being.

Mr. Frank Callanan

In answer to Senator Mullen's query, I had no involvement or input into the drafting of the Bill. On Cosma v. the Minister for Justice and Equality about which a question was asked, that is for an entirely different statutory purpose as it is an application of the Attorney General and X judgment. It is very difficult to see how an application could somehow retroactively modify the judgment that was being applied.

As to whether there is an obligation to legislate for X, the short answer is "Yes". It is true that the European Court of Human Rights in the A, B and C v. Ireland case did not specifically state that legislation was required but it is difficult ti see what else arises in an Irish context. If one wants to think about regulation, one is looking, as Mrs. Justice McGuinness stated, at some sort of enabling legislation, followed presumably by the Minister, Deputy Reilly, making regulations. I imagine it would lead to political uproar if the enabling legislation was passed and it would be subject to a different set of constitutional objections.

In the Tysic v. Poland judgment - in case this is where Professor Binchy is suggesting we should be going - the attempt by the Polish Government to rely on pure medical regulation or whatever guidelines were in place for the organisation representing the medical profession was a failure.

Chairman
Share

I welcome the Minister of State at the Department of Health, Deputy Kathleen Lynch, who has been in the Visitors Gallery since the session commenced. For the benefit of Senator Mullen, other people who were before the committee in recent days did not declare an interest, a vested interest or membership of organisations. To be fair to Mr. Callanan he did so in his submission.

Senator Rónán Mullen
Share

Credit is due to him for that.

Deputy Ciara Conway
Share

On a point of order, other than the Labour Party, has Professor Binchy been a member of any other organisation or political party?

Professor William Binchy
Share

No.

Chairman
Share

I thank Mr. Callanan, Professor Binchy, Dr. Cahill and Mrs. Justice McGuinness for their attendance.

Sitting suspended at 2.50 p.m. and resumed at 3.30 p.m.

Medical Ethics

Chairman
Share

I thank everybody for attending this afternoon. I remind Members and witnesses to ensure their mobile phones are switched off for the duration of the meeting as they interfere with the broadcasting and sound recording equipment making it uncomfortable for members of staff. This is our 11th session of 12 in our series of hearings that the Joint Committee on Health and Children has been asked to conduct in the analysis of the heads of the protection of life during pregnancy Bill. I thank the members for their attendance in the past three days. I again remind everybody regarding time. I ask people to be cognisant of the language and terminology we use. We should be temperate, moderate and respectful of each other and in particular of our expert panel of witnesses who have come here voluntarily today to assist us in our analysis of the heads of the Bill.

I welcome Dr. Ciaran Craven, Dr. Ruth Fletcher and Ms Sunniva McDonagh. I thank them for giving of their time to assist us today. I remind members and witnesses about privilege. Witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter to only a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of the proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice or ruling of the Chair to the effect that, where possible, they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I ask Dr. Craven to give his opening remarks.

Dr. Ciaran Craven
Share

I thank the Chairman and members of the committee for the invitation to present to it this afternoon. I know the members of the committee have heard a great deal in the past few days and I do not propose to delay them unnecessarily with what I have to say. Over the next few minutes I will give a very brief outline from an ethical-legal perspective in respect of the heads of the Bill. I will begin with the ethical issues, moving on then very briefly to the legal considerations that necessarily arise. I will then synthesise them regarding some general comments I wish to make in respect of the heads of the Bill.

As the Medical Council has made clear, good medical practice depends upon a relationship of trust between the profession and society at large. That requires the highest standards of professional practice and behaviour. That is the expression the council uses in its guidance. At the heart of this are the concepts of honesty, responsibility and accountability. To fulfil the duty the council defines for doctors requires that doctors seek the highest standards regarding their practice. A failure to meet those highest standards will attract opprobrium. It may either amount to professional misconduct on what they call failing below the reasonable standard test or indeed it may also amount to poor professional performance. However, that is a bit academic. At the heart of this is a requirement that proper professional standards be met and a failure to meet those standards is one that will result in certain sanctions, the nature of which do not actually concern us this afternoon.

At the heart of this is something simple - the safety of the public. It is about assuring that individuals receive the quality of care they deserve on the one hand. It is also about assuring that one can ensure that when that care is being delivered it is being delivered safely. I want to demonstrate that it is really not about matters of simple independent opinion. In other words there are objective standards that must be applied. Lest it be considered that this is simply an ethical matter which is of concern, in our legal order this is also given certain force. In so far as the law of tort is concerned, it used to be dealt with in the context of whether one followed, adhered to or subscribed to a general and approved practice, in other words one which was followed by a responsible, reputable or respectable body of professional opinion. That was the classical test and the classical formulation.

That seems to have undergone something of a transformation, particularly in recent years. I wish to reference two particular instances where this has occurred. The first was the case HM v. the HSE and a decision of Mr. Justice Charleton from July 2011. The case is significant because it actually incorporates evidence-based professional guidance into the appropriate standard of care. It is almost a reflex of incorporation and is virtually a definition of equipollence or equal power as between professional guidance which is evidence based on the one hand and then also the standard of care in so far as the law of negligence is concerned. That seemed to represent something of a shift in so far as the courts are concerned from this deference to clinicians in terms of what is or is not appropriate. That is hardly surprising given that over the past 25 years there have been very significant shifts in terms of evidence-based practice in general.

A further issue has also arisen. In its decision in the case of Kearney v. McQuillan, the Supreme Court went further in stating that health care professionals owe and always have owed a duty to patients to protect their constitutional rights. This in so far as our legal order is concerned has been elevated to a significantly higher level as well.

There is a question of an affirmative duty - an affirmative duty on the one hand which is imposed by the proper practice of medicine and secondly an affirmative duty which is then reflected in terms of what the courts have found and in particular the decision of the Supreme Court in the past 12 months or so.

Underscoring all of these it seems there is a requirement for some evidence in terms of one's practice. In other words, in order to fulfil the obligations that doctors have, be it at an ethical level or a constitutional or legal level, there must be some evidence in terms of what they do and that is about the only way the ethical injunction of primum non nocere - first do no harm - can actually be fulfilled.

That forms the backdrop to what I want to say in the context of the heads of the Bill. It would not be particularly useful for me to go through it head by head because the members of the committee and the Members of the Houses will have heard a great deal of that from other contributors and also previously. Suffice it to say that the heads of the Bill in terms of their philosophical approach having regard to those ethical-legal imperatives seem to have adopted an inverted approach in terms of what they seek to do.

When it comes to the question of certifying certain opinions in head 2, 3 or 4, in each case there is a requirement that the opinion be formed in good faith. With respect, when one is relying upon a good safety justification, that good safety justification as a matter of practicality will always succeed. Trying to demonstrate bad faith - mala fides - or even improper motivation in this area is virtually impossible. There is a whole series of cases where this has arisen under the old mental health legislation over the past 40 years. With respect it seems that this represents a very old-fashioned approach which is inconsistent with the ethical, now the legal and elevated to a constitutional duty that the courts have elaborated over the past two years in particular.

By incorporating some kind of objective standard or a reference to evidence-based practice, at least there is some template against which practice can be measured. That is simply not possible in the context of a statutory schema, which is predicated solely on the good faith of individual practitioners. I do not need to mention in this House the issues and problems that have arisen over the years in terms of individual practitioners - one would imagine acting in good faith - who were nevertheless damaging individuals in the most egregious circumstances.

A good faith defence in those circumstances would, under the terms of the scheme of this Bill, provide an absolute defence irrespective of how that behaviour might be considered to be referenced according to a template of evidence based practice. A good faith opinion which is accepted without any reference or is unsupported by any reference to evidence based practice is regressive and potentially dangerous. It represents an old fashioned approach, one which no longer finds favour with the courts or the regulatory body.

In that context, the question of the number of individuals who are required to review any particular decision is of academic relevance and significance because it presents the same difficulty or weakness in so far as it is simply based on bona fides. Some of the particularly bad scandals we have had over the past 20 to 25 years or so would indicate there must be a limit to the deference that any society must give to what amounts to clinical hegemony. If one wishes to write a recipe for abhorrent behaviour or clinical hegemony then the way to proceed is to carry on along this line and provide for a defence based solely on good faith.

The question of conscientious objection does not arise. When it comes to proper ethical practice, particularly one which is evidence based, there can be no issue in relation to conscientious objection. The model with which any doctor here is faced when presented with a woman who is pregnant is that he or she has two patients. It does not matter what one's view is on abortion on a personal or political level. The factual reality is that when a doctor is faced with a pregnant woman he or she has two patients and a duty to both. It seems to me that this is not necessarily flagged with particular significance in the Bill.

I am happy to respond to any questions from the Chairman or members of the joint committee.

Dr. Ruth Fletcher
Share

I thank the joint committee for the invitation to present. It occurred to me when passing my alma mater, Trinity College, that I have been teaching and researching in this area for almost 20 years. I am honoured to have this opportunity today.

For someone like me who works in the area of ethics and law the proposed legislation in terms of its recognition of a public obligation to implement an existing constitutional right to life-saving abortion, is welcome. However, it does not do enough to meet the ethical obligation to value women's lives. I will focus my opening remarks on four key points, including the definition of the unborn; the significance of risks under heads 2 to 4 justifying a termination of pregnancy; the limits on the rights to conscientious objection and the inappropriateness of criminalisation.

On the definition of the unborn, head 1 suggests that the unborn should be defined to mean following implantation, drawing on Roche v. Roche concerning frozen embryos as a precedent. With respect, the ethical arguments for choosing the point of implantation as a significant moment for legal protection of human life have not been adequately addressed. Given past failures to interrogate the assumed wrongness of abortion and, given the particular factual context of Roche v. Roche, it is open to this Legislature to consider more fully the criteria by which the unborn should be defined. The best ethical argument available to us from the literature and moral philosophy justifying protection of early forms of unborn life from implantation is that of potential personhood. This is the argument that from its earliest stages, subject to assistance from the pregnant woman, the embryo and foetus will go on to become a person. This future personhood argument does not apply, however, to foetuses with lethal abnormalities. Much to the anguish of their parents, they will die after birth and, therefore, they do not have a future as persons. That ethical argument does not apply in this case. Moreover, the State argued in D. v. Ireland that foetuses with lethal abnormalities could be excluded from the legal and constitutional definition of the unborn. Given that D lost her case before the European Court of Human Rights, partly because this was the argument made by the State and domestic remedies were not exhausted, there is, I would argue, more of a moral obligation on the Legislature to deliver on that argument and to address the definition of the unborn in a way that excludes foetuses with lethal abnormalities.

A second important aspect of this ethical argument for protection of early embryonic life from implantation is that it rests on the potential to become a person rather than on actual personhood. Potential personhood is best regarded as giving early embryonic and foetal life moral value because of what it will become in the future. This potentiality is obviously ethically significant but not as significant as the moral status we give to sentient forms of human life, namely, forms of human life that are developed to the point of feeling pain or pleasure. That is another stage of development with another set of capacities and another level of moral protection is due it. It is also not the same as the higher moral status which comes with full personhood, namely, the capacity to reason, communicate, will and act on our lives. A person's interest in her own bodily and moral integrity may justify limitations on the duty to sentient beings. This is because part of what makes life valuable is the person's ability to reflect on her life over time in particular factual circumstances and to make moral choices in that regard. That is part of what we value about being human.

To sum up, the following categories I would suggest provide a better ethical framework for the protection of unborn human life than does the assumed significance of implantation underpinning the legislation. First, pre-sentient embryonic and foetal life has moral value rather than moral status. It should be taken into account in moral decision-making but in itself does not impose harm-reducing duties on others. Second, sentient foetal life has moral status and may impose a duty on other persons to reduce harm to that sentient foetal life. Third, self aware personhood has a higher moral status than sentient life and this can limit the duties we owe sentient forms of life. They are the three ethical frameworks discussed in literature on medical ethics and law, which I believe will be helpful in informing the debate around protection of unborn life in its early stages.

My recommendation in this regard is that the unborn should be defined so as to exclude those foetuses which have lethal abnormalities and which will not have a future independent life. This possibility is open to the Legislature. It does have the power to do this. Also, the unborn should be defined to mean the foetus following the earliest moment at which sentience is possible.

On heads 2 and 4 and the risk of loss of life that justifies a termination of pregnancy, these heads provide for the kinds of risk to a woman's life which will legally justify a termination of pregnancy under the scheme. Others have commented more eloquently than I can on the need to remove obstacles in life-saving abortion care and on the troubling mistrust of women with suicidal ideation. I would like now to focus on the narrowness of the risk to life ground for termination of pregnancy. This ground has been drawn very narrowly, in part because it is assumed that Article 40.3.3° requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus. Again, turning to ethical moral philosophy and legal theory, equality scholars have long argued that equality does not mean sameness rather ethical treatment requires the accommodation of actual differences between beings of all shapes and forms. Vindicating the life of the unborn with due regard to the equal right to life as directed by Article 40.3.3° should entail a full evaluation of all the interests that the woman's life entails, as well as all the interests of the unborn.

To state the issue concisely, women are conscious, sentient beings with moral viewpoints and responsibilities to other people. Foetuses are not quite that. They are the bearers of biological life and they will be future persons but this is not the same kind of life as that of the breathing, feeling and thinking woman. The current legal test treats women and foetuses as if they are the same, which I argue devalues both forms of life. It does not value their specificity and particularity sufficiently.

In regard to head 12 on conscientious objection, in principle the inclusion of a conscientious objection clause is defensible, subject to two conditions. First, it must be applied to individuals rather than to organisations and, second, it must only be applied in circumstances where alternative provision is available to a woman needing termination of pregnancy. If respecting human life includes respecting the personal choices which give life meaning, obviously health care practitioners may avoid performing health care that infringes their moral values. As the explanatory notes acknowledge, however, conscientious objection is not an absolute interest but is limited by the need to prevent harm to other people, pregnant women in this instance. In circumstances where a health care practitioner cannot arrange alternative provision without undue delay, the right to conscientious objection may be limited by the duty to prevent harm to patients. That is an issue of which we must be mindful in legislating for conscientious objection. This recognition of health care practitioners' consciences is worthy but it is inconsistent with the lack of legal recognition of women's consciences in this context. If conscientious objection to the provision of abortion is legally acceptable, as in head 12, so is an equivalent objection to sustaining the embryo or foetus within one's body. If a woman's conscience tells her that terminating a pregnancy is the best moral resolution of all the complex issues that arise in a particular factual pregnancy, her conscience equally deserves recognition and accommodation.

Turning to head 19 and the new offence proposed to be created by the Bill, the criminalisation of women's decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction under Article 40.3.3o to vindicate the life of the unborn as far as practicable. It is disproportionate because it does not achieve the end of protecting foetal life. We know that hundreds of thousands of Irish women have had terminations of pregnancy. Criminalisation has not been successful in protecting unborn life. Furthermore, criminalisation as one form of legal regulation makes the situation worse because it stigmatises and punishes those women who find themselves needing to end a pregnancy. In making the situation worse, it also makes health care more difficult to access because, as we have heard, medical practitioners will feel the chilling effect of the criminal law.

The Legislature has other options under Article 40.3.3o. Criminalisation is not a necessary aspect of the Article and other, less punitive options could be pursued, such as regulating the terms on which abortion is accessible or adopting more positive measures to prevent the loss of unborn life through miscarriage by investing in pregnancy related care. In choosing to punish women rather than adopt more neutral or positive measures to support foetal life in pregnancy, the Legislature is acting unfairly because it is asking women rather than the State to bear the weight of the public duty to vindicate foetal life. In respect of the head 19, I agree that sections 58 and 59 of the Offences against the Person Act should be repealed but it would be harmful to adopt this new offence. If the Legislature is not prepared to go the full route of decriminalisation, which is open to it, at minimum the offence needs to be defined in much narrower terms than is currently the case. At present it is expanding the range of actions that could be a criminal offence with the phrase "any act with the intent to destroy unborn human life". This is too broad and may include acts which are ultimately unsuccessful in destroying unborn human life. The maximum penalty of 14 years is extreme and, at the very least, we should consider reducing it given that we are discussing the criminalisation of moral choices by women in difficult situations.

Chairman
Share

I thank Dr. Fletcher for travelling here to participate in our hearings. The next speaker is Ms Sunniva McDonagh, SC.

Ms Sunniva McDonagh
Share

I am a practising barrister, a member of the Mental Health Tribunal and a member designate of the Irish Human Rights and Equality Commission. I was also the editor of the Irish Reports at the time the X case was decided. We edited and prepared a special edition of the Irish Reports setting out the relevant arguments. However, anything I say this afternoon is entirely in a personal capacity. I want to make constructive criticisms of the Bill in a spirit of interrogating what might be possible. My criticisms should not be taken to suggest they will inevitably come to pass but, as legislators drafting legislation, it is important to examine the provisions to determine what they actually provide for, bearing in mind that our purpose is to bring clarity to the rights of the mother and the unborn child.

As there is no presumption that the heads of the Bill are constitutional, we can proceed on the basis of criticising them in that way. I do not want to rehearse the arguments made by other speakers but I wish to speak about the drafting of the legislation. In regard to clarity, head 2 on necessary medical practice in the context of physical risk contains nothing new. Medical practice in Ireland has been excellent in treating both mother and unborn child over decades. I am not sure any additional substantive clarity is brought to the matter by this head, which is unobjectionable. An issue that remains unclear, however, is head 4 and the threat of suicide. In this regard, I want to mention what was decided in the X case because we cannot leave out of the picture the fact that the Supreme Court formulated the test without the benefit of medical evidence or best psychiatric practice. The court did not have to consider and weigh expert testimony or psychiatric evidence as to whether abortion is ever a treatment for suicide or if other treatments could be utilised to avert the risk. This is what members have been considering over the past several days.

On foot of the Supreme Court judgment in X, a superstructure is going to be imposed in order to meet the test, involving various medical professionals. An earlier speaker argued that X was wrongly decided. I will not argue that but certain matters were not considered in X because certain concessions were made. X is silent on some of the issues arising around the threat of suicide and it now appears that the best psychiatric evidence indicates that abortion is not a treatment for suicide. However, the structure we are examining proposes to put in place and medicalise what in fact was a legal test. It cannot be ignored that the evidence of a psychologist, who was not advocating abortion, meant that the X test was fulfilled. A question arises as to whether we are legislating on a flawed presumption or hypothesis. It seems to me, based on the best psychiatric evidence available, that is what is being proposed. The medical evidence indicates that abortion is not a treatment for suicide.

If, however, the legislation is to proceed on the basis of this structure involving the various medical professionals, then it is important to make a few points about the draft heads of the Bill. The first point is that having involved psychiatrists in the process, there is no actual requirement that a psychiatrist must examine the patient before giving his or her opinion. The legislation states that a psychiatrist should examine the patient. However, the words "should" and "shall" are not the same. The way the word "shall" is used in relation to consulting the general practitioner can be contrasted with that particular provision. In law, a mere exhortation that somebody should do something is not mandatory or enforceable. It is very understandable that there would be reluctance to subject a woman in distress to any rigorous or invasive procedures but the question must be asked as to whether this would be an adequate justification for bypassing best medical practice in respect of diagnosis and treatment. A court called upon to interpret this legislation will consider the words used and not the aspirations of its framers.

The framers of the Bill have made reference to the Mental Health Act 2001 and it has also come up for discussion before this committee. It has been seen as a model in the framing of the heads. However, it is important to point out that the involuntary detention of a patient under that Act requires two separate and distinct medical examinations of the patient. That must be a personal examination and it must be carried out by a general practitioner and a psychiatrist. Failure to conduct such an examination will mean that the patient is actually unlawfully detained. In a recent High Court case, the judge described these examinations as vital, essential safeguards for the patient. This is altogether apart from the fact that under the mental health legislation, there is an automatic review of the detention at a later stage when two further medical professionals are involved. It is not clear why the framers of the legislation - in looking to the Mental Health Act 2001 as a model - have failed to provide that there must be an examination of the patient if, in fact, there are diagnostic criteria for evaluating suicide, etc. Failing to provide that psychiatrists must examine patients leaves the Bill open to the suggestion that psychiatrists are being involved perhaps for optical or non-medical purposes.

A further consequence of not requiring a examination of the patient is to increase the likelihood for forum shopping by the patient or the doctors involved. I ask members - as legislators - when they are examining the Bill to carefully consider what is proposed under head 4. What is proposed is that the psychiatrists involved should be employed at a centre registered by the Mental Health Commission and that one of them must be attached to the institution at which the procedure is to be carried out. One must ask what is meant by the words "attached" and "employed" because although a psychiatrist must be registered in the general specialty of psychiatry, there are extensive freedom of movement provisions. As a result of the fact that the legislation is all about clarity - and we are quite entitled to ask at this point what is intended - it is important to interrogate what precisely is to be required of the psychiatrists. For example, would it be sufficient if they hold clinics once a month or if, in circumstances where they are resident abroad, would it be sufficient for them to provide opinions without actually examining patients. This is a matter which, again, should be the subject of careful consideration.

The next point I want to make involves the risk of self-destruction and the foetus and potential viability. What is proposed represents a significant change in medical practice. Under head 2, the treatment is not actually the termination of the unborn life. Under head 2, where there is a physical risk, the unborn life, as a consequence of the medical treatment, might die but for the first time in statutory provision it is being provided that the actual treatment is the termination of the pregnancy. The proposed treatment is, in fact, abortion. Nowhere under these heads are doctors mandated to terminate a pregnancy via a procedure which might ensure the baby would survive. It might be stated that this is the intention, that the Supreme Court would never allow that, etc., but the purpose of the legislation is to bring clarity to the position. The proposed legislation does not bring clarity to the position. It should not be forgotten that the threat of suicide can be established late in pregnancy by a woman saying, for example, that it is the very fact of being pregnant or of carrying a child with a severe disability which is making her suicidal. If she is going to have the treatment, then that is actually the termination of the pregnancy. There is no comfort in the legislation that this does not extend right up until birth.

There are some other safeguards which I may not have the opportunity to discuss in view of the time limits which apply. I wish to state, however, that if members look carefully at "appropriate location and public obstetric units" in the legislation, they will see there is nothing in the legislation which seems to prevent the HSE from entering into arrangements with private providers or with co-locating the resultant services in public hospitals. After all, they only have to be co-located with maternity and neonatal services. Many treatments - for example, oncology or cardiac treatments - will not be carried out in public obstetric facilities. When the Bill is eventually published, it may well have to be extended in order to include other private or general hospitals. On the appropriate locations, one should give careful consideration to what may or not be permitted in this regard. I will be happy to answer any questions members may wish to pose.

Deputy Billy Kelleher
Share

My first question is directed to Dr. Craven. He referred to the Medical Council's guidelines, the importance of professional integrity in dealing with the public and the expectation that medical professionals will act in good faith. There is an obligation on such professionals in that regard and the Medical Council's guidelines are the essence of this. The 2009 edition of the guidelines specifically states, in the context of suicide as a threat to the life of the woman, that a termination is lawful in this country. Is Dr. Craven of the view that the guidelines in question are at variance with good medical practice?

My second question is directed to Ms McDonagh. In the context of the debate on the protection of life in which we sometimes engage, reference is made to the obligation on obstetricians, psychiatrists, cardiologists, oncologists and medical professionals in general to vindicate the life of both the mother and the unborn in so far as is practicable. Article 40.3.3° of the Constitution is specific in this regard. Where in the legislation is provision made for the intentional destruction of the unborn to safe the life of the mother? We can understand that in the event of an intervention prior to foetal viability, while it would not be intentional, the life will be destroyed. From where in the heads of the Bill did Ms McDonagh obtain the perception that there will be intentional interventions in order to destroy the life of the child and after viability as well? If an ability in this regard exists, perhaps she could enlighten us as to how we might tighten up the position. I do not believe any Members of the Houses or any professionals would like legislation to be put in place by means of which we would almost obligate or allow medical practitioners to intentionally destroy life. If we were to do so, would we not - at the very least - be passing legislation which would probably be against the spirit of Article 40.3.3° and also unconstitutional?

Deputy Caoimhghín Ó Caoláin
Share

In his summary, Dr. Craven made it clear that he does not believe the Bill to be fit for purpose and stated that it fails to reflect the ethical and legal imperatives and to recognise certain things, is philosophically confused, involves an old-fashioned approach, fails to reflect proper ethical-legal considerations and it is fundamentally illogical.

Dr. Craven's point in No. 39, immediately before his summary, is that if this Bill passes there can be no conscientious objection to ethical, legally permissible practice. In the event that the Bill does pass, is Dr. Craven arguing that there can be no provision for conscientious objection? We cannot have it every way. We are likely to have to face the passage of legislation of some form. Even though Dr. Craven has strong views I am sure that many who would share his position would be anxious that conscientious objection would indeed be provided for.

I thank Dr. Fletcher for her contribution. In respect of recommendation No. 3, Dr. Fletcher refers to removing the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness. Do I understand from this that Dr. Fletcher is supporting a view already articulated here today, yesterday and on Friday that heads 2 and 4 be brought under a single heading? Would that be the direct translation of what Dr. Fletcher is arguing for?

I thank Ms McDonagh for her contribution as well. Reference was made to there being no requirement to examine the patient. Ms McDonagh refers to the provision that the specialist should examine the patient and then goes on to state, under the same heads, that the woman's general practitioner shall be consulted. However, that sentence concludes with "where practicable". The "shall" is not an absolute, it may not always be a possible situation. That represents exactitude in language. Ms McDonagh is very clear about the importance of that and its understanding.

Ms McDonagh stated that surely in the case of suicide risk an equally robust regime should apply. This was in the context of examination of the patient. Does Ms McDonagh have concerns that examination of the patient is not properly provided for in respect of medical circumstances as against suicidiality? Would Ms McDonagh like to elaborate on that? Generally, we would be of one mind that we want to see the patient examined, that the determination of the professionals is based on the very best opinion that they can arrive at. One would think that would include an examination of the patient.

Deputy Seamus Healy
Share

I thank the witnesses for their attendance and presentations. I will be brief, as usual. In respect of Dr. Craven's presentation I take it that he has difficulties with the Bill but that he is more of the opinion that the template of the Mental Health Act would be more appropriate, operable and practical in this area. Is that is the case? What is Dr. Craven's view?

Dr. Fletcher referred to the question of fatal foetal abnormality, an issue I raised early on in the first day of these hearings. I asked Dr. Tony Holohan of the Department of Health why this issue was not covered in the legislation, particularly in view of the State's case at the European Court of Human Rights. Will Dr. Fletcher clarify and expand on that point, please?

Ms McDonagh referred to the question of appropriate location. Again, I raised this issue on Friday morning. I take it Ms McDonagh has a difficulty with it. Perhaps the committee has a difficulty with it as well. Will Ms McDonagh confirm that the matter could be amended and clarified in the legislation?

Chairman
Share

I will take the Vice Chairman, Deputy Ciara Conway, at this stage.

Deputy Ciara Conway
Share

I thank the witnesses for their presentations this afternoon. In the course of recent days we heard from Dr. Anthony McCarthy, who is the head of the School of Psychiatry and is a perinatal psychiatrist who works in that field extensively, being only one of three in the country. He stated that it is true that abortion is not a treatment for suicide but he added that counselling and anti-antidepressants are not treatments either and that there is no treatment for suicide. He argued that we have to try to prevent suicide by looking at the reasons for suicide. I put it to the witnesses that we all advocate that abortion is not a treatment for suicide, but it is the choice of the woman and it is the doctors who certify the woman to be suicidal. These are trained medical psychiatrists who, day in, day out and week in, week out deal with risk and put people on suicide watch. Are we now to believe that they are incapable of ascertaining whether a woman is suicidal? We all agree that abortion is not a treatment for suicide. It is the woman's right to choose.

Chairman
Share

I call on Ms McDonagh to start and we will give you five minutes each to reply. Six other members have indicated to speak.

Ms Sunniva McDonagh
Share

I am not a medical doctor but, to take the last point first, I am dealing with the legal position in respect of the protection of the unborn and the right of the mother to every medical procedure that will save her life. I am not here to advocate a policy, such as a woman's right to choose, but I am addressing the psychiatric evidence which is available. One wonders why the entire matter has been medicalised if, in fact, the idea behind the Bill is a policy consideration that women should have the right to choose. It is not that I have a problem with anything to do with appropriate legislation, I am merely drawing the attention of the committee to what the consequences could be. I am here as a lawyer not as an advocate. I am merely pointing out that the HSE under the Health Act can enter into an arrangement with any provider provided, it seems to me, it is co-located with maternity services, etc. I am only pointing out that one could have a situation where one could have, in the grounds of a hospital, a private provider. One wonders was that what was intended, if there is to be oversight.

Deputy Seamus Healy
Share

That could be amended.

Chairman
Share

I will bring you back again.

Ms Sunniva McDonagh
Share

Absolutely, of course it could be amended. All of these things can be amended or changed. One presumes that is why we have all been called to give our view.

Deputy Kelleher raised a question about abortion being a treatment for suicide. In response, in the penultimate paragraph in the explanatory memorandum to head 4 the framers state, "In circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain its life after delivery." However, it is not so much a matter of where in the Bill one finds that the unborn is going to be targeted. The question is where does one find in the heads of the Bill protection given to a foetus who is potentially viable outside the womb. By extension, I would say that one also has a difficulty in principle once it is acknowledged that there is a right to life once a foetus is viable. Where does one draw the line? Where does one draw the line if it is 20 weeks and some form of protective treatment can be put in place for four weeks? It is very difficult once the viability argument is conceded to see if there is not a principled argument throughout. Anyway, I do not see here any explicit protection for the unborn up until viability. Let us not forget the other related point that came up in respect of the definition of "unborn". One is unborn until one has proceeded fully from the womb, according to the explanatory section. That does not give any comfort if, in fact, the life of the unborn can be terminated.

Dr. Ruth Fletcher
Share

I wish to respond to Deputy Ó Caoláin's question about whether the recommendation is equivalent to the merging of heads 2 to 4. In short, the answer is "Yes". Having extra procedures and extra personnel required in the case of suicide risk is effectively discriminatory against people who threaten suicide.

The effect of my recommendation is to remove that kind of discriminatory provision within the heads. The effect could be achieved through having the same test and, effectively, merging heads 2 to 4. Therefore, I would support that.

I will respond to Deputy Healy's question on the definition of the unborn and the possibility for having that definition exclude foetuses with lethal abnormalities. The main argument I was making in terms of having a brief to talk about the ethical arguments today, was that the future potential personhood of those foetuses unfortunately is not going to be achieved. In ethical terms, one is asking women to sustain pregnancies when a future independent life is not going to be achieved at the end of the day. It would be regarded as unethical in that sense in that one is imposing suffering when a good is not going to be attained out of that suffering at the end of the day.

On the legal point in D v. Ireland, given the ethical arguments and given the legal possibility of defining the unborn in a way that it would exclude foetuses who have these particular extreme conditions, which mean that they cannot survive birth, that would achieve the delivery of the State's argument in D v. Ireland which, in effect, meant that D lost her case before the European Court of Human Rights because she had not gone to a local court in Ireland. The European Court of Human Rights said that argument could have been made before a domestic court and therefore the case was thrown out. That gives the Legislature an added responsibility to act on behalf of those women given that this case was thrown out by the European Court of Human Rights on the basis of that argument because it believed in the possibility that Irish courts and the Irish Legislature could interpret Article 40.3.3o in this way. The Legislature does have a moral obligation to pick that up as well.

Dr. Ciaran Craven
Share

I will deal with the questions in the order in which they were put to me. I will deal with Deputy Kelleher's question first. What he said about the Medical Council guidelines on suicide is correct but the council is simply making a statement of its understanding as to the current legal position. It is doing no more than that. I certainly do not think on any reasonable reading of that particular provision that it is actually saying this is nevertheless ethical. Having said that, I recognise there is a fundamental inconsistency between a bald statement in relation to legality divorced from any consideration of the ethicality of what is actually stated. I should say that I do not hold a brief for the Medical Council and I am not here to defend its position or what it has said in this area.

Moving on Deputy Ó Caoláin's comments, he was quite right in what he said. It is fair to say that I am highly critical of the approach the Bill has taken. There is a certain philosophical inversion in terms of what is required. Rather than simply examining what the evidence is and, therefore, what is ethically and legally mandated, it seems to decide there are certain procedures which are not defined which somehow are lawful and defensible and then it invites the professional bodies and the regulatory agencies to provide assistance in relation to the implementation of the legislation. With respect, in terms of a very significant policy issue, that strikes me as being an inversion. Whatever doctors, the regulatory bodies and the professional bodies may say about these matters, the questions of policy and the principle are not ones which, in my respectful submission, are capable of being avoided by the Oireachtas.

My comments in relation to conscientious objection have to be taken in context. If the proposed Bill is reflecting proper ethical, legal consideration, then the question of conscientious objection simply cannot arise because it accords with both the ethical imperative and the legal imperative as I tried to make out. If, on the other hand, it is doing something different, then it may well be the case that a question of conscientious objection arises. Whereas the case has been made that conscientious objection is something of a personal right and is vested in individuals, it in itself, as we know from other jurisdictions, is capable of giving rise to all kinds of issues and difficulties when one steps one position more remote from the person who is involved in the procedure. In our neighbouring jurisdiction there have been significant problems in relation to it.

In so far as the question of whether this is a right which vests in institutions is concerned, again the courts recognise that no doctor or health care professional can be obliged to do something which he or she considers to be contrary to the best interests of the patient. Institutions do not have arms and legs or eyes and ears, they can only operate through the personnel they employ or engage. Trying to make a distinction between a right to object in relation to institutions, on the one hand, and individuals, on the other, is, in my view, not sustainable.

Moving on to deal with Deputy Healy's question, I hope I have not misled him in regard to the Mental Health Act. That Act of itself is one with issues related to it. Since the question has been raised, that Act evolved and was designed with a particular policy objective in mind and it sets out the various principles which were to apply and then it sought to import those principles by way of giving effect to the policy objective. While I am certainly not holding it up as a paradigm in terms of how it might be done, the point I wish to make is that with the policy having been decided one cannot then seek to implement it without having reasonable regard to the ethical legal principles which will result in proper implementation of the policy.

Deputy Conway's question has probably already been dealt with by Ms McDonagh in her response. In so far as Dr. McCarthy is concerned, the evidence given before the committee on 8 January of this year was pretty much to the same effect. The argument is not being made that abortion is a treatment for suicidal behaviour, suicidal intent, suicidality or however one wishes to characterise it. If it was the case that the Oireachtas seeks to introduce a regime for other reasons, then that is policy debate of an entirely different order. As Ms McDonagh has already pointed out, what this Bill purports to do is to medicalise the matter. If we were to engage with it from a rights-based perspective, that would be a debate on an entirely different matter.

Chairman
Share

Six members have indicated they wish to speak and I call Senator Colm Burke.

Senator Colm Burke
Share

I ask Dr. Fletcher to expand on the issue of lethal abnormality. I understand that under Article 40.3.3° the life of the unborn is protected. If the unborn has only the prospect of surviving one second after being born, the legal position is that the pregnancy cannot be terminated. Dr. Fletcher seems to have a different view and I would like her to clarify that issue.

Ms McDonagh referred to the Mental Health Act and the structures that are in place. In terms of the heads of the Bill, is it her view that we should have a similar structure for dealing with whatever procedures have to be put in place to deal with such an application, especially under head 4, or is she suggesting that a more comprehensive structure should be put in place? Once a decision is taken in this case it is not reversible and when the procedure goes ahead it is not reversible. Ms McDonagh might clarity that matter.

Deputy Catherine Byrne
Share

I find it very difficult to stand up and question people who are very intelligent and knowledgeable about the law. It is difficult for me as a layperson to take in all that is being said, and I mean that with greatest of respect to the witnesses.

I had to undergo surgery a few months ago and I had to sign a consent form. I signed it in good faith believing that when I was wheeled down to the theatre the people would look after me and do their best. This Bill is very important in that we are entrusting the medical people in our country to look after people who turn up on their doorstep in a mentally distressed state and to act in good faith to protect the mother and the unborn child.

That is my definition of what this Bill is about as a non-medical person or a lawyer. It is what I believe as an individual.

I have a question which I am finding difficult to put into context but I ask the Chair to allow me read two brief extracts from statements provided, one of which is from Mrs. Justice Catherine McGuinness under "unborn". It states:

I accept that this definition is based on the Supreme Court judgement in the Roche case [whatever that was]. However, it should be pointed out that this definition of the personhood of the unborn is not universally agreed.

I read most of Dr. Fletcher's statement but in her contribution earlier she stated: "Foetuses ... are the bearers of biological life and they will be future persons but this is not the same kind of life as that of the breathing, feeling and thinking woman". I find it difficult to formulate my question but would Dr. Fletcher say that the unborn foetus was the same as a living person who has been tragically maimed in a very serious accident where people are brought into a room and told that this person who was living and feeling is now on a life support machine and has been pronounced brain dead? I may have formulated that question wrongly but I am trying to ascertain if there is a difference between the unborn person and that person lying in a bed in intensive care whose family are being told there is no prospect of life and therefore, not wishing to use the phrase, to end their life. I ask the witness to formulate a response to that question.

Senator Jim Walsh
Share

First, in regard to the children's referendum-----

Chairman
Share

That is not part of the heads of the Bill.

Senator Jim Walsh
Share

This relates to the heads of the Bill if the Chairman would allow me finish without interrupting me. In the witnesses' opinion is the ability of the State to enforce an abortion against the will of the family covered in the heads of the Bill, and would that be an ethical process?

Second, what limitations, if any, should be placed on a physician's choice of method or technique for abortions either before or after viability? Where the child is not viable, may the physician use a procedure, for example, which would directly end the life of the unborn? I do not want to go into the gruesome details that entails but issues arise such as suction aspiration and dilation and evacuation, D and E, where the child is partially evacuated. Post-viability, even though there are serious risks attached to the health of the child, what is the position with regard to the person performing that abortion, having regard to perhaps a safer method of abortion which would involve the death of the baby as against another method such as induction which might save the life of the baby? Is the Bill clear on that and the ethics attached to it? Third, is there an obligation on us, as legislators, to enact laws that are just?

Chairman
Share

For the record, Senator, the Chair intervenes; it does not interrupt.

Senator Ivana Bacik
Share

I will note the Chairman's distinction in that regard. My first question is to Dr. Craven. I am at a loss to understand his submission - I have read his submission as well as listening to his contribution - and the basis for his opposition to the heads of the Bill. His view is that it changes the current two patient duty, as he put it, but in my reading, and according to the experts we heard earlier, the heads of the Bill do nothing to change the current duty under Article 40.3.3o, which is a duty both to preserve the right to life of the unborn as far as practicable and to preserve the right to life of the pregnant woman. Head 1 of the Bill, which sets out the definition of "reasonable opinion", and head 19 specifically cover that requirement as well as the duty that others have referred to of any practitioner operating within the Bill to observe the terms of Article 40.3.3o, which remains in place. I cannot accept the basis for that submission.

Dr. Fletcher made some very thoughtful points in her submission about the issue of life. I ask her about heads 1 and 19 in particular. On head 1 she points out the difficulty with the definition of "unborn". My reading of the current definition is that it covers cases where, tragically, there is no longer foetal life, in other words, a foetus which is no longer alive. The witnesses from the Institute of Obstetricians and Gynaecologists told us that they would not regard that as an unborn and that they would regard it as miscarriage but my reading of the definition is that it is not sufficiently focused to exclude that, and that it would lead to the difficult and traumatic situation of a pregnant woman being forced to carry to term a foetus which she knows to be no longer alive. That is a traumatic thing to require any woman to do. Dr. Craven helpfully reminds us that section 58 of the Civil Liability Act 1961 refers to unborn, specifically stating "provided the child is subsequently born alive". That bears out the argument the witness is making. Clearly, there is litigation waiting to happen along the lines of the D case in an Irish court where a woman with a fatal foetal abnormality challenges the State for failing to provide her with the right to a termination.

On head 19, Dr. Fletcher made a very strong argument about the need not to criminalise the woman, or indeed the young girl, who attempts or carries out an abortion on herself, which is a real practical point because so many young women are importing abortion pills for use in this jurisdiction. I take her point, which was helpful of her to make.

Deputy Denis Naughten
Share

Following on from Senator Bacik's question to Dr. McDonagh, I ask her to elaborate on that because my understanding of head 19 is that it specifically prohibits the intentional destruction of the unborn. I ask her to clarify that for me.

I read with interest Dr. Fletcher's contribution and thank her for appearing before the committee because it opens up an issue that needs to be debated. She referenced the College of Obstetricians and Gynaecologists in her paper and the threshold of the 24 weeks gestation. As she is aware, there was a case in the United States in which Amelia Taylor was born just short of 22 weeks gestation. In those extreme circumstances would that neonate have less legal protection if we introduce a definition along the lines she is talking about?

In that regard, at the other end of the scale and following on from the question Deputy Catherine Byrne asked, which is a valid question, Dr. Fletcher made the point that a person's ability to reflect on life over time and make their own moral choices. We all accept that but someone with Alzheimer's disease, for example, would fall into that category where they cannot reflect on their own life or make their own moral choices. How do we deal with the ethical issues that raises?

Ms Sunniva McDonagh
Share

I hope I have got all the questions. The first question was on the Mental Health Act. I do not hold a view as to precisely what should happen but I would like to point out that there are other safeguards in the Mental Health Act other than the ones I have mentioned. The Mental Health Commission is an independent statutory body and it advertises and recruits independent lawyers, lay people and psychiatrists to sit on its tribunals. It is also mandated to act in the best interests of the patient. Interestingly, there is a five year review clause for the mental health legislation also. Looking at this proposed legislation, when we come to the review panel, it is the Health Service Executive that licenses the hospital, yet the HSE is also the body tasked with setting up the review panel and a HSE employee acts as convenor of the panel and chooses the panel. It was the framers of the legislation who were looking to the mental health legislation as a template and if it is to be seen as a template, it might be an idea to take some of these further safeguards from the mental health legislation.

I agree with Deputy Byrne. I do not believe that this is a very complicated issue. One would hate to think that the intervention of lawyers and doctors was over-complicating what is essentially a very simple issue in which everybody in the State and the people who enacted the Constitution have a stake and a right to have a view on. It is finding the right balance between two competing constitutional rights and one would hate to think lawyers were trying to be obtuse when, ultimately, it comes down to simple value questions.

With regard to the section 19 offence, the terminology in the draft is very unclear because it mentions the intention of ending unborn life. Throughout the Bill there is an interchangeable use of the phrases "termination of pregnancy" and "medical procedures". There is a very important principle distinction between the two but they seem to be used interchangeably throughout the Bill as if they were the same thing. Many medical procedures, such as oncology and cardiac procedures, which are performed on a woman whose life is at risk, happily do not end up with the baby dying. The intention of these procedures is to save the mother and if the baby dies it is a regrettable consequence of the necessary treatment, but sometimes the baby does not die. Interestingly the Bill mentions having procedures in place to bring to the attention of the Minister the statistics on this area. It might be a good idea not only to collate statistics on terminations at risk of suicide, but also necessary medical treatment which did not end the life of the baby.

It is a little problematic because it seems clear when a woman states she is suicidal, the reason she is suicidal is apparently the existence of the pregnancy, and this is the proposed basis for intervention. Not to minimise the terrible distress of a woman who feels she cannot possibly bring a baby to term because it has a disability or because she suffers from serious social stressors and she feels she will kill herself, surely then let us not confuse terminology. When psychiatrists certify without perhaps having examined the patient, an obstetrician will be faced with the certificates and will see in front of him or her a woman who is physically all right and baby which is physically all right. The obstetrician will then be supposed to intervene to avert the risk, which he or she must do apparently by directly targeting the unborn. I cannot see how this could be described as other than a direct termination of pregnancy. It is suggested and proposed that if the ground is enacted it will certainly be the case that this will not be a criminal offence. This is true. This is the reality and the distinction which one must emphasise between treating the mother and the baby dying unfortunately, and intervening in this direct way.

Dr. Ruth Fletcher
Share

Many rich questions were asked and I thank committee members for them. I will address the points on the definition of the unborn. The question was asked as to how the proposed definition of "unborn" would deal with the idea that it applied to those foetuses which are born and survive for one second. Another issue was whether it includes dead embryos or foetuses in the womb.

At present we do not have legal precedents on the definition of the unborn where a lethal abnormality exists. We do not have a direct legal precedent on this particular issue. Because we do not have this direct legal precedent the Legislature has the ability to define "unborn" in a way which would address these problems which have arisen through acknowledging the suffering of women and couples who have had to travel, even though the pregnancies will not survive. The view has been put forward that "unborn" could apply to foetuses which have survived even for one day, but I advocate we do not accept this view and that we define the unborn in a way which excludes foetuses which do not have the capacity to survive. This is not to say these foetuses have no value; I do not argue this at all. I am just arguing no good will be achieved by forcing a woman to continue a pregnancy when the child will not survive.

With regard to the point on the current definition of the unborn being overly broad and not excluding even dead embryos or foetuses, it is interesting that the institute raised this issue. Obviously as a medical matter it is seen as excluded and comes under the category of miscarriage. This is what is happening in medical guidelines and practice at present. We need a tighter definition of the unborn to exclude this possibility. We also have an opportunity to have a definition of the unborn which deals with foetuses which would survive through pregnancy but would not survive for long after birth.

The second interesting set of questions raised were to do with arguments around full personhood and how we distinguish between the foetus as sentient life and the born patient stripped of consciousness because he or she was in a crash or is a patient with Alzheimer's disease. We are not stating that full personhood is all that counts; we are saying there are three different forms of human life which all impose values and status. I distinguish between the example of a person with Alzheimer's disease or the person in a crash and sentient foetal life in the womb because a person with Alzheimer's disease or a person who has been stripped of consciousness through an injury had been sentient with a conscience and a will but through accident or disease this capacity has been lost. Because such people had this full personhood status it is possible to distinguish them from an earlier foetus which has not yet attained these capacities. Its ability to attain these capacities is dependent on a pregnant woman getting it to the point of attaining them. There are ethical ways in which we can distinguish these cases. The ways in which they are similar are obviously that in all cases families and loved ones are concerned about the value of these forms of life. If they are sentient forms of life they are similar in this way and this can impose duties on us. I am just saying they are not the same order of duties as full personhood would impose.

The final point raised had to do with criminalisation. One of the big risks of criminalisation, or why we should not act disproportionately and punitively in implementing Article 40.3.3°, is because it will affect the most vulnerable. Young women who are avoiding using health care practice by ordering medical terminations over the Internet are a classic example. We would be effectively criminalising this behaviour and making the situation worse. This is not a good use of our law when we have the opportunity to do something more positive and progressive.

Dr. Ciaran Craven
Share

The questions asked by Senators Reilly, Byrne and Bacik relate to foetal abnormality and what the unborn is. I listened with interest to what Dr. Fletcher stated and it strikes me as quite a novel proposition that we can characterise life as having three different forms. Be this as it may, I am concerned about Senator Bacik's characterisation, and I am subject to correction on this, when she discussed the question of lethal foetal abnormality and whether it is something which ought to be protected. We must be very careful to note the mere fact a baby happens to have a lethal abnormality does not of itself mean it is wholly inconsistent with life. Generally it means it is inconsistent with prolonged life. It may well be a matter of minutes, hours, days or even months.

The committee should be careful not to consider lethal foetal abnormality as something that is incompatible with life outside the womb in the sense in which that is ordinarily understood.

There has been some discussion of what "unborn" means, as if it is an abstract verbal noun. Committee members will be aware that, when this is dealt with in Article 40.3.3° of the Constitution, the Irish expression is "beo gan breith", which literally means living without being born. Senator Bacik rightly referred to section 58 of the Civil Liability Act 1961. With respect, however, it does not refer to the unborn, but to the unborn child. This is not limited to our domestic legislation - it is found in European directives as well, including one referenced in my paper, the medical exposures directive. Article 10.2 of that directive refers to the duty to the mother and the "unborn child" in the context of ionising radiation involving the abdomen and the pelvis of a woman who is or may be pregnant. We must remind ourselves that we are discussing an unborn child, not an abstract verbal noun.

Deputy Catherine Byrne was right, in that one signs a consent form in good faith and expects doctors to act in good faith as well. We are entitled to rely on that expectation. My point, which I might be making somewhat inelegantly, is that good faith, while necessary, is not sufficient. I can treat someone in good faith and make a complete mess because I breach all appropriate standards of care and misunderstand what is wrong with the patient and how he or she should be treated. Good faith and proper professional practice are not interchangeable.

Reverting to Deputy Ó Caoláin's comments, my philosophical difficulty with this is that it adopts the good faith model, which is old-fashioned, regressive and potentially dangerous. Relying on the good faith of doctors in this day and age is no longer sufficient. Neither the Medical Council nor the courts believe it is sufficient.

I disagree with Senator Bacik's characterisation of the proposed legislation as something that does not change anything about the duty owed to the mother and her unborn baby. It does not recast the duty of care, but the appropriate standard. It regresses to an old-fashioned standard, one that was fashionable in the courts 30 to 60 years ago. From a patient safety point of view, it is no longer sustainable.

The point on review panels has been addressed by Ms McDonagh. That the Oireachtas vests so much trust in doctors to get it right all of the time when the natural history of health care in this jurisdiction indicates - not globally, but in certain high-profile instances - the contrary is perplexing. Doctors are good people, but they are not necessarily the ones who should have the final say in this regard. It is these questions of policy and the underlying principle that I commend to the committee.

Deputy Robert Dowds
Share

I have a question for Dr. Fletcher and Dr. Craven, although I thank everyone for attending. Do they believe in criminalising a woman who attempts an abortion on herself? If so, how far should it be pushed? In the case of an unstable pregnancy, a woman could end it simply by doing housework.

Senator Imelda Henry
Share

I am incensed by Dr. Craven's comments about the medical profession. It is not always possible to save a mother and her baby, but both my baby and I were saved. I would like Dr. Craven to withdraw his remarks about the medical profession. We trust our doctors. I am really unhappy with Dr. Craven's comments.

Deputy Catherine Byrne
Share

I wish to raise two issues.

Chairman
Share

Very briefly.

Deputy Catherine Byrne
Share

I am always brief. Dr. Craven referred to good faith. It may be a lay term and it may be old-fashioned, but I have relied on it for all my life, as have many ordinary people. It is in good faith that we trust daily - when we take a bus to work, when we cycle or when we put our names on lists for operations.

I thank Dr. Fletcher for her answer. I raised my point because my understanding was that a brain dead person's life ended when the life support machine was turned off. There is a difference between this and the case of someone with Alzheimer's disease or dementia, for example, my mother. She lived, walked around, breathed, ate and was able to wash without needing a life support machine. My impression, regardless of whether it is right, is that the machine is the mother's womb. Does Dr. Fletcher understand what I mean? This is the lay person's vision of the situation. These hearings are about understanding the situation in lay terms. I do not have the ethics, surgical knowledge or so on, but I have a lay person's thoughts on the matter. When people attend my office, I must reply to them in lay terms.

Chairman
Share

I assure the Deputy that she has the ethics.

Deputy Catherine Byrne
Share

I did not mean to say "ethics". I was looking for "expertise".

Chairman
Share

I invite Dr. Fletcher and Dr. Craven to reply to the questions from Deputies Dowds and Catherine Byrne. Senator Henry's question was directed to Dr. Craven.

Ms Sunniva McDonagh
Share

I do not believe any of those questions was directed to me.

Dr. Ruth Fletcher
Share

I agree that, in terms of the criminalisation of attempts, the category is too broad. This is a problem. I am against the criminalisation of attempts, as it would bring the law into dispute if behaviour intended to result in the destruction of unborn life was unsuccessful. It would be contradictory in its objectives. I hope that I have understood the Deputy's point correctly.

I may have cited two different examples together in a desire to answer several questions. In response to the point that Deputy Catherine Byrne is raising now regarding forms of life, brain dead life is a biological form of life sustained by a machine. There is value in the example in that sense.

Dr. Ciaran Craven
Share

Regarding Deputy Dowds's question, criminalising attempts raises serious practical issues in these circumstances. It is a policy matter as to whether it is in the public interest to pursue the issue. I do not differ particularly from Dr. Fletcher.

Regarding Senator Henry's point, I fear that I have been misunderstood. I was making a simple point that I may have put somewhat inelegantly. There are ethical imperatives in professional practice. There are legal imperatives that dovetail with them. There are objective standards. They are not questions of good faith. There have been episodes in which excessive reliance was placed on good faith and undue deference may have been paid to the profession. The point that I wished to make was a simple one and was from the perspective of 2013. The degree of deference one should have to the medical profession, I respectfully submit, should be tinged with a certain caution. This is why we have external regulatory bodies and oversight. Ms McDonagh has alluded to this issue in terms of the appointment of the psychiatrist, the convening authority, composition and funding of the committee and so on. Some kind of external oversight is necessary.

In so far as our hospitals are concerned, this is a generic point, as the standards are set externally by the Health Information and Quality Authority, HIQA. The standards promulgated by the professional bodies are evidence based, in so far as that is possible. The protection of the public safety, which is a question of assuring quality of care and ensuring that care is delivered safely, requires external oversight.

It seems to me this Bill does not necessarily give such oversight. That is the limit of the point I was seeking to make.

Chairman
Share

Does Senator Burke wish to speak? Very quickly, please.

Senator Colm Burke
Share

I refer to maternity care. It must be acknowledged we have one of the lowest perinatal mortality rates in Europe, which is a tribute to the medical profession. I would not like the wrong impression to be given out today.

Senator Ivana Bacik
Share

I wish to clarify-----

Chairman
Share

One sentence.

Senator Ivana Bacik
Share

Dr. Craven misunderstood the question I asked, namely, whether the definition of unborn, as currently constituted in head 1, included even the very sad situation where the foetus is no longer alive. I believe it does, which means that it would require women, even where they do not wish to do so, to carry to term a foetus that is not alive. That is my concern, and also that in head 19 we are criminalising those women and girls.

Chairman
Share

We will move to the non-members' time for which we have a total of 30 minutes. Seven Members have indicated. To explain, because there appears to be some confusion, in deciding the allocation of time the committee allocated a certain proportionality. I will take Senators Rónán Mullen, Fidelma Healy Eames and Paul Bradford, in that order.

Senator Rónán Mullen
Share

I have a couple of questions. Again, we have heard some very differing opinions about certain ethical and legal realities. In regard to the question of fatal foetal abnormality and those very tragic situations, I wonder whether that debate is not more appropriately categorised as part of a euthanasia debate. Defining the unborn by reference to any future personhood or life that he or she might have seems to miss the point of what the eighth amendment was about, namely, to recognise the right the unborn has in the present. It would seem to me immaterial what the future life of that child should be. It also seems that a dangerous approach is being advocated because there is such uncertainty here. When we talk about foetal abnormality, as Dr. Craven noted-----

Chairman
Share

Can we respect the speaker, please?

Senator Rónán Mullen
Share

How long a child with a so-called fatal foetal abnormality might survive after birth is unknown, in the extreme, if one thinks of conditions such as Edwards syndrome and others. As to whether there is an obligation to maintain a pregnancy where a child has actually died, frankly I find that very surprising and such would not be my understanding of the law. Perhaps others would care to comment.

Ms McDonagh spoke about medicalising a decision that is not medical. Is that a fundamental problem with the proposed legislation? Is it almost ethical bad faith? We are not talking about cases of mental health where I believe it has been well established to everybody's satisfaction that abortion is not a treatment for suicidal ideation. That would imply it is not a treatment for suicidal ideation that arises in a mental health difficulty. Is it Ms McDonagh's position, therefore, that psychiatrists are being drawn into a role that is not really a role for a doctor and that there is thereby a kind of ethical unsoundness at the heart of what this Bill presents?

Do any of the witnesses have a view on whether it is legally necessary to go this route in order to satisfy our obligations under the decision of the European Court of Human Rights in Strasbourg? Is there an alternative path? Part of the rhetoric around the Government's proposal has been that this action is necessary but we heard that disputed in earlier sessions today.

What is the view of the witnesses as to whether there should be a review? Is there a disproportionality about the fact that the refusal to certify a termination under head 4 is susceptible to a review at the request of the mother, while there appears to be no legitimate contradictor or possibility that somebody else might invoke a review, given the final and fatal consequences for the unborn in that case?

Senator Fidelma Healy Eames
Share

I believe I heard Dr. Craven correctly. He stated that a conscientious objection does not arise when there is evidence-based practice and a duty to both patients. What about the Supreme Court judgment in the X case which was not based on medical evidence or best practice? In Dr. Craven's view is this judgment ethical?

I agree with Dr. Fletcher that we have an ethical obligation to value women's lives. Is there an equal ethical obligation to value the life of the unborn? I am somewhat uncomfortable with Dr. Fletcher's recommendation No. 1, about the definition of the unborn. She said this should be defined in order to exclude those foetuses which have lethal abnormalities. Medical error is not uncommon and doctors frequently get things wrong. I met a mother recently who gave birth to twins. In the UK she had been advised to have a termination on the basis there was a strong likelihood the babies would be Siamese twins. They are now healthy eight year olds. In formulating her view, I wonder what research Dr. Fletcher has done and whether she has asked mothers and women who have carried babies that had lethal abnormalities what status they would have put on the unborn. I know many women are delighted to be pregnant, even though they may not give birth to a live baby, or a "take home" baby, as it is sometimes called.

My final question is for Ms McDonagh. Earlier I asked Mrs. Justice McGuinness about the introduction of time limits and she said we should have a go, in spite of the fact that it might be deemed unconstitutional. Would that be Ms McDonagh's view? Yesterday, for example, Dr. Peadar O'Grady, representing Doctors for Choice, suggested a limit of eight to nine weeks. If time limits are introduced would it follow that under head 4, after a prescribed time limit all unborn babies would be safe?

I beg the Chairman's indulgence for a final question to Ms McDonagh, to hear her legal wisdom. In the event of premature induced delivery, post viability, where the baby may be severely disabled, could the State be deemed liable, given it would be working against best practice under head 4?

Deputy Terence Flanagan
Share

I have a question for Dr. Fletcher. In regard to head 1, when does she believe a life becomes human and when does it acquire human rights? What rights does life acquire?

I refer to the panel and medical ethics. There are many genuine concerns in this Chamber and in the Oireachtas as we look around at other jurisdictions and as we see what has happened in the United Kingdom, where medical practitioners have flouted the law with some regularity by providing pre-signed abortion consent forms. From a medical ethics point of view should the proposed law be cognisant of the very real possibility that abortion safeguards will be flouted, especially by those who consider that such safeguards unfairly limit the expression of abortion rights?

I refer to head 12 which deals with the rights of conscience and conscientious objection. There was mention of the patient, and of doctors and midwives having a conscientious objection. Do institutions have a right to a conscientious objection, as endorsed by the Council of Europe? Is it the witnesses' opinion that point 3 in head 12 should be removed from the Bill or should it stay?

Deputy Liam Twomey
Share

I address this question to Dr. Craven. During the course of the past 40 years the legislative and ethical issues dealing with women's reproductive concerns have had a fairly messy history in this country, to put it mildly. We have struggled with issues such as who should be given the contraceptive pill and, in legislating for the morning-after pill, what the definition is of the unborn. We had the same concerns about when human life supposedly begins when legislating for the implantation of the Mirena coil. We still live in a country where there is no legislation governing either in vitro fertilisation or stem cell research. As Dr. Craven noted, we can order RU486, an abortifacient tablet, over the Internet, with no legislation intervening. The individuals who would be ordering such medications are the most vulnerable people of the cohort of women we are discussing. At very best, they see doctors and the wider administration of the Government, the churches, or whatever as adversarial, at worst they believe we are trying to criminalise them. As a member of the legal profession, does Dr. Craven agree that perhaps we should not have punitive legislation that would set down how many years a person should be imprisoned for if, for one reason or another, she was using this medication? That question is also addressed to Dr. Fletcher.

That question could also be addressed to Dr. Fletcher. There is a need to separate heads 2 and 4 because physical illness is much more subjective than mental concerns. I am a doctor and I understand the concerns about the enforcement of the Mental Health Act and its use as it stands.

In the course of these hearings I have had a fair idea of where everybody stood ideologically and if they were pro-choice or pro-life. I am a bit in the dark when it comes to the current witnesses, and none has been a member of an organisation that could be described as strongly pro-life or pro-choice. Is that correct?

Chairman
Share

We can come back to that. I apologise to Senator Bradford as I inadvertently missed him.

Senator Paul Bradford
Share

If this was a sitting of a medicines licensing board and if the witnesses before us with an ethics background were debating the registering of a particular drug for use and transmission to the general public, we would want to satisfy ourselves that it is safe, appropriate and useful. If we reviewed the drug on a trial basis over ten, 15 or 20 years - in a sense, like the X case - and it was the view not just of most people but of everybody that it was not suitable, I believe it would not be licensed.

With reference to head 4 - the rest of the legislation could be passed in a half day in the Oireachtas - there is the proposal of the concept that abortion is a suitable treatment for suicide, notwithstanding the fact that every presenter this week, last January and over the course of the debate has said the opposite. What is the response of witnesses to that? Is it ethical to put into law a treatment we know is not a treatment at all?

I thank Dr. Fletcher for the contribution and I very much appreciate where she is coming from philosophically on the topic. She mentioned what was described as a troubling mistrust of women with suicidal ideation. We have been asked by the Chairman not to use emotive language and I do not believe the problem to be the mistrust of women with suicidal ideation; we are proposing the possible mistreatment of women with suicidal ideation. Will the witness comment on that?

I concur with Senator Fidelma Healy Eames on the proposed new definitions of "personhood", the "unborn" and difficulties which may flow from that. It is somewhat cold to state people do not have a future as persons. It almost sounds Orwellian and it is frightening language. That is why some of us are so fearful of this legislation, as we are afraid of the scary thoughts it may bring us. That is why we must be careful.

I thank all the witnesses as they gave very interesting and worthwhile presentations. We can agree to disagree on some issues.

Deputy Billy Timmins
Share

I agree with the points mentioned about Ireland being a safe place for women based on mortality rates, as we allowed a different message to go out earlier in the year. I have a point that may have been covered earlier and one speaker can respond to it. If there is physical or mental incapacity, is there any role in the Bill for next of kin, such as parents, father, sister or brother if there is a requirement to act or not act? Is there a role for next of kin in the legislation?

Chairman
Share

I would appreciate if the next speaker, Deputy Mathews, could ask a question.

Deputy Peter Mathews
Share

My question will be a little different. I ask the witnesses and everybody else here when they decided to come into this world.

Chairman
Share

We are discussing the heads of the Bill.

Deputy Peter Mathews
Share

It is a point. The Chairman is really too quick off the mark. When did they first decide to become unborn? These are philosophical questions as this is a matter of texture, depth and profoundness. We are here specifically to try to determine clarity in the law and the Constitution with regard to two lives. With the new life, the question is when the life begins, and there is also the question of the host life, or that of the mother. We can argue for days, weeks and months and go into law in different jurisdictions. We have always gone to the English-speaking world but in France in 1975, tight legislation was introduced in this area. We mentioned earlier that in France girls, even those under 16 years old, can go to a general practitioner and have an abortion without the knowledge of parents. That is the reality. We must face up to the question.

The issue highlighted is head 4. The evidence from experts in psychiatry, obstetrics and gynaecology, ethics and law is that where there is no other treatment available for the threat or intent of suicide, there is a legal justification in the proposed Bill that the termination of the life of the unborn is legally allowable. That means the mother would have to have in her intentions the termination of that life. We would be accessories to the termination of a life in order that the host life can be saved when it is not the only possible treatment for that life.

Ms Sunniva McDonagh
Share

I thank the committee for inviting me to give some of my observations and I will briefly address some of the questions raised. Under the A, B and C v. Ireland case we must ensure our law is clear and accessible, and we are given a margin of appreciation. Ireland is one of the only countries I know with an explicit right in the Constitution giving a right to the unborn. Comparing us with other jurisdictions is not particularly helpful in that regard. We are entitled to ensure our law is clear and if this is about clarity, the suggestion that we should have a go at putting in certain time limits in our legislation must be the antithesis of clarity.

The question has arisen of the necessity to legislate now because there have been many years since the X case and we have maintained our excellent medical service. No other girl has come to court except for the girl in the C case, who I now understand regrets the course of action that her case took. It seems to be working well at the moment. With regard to the Supreme Court and the X case, the test now being proposed is supposedly a medical test but there is no evidence in the Supreme Court test and when it considered the issue, there was no idea of averting the right to suicide. We know it is a principle of Irish law that a point not argued is a point not decided but one needs to only look at how the Supreme Court has approached, for example, cases of historical sexual abuse, where insights gained from psychiatry and psychology as to why people do not come forward sooner, the nature of disclosure and the effects of abuse on complainants. In the case of SH v. Director of Public Prosecutions, there was acknowledgement of the insights brought to bear on the Court's thinking on advances in psychiatry and psychology.

Dr. Ruth Fletcher
Share

There were many issues raised so forgive me if I do not get to all the points.

In response to the question whether this legal definition of "unborn" accommodates the experiences of women who would like to continue their pregnancies, if we define the unborn in this way so as to exclude foetuses with lethal abnormalities, that in no way forces women who do not want to avail of a termination to have one. All we are doing would be to enable women with pregnancies that have lethal abnormalities to end those pregnancies. That has no consequence for women who do not want to take that route. I do not accept that there is a problem on that point.

I want to comment on the idea one of the Deputies raised that mental health is subjective. We have heard so much testimony on the way mental health is clinically assessed and how it is an objective condition that people live with. However, to describe mental ill health as something that is purely subjective completely fails to acknowledge the significance of it. It is also an objective condition. Physical conditions are subjective in the sense that people interpret those physical conditions; they mean different things to different patients. Both sets of illnesses have subjective and objective elements. Patients are able to express a view about that and their medical practitioners are able to help them in assessing it. I would not want to see us going down a route of devaluing either of those sets of experiences.

Dr. Ciaran Craven
Share

I thank the committee and the House for inviting me here today. It might be easier if I deal with the questions which have arisen in an omnibus manner. Ms McDonagh has already dealt with the question whether legislation is necessary. The State is allowed a fair margin of appreciation in terms of how it approaches this matter. It ought not to consider that it is wedded to legislation and that this is the only manner in which one may proceed. There are other legitimate options about which we may disagree.

Regarding the question of the X case and whether a conscientious objection might arise in those particular circumstances, even at the time of the X case it struck me that this was bad medicine. If it was not bad medicine then, it is bad medicine now. For one to feel oneself constrained in any sense or be put in a position where one would have to comply with that kind of situation now seems to me to be fundamentally untenable from an ethical perspective.

On the question of flouting of possible safeguards, the members do not need to hear from experts in ethics or law on that. They can engage in their own sociological review on that and that speaks for itself. The question on a licensing board, reviewing whether a certain drug treatment were appropriate in the circumstances, is a point well made and underscores what I have been attempting to say, which is that one should proceed only if one has decent evidence which makes it safe to proceed. That is why I characterise the approach that is being promoted by the Bill as not alone regressive but also potentially dangerous.

Deputy Timmins raised the question on whether there might be any lawful proxy decision makers in respect of issues which might arise. The Bill is silent on it, but that is not a criticism of this particular Bill but a criticism which one might apply across our legal order where there are gross deficiencies regarding the role of proxy decision makers and what one does when one has individuals who are incapacitated.

Senator Fidelma Healy Eames
Share

I would be grateful if Ms McDonagh might answer my second question, whether in the event of premature induced delivery which could lead to severe disablement of a child the State could be liable, given that under head 4 it was acting against best medical practice?

Deputy Liam Twomey
Share

I asked the question about disclosure. I am surprised nobody answered a "Yes" or "No" on it.

Ms Sunniva McDonagh
Share

I would have to think about that but I thought it would be a question more for the medical practitioners involved. They would be attached to a HSE hospital but it would be a medical procedure that may or may not be warranted. I would have to give some thought as to what would happen if one had a whole series of children who are delivered but unwanted by their mothers. It would be a very difficult decision. I would hope it would not happen.

Deputy Liam Twomey
Share

Is Ms McDonagh, or has she been, a member of any organisation-----

Ms Sunniva McDonagh
Share

No. I am in a tennis club-----

Chairman
Share

That is all right, that is good.

Deputy Liam Twomey
Share

I made it quite clear that I was not asking about Ms McDonagh's tennis club affiliations.

Chairman
Share

I am surprised Senator Mullen did not ask the question. He has been asking it all day.

Dr. Ruth Fletcher
Share

I am here on the basis of my research expertise and there have been moments when I have done some support work as an expert for Doctors for Choice, for example as a consultant regarding submissions to the European Court of Human Rights on the case of A, B and C v. Ireland. Those are normal. I have been involved.

Dr. Ciaran Craven
Share

The short answer to Senator Healy Eames's question on potential liability is "Yes", but the extent and limit of that liability remains to be seen. On disclosure, it is a matter of public record that for a period of time I was a member of the Pro Life Campaign. That association finished in 2002. It is also a matter of record that I appeared before the all-party Oireachtas committee on the Constitution in 2002 representing the Irish Episcopal Conference.

Chairman
Share

I thank Ms Sunniva McDonagh, Dr. Ruth Fletcher and Dr. Ciaran Craven for attending and giving of their valuable time and expertise today.

Sitting suspended at 5.25 p.m. and resumed at 6 p.m.

Members' Time and Closing Statements

Chairman
Share

This is the 12th session in our series of meetings on the heads of the protection of life during pregnancy Bill 2013. I remind everyone to switch off their mobile telephones. I will call the Minister of State at the Department of Health, Deputy Alex White, to be followed by contributions from Members, Senator Rónán Mullan on behalf of the non-Members of the committee and the Minister of State will close the session. Is that agreed? Agreed.

Minister of State at the Department of Health (Deputy Alex White)
Share

I am pleased to be here today at the closing session of these public hearings on the general scheme of the protection of life during pregnancy Bill 2013.

First, I wish to commend the Chairman, Deputy Jerry Buttimer, all the members of the committee, those Members of the Oireachtas who participated in these hearings, and all the invited guests for the balanced and respectful approach that we have witnessed over the past three days. Second, I have been following the hearings as closely as I could manage, and have noted that there is a high level of consensus on most of the provisions contained in the General Scheme. There are also, of course, diverging opinions on some of the provisions - both within and between the legal and medical professions represented before the committee.

I assure you Chairman, and the members of the committee, that we will examine these issues from a policy and legal perspective with a view, where possible, to improving the operation of the Bill. I am confident that all of the submissions, and the report that this committee will produce on its deliberations will greatly assist me, the Minister for Health, and officials in examining and refining the issues involved in the drafting of this Bill.

The aim of the Bill is to regulate access to lawful termination of pregnancy in accordance with the Supreme Court judgment in the X case and the A, B and C v. Ireland judgment of the European Court of Human Rights. The purpose of the legislation is to clarify in statute what is currently already lawful as a consequence of the judgement in the X case, and to set out clearly defined and specific circumstances in which this treatment may lawfully be provided.

I would like to address some of the issues that have been raised by contributors during the debate, to allay, if possible, some of the concerns involved. I am aware, for example, that there has been considerable debate about head 4 and the inclusion in the legislation of the risk of loss of life by way of suicide. The Supreme Court in the X case specifically recognised a risk to life arising from suicidal intent, which it referred to as a risk of self-destruction, as a legitimate basis for permitting termination of pregnancy - but only in circumstances where there was a real and substantial risk to the life of the mother, and where this risk could only be averted by the termination of her pregnancy.

Ireland, as a signatory to the European Convention on Human Rights, is under a legal obligation to implement the judgment of the European Court of Human Rights in A, B and C v. Ireland, and must put in place a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion in accordance with Article 40.3.3° of the Constitution as interpreted by the Supreme Court in the X case. The Bill has taken account of the fact that assessment of self-destruction is more subjective and, therefore, requires more safeguards to be put in place. It specifies that three doctors are required to form an opinion and jointly certify that a termination of pregnancy may take place if it is necessary to save the woman's life. This provision is made in the Bill in recognition of the clinical challenges associated with accurately assessing suicidal intent, and the absence of objective clinical markers. The legislation specifies that one of the doctors involved must be an obstetrician-gynaecologist and the other two must be psychiatrists. It also allows that it may be appropriate that the pregnant woman's GP is consulted during the process of assessment, where practicable.

I am also aware that the lack of a gestational time limit in the Bill has been raised, and that concerns have been expressed in respect of where a termination of pregnancy is deemed necessary, and the pregnancy has reached a stage of gestation at which the foetus is or may be viable. In such situations, it must be stressed that the wording of Article 40.3.3° and the judgment in the X case make it crystal clear that the life of the unborn must be protected and vindicated where practicable. This means that where a woman has a pregnancy that places her life at risk, and her foetus is or may be viable, she may have a right to have the pregnancy brought to an end but not a right to insist that the life of the foetus be deliberately ended.

In circumstances where the unborn may potentially be viable outside the womb, doctors must make all efforts to sustain its life after delivery in accordance with existing medical practice with early deliveries. In this regard, I note that this aspect was referred to at some length by a number of the obstetrics experts who appeared before the committee.

It should be noted, however, that this requirement does not go so far as to oblige a medical practitioner to disregard a real and substantial risk to the life of the woman on the basis that it will result in the death of the unborn. Essentially, the decision to be reached is not so much a balancing of the competing rights, rather it is a clinical assessment as to whether the mother's life, as distinct from her health, is threatened by a real and substantial risk that can only be averted by a termination of pregnancy.

Concerns were raised about ensuring that the monitoring systems provided for under head 11 would incorporate appropriate requirements to preserve the confidentiality of the patient and the certifying practitioners. The provisions with respect to monitoring have been included in the Bill because there is a need to keep records on the terminations carried out, and the medical reasons that gave rise to same. Information is also required to inform policy, as well as to ensure that the various statutory principles and requirements are being upheld. However, although the Bill provides for the collection of this data, it is not the intention that personal or identifying information will be published. I think it is clear in the explanatory notes to the Bill that it is not proposed that the Freedom of Information Act 1997 will apply to the records collected as part of the monitoring systems.

In closing, the main objective of the legislation, if I may reiterate again, is to clarify what is lawfully permissible 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 a termination may lawfully be carried out. As the committee will be aware, a very significant amount of work was involved in producing the heads of this legislation. More than 50 drafts were composed as we moved to produce what we believe to be balanced proposals that meet our obligations. Of course, as the committee is fully aware, the next phase is the drafting and publication of the Bill. Following publication the Bill will go through the Houses of the Oireachtas, where there will be further opportunity for parliamentary engagement and input. I look forward to working closely with colleagues in both Chambers as we consider the Bill.

I thank the Chairman, his officials and all of those who have participated in any way in these public hearings for the invaluable contribution they have made to this issue both now and at the public hearings in January, and for the assistance they have provided to me, the Minister for Health, and our officials in this work.

Deputy Billy Kelleher
Share

I welcome the Minister of State. We had the three days of hearings and preliminary discussions about legislation in January and there is no doubt they were beneficial in terms of Members being able to ask questions of experts. The Minister of State said he was following the debate closely and noted a high level of consensus. I can assure the Minister of State there was a high level of consensus in the areas where Members agree and where experts agree but there was a high level of non-consensual discussion as well in the sensitive area of head 4.

There is no point in discussing the broad issues without focusing on the fact that head 4 has proved contentious for this committee hearing. The Minister of State referred to it in his speech. The witnesses who presented also held varying views. There is no doubt that there is an obligation on us, as legislators, to deal with this particular issue. That is also my personal view and my party will discuss the matter when we read the final text of the Bill.

It has been propagated, to a certain extent, that there is never a risk to a woman on the issue of suicide. It was clearly stated by experts that there is and that it is a real risk at times. When we speak, we should be very conscious that we do not dismiss the real and substantial risk to the life of a woman in very rare and limited circumstances. It is still a risk and there is an onus on us to deal with the issue.

The Chairman has received praise from all around on his handling of the committee. The next phase is parliamentary input, and discussions will be held in the Houses of the Oireachtas as the legislation wends its way forward. One would need the wisdom of Solomon to address the entire matter. I hope that the Chairman will take on board the flavour that exists. People hold opposing views on the matter. I believe that many people are in the middle ground and want us to deal with the matter. We must find the consensus, wherever we can, to bring as many people as possible to the centre ground. Extreme and inflammatory language has been used by both sides but that does not encourage a broad debate.

The Chairman has pointed out that we are obligated to work within the parameters of Article 40.3.3° and the X case judgment. Regardless of whether people think that is restrictive, people should be mindful of the fact that we are obligated to deal with the issue within those parameters when we debate the final legislation.

I thank all the members for the discussion. As the Chairman said, the hearing has proved that divisive issues can be discussed when temperate language is used and there is understanding given to the views of others. One can have a calm, rational debate and tease out strong views while displaying respect and dignity. The debate also helped and highlighted that head 4 is an issue that is deeply rooted in people's view, either ethically, religiously, morally or otherwise. The Government should be conscious of that in the context of these hearings. I thank the Chairman and members for their company over the past three days.

Deputy Caoimhghín Ó Caoláin
Share

Go raibh maith agat. I thank all who participated over the past three days of hearings. I do not exaggerate when I say that this has been an intense and sometimes gruelling engagement. In particular, I commend the Chairman and members of the Oireachtas joint committee who very responsibly faced the task that was set. The process has been and will continue to be challenging for many of us. It has been a necessary engagement and, as described by one of the participants, an exercise in democracy.

The hearings have helped to tease out and clarify a number of issues related to the heads of the Bill. This has not been about trying to get some Members of the Oireachtas across the line, as portrayed by some sections of the media. The media's focus, and I mean no disrespect to any of them, on Oireachtas voices who hold strong rejectionist views of the Bill, many of whom are not members of the committee, has overshadowed the hard work and dedication of committee members from all parties. Real questions and deep concerns have been addressed here, and that is positive. No one should be surprised that consensus has not emerged among all of the medical and legal voices. Among them, as much as any section of society, there are diverse views on the question of abortion.

That said, I believe there is now a very widely held view, and I would say it is a majority view, in society that legislation along the lines set out in the heads of the Bill is not only necessary but long overdue. Implementation of the X case judgment and legislation in compliance with the A, B and C case judgment are required as soon as possible. We must safeguard the lives of women. We must provide legal clarity. We must ensure there are clear guidelines for clinicians. Some have argued that these conditions already exist. I would argue, and Sinn Féin has long argued, that is not the case and, hence, we need the legislation.

Much of the focus of these hearings, and public discussion generally, has been on the inclusion in the heads of the Bill of the threat to the woman's life through suicide. That is understandable. All aspects of that question have been thoroughly explored. Varying views have been given but the time for decision is approaching. While the anticipated incidence of its employment is thankfully very low, it is our view that it must remain in the Bill. It is a pity the suicide aspect has dominated discussion. It has tended to obscure the other vital and important elements of the Bill and other much more prevalent, commonplace and likely threats to the lives of women in pregnancy. Do the heads of the Bill go far enough to protect women in that regard? That is a question we must all, individually and collectively, address.

We must move on. The Government needs to publish the Bill. It needs to be progressed through the Oireachtas. Sinn Féin will assess the published Bill in light of its party policy and the questions, answers and issues raised during the hearings and in the wider debate. We will engage on each Stage of the Bill's passage. We are committed to ensuring the strongest possible protections are in place.

Deputy Seamus Healy
Share

I welcome the Minister of State, Deputy White, to the final session and thank Deputy Buttimer for chairing the committee. I thank all the various witnesses who presented over the past three days. I thank each and every member of the committee and other Members of the Oireachtas who contributed. I also thank the committee secretariat for its excellent work.

The process has been ongoing for quite some time. We have debated the issue on three occasions in the Dáil Chamber, two to discuss the Bills published by Deputy Clare Daly and one to discuss the Sinn Féin Private Members' motion. The committee held a hearing that lasted three days in January and we have had another three days now. With so much discussion and all of the presentations, it can be difficult to see the wood for the trees, to some extent. Therefore, it is important to restate the parameters within which the legislation is being brought forward. They are restrictive. Article 40.3.3° of the Constitution protects the life of the woman and the unborn. The X case concerns a real and substantial threat to the life as distinct from the health of the mother. In a situation where the threat to a woman's life can only be averted by termination, the woman will have the final say.

The past three days have been very helpful and necessary. We have heard varying degrees of views right across the spectrum, which are sincerely held views that were well thought out and put forward. The Minister and his Department will have to examine, give further consideration to and allow discussion on the many areas that have been highlighted, such as an appropriate location, the very significant criminal sanction in the Bill, the timeframe for review, consent regarding people who are under age, particularly children, monitoring of the Bill and various other areas that were highlighted over the course of the hearings.

These three days were helpful and necessary. I look forward to the completion of the committee's report and the presentation of that report to the Department, as the Chairman stated, by the 30th of this month, and the Minister publishing the Bill at an early date.

Deputy Ciara Conway
Share

I thank the Chairman for his chairing of the past couple of days and his direction on breathing exercises, which have been most useful for some Members from time to time. I thank the clerk to the committee and his team for their support in preparing the past couple of days.

Following on from what Deputy Seamus Healy spoke about, that there have been three Private Members' Bills on this issue and the committee held three days of hearings in January. I would go further and say there have been six successive Governments which have spoken about this and which have done nothing. I, for one, am glad to be a member of the Government that has decided to legislate for this issue and it is incumbent upon us to ensure that happens now because we have talked and talked about it. We now need to see the Bill published on this important issue for so many women and to see it pass through both Houses of the Oireachtas.

There is only one issue which I want to bring to the attention of the Minister of State, namely, head 19 on the criminalisation of women. We have heard, most interestingly, from psychiatrists on both sides of the argument who agree that this is a difficult area, that they do not want to see criminalised women who may purport to take medication that would be, in essence, a medical abortion. The head is drafted broadly. Today Mr. Callanan even spoke about the fact that it is drafted so broadly that it could be interpreted that somebody who is advocating for a pro-choice regime could be liable to criminal sanctions. That is something that should not be part of the heads of the Bill. I would ask the Minister of State to bring that back to the Department and the drafters and that we would refocus our energies around head 19, taking reference and looking at the Criminal Law (Suicide) Act 1993 which similarly imposes a penalty of 14 years but does not criminalise the person who attempts suicide. We could use this as a basis for us having similar sanctions for those in relation to abortion.

I thank everybody. I thank my colleagues and fellow members of the committee for their contributions over the past number of days. As they say, it has been emotional.

Senator Jillian van Turnhout
Share

The 2002 referendum was my first referendum vote. I worked in the private sector for 15 years and then headed up different children and youth NGOs, both in a voluntary and professional capacity. In these roles, I have always listened to the debate but I have never had to actively formulate a position. I am a little nervous now because this is the first time I am publicly stating how I feel on this issue.

The hearings we held, both in January and over the past three days, have given me an opportunity to form a definitive position. I want to begin by thanking all of the experts, both in January and over the past three days, for their informative and sometimes contradictory testimonies. All have been extremely useful. I thank my colleagues, the secretariat and, in particular, the Chairman, Deputy Buttimer.

I can now say in confidence that I support the Government's decision to legislate. These heads of the Bill only deal with difficult, rare and complex circumstances.

Of course, I would add some caveats. I am concerned about us separating out physical and mental health. In the wider public debate, it will be a step back for us. Therefore, I believe that heads 2 and 4 should be merged. I have not heard legal reasoning - obviously, I have heard contradictory reasoning - but from what I have taken, I do not believe that they should be distinguished. As noted by the expert group, differentiated treatment does not appear to be required for medical or practical reasons. Dr. McCarthy stated that suicide in pregnancy is a real risk; it does happen. There is no distinction in Article 40.3.3° and, therefore, to exclude it in these heads of the Bill would be to change the law. I do not believe that we should have any differentiated treatments.

I am concerned about the scope of head 19. It is extremely broad, in fact, too broad. It covers a wide range of activities, including and beyond those previously covered by sections 58 and 59 of the Offences Against the Person Act 1861. Some of the scope is unclear about what exactly is covered and the penalties are disproportionate.

I have concerns over the appeals process timelines and conscientious objection. We need a further discussion exploring this issue.

I am concerned about the silence in relation to children, specifically young girls. I believe we need specific legislation to address many of the issues raised over the past few days. I am troubled that we will compound the situation of voiceless children who are in the care of the State in this legislation. The hearings have also highlighted the importance of the assisted decision-making (capacity) Bill, which is urgently needed.

I found any association, actual or implied, between abortion in Europe and the Holocaust to be distasteful in the extreme. Besmirching the memory of millions of murdered Jews by turning them into a pawn in the abortion debate displays a woeful ignorance of the Holocaust and a woeful disrespect to the memory of the victims. Whatever one's opinion on the abortion issue and the debate between well-intentioned persons on both sides of the argument, there are no two sides of the Holocaust. I would respectfully encourage my colleagues to desist from making this highly offensive connection during the continuing debate. We must not allow the 6 million victims of a diabolical premeditated attempt to eradicate an entire people to be dragged into this abortion debate.

I was appointed by the Taoiseach, particularly in recognition of my work on children's rights. Advocacy on children's rights has not been an easy road to travel. Therefore, on this decision and in talking about child protection, I had to consider my position, but I stand here in confidence and I will continue to constructively engage with care, conviction and compassion.

Deputy Catherine Byrne
Share

I thank the Minister of State for making it clear this evening in his closing statement what these heads of Bill are about.

The time is right for this Bill. We have seen it over the past three days. It has been a privilege to be here. I have been proud to be in the Chamber with Members, those on the committee and those who are not.

I have been moved and touched by many statements that have been made. Most of all, I want to express how proud I am of the experts who have been here from all walks of life, whether doctors, medical experts, lawyers or whoever. It shows the considerable expertise in this country and the pride we should have in our systems, whether medical or legal.

Our role of the past three days was to listen and learn - that was my role anyway and I am sure it was that of the members of the committee as well - because we can only learn if we listen to each other. We learn wisdom, we learn understanding and, above all, we learn compassion.

As I stated, the heads of the Bill are about having compassion for those who find themselves in a very difficult place. Whether in the Dáil, in the community or at home, now and again, we all must have a bit of compassion.

My focus over the past few days was on saving women's lives as well as the life of the unborn. It was made very clear by doctors here that their job is to save lives, whether it is the mother or the unborn. That came across clearly to me.

On whether the heads of the Bill go too far or go far enough, one aspect that stood out which is not in the heads of the Bill was that foetal abnormality was raised on a number of occasions by many in the Chamber. Many of the calls I received have been about that issue. As to whether it deserves consideration at this time, I am not too sure.

The role of GPs, which was referred to by many Members here, is most important. The GP, for anybody, whether a mother, a father or a child, is the first port of call. We need to rely on the expertise of the GPs. In my view, that is honest and open.

I still believe in good faith. It is important in everyone's life to believe that when one puts one's life in the hands of someone else, they will look after one and do the best they can. That is what we do as committee members, as Members of the Dáil and as legislators; we do our best. We may not always be right but we do our best and, consequently, the people decide to elect us on good faith.

I found the arguments on both sides to be at times interesting, at times offensive but above all, genuine. I mean this with the greatest of respect. No one in this room, regardless of what side of the fence he or she is on, wishes to see people losing their children at any stage or time and there is general concern about the mother and the child. One must consider all these viewpoints because I know I have. As I stated, members have listened to the experts, including the masters of the maternity hospitals, and others. I believe that on a daily basis, they will be the people who will make the decisions. It will not be those who are sitting in this Chamber and nor will it be a piece of paper. However, it will be what actually is done when someone arrives into their accident and emergency units.

I was filled with great pride to see people appear before the joint commitment but above all, by Mrs. Justice Catherine McGuinness. She is a woman of wisdom and great presence who has done this country a huge service even through her presence here, which I greatly appreciate. I will finish by thanking the Chair. While it is difficult to chair any kind of meeting, it is especially difficult when there are widely differing views. However, I believe he handled this task with care. I also thank the Oireachtas staff and my other colleagues on the joint committee, as well as those who were not on the joint committee and those who have just arrived on the committee. They have all done a wonderful job, even though they sometimes took over my time. I also thank the witnesses, the people in the Visitors' Gallery, all the former Members of the Oireachtas who attended and especially, the people at home.

Senator Jim Walsh
Share

I will start by thanking the Chairman for accommodating me as a substitute member of the joint committee, for his engagement prior to the hearings with regard to people coming in and for his subsequent chairing of the joint committee, which was good. That said, the process was very rushed. While that was not the Chairman's fault, it was rushed both for members and for those presenting, as some of the latter have noted subsequently. Despite this, however, it has been quite productive.

The question all members will ask themselves is what they have learned from these hearings. Before the proceedings began, for example, members knew the A, B and C v. Ireland case in the European Court of Human Rights did not involve suicide. They learned that the circumstances of the C case were covered adequately by current medical practice on the treatment of cancer patients and this point was stated here emphatically. They also learned, which they probably knew, that the European Court of Human Rights required not legislation but clarity surrounding the treatment to which Miss C was entitled. They learned an interesting point today in respect of the X case, which is that where an argument in the Supreme Court or any court is conceded, it loses its evidential value and therefore, it only binds the parties in that particular case. This was the incontrovertible evidence presented to members today.

A number of those who presented today stated we are not required to legislate in this instance. I took particular note of the comments of the eminent former Supreme Court judge, Mrs. Justice McGuinness, who stated that over the past 21 years, Governments did not act unconstitutionally by not legislating. Members also learned, although they probably knew it from the previous hearings, that it is not possible to predict suicide. A British study demonstrated that it is only correct in 3% of cases, with 97% being false positives. Emphatically, members learned from all psychiatrists appearing before the joint committee, be they pro-choice or pro-life, that abortion is not a treatment for suicide. I believe that was a unanimous view.

Members did learn something that presents a challenge to the Government, namely, that where a woman presents with a crisis pregnancy and in distress seeking an abortion and is not mentally ill, she is entitled to refuse other treatments such as psychotherapy or home visits that might be offered to her. If she still refuses, she then will be entitled to a certification to allow her to have an abortion. Because of her distress, she will perceive her only solution to be a termination of the life of the baby. This presents a significant challenge and from what I have heard in recent days, I believe that what the Bill is most likely to deal with under head 4 are cases of suicidal intent not associated with mental illness. I believe, as stated by a number of witnesses, that both in law and in practice, this is a highly significant change from the current position.

Members also learned, which certainly has concerned me and I expect most members of the joint committee, the psychiatric profession is divided and more or less polarised on the issue. If, as has been suggested, pro-life psychiatrists do not participate or the selection process is skewed or both, my honest opinion is that Ireland will have a liberal abortion regime within a short period. As the debate progresses, I genuinely hope the Government will pay attention to and act on the evidence presented generously to the joint committee over the past three days by those who appeared before it. This did not happen on foot of the hearings last January and in this instance, I appeal to the Government to pay close attention to the points made, which summarise much of the evidence that came before members.

Deputy Mary Mitchell O'Connor
Share

I thank the Chair for the very good job he did over the past few days. I also say well done to his staff at the top table. The Chairman kept everyone under control and a very good exercise was conducted. I actually learned a lot over the past three days.

In his statement to the joint committee, the Minister of State stated, for the benefit of the public, "Of course as the committee is fully aware the next phase is the drafting and publication of the Bill". Can he provide a timescale of when that publication will take place? From the first page of his statement, I understand he intends to take into account the submissions that have been made during the past three days. Again, he should elaborate a little in order that people, including me, are assured these submissions will be taken into account.

Three areas really stood out for me. The first was the area in respect of children highlighted by Senator Jillian van Turnhout. Many questions have been asked about young girls in care in particular and on how precisely that cohort of people will be dealt with. I am sorry to bring it up but I have concerns in respect of head 19 and the reference to 14-year sentences. One thing I learned in the course of these meetings is that women are importing abortifacient drugs to have abortions. Were a girl or young minor to import some kind of drug, would such a person face criminal charges associated with that provision? I do not believe the issue of people importing such abortifacient drugs was really discussed.

The final issue pertains to the issue of conscientious objection, which was brought up today. I seek assurance that there will be a balance between what will be the law of the land and the conscientious objections of the medics. While I understand it fully, I also wish to ensure that a woman who enters the hospital will be assured of the best treatment. Dr. Simon Mills today brought up the provision that no institution, organisation or third party shall refuse to provide a lawful termination of pregnancy to a woman on grounds of conscientious objection. However, if, in respect of a board of management or whoever runs a hospital, this is not the case, how shall one ensure that this woman will get the treatment she expects?

Senator Ivana Bacik
Share

I thank the Chair for the impeccable way in which he has run the proceedings over the past three days. I also thank the clerk and the secretariat for running the proceedings so well. I feel privileged to have taken part and to have been enabled to take part as a substitute member, that is, as someone who has just come to the committee.

I welcome the Minister of State and thank him for his clarity in addressing some of the issues that have arisen over the past three days. All members are mindful of his comments that they are scrutinising the heads of the Bill to ascertain in what way they can improve the operation of the Bill, bearing in mind their obligation as legislators to ensure an effective and accessible procedure is available for women who seek to access the lawful abortions to which they are entitled where their right to life is threatened by the continuance of a pregnancy.

Like Deputy Conway, I am very proud to be a Labour Party Senator and to be part of a Government that is at last facing up to its responsibilities as legislators in this regard. There has been a compelling need to legislate for the past 21 years, made more stark by the A, B and C judgment in December 2010.

I have a fundamental objection to the wording of Article 40.3.3°, the eighth amendment. Like Mrs. Justice McGuinness, I believe it would be preferable if abortion could be dealt with outside of the constitutional framework altogether, through legislation, but I accept that Article 40.3.3° is the law of the land, as interpreted by the Supreme Court and as upheld by the people in 1992 and 2002. Within that framework the Bill represents a reasonable if conservative attempt to ensure we have an accessible and effective procedure in place for women to access their constitutional rights.

In engaging constructively with the Bill, it has been very useful to hear the comments of the legal and medical experts we have heard in the past three days who have identified specific issues, to which other members have referred, where the operation of the Bill could be improved. I refer in particular to the definition of “appropriate location”, which should be reviewed to cover generally approved hospitals. The definition of “unborn” in head 1 was also raised. The merging of heads 2 and 4 was raised by many of the professional bodies. The requirement that psychiatrists have to be attached to particular institutions in head 4(1)(b) was a concern, in particular of the psychiatrists in the College of Psychiatrists of Ireland, on the basis that it was unduly restrictive and that too few psychiatrists would be able to fulfil the condition. Others pointed out in heads 6, 7 and 8 that the timeframe is too long and it should be shorter, for example, 72 hours for each stage of the review procedure to ensure it is accessible. In head 12 there is a need to ensure a woman has access in a timely manner to another doctor where a doctor exercises his or her right to conscientious objection.

Other speakers referred to head 19. Three specific problems arise with the head as currently drafted. First, the language is too broad. The framing of the offence is too broad. Second, the penalty is too onerous and, third, we must look carefully at whether we need to criminalise the woman - or in most cases the young girl - who might be at risk of prosecution under the provision. Dr. Ruth Fletcher’s submission was particularly useful in that regard.

Senator Colm Burke
Share

Thank you, Chairman, for the way you have managed the public hearings. They have been extremely well organised and conducted. I thank you and the staff for the work done. I welcome the Minister of State, Deputy Alex White, and thank him for his contribution this evening.

I came to the hearings with reservations concerning two issues. I felt we had not done all of our homework on the heads of the Bill. The same two issues emerged as being of general concern. The first was head 4 and how the decision is arrived at by the two psychiatrists and the obstetrician making the decision. The proposals from the Medical Council and the College of Psychiatrists of Ireland should be taken on board. It is interesting to see that they are both coming out with the same view. The heads of the Bill do not adequately deal with cases where an expectant mother is under 18 years of age. The issue must be examined carefully.

It is interesting that it is our role to be legislators and that it is not the role of the courts. It is important to remind ourselves again of the words used by Mr. Justice McCarthy on page 82 of the judgment in the X case: "The failure by the Legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable." That comment was made on 5 March 1992, more than 21 years ago, yet nothing has changed in the intervening period. We have a role to play as legislators and that is what we have done over the past three days. We have examined all of the angles on the preparation of the legislation we so urgently need to deal with the issue, and also to provide clarity to those who work in the medical profession.

I pay tribute to all of the experts who came before the committee, who gave of their time and who also put a lot of work into preparing the submissions. No one came before us without having carried out a detailed examination of what they had to say. They spent a long period putting their submissions together. No matter what angle they took – even if I disagreed with their views – everyone who came before the committee was extremely constructive.

On the completion of the hearings it is important to say to those in the medical profession that we are fortunate to have the lowest perinatal mortality rate in Europe. We should never forget that. It is the reason we must put supporting legislation in place to give clarity to those who provide the service on a daily basis, regardless of the time of the day or night they are required to provide the service. I thank the leaders of all of the groups for their constructive contributions throughout the three days.

Senator John Crown
Share

I welcome the Minister of State, Deputy Alex White. I also pay tribute to your job, Chairman. There is a phrase in academic medicine that sometimes trying to chair meetings of academic doctors is like herding cats. The hearings were a bit like trying to herd cats when they had been taking crystal meth and possibly had rabies.

Chairman
Share

We should be temperate with our language.

Senator John Crown
Share

I am very sorry. I regret any offence to the cat community for the latter remark of drawing an analogy between cats and Irish parliamentarians.

There can truly be few situations where the will of the people and the voice of the Constitution have spoken as clearly as they have on the narrowly defined necessity for abortion in very narrow circumstances, ones which entirely relate to the life of the mother, the termination of which life would also by necessity result in the termination of the life of the child. People who are pro-life need to understand what the Bill is about. It is about saving life; it is not about ending life. Those who allege that they have a superior pro-life position to others in that the position of those who support the Bill is somehow less purely pro-life than theirs are working on an assumption which has been tacit, and in some cases explicit in recent days, that a large number of citizens are plotting in advance to game the law, to cheat, to lie and to collude in the death of an unborn child for some secondary gain other than their own health. There is no other way to cut this up. That is the only interpretation that can be put on the suggestion by some that somehow the Bill will give wide access to abortion. I just do not think it is true. We must follow the Constitution.

We all have positions on abortion. It will surprise many of those present to know that I was the recipient of a scathing editorial by Doctors for Choice Ireland who pointed out that I was an anti-choice person. I have to say I am; if choice means having the right to choose to kill someone else, I am anti-choice. I do not support that right. I have a very nuanced position on abortion, which is one that would not make people on either side of this House particularly happy, but it is irrelevant today, as are the considerations of evidence-based psychiatry. We are here to defend the Constitution and in this regard let me remind the committee of the Garda oath:

I will faithfully discharge the duties of a member of the Garda Síochána with fairness, integrity, regard for human rights, diligence and impartiality, upholding the Constitution and the laws and according equal respect to all people.

We have the privilege of sitting in these Chambers without having to swear such an oath and not having to declare our loyalty to the Constitution, something which I hope will be fixed. That is all we are doing today; one Supreme Court verdict, Article 34.4.6° – the decision of the Supreme Court shall in all cases be final and definitive. It is not a case of ignoring it if we do not like it or think it is flawed. There is stuff in the Constitution I do not like but I will live by it and if I want to agitate to change it within the law, I will do it.

It is regrettable that the Minister, the CEO and the-----

Chairman
Share

Senator Crown’s time is up.

Senator John Crown
Share

I am very sorry. I will finish on this point. It is regrettable that the Minister, the CEO and the chief medical officer have not been able to be present for the three days of hearings. They were present for the first session. The Minister left and we were under the impression that the CEO and the CMO of the Department of Health would be present, but they were not. I cancelled an international cancer meeting – not just my attendance but the meeting itself – of international speakers coming to this country. I cancelled clinics and got colleagues to cover ward rounds. It is regrettable we did not have a higher level ministerial presence.

Chairman
Share

I thank Senator Crown. He is way over time. He will find that Members of the Houses of the Oireachtas cancelled clinics as well. I call Senator Healy Eames to speak on behalf of the non-members of the committee and then I will take the final two speakers. In fairness, she has been present since the commencement of proceedings. She has four minutes.

Senator Fidelma Healy Eames
Share

This has been a most insightful opportunity to listen and to learn.

I start by thanking the Chairman and staff of the House, and especially the expert witnesses that came before us. We can stand proud in this country to have such fine people serving the people and our patients.

It is important we say that but my key remarks will be addressed to the Minister of State. I represent non-members; we are a disparate group from all parties and both genders. We want to see the key learnings and findings from these three days taken on board and integrated into the drafting of the legislation. Regrettably, we did not see the key learnings from January built into the heads of the Bill - that would be acknowledged by some of the members of the committee - even though they were recommended.

We are linked by our underpinning concern, namely, compassion for both the pregnant woman and the children. We are coming from the two-patient principle. We believe if the Government does one thing, if it acts on the best medical practice available, it will achieve the right outcome for both. If I have learned one thing in the last few days, it is that not acting on best medical practice will lead to serious problems and will be unsafe. We have learned today that it will lead to ethical considerations that the Supreme Court judgment has been deemed not ethical and can leave the State open to liability, as was confirmed today by Dr. Craven. This is a serious issue. We also learned that we are not obliged, although it is the wish of the Government, to legislate for the X case since it is not based on best medical practice and that is our duty as legislators. I am making a call, therefore, to the Government and the Taoiseach to seriously reconsider meeting the clarity required by the European Court of Human Rights while not legislating for X.

We are also concerned about term limits and I share the concerns of many about the criminalisation of women who have been in a dark and vulnerable place. It is too stringent.

Finally, I acknowledge those women who have had abortions, the women who have been hurt by abortion in particular, who did their best to come before the committee. In their absence, I acknowledge them.

Senator Imelda Henry
Share

I welcome the Minister of State to the House and thank the Chairman for the way he has chaired the hearings in such a calm and fair manner. I also thank all the witnesses that came before the committee, members, non-members and the staff.

We heard many expert witnesses in their professional capacities, with conflicting views, and at times personal views. The debate became intense at times and I have the utmost respect for people and their views. For me this debate is about women, pregnant women. The reality is no one knows more about pregnancy than women themselves. I do not want to insult any of my male colleagues and I know men play their part but they do not become pregnant. I agree with Deputy Catherine Byrne that there were times I found the debate here offensive.

As a woman, a mother and the mother of a teenager, I support this legislation for the X case. I know personally it is not always possible to save both mother and baby. I believe we must protect our doctors in the rare event that the mother's life is at risk and a termination is required. Where a woman with serious heart disease is pregnant and needs a termination to save her life, I would like to think she could have the termination in this country and would be able to avoid the distress of travelling.

As I asked in January, what about the parents who have a 14 year old daughter who was raped and made pregnant and may be suicidal? Parents along with that daughter must make a decision. I know not all but most parents would do one thing. I have concerns for children in care who are in that position and that position must be clarified.

There must be some changes to the Bill and I look forward to further debate as the Bill goes through the Houses. I am proud to be part of the Fine Gael parliamentary party and I am proud of the Taoiseach, the Minister for Health and the Government for bringing forward this Bill to protect women in the future during pregnancy and for saving lives, not killing babies, saving women's lives.

Deputy Regina Doherty
Share

I thank the Chairman for his professionalism during the last three days and the entire team for the way the hearings have been carried out. It has been a pleasure to be here. To have had access to the level of expertise we have had for the last three days has been humbling for someone like me. To hear their opinions, expert and personal, has been hugely informative and I have been struck by the things I have learned in the last three days that I have not considered before.

I never thought I would be an expert in anything but I have decided I am an expert, I am expert on me. I am a woman who has been pregnant five times and I have four truly great children. I do not want there to be any legal doubt whatsoever for any of the doctors who made a presentation before us, or any of the wonderful people who deliver babies in this country and provide medical treatment to women, or any legal doubt, pause or cause for concern in how they would offer treatment because of a lack of clarity in the law. On that basis, I am very pleased we will bring clarity to the law.

On the suicidality element of the legislation, I have thought about this long and hard, particularly thinking of my own children, and such an awful thing happening to anyone I care about deeply as happened to the young girl in the X case. I have come full circle and decided I would want clarity not just in the assessment of eligibility but in the speed and swiftness of the action if anything like that ever happened to someone I love.

I am glad that the last three days have provided clarity for many people, not just in these Houses, but in the wider population. I am proud to have been part of this process and I urge speed in enacting this legislation before the summer recess.

Deputy Denis Naughten
Share

What has been learned in the last three days must be incorporated into the Bill when it is published. Many issues have been raised on elements of the Bill and it is clear there are many areas where it must be strengthened.

There is no doubt that the one contentious issue is that of head 4 and suicide. Over the last three days of hearings, we have spoken in abstract on the issue of suicide and mental health but the reality is that suicide occurs in this society on a daily basis. The real issue of mental health and suicide should be a focus, with the necessary resources made available.

All of the expert witnesses who appeared before the joint committee on Friday and Monday referred to the need to provide adequate resources for maternity services. Investment is needed both in this area and in the provision of perinatal and psychiatric support for women who are pregnant. The concerns that have been raised in these hearings need to be addressed in the legislation. I hope that the one outcome of these proceedings will be that the Department of Health and the Oireachtas address the need to provide adequate resources to support women in pregnancy, irrespective of the decisions they or their clinicians must make.

Deputy Alex White
Share

I thank all Members for their contributions in the past three days, specifically during the closing session of this extremely important process of pre-legislative scrutiny of the heads of the Bill, for which I have the privilege of being present. I thank the main speakers of the main Opposition parties for their initial contributions, in particular Deputy Billy Kelleher for his extremely helpful insights.

When I stated my belief that there was a large measure of agreement throughout the three days of hearings, I was not oblivious to the considerable discussion that had taken place on head 4. I was simply pointing out that I believed there was a reasonable measure of agreement, a conclusion I reached primarily on the basis of the relative silence on many aspects of the heads of the Bill.

While I accept that Senator Walsh would have preferred the debate to have lasted longer, three days of discussion would be considered reasonably lengthy in anybody's book. I am sure all the concerns people have about aspects of the heads of the Bill were given some airing during the course of the hearings. From my observation of the deliberations, I share Deputy Kelleher's view that head 4 is the area of greatest concern. This was evident in the discussion.

Deputy Ó Caoláin is correct that the hearings were a very useful exercise in democracy. I was a Member of the Seanad, the House which normally sits in this Chamber, before my election to the Dáil and appointment as Minister of State. Parliamentarians on all sides may sometimes wish to have an opportunity for greater scrutiny of legislation. The scrutiny of the legislation before us has provided important insights which will be extremely helpful to the Government. Irrespective of which side of the argument one is on, all of us will agree that this has been an extremely positive exercise from the point of view of public elucidation, elaboration and questioning of issues.

Deputy Catherine Byrne stated she was proud to have been involved in this process and noted the level of expertise that was made available to the committee. Her point is well made. We should be thankful that such a high level of expertise is available to us and independent experts are willing to come before the committee, give evidence and subject themselves to what is essentially a cross-examination by Members.

I thank Deputy Seamus Healy for his contribution. The Deputy commented on a number of specific aspects of the heads of the Bill that he and others wish to have addressed in the period ahead. He referred, for example, to the definition of the term "appropriate location" and alluded to the stringency and extent of the criminal sanction provided, the periods to be allowed for review and the issues of consent and monitoring. I emphasise that all issues raised by Deputies and Senators in the course of the debates will be considered. I want to give people the comfort, respect, courtesy and assurance that everything that has been raised here will be considered and addressed in the preparation and publication of the Bill.

Deputy Ciara Conway made a fair point that, at least on one view, society, the country and Parliament are somewhat overdue in addressing this issue. Those of us who argued in the past that it was taking too long to address this issue can now cease doing so. Let us get on with the process that is required. While I agree with the tenor of the Deputy's remarks, I am glad, as she is, to be part of a deliberative process that is finally bringing forward legislation. I also accept the point made by Deputy Conway, Senator Bacik and others in respect of head 19 that the offence or restated offences has been cast, at least in one view, in relatively broad terms. We will consider this matter. The chief medical officer, Dr. Holohan, also made this point on the first day of the committee's hearings.

I thank Senator van Turnhout for her most insightful contribution. She and others raised a concern about the differential treatment of a risk to life based on physical risk as opposed to a risk to life from suicide. As colleagues will be aware, the expert group addressed this issue. The language that has been used and is reflected in the Bill comes at least to some extent from the expert group report, which stated the following:

Finally, the role of the psychiatrist is key where a termination of pregnancy is prescribed as appropriate treatment in case of suicidal ideation/intent. There are recognised clinical challenges in correctly diagnosing expressed suicide intent, for instance, the absence of recognised clinical markers.

The issue was, therefore, addressed by the expert group. I thank the members of the expert group, including Mr. Justice Ryan. While I accept there has been some debate about the group, on any reading, its report is a rigorous treatment of the issue which provides an extremely helpful background and foundation for the work we are doing.

I listened to the comments of Senator van Turnhout and others on penalties, sanctions and appeal times. On the two periods of seven days provided for in the heads, it is important to emphasise that these periods are maxima as opposed to prescribed periods. If the persons who are to consider the review have been empanelled within two or three days, the clock stops and the second seven days within which they must make their determination begins. The periods are maxima which arise from genuine concern in respect of the practicality and pragmatic requirements of bringing together professionals in the field in one place to do this work. The periods were set down as a result of a practical consideration and have certainly not been born of any other motivation.

I appreciated Deputy Catherine Byrne's comment that the time was right for the Bill. She and other speakers also raised the issue of foetal abnormalities. I believe it would be fair to describe her view as one of regret that it has not been possible to address this issue in the legislation. It is regrettable that this is the case. The issue may be revisited either by the Houses or the people at some future time. If I may express a view, I would support such a course of action although it is not something that can be addressed in the context of this legislation.

Senator Jim Walsh makes a reasonable point, albeit one with which I do not agree, in asking what was the requirement of the European Court of Human Rights. The decision in the A, B and C v. Ireland case required clarity, as the Senator acknowledged. The Government decided that the best way to ensure this clarity was by means of primary legislation to be followed by regulations. The Oireachtas makes the law and it is necessary to provide clarity to medical professionals.

It seems to me, if I may say so, entirely appropriate that legal clarity should be provided in laws passed by the Houses of Parliament. That is where it should be done. It is the decision of the Government that it should be done and we will respectfully introduce legislation in these Houses in the hope of winning the support of a majority for its passage. That is what the Government has decided and intends to do.

Senator Walsh posited a scenario - I hope I am not misrepresenting him but rather paraphrasing what he said - where a woman might present in a stressful situation, refuse treatment on offer to her and go on to seek and obtain certification for a termination, in accordance with the provisions of the Bill. This can only occur where there is a real and substantial risk to her life that can only be averted by a termination. We have to keep reminding ourselves of what is provided for here. It can only occur in circumstances where there is a real and substantial risk to her life which can only be averted by a termination. It is worth pausing and reflecting on the nature of that test, which is a very onerous one in my view.

There has been much debate between members of the medical profession, particularly the psychiatrists, echoed throughout these hearings, on the question of abortion never being a treatment for suicide or suicidality. I will not revisit this issue now except to repeat what Dr. Holohan said on Friday because his comments put the issue in the clearest terms. He said that we simply cannot say the circumstance of a real and substantial risk to a woman's life could never occur as a consequence of suicidal ideation. I agree with Dr. Holohan on this point. We simply cannot make the assertion that it would never occur, that a real and substantial risk to a woman's life could never occur as a consequence of suicidal ideation. I do not think anybody could make that statement.

Chairman
Share

The Deputy has spoken for 11 minutes.

Deputy Alex White
Share

Really? How much time was I allotted?

Chairman
Share

Five minutes.

Deputy Alex White
Share

I did not realise I was only given five minutes. I am sorry, Chairman.

(Interruptions).

Senator Rónán Mullen
Share

That is very unfair on the rest of us.

Chairman
Share

To be fair, there was no time limit.

Deputy Alex White
Share

I did not think there was a limit and I wanted to mention everybody who spoke.

(Interruptions).

Senator Rónán Mullen
Share

Had I known there was that much time available I would have insisted on having another word myself.

(Interruptions).

Deputy Billy Kelleher
Share

Deputy White is the most impressive witness so far.

Chairman
Share

He is not a witness.

Deputy Alex White
Share

Deputy Mitchell O'Connor urged me and the Government to make sure that all of the submissions were taken into account and I assure her that they will be. All submissions will be carefully considered and taken into account. She also raised the issue of the breadth of head 19 and expressed concern about the importation of abortifacients. All of those issues and concerns will be addressed. The Deputy also raised the issue of conscientious objection. She spoke about the fact that conscientious objection can be invoked by a practitioner but not by an institution. That is very important. An institution cannot invoke the protection of conscientious objection. Only an individual can do that. There is a further provision in the draft legislation that where an individual practitioner invokes conscientious objection, steps must be taken to ensure that the care is given, nevertheless, by a colleague or someone other than the person exercising that objection.

Senator Bacik asked that we look again at a number of specific issues. She raised the "appropriate location" question and I understand her point in that regard. I also understand her point about the requirement for a psychiatrist to be attached to a particular institution. Indeed, I would make the same point to her in respect of the time limit. These are maxima but still, I take the point that she raises.

I thank Senator Burke for his contribution and his reflections on head 4, particularly his concentration on the issue of minors. He raised particular concerns in this regard in the course of these hearings, as did others, and those concerns will be addressed. I agree with Senator Crown's ringing invocation of the Constitution and the importance of the Constitution as the foundation of our laws. I absolutely agree with him in that regard.

I am sorry if the impression was given that the Minister, the chief medical officer or the Secretary General of the Department would be present throughout the course of these hearings. It was never my understanding that it would be so. There was no discourtesy intended to the committee.

Chairman
Share

That was not communicated to members of the committee either, to be fair.

Deputy Alex White
Share

I know, from speaking to the chief medical officer and the Secretary General, that serious attention is being paid to what is happening here. The proceedings are being monitored and will be considered carefully.

Senator Healy Eames asked us to take on board key learnings and best medical practice. I say again, at the risk of repetition, that everything that has been said here will be considered. I must say, however, that the Government will introduce this legislation to the Houses. The Government will do that. The Government will introduce this legislation and it will certainly be based, in large part, on what has been before this committee in recent days, namely, the heads of the Bill. There is always scope for addressing technical questions, amendments arising from technical issues that have been raised, drafting issues that have been raised and so forth. Sometimes unintended consequences emerge in the course of debates and these issues can be addressed too. That is why these deliberations were so useful because they will help us to improve the Bill as we go forward, but a Bill there will be. A Bill there will be, I must say that.

(Interruptions).

Chairman
Share

One speaker, please.

Deputy Alex White
Share

I was asked about the timing and I wish I could give the committee a precise date for the publication of the Bill but, regrettably, I cannot do so. However, it remains the clear intention of the Government that this legislation will be enacted, subject to the agreement of the Houses, by the summer recess, which is the end of July. We are getting pretty close to that in terms of parliamentary schedules and so on. If members work back from the end of July, they will see that it will be necessary to publish the Bill in the coming weeks.

Senator Henry is absolutely right and I agree that this debate is about women's lives. While public and parliamentary deliberations are not confined to one gender, the Senator is right when she says that this is about women, their rights and their lives. I agree with her on that. I thank Deputy Regina Doherty for her contribution on the necessity to bring clarity, which is what we are doing with this legislation. I understand the points made by Deputy Naughten and heard his contributions over the course the three-day hearings. He referred to head 4 and expressed concern about some of the issues that arise there.

I thank the Chairman, the committee secretariat, the members of the committee and all of the Members of the Oireachtas who took part in this debate. It is important that they did so. The Government has introduced a very useful pre-legislative scrutiny process, not just in regard to this Bill but others too. I thank everyone for their contributions and look forward to further co-operation and close work on this Bill, which will be required over the coming weeks.

Chairman
Share

As Chairman of the committee, I have probably spoken the least in the last few days. We have had almost 30 hours of hearings, 40 expert witnesses appeared before us and on average, between 18 and 20 Members of the Oireachtas have participated in the discussion on the heads of the protection of life during pregnancy Bill. I wish to address my remarks to two audiences, if I may. First, to the people who are watching and listening at home, whether on Twitter, journal.ie or the Oireachtas website, what we have been doing over the course of three days is discussing the draft heads of a Bill. This is a draft document which sets out the objectives and the main provisions of that proposed Bill. It provides a framework, but not the detail. It is not the final Bill, as the Minister of State has said. It is not the new law but rather a preliminary document which is to be used to facilitate discussion and consideration before producing the Bill. It is part of a pre-legislative consultative process. I am very heartened by the number of people who have listened to and followed this debate through a variety of media and I wish to thank them for that.

In reforming the Houses of the Oireachtas, this Government has referred heads of Bills to committee. Indeed, this is not the first time our committee has considered a Bill on this basis.

It is and can be seen to be a democratisation of the legislative process, allowing stakeholders, us as members, and other experts and outsiders to have a real input into the preparation of proposed legislation. The entire purpose of this pre-legislative consultative process has been, I hope, to facilitate further consideration of the drafting of the Bill, which will ultimately be presented to the Oireachtas.

At the request of Government, this committee agreed to hold a series of hearings to examine the heads of the protection of life during pregnancy Bill. In carrying out this task the committee decided, as a group, to concentrate on the legal and medical issues which arise from the outline document. In doing this we have been greatly assisted by many experts who have voluntarily given of their time so that they could share their knowledge, experience and views.

Our expert witnesses have highlighted many issues, some which need further consideration, others which will require further clarification and more that are viewed as positive contributions to the law in this difficult and sensitive area. I know that all of the contributions made at our hearings and the detail obtained during questioning will be of valuable assistance when the committee is preparing its report for Government.

Our three days of hearings have been another example of how our Parliament can function. Members of the Oireachtas are capable of holding detailed hearings on sensitive social and political matters. Members of both Houses are capable of doing so in a way that is respectful and tolerant. In particular I hope that this has helped to portray the constructive way the Houses of the Oireachtas operate, especially at committee level.

I pay tribute to all Members and expert witnesses who have contributed over the past three days. The way they have conducted themselves, being considerate and respectful, has allowed the committee to do its work. This approach has allowed Members to gather information, to ask questions, and to probe on particular issues in the absence of tension or unnecessary and unhelpful rancour. I thank all those who appeared before the committee for their time and very helpful contributions. It really is appreciated by me and all members, and we are genuinely grateful for their assistance.

I thank my colleagues in the Oireachtas, who are not members of the Joint Committee on Health and Children, for the way they have all discussed the issues and raised their own concerns. Their contributions have been appreciated by their colleagues who are members of the committee. In particular I thank Senators Mullen and Walsh for their assistance in the lead up to the committee meetings and in helping to organise our hearings. I say that most genuinely to them.

I thank my colleagues on the Oireachtas Joint Committee on Health and Children for their dedication and commitment over the past three days. Also, I appreciate the role they have played in the lead up to these hearings. The way these hearings have been conducted reflects the professional approach which is consistently demonstrated at all of our committee meetings.

I hope we have also shown that different political parties and groups can constructively work together. I thank Deputies Kelleher, Ó Caoláin and Conway - Vice Chairman of the committee - as representatives of their respective political parties, along with my Fine Gael colleagues, and Deputy Healy and Senator van Turnhout for the Technical Group and Independent Members. I appreciate the support they have given to the Chair, not just in the past three days, but in the lead-up to the hearings.

A considerable team has helped the Oireachtas Members in preparing these hearings. It has been dedicated, working weekends, including bank-holiday weekends and working long into the night, including past midnight. I thank the clerk, Mr. Paul Kelly, and his team, Ms Paula Cowan, Ms Mary Lindsay and Mr. Colm Duffy, for their efforts and work in the past few weeks and the long days they have had to put in. We very much appreciate that. I also thank the staff from the committee secretariat of the Houses of the Oireachtas, who are not assigned directly to our committee yet gave immense support to the clerk and his team during and in advance of these hearings.

I thank the Superintendent, Captain of the Guard and their ushers for their tremendous co-operation and assistance not just to Members of the House but also to our expert witnesses. I thank the staff in the Editor of Debates office, broadcasting and communications units, our sound engineers and the staff of the Library & Research Service for their support. I also thank our consultant, Mr. Michael O' Sullivan, who has been working with us and will continue to do so next week when we go through the written submissions. I also thank the members of the parliamentary legal service for their support and members of the media, who have been here in large numbers for the past three days and have broadcast our proceedings. I thank the Seanad office, the Seanad Committee on Procedure and Privileges, the Cathaoirleach and the Leader for allowing us to use this august Chamber as a fitting venue for what we have been doing over the past three days. I thank all of our witnesses and Members for their exemplary conduct, and the thoughtful and respectful way they have made their contributions.

The committee will now compile a report on our hearings and the many written submissions we have received. When this report is completed it will then be presented to Government for its consideration. I hope and I trust that these hearings will provide much assistance in the final drafting the Bill which will be presented to the Oireachtas. I thank the Minister, Deputy Reilly, the Minister of State, Deputy White, and officials from the Department of Health.

I again thank everybody for their participation and their continued work in our committee.

The joint committee adjourned at 7.35 p.m. until 9.30 a.m. on Thursday, 23 May 2013.

Back to table of contents

Joint Committee on Health and Children debate - Tuesday, 21 May 2013

Heads of Protection of Life during Pregnancy Bill 2013: Public Hearings (Resumed)

Medical Law

Dr. Simon Mills

Mr. Paul Brady

Mr. Tony O'Connor

Ms Caroline Simons

Dr. Simon Mills

Mr. Paul Brady

Mr. Tony O'Connor

Ms Caroline Simons

Ms Caroline Simons

Ms Caroline Simons

Ms Caroline Simons

Ms Caroline Simons

Mr. Tony O’Connor

Mr. Paul Brady

Dr. Simon Mills

Dr. Simon Mills

Ms Caroline Simons

Mr. Tony O'Connor

Mr. Tony O'Connor

Mr. Tony O'Connor

Mr. Paul Brady

Mr. Paul Brady

Mr. Paul Brady

Dr. Simon Mills

Mr. Tony O' Connor

Mr. Paul Brady

Dr. Simon Mills

Dr. Simon Mills

Ms Caroline Simons

Ms Caroline Simons

Mr. Tony O'Connor

Mr. Paul Brady

Dr. Simon Mills

Dr. Simon Mills

Dr. Simon Mills

Dr. Simon Mills

Dr. Simon Mills

Dr. Simon Mills

Mr. Tony O'Connor

Constitutional Law

Professor William Binchy

Dr. Maria Cahill

Mr. Frank Callanan

Mr. Frank Callanan

Mrs. Justice Catherine McGuinness

Mr. Frank Callanan

Professor William Binchy

Dr. Maria Cahill

Mrs. Justice Catherine McGuinness

Joint Committee on Health and Children debate -
Tuesday, 21 May 2013