I welcome the Minister for Health and Children, Deputy Martin, and his officials. I suggest that we consider the Bill until 1 p.m. If we have not concluded our consideration at that stage we will resume again tomorrow at 10.30 a.m. Is that agreed?
Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage (Resumed).
No. I wish to be agreeable but we have a slight problem. Deputy McManus and I, and other Deputies, have had to respond to the Minister's health policy which was announced this week. We also have to deal with this Bill and an Estimate which the committee will discuss this afternoon. I have not yet seen the Deloitte & Touche value for money report which I will need to see before we take the Estimate as it deals with strategic issues regarding value for money. The closing time for health questions is tomorrow at 11 a.m. We have no one working for us, we are on our own and do not have a Department.
I suggest the committee resumes at 11 a.m. tomorrow so we can submit our health questions. In the meantime, will the Minister forward a copy of the Deloitte & Touche report to us so we can deal with some aspects of the Estimate this afternoon?
I will forward copies to the Deputies today. The report is on the website but it would be awkward to download it.
We missed the Monday version.
The launch was supposed to be next week. There are 600 pages in the report.
Is that after the Minister has rewritten it?
We did not touch it. This committee would require a few sessions to go through the document but we will make it available today.
We have no problem accommodating the Deputy at 11 a.m. tomorrow. Is it agreed to take a one hour lunch break tomorrow? Agreed.
The committee adjourned its discussion of the Bill yesterday on amendment No. 14 and the Minister is to respond.
This amendment proposes to insert the words, "(or, in case of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, any other place)". We considered this issue in advance of the legislation and I spoke to a number of consultant obstetricians regarding the matter. For genuine reasons Deputy McManus advanced the issue of the safety of women. Our advice is that the insertion of the phrase "an approved place" was also on the grounds of safety to ensure that, wherever these kinds of procedures take place, all medical and requisite facilities would be in place to ensure the safety of the patient. However, if accepted, the wording of this amendment could have the opposite effect in that it could facilitate practices whereby people decide situations are emergencies and so on.
The main point made by the obstetricians was that they did not envisage emergency scenarios. The masters expressed the view that cases such as cancer of the womb, pre-eclampsia, Eisenmenger's syndrome - life threatening conditions which can give rise to the termination of a pregnancy - would have been diagnosed, monitored and managed for a period before the question of having to intervene to save the woman's life arose. There would, therefore, be ample time for the woman concerned to be treated in the most appropriate facilities with the highest level of medical care, expertise and supports available. It is questionable to increase the possibility that the medical practitioner would intervene in any other place where perhaps the necessary supports and other expert advice would not be available.
I will double check with the medical people concerned regarding this issue - in particular, the issue of emergency scenarios - in the light of comments made during this debate. I raised the specific question relating to obstetricians and was assured that these scenarios do not arise in an emergency context. I will go back, between now and Report Stage and talk to the professionals on this point in the light of the concerns raised by members of the committee. My officials had consultations with them last evening to revisit this issue. Our original concern was safety in approved places. In line with the hospitals mentioned in the order, we are looking at maternity and acute general hospitals throughout the country.
The reason one needs orders in situations like this is hospitals could close in ten or 15 years time or be redesignated. We are including this provision for practical purposes. It is necessary to retain some flexibility on such issues because they are being included in the Constitution. We will be asking the people to authorise the Minister of the day to vary these orders. The provision which will be contained in the Bill will have constitutional protection.
Deputy Shatter raised many points on the section which deals with how cases are pursued. In a case where somebody brings a charge against a doctor, clear intent must, in the first instance, be identified. The file will then be sent to the Director of Public Prosecutions who must be satisfied that a case warrants prosecution and so on. It is not simply a case of someone making a frivolous complaint which automatically ends up in the courts. The Bill does not encompass such incidents; it lays down very significant processes by which prosecutions could take place.
There is an issue of balance between the amendment tabled and the legislation as drafted. It raises the question as to whether we could do more harm, unintentionally, by opening the gate for illegal activities to take place or by providing for unsatisfactory medical treatment. The amendment raises that potential, although that is not what is intended.
In the light of the Minister's indication that he will review the amendment, will Deputy McManus withdraw it until Report Stage?
I am concerned about his response. First, I have no difficulty with the idea of defining "approved places." That is not the issue. Obviously safety issues arise, but nobody is arguing that point.
It was argued by——
The Bill places heavy emphasis on medical clinical judgment, which has been referred to as the right to choose by doctors. There is a very heavy dependency on medical opinion. The Minister has undertaken to go back and talk to the consultant obstetricians who operate, generally speaking, at a very high level in very high level hospitals. I am not happy with this as he will simply get the same answer. They are not in the position in which we find ourselves. We are trying to legislate for when things go badly wrong outside the normal hospital context. I expect those suffering from Eisenmenger's syndrome would tend to be located in a hospital with appropriate care.
As a result of our experience regarding abortion, we have to look at situations other than those mentioned. We have to look at situations which are on a par with the X and C cases in terms of a person's right to have an abortion. These situations have arisen; we cannot pretend they have not. It is important that we try to visualise the knock-on effect of making a decision in a whole range of situations where women's lives may be at risk when they cannot access appropriate care or when they do the medical practitioner is prevented under the terms of this legislation from providing it. The Minister has not explained the dilemma whereby the law states one thing and the ethical code by which a medical practitioner is bound directs him or her to act in a different manner. How do we resolve this?
On approved places, we would not go overboard in terms of being absolutely confident at all times that safety and high standards are applied. I will cite the example of Our Lady of Lourdes Hospital where for 20 years it appears women's health was not protected, even though it is a hospital within the health board system. Practice in the hospital was reviewed by the Institute of Obstetrician Gynaecologists, yet the women affected by clinical decisions would hardly say they were satisfied and felt it was an appropriate place and that the treatment they received was, in all cases, appropriate. We can be a little superficial in saying that as long as we find appropriate places, everything will be hunky-dory. While that is not necessarily the case, that is not the central issue.
We must include a clause to provide for an emergency where there is a clear possibility of a woman losing her life. This legislation will be enshrined in the Constitution forever and a day unless the people choose differently, no matter how flawed and inadequate it is. In this instance, there is a lacuna that could result in a lack of protection for human life. The Minister said cases will be taken by the Director of Public Prosecutions and we can trust them. I agree the Bill affords that protection, but the Minister does not fully appreciate the cultural framework which he is setting out. We are not worried about the danger of somebody ending up in court, it is what that danger does to people's judgments about which we are worried. Even though she is suicidal, if a young girl knows that she is living in a country that does not provide her with any grounds on which to have an abortion, she will not seek help. If, in the same way, a doctor knows he or she is in a situation where a woman is dying and the only way to save her is to perform an abortion - we know that this happens - but he or she is in the wrong place at the wrong time, he or she will not be able to do anything for her because the culture does not allow him to do so unless he is in an approved place. I am talking about the actual culture and values and norms that people will be abiding by, not that it was inevitable that a doctor making that decision in the interests of his patient is going to definitely end up with 12 years in jail. The point is——
I did not say that.
I know, but the central point is that it could happen. It is not that it is inevitable. There is a possibility of it happening and even that possibility will affect conduct and behaviour and the way people either do not seek or offer help. That is why it is so important.
The Minister says the regulation is going through the Oireachtas, but, again, the context may change and it may be that "approved places" becomes very tightly defined. Some doctors may say that they are subject to litigation and want to restrict the number of approved places as much as possible. That could become a limiting factor in terms of saving women's lives as the amount of litigation goes through the roof, which is the way it is going. The people will not decide. They are happy to have the people decide everything else, but, at the end of the day, where these procedures will be carried out will not be in the gift of the people. However, this could have a substantial impact on the Bill and its outlook, particularly in terms of women's lives in relation to where and how they can access help when they need it.
I see the point of Deputy McManus's proposal but I also see some merit in the Minister's reply in relation to the potential for opening the door to the removal of any restrictions. Nevertheless, Deputy McManus has a valid point. Most of us live in areas where there is access to hospitals but someone on the Aran Islands does not have that facility. I do not know whether Deputy McManus's point can be accommodated by the Minister between now and Report Stage. It is not clear if it is already accommodated, but the Minister needs to explain the real issue being raised. How will Deputy McManus's concern be addressed?
I refer to the list of questions which Deputy Noonan, the leader of the Fine Gael Party, sent to the Taoiseach in relation to this issue and the Taoiseach's reply of 19 October to parliamentary Question No. 34, which has often been quoted. The question stated:
As no amendments may be made to the Act without reference to the people, why may a designated member of the Government vary orders in the Act without any reference to the people?
The Taoiseach's reply was:
The orders covered by section 5 are those envisaged by the definition of an approved place within the meaning of section 1(3). Quite clearly, an order made under section 5 would be subject to annulment by either House of the Oireachtas.
I note the Minister has accepted my proposal that this should be the other way round.
It is not considered reasonable that the people should be consulted on whether one hospital or another should be an approved place for the purposes of section 1(2). It is not considered reasonable that the people should be consulted on the detail of records in relation to the making, keeping and compilation of medical records, including records of opinions.
There is no mention of the word "hospitals" in the term "approved places". Although I accept the bona fides of the Taoiseach's reply and the Minister's intention that it will involve hospitals - I have not seen any draft orders but I would be surprised if hospitals were not involved - the reality is, as the Minister indicated perhaps inadvertently in his reply, that it will be open to a future, unnamed Minister forever and ever to vary approved places.
With the approval of the Oireachtas.
Yes, but we know what happens. We might as well be honest about it. Ministers put orders before the Oireachtas but the Opposition health spokespersons are overworked and the orders come between the Minister launching a plan and an Estimate.
One has to affirm it.
I know. That is why I said forever and ever and referred to an unnamed Minister. Such a Minister could be an Independent who had wormed his or her way into Government and got the health portfolio as part of the price.
I did not want to mention anybody.
The Deputy might want to coalesce.
As the man in "Yes, Prime Minister" used to say: "You might say so but I couldn't possibly comment." It could be someone on the other extreme who could, on the one hand, use their muscle to restrict an approved place to the National Maternity Hospital in Holles Street, for example, or, on the other, he or she could take Deputy McManus's concerns into account and feel that in an emergency it could be allowed in a doctor's surgery. That could happen. An approved place could be anywhere.
It is one thing doing that under law. I could see a case for doing it that way but law protected by the Constitution and which has been given constitutional effect is something about which I have serious reservations. I have expressed those reservations from day one in a calm and constructive way. I am deeply concerned about this provision. The Minister asked the other day what kind of template we would put forward. I endeavoured to put forward a template that would be the basis for all-party discussion and negotiation in our approach to this Bill. However, my concerns about this are such that I put down a long amendment to section 5 because if a Bill potentially conflicts with the Constitution, the President has the right to call a meeting of the Council of State and take its advice. The President can then decide whether to refer or sign the Bill. That is because the President is the protector of the basic law, the Constitution. If she considers anything would conflict with the Constitution, the will of the people, she can refer it to the Supreme Court for adjudication. There is a downside to that because once the Supreme Court decides, it is very difficult to get it to review one of its own decisions for the future.
The Bill negates that procedure. We are giving a Bill the protection of Article 40.3.4° of the Constitution, if it is inserted, and there will be no reference to the President. In the future, the designated Minister - although it should be the Taoiseach who is mentioned in section 7 as the person who effectively kicks off the Bill's start time - will have the power to vary not just the approved place, but what a doctor is required to keep in terms of evidence that it was not an abortion under section 1(1) but a medical procedure under section 1(2) - evidence that will prevent him being prosecuted.
This goes back to my earlier point about a "liberal" or "conservative" Minister buying his or her way into Government. He or she could make the details the doctor has to keep so onerous that a doctor would be afraid to carry out a procedure to save the life of a mother for fear of being accused of carrying out an abortion under section 1(1). On the other hand, the details could be so perfunctory as to comprise the name, address and some slight details of condition, in which case one would have abortion on demand. Nobody would be able to distinguish between section 1(1) and section 1(2).
The problem is that this will have been written into the Constitution and we will be unable to change it legislatively. We will depend on a Minister to bring forward powers to change it and the Minister may already be prejudiced. This is not an academic issue; it is very real. If this was an ordinary Bill the same concerns would not apply because we could attempt to legislate in the House if we felt there was a problem. I could introduce a Private Members' Bill for which I could seek Government time. If I do not succeed in getting Government time, it could be taken in Private Members' time. However, there is no procedure whereby I can introduce draft orders into the House and ask the Minister to accept them. We need to think about this section. This provision does not suit either side of the argument. It is bad parliamentary procedure and it is without precedent.
In five amendments I set out what safeguards should be inserted into the Bill if this issue is to be put to the people. These amendments are as much as I can do as a layman to ensure that the President has the same rights regarding orders. If the President felt that, in making the orders, a Minister had gone beyond the will of the people as expressed under Article 6, he or she could call a meeting of the Council of State. The President could also refer the orders to the Supreme Court if he or she felt they contravened the will of the people. Such a procedure would protect the balance between the institutions under the Constitution.
This is more than an theoretical point. I have stated ad nauseam that if this amendment of the Constitution dealt with motor vehicles or food, I would still be uncomfortable with a provision whereby a Minister would have the right in perpetuity to vary by order the effects of a provision which the people had voted on and the Oireachtas had enacted. This is a dangerous road in terms of good governance and its effects on the other safeguards the Minister is trying to put in place. The Minister should think carefully about this issue.
Deputy Mitchell does not envisage an Independent Deputy becoming Taoiseach in the immediate future. However, such a scenario is only one step further down the road if one accepts the principle of a rotating Taoiseach.
I understand the logic of Deputy McManus's amendment and what she is saying. The Minister has stated that he will again consult with the relevant people in light of the arguments put forward by the Deputy. As I understand it, the Deputy is trying to provide for situations in which it is not practicable to get to a designated approved place. Under the structure proposed in the Bill, medical procedures will be carried out in a protected environment in which all the safety regulations, etc, are in place and where there is adequate protection for the woman.
In those circumstances, it is desirable that the Minister should be given the power to designate a list of such hospitals which will change from time to time. I understand the Deputy's objectives, but if one includes the exception, the wording of the amendment seems to leave the door wide open. The term "medical emergency" used in the amendment is very loose. The amendment uses the phrase: "where the private practitioner concerned believes the management of the welfare of his or her patient so requires." This would leave the matter to the subjective opinion of the practitioner.
If a situation arises which is so urgent that it is not practicable to carry out the relevant procedure in a designated approved place, and that is a remote possibility, I would favour some form of wording which provides for that scenario where the operation could be carried out elsewhere. However, the Minister must go with his medical advice and has undertaken to consult again with the medical experts to see if there is any possibility, however remote, that such a situation might arise. If there is such a possibility, then it is only right that it should be provided for, but in a form of wording which does not leave the door wide open.
Deputy Mitchell tabled an amendment which would make the matter subject to the same procedure for amendment as the legislation. We will discuss that amendment later but his proposal is off the wall.
Let me make clear that if the provision in the Bill is not amended, I will not recommend to my party that it support the Bill, off the wall or not. We were having a calm discussion until the Minister of State came in and used such words. Unless there is some procedure for tightening up the possibility of abuse of the Constitution by a future Minister, I would find it difficult to recommend to my party that it support this Bill. I wish to make this clear and I have done so from the outset.
Given that we are into the issue of withdrawing comments, I withdraw the expression "off the wall". I hope a motion of censure will not be tabled but I withdraw the expression and wish to restore calm to the proceedings. I understand Deputy Mitchell's point but he is wrong. However, we will argue the matter when discussing his amendment.
In my contribution yesterday I raised concerns to which Deputy O'Dea and others have referred regarding medical emergencies and the need to provide immediate medical help in circumstances where the patient is not in an approved place and where her life may be at risk. I raised another important aspect of this issue which relates to other comments made today.
This is a key section of the Bill as it is suggested that, as a consequence of it being put in place, there inevitably will be designated hospitals which are approved and which ensure that, where there is a real and substantial risk to the life of the mother, a termination will be effected. As has been correctly pointed out, approved places can only be designated by the Minister placing an order before the House.
I wish to highlight two issues regarding this matter which I raised on Second Stage. Will the Minister indicate which provision in the legislation allows for the removal of a hospital from the list of approved places? Will he set out the procedure? As currently drafted, the Bill makes provision for the granting of approval but does not prescribe the procedure whereby approval is withdrawn.
If it is proposed to withdraw approval, will a public or private hospital or clinic be forewarned? Will they be given an opportunity to ascertain the grounds upon which the threat to withdraw approval is based and to respond? Will the Minister point out where these issues are dealt with in the legislation as I cannot find it? If it is proposed to withdraw approval, certain fair procedures would have to apply. Will the Minister clearly spell out these issues? I wish to raise another concern which is directly related to this matter.
There is a vote in the House.
Will I leave the point until after the vote?
I would prefer if the Deputy finished as I will lose the train of thought.
I will make the point. If this constitutional proposal is successful and the Oireachtas subsequently endorses the Bill attached to it, it will still be the case that no hospitals will be approved without the making of a ministerial order. What guarantee can the Minister give that any such order will be made? There is no commitment in the legislation that within a certain number of weeks or months after it is passed an order approving appropriate hospitals or other places will be made. I am concerned this legislation, which is being presented as making a reasonable position on one side for women whose lives are at risk and on the other side, in the context of squaring circles, as trying to address these issues will, in effect, result in no support for any hospital should the next Government be dependent on the support of the four honchos the current Government now relies upon. Such support might be conditional upon no approval being given to any hospital or existing approval being withdrawn. The intent of people's votes in a referendum would then be rendered null and void by political expediency. We should have a response on this issue.
We will suspend the meeting for 15 minutes.
I hoped the Deputies who posed questions would come in. Perhaps the Minister would address the issues raised by Deputy McManus.
Perhaps we should give them another minute.
The medical advice from leading obstetricians and gynaecologists with whom we held discussions, which concurs with the expert views expressed to the Oireachtas committee, is that interventions of the kind covered by the Bill do not take place in an unplanned manner or remote from appropriate facilities. We inquired at some length into this issue prior to introducing the legislation. A lay person would look at this issue from a different perspective to someone who understands these medical conditions. However, the overall view is that only a small number of cases, in the low single figures, arise each year which involve women who are already very ill and in the care of a team of doctors in a tertiary level hospital setting. In such situations the woman's condition would be under management and monitored on an ongoing basis if, during pregnancy, she was suffering from a condition which could become life threatening.
The advice was that, invariably, a medical practitioner would always consult with colleagues to make sure he or she was making the right decisions and that the correct management process was in place. However, members of the committee have advanced concerns about emergency situations which the medical experts have told me do not happen, are not possible, or are only remotely likely. I will consult again with the medical experts to see if there is a means by which, on Report Stage, we can accommodate the concerns expressed.
The other side of this issue is that such a provision could unintentionally allow for illegal abortions. That could happen and we should not pretend otherwise. Such a provision could be used by those who wish to promote a particular process and who could utilise a legal loophole to develop an area of practice. We have to be careful regarding such a possibility. Deputy Mitchell may have alluded to this point, although from a different stance to Deputy McManus. I will return to the issue of emergency situations on Report Stage.
The ministerial order must be placed before the Oireachtas by way of a resolution and passed by a vote. Orders of this kind which involve secondary legislation are traditionally placed in the Oireachtas Library and the order is signed and put before the Ceann Comhairle. There is no debate or resolution and a Member has 21 days to try to nullify an order if he or she so wishes. However, in the case of this legislation, the order will have to be up front and affirmed. This process will be catered for by way of a later amendment which I have tabled. Deputy Mitchell also tabled an amendment regarding this issue.
Deputy Shatter suggested that the Bill did not allow for the revocation of orders, but that is not the case. Section 5(3) of the Second Schedule states, "An order may be amended or revoked by order." This deals with the point raised by the Deputy.
Deputy Shatter also asked if there was an obligation on the Minister to make orders. Section 7(2) of the Second Schedule states, "This Act shall come into operation on such day not earlier than 2 months after the date of its passing as the Taoiseach may appoint by order." I will examine this issue further before Report Stage in terms of whether, similar to the provision whereby the legislation must be passed within 180 days, we can tighten the Bill to ensure the order has to be made. I do not see any difficulties in this regard, but will examine the issue.
As regards Deputy Mitchell's point, for practical purposes there has to be provision for ministerial orders. One could argue the point in terms of democracy, but we cannot predict who will be elected or the composition of future Governments. Legislation passed by the Oireachtas can be changed by a future Government. That is democracy. However, sufficient safeguards have been built into the Bill and I do not accept the point regarding the Oireachtas affirming a particular proposal. This is a strong safeguard in the context of this issue and a proposal could not be slipped through without anyone noticing because it has to be affirmed by the Dáil and approved by the Cabinet. I do not agree that a Minister who held a particular perspective could try to circumvent the legislation by way of a ministerial order. Such a measure would have to be approved by the Cabinet and voted for by the Oireachtas. I cannot foresee the scenario envisaged by the Deputy.
The reason we are introducing this legislation is a small number of Independent Deputies received an undertaking regarding an amendment to the Constitution. Is that not the case?
No. We all know this issue dates back to 1983 and the Oireachtas committee was asked——
It does date back to 1983. However, the Minister asked about a template for another way of dealing with this issue. I tried constructively to outline that one could deal with the matter within certain parameters which I set out. I have given the Minister an indication of where there could be negotiations between the parties to try to deal with it. However, it is clear from the way things are going that no one party is going to achieve an overall majority in the future, certainly not at the next election. No one anticipates that will happen. This means that the Government will be dependent on a minority party, parties or Independents. That is what gives rise to this kind of situation.
Can the Minister cite a precedent for a Minister having the power to vary the effect of a constitutional amendment by order? When the Constitution was passed in 1937, with effect from 1938, the Dáil was allowed to amend it for a certain period thereafter and some amendments were made. This allowed for a process whereby mistakes or unclear principles could be dealt with by the Dáil, but only for a limited period. The people then took away that right and stipulated that any change to the Constitution must be put to them. Some amendments were accepted which tidied up the Constitution, but I cannot recall the detail.
The principle on which the Constitution was based from the outset was that its provisions could not be varied by order or legislation, but only by interpretation by the Supreme Court. Therefore, the provision in this Bill is a new principle for which there is no precedent. There is no precedent for the Minister varying the effect of a constitutional amendment. This is a dangerous principle.
I have no doubt the Minister will make orders within reasonable parameters from the beginning. However, he does not know who will hold that office in the future. If we are talking about principles which are so elevated that they are enshrined in the Constitution, what is the reason we are giving a Minister the power to vary them in either a liberal or conservative direction? We all think that society will always be as it is. Everyone thought society would be as it was until Mrs. Thatcher became Prime Minister and took the United Kingdom in a conservative direction beyond the trend which people would have imagined.
The people voted for her.
Yes, that is what I am saying. People are being asked to vote for a provision in the Constitution under which a future Minister will have the right to vary the effect of that amendment. The Minister needs to consider this issue.
In his reply the Taoiseach mentioned hospitals. The Minister's term is "approved places," but there is no mention of hospitals. Is he suggesting that it will be an approved hospital? If that is the case, then what is the reason he does not include the word "hospital" in the Bill?
Deputy McManus wished to add something before reverting to the Minister.
This is an important point and the Minister's approach is not totally satisfactory. However, I welcome the Minister of State with responsibility for school transport to the committee. It is appropriate that he should listen to this debate. There could be a school child in this situation who, because she is unable to access an appropriate place and is unable, therefore, to access the medical termination of pregnancy she needed, loses her life. As a result, a Minister who succeeds the current Minister, Deputy O'Dea, would have to answer for why this young woman was unable to have her constitutional rights vindicated.
This is not just a matter for doctors. If one is seeking further advice, with which I have no problem, and if one focuses solely on obstetricians who are practising in the senior hospitals in Dublin, one will not get a full view as to our obligations as legislators in determining this. This concerns a constitutional issue.
Yes, we are going to get that advice.
If there is a situation in the future where, for example, the Minister does not make the necessary order or makes a restricted order, a constitutional case is bound to be taken. Let me give the example of a junior hospital doctor I know. On the first day in his job in a small hospital in the west of Ireland - his first time in a hospital - the first case he had to deal with was a mother who brought in her 20 year old son. They belonged to a small religious sect which did not believe in accessing medical care. The son got so sick that she brought him on the bus to the hospital. The young boy died because it was too late to do anything for him.
However, under the situation arising now, if it had been a young girl who needed to have the treatment of termination, it is likely that the hospital would not be an approved place. It would not be a maternity hospital anyway. There will be difficulty finding an approved place but let us say that the situation I describe arose, which would constitute an emergency. It is not an envisaged situation whereby one could say there will be two such cases per year. No obstetrician can say it would never happen. That is one of the aspects of medicine everybody knows, that many things happen that are not the norm or mainstream.
The Minister is saying that not leaving it him or his successors to define the approved places somehow has the potential to open the possibility of all sorts of abuse. I cannot understand the logic of that. On the one hand he is saying a medical practitioner has, in effect, sole decision making power regarding what medical procedure the patient needs. That medical practitioner can make that decision within a hospital and that is the end of the matter - there is total freedom of clinical judgment. However, the Minister is also saying the doctor cannot make that decision if he or she happens to be outside a hospital. Doctors do not always get things right but it is hard to understand why the Minister is saying that issues of geography will open the floodgates. I suppose it could; tomorrow could be the end of the world but that does not answer the question.
That has been the gist of theDeputy's argument - anything could happen.
To be fair, that scenario works both ways. However, I will look at it on Report Stage.
The difference is that the Minister is setting out a legal framework so he must explain why he is doing it. It is not the same in a sense because the Minister is being proactive. He is setting out the legal framework. Nobody else has done it except the Government and the Minister must explain why he is doing one thing and not something else. It is unacceptable for the Minister to say he will determine this solely on the basis of what obstetricians tell him. There are very senior people in Dublin hospitals and I have the highest regard for them. He says he will go further than that but I advise him to be careful because he should look at this issue from the perspective of the patient.
The startling thing about this debate and all the hearings we have held is that we have never heard from a woman who has had an abortion. There is no record of a woman who has had an abortion telling us about it and it is likely that this debate will finish without that voice being heard. We must guess about a swathe of Irish experience that is not open to us. Let us remember the woman who has a constitutional right to life and start with that.
That is exactly why the approved place provision is included. It is about safety. The patient is centre stage here as well. We cannot be too selective either about when we want to invoke medical personnel. I am a lay person, not an expert on when conditions are life threatening or when people must make decisions. Regardless of whether we like it, in the ordinary run of events every day we let medical people make those crucial decisions.
The safety of the patient is a critical issue in the consideration of this amendment and the section. It cuts both ways. The institutes of obstetricians and gynaecologists represent all practitioners throughout the country. If we approved places or hospitals where we could not vouch for the standard of care and which could pose a risk to both the health and life of the mother, it would reflect badly on the Government and the State. There are serious issues with regard to the safety of the patient and that is why we are treating the amendment carefully. When considering this between now and Report Stage, we will look at medical and legal advice, the patient's perspective and the best legal framework to deal with emergency scenarios. We will revert to the Deputy with our response.
This is a most important issue. Deputy McManus raises it from one perspective, which is important. However, let us look at it from another perspective. This is the type of issue which might give rise to a challenge and to what happened in the C case or the X case. This comes down to section 1 of the Bill where an abortion is defined as the intentional destruction by any means of unborn human life after implantation in the womb of a woman. Notwithstanding that, the Bill states that abortion does not include the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended, where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent the real and substantial risk to the life of the woman, other than by self destruction.
If the procedure does not take place at an approved place it will not comply with section 1(2) and there could be a prosecution under section 1(1). Let us say there is heavy Dublin traffic and a doctor is accompanying a woman in an ambulance or is trying to get the woman from outside Dublin to Dublin or from the Aran Islands to the mainland. If the doctor carries out a procedure, it could give rise to a case being taken. With regard to the case the Minister said would not happen, we were also told that the C and X cases would not happen and that they were covered by Article 40.3.3°. Something of this kind will happen and there will be an outcry. The Minister of the day will have to amend the order of approved places to cover all sorts of places.
The Taoiseach said in his reply to Deputy Noonan that it is not considered reasonable that the people should be consulted on whether one hospital or another should be an approved place for the purpose of section 1(2). However, the point is there is no mention of hospital. I have no doubt hospitals will be designated from the beginning but as soon as something along the lines of what Deputy McManus and I are speaking about happens - though we are coming from different points of view - there will be an outcry and the Minister of the day will have to make another order. Furthermore, the Minister of the day will have the power to make that order and he or she will make that order not in a time of calmness but of concern and outcry.
Let us look at how we got here. In 1979 the Oireachtas passed the Health (Family Planning) Act which incorporated into Irish law the provisions of the British Offences Against the Person Act, 1861, which made it illegal to procure a miscarriage. Until then the 1861 Act had been the law on abortion. In 1982 the eighth amendment to the Constitution was passed in a referendum and was inserted as Article 40.3.3°, which I have quoted many times. In 1986 the Society for the Protection of the Unborn Child successfully obtained an injunction restraining the Dublin Well Woman Centre and Open Door Counselling from providing information which encouraged or facilitated abortion. Nobody foresaw that. That decision was upheld in 1988 by the Supreme Court when it was established that this restraint extended to the provision of addresses and telephone numbers. These are not extraneous points: these things happened. In 1992 the Dublin Well Woman Centre and Open Door Counselling took the matter to the European Court of Human Rights on the grounds that it breached the right to freedom of expression and the Strasbourg court ruled in their favour. In the same year the Supreme Court ruled that a 14-year old girl who was pregnant as a result of rape and was considered to be suicidal had the right to travel outside the State for an abortion because of the real and substantial threat to her life. This became known as the X case. The judgment also suggested that had she not been suicidal, her right to travel for an abortion might be restricted. As a result of this and following much public debate, three further amendments to the Constitution were proposed in 1992 which sought (a) to clarify the law on real and substantial threat to the life of the mother, (b) deal with the right to travel and (c) deal with the right to information.
The wording of amendment (a) stated:
it shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life as distinct from the health of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
That amendment was opposed by both sides of the debate and was defeated. The way we are going with this debate, if this Bill is put forward I suspect both sides will oppose it also because of the kinds of issues Deputy McManus and I have raised today. On both sides there are very serious questions.
The other two amendments were passed and are now incorporated into Article 40.3.3°. Legislation was introduced in 1995 which dealt with the provision of information and how this could be provided, so it is possible by legislation to give effect to certain aspects of the Constitution. In 1997 the High Court ruled that a 13-year old girl who was pregnant as a result of rape and in the care of the health board could be taken out of the State for an abortion by the board even though this course was opposed by her parents. That judgment was never appealed.
The Minister said in reply to this amendment and my concerns about the section that these things will never arise. He said this is a very clear provision, as clear as the nose on your face. It is not a very clear provision and it will give rise to a challenge. If one goes through the Bill and asks how a challenge to the Bill in the High Court could arise, one should remember that a challenge arose in the X and C cases. The very day the Minister makes an order, somebody will be down to the High Court to challenge it and it will all be up to the judges to decide. I have very serious misgivings about that. Every time in the future a Minister makes an order it will be open to someone from one side or the other to challenge it. People on Aran or Tory Islands will say they have a right to an approved place and that they cannot access a hospital, so it should be extended. The High Court will look at this and decide the Minister cannot restrict this to Holles Street or somewhere else. A person might challenge this by saying the people never intended that the Minister would designate every doctor's surgery and that it should be restricted to Holles Street, the Coombe or the Rotunda Hospitals.
We are not giving certainty. We are presenting the opportunity for challenge. There are people concerned about aspects of the Bill. People in my party are for or against certain proposals but I have strong reservations about this particular proposal in terms of good governance and certainty. I have expressed that from day one. I have an amendment put down to section 5, whatever happens to the rest of the Bill. I ask the Minister not to close his mind to this, as he must take responsibility for what happens in the future, as do we. We are legislating for this. I ask the Minister to look at what I said and not to dismiss this just because it is an Opposition amendment. Regarding this section, people will ask if their wives or daughters can get to hospitals in time and if doctors are guilty of an offence by doing something in an ambulance or surgery in the knowledge that the patient could not be airlifted from an island. Those are the questions and we are not giving certainty. As it stands, the guidelines of the Medical Council could probably deal with these issues in a practical, decent and proper way. One must ask if this is good Government and the Minister has not convinced the jury as far as I am concerned. Looking at this from the pro-life and pro-choice camps - I use the terms in inverted commas and without meaning to offend - it is a dangerous way to proceed unless there are checks and balances which we can build in.
I will not go back over all the ground covered by Deputies Mitchell and McManus except that this is fundamental to the rights of women and babies but also to the medical profession, as has been pointed out. The last thing we want to do is to leave medical practitioners where they can be challenged as well and I know the Minister shares that view.
We had suspected there could be a certain fallout and a reinterpretation leading to a challenge of the 1983 wording, though none of us could have anticipated how it would happen. All we know about future situations is that they will be life-threatening, possibly tragic and will engage all of us as a society in much trauma. Certainty is therefore of the essence.
Deputy Mitchell pointed out that there will be challenges from one side or the other, particularly regarding the issue of a life-threatening risk to a woman. However, looking further down the road to a greater integration of European law and services, there could be a challenge by a non-national who is a European citizen involving a case seeking equality and parity of services throughout Europe. That might seem off the wall as we remember what happened in 1992 and 1995 but it can and will happen. I see that on the horizon and such a successful challenge should be taken into consideration. Perhaps the Minister feels having the provision in the Constitution would protect us but has he looked into that aspect of the case? Anything that happens here can now be challenged and judged in Europe.
Regarding the European dimension, I have dealt with all the issues but I said I would return to them on Report Stage.
We have had a comprehensive discussion of this and the Minister has agreed to return to it on Report Stage. Is Deputy McManus willing to withdraw the amendment?
I spoke briefly on this issue last week. I have been listening to the debate and trying to visualise what will happen when the ministerial orders are put in place. Obviously the Minister has given deep consideration to this matter, but he has not given any indication regarding what will be the likely situation when the orders to which I refer have been introduced. We are working, to a large extent, in the dark on this issue because the position has not been clarified. To how many places will the initial order refer?
I am not attempting to qualify what Deputy Mitchell said about subsequent Ministers making orders which will alter the position, but trying to envisage what will be the situation in the aftermath of the initial ministerial order being made. Will the initial order refer to Dublin? Will it refer to approved places in the provinces? Will it be confined to hospitals or will health centres be designated? My greatest concern about this matter is the lack of clarity. Will the Minister explain how the system will operate rather than outlining the generalities of the situation? Does he envisage that three, six or 20 approved places will be designated? Will he indicate what he expects will happen when he makes his decision in respect of the approved places? I may have missed something, but I do not know how the Minister sees matters developing once the ministerial orders have been made.
I apologise that I was not present for the Minister's reply, but I was delayed while returning to the meeting from the vote in the Dáil. However, Deputy Barnes has outlined to me the substance of his reply. The Minister is correct to say that an order can be revoked and I accept his guidance on that matter. However, he has not addressed the final issue of the dilemma that arises under the Bill. I have no intention of challenging his personal bona fides.
I stated I would consider the matter further before Report Stage to see if the legislation can be tightened.
I do not believe that the matter to which I refer will necessarily be tightened up, but perhaps it will. As already stated, I am not challenging the Minister's personal bona fides. What will happen if the Bill is enacted in its current form, if there is a general election and we then return from that election with a result I do not anticipate, namely, that each of the parties retains exactly the same number of Deputies? That will not happen, but let us assume it will or that the numbers change to some degree. It could, therefore, be possible, on the one hand, that Fianna Fáil could form part of the Government while, on the other, it might be in opposition. Pivotal to the stability of the new Government could be the votes of two, three or four Independents who might state that they would support Fianna Fáil's return to government provided that no hospital in the State is approved under the legislation.
That would never happen.
The current Government obtained the support of four Independents on foot of a promise to hold the upcoming referendum, but managed to keep them at bay for four and a half years until, in the dying days of its term of office, it has finally produced this rather peculiar proposal. Will it be the case that, following the general election, we will be in a position where, inevitably, wise counsel within Fianna Fáil will decide that the new Government should not approve any hospital in the State? What will be the case if the Minister manages, before the election, to make an order under the Bill approving some hospitals - I doubt this will happen, but let us assume it will come to pass - and the price for entering government after the election is the revocation of that order? I accept that, under the Bill, the Minister will be empowered to revoke the order,simpliciter, not replace it.
Is it not the case that, should the referendum be successful and the legislation enacted, there is no obligation on the Minister for Health and Children to ensure, for example, a reasonable number of hospitals will be approved for the purpose of the Act? In addition, is it not true that there is no obligation to ensure a reasonable number, on a countrywide basis, will remain approved following the making of an order or that it will not be revoked? In effect, the workability of a central provision in the legislation could be entirely dependent on whether that legislation is hijacked by two or three Independent Deputies in the same way the Government has been hijacked by four Independents in respect of this issue. The Minister would not bring the legislation in its current form - containing the section under discussion - before either the House or this committee if he had not been hijacked by Independent Deputies on whom his remaining in office is dependent.
There have been a number of political comments made about what one party or another might do. This is a serious issue which we debated earlier in respect of the legislation in total. Deputy Mitchell raised the point that the Bill, once the referendum is passed by the people, must still be enacted by the Oireachtas and, perhaps, if a certain combination of parties is returned after the election, it might do so. We dealt with that matter last week and had a significant and wide debate on it. The same principle applies in respect of the ministerial orders.
The Taoiseach made a commitment in advance of the last general election to resolve this issue.
This issue and the one surrounding the PfP.
Members are doing an injustice to the process that has unfolded since. The consultation process on this issue has been the most comprehensive ever undertaken by any Government since the debate on it first came to the fore in the 1980s. As a result of the consultation process, the Green Paper was produced and the Oireachtas committee then spent a year hearing submissions from those representing all shades of political opinion. I understand approximately 105,000 submissions were made. To suggest that the Bill is the product of pressure exerted by four Independents is wrong, inaccurate and unfair because it emerged - I am not saying everyone agrees with it - from——
I was trying to give the Minister an excuse for it.
——the deliberations of the Oireachtas committee and the process that went before.
Provision is made in the Bill for ministerial orders to come into play within two months of its being passed. As already stated, however, we will consider between now and Report Stage whether it is necessary to oblige the Minister to introduce orders in respect of approved places. In reply to Deputy Neville, the term "approved places" refers to hospitals. I refer here to maternity hospitals and general acute tertiary level hospitals throughout the country. A key principle which will inform the hospitals that will be selected is that they will be obliged to have the necessary facilities and expertise to deal with the kind of conditions that are life threatening and could constitute a real and substantial threat to the life of the mother.
It is important, in terms of designating approved hospitals or places - we included the term "approved places" because in ten years time hospitals may not be referred to as hospitals - that such institutions have the necessary expertise to ensure the safety of those undergoing procedures. That will be the governing principle. No one would state that we should approve places that do not have the necessary expertise or facilities available to enable the procedures to which I refer to take place in safety. We received strong advice on this matter from obstetricians and gynaecologists who deal with these issues on an ongoing basis. That advice should not be ignored.
What will happen if a case arises in the two month period to which the Minister referred and a doctor makes a decision in the absence of an order being made? What will be the position of a person operating in a maternity unit in Monaghan who——
The Bill, of which the orders are part, will not be in place. The orders must be in place.
The Minister is stating, therefore, that the Bill will not come into force until the order is completed.
What happens in the period between the Bill passing and the order being made?
We have to get through all that.
The Minister has agreed to refer back to a number of issues on Report Stage.
Deputy Ring is offering on this.
Obviously, this is not being withdrawn. It is now 12.40 p.m. and there is a vote in the House. Will we adjourn until tomorrow morning or return later?
It will be too late after the vote.
Okay. We will suspend the sitting until 11 a.m. tomorrow.