I ask members to ensure their mobile telephones are turned off so that they do not interfere with the broadcasting of our proceedings. I thank members for their co-operation in rearranging our meeting times. This meeting has been convened to take Committee Stage of the Protection of Life During Pregnancy Bill 2013 and I propose that we sit until 10 p.m. tonight. Is that agreed? Agreed. I welcome the Minister for Health and his officials and invite him to make his opening remarks.
Protection of Life During Pregnancy Bill 2013: Committee Stage
Before the Minister proceeds I ask the Chairman to advise us of the names of the members of the select sub-committee.
The members of the select sub-committee are Deputies Kelleher, Seamus Healy, Ó Caoláin, Naughten, Anne Ferris, Regina Doherty, Fitzpatrick, me and the Minister, Deputy Reilly, as ex officio member. Deputies Anne Ferris and Regina Doherty are replacing Deputies Robert Dowds and Mitchell O'Connor, respectively. Only members of the select sub-committee can move or vote on amendments, unless we are told in advance that they are being substituted. I will give priority to members in speaking time, as is the norm in this committee.
I intend to have Deputy Ó Cuív substitute for me until we reach amendment No. 27. I will speak on amendment No. 27. All the amendments had to be tabled in my name even though my party allowed a free vote on the Bill.
Is that agreed? Agreed. Out of respect to other members of the committee, I ask speakers to refrain from abusing privilege in regard to time. There is no time limit to speeches on Committee Stage but I appeal to members' better nature to be succinct.
I thank the committee for accommodating the delayed start. Section 1 provides for the Short Title and commencement of the Bill.
Is the Minister making opening remarks?
I will be advised by the Chair.
The Minister does not have to make an opening contribution if he does not wish to.
I would prefer to get into the substantive business of the meeting.
I move amendment No. 1:
In page 5, lines 15 to 17, to delete all words from and including “on” in line 15 down to and including “provisions” in line 17 and substitute “not later than 30 days following enactment”.
The purpose of this amendment is to give clarity to the time of implementation of the Bill. Given that the background to the Bill extends to a considerable number of years, it is important we provide finality and clarity in respect of its commencement.
I welcome the Minister of State at the Department of Health, Deputy Alex White.
Amendment No. 1 deals with the commencement date for the Bill. The absence of a specific commencement date is due to the fact that operational issues will need to be addressed before the Bill can be commenced. For example, section 11 will require the HSE to establish a panel of medical practitioners for the formal medical review provisions. This process will entail contacting the relevant bodies, seeking and receiving relevant nominations and appointing the identified medical practitioners. In addition, section 12 will require the HSE to put in place whatever administrative facilities may be necessary to enable the review committee drawn from the review panel to perform its functions. I assure members this is not a delaying tactic. It is necessary to ensure all the requirements of the Bill are in place so that it can be implemented in its entirety when commenced. For this reason, I ask the Deputy to withdraw his amendment.
Can the Minister give an indicative timescale for implementation of the Bill? I accept that he does not want significant delays.
It will be as soon as is practicable. Virtually everything is provided for in the primary legislation and there will be little to do by way of regulation, other than forms and notifications. The real problems pertain to operational matters such as formal panels. When we reach the relevant sections, Deputies will realise the difficulties that arise as a consequence of some of the proposed amendments, which I will not be able to accept, on the formation of the panels.
Amendment No. 77, which I tabled and which has been ruled out of order, deals with a related issue that arose in the evidence given at the hearings, namely, the need for capacity legislation to be developed in conjunction with this Bill. Capacity is not provided for in the Bill because we are bringing in specific capacity legislation. Witnesses before the committee have expressed concerns about the clarity that will be provided on the issue of capacity of minors and those of limited capacity. Enacting this Bill in the absence of clarity in this regard will lead to a situation whereby these cases will continue to be argued before the courts. Perhaps the Minister will outline how he intends to address the concerns about capacity that have been articulated by witnesses, the timeline for the preparation of capacity legislation and how the issue will be dealt with in the interim.
Perhaps the Deputy is alluding to consent rather than capacity in respect of the broader terms of mental capacity.
Sorry, yes. I was referring to the consent that comes under the capacity legislation.
That legislation is with the Department of Justice and Equality and is being worked on as a separate issue. We did not want use the Bill to address myriad unrelated issues which are nonetheless very important for the operation of the Bill. I do not see it being delayed on that basis. The only basis on which the Bill will be delayed is operational issues and I hope any delay will only be a matter of weeks to months.
To clarify, is the Minister referring to the review panels?
Where the Bill provides for certain panels to be established in respect of certification appeals under sections 7 and 9, is it not the case that the panels could draw from a broader range of people based on the requirements that present in real terms? I ask the Minister to clarify that issue in order to permit me a clearer understanding of the answer he gave Deputy Healy. It is reasonable after the many years that have elapsed since the Government was obliged to legislate that a guarantee or assurance be given that the legislation will proceed quickly.
I do not doubt the Minister's intent on that.
I accept what the Minister is saying, but he failed to address the question I asked. How is he going to deal with the issue of consent in the interim? Will we still let it be referred back to the courts? What is the timeline for that capacity legislation? This was consistently raised during the hearings we had on the issue. The committee requires clarification on what will happen in the interim between the enactment of this Bill and the enactment of the capacity legislation to deal with the genuine issues of consent that have been raised. What sort of timeline exists for that interim period?
To be clear, we are talking about review panels which will review a decision to refuse a certification to a woman when she requests it herself, or an agent on her behalf. These are the panels that have to be put in place and the HSE is working on that at the moment with the various institutes and colleges. That will not take a very long time, but I cannot foresee every problem that might arise and therefore, it would be wrong to put a time limit on it.
The current law applies until the new law comes in, and I know the new proposals on capacity will come before the Cabinet imminently. I hope that answers Deputy Naughten's question.
Are the heads of the Bill coming before the Cabinet, or is it the Bill itself?
A memorandum is on its way to the Government-----
So we are still a bit off on that.
In the meantime, the current legal provisions on consent for medical procedures will apply.
I know, but major concerns were raised about this at the hearings.
That is a separate-----
We had six days of hearings. One of the issues that came up from all sides in this debate was the issue of consent. It is legitimate to get clarification on that while we are dealing with the Bill.
I have no further response to make.
How stands the amendment?
The Minister has given an assurance that there will be no delay in the implementation of the Act, so I will withdraw my amendment and reserve the right to table it on Report Stage.
One issue in the section has not been dealt with by amendment, so I need to mention it here, namely, inserting the word "maternal" in the Title of the Bill. The circumstances of the X case were about the protection of maternal life and that is what the Bill is designed to do; to provide for lawful abortion where there is a risk to the maternal life. That is why we are here. Inserting the word "maternal" into the Title provides a better reflection of the situation.
On the contrary, we are here to protect the lives of both parties; the unborn and the woman. We are very clear on that throughout the Bill, so I do not accept that there will be a change to the Title of the Bill.
Amendments Nos. 2 and 75 are related and may be discussed together.
I move amendment No. 2:
In page 6, between lines 1 and 2, to insert the following:
" "consent" means consent obtained freely without threats or inducements, where the medical practitioner—
(a) is satisfied that the woman is capable of understanding the nature, purpose and likely effects of the proposed treatment, and
(b) has given the woman adequate information, in a form and language that the woman can understand, on the nature, purpose and likely effects of the
These amendments relate to consent, which has been raised already. Amendment No. 2 is about the interpretation section and deals with the meaning of "consent" as part of the interpretation section of the Bill. Amendment No. 75 expands the meaning of consent and covers a range of issues in respect of adults, minors and those who reach the age of 16.
These amendments tabled by Deputy Healy deal with the issue of consent. This issue is also addressed in section 16 of the Bill, which clearly states that the provisions of the Bill will operate within the existing legal provisions in regard to consent for medical procedures. The Guide to Professional Conduct and Ethics for Registered Medical Practitioners of the Medical Council provides extensive information on the appropriate process to be followed to obtain valid informed consent for medical procedures. The HSE has also recently published its national consent policy, which includes detailed information on what constitutes valid and genuine consent and on how to obtain it. Therefore, I cannot support Deputy Healy’s amendments.
Can the Minister clarify the situation in respect of minors in the care of health boards? That issue came up in respect of consent. Unfortunately, the situation arises where children are in the care of the State and we need to know how they will be treated. Is there any provision to be made in respect of those cases? We know that the X case was in respect of a minor. The Law Reform Commission has recently published a whole paper on consent, especially in the area of minors. It is an issue we should examine.
The current legal provisions will pertain until the consent and capacity issues are addressed in the new Bill. It is not appropriate for us to address those issues piecemeal through this Bill. The area of consent is a major issue and much work is being done on it. The Bill will come before the Government very shortly.
On the basis of what the Minister has said, I will withdraw the amendment, but I may table it again on Report Stage if necessary.
Amendments Nos. 3, 4, 14 and 46 are related and may be discussed together.
I move amendment No. 3:
In page 6, between lines 2 and 3, to insert the following:
" "fatal foetal abnormality" means a medical condition suffered by a foetus such that it is incompatible with life outside the womb;".
These amendments relate to the question of inevitable miscarriage and fatal foetal abnormality. These are very important issues that are not dealt with in the Bill. They could and should be dealt with in the Bill, and they would be fully in compliance with the Constitution. We have all had briefings from the group called "Terminations for Medical Reasons", and these are sad and tragic cases of wanted pregnancies that simply become very difficult. Approximately 1,500 such cases occur each year in Ireland and they are very traumatic cases for the women involved and for the families involved. Some of the women involved in these cases have told their own stories, which are very harrowing tales of the difficulties that have arisen. In one case, a lady said the following.
At 22 weeks, we went in for our scan. We were shocked when after nearly two hours scanning, we were told that our baby was incompatible with life and was going to die. We were further shocked when our consultant told us our options were to continue with the pregnancy or to travel to Liverpool.
The story goes on in that vein.
These are cases of wanted pregnancies which unfortunately are very difficult for the women and the families involved.
As I said, cases such as this could be dealt with in the legislation. At the health committee hearings, several eminent legal witnesses indicated this too and that it would be fully compliant with the Constitution.
In the European Court of Human Rights case of D v. Ireland the State invited the court to take the view that these cases should be dealt with in the Irish courts. The judgment stated:
Accordingly, although it was true that Article 40.3.30 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If, therefore, it had been established that there was no realistic prospect of the foetus being born alive, then there was "at least a tenable" argument which would be seriously considered by the domestic courts to the effect that the foetus was not an "unborn" for the purposes of Article 40.3.30 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. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.30 clearly excluded an abortion in the applicant's situation in Ireland.
The other amendments deal with inevitable miscarriage. It is difficult to believe that after the sad and unfortunate case of the late Savita Halappanavar, inevitable miscarriage is not dealt with in the Bill. It should be. The Health Service Executive's report on this case took the view that such cases could be dealt with in this legislation. It stated “concerns about the law ... impacted on the exercise of clinical professional judgment” and recommended “the Oireachtas consider the law in relation to the management of inevitable miscarriage in the early second trimester”. In view of this, cases of inevitable miscarriage should be dealt with in this legislation and it would be constitutional to do so.
These amendments proposed by Deputy Seamus Healy attempt to provide for a lawful termination of pregnancy following a diagnosis of fatal foetal abnormality or inevitable miscarriage. I know several colleagues would have liked to see these and other grounds being included in the legislation. However, these provisions cannot be included. No one can fail but to have sympathy for women who find themselves in this situation. However, I have received legal advice to the effect that the inclusion of this issue as a separate consideration in the Bill would go beyond the scope of the A, B and C cases. The purpose of the Bill is not to confer new rights to a termination of pregnancy but to clarify existing rights. Some believe it would require a referendum and others believe otherwise. I have to take the advice available to me. For these reasons, I cannot accept Deputy Seamus Healy’s amendments and I urge the committee not to support them.
I support what the Minister has said. In fairness to Deputy Seamus Healy and others, it is important that we address the issues arising from the D case. The Deputy mistakenly referred to the judgment in the case when it was the State’s submission he actually quoted. The State’s submission stated, "The actual decision in the X case graphically demonstrated the potential for judicial development in this area. The X case clearly holds out the possibility of the further development of the law". Dr. Gerard Hogan, an expert witness in the case, stated that at least “a tenable argument could be made to the effect that the foetus was not an unborn for the purposes of Article 40.3.30.” He asserted that the argument that the protection afforded to the unborn attached to a viable foetus was a matter which would have received serious consideration by an Irish court.
I come from the same perspective as Deputy Seamus Healy and many others on this issue in that it ought to be addressed. The word “sympathy” is not strong enough for such cases. However, the Government must have constitutional certainty about legislation it proposes to the Oireachtas. No Government can propose legislation to the Oireachtas in which there is a known risk to its constitutionality. I know this sounds harsh, but it is the true legal position.
In the quotes from the State’s submission to the European Court of Human Rights in the D case one can see they are tentative with terms such as “potential for judicial development”, “holds out the possibility of the further development of the law” and “a tenable argument”. While these descriptions might be encouraging in terms of what the Supreme Court might do, they are far from definitive. All Governments must present legislation which is constitutionally sound and cannot take a risk as to what the Supreme Court might decide.
I accept that Deputy Seamus Healy has raised a compelling argument through the submissions made by the State to the European Court of Human Rights. However, the distinction I have drawn is the one on which we must rely.
I agree with the Minister of State that the word “sympathy” just does not work in these cases. I also want to reflect the same concerns for a woman who finds that the unborn child she is carrying has no prospect of life outside the womb. It must be devastating news for her, her husband or partner and her family.
It was explained in considerable detail that it was the Minister's view, based on the advices he was receiving, that this issue could not be addressed in the context of this legislation. It was explained that it could likely only be addressed by means of a constitutional amendment.
I would like to ask the Minister about the response he gave to Deputy Healy. I want to see how firm he is in the view he expressed. He acknowledged that there is a variety of opinion on the prospects of this legislation. If that were not the case, Deputy Healy would not have tabled these amendments in the first place. I believe a former Attorney General may have made an argument accepting that provision could be made to address the issue of fatal foetal abnormalities outside of a constitutional change. The opinions of Attorneys General might differ. The circumstances they set out prevail for the time of their respective service only. Since the last time we addressed this substantively, has the Minister had an opportunity to satisfy himself that nothing that can be done in the context of this legislation, or any other amending legislation, while the Constitution stands as it does at present? If the Minister could offer us whatever he now knows or believes, it might help us to assess the situation as it stands.
Four other Deputies are offering. Would the Minister prefer to respond now, or to take questions from the four Deputies and come back in again?
I can respond now. The Minister of State, Deputy White, has laid out very clearly that anything we do must have constitutional certainty. However, there is no constitutional certainty in this regard. Therefore, people believe we would probably need a referendum. This would certainly need to be proven in the courts. There is no doubt that it would be challenged in the courts. I have been advised that it is not possible to include this measure in this Bill. That is my current advice. While I respect the opinions of former Attorneys General, it is the current Attorney General who is tasked with giving advice and standing forth in the Supreme Court to defend what we do. That is the Attorney General to whom I listen and from whom I take advice. I do not mean any disrespect to anybody when I say that.
I thank Deputy Healy for tabling these amendments. He is right when he says sympathy does not go far enough. If we cannot do something about it now, I look forward to working with colleagues to ensure we address it in the future. This situation cannot continue to prevail. It is harrowing to hear the testimony of women and their husbands or partners who speak of bringing their dead babies home in the boot of the car, or waiting for DHL to deliver their babies' ashes. These are the real lives of people. It is incumbent on us to give them more than sympathy. We need to offer practical solutions that will allow them to address the plight they find themselves in.
Some people have come to me with very personal stories of inevitable miscarriage. They have told me about being treated with medication and sent home, only for that medication to fail to work. They may have been given some sort of intervention that did not work either. Some women have to wait for protracted periods of time - up to five or six weeks - while they wait for the inevitable miscarriage of their baby. Why are we not giving greater certainty to women who find themselves in the awfully traumatic circumstances of losing a baby? There is no need to prolong something that is sadly going to end. I do not understand why we are not seeking to clarify that for women. I have personal experience of this. One is sent home from hospital with medication, and it does not work. One is sent for a procedure, and it does not work. One loses one's baby at the end of it anyway. I do not understand why we cannot bring some solace to people who are really suffering as a result of this legal quagmire.
We are speaking about parents who are told their babies will not be viable outside the womb and mothers who are told their pregnancies will not result in the birth of babies. I thank Deputy Healy for tabling these amendments because it is important for these issues to be teased out and clarified in the context of this Bill. I agree with Deputy Conway that we must try to find practical solutions to deal with these genuine issues. We all need to knock heads together to ensure that happens.
I would like to ask a question about fatal foetal abnormalities. I have listened carefully to what the Minister and the Minister of State have said. Neither of them said they believed an amendment in relation to fatal foetal abnormalities would contravene Article 40.3.3° of the Constitution. The Minister of State, Deputy White, said we cannot take the risk that it might be found to be unconstitutional, but he did not say he thought it would be unconstitutional. I remind the Minister and the Minister of State that when Mrs. Justice Catherine McGuinness gave evidence to the Joint Committee on Health and Children on the issue of term limits during the second set of hearings, she made the point that it was open to the Oireachtas to make legislation and allow it to be tested at Supreme Court level. If that point applies to term limits, surely we could go down the same avenue in this instance. If that is not the case, perhaps the Minister or the Minister of State might clarify the reasons. Do they believe it would be unconstitutional to draft an amendment along those lines? That is not what has come across here There seems to have been a nuanced change in the Government's position on this aspect of the matter since the initial discussions on it.
I am not satisfied with the response of either Minister on these amendments. Many people who have anti-abortion views that differ considerably from my pro-choice position would feel that this aspect of the matter needs to be addressed. I do not think either Minister is doing that sufficiently. The Minister for Justice and Equality has described what we are subjecting women to as intolerable cruelty. The United Nations and other organisations have defined it as being akin to torture. It is cruel and degrading to force a woman to continue with a pregnancy, being congratulated by people, etc., even though she knows she will have no baby at the end of it. Such horrendous cruelty is beyond imagination. Approximately 1,500 individuals and their partners go through this every year. I do not accept that further delays in dealing with this are needed. The responses of the Ministers have made me more convinced that we can provide for this from a couple of points of view.
The Minister, Deputy Reilly, made the point that the purpose of this Bill is to clarify existing rights, basically as set out in the X case judgment, in legislation. That is the backdrop to the introduction of this Bill. Nothing in that statement precludes us from providing for terminations in other areas. The Government has a choice. It has chosen not to use this opportunity to include such a provision. The Minister of State highlighted clearly the argument made by the State in the D case. It is important to remind the committee that the State referred in that instance to "the potential" or scope for "further development of the law" and said serious consideration would be given to that possibility. Basically, the State was saying it is possible to provide for terminations in this scenario within the confines of our existing constitutional arrangement. I would argue there is always a risk with everything we do constitutionally. I would prefer to take that risk, to be honest.
I would not normally trust the Supreme Court, but it came up with the original X case ruling which provided that the risk to a woman's life does not need to be "immediate" or "inevitable". I do not think that aspect of the judgment has been fully factored into this Bill. The court was able to interpret the law in that regard. I would be quite confident that the court could facilitate a provision such as that we are proposing. A great deal of legal opinion would agree that it is possible to legislate for this within the confines of the Constitution. Rather than merely offering sympathy to pregnant women in these circumstances, should we not err on the side of legislating in this manner in deference to them?
A total of 90% of the population agree that this should be provided for and we could do it but the Minister is choosing not to do it. In terms of inevitable miscarriage, the HSE report on the death of Savita Halappanavar identified this legal area as being a problem. We have a problem now with the way this Bill is drafted around the definition of the unborn. Providing that it existed from the moment of implantation, giving that an equal right to life, rules out the possibility for a woman or a girl of a termination for a fatal foetal abnormality which without that could have been brought in. We need to consider that and to take out that definition of the unborn.
It is outside the scope of this section but relates to it, I would be in favour of including definitions in the cases of incest and rape, and appropriately qualified medical practitioners. It would be better to define them in this part of the Act in order to deal later with the offences criteria. We are missing an opportunity here and that is not good enough.
We are discussing this because very brave women who faced a horrendous, cruel and unacceptable situation had the courage to come forward and tell of their truly tragic circumstances, when they had wanted pregnancies but received a diagnosis that the foetus they were carrying had a condition that was incompatible with life. I repeat, incompatible with life. That is the key phrase which underlines the fact that legislating for terminations in this very particular and tragic situation is not in conflict with the constitutional requirement to uphold the right to life of the unborn because we are talking about a foetus that has a condition that is incompatible with life. Therefore there is no clash. There is a very strong legal argument to support that view that this is compatible with the existing Constitution, and let us remember that if we do not explore the possibility at least of including this in the legislation we are consigning more women every day to continue to go through these cruel and unacceptable circumstances. When this Bill passes, women may still have to bring their dead children back in the boot of a car as some have had to do. We have a moral responsibility to explore every possibility available to us in the context of this legislation to see if we can prevent that from happening. The Minister says we need constitutional certainty and therefore we cannot do it, much as we may sympathise with these women. I reject that argument completely. The Minister for State with responsibility for European Affairs, Deputy Creighton, in a different context, has said that the legislation------
We cannot refer to people who are not here-----
This is relevant to the discussion. It is a question of whether there can be a legal challenge to this legislation or whether we have constitutional certainty even about the existing legislation that the Minister is proposing. The Minister of State, Deputy Creighton, has pointed out that we do not have constitutional certainty about the Bill as a whole.
Would the Deputy speak on the Bill please?
This is about the Bill.
Under the terms of immunity and protection the Deputy may not speak about Members who are not present.
I am not casting any aspersions. I am talking about an argument that she made, that even setting this aside, there is no legal certainty about this Bill. It can be challenged. On the basis of the argument that the Minister of State is using we would have to strike down other elements of the Bill but the Minister of State is not proposing to do that. The Minister of State, Deputy White's, argument-----
There has been a misunderstanding about what I said but I will speak about it later.
The Minister of State has said that we cannot do this, as much as we might like to do it because there is not constitutional certainty on the question of whether this is compatible with Article 40.3.3o. I put it to the Minister of State that there is no constitutional certainty about other things that are included in the Bill. How is it that some things around which there is not constitutional certainty can be included but other things around which there is not constitutional certainty cannot be included? If it can be done in one instance it can be done in another. The Minister of State has a moral obligation to do it, given the horrendous nature of these situations. Surely we must explore that possibility. Jennifer Schweppe, who has written the amendment that Deputy Healy tabled, also proposed another way to approach it - if we do not do it as an amendment do it as an accompanying Bill which would be read together with this Bill so that if the accompanying Bill was struck down it would not impact on the main Bill. That is another option that the Minister of State could explore. We are asking the Minister of State to explore that, given the seriousness of this situation. I do not see what argument the Minster of State has for not exploring that possibility.
I fully accept that the purpose of the Bill is to clarify the rights that exist and I totally agree that we need constitutional certainty when we are dealing with the particular issue of TMFR. I am not trying to put the Minister on the spot but it is not being dealt with today and the vast majority of the women who came in and shared their stories with us will never ever use any legislation that is passed because please God, what has happened to them will never happen again. They are lobbying on behalf of future cases so that other women will not have to go through what they went through. Can the Minister offer any comfort or solace to them based on the fact that we cannot do it in this Bill but on the basis of what could or would be done in the future?
I will answer the questions raised. The law likes to deal with certainties. This point is made time and again. That makes it very difficult to deal particularly with inevitable miscarriage because that diagnosis is not always correct. It nearly always is but not always. That raises serious issues in the law, not insurmountable ones but ones that are beyond the scope of this Bill. In respect of the idea that, as Deputy Naughten referred to, the retired Supreme Court judge, Ms McGuinness, said, try it in the courts, the advice I have is that is not wise and we are not going there. I will take the advice from my Attorney General. I have to bear in mind that if this Bill is referred to the Supreme Court and is struck down on a point of law where I have been given advice and did not take that advice that would be very serious from my point of view. That is not a reasonable thing to do. That is not to disrespect other people's points of view or other people's legal views.
Deputy Daly talked about rape and incest etc. Clearly these are very serious situations but they are beyond the scope of this Bill and we have made it very clear that this Bill aims to clarify the law as requested by the European Court of Human Rights. I will be the first to acknowledge that the European Court of Human Rights did not specify that we need legislation but it was the view of the expert group in its deliberations that legislation and regulation was the best possible approach to take and that is why we have taken that approach. We have been very careful to put as much as possible into the primary legislation, leaving very little for the regulations. Clearly, the areas that have been mentioned are outside the scope of this Bill. Deputy Daly mentioned that there are 1,500 such cases a year. I am pretty sure that is not accurate and I will ask her later where those figures come from. I have no wish to embarrass anybody but it strikes me as an extraordinarily high figure which I do not see anywhere else.
Deputy Boyd Barrett raised some issues with the Minister of State, Deputy White, and I will come back to that.
On Deputy Regina Doherty's question, it is not possible for us now to address this serious problem which is a terrible tragedy for people to have to deal with. I, no more than anybody else in this room, do not feel remotely comfortable with the idea that women should have to come home from England with their loved one in a box to hide it from Customs. I know that is not right but I cannot deal with it in this Bill. That is the clear advice I have from the Attorney General.
To the extent that Deputy Clare Daly suggests that we have chosen not to do this in circumstances where we know we could, I reject that. That is not the case. I, too, know persons quite close to me who have been affected by this particular circumstance that members have described here and the humanity of it. So far as I, as a man, can ever understand it, I am aware of exactly what Deputy Boyd Barrett and others have described here in terms of the experiences of people I know.
If I thought that this could be achieved within this legislation, I can assure the committee that I would be pressing hard for it to be done. I do not believe that it can be done. The reason, merely to remind ourselves again, is that when the people put this provision into the Constitution in 1983, they put an enormously effective and restrictive measure into the Constitution which prohibited abortion in practically every circumstance that was imaginable apart from the one with which we are dealing in this legislation which is where there is a real and substantial risk to the life of the mother that can only be averted through a termination. When I say, "effective", it was intended to be restrictive and it has had that effect, save the very restricted circumstances with which we are dealing arising from the X case. It only allows a termination in circumstances, as I have stated, where there is a risk to the life of the mother. That is what the people decided in 1983.
Can I just say, since the issue has been raised and since we are having a frank discussion, I hope that issue is revisited in the future as I hope that clause in the Constitution is revisited. However, in the meantime, I have huge respect for this document, including parts of it that were put in by the people that I did not agree with, but it is in the Constitution and we must uphold it. In particular, members of the Government must uphold it. I would suggest the Oireachtas does as well, irrespective of how troubling it is that we cannot extend the provisions that we are making here to the circumstances that have been so well described by the Deputies, and I do not disagree with them or the strength of the submissions that have been made.
On Deputy Boyd Barrett's point about constitutional certainty, members of Government, Attorneys General and judges, are human beings. They strive to do the best they can. The Minister and the Government are saying that we have done everything. Every aspect of this proposed legislation has been gone through and carefully discussed and considered by the Attorney General as to its constitutionality, but one does not know definitively whether something is constitutional until it is tested by the Supreme Court. It is being advocated here that we should allow the matter to go back to the Supreme Court prior to enacting this legislation, in other words, we should either take a chance that the Supreme Court will say it is all right or pause this process and find some way of getting that issue before the Supreme Court. That is really what is being suggested here. That is not a sustainable argument.
On the point in relation to the European Court of Human Rights and the D case and how that came up in the court, it came up because what was being argued before the court was that the applicant D had not exhausted all her domestic remedies. What the Irish Government was saying in Strasbourg was that she could have a chance of this issue being dealt with in her favour in the Supreme Court and that it is possible, but, as I have stated, we cannot proceed on the basis of something that is possible and that might be decided by the Supreme Court. We cannot do that in legislation, particularly when one looks at how profoundly restrictive is the provision in the Constitution that the people put in there. That is the position with which we must deal. I find it in part very troubling, but we cannot operate on the basis that we ignore what the Constitution says.
Did the Attorney General advise that this was unlikely to get past the Supreme Court or that it was not a good idea to bring it forward? If she did so, is that information as to how they come to that conclusion ever made public?
The Minister of State acknowledged that there is no certainty.
In most aspects of life, there is no certainty.
Exactly, that is the point. Even with the Bill, setting aside this issue, the Minister is having to go on the balance of probability and the best advice he can get as to whether what he has put forward as being compatible with the Constitution will pass muster if it is challenged legally. The Minister does not have certainty, yet he is pressing ahead because he feels it is important to press ahead and because he advises that he has a reasonable chance of this passing muster legally. The point we are making to him here is that there is very substantial legal support, argument and advice that this provision we propose to allow for terminations in cases of fatal foetal abnormality also have a good chance - nothing is certain, as the Minister of State, Deputy White, stated - of passing muster legally. They have as good a chance, one could argue, as certain other aspects of it and that is why I was raising the other matter. I was not trying to bring it up. I was simply making the point that a former Attorney General has advised that other aspects of this Bill could be challenged. Presumably, that has not led the Minister to change the Bill. He is pressing ahead, even though he may face a legal challenge.
Anything could be challenged.
I will come back to the Minister of State.
My point is that given the seriousness of the issue, given the tragic nature of these situations and their frequency, and the moral obligation on all of us to do everything we possibly can to avert a situation where more women must unnecessarily go through these tragic circumstances, surely the Minister has an obligation to explore every possibility for including this element in the Bill.
The amendment is one proposal to the Minister. Ms Jennifer Schweppe has put another proposal, where the Government would essentially put the same amendment as an accompanying Bill. Even if that accompanying Bill, which would essentially be this amendment but set as an accompanying Bill which would be read together with the main Bill, were struck down, it would have no impact on the main Bill. Those are two options the Minister could explore and we are asking him to explore them.
I thank Deputy Boyd Barrett.
I did not really get an answer on that point.
I call Deputy Daly.
With respect to the Minister's response, I think he misunderstands what the Constitution does. He is correct that it gives protection to the life of unborn, but the point that has been raised by other legal opinion is that where there is no life to protect, the constitutional protection no longer applies. That is why fatal foetal abnormalities and inevitable miscarriages are potentially provided for within the remit of the restrictive constitutional provision.
I respect what the Minister states, that no diagnosis is ever inevitable, but that is the same for every medical procedure. The doctor makes the decision based on the best information that he or she has available.
The key problem with the Minister's line of argument is that many legal persons would have a different view. Critically, not only is he not dealing with it by defining the unborn as he is choosing to define it in this legislation, he is making it more difficult to deal with this issue in any other subsequent legislation which he states he supports because by defining unborn human life as existing from the moment of implantation in the womb and giving that protection, he is ruling out a potential for resolving this issue later on.
This Bill will probably be appealed to the Supreme Court anyway. It is not a reason for not proceeding.
The Minister stated that inevitable miscarriage is not within the scope of this Bill. I wonder if it is in the scope of any Bill. To reiterate what was stated, when dealing with medical matters - as the Minister, Deputy Reilly, will be aware more than most - there are often unanswered questions, and one must make the decision based on the information presented at the time.
On a second issue, I reiterate what Deputy Regina Doherty asked. Is there is any comfort we can offer to women who will be faced with these difficult decisions in the future? Like the Minister of State, Deputy White, I look forward to when we can re-examine the 1983 provision in the Constitution.
I have legal advices from the Attorney General, but it would be better for the Minister of State, Deputy White, to read them out, as he has been dealing with the more technical legal end of this.
It would be fair to say that the advice the Government has is that in circumstances in which there is a foetus with a condition that is incompatible with life, as has been described here, but which is capable of being born alive, such a foetus is likely to attract the protection of Article 40.3.3°. That, I think, answers Deputy Wallace's question as best we can, because that is the core of the advice the Minister for Health has from the Attorney General. That is the position: that a foetus with a condition that is incompatible with life - Deputy Clare Daly makes that point and I understand it - but which is, nevertheless, capable of being born alive, attracts the protection of Article 40.3.3°. That is a profound piece of advice that the Government cannot ignore.
How stands the amendment?
I understand and, indeed, respect the position that the Minister and Minister of State have put forward. However, I do not accept it. Other members have indicated that a previous Attorney General took a completely different view and invited the European court to take that view. Indeed, other eminent legal persons currently are of the view that, in the case of fatal foetal abnormality, it would be within the terms of the Constitution.
We also must be conscious of the issue raised by Deputies Regina Doherty and Ciara Conway. I understand the issue they raised and their bona fides in this regard. Both asked what would be the position in the future with regard to both fatal foetal abnormality and inevitable miscarriage. Of course, the Taoiseach answered that question for us during his contribution in the Chamber yesterday when he stated that this would be the final piece of legislation in respect of this issue. There is no medium-term solution to this problem unless it is solved in this legislation.
On inevitable miscarriage, I repeat that it is difficult to understand or believe that, having gone through the difficulties and tragedy of the case of the late Ms Savita Halappanavar, we still find that, effectively, this legislation does not deal with such situations and that, had this Bill been passed at the time, it would not have applied in her case or similar cases. It would appear that unless we deal with it now, the position will remain that medical conditions due to pregnancy that are not in themselves life-threatening - for example, miscarriage - must be allowed to become life-threatening before action can be taken. That position is not acceptable to me and I do not think it is acceptable to the vast majority in this country.
Deputy Ó Caoláin and Naughten indicated. I will come back to Deputy Healy at the end, if he does not mind.
Returning to the earlier part of this discussion, I asked the Minister, Deputy Reilly, if he still holds to the advices he has received that there are no other means of address legislatively for this very tragic situation for some women. Others will make the choice, as is their choice, to proceed to full term. It is those women for whom it is a nightmare and a torment every day.
It is important that we have clarity here. It is what the Bill is supposed to be all about. Is it the case, based on all of the advices at the Minister's disposal, that this can only be addressed by revisiting Article 40.3.3°? I am anxious to know whether that is the case because that is the advice we were given. In dealing with this, I have had to be guided by my party's policy on the broad issue. This policy was updated in 2008 and has been reaffirmed each year since, including this year. Fatal foetal abnormality was not an issue that was addressed in that context at that time. Sadly, it merely was not part of the parlance or of the issues of debate and discussion. Therefore, as with every other political party, there are views this way and there are views that way, and without the certainty of policy, it puts me in a very difficult position. However, I have articulated my own view internally and I am sharing it with colleagues here. I am anxious to see the matter addressed and I would be most concerned if the message we were receiving and redistributing out of this discourse was that there was no likelihood of an early address of these issues. That is a very sad message indeed. Is there anything that either Minister can add or offer at this point in time?
The Minister of State, Deputy White, made a cogent argument - I can see exactly where he is coming from - about the way in which the Constitution is worded at present. I have two questions. First, has the Government any intention of or has it given any consideration to putting before the people such an amendment to clarify the issue regarding fatal foetal abnormality? In the context of the current situation, Deputy Ciara Conway put it well when talking about the practical challenges that exist where women must go to England and must use the services of DHL or a similar company to bring the remains back. Within our culture here in Ireland, we have a great deal of respect for remains. Can a practical solution be put in place, at least, in the short term, to deal with that practical issue? The Minister might explain any plans to clarify the Constitution on that.
On my second question, I am glad Deputy Healy raised this. The impression is given that this legislation will somehow deal with issues in the context of the case of the late Ms Savita Halappanavar, and they will not. Could the Minister clarify the reason he has given, when discussing cases of inevitable miscarriage, that the Government is only dealing with A, B and C v. Ireland and the X case judgment?
Can the Minister clarify in relation to inevitable miscarriage, if there are practical barriers to including that in the legislation?
Everyone here knows my view on abortion and termination of pregnancies. I am quite public that I am very pro-choice. I have met the women who experienced pregnancies involving fatal foetal abnormalities. I am very committed to seeing the law extended to women who find themselves pregnant from rape or incest and, indeed, for other reasons. I have always held the view that it is a woman's right to choose. Listening to the debate, I respect what everybody is saying and respect their viewpoints and concerns about women and fatal foetal abnormality, miscarriage and other issues which have been raised.
The Ministers have said they have taken the advice of the Attorney General on the whole issue. Everything I have been reading and listening to over the past six to nine months suggests that the legislation will deal only with the Supreme Court judgment in the X case. It cannot include anything else, including the unfortunate women who have experience of fatal foetal abnormalities and the unfortunate women pregnant as a result of rape or incest or any other idea. No matter how often members of the committee ask the Minister these questions, they must take their advice from the Attorney General. That is not the past or any potential Attorney General, it is the person who is the Attorney General now.
I will campaign for a referendum to remove Article 40.3.3° from the Constitution. I do not see this as the end of the road. We are on the second round of amendments and Ministers have made clear their advice from the Attorney General. They cannot extend the legislation to include anything else. It is very regrettable but we must go with the legal advice we have. Chairman, I think we should really move on.
I point out to Deputy Healy who referred to a real and substantial risk to the life of the mother that such risk need not be immediate or inevitable. It is an important consideration when referring to the case in Galway. On Deputy Ó Caoláin's point, we are bound by the decision of the Supreme Court in the X case, the Constitution and the decision of the European Court of Human Rights. It is within those parameters that we are acting. We have always made that very clear. Deputy Naughten asked about a further amendment to the Constitution. The Taoiseach has made his position on that very clear. It is a matter for Government also. A practical solution on the return of remains is something worthy of exploration within the confines of the current law. No one here approves of a situation where someone has to go to extraordinary lengths to bring home the remains of a loved one.
It is very clear that there were a multitude of factors involved in the tragedy in Galway. It is not fair to say that the law would not have helped. It would have provided clarity to doctors, in particular in relation to a risk which might not be immediate or inevitable. There were a myriad of circumstances that led to the terrible tragedy. I express again my sympathy to the family of Savita Halappanavar and her husband, Praveen.
I have nothing further to say on the section. I thank the Deputy for raising the matter. I acknowledge that it is of very serious concern to many people in the country. I must act within the advice given to me and within the parameters in which I find myself. The Government has been very clear about the direction of travel in this context.
- Healy, Seamus.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Naughten, Denis.
- Ó Cuív, Éamon.
- Reilly, James.
I move amendment No. 4:
In page 6, between lines 4 and 5, to insert the following:
" "inevitable miscarriage” means the inevitable failure of pregnancy and death of a foetus, up to that stage of pregnancy at which, if born, it would be capable of life outside the womb;".
- Healy, Seamus.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Ó Cuív, Éamon.
- Reilly, James.
I move amendment No. 5:
In page 6, lines 30 and 31, to delete "which has regard to the need to preserve unborn human life as far as practicable" and substitute the following:
"which has regard to the need to preserve unborn human life as far as practicable and with due regard to the right to life of the woman".
The purpose of the amendment is to include in the section a reference to "due regard to the right to life of the woman". It reflects the language of the 8th amendment to the Constitution and clarifies the section.
Amendment No. 5 proposes to add text to the definition of "reasonable opinion" referred to in sections 7 to 9, inclusive, and 13 of the Bill. It refers to circumstances in which medical practitioners would make a decision on whether there is a real and substantial threat to the life of the woman. Given the requirements set out in Article 40.3.3°, practitioners must have regard to the life of the unborn in making such decisions.
The Bill in its entirety is focussed on protecting women's lives during pregnancy. This additional wording is not necessary and, for that reason, I cannot support Deputy Healy's amendment.
I thought this was an additional explanatory amendment and I am surprised the Minister is not in a position to accept it. In the circumstances, I agree to withdraw the amendment, reserving the right to re-enter it on Report Stage.
Amendments Nos. 6, 7, 10, 27, 31 and 45 are related and will be discussed together.
I move amendment No. 6:
In page 6, lines 30 and 31, to delete “as far as practicable”.
This is the only amendment in the grouping in my name, the rest being in the name of Deputy Billy Kelleher. This amendment tries to address the issue of potential late-term abortions. It is not the intention of the Government to provide legislation that facilitates late-term abortions. Everyone is in agreement with it and no one is in dispute. The difficulty is that the way the legislation was drafted means only the Medical Council prohibits late-term abortions taking place. Naturally, the rules and regulations of the Medical Council can change and have changed over time. Dr. Sam Coulter-Smith provided evidence to this committee on the point that there is no gestational limit. The Government has made the argument that it cannot legally include a gestational limit based on the X case determination. I am including an amendment to the definition, in respect of reasonable opinion, that deletes "as far as practicable".
I can provide a potential example, which I outlined on Second Stage. A woman is suicidal because she has a foetus with a serious abnormality and a limited lifespan following birth. If the woman, who does not have an underlying mental health issue, goes to a psychiatrist and says she is suicidal and does not want to give birth to the baby and that the possibility of giving birth to a baby with a limited lifespan is causing her suicidal ideation, the only way to fulfil the needs of this woman, who does not want to give birth, is to ensure the foetus is not viable in utero. This is especially the case if we are talking about late-term pregnancy. Foetal abnormalities are usually identified in the third trimester when they are on the cusp of viability or are viable. The definition of reasonable opinion, as currently drafted, allows for the foetus to be terminated in utero so that the foetus is not born alive because "as far as practicable" is included in the definition. The consultant psychiatrist can say that it is not practicable to give birth to this foetus because, on its birth, that will be the reason for the suicidal ideation. I am trying to provide clarity.
The heads of the Bill state:
This emphasis on preserving unborn human life as far as practicable governs the actual medical procedure – the termination of pregnancy only and not whether there is a real and substantial risk to the life of the mother. In circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain its life after delivery. However, that 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.
There is a need for clarity on the definition of unborn. If the words "as far as practicable" are left in legislation, there is a risk it could allow for late-term abortions. If the Minister has another mechanism to deal with it, I am happy to deal with it in that way. The difficulty is that it is a problem as currently drafted and it must be addressed.
I will deal with amendment Nos. 7 and 10 and Deputy Billy Kelleher will deal with amendments Nos. 27, 31 and 45. Amendment No. 7 seeks to make absolutely clear that good faith must be informed good faith. The person making the decision must do so in light of clinical research and medical knowledge. It is not a question of good faith but informed good faith in terms of best practice in modern medicine.
Amendment No. 10 relates to the issue that has been addressed, namely, trying to ensure we safeguard the life of the child once born and to make every reasonable and practicable effort to sustain its life after delivery. Section 5 refers to other treatments that have an equal effect but do not result in the death of the unborn, in which case those treatments must take preference. People have been postulating that medical treatment may be more effective in treating suicidal ideation than abortion, which many psychiatrists believe is not a treatment at all. The person presenting may not have any obligation, nor does the doctor, to take that into consideration in making the decision. It seems reasonable to me that if the doctor believes there is a better treatment, which does not result in the loss of the life of the unborn, the doctor cannot then say that he or she will not bother with the treatment and will recommend abortion. We must be absolutely clear that all other treatments must get preference, allowing that they are effective treatments, for someone who has suicidal ideation.
I will speak on amendments Nos. 27, 31 and 45. The latter includes "Notwithstanding anything in this section every attempt shall be made to explore with the woman, by means of counselling and support, alternatives to carrying out the medical procedure referred to in subsection (1).”." I raised this issue at the Oireachtas hearings. A woman may be vulnerable and in a crisis pregnancy situation. She is being assessed because of suicidal ideation and the threat of self-destruction.
I am just wondering, in the context of being assessed by a panel of two psychiatrists and an obstetrician and Article 40.3.30 referring explicitly to the obligation to vindicate the life of the unborn, whether a patient-clinician type arrangement could be put in place, whereby a suite of treatments that may be beneficial to the woman, as opposed to the ultimate step of termination, could be provided. Is there a mechanism by which to explore the treatments, counselling, therapy and supports that could be provided and all that flows from this prior to making the final step towards a termination to save and vindicate the right to life of the woman? The concern is that the panel will engage in a box ticking exercise, but there should be an obligation on its members that they would more than just adjudicate and behave like clinicians by giving support and advice to and provide therapy for the woman who may be suicidal because she is pregnant. Other treatments could assist her to deal with her suicidal threat.
With regard to the other issues raised, Article 40.3.30 will probably mean that amendments Nos. 27 and 31 do not need to stand, but if the article is explicit, there is no difficulty in inserting my amendments because they would give a belt and braces effect to the legislation. The medical professionals are obligated to do this and my amendments would give greater clarity to the legislation. Where the unborn may be potentially viable outside the womb, every effort must be made to sustain its life after delivery. Will they be accepted?
I am particularly interested in the Minister's response to amendment No. 45, under which there is potential for an assessment to be made in a cold, clinical way without providing a suite of supports, services, therapies and counselling for suicidal women deemed to be threatening self-destruction. At the same time, therapy and counselling could avert that threat, as much as a termination.
On amendment No. 10, I do not know of any other area of medical practice where we legislate to tell doctors how to do their jobs. I do not understand why such an amendment would be tabled. We have to trust doctors because if we do not, we are at nothing.
Deputy Billy Kelleher used the term "belts and braces" in discussing one of his amendments. If one is ever to introduce doubt, the best way to do so is to say something twice. If it is in the Bill, as drafted, why does it need to be provided for a second time? These are unnecessary and, frankly, on behalf of medical professionals, insulting amendments.
I oppose the amendments. They second guess the doctors' medical assessment of the case in such a way as to put pressure on them to take into consideration factors other than the health of the woman. That is problematic because it is directive when it should not be. This is entirely misplaced and could lead to the uncertainty that surrounded the Savita Halappanavar case, whereby people are not sure and are subject to different pressures and so on. These factors should not come into play. There has to be an assessment of the threat to the life of the woman. A real and substantial threat is all that should be taken into account.
I am concerned about Deputy Denis Naughten's proposal to delete the phrase "as far as practicable". Perhaps because of the common use of phraseology, there is sometimes a misunderstanding of what it is intended to convey. It means what it says - whatever can be done "as far as practicable". The amendment does not go beyond the impractical and I do not know that is necessarily what the Deputy hopes to achieve. The section is strong as it stands.
With regard to amendment No. 10, in particular, during the committee hearings all of the medical practitioners were in no doubt as to their obligations and I do not know that the Bill is in any way weak in conveying and substantiating the obligations in place, including the constitutional requirements. Given all of the evidence presented, the amendments do not address the role of medical practitioners, nor are they intended to convey a message to those who will be the front-line decision makers; they address a different audience entirely. They are superfluous and unnecessary because everybody understands the import of the focus and context of the Bill. I have no doubt that the obligations are well understood.
Deputy Caoimhghín Ó Caoláin has stolen my thunder because the amendments address an entirely different audience from the psychiatric profession and obstetricians. The reason they are not needed to clarify in law what Deputy Billy Kelleher proposes is every obstetrician and psychiatrist has a code of practice under which he or she practises. These are the Medical Council guidelines and the psychiatric best practice clinical guidelines which clearly state doctors treat patients. We do not need to tell them how to do so. We need to trust them to do so in the best interests of women.
Article 40.3.3o states: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right". That sums up the issue. We are going around in circles.
As Deputies Regina Doherty and Peter Fitzpatrick said, Article 40.3.3 includes the words "as far as practicable". They have to stay and I cannot accept that amendment.
The test must be met. The test concerns the risk to the life of the mother, not suicidal ideation. It is not about meeting the need but averting the risk to the life of the mother. I am not able to accept the amendments on all counts.
Several members referred to the proposed section 9(7), but one cannot be prescriptive in law about medical practice. It would be a dangerous place to go for politicians and I speak both as a politician and a doctor.
I refer to the issue raised by Deputy Éamon Ó Cuív regarding amendment No. 10. I have some sympathy for it, but I cannot accept it, as currently worded.
I intend to table an amendment in this area on Report Stage. The Deputy would be surprised at how complex this area is and on how the balancing of rights within the Bill must be carefully adjudicated. There has been much discussion with the Attorney General on this and we are probably coming near to an agreement on a wording that could satisfy the sentiment here. That said, I am not in a position to accept any of these amendments.
Amendments Nos. 6, 7, 10, 27, 31 and 45 seek to strengthen the Bill's provisions relating to the right to life of the unborn. The use of the phrase "as far as practicable" in legislation reflects the wording used in Article 40.3.3°. I am aware that concerns have been raised around the need to insert a gestational limit on carrying out medical procedures covered by the Bill. In this regard it is important to stress again that the proposed legislation only covers situations in which there is a real and substantial risk to the life, as distinct from the health, of a pregnant woman which may only be averted by termination of the pregnancy. To be clear, it will only allow a pregnancy to be terminated in situations where it is expected that a woman would otherwise die. It must equally be stated that a woman has a right to a termination but neither she nor anybody else has a right to terminate the life of a child or a viable child that is born.
With regard to the Deputy's other amendments, it is very clear that the life of the child, once born, must be sustained if it is at all viable. It should also be clarified that in such situations while a woman has a right to have the pregnancy brought to an end the provisions in the Bill intend to ensure that in circumstances where the unborn might be potentially viable outside the womb, doctors must make all efforts to sustain it after delivery. It has been suggested that the legislation should include a clear provision to that effect and an explicit reference to viability. As currently drafted the Bill prohibits the killing of a viable foetus and including a reference to viability would not provide any further clarity in that respect as different pregnancies become viable at different points in their development and a clinical foetal assessment would still be required, as it is now. To put it in common parlance, nobody has a right, be they the mother, obstetrician, a doctor or any citizen of this State or other, to end the life of a newborn baby that is viable.
In circumstances where the unborn might be potentially viable outside the womb doctors must make all efforts to sustain its life after delivery. However, that 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 opposed to her health, is threatened by a real and substantial risk that can only be averted by a termination of the pregnancy.
In addition, the Bill makes it clear that only medical practitioners on the register established under section 43 of the 2007 Act can make the relevant medical assessment. These provisions were made to ensure that the medical practitioners who will implement the Bill will follow best medical practice. In the Bill "registered medical practitioner" means a doctor registered by the Medical Council under the Medical Practitioners Act 2007. This definition refers to a person permitted by law to practise as a medical practitioner in the State. In the performance of their professional activities all such medical practitioners are, as a matter of law, subject to the ethical and professional control of the Medical Council. This is a key point. Practice will change and evolve as modern technology improves and changes. We cannot prescribe in law for something that could change next month in the prescriptive manner being suggested.
With regard to the second proposal, the Bill makes it explicitly clear that a medical procedure in the course of which or as a result of which an unborn life is ended is only permissible if the risk to the pregnant woman's life can only be averted by such a medical procedure. This is the critical point. If alternative options are available to the medical practitioners and they go ahead with such a procedure, they will be in breach of the proposed legislation. Therefore, I urge members of the committee not to support the amendments.
I thank the Minister for his response. I am trying to get clarity on the right to terminate a potentially viable foetus. The Minister said that the legislation clearly states there is not a right to terminate a potentially viable foetus. Will he clarify where that is in the Bill? I have not found it. That specific provision is very important in respect of some of the concerns that have been expressed about this Bill. Perhaps the Minister will identify it for me, because I seem to have missed it.
It is on page 6 in the definition of "reasonable opinion". It is defined "in relation to a medical practitioner or review committee, as the case may be, means an opinion formed by the practitioner or committee, as the case may be, in good faith which has regard to the need to preserve unborn human life as far as practicable".
The reason I have concerns about that definition is in regard to the example I gave earlier, that is, where a psychiatrist believes there is a real and substantial risk that a woman will follow through with terminating her own life unless she gets a termination of pregnancy and her suicidal ideation, or the reason she is suicidal, is that she does not want to give birth to a baby. The normal medical procedure in late term is induction, which is to induce the birth at an earlier stage than 40 weeks gestation. In those circumstances, that foetus could potentially be viable outside the womb and would have legal protection once born. If the psychiatrist is of the view that the process whereby the woman physically gives birth to a live baby is the basis of her suicidal intent, under the definition of reasonable opinion as it is currently worded is there not a responsibility to ensure that the foetus is not born alive because, from a practical point of view in respect of that particular woman, to give birth to that baby is the reason she has that suicidal intent? That is the concern. How does one deal with that issue in the legislation? There is no clarity in that regard in the legislation as drafted.
I reiterate what I said, neither the mother nor anybody else has a right to terminate the life of a newborn baby, whether that newborn baby is at 26, 28, 32, 38, 40 or 42 weeks gestation. The law here is very clear. The psychiatrist must form an opinion that the risk to the woman's life can only be averted through a termination, not a destruction. It is a termination, not a destruction. That is very clear. There has been some comment on this, which has been disingenuous to say the least, to suggest that babies would be aborted, as in destroyed, right up to the point of delivery at birth. That is utterly untrue. The legislation and the Constitution are very clear and, frankly, I do not think we can be clearer.
On Deputy Naughten's point, I agree with the Minister that it is clear. There is no doubt about its clarity. However, if I am wrong in that and if there is a question mark over it, which I do not believe there is, it certainly cannot be cured by this amendment, with respect to Deputy Naughten, as it would remove the requirement "as far as practicable". The constitutional imperative to protect unborn life is to protect it "as far as practicable" or, in the Irish version, "sa mhéid gur féidir é", and the Irish takes precedence.
I have enormous respect for Deputy Naughten. We could not accede to this amendment, whatever we might do about any uncertainty that there might be.
I call on Deputy Ó Cuív. I will come back to Deputy Naughten.
Will we deal with this point?
I take the Deputy's point.
I said at the start of my contribution that I accept this may not be an ideal wording, but I do not accept that the definition of "reasonable opinion" provides the type of clarity which the Minister and Minister of State believe it does. I accept their intention, which I said at the outset. We are all looking for the same thing. I do not believe that clarity is provided in that definition to deal with the circumstances I have raised. The Minister needs to consider some strengthening of the Bill to deal with that. I accept the point he made that there is no right to terminate a potentially viable foetus, but that is not in the Bill as currently drafted and I cannot see in any interpretation of reasonable opinion how that clarity is there.
The Deputy says there is no specific provision. The point is there is no right to do so. In other words, there is no positive right to do with what the Deputy is worried about. There is no right to end the life of the foetus. There is a right to a termination of pregnancy, but there is no right to destroy a foetus. It does not appear anywhere in the Bill. What the Deputy seems to be suggesting is that it should be stated that it does not exist. There is no requirement to say that something is not so. The right does not appear anywhere in the Bill.
The criminal law covers that.
I was slightly surprised that amendments Nos. 5 to 7, inclusive, and 10 were not taken together.
That is a matter for the Bills Office. The Deputy should know that as a former Minister.
I agree that whatever we do must protect the right to life of the woman. For anybody to believe that anybody in this room believes otherwise would be wrong. The explanation given by the Minister and Minister of State on amendment No. 6 is perfectly correct. As the Minister of State said, there is a subtle difference in the Irish version. It is hard to translate it exactly into English. The provision has to be included because in the real world it is very hard to foresee every situation. Some people have complained that what we are trying to do is to give direction to doctors. The whole purpose of the Bill is to clarify issues for doctors, or so we were told.
They are legal issues, not practical issues.
I will chair the meeting without any interruptions.
We are trying to create clarity where some doctors believed there was uncertainty. In opposing amendment No. 7 is what the Minister is saying quite simple? The essence of the amendment is that when a doctor is acting in good faith he or she has to take updated clinical and medical and scientific knowledge and best practice into account. Can the Minister reassure me that is the situation?
Did those who read the Bill discuss whether good faith meant informed good faith? I thought I heard the Minister say there had to be informed good faith using the best knowledge available to doctors at the time and based on best clinical practice. If the Minister can assure me that is implicit in the definition of "reasonable opinion", I will accept that.
On amendment No. 10, the Minister indicated he is considering the issue. We propose that, notwithstanding the provisions of sections 7 to 9, inclusive, and where in the reasonable opinion of a medical practitioner a course of action could reasonably and practically be offered to the pregnant woman which would avert the real and substantial risk of the loss of the pregnant woman's life which would not require the carrying out of a medical procedure in the course of which or as a result of which an unborn's life is ended they may not conclude that the risk in question can only be averted by carrying out that medical procedure.
The Minister can avail of the facilities of the Parliamentary Counsel. The purpose of my amendment is to give effect to the requirement of the ruling of the Supreme Course in the X case that a termination of a pregnancy is permitted where there is a real and substantial risk to the life of the woman which can only - the word "only" must be stressed - be removed by terminating the pregnancy.
It ensures that a medical procedure, during the course of which or as a result of which an unborn human life is ended can only be carried out as a last resort where there is no other reasonable or practicable treatment available. We are trying to say that all other options which have the effect of averting the real and substantial threat to life of the mother would have to be used in preference to one where the life of the unborn would be lost.
I welcome the commitment of the Minister to examine this issue. I will not press the amendment. I will wait until Report Stage if, as I understand, the Minister is considering a possible alternative wording which would put in more developed language the concept which I am trying to develop.
I need to address these points. Deputy Ó Cuív made a statement that the Bill is about clarifying the practice for doctors. It is not; it is about clarifying the law for them which will aid them in their practice. It is for them, their institutes and the Medical Council to prescribe what best practice is and to inform them, and there is an onus on them to be up to speed. We know that-----
We cannot clarify the law. We are making the law.
We are clarifying the law. I beg to differ. We have made that clear time and again. We are not conferring any new rights, nor are we taking any rights away from anyone. The European Court of Human Rights made it very clear that C was failed by this country because it was not clear to what she was entitled and how she could access it. We know from the medical profession that it is not clear to them what they are permitted to perform in terms of medical procedures. Our aim is to clarify the law as it exists, as bound by the Constitution and the Supreme Court ruling in the X case and the A, B and C v. Ireland cases. I want to clarify that.
I do not want to leave anybody under a misapprehension. "Reasonable opinion" does mean what the Deputy set out, in terms of being best practice which is properly informed and in good faith. They all have meaning, in particular good faith, in legal terminology.
However, the Deputy's amendment contains a lot of words which are overly prescriptive. I do not want to give him the impression that I will revert to him with something like that. As he mentioned, we are working with the Office of the Parliamentary Counsel and the Attorney General on making it very clear that there is a real and ever present onus on doctors to preserve the life of the unborn where at all possible.
There is a concern among people that because it is not stated throughout the Bill in a clear, consistent fashion that somehow it falls short of what will be required. I am putting the Deputy on notice that I will come back with an amendment to address that issue in the Bill. I cannot give the Deputy the precise details because it is still being worked on.
Having said that, our intention in this Bill is very clear, namely, to protect the life of mothers and, in so far as it is possible, also to protect the life of the unborn. We must all be careful in using words we might believe have the same meaning as others but which, in law, do not. A prescription to the effect that something can only be done if it is the only way to save the life of a woman would never be accepted in law because it could never be proved in law. A medical professional can, however, form a reasoned and reasonable opinion, and certify to that effect, that a particular procedure - which is to say a termination - is the only treatment available to avert the risk to the life of the woman. As I said, if alternative options are available to medical practitioners and they proceed with a termination without exploring those alternatives, they will be in breach of the legislation. I am confident that doctors will be extremely careful in arriving at such a decision because they know that the circumstances in which it is the only option are few and far between and, moreover, that all such instances will be of interest to people.
The Minister said there is legal clarity that a termination may only be carried out where the risk to a woman's life has been fully assessed and certified by specialists. Will he indicate where in the Bill that clarity is given?
I do not mind which of my amendments Nos. 10 or 45 the Minister might choose to accept. Indeed I am open to persuasion that neither is necessary because the existing provisions are clear. I am anxious, however, to clarify my intent in these proposals. Amendment No. 45 proposes the insertion of a new subsection (7) as follows:
Notwithstanding anything in this section every attempt shall be made to explore with the woman, by means of counselling and support, alternatives to carrying out the medical procedure referred to in subsection (1).”.
The objective here is merely to ensure that every effort would be made to explore all avenues other than a termination. It is not my intention to be prescriptive in terms of how clinicians should do their job. It is simply about requiring them to explore every possible avenue, which accounts for the reference to counselling and support. It recognises that there may be alternatives for a woman in crisis, and I am merely suggesting that clinicians should be obliged to explore those alternatives.
Amendment No. 45 also proposes the insertion of a new subsection (6) as follows: "Where the unborn may be potentially viable outside the womb, every effort must be made to sustain its life after delivery." The Minister has said that this requirement is already covered in the Bill and it would be overly prescriptive to include it here. I do not agree that the provision is overly prescriptive or would impose on the clinician's capacity to form a reasonable opinion. It is merely restating in the legislation what is set out in Article 40.3.3°. If the legal advice is that this provision is not necessary, that is fine. My intention, however, is not to be prescriptive in terms of how doctors arrive at a reasoned opinion but rather to ensure they are obligated to have the full information before forming that opinion.
I assure the Deputy that I absolutely accept the bona fides of his intention here. However, the legal advice is that it would be overly prescriptive and unnecessary to set the matter out in such a fashion. It is implicit in the Bill that what the Deputy is proposing will be normal and reasonable practice. There is no question of a situation arising where a person could attend two psychiatrists in the morning and have a procedure carried out in the afternoon. That might be what some people want, but it will not happen under these provisions. That is not the intent of the Bill. The provisions make clear that any decision to perform a termination must be based on a reasonable opinion arising from a full assessment of all the circumstances of the case. All the options must be explored, as the Deputy outlined. In some cases, however, it may be very obvious to a psychiatrist, for instance, that there is absolutely no need for a trial of anti-depressants. It would be very wrong to require doctors to inflict anti-depressants on every woman who presents in these circumstances. I hope nobody would suggest it.
I accept the Deputy's bona fides in seeking to ensure that all avenues are explored. There is no issue with that, but the wording has been carefully put together. As I said, I am discussing all of this with the Attorney General. The advice is that we cannot be prescriptive about practice because practice will change. Clinicians must deal with a myriad of clinical situations as they appear before them. The only certainty is that no book can prepare one for every eventuality.
I agree with the Minister's last point. In fact, one of the main problems with the legislation is that it is very difficult to foresee every situation that might arise. However, the principle I am trying to establish is quite simple, namely, that where there are two equally effective ways of dealing with a threat to the life of a woman, one of which would result in the loss of the life of the unborn and the other not, that doctors would be obliged to opt for the latter option.
The Bill is crystal clear that a termination will only be performed if it is the only procedure available to avert the risk to the life of the woman. If another option is available and the medical practitioner, instead of opting for it, proceeds with a termination, then he or she will be in breach of the proposed legislation. That is very clear.
Will the Minister clarify another issue that has come up in this debate which is especially pertinent in the case of persons who present with suicidal ideation? In circumstances where a doctor believes there is a more effective remedy than termination but the patient refuses to accept that remedy, can the doctor then sign a certificate to mandate a termination?
Is the Minister saying that as an absolute?
Yes. That absolutely will not happen because, in such a case, the particular test that is the basis of the legislation has not been met, namely, that a termination can only be mandated where it is the only treatment which will avert the risk to the life of the woman. If there are other treatments available which the doctor believes in good faith would avert that risk and the woman refuses them, the doctor cannot certify a termination. It is never possible to force a treatment on anybody without their consent, of course, but for a doctor to certify a termination, he or she must be satisfied that all other options have been explored and availed of. If a particular treatment course which, in the doctor's reasonable opinion, is worth a trial is declined by a woman, then the doctor will not be in a position to certify a termination.
I am concerned about the intent behind some of these proposals. Amendment No. 45, in particular, is effectively proposing the provision of directive counselling for women. That is an important point to make. The Minister said he will bring forward an amendment on Report Stage to deal with some of the concerns reflected in the proposals by Deputies Billy Kelleher and Denis Naughten. I certainly hope that amendment will not impose any type of enforced directive counselling on women. I assume that will not be the case, but amendment No. 45 makes an allusion to directive counselling and could well be construed to justify putting pressure on women. That would be utterly unacceptable.
The Minister has said that medical professionals will be provided with clear guidelines detailing where and when a termination can take place to save a woman's life. Will information on terminations performed be made available publicly?
On Deputy Richard Boyd Barrett's question, I reiterate that it is not my role to prescribe what doctors should do.
That is not my role as a Minister and it would be a dangerous road for us to take to prescribe to doctors what they do. I believe the intent here is to ensure that all means of dealing with the problem are explored. However, once we start specifying the use of specific words, we are into prescriptiveness. We must run away from that a wee bit.
It was to provide clarity, with consultation with the woman. It was not prescriptive.
Of course. I understand the intent and do not have a problem with it, but I have a concern regarding the wording. As Deputy Boyd Barrett commented, we cannot seem to be prescriptive to doctors or cannot be seen to direct them as to how to do their business. That is not a wise route to take.
In regard to the question on the guidelines, there will be guidelines and they will be published by the relevant colleges and institutes, the colleges of psychiatry, physicians, the institute of obstetrics and gynaecology, etc. The Medical Council will always be involved as well. On determinations, there is a notification process. I would like to clarify something here that may save us time later. The notifications I will receive on a monthly basis will be notifications that include the registration number of the doctor who performed the procedure and the registration numbers of the doctors who certified. Those numbers will not be published. They will be available to me, but they will not be published because that could lead to a witch hunt of those doctors.
The number of terminations will be published and the reason for them. This will not be the exact clinical reason, but the heading under which the termination occurred, whether it was a physical illness, an emergency physical illness or whether it was because of a risk from suicide. I must come back to this if members do not mind. Suicidal ideation has been mentioned numerous times and of course it is important in assessing the risk. However, it is the risk to the life of the mother from a suicidal intent that the psychiatrists must assess.
Can the Minister confirm that the number of the medical practitioner who certifies a termination is necessary will be recorded also?
Absolutely, but it will not be published.
I am reassured by the Minister's comments and await the amendment he may bring forward on Report Stage. Personally, I believe terms such as "reasonable opinion", "in good faith" and "as far as practicable" are appropriate. The one that causes some concern is "in good faith" and there may be a legal definition of "in good faith" on which the Minister would like to elaborate. Without the phrase "in good faith" being anchored into something like "best medical practice", it appears to give extraordinary scope to somebody who might be acting without being duly informed, though not with malintent, of what best medical practice is. In the context of provisions elsewhere in the Bill, this might ultimately constitute a fool's pardon for not having been appropriately informed. That is the concern. I welcome what the Minister has said and await the amendments that may be brought forward on Report Stage. The phrase "in good faith" appears to be extraordinarily wide. Will the Minister inform us of what it means in the legal sense?
I will allow the Minister of State, Deputy White, to comment on this too. My understanding of "in good faith" is that it has quite a bit of law around it. With regard to making a medical decision without full knowledge, that is medical negligence. It is medical negligence if a doctor is not up to speed with what is best practice and with modern day practice. We do not need to go back through some of the horrors of what has happened in this country's medical services over the past 30 years, to women in particular, to explore the consequences for a myriad of women in this country where that has been the case.
I thank the Minister for asking me to define "in good faith".
Not to define it, but to elaborate on it.
To some extent, it is a term of argument, but it is probably a term we all understand. We talk about people having bona fides, meaning they are not doing something for an improper reason or motive, or in a way that means they are stepping outside their professional competence and application to what they do. We often use the term "in good faith" if something was said in good faith. I suppose it means that people genuinely believe in what they say and they are not saying it for an improper reason or are not engaging in some sort of pretence. Good faith is the absence of bad faith. It means acting properly and honestly. Honesty is a factor and means genuinely believing what one is saying and not being motivated by any improper purpose.
This is just a small point in the interest of the layman looking on and there may be a legal explanation for it. Within the reasonable opinion, the case may be in good faith, with due regard to best medical practice. Will the Minister elaborate for the layman the reason the term "best medical practice" could not be incorporated into "reasonable opinion", perhaps linking his response to the guidelines and regulations?
We are told that "best clinical practice" and "best medical practice" have no legal status. Therefore, including them would undermine the "reasonable opinion". That is the stark and simple advice, but that is what it is.
What is the advice?
It has no legal status.
So the reasonable opinion will flow then from the clinical guidelines issued by the individual college.
If one was to include the phrase "best medical practice", what would be the consequence? The layman looking in at this would see that as reassurance, but what would be the legal consequence of including it?
I defer to my learned friend.
Looking at it legally, it literally begs the question as to what "best medical practice" is in any given situation. The default position must be a presumption by legislators that medical people will act professionally. That must be the default position, rather than the opposite. If we put in "best medical practice", it would be incumbent on us to go further and then start engaging in definitions of what that would be in this or that circumstance. We have an infrastructure for determining what best practice is, Medical Council guidelines and so on. However, including it in the Bill would beg the question and would require more definitions of what it entails and what we believe it should be.
Deputy O'Donnell and I are not medical people and though the Minister is, he is not here as a medical person but as a legislator. Legislators cannot presume to define what best medical practice is, but must rely on what the medical professional bodies determine it to be.
To finish on that point, I assume that this particular issue will be taken care of within the guidelines currently being prepared under the regulations. Is that a fair assumption?
I would think that it could equally be presumed that a doctor should act "in good faith" at all times. However, that is being put into the Bill as a specific requirement. I would have accepted it as a given that if one is a medical practitioner, one acts in good faith at all times when making decisions, but it has been included specifically in the Bill. There are legal subtleties to this, where one can include one of these provisions, but not the other. We should include according to "best medical practice" or "Medical Council guidelines", because these would give reassurance to lay people They wonder why one half of these proposals is included, bit the other half is not. That was the point of my amendment. If we can say that we do not include "best medical practice" because it is implicit, one would think "good faith" was also implicit. This is a cause of some angst for people looking at this.
Perhaps the Minister will have a logical explanation.
It is for the purpose of reassurance, but now it is being suggested that it is not reassuring.
Briefly, the point is that if one includes "in good faith" for reassurance, a similar reassurance would be given if everything had to be done according to "best medical practice" or some equivalent or according to "Medical Council" guidelines.
To reiterate, the expression "in good faith" has a certain amount of law built up around it. Some people say the term is not used any more in certain areas, but the Attorney General's advice is that it has got meaning with law and that there is law around it. However, there is no law around the term "best clinical practice".
That is why it has been left out.
On the subject of good faith, I have put this to the Minister on a previous occasion. I think there is a body of legal opinion that would accept that the standard of good faith is more subjective and that what is being sought - I imagine by Deputy Ó Cuív as well as myself - is a standard requiring more objectivity or reference to objectivity. For example, the 2009 Medical Council guidelines stipulate that psychiatrists undertake a full assessment of any suicide risk in light of the clinical research on this issue. Clinical research is an objective standard. The reason we are here is to codify a situation that has been unsatisfactory, but equally, we are given assurances that it is restrictive. That being the case, why do we have to imply something rather than stating it explicitly? We are talking about best clinical practice because the good faith argument and the use of that term in medical negligence cases has evolved to a point of requiring reasonable objectivity on the part of the medical practitioner. Good faith in case law, at least in part, would be seen as more of a subjective test. This speaks to the standard to which we require medical practitioners to operate. As I have explained in person to the Minister, I would be more comforted if we had reference to an objective standard here.
I am aware of Deputy Mulherin's concerns in this regard and I understand them. I have been reflecting on this. When we talk about clinical research we talk about a more objective base. That can often be to do with clinical research around medications and how they work. However, clinical research around assessing suicide is subjective. I do not believe that referring to it in the context of this Bill will advance the Bill. I think the Attorney General is of a similar view. Because of its subjectivity this whole area is the reason we have two psychiatrists involved in the certification process and also the reason for a second opinion, as opposed to any idea that a contemporaneous assessment could be done. The Bill explicitly states that a psychiatrist will have to form an opinion and that must be a reasonable opinion following a full assessment. This will take some time as it cannot be done in a morning. A second opinion must then be obtained. The two must jointly certify subsequently. I understand clearly what has been said, but not all clinical research is objective, and certainly not that which deals with assessing suicide risk and ideation, because it is a question of assessing someone with suicidal ideation and determining the risk it presents in terms of the intent to take one's own life. We talk a lot about suicide, which is a subject that causes much pain in Irish life today, and it requires much more research. I and my colleagues - particularly the Minister of State, Deputy Kathleen Lynch - are determined to address it. I do not wish to give the impression that this Bill is in any way changing our approach to the treatment of the threat of suicide or how it is assessed. Rather, it underpins and underscores the fact that it is a very real problem in Irish society, albeit one that is quite rare in pregnancy, and also one that is extremely difficult to assess. We do not have any biochemical markers and we have very little clinical research that is based on objectivity. There is a lot of research around the subject, but to say that it is absolutely hard evidence is difficult. However, I do not profess to be a psychiatrist, notwithstanding the fact that I spent 20 years visiting St. Ita's hospital as a visiting GP.
I reiterate that we have discussed the issue of certainty. We all recognise that it is very difficult to attain certainty in practically any part of this area of discussion. We want to strive for and to achieve it as best we can. I agree with Deputy Mulherin that there is an element of subjectivity in the notion of good faith. It has a high measure of subjectivity in the sense that one cannot look into another person's mind. I suppose one could perhaps demonstrate afterwards that the circumstances proved that the person was not in fact acting in good faith. To return to the point being suggested, that we insert the phrase "best medical practice", one would have to define medical best practice. One could not possibly leave a phrase such as "best medical practice" at large; it would have to be defined. How it would be defined could only be based on the tools already available, which are the standards set by the professions that are sometimes tested in cases of medical negligence. If this committee or any committee were to sit down and put together a booklet of what constitutes best medical practice, whom would we ask? We would have to ask the professional bodies and the colleges of practitioners, the GPs, the psychiatrists, the obstetricians and gynaecologists. We would have to bring them to the committee and ask their opinion of what is best medical practice in any particular instance. We would have to take it down in longhand and put it into the booklet because we would not be able to second-guess that.
There is no doubt that a medical person must make the assessment of best practice. The fact that the Minister is not willing to refer to best medical practice in the Bill is not very comforting. I do not know what to think of the Minister's description of clinical research in this area. This whole conversation is not much comfort, as we are trying to make sure this is a restrictive regime, but the Medical Council in its guidelines is saying that the assessment by psychiatrists should be based on clinical research. I refer to the many people who have a problem with the suicide ground. I would be quite happy if every practitioner who is a professional psychiatrist accepted that at a certain point a woman would actually require a termination. We are told it is one in 50 years, one in half a million pregnancies, but there is no clinical research data to support it. We are told it is because it is so rare-----
Please, could we hold one meeting only, out of respect for Deputy Mulherin? I am unable to hear her.
The knowledge and standards in professions are built over years of research and practice so it is not just a leap of faith. However, we have no road map because there is no medical evidence to support an idea that one in 500,000 should receive a termination based on the fact that she is suicidal and that this is the only way to avert that risk of suicide. I would be comforted if there was reference to an objective standard. If the area of psychiatry moves along and these things can be pointed to and supported by empirical medical evidence at a certain juncture, who can argue with that? That is why there is room for the likes of myself to argue about it; the roadmap is not there. At that point, what informs the decision of the psychiatrists? Is it their personal beliefs, or what?
I refer to the point mentioned by the Minister of State, Deputy Alex White, that it would be very difficult to define best medical practice in the legislation. This issue has been raised. If best medical practice were to be defined as that laid down by the relevant professional bodies, could this provide a wording?
Could one come up with that type of wording when defining a "reasonable opinion"? The term "good faith" in the current definition could be qualified by adding the words "best medical practice, as defined by the relevant professional bodies". Perhaps such a reference is already in the legislation. I think this would be a straightforward way of overcoming the-----
There is no definition of "best medical practice". I do not think there could be such a definition.
I am not saying that.
It might help the Deputy to note that there is a reference in the Bill to "medical speciality".
Where is that?
It is in the definitions section. It relates to the various doctors who are required to make the certification. The definition of "medical speciality" is the fourth or fifth one on the page.
I see it.
The Bill defines "medical speciality" as "a medical speciality recognised by the Medical Council under section 89 of the Act of 2007". There is a reference to a medical speciality that is supervised or ruled by the Medical Council in order to ensure some sort of freelance individual cannot-----
I accept that.
I have forgotten the point I was going to make in response to Deputy Mulherin, but I think this serves as an answer. We have to make a presumption - in good faith, if I can use that term - of best medical practice on the part of doctors. I remember now that I intended to reply to Deputy Mulherin's rhetorical question about whether the decisions of psychiatrists will be governed by their personal beliefs. The decisions of psychiatrists or any other professionals under this legislation will be governed by their professional judgment. I am not prepared to accept for one minute that anything else will govern it. There has been a great deal of debate, on both sides of the so-called divide, about how psychiatrists will act. I am not prepared to accept, and would never accept, that a doctor would act other than in accordance with his or her best professional practice and standards. That is the default position as I recognise it.
I know people are looking for as much certainty as they can have in this difficult area. I have to say that psychiatrists are informed by best practice. We have explained that a provision to that effect is not in the Bill because it does not have any legal standing. Psychiatrists will also have to be performing "accepted practice", as accepted by the Medical Council, which is informed by the College of Psychiatrists of Ireland. Obviously, that moves and changes. I think Deputies can be assured that anybody who steps outside what is accepted practice will find themselves in serious trouble. They will find themselves in deep trouble with the Medical Council and may be found to be in breach of this Bill.
Can the Minister repeat what he said at the beginning of that contribution? I could not hear him.
I was just saying that psychiatrists will be informed by best practice. We know we cannot include a definition of "best practice" in the legislation because it has no legal status at the moment. They will also work in accordance with "accepted practice", as defined by the Medical Council, which is informed by the College of Psychiatrists of Ireland. I think there is a great deal of reassurance in what I have said. We do not have objectivity in this area of medicine. We know that. That is why we have provided in this legislation for two psychiatrists, to ensure there are two opinions.
I asked the Minister a question when I spoke on this Bill on Second Stage. I have not yet received an answer.
Is this relevant to the section of the Bill we are dealing with?
That is fine. Go raibh maith agat.
I asked whether there was any evidence to suggest that a woman who was suicidal and had an abortion had a better quality of health afterwards. Can the Minister cite any studies to this effect? Over the last four or five months, we have met many women who told us they had been in a dark place since they had abortions. They are still trying to come to terms with what they referred to as their wrongdoing. They are really looking for some sort of forgiveness for what has happened to them.
Despite being a doctor, I cannot cite any such studies. I do not profess to know of all the studies that have been carried out in this area. I know there are many studies to show that women have suffered depression following terminations and have suffered depression before terminations. I know of very few studies of women who have come forward to say they have had terminations and feel they got what they sought. It is not for me to be judgmental in this area at all. I do not intend to be judgmental. I remind the committee that Dr. Rhona Mahony said it could not be ruled out that this would be necessary to save a woman's life at some point. Although it is said that hard cases make bad law, the Supreme Court judgment in the X case shows clearly that this is a legal option and we have to provide for it.
With the indulgence of the Chair, I would like to clarify something I said earlier.
I spoke about having personal experience of miscarriage. The media has misconstrued that as being a reference to me personally. I would like to clarify for the record that it was not me.
I move amendment No. 7:
In page 6, line 31, after "practicable" to insert the following:
"and where such opinion if formed on substantial medical grounds having carried out an assessment of any real and substantial risk to the life of the woman in the light of clinical research and having regard to the necessity, proportionality and justification for any such procedure in the clinical circumstances prevailing at the time".
I intend to propose this amendment again on Report Stage.
Go raibh maith agat. I remind Deputies that we will adjourn at 10 p.m.
That is a good idea.
As amendments Nos. 8, 20 and 21 are related, they may be discussed together.
I move amendment No. 8:
In page 7, line 6, to delete "section 7(1)(b)" and substitute "section 7(1)(a)".
I am proposing these amendments for the purposes of clarity. The substance of the provisions in section 2 - and indeed sections 7, 8 and 9, in respect of which I am proposing similar amendments - will remain unaltered. As I wish to ensure it is crystal clear to all concerned that the medical procedures in question will be permissible only if they meet the test laid out in the X case judgment, I have sought a drafting change to switch the order of the requirements in sections 7, 8 and 9. I commend these amendments to that effect to the committee. These clarifying amendments also require some technical drafting amendments to ensure the order in which the provisions now appear is consistent throughout the Bill.
Amendment agreed to.
As amendments Nos. 9, 39 and 42 are related, they may be discussed together.
I move amendment No. 9:
In page 7, line 8, to delete "section 9(1)(b)" and substitute "section 9(1)(a)".
Following on from my comments on the previous group of amendments, I am proposing these amendments for the purpose of clarity. They do not substantially alter the substance of the provisions of this section. Further to the drafting amendments, I am seeking to switch the order of the requirements in section 7, 8 and 9. These clarifying technical drafting amendments correct the text to ensure the order in which the provisions now appear is consistent throughout the Bill. I commend these amendments to the committee.
I move amendment No. 10:
In page 7, between lines 19 and 20, to insert the following:
"(4) Any medical practitioner involved in the treatment of a pregnant woman is obliged, subject to the provisions of this Act and the right to life of that pregnant woman, to safeguard the unborn and, where it is potentially viable outside the womb, to make all reasonable and practicable efforts to sustain its life after delivery.
(5) Notwithstanding the provisions of sections 7, 8, and 9, where, in the reasonable opinion of a medical practitioner, a course of treatment or course of action could reasonably and practicably be offered to the pregnant woman which would avert the real and substantial risk of the loss of the pregnant woman’s life which would not require the carrying out of a medical procedure in the course of which, or as a result of which, an unborn life is ended, they may not conclude that the risk in question can only be averted by carrying out that medical procedure.".
I would like to speak on this amendment.
The Deputy cannot do so because it has already been discussed with amendment No. 6.
That is okay.
I wish to signal a couple of points I intend to raise on Report Stage. First, I intend to bring forward an amendment which would insert a definition of "appropriately qualified practitioner" in line 25 of page 5. This relates to other amendments we will propose further down the road. In some places the current draft Bill is too prescriptive about who the practitioners should be. We need to debate that and I will propose that we have a heading that refers to a definition of appropriately qualified practitioners. That would include general practitioners, medical practitioners, midwives, obstetricians, gynaecologists and so on. That relates to other matters. I will also table an amendment on the definition of the unborn in section 2 which is problematic in that it defines human life as beginning at the point of implantation. This is a contentious issue to say the least and may cause problems in dealing with the issue of inevitable miscarriage and fatal foetal abnormalities that I would like to see dealt with. Many others have expressed their willingness to deal with this further down the line, whether in this legislation or elsewhere.
Finally, the issue we discussed earlier in respect of section 2 for the Government to consider, will be the subject of some amendment. In fact the Minister prompted the thought. He has referred constantly to viable life as the key definition. To Deputies who were concerned about what the Minister described as a misplaced fear that a baby that was born might be destroyed, he referred to viable life as the key issue. Working in another direction, that definition is very significant in terms of the debate we had about fatal foetal abnormalities because while the Minister rightly used that definition it also has an impact on the debate about whether the Minister's legal advice on fatal foetal abnormalities is correct if we talk about pregnancies in which the life is not viable and therefore there is not a clash with the right to life of the unborn because there is not a viable life. We are not talking about a viable life. I want to signal my intention on that issue.
I move amendment No. 11:
In page 7, lines 22 and 23, to delete “, or by another person pursuant to an arrangement entered into under section 38 of the Health Act 2004”.
This amendment seeks to limit the place where any of these procedures could be carried out to an institution managed by the HSE and to make it impossible for it to be done in private institutions.
This amendment aims to remove from the definition of appropriate institution those hospitals that are not owned by the HSE. The problem is that if we remove this wording it would exclude the three maternity hospitals in Dublin and the large public multidisciplinary hospitals in Dublin, which are not owned by the HSE, from the ambit of the operation of the Bill. This amendment would have grave consequences for the safety of women in the Dublin region and beyond and therefore I cannot support it.
In addition, the Deputy may wish to note that, as currently drafted, the names of all institutions which will be permitted to carry out the medical procedure referred to in this legislation lawfully have been listed in a Schedule to the Bill and any changes to these provisions will require approval of the Houses of the Oireachtas which should give him considerable comfort.
I take this opportunity to say that there will be a need for some technical amendments to that list on Report Stage because, believe it or not, the names of some of these hospitals are quite complex when one goes back to their original legal standing and charters, etc., and it is not as simple as it appears, even though it seems ludicrous that it is not so. For clarity, there are several women - there have been five already this year of whom I know and possibly more since I last checked - whose children had to be delivered in a model 4 hospital, such as St. James's or Beaumont because of serious co-morbidity around their cardiac status or indeed some young women with cystic fibrosis. They need to be transferred immediately to intensive care following the delivery so it is important that those institutions are covered. I hope that the Deputy will accept that it would be better to withdraw this amendment.
Members should please turn off their mobile phones because the broadcast of these proceedings is being interrupted. It is unfair to staff and to people who are watching this tonight.
Will the Minister confirm for everybody with any concern about this, that the Schedule at the back of the Bill is part of the Bill and cannot be changed without legislation?
I thank the Minister for that and for the clarification. That issue has been put to bed.
They have to be dealt with by order, which is a statutory instrument. I have made a commitment within the Bill that they would be laid before the Houses of the Oireachtas and can be changed by order.
My understanding is that it can be changed by order. Is that the case?
Yes that is correct.
The appropriate institutions specified in page 19 of the Bill include, as has now been confirmed, institutions that would be removed from the list if Deputy Ó Cuív's amendment were to be taken and that would be an impractical proposition. I have cross-referenced section 38 of the Health Act 2004. The Minister has the power under section 3 of this Bill that "any institution so specified shall be an appropriate institution for the purposes of this Act". The Minister can add to this list as he determines. I have sympathy with the reason Deputy Ó Cuív gave for his amendment but its construction simply is not fit for purpose. The situation cannot apply in any event, given the nature of some of the hospitals on which we depend. Their very nature as institutions is rooted in non-State support since they were set up and have been sustained throughout all the years, despite receiving substantial public moneys to continue their services.
Nevertheless, their status remains, as we know too well.
On Cork University Maternity Hospital, about which I spoke to the Minister with regard to scheduling, I presume that is reflected in the amendment coming up.
It will be.
I do not know, because I have not spoken to Deputy Kelleher, the reason he tabled this amendment.
It is Deputy Ó Cuív's amendment, in Deputy Kelleher's name.
It strikes me as relevant in one context, that is, in the area of competition law. Perhaps at some stage down the line other institutions which may meet the requirements set out here but which are not envisaged by the Minister would be licensed to carry out terminations certified under the legislation. I wonder whether this section has been looked at and proofed from the point of view of competition law. Is the Minister satisfied that the service should be available only in public hospitals where there is the appropriate accountability and reporting structure? Is the Minister satisfied that if it is extended elsewhere the same standard of reporting and accountability can be insisted upon? I can think of a number of examples in which the State and others have been dragged kicking and screaming to catch up in the area of competition law and it may well be the case that other private health service providers will seek to play a role at a future date. Is the Government satisfied that this is a service the State should consider making available at all appropriately qualified institutions, or only at publicly owned and accountable institutions?
In short, I suppose I could say the following. Currently, we do not have a licensing system. Therefore, this is confined to public hospitals. In the future there will be licensing, and if other private hospitals meet the criteria, of course they can be included. However, the important point to make is that such hospitals will then be subject to the same monitoring as public hospitals under the licensing arrangement and the competition issue will not arise.
If it were, as Deputy Creed suggests, my intention that it will only be open to public hospitals to provide this service forevermore, then I would be in trouble with competition law. Given that this is the beginning of a process, however, I am covered.
Is the skeletal definition of what services are required in these hospitals - in other words, the three medical specialities-----
One must be obstetrics.
To quote from the Bill:
treatment of women in relation to any one or more of the following:
(iii) post-partum care,
exclusively sufficient to safeguard the health interests of women? Given the range of medical specialities available in most maternity hospitals now, where they are co-located with a series of medical specialities-----
They are not.
-----such hospitals are the most appropriate place.
That is not the case at present. Holles Street hospital is not co-located. Neither is the Rotunda; neither is the Coombe; neither is the maternity hospital in Limerick. We must deal with the here and now. I accept Deputy Creed's statement that in the future matters will change. As matters change, the regulations in this Bill can be brought back before the Oireachtas and changed. As matters stand currently, in the case of the specialities, one of them must be obstetrics. In the case of the seven specialities, that is to address the very issue Deputy Creed raised - that it is a model 4 hospital.
The Minister may have answered my question. Would the level of hospital he envisages operating under section 3 of the legislation be a model 4 hospital?
Not below model 4. Within section 8, which deals with emergencies, from a practical point of view-----
Where section 8 is concerned, it could be a model 3 hospital. It could even be a model 2.
That is the point I am making. Outside of section 8, would the Minister envisage its being a model 4 hospital?
Model 4, yes. One must bear in mind that this includes hospitals that do not have an obstetric unit. Hospitals such as Portiuncula have the wherewithal to do such procedures. They are model 3 hospitals, but they have maternity units and, as Deputy Creed stated, they are co-located.
As far as I know, this was initially in the Bill we introduced at the time of the previous referendum. I refer to the concept we are talking about here: significant medical centres that are publicly funded, whether directly or indirectly, and that provide a wide range of services. It would not be possible under this law to have specialised clinics that would deal with terminations only. That is very clear from the import of the section and the details of the section in which the requirements for hospitals are laid down. Could the Minister, on a purely technical point, tell me what is the legal definition of "medical speciality"?
It is stated on page 6 of the Bill.
The Bill states: ""medical speciality" means a medical speciality recognised by the Medical Council under section 89 of the Act of 2007;".
Meaning no disrespect, does the Minister know what section 89 of the 2007 Act states? I am sorry. Maybe I should have looked up the reference.
I do not have it here in front of me but we can certainly make it available to Deputy Ó Cuív.
Will the Minister make it available to me?
Amendment No. 12 is in the name of Deputy Naughten. Amendments Nos. 12 and 13 are related and will be discussed together.
I move amendment No. 12:
In page 8, to delete lines 14 to 19 and substitute the following:
"(3) The Minister shall not make regulations under this Act without it being laid before and approved by each House of the Oireachtas.".
The reasons I tabled this are twofold. First, I believe that regulations on a piece of legislation such as this should have a positive vote of the Oireachtas. The Minister, in his contribution to amendment No. 11, gave the impression that regulations would be brought back before the Oireachtas. As the legislation is currently drafted, that is not the case; instead, they would be laid before the Oireachtas. In such a case the Opposition would be required to table a motion - usually in Private Members' time, because it is not normally given permission by the Government to move one in Government time - to strike out that statutory instrument and ministerial order. That is the difficulty. My amendment would provide that if the Minister wished to include other institutions in the list of those approved to carry out these procedures, or to make any other regulations that were required, he or she would have to table a motion before the House and get its approval. It would help to provide clarity and a safety net for some who have concerns about the legislation.
The second reason I tabled this amendment is that in December last when the Government made its initial decision, which was for a twin-track approach involving primary legislation and regulation, the Taoiseach made it quite clear that both would be published in tandem and that we would have the secondary legislation for consideration along with the primary legislation. As the Minister will be aware, this is an issue I flagged on Second Stage, when I seemed to get an indication from the Aire Stáit that there was an intention to produce regulations. However, we are on Committee Stage and we still have not seen those regulations. It would help to provide some of the clarity that is required regarding the implementation of this legislation. In view of the fact that under the legislation as currently drafted the regulation will be laid before the House rather than approved by the House, it is imperative that those regulations be made available to us to consider in tandem with the primary legislation. However, this has not happened. I urge the Minister to accept my amendment and allow for the regulations to be formally laid before and approved by the House prior to their enactment.
A similar issue arose on the Animal Health Bill. We have a problem with regulations being made all the time. They are signed and there is the negative idea that one does not annul them. I made a suggestion on that Bill somewhat similar to the one made by Deputy Denis Naughten, but with a variation, that before regulations could be signed by the Minister, draft regulations be brought before the appropriate Oireachtas committee, in this case, the Joint Committee on Health and Children, for debate. We are doing this in dealing with European Union legislation. When all such legislation is brought before us, we are advised in some cases that no further action is required and in others that we should have an input. In general, it is not specific to this Bill, but as part of our approach to Dáil reform, we should be proactive about regulations. I ask the Minister to consider, in the spirit of what Deputy Denis Naughten has said, bringing forward an amendment on Report Stage to provide that any regulation made under this Bill would be brought before the appropriate committee of the House for debate, before being signed, and that he would take into account its recommendations. That would reassure people tremendously and it would be good practice, if it was provided for systematically in all new Bills.
The amendments proposed by Deputies Denis Naughten and Éamon Ó Cuív are unnecessary because the regulations to be made under this Bill will pertain solely to the prescribed forms, in other words, the forms to be used in certification, for notification and to apply for a formal medical review. Everything else is included in the primary legislation. That is much preferable to having secondary legislation also. We have managed to include everything in the primary legislation. I repeat that the regulations to be made under the Bill will only relate to the prescribed forms. The standard procedures for the approval of regulations will be sufficient. Therefore, I urge that we do not support the amendments. Although I take on board what Deputy Éamon Ó Cuív has said, it is not pertinent to this Bill.
I may be mistaken, but I thought it was also said one could add to the list of hospitals by regulations.
I have no proposals to do so. It would have to be-----
I am sorry, but can we have one speaker at a time?
I understood the Minister to say that if he wanted to change the Schedule to the primary legislation, he could do so by order or regulations.
I also said I would lay them before the Oireachtas.
We all know what happens in the laying of regulations. My experience of laying regulations before the Houses of the Oireachtas is that because they are not brought before a committee or dealt with in a plenary session of the Houses, many Deputies have complained during the years that they missed regulations because of the hundreds of documents placed in the Oireachtas Library. In the case of EU legislation, we found that it was much better to place it before the appropriate committee in order that people would know about it and that they would not be able to argue they had not been warned. I hear what the Minister has said about the forms and accept it. However, given that he can change the list of hospitals in the Schedule, it would be preferable if the regulations were brought to the committee for debate before signing them. It would be a small step and allay people's fears that they could be signed, laid before the Houses of the Oireachtas and missed by everybody. I ask the Minister to consider coming back on Report Stage with a small amendment to ensure that would happen.
There is a real contrast between what the Minister has provided for in the legislation and what Deputy Denis Naughten seeks in his amendment. One involves a docile act of laying regulations before the Houses, whereas the other is proactive, it is the complete opposite in that one must seek the approval of the Houses, or the House as the case may be, depending on the timeframe involved. It is meritorious on the basis of good practice in terms of parliamentary performance. I would, therefore, be very sympathetic to the proposition made.
I am not 100% sure that I understand entirely what is being advocated in respect of an order to be made to add an institution. There is at this time no proposal to add an institution; therefore, no regulations are contemplated, as I understand it, to add a hospital. Is the Deputy proposing an amendment to section 3 to provide that were the Minister to propose to add an institution, the regulations should be brought before the Houses? Is the Deputy proposing that the adding of one or two institutions be the subject of a debate in the Houses? As that is one issue I have not discussed with the Minister, I am on somewhat of a limb. My personal view is that it would be excessive, given that if the Minister were to issue an order, it would be laid before the Houses for a period of three weeks and if somebody had an objection to it, he or she could say a particular hospital should not be added to the list. That is what we are talking about.
Let me make one general point as Deputy Éamon Ó Cuív spoke generally about committees and legislation. We are talking about statutory instruments. Without being political at this late hour, the Government has initiated serious reforms in the scrutiny of legislation; in fact, this legislation has been the subject of considerable pre-legislative scrutiny at the committee. When I was Chairman of the Joint Committee on Finance, Public Expenditure and Reform, we also did that in respect of various legislative items. That is already happening and is a very good advance. However, if all statutory instruments were to be the subject of pre-legislative scrutiny in committees, it would be an enormous additional volume of work for them.
I am conscious that we are approaching 10 p.m., at which time we have agreed to finish. However, if members wish, we can finish the debate on section 4.
We have a system under which there is a huge amount of European Union legislation, much of it pertaining to agriculture. Every few weeks we receive a long list of COMs-----
On the Bill, please, Deputy.
We receive the A and B lists. Some of the documents relate to olive oil and all sorts of items that have no relevance to this country.
Thank you, Deputy.
We immediately decide not to suggest any amendment or change and that is the end of the matter. However, now and again, a document is brought before us with which we have an issue and we pursue the issue. What we are suggesting in this case is quite simple, that regulations to include the name of a hospital be brought before the committee. If there is no issue with this, it would take the committee exactly 30 seconds to sort the matter out; if there is an issue of concern, it could be debated and the committee could make recommendations to the Minister. When I was Minister, I brought draft regulations before the relevant committee, to which I listened and I amended them. I found it to be a very good exercise and one that saved future difficulty. It is part of the change to ensure good practice that we need to make in the Houses. On that basis, I will support Deputy Denis Naughten's amendment, if pressed.
I would be happy-----
We will stop at 10 p.m. and make a decision on whether to conclude the debate on section 4.
I would be happy to support a provision whereby any substantive regulation would be put before the committee. I would not have a difficulty with this. However, I do have a difficulty with substantial regulations being laid before the Houses and, if not annulled within 21 days, being signed by the Minister, after which there is no further scrutiny. It is important that people realise what we are talking about. Section 4 reads:
(1) The Minister may by regulations provide--
(a) for any matter referred to in this Act as prescribed, or
(b) for any matter that appears to the Minister to be necessary or expedient for bringing this Act into operation.
(2) Without prejudice to any provisions of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be either necessary or expedient for the purposes of the regulation. It is a very broad canvas, therefore, we are giving to whoever is the Minister of the day, in regard to what-----
If I may stop the Deputy, it is now 10 p.m., the time we agreed to conclude. I propose we finish section 4 and conclude.
It depends on how long people wish to debate it.
Perhaps a quarter of an hour.
In that case we will adjourn.