Last night I was dealing section 4 which makes provision for the laying of regulations before the Houses of the Oireachtas. While I know it is not the intention of this Minister to bring in significant regulations at present, there is nothing to stop a Minister in the future from bringing in significant regulations. The wording of my amendment or the alternative wording in Deputy Ó Cuív's amendment would be acceptable. I hope the Minister can accept the principle of my amendment and agree to come back on Report Stage with a substantive amendment to the section.
Protection of Life During Pregnancy Bill 2013: Committee Stage (Resumed)
I too propose an amendment. I apologise if any member has raised a similar point already. I propose to amend the section as follows:
(4) For the avoidance of doubt, any regulations made under this section must be consistent with and acknowledge the right to life of the unborn.
Will Deputy Conlan speak on the principle of what he proposes rather than reading out the amendment?
The reason for the amendment is explicitly to limit the power to create regulation and to ensure that it complies with Article 40, 3.3o of the Constitution. I have already forwarded proposed amendments to the Minister, so he will be aware of my amendment, but it is important to ensure we comply with Article 40.3.3o of the Constitution.
I wish to comment on amendments Nos. 12 and 13. Generally I am in favour of regulations being laid before the Houses prior to implementation, but not in this case.
This legislation is urgent and important and has already taken more than 20 years to be published. I am concerned that these amendments may be used to further delay and procrastinate on the legislation. Therefore, I am not favourably disposed towards the amendments.
The Schedule contains a large list of hospitals. Have the hospitals agreed to be on the Schedule?
I remind Members that brief contributions would be helpful.
I will be brief, because we discussed this in some detail last night. Deputy Ó Cuív's question is not relevant because there is no right of refusal. In earlier debates we discussed the right of an individual to have a conscientious objection, which we fully acknowledge, as per the Medical Council guidelines. No such right is afforded to an institution.
Can I ask the Minister another question?
Very briefly. We have discussed the matter already.
The Minister is saying there is no right of refusal. There are hospitals which are private institutions, and they could refuse. The only sanction the Minister could take in that case, I take it, is to withdraw the money?
Okay, but they can refuse. Is that not correct?
That is fine. We can have a theoretical argument here-----
No. They might practically decide to refuse to be on the list.
That is quite true.
I wish to make a brief observation on amendments Nos. 12 and 13. Deputy Naughten's amendment is quite particular on the practice and methodology of regulations as they will present. They should be presented to the Houses for approval before their introduction and not just be laid before the Houses, as is the practice in so many instances.
Amendment No. 13, which was tabled by Deputy Ó Cuív, is very different. It is but a reiteration of everything that the Bill and the constitutional position already affirm. I do not see these two amendments as a case of either-or. They are anything but.
I wish to ask a question on the institutions that will be licensed under the legislation, an issue that I have raised before. What happens in the event that an institution adopts a policy of recruiting people who have a conscientious view of the legislation, resulting in the institution's having a diminished clinical capacity to carry out such medical procedures as may be required under the legislation? An institution may have a religious ethos or whatever, but there will be a certain view at senior management and board levels. The process of recruitment could be used to ensure the clinicians were of the same mind. That would diminish the capacity of the hospital to carry out such procedures, because it would not have clinicians available to carry them out. How could that situation be addressed in the Bill? We have talked about licensing 19 institutions and emergency departments in hospitals, and rightly so, in view of the fact that women who require terminations will often present at an emergency department. Suppose one has a tight group of like-minded very senior clinicians, comprising obstetricians, gynaecologists, anaesthetists and others? Their capacity could be diminished very quickly. My question is primarily on emergency department presentations as opposed to planned terminations due to a physical condition or on mental health grounds.
I will make two quick points in response. My colleague, the Minister of State, will also comment.
First, conscientious objection does not apply in an emergency because one has an obligation to save the life of the person in front of one. Thus, the emergency department issue would not arise per se. The other situation mentioned by the Deputy is theoretically possible, but we have to deal with what is real and in front of us. Staff availability is essentially an operational matter rather than a matter for the Bill, so it will be up to each institution to ensure that it has sufficient staff to provide a safe service to all of the people who attend. I have no more to say on the matter.
There is a danger of a slight misinterpretation of what we are talking about. Arguably the most important sections in the Bill - certainly the sections that people have been most concerned with or focused on - are sections 7, 8 and 9, which are the substantive sections. What they do, simply - I should not say "simply", as there is nothing simple about it - is to allow for procedures to occur in certain circumstances where there is an onerous test and so on, as we have discussed, but also, it restricts the places in which such procedures are permitted to take place to certain institutions. It simply says that it is only permissible for these procedures to happen at these institutions. People have gone off on a complete tangent talking about compulsion and lists. The legislation is just saying that it is permissible for the procedure to take place but it must take place in these institutions.
With regard to Deputy Kelleher's question on recruitment practices. Hospitals, like every other organisation, must abide by the law of the land in their recruitment procedures, including equality legislation. I have considerable doubt in my mind that a hospital could so order its affairs as to recruit people with certain views and exclude people with other views.
I have a list of people who wish to comment and I call Deputy Conlan first.
With regard to the institutions, I am concerned about what is stated at the end of section 3(1).
We are debating section 4.
I know, but I want to ask about the institutions. I listened very carefully to what the Minister said on Second Stage about ensuring that private clinics could not be included in the Schedule. I am concerned about section 38 of the Health Act 2004. If that last part of section 3(1) was excluded from the Bill under discussion, that would mean that no future Minister could change the Schedule.
I have a question on section 4, which deals with the preparation of certification and prescribed forms. Will the Minister elaborate on the certification process?
My questions are also linked to section 19. Certification will apply to procedures that are granted, but will it also deal with procedures that are refused? When does the Minister expect regulations to issue? Where do clinical guidelines fit in and what is their status?
We can discuss the conscientious objection dilemma again when it arises later in the Bill.
I want to make it clear that I have no issue with sections 7 or 8. I presume that if there is a real and substantial risk to the life of the mother a doctor is utterly obligated to preserve her life. That has always been the medical practice and it would be outrageous if this were not the case. I do not think anybody would argue with that view. Section 9 creates all sorts of contradictions but we will discuss it later.
Deputy Naughten asked a relevant question. Section 4(1) states:
The Minister may by regulations provide—
a) for any matter referred to in this Act as prescribed.
I presume that the words "as prescribed" have been used in a number of places throughout the Bill. Unfortunately, I have not had a chance to check everywhere for the phrase. Can the Minister summarise all of the sections that contain these words?
We are only debating amendment No. 12.
I am discussing the purpose of the amendment. Section 4(1)(a) gives the Minister the power to make an order and states "for any matter referred to in this Act as prescribed." When the phrase "as prescribed" is used in the Bill, it means the Minister is allowed to make an order on that subject.
I get a bit woolly on the limitations of this legislation. Section 4(1)(b) states: "for any matter that appears to the Minister to be necessary or expedient for bringing this Act into operation." I ask the Minister to explain the breadth of that provision. Section 4(2) states:
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.
It is important that we clarify the exact breadth of the powers being given to the current and future Ministers to bring in regulations. One such power of which we are certain will be the power to nominate hospitals. It would be far preferable for such a regulation to come before the Houses or the sub-committee in draft form. I will be supporting Deputy Denis Naughten's amendment unless there is a commitment by the Minister to introduce a similar amendment on Report Stage. It is important to know precisely what powers we are giving the Minister. They certainly seem very extensive.
I raised this issue last night and Deputy Éamon Ó Cuív has also articulated it, but it has not been addressed. Significant powers are assigned to the Minister under subsections (1) and (2) of section 4. As I said, I accept that it is not the intention of the current Minister to bring in significant regulations under these provisions. The reality, however, is that once this legislation is enacted, it will be open to any Minister at any future date to introduce fairly significant regulations by order which may be nullified but not approved by the Oireachtas.
I made two points in this regard last night. First, it is bad practice to include such provisions in any Bill. There should always be a requirement for some form of approval, either by way of the mechanism suggested by Deputy Ó Cuív or in accordance with my amendment. Second, in this particular instance, the Taoiseach gave a clear commitment when the Government decision was made in December that we would have regulations in tandem with legislation that we would have the opportunity to consider those regulations. That has not happened. It is imperative that any regulations introduced under this particular legislation are subject to approval by the Oireachtas, whether through scrutiny by this sub-committee or by being laid before both Houses. I urge the Minister, in light of the scale and scope of the powers assigned to him under section 4, either to facilitate my amendment or to undertake to bring forward an alternative wording on Report Stage which reflects the thrust of the proposal.
With respect, Chairman, we covered all of this last night. I am not prepared to have another lengthy debate on issues that were already discussed. With respect to Deputy Éamon Ó Cuív, the Bill was published on 14 June. If he wishes to go through it all and point out where these particular provisions might apply, that is fine. I, however, do not propose to spend the sub-committee's time going through every area where there might possibly be applicability. That is neither a proper nor an appropriate use of the sub-committee's time.
I have been very clear that these regulations apply only to forms and to the issue of the designated hospitals. That is my stated position and it is all I have to say on the matter. We can go around the houses all day if that is what people desire. That is a matter for the sub-committee, but I have no more to say on this issue.
With all due respect to the Minister, I am disappointed that he is not prepared to address the substantive issue I have raised. For the sub-committee's information, the word "prescribed" is used 11 times in the Bill. From the outset, therefore, there are 11 opportunities for the Minister to introduce regulations under subsection 4(1)(a), never mind in regard to the other categories. In other words, there is substantial scope in the legislation for a potentially broad spectrum of regulation. As I said, I am disappointed that the Minister will not agree to comply with the commitment given by An Taoiseach at the time of his announcement last December. I will be pressing the amendment.
I do not dispute - or perhaps I should say that I do not have the information to dispute - the Minister's assertion that these provisions are really to do with forms and so on. I take it he is referring to the forms that will be used by medical practitioners in the certification process. Will he clarify whether it is envisaged that certification will issue in respect of all applications, whether they result in certifications of entitlement or certifications of entitlement denied?
Section 19, which deals with certification, specifies that a certification "shall be made in the prescribed form and manner". That seems fine. However, it also stipulates that the certification must "contain the prescribed information". In other words, the question of what information is included on the form will be decided by the Minister. This sub-committee would be very interested in having some input into that decision before it is signed off by way of regulation. We are not just talking about name, address and so on; it is a question of deciding precisely what information is or is not certified. There is a great deal of interest in this issue and the members of the sub-committee will certainly want to know what information will be on the form.
The Minister's dismissive response that it is only about a form is a little simplistic. I cannot understand, in the interests of general good practice - Deputy Caoimhghín Ó Caoláin was very eloquent in his comments on this matter - why we insist on bringing all EU legislation, often containing provisions that have no relevance to Ireland, before the relevant committees for scrutiny - there has been a great deal of talk about a role for the Seanad in this regard-----
The Deputy should speak on the amendment. He is digressing and repeating points that were discussed last night.
-----while at the same time there is a refusal to put into law a requirement that the relevant Oireachtas committees examine statutory instruments.
The Deputy made those points last night.
The point I am making is that the Minister's very dismissive view is particularly disappointing when he could so easily accept the amendment. I realise, of course, that he is getting advice from his officials that it would mean more work for them and that he should instead keep life simple - that legislative scrutiny is not something we really need to take seriously when it comes to Dáil reform.
The Deputy should be careful in his remarks about officials.
It is totally false to claim that our position on this amendment arises out of that type of advice from officials. Deputy Éamon Ó Cuív was a Minister for long enough to know exactly how the legislative process works. He is also perfectly aware that statutory instruments and orders made under legislation can only be made within the four corners of what is provided in the legislation itself. Deputy Ó Cuív knows that perfectly well, as does Deputy Naughten. It is a little disingenuous to suggest, as the Deputies certainly seem to be suggesting, that orders would be made by the current Minister or a future Minister which would in some way be questionable or would step outside what the Oireachtas is doing in this legislation.
Nobody made that claim.
Both Deputies, but Deputy Ó Cuív in particular, know very well that this cannot happen. The Supreme Court has been very clear on several occasions, including a couple of years ago in respect of industrial relations legislation, that the Oireachtas is supreme in terms of making legislation. I am sure all members of the sub-committee are aware of that. I can only wonder, therefore, what is going on here. The provision in section 4 is standard, as anybody can see.
With all due respect to the Minister of State, if he goes back through the Official Report he will see that I have raised the very same issue in the context of every single Bill with which I have engaged. I have been entirely consistent on this issue. Anybody with experience of the Opposition benches knows how frustrating it is when there is no opportunity for debate on a controversial statutory instrument.
This Bill includes 11 specific provisions whereby the Minister may prescribe certain matters by way of ministerial order or regulation. My argument is that these matters should not simply be presented to the Oireachtas as a done deal but that there should instead be consultation with the Oireachtas. This is a very emotive Bill and it is important, especially in light of the comments made by the Taoiseach last December, that we have a mechanism to allow for that type of consultation. It is unfair to suggest that I have some ulterior motive in tabling this amendment. The Minister of State can go through every debate to which I have contributed and he will see that I made the exact same point in every case in regard to the making of regulations.
I wish to respond to what the Minister of State said.
I ask the Deputy to be brief in his response.
It will take whatever time it takes. I am very well aware, as a former Minister, of the limitations of what one can do under a statutory amendment. I am absolutely aware of that. However, taking section 19, for example-----
We are dealing with section 4.
There might be a wide range of information required, including additional information in the future and so on.
Therefore, within the limit of what a statutory instrument can contain, different opinions, views and information could be sought.
The committee will draw up the form.
The committee would be informed what information was proposed in the statutory instrument and that would then delimit what would be in the form. When I was a Minister, I came to the conclusion that draft statutory instruments should be brought into the House for debate. I put that into operation, although it was not a statutory obligation at the time, but I regretted that I did not made it a statutory obligation. I found doing that very useful and found that I got a better statutory instrument at the end than I would have if I had just taken the statutory instrument through without debate. I was told and advised at the time that I was creating extra difficulty for myself and putting extra pressure on staff and so on, but I still believe that if we are serious about legislation - and statutory instruments are secondary legislation - the more we involve the House, the less controversy we will have in the long term. I believe this is a case in which the Minister could accept the amendment, but, like so many things here, it is a case of more hurry, less speed. In the end of the day, the row starts after the statutory instrument is signed. We then have a big row about it, but it could all have been resolved if we just chose a date, got its view of the committee and then put it through.
Deputy Creed raised the issue of the forms and asked whether they will show failed applications. They will not. However, the reviews will all be recorded and the result of each review will be recorded. It would not be feasible or possible to record each application because of how this will operate in reality. I admit that one would like to be able to show how many people applied and whether they were successful or unsuccessful, but there is an issue of privacy. I know Deputy Creed is concerned about this, but the privacy rights of the patient are the concern here. As a doctor, I have some experience in this area and can draw a corollary for the Deputy. If an employer asked me for all the notes for work that I had given somebody over the past three years because he had lost them, I would have no problem doing that and the patient could not really object. However, if the employer asked me how many times the patient had sought a note for work and I had declined, I would be in deep trouble if I provided that information as that would be an invasion of the patient's privacy. Therefore, providing the information being sought here is not doable and would not work.
I understand why the Deputy might like such information to be available. For instance, somebody could come in suicidal following an initial review and assessment and make a request. On this second occasion the consultant concerned might form the opinion that this constituted a real risk and seek a second opinion. Then, perhaps during the course of the second opinion, the patient's situation might change. For that to be recorded would not be allowable under legal privacy rights of patients or under Medical Council guidelines. I could not see that being allowed. I hope this explains the reason not to accept the amendment.
I raised the issue not out of prurience or to know who the individuals concerned might be. Section 15 makes provision for the reporting mechanism and provides for it to be anonymous. However, in the context of governance and of being in a position to have an informed overview of the effect of the legislation, we need a record. It is not just about the number of applications that have been certified. The certification process will only deal with those who have been granted an entitlement, be it under section 7, 8 or 9. We need the information in the context of being able to say we have an informed overview of the operation. We should be able to say we had X number of applications, of which 5%, 50% or 80% were granted under section 7, 20% under section 8 and X amount under section 9.
The information being sought does not seek in any way to compromise the identities of applicants. It is purely so that we can know the numbers who seek to avail of the procedure, whether they are subsequently granted or refused permission. The information made available should not identify the patients in any way. Provision is made in the review mechanism for the information to be provided in an anonymous fashion. Therefore, in the context of regulations, which one would say is about the forms used, etc., these might be an appropriate vehicle to provide this record. If not, this is something that could be included separately in sections 7, 8 and 9. In order to have the appropriate overview so as to know effectively what we are providing for and the results in terms of availing of the provisions, it would be useful to know how many people applied and were refused. It seems like a contradiction that we will make that provision available on review but it is not being included in the regulations. Perhaps it is in the context of the forms that we should provide for a record of "certification granted" or "certification denied".
I am not a member of the committee and had not intended to contribute but I must speak now. Making something up as one goes along is wrong. The Minister is well qualified and I believe that as a qualified doctor he knows in good faith what he must do with this section. We have had enough debate on this issue between last night and this morning. Deputy Naughten said he wanted to press the amendment, so I believe we should vote on it.
Thank you. Does the Minister wish to respond further?
No; I am quite happy to go along with Deputy Byrne's contribution.
I move amemdment No. 14:
In page 8, between lines 27 and 28, to insert the following:
Medical treatment lawful under this Act
7. It shall be lawful to carry out a medical procedure in respect of a pregnant woman in the course of which, or as a result of which, a pregnancy is ended, where —
(a) the medical procedure is carried out by an obstetrician at an appropriate institution, and
(b) subject to section 19, a medical practitioner, having examined the pregnant woman, has certified that an inevitable miscarriage is taking place.”.
- Healy, Seamus.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Ó Cuív, Éamon.
- Reilly, James.
Acceptance of amendment No. 15 will mean the deletion of section 7.
I move amendment No. 15:
In page 8, between lines 29 and 30, to insert the following:
“7. (1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, an unborn human life is ended
(a) the medical procedure is carried out in accordance with regulations under this section,
(b) the unborn is potentially viable outside the womb, the medical procedure employed shall not impede all efforts to sustain life after the complete emergence of the human life from the body of the woman,
(c) regulations under this section shall not contravene current evidence based on medical treatment, or
(d) regulations made under this section shall not come into force without being laid before and approved by each House of the Oireachtas.”.
I accept that I am probably in a minority of one in the committee on this issue. The argument has been made by some people that the reason suicide must be included is because of the X case judgment and that the Government's hands are tied. It is argued that if the Government does not make specific provision for suicide it is in contravention of the judgment in the X case. I made my point on Second Stage that I do not believe this to be the case and I have put forward this alternative amendment that facilitates what I think was the original intention of the Government to legislate and regulate. Section 7 is a facilitating section to allow for regulation to be published and approved by the House to deal with the substantive issues as outlined in the current sections 7 and 8 dealing with emergency medical situations and non-emergency medical situations. It can then remain silent on the substantive issue of suicide. It does not contravene the constitutional determination in the X case. I accept it would not be in tandem with the views of a great many Members of the Oireachtas but I know that many Members have concerns about the suicide provision.
I wish to make specific reference proposals in amendment No. 15. Subsection (d) would allow for approval of the regulations by both Houses of the Oireachtas. This would give the Oireachtas an affirmative role with regard to any regulations to be published. My proposed subsection (c) provides that regulations under the section shall not contravene current evidence-based medical treatment. The consistent evidence the committee received from the witnesses in the hearings did not give any substantive evidence to support the inclusion of suicidal intent in the legislation. I refer the committee to a typographical error in that the word, "on" should not be included. If the amendment is accepted I hope that word can be removed. The Minister in earlier contribution made the point that there is no right to terminate a potentially viable foetus and I accept his point. The Minister of State, Deputy Alex White also clarified that point. This particular phrase in my proposed subsection (b) ensures that this actually happens and is the reason I have included it. If this amendment is not accepted - which is probable - I would hope the Minister would consider the wording in my proposed subsection (b) to be included in the Bill. I have tabled this proposal because of genuine concerns raised by psychiatrists who gave presentations to the committee hearings. Professor Veronica O'Keane made the point that if a woman presents to her with suicidal ideation or suicidal intent she has no choice but to believe that woman and deal with it on that basis because there is no way of disproving what the woman says. That is the reality of the situation.
I accept the evidence based on UK research which shows that one pregnant woman in every 500,000 will die by suicide. However, the difficulty is that quite a substantial number of women can have suicidal ideation and suicidal intent during the course of pregnancy. Research I referenced during Second Stage indicates that in the developed world it can be somewhere between one in eight and one in three, which is a substantial number of pregnancies.
In light of that, I ask the Minister to give consideration to my point and reassess how the overall legislation is presented to the House.
I speak against this amendment and dispute what Deputy Naughten stated. I heard very different evidence from the same experts he quoted. Dr. Veronica O'Keane clearly stated in her testimony that crisis pregnancy is the number one risk for teenage girls in terms of suicidality; there is no disputing that. Dr. Anthony McCarthy, the president of the college of psychiatrists, who I understand is involved in maternal death inquiries - which are done in an anonymous way - would also say there are pregnant women who die perhaps for reasons of suicidality, but the results of inquiries are often recorded as open verdicts because of family considerations and sensitivities. In addition, the chief medical officer of the Department of Health, Dr. Tony Holohan, stated that although this is rare, it happens and we must legislate for it. I dispute Deputy Naughten's statement and oppose the amendment. I may speak again later.
As mentioned, the regulations only pertain to the prescribed forms and therefore will have no bearing on the operation of Chapter 1 of the Bill. All the required principles and policies for the operation of the Act, including the provision to ensure that the right to life of the unborn is vindicated where practicable, have been enshrined in the proposed primary legislation.
I will not tease this back and forth. We have all debated these issues and know exactly what they are in this case. I have articulated my concerns in this regard and for that reason I will press the amendment.
I will make one brief comment, if I may. I am concerned about the construction of the amendment, even in terms of Deputy Naughten's stated intent, which I do not question. If one follows the construction through, in view of the fact that the phrasing of section 7(1) must be capable of being read consistently into each of the subsequent subsection paragraphs (a), (b), (c) and (d), the amendment is not fit for purpose as presented, with no disrespect to the Deputy. In regard to (b), the short read would be "it shall be lawful to carry out a medical procedure in the course of which an unborn human life is ended where the unborn is potentially viable outside the womb". That is not what the Deputy suggests but it is open to that interpretation. There is a great requirement for exactitude and care in this Bill, which has been employed, but this wording will not work. What the amendment states is not the Deputy's intent but is open to that interpretation and, therefore, it is one I cannot support.
I acknowledge Deputy Ó Caoláin's comment. I do not have access to the Parliamentary draughtsman and had no resources for drafting the text but I accept his point.
If the Minister's amendment No. 16 is agreed, amendments Nos. 17 to 19, inclusive, cannot be moved. As amendments Nos. 17 to 19, inclusive, are physical alternatives to amendment No. 16, by agreeing the latter the Minister is deleting text, and therefore the members who are proposing amendments Nos. 17 to 19 cannot amend a text that has been deleted. Amendments Nos. 17 to 19, inclusive, are physical alternatives to amendment No. 16, and amendments Nos. 36, 37, 60 and 62 are related to amendment No. 18. Amendments Nos. 16 to 19, inclusive, 36, 37, 60 and 62 will be discussed together.
I move amendment No. 16:
In page 8, to delete lines 31 to 35, and in page 9, to delete lines 1 to 6 and substitute the following:
“(1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn
human life is ended where—
(a) subject to section 19, two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that—
(i) there is a real and substantial risk of loss of the woman’s life from a physical illness, and
(ii) in their reasonable opinion, that risk can only be averted by carrying out the medical procedure,
(b) that medical procedure is carried out by an obstetrician at an appropriate institution.”.
I propose these amendments for the purpose of clarity. While the substance of the provisions of this section will remain unaltered, I wished to ensure it was crystal clear to all concerned that the medical procedures in question would be permissible only if they met the test laid out in the X case judgment. For this reason I sought a drafting amendment to switch the order of requirements in section 7. I commend the amendment to the committee.
Amendments Nos. 17 to 19, inclusive, not moved.
I move amendment No. 20:
In page 9, line 7, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.
I move amendment No. 21:
In page 9, line 11, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.
Amendments Nos. 22 and 43 are related and will be discussed together.
I move amendment No. 22:
In page 9, line 12, after “shall,” to insert “only”.
This amendment is intended to further clarify the situation by including the word "only". It clarifies that the consultation takes place only with the woman's agreement.
As currently drafted, it is clear that a woman's consent must be obtained before her GP can be consulted. The addition of the word "only" as proposed by Deputy Healy is superfluous and therefore I cannot support these amendments.
Are we dealing with amendment No. 18?
Amendment No. 18 fell when the Minister's amendment was agreed. As I outlined in my remarks, amendment No. 16 was a physical amendment that deleted text so the subsequent related amendments were no longer relevant.
Amendments No. 23 to 26, inclusive, and amendments Nos. 44, 63, 64 and 80 are related and will be discussed together.
I move amendment No. 23:
In page 9, line 12, after “consult” to insert “, with appropriate urgency,”.
I take the view that in regard to the risk of loss of life from physical illness, there is a requirement here. Even though the Bill suggests that where practicable there would be consultation with a woman's general practitioner, accepting absolutely that this be done only in the context of the woman's agreement, subsection (3) of section 7 does not reflect what I believe all reasonable opinion would expect in terms of urgency and immediacy, namely, a requirement. The language is pedestrian and does not demonstrate the need to act with all haste. After the insertion of "with appropriate urgency", the opening two lines would read: "If practicable at least one of the medical practitioners referred to in subsection (1)(b) shall, with the pregnant woman's agreement, consult with appropriate urgency with the woman's general practitioner, if any", and continuing. That instils a requirement on the relevant medical practitioner or practitioners which is reflective of how we would expect them to act. The related amendment No. 44, also in my name, it is an exact reflection of the case I put for amendment No. 23.
I refer to amendment No. 80.
Section 17(1) provides that conscientious objection can only apply in respect of section 7 certification or section 9 certification and has no application in respect of section 8. Subsection (3) states: "A person who has a conscientious objection referred to in subsection (1) shall make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the medical procedure concerned." This does not reflect the urgency that would be expected by the overwhelming body of ordinary citizens. It is pedantry. I am proposing to use the word "immediately" after the word "shall" in that subsection. There can be no room for dilatoriness. Intervention will require immediacy. That should be eminently clear to the clinicians and consultants concerned but the legislation should also make it clear from the outset. I commend amendments Nos. 23, 44 and 88 to the select sub-committee.
I have received legal advice to the effect that the legal meaning of the word "forthwith" equates to "immediately". This qualification, as well as the proposed phrases, "with appropriate urgency" and "immediately" is unnecessary as this section uses terms such as "shall make arrangements" which render such qualifications superfluous.
As Deputy Ó Caoláin pointed out, doctors fully understand the need for urgency around treatment. To suggest that we would set this out in law is to be prescriptive about doctors' medical practices. Everybody knows that delayed diagnosis can make a practitioner culpable in law for negligence. If I find out that a patient has appendicitis and the appendix bursts because I did not operate until 24 hours later, I know I will be in serious trouble. It would be the same if I know that a patient is having a heart attack and refuse to act on it for 24 hours. The wording is superfluous, although I understand why the Deputy would want to stipulate urgency out of concern that some doctors might delay. I do not believe that adding these words would have that effect. It is clear from medical guidelines that one must always act with expediency. Just because a physician has a conscientious objection that does not mean he or she can wait a week before referring the patient elsewhere. Once a conscientious objection has been made known, the individual concerned must act with all speed to refer the patient to an appropriate physician who can provide the necessary care.
I have tabled amendments Nos. 24 to 26, inclusive, which are similar to Deputy Ó Caoláin's amendment No. 23. I understand the point that the Minister is making but we want to ensure there is appreciation of the urgency required in dealing with these matters. Inserting "forthwith" would indicate the need for urgency in dealing with this section.
I want to speak in favour of what has been argued. I have always been of the view that in urgent situations nothing should delay a decision taken in good faith and based on reasonable opinion to save the life of the mother. In regard to sections 7 and 8 and the physical threat to the mother's life, while no decision is absolute, a clearly identified threat can be evaluated.
If one is faced with that kind of situation, one has to act quickly. It is a matter of great concern that on one occasion in Galway, issues were not addressed in a satisfactory manner. I understand, however, that the usual practice in this regard has been of the highest calibre. Is it currently normal practice to consult a GP where practicable? I accept that if it is not practicable one gets on with the job and does what is required.
Given that we are dealing with the prospect of a real and substantial physical risk to the life of the mother where the only solution is to carry out a medical procedure, I cannot understand why anybody would raise a conscientious objection. Why are we allowing for a conscience clause in such instances? It appears to defy logic and it goes against standard medical practice in this country. I cannot understand how any doctor would have a conscientious objection to saving a woman's life from a physical threat. The conscientious objection provisions cover sections 7 and 9 as well as section 8. The dilemma is in respect of section 8. For section 7 to apply the threat to life has to be physical and significant. It seems to me that good medical practice and ethical guidelines would require the doctor to save the mother's life and if as unintended consequence it is not possible to save the unborn life because it is unviable, that is perfectly permissible under current practice. I have never heard of a doctor having a conscientious objection to that.
Deputy Ó Cuív made a reasonable point.
Deputy Creed also made some reasonable points.
I did not hear Deputy Creed's points. In the case of Savita Halappanavar the issue of time and urgency was a factor. Where disputes or uncertainty arise, time becomes a factor. There is great value in underlining in the legislation the need for urgency to ensure any life-saving procedure or consultation required is expedited. That is important in light of events that have occurred previously and the possibility for delay in the grey areas that will be encountered.
I support these amendments and urge the Government to accept them.
In the Minister's reply, he sought to suggest that the urgency was in the text of section 7. Nowhere is that reflected in the section, in my opinion. I am genuinely concerned about this, and I am a Deputy who has already declared his support for the passage of this legislation. The whole intent of the amendments is to assist in strengthening the Bill and making it as assuring as possible. In his reply, the Minister focused solely on the lead clinicians - namely, the consultants - but this Bill is also about giving assurance to women who might find themselves in such a situation. It is about delivering clarity and certainty to women at risk in the course of their pregnancy. We can make all the assumptions we wish in respect of the speed with which front-line service providers will respond to given situations that present themselves. We can quote ad nauseam examples in which that has not been the case, including the tragic case of Savita Halappanavar.
There is a responsibility on us to reflect that it is the intention of legislators that consultants are required to respond with the necessary urgency, because that is what is involved. We are talking about lives at risk in respect of physical illness and the threat of suicide. In each of those cases, and as I have reflected later in amendment No. 80 in respect of conscientious objection, somebody who is making a case of conscientious objection cannot sit and twiddle over it. If that is his or her position, he or she must act immediately. That is not in any way to seek to undermine anything in the respective sections that I am addressing in the three amendments of this grouping. I respectfully appeal again to the Minister to accept that this is indeed what citizens and what women would expect from this legislation. I again urge his acceptance and the select committee's support for these amendments.
In order to correct the record and for the purposes of absolute clarity, conscientious objection in medical practice is well understood and is provided for within the medical guidelines. It is acknowledged in section 7 of this Bill, with deals a physical threat of illness which is not immediate, and in the case of a risk of suicide. It is not provided for in section 8, where the threat is immediate and is an emergency and the doctor must deal with the patient in front of him or her to save that person's life.
With respect to Deputy Ó Caoláin, I never said expediency was mentioned in the text. I said it was in medical practice. Furthermore, with respect, I do not believe the Deputy was listening to me when I made it very clear-----
-----that medical practice dictates that one act with expediency. One does not have the luxury of sitting there twiddling one's thumbs if there is a conscientious objection. If a conscientious objection is made known, then one must act with all reasonable speed to ensure the patient is transferred to another doctor who can meet the patient's medical need.
We are stipulating in law for the first time Deputy Ó Cuív's contribution regarding consulting the GP. The literature is scattered with legal cases on malpractice where this did not happen, and had the consultant picked up the phone to the GP, the outcome might have been different. We are stipulating here that this action must be taken where it is practicable. We know, for example, that some women do not have GPs, or that they may not want to consent to that. They may also face a problem in which a GP is ill or unavailable or on a prolonged sojourn out of the country.
While I fully subscribe to the sentiment of these amendments, they are superfluous and I urge members of the committee not to support them.
I listened to the Minister very carefully, as I have done throughout this legislation since its proposal, during its presentation as heads of a Bill and right through to its publication. I am very clear on everything he said, and I repeat that nowhere in section 7 does it reflect the urgency that I, as a citizen, and on behalf of those I represent, would expect to see expressly inserted. I do not see in words the assurance that we expect from the passage of this Bill, and that is the exercise here. The purpose of the Bill is to give assurance, clarity and certainty, and I believe that citizens and especially women who may find themselves in this situation are deserving of clear, expressed intent. In no way am I questioning the overwhelming majority of those practitioners who would act as the Minister rightly describes, but where there is any prospect of dilatoriness or failure to act with the urgency and immediacy that I believe would be required in these situations, these amendments improve that certainty for those who must act accordingly, and they provide assurance to women. These are the areas that I always thought the Bill sought to address.
The amendments are reasonable. They have a clear purpose. I believe they reflect the views of the overwhelming body of legislators in these Houses, and I will respectfully ask the Minister to reconsider and to accept their inclusion. A choice is being presented as to how it can be conveyed. I happen to believe that the insertion of "appropriate urgency" in amendments Nos. 23 and 44 and "immediately" in amendment No. 80 achieves this within the Bill as constructed. I would appreciate the Minister's acceptance. I did not expect or wish to see any division on this because I know that committee members broadly share this view.
I have sat through these hearings and I must say that the excellent interpretation of the Bill by Deputy Ó Caoláin throughout really blew me away. What the Deputy is saying is lay person's language.
Can the Minister read out the first part of his response again? He stated that this could not be put in due to something in law, and I would like to hear that again in order to understand it. My heart believes what Deputy Ó Caoláin is saying but my head must think differently.
The Minister's explanations on consulting general practitioners are reasonable. There is an obligation to act expeditiously in all of these issues. I accept these provisions have been drafted professionally to take all of this into account.
Where there is a real and substantial risk to the life of the mother which can only be averted by the termination of the pregnancy, have there been any cases where a GP had a conscientious objection to providing the termination? This would seem to contradict or be superfluous to section 7. Section 9 is a different kettle of fish as it deals with a different issue.
What we know is that up until now the criminalisation of certain medical practices meant there was a chill factor. Frankly, the very draconian 14-year prison sentence could still act as a chill factor which could compromise medical objectivity when making decisions in these difficult circumstances. I do not accept the Minister’s assurances on this. He does not acknowledge that time delay can be a factor. It was a factor in the Savita Halappanavar case. I do not know why the Minister finds it amusing but it was. Against that background, it is entirely right and appropriate to give assurance to women. After Savita’s case, women would be justified in being fearful as to whether they would get appropriate treatment if their life were at risk. These amendments will provide assurance to women and legal underpinning to the necessity to move quickly in such situations. I accept the majority of doctors would respond quickly but delays could occur. I cannot see what basis the Minister has for refusing these provisions. It cannot do any harm and it might do some good.
I do not believe the message from this committee should instil fear in women who are engaging with maternity services. We need to be careful how we choose our words in what is a sensitive issue for half the population.
Deputy Ó Cuív asked if there have been occasions where a doctor has had a conscientious objection to providing a termination when there is a real and substantial risk to the life of a mother. What he is failing to look at is that it may not be immediate or imminent. A woman could be presenting with the physical complication but it may not be immediate or imminent. Accordingly, the doctor in that case could conscientiously object. I hope that with the passing of this legislation, a doctor in such a case would then refer it to a colleague who would be able to do it in a timely way to save the mother’s life.
I wish to concur with Deputy Conway on Deputy Boyd Barrett’s comments. This legislation is for someone like me, Deputy Conway and all child-bearing women. The last thing we need on our mind is a worry whether a doctor will immediately intervene. This legislation gives legal clarity when there is a doubt over how a doctor can intervene with regard to the risk to the life. It is not about whether they will or will not. The language we use at this committee is so crucial.
The Deputy is politicising this.
I am not politicising it.
Can we speak through the Chair? We can discuss this matter moderately and we will get through it sensibly.
I will be moderate. Words are extremely important and how we use them in the committee is important. Half the women in this country are of child-bearing age. How we reflect on what we are doing with this legislation is extremely important.
Will Deputy Boyd Barrett withdraw his remarks about the Minister not fully understanding urgency? That is very wrong for the Deputy to say. The Minister has been a medical professional for a long time.
The request has been made.
We are not here to insult people. We are here to guide people. A remark like that brings this committee down and it needs to be withdrawn.
It is unfortunate people are choosing to score political points.
To be fair to committee members, we do not play politics in here.
I made a point which I stand over. The context is the Savita Halappanavar case where time and delays were an issue. It is reasonable to point to that and say women would have concerns and fears. I said the Minister was not acknowledging the fact that this fear of delay was a legitimate concern.
All of us are concerned at what happened in the case of Savita Halappanavar. However, we must examine the reports into the case and ensure procedures are put in place so that it would not happen again. Obviously, there was a real and substantial risk to her life and the intervention did not happen in time.
Will the Minister accept maternal care has been traditionally of a high standard in this country and, where necessary, interventions have taken place? Will sections 7 and 8 confirm medical practices which have delivered a very high level of maternal care and care for the unborn in our hospitals?
Deputy Catherine Byrne asked me to read the first part of my response again. I am happy to do so. Legal advice has been received to the effect that the legal meaning of the term "forthwith" is "immediately". This qualification, like other proposed phrases such as "with appropriate urgency" and "immediately", is unnecessary because this section of the Bill uses terms such as "shall make arrangements" which render such qualifications superfluous for the reasons I have outlined. That is why I have urged the members of the committee not to support these amendments. The word "immediately" has a very clear meaning in law. Other things may need to be done more urgently before this needs to be done. Those things might take just ten, 15, 20 or 35 minutes.
The Minister of State, Deputy White, will speak about the nitty-gritty legality of what these terms mean, and what they might mean in practice. That is the problem. I have no problem with the sentiment behind these amendments. I know they are well intentioned and seek to send a message, but in so doing they could cause serious problems for medical practice. We will all accept that in 99% of cases, medical practice in this country is excellent and is world-leading. This small country produces doctors and nurses who are the best in the world. That is proven by dint of the fact that when they leave this country, they go to the best of the best places and excel there.
Deputy Ó Cuív asked whether we know of a termination of pregnancy that ever took place anywhere, where conscientious objection was used in this regard. I can say I do not know of such a case, but that does not mean it has not happened. I do not profess to have my hand on every situation in this country or elsewhere in the world. Without being in any way disrespectful, it is an unanswerable question. I know what the Deputy is trying to say. The Medical Council guidelines are very clear and they cover this. Clearly, these issues have been raised before. They would not be in the medical guidelines if they had not been raised before.
I will not get into precisely what Deputy Boyd Barrett said or did not say. His statement that these provisions, as explained by the legal meaning of the terms used, "cannot do any harm" is far from the truth. I know he might believe they cannot do any harm. They have a clear meaning in law. I will rephrase what others have said. The purpose of this Bill is to reassure people; most importantly, the women of this country who use our health services, but also the medics who have to provide those services. That reassurance will come through the clarifications we are giving around the law now.
I will restate what I said last night - we are conferring no new rights on anyone and we are not taking any rights away from anyone. We are doing something that I, as a Minister, as a citizen and as a doctor, believe we must do. We must clarify for women what is available to them in this country and, most importantly, how they can access it. We must clarify for the doctors and nurses who provide this care what is legally permissible and what they are obliged to deliver. I think that is at the core of what we are doing. If we keep that to the fore, we will realise that while some people are very uncomfortable with this and other people do not feel it goes far enough, this is what we must do.
I have to make the point that this process was in train before the terrible and tragic event in Galway. Equally, I have to say that stipulating in law that something should be done "immediately" or "with appropriate urgency" would not have changed the outcome. The clarity we are trying to bring to this would have changed the outcome, in the sense that any delays occasioned by a lack of certainty would not have come into play. As we know from the reports we have received, an awful lot more than that was involved in the Galway case. I do not want to make any further comment on it other than to say that the HSE report was comprehensive. At an early stage during the course of the compilation of the report, the chairman, Sir Sabaratnam Arulkumaran, made certain recommendations that were immediately acted upon. Further to that, we were already developing an early warning score system for the maternity services. We had brought in such a system for adult services. We were the first country in the world to do so. We have now done it for maternity services as well. We are working on a system for paediatric services. They are all different because the biology, the parameters, the biochemical markers and the clinical findings are different in all cases.
I would like to confirm what Deputy Ó Cuív said. I believe we have one of the highest standards of maternity care in the world here. I say that on the basis of perinatal mortality and survival rates. I commend the excellent men and women who have delivered that service, which I commend to the women of this country. No matter how good things might be, I would never say they could not be made better or safer. Better systems can be put in place, as has happened in the airline industry, to ensure the wrong thing to do becomes the most difficult thing to do. In some situations in the past, the wrong thing to do was made easier because of the system that existed. I could give examples of that, but I do not think it would be productive for me to do so at this forum. I want to reassure everybody that I fully respect the intent behind these Opposition amendments. The legal situation and the implications for practice are such that I do not believe the amendments should be supported or accepted.
I want to endorse absolutely what the Minister has just said. It captures the point very well. There is no doubt in my mind that Deputy Ó Caoláin's amendments are very well motivated. I do not say that in a condescending way. No citizens - politicians or otherwise - would regard delay in clinical practice as acceptable. It horrifies us all. In some cases, it has the most dreadful outcomes. We can all understand and see that.
It comes back to what we think we can do and what our responsibility is as legislators. As the Minister has said, when we are setting out the law as politicians, that does not involve us stepping into the clinical environment. It cannot involve us stepping into the clinical environment for the exact same reasons I gave when we were debating Deputy Mulherin's query about why we cannot include in the legislation a requirement to exercise best practice. I made the point that such a provision would involve including in the legislation a further definition of what best practice entails, and that would take us into a whole new area of legislating in detail for what constitutes best practice. Best practice is set out, supervised and changed when necessary by the professional bodies, including the Medical Council. There is a statutory basis for that. We do not step into the clinical environment. There must always be an arm's length between the Government and the Oireachtas, on the one hand, and the actual clinical practice, on the other hand. That must be the case even in these really very difficult and delicate areas. There needs to be a high level of trust.
I would like to comment on the issue of delay, which has come up again. I believe that acting in a timely fashion, quickly and expeditiously is a fundamental aspect of professional medical practice. I am reminded of what we were saying last night. I would regard all doctors as having a requirement to act in accordance with best medical practice, without that needing to be included in legislation by means of the use of certain words. All doctors have to apply best medical practice and all doctors have to act in an expeditious manner. Time is of the essence in clinical practice. It seems to me that if we include this in legislation, we would risk it having the opposite effect. It would almost raise - I am trying to put this in a way that does not misrepresent what I want to say - the possibility that the Legislature has a doubt in some way as to the likelihood of best medical practice, or acting in an expeditious manner, actually occurring. I think that would be unfortunate and wrong.
I agree with what Deputy Ó Cuív said. He is absolutely right about the very high standards of care that exist throughout our hospital system. It is not the case that the Oireachtas has prescribed a certain method or rule that a doctor should follow. We have a statutory regime, through the Medical Council. We have reliable professional bodies that uphold these standards. We also have laws. People have the option of bringing cases to court. Medical negligence cases are brought when things unfortunately go wrong. We have a very strong legislative and statutory infrastructure. We have other ways for people to vindicate their rights if things go wrong, as they unfortunately do in a small number of cases.
Deputy Ó Caoláin's points and amendments are extremely well motivated but putting in such words would be the wrong way to go. The same applies to Deputy Healy's proposals such as the issue about putting words such as "forthwith" and "immediate". This may sound odd but it is the truth, if we as legislators say that the doctor should do something immediately it is possible that something else could come up in a clinical environment that we cannot think of that it would be appropriate for the doctor to do before doing the other thing. We do not know. We cannot see into the operating theatre to know what a doctor should do first. If we put into legislation that it should be immediate we might actually be going against a circumstance that might arise in clinical practice whereby we try to reverse the order of what the doctor should do, which in fact should be best medical practice. I am not trying to be obstructive to Deputy Ó Caoláin. In the phrase "appropriate urgency" we have to define "appropriate" and who says what is appropriate in the situation. We have all thought about how prescriptive this legislation should be for the medical profession, across the board, not just here. The more we tease out what doctors should do, the more we come back to the word go which is that we must rely on the professionalism of our medics, on the organisations and colleges to which they are subject and to the statutory regime that we put in place through the Medical Council legislation.
Is the intention of sections 7 and 8 to confirm and clarify current best medical practice as is the situation under Article 40.3.3° in respect of physical risk? Do they seek just to clarify rather than to change it?
There will be no meeting of minds given the positions that the Minister and Minister of State have taken on the amendments being required or not. I take the view that the Bill is there to address not only those who are entrusted with clinical practice making the decisions but also to address the greater body of citizens, especially women. That was most certainly large in my mind when drafting the amendments I have tabled. I suggest that, without any further beating around it, we should move to make a decision on these amendments and move on to the later sections.
The Minister of State, in dealing with this matter, indicates that we are not in a position to instruct medical practitioners or to interfere in best medical practice. The amendments that I have tabled are administrative amendments. They do not seek to instruct a medical practitioner. If the Minister of State reads the amendments and the section we are referring to, "forwarding forthwith" or causing to be "forwarded forthwith" the section 7 certification to an appropriate institution and "(b) to make forthwith such arrangements as may be necessary" he will see that these are matters of administrative action and nothing else.
Deputy Healy has made an important point. There is a disagreement about this but the Minister and Minister of State have made a reasonable point about not interfering with-----
I apologise for interrupting the Deputy but there is a vote in the Dáil.
-----best medical practice and being too prescriptive. We have made a reasonable point about the need to underline urgency. If the Minister accepts the sentiment he might consider some way of addressing both those concerns, for example one could insert after if practical, "and with due regard to the urgency of the situation".
I propose in the light of the fact that there are two votes in the Dáil, we suspend the sitting until noon. Is that agreed? Agreed.
We are in public session. Amendment No. 23 was lost. Amendment No. 24 was discussed with amendment No. 23.
Amendment No. 27 in the name of Deputy Kelleher has been discussed with amendment No. 6.
I move amendment No. 27:
In page 9, between lines 22 and 23, to insert the following:
“(5) Where the unborn may be potentially viable outside the womb, every effort must be made to sustain its life after delivery.”.
In the absence of Deputy Ó Cuív I am calling the question.
This section is one of the areas of relatively little contention. On foot of the expert view report what struck me was that no accurate statistics were available in respect of the number of medical terminations in Irish maternity hospitals. Arising from section 7 of the Bill, there is provision for the reporting of certified entitlement to terminations and the appropriate institution will be reporting to the Minister. That will be an improvement.
Reference to the excellent level of care in Irish hospitals is acknowledged. It was distasteful when outside parties commenting on the tragic circumstances of Savita Halappanavar's death raised the correlation between it and the level of care in Irish hospitals. In regard to that particularly difficult case, we will not know the number of cases in which a person may have sought a termination but was denied it. I think that is a weakness in arriving at the overall picture. Will the Minister comment on it please?
In line ten of page 9, section 7(2)(b) states: "the other shall be a medical practitioner of a relevant speciality." I raise this point in the context of the smaller maternity units around the country in which two medical practitioners are required to have certified the procedure. Would it not be appropriate for the wording to be tightened up to reflect that the "relevant speciality" is a specialty relevant to the pregnancy woman's medical circumstances? It may be the case that a woman in one of the co-located maternity hospitals will have at her immediate disposal, all of the relevant medical specialties that are necessary to care in a comprehensive way for a woman who might present with difficulties in which the risk of the loss of her life emerges. It might be the case in one of the smaller units that they do not have oncology, neurology or the medical specialty that may impinge on her life. It might be appropriate to change that wording to a specialty relevant to the pregnant woman's medical circumstances rather than just a - - - -
In the interests of speed will the Deputy look at the definition of "medical speciality" in section 2 as it is defined exactly as he has outlined on the very last line of page 6.
Others have indicated. I call Deputies Boyd Barrett, Naughten and Healy.
On the section.
I ask members to keep their contributions tight.
I will do that.
A point that has not been raised because of the way the amendments have been debated is that there should be an insertion, after line 3 on page 9, in connection with a risk to the woman's life, as per the X case judgment, which risk may be neither immediate nor inevitable. That is important because it would be in line with the X case judgment and because we have a concern that there is considerable dispute over when there may be a risk to the life of the mother and, consequently, she might have a right to a termination. It is important to underline that as far as the Supreme Court was concerned, the risk to the life of the mother did not have to be immediate or inevitable, it simply had to be real and substantial. That is an important caveat which should be included if we are to honour the spirit of the X case judgment.
I wish to make a brief point on section 7 in regard to compiling the figures. It appears that there will not be a differentiation between an induction and a medical abortion, as may be required under the terms of the legislation. It is normal practice in the third trimester to talk about an early induction. That is usually the procedure involved. What the Minister has outlined to us in compiling the figures in regard to section 7 does not actually provide for a differentiation-----
Is that included in the amendment?
No. The point I am trying to make to the Minister is that there is a need for differentiation between an induction and a medical abortion in how the statistics are compiled. In the third trimester the normal medical procedure involves an induction and an early cessation of the pregnancy rather than an abortion. At earlier stages different procedures are involved. The statistics should differentiate between actual medical abortions and early deliveries. Provision needs to be made to differentiate between the two categories.
The Minister has said on numerous occasions - I agree with him - that the Bill is about providing clarity for women and medical practitioners. I think he said last evening that we should use the terminology of the Constitution, the X case and the expert report. In relation to the tests to be applied, the report of the expert group on the judgment in the X case, at page 30, paragraph 6.2, reads:
The Supreme Court in the X case held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that:
1) there is a real and substantial risk to the life of the mother; and
2) this risk can only be averted by termination of her pregnancy.
It is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate.
In no part of the section or the Bill is that provision included. It should be included. I agree with Deputy Richard Boyd Barrett's position. It is important to provide clarity for women and medical practitioners that that part of the test be included in the legislation.
The amendments proposed by Deputy Seamus Healy and some other amendments which I have dealt with already apply throughout the Bill and would add additional wording in respect of the nature of the risk to indicate that while it must be real and substantial, it does not need to immediate or inevitable. The amendments are unnecessary because section 8 provides for circumstances where the risk to the pregnant woman is immediate and, therefore, by default it is addressed in sections 7 and 9. I, therefore, urge-----
We are on section 7. We have dealt with the amendments, but I will go back over them again.
What I am saying is that the amendments are unnecessary. I fully acknowledge what Deputy Seamus Healy has said about the Supreme Court's judgment in the X case, that the risk does not need to be either immediate or inevitable. As a consequence of ministerial amendment No. 16, amendments Nos. 17 and 18 fell.
Perhaps I can refer to my notes in dealing with the other contributions made. Deputy Denis Naughten asked about the differentiation between induction and a medical procedure. Of course, one would argue that an induction was a medical procedure. One can argue the difference between surgical procedures and medical procedures. However, the judgment in the X case is not specific in this regard. It refers to a termination of pregnancy, whether it be medical or surgical, and mentions termination, as opposed to what some refer to as abortion, which others believe is destruction. In the way in which the Bill is worded, it is clear that the termination of the pregnancy must be done having every regard to preserving the life of the unborn. At this point I do not see the necessity to differentiate between the two.
In regard to the notice of failed application referred to by Deputy Michael Creed, we discussed the whole difficulty in this area earlier. Let me give a few scenarios. If a lady is suicidal and approaches a psychiatrist, having been referred by her GP, he or she will assess the risk and after a week form an opinion on whether this is really a serious risk and that in his or her opinion she should or should not be certified. She seeks a second opinion and during the course of the second week things change. Let us look at the scenarios. First, she may have had a miscarriage. Do we report this? Second, she may have had a change of heart and, third, the psychiatrist may have decided that it was not appropriate. The first psychiatrist who had formed the original opinion may be of a similar mind and another week having elapsed, things may have changed. I do not believe it is practical to report in such situations. I have had long conversations with certain other members in this regard.
I am thinking that the suicide issue is the most serious one.
Exactly. I do not believe it is practical and do not see how it would work. There would be huge issues around privacy and doctors would object hugely in terms of interference in the doctor-patient relationship. One can argue and take a different view as a legislator - I accept that - but I do not see how it would work. As such, I would not be prepared to accept an amendment.
I accept that and do not wish to engage in an argument with the Minister on the issue, but it is ironic that it is provided for under the review mechanism, not in the initial process.
That is much more practical because an application will have been made and certified. A review will be sought and it is the woman's prerogative to so do. In the other case she has not given her consent for all of this information to be made available and I believe it would have detrimental effects on the doctor-patient relationship if that were to be the case.
I do not want to prolong the discussion, except to say that the Minister's response to the point that I and Deputy Seamus Healy have raised is inadequate. The Supreme Court felt it important enough to put in this important qualification in terms of what represents a real and substantial risk to the life of the woman. They felt it was necessary to clarify that such risk must not be inevitable or immediate. That, as the Minister will be aware, is a very important qualification and really speaks to the uncertainty about what point one decides that a woman's life is really under threat. This qualification, put in by the Supreme Court, is erring on the side of caution in relation to a woman's life and it is right and proper that it should do so. In this section and throughout the Bill, this is a significant inadequacy in the safeguards for a woman's life. The Minister might not accept the amendments now but I would urge him to consider what we have said. We will be returning to this in the other sections and on Report Stage.
I am always happy to consider what has been said but I must advise Deputy Boyd Barrett that we consulted the Attorney General on this very point. She stated it was superfluous and unnecessary and would lead to complications within the Bill as one would then have to go down the route - which the Minister of State, Deputy White, has already mentioned - of defining what "immediate" and "inevitable" mean, etc., and then one is really into Pandora's box. My best legal advice is that such wording is not necessary and it is not wise to put it into the Bill. I hope Deputy Boyd Barrett will accept my bona fides on that. I am quite happy to go back and consider further, but I must advise Deputy Boyd Barrett that I doubt the advice will change.
Amendment No. 28 is in the name of the Minister. If amendment No. 28 is agreed, then amendment No. 29 cannot be moved. Amendments Nos. 28 and 30 are related. Amendment No. 29 is a physical alternative to amendment No. 28, and amendment No. 61 is related to amendment No. 29. Amendments Nos. 28 to 30, inclusive, and 61 will be discussed together.
I move amendment No. 28:
In page 9, to delete lines 24 to 34, and substitute the following:
"(1) Notwithstanding the generality of section 7, or any determination made or pending pursuant to section 13 of an application under section 10(2), it shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where—
(a) a medical practitioner, having examined the pregnant woman, believes in good faith that there is an immediate risk of loss of the woman’s life from a physical illness,
(b) the medical procedure is, in his or her reasonable opinion, immediately necessary in order to save the life of the woman, and
(c) the medical procedure is carried out by the medical practitioner.".
I propose to take amendments Nos. 28 and 30 together. I propose these amendments for the purpose of clarity. While the substance of the provisions of this section will remain unaltered, I wished to ensure it was crystal clear to all concerned that the medical procedures in question would be permissible only if they met the test laid out in the X case judgment. For this reason, as before, I sought a drafting amendment to switch the order of the requirements in sections 7, 8 and 9. We did this in section 7 as well. These clarifying amendments also require some technical drafting amendments to ensure that the order in which the provisions now appear is consistent throughout the Bill. I commend these amendments to the Committee.
I wish to refer to my amendment, No. 15, regarding my definition in subsection (1)(b). I may come back on Report Stage with an amendment to that.
I move amendment No. 30:
In page 9, line 38, to delete “subsection (1)(b) and (c)” and substitute “subsection (1)(a) and (b)”.
Is Deputy Naughten opposing the section?
My opposition to it was related to amendment No. 15. I do not oppose section 8.
Amendment No. 32 in the name of the Minister. If amendment No. 32 is agreed, amendments No. 33 to 37, inclusive, cannot be moved. Amendments No. 33 to 35, inclusive, are physical alternatives to amendment No. 32; amendments No. 48 and 53 are related to amendment No. 33; and amendments Nos. 38 to 54, inclusive, are related to amendment No. 34. Amendments Nos. 32 to 35, inclusive, 38, 48, 53 and 54 are related and will be discussed together.
I move amendment No. 32:
In page 10, to delete lines 4 to 14, and substitute the following:
"(1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where—
(a) subject to section 19, three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that—
(i) there is a real and substantial risk of loss of the woman’s life by way of suicide, and
(ii) in their reasonable opinion, that risk can only be averted by carrying out the medical procedure,
(b) that medical procedure is carried out by an obstetrician at an appropriate institution.".
I propose these amendments for the purpose of clarity. While the substance of the provisions of this section will remain unaltered, I wished to ensure that it was completely clear to all concerned that the medical procedures in question would be permissible only if they met the test laid out in the X case judgment. For this reason, I sought a drafting amendment to switch the order of the requirements in section 9, as I did in sections 7 and 8. I commend these amendments to the committee.
As the tabler on behalf of Sinn Féin of amendment No. 34, I wish to speak to this. The amendment seeks to place the requirements in relation to medical practitioners vis-à-vis section 9 on a similar basis to that applying in section 7 - that is, two medical practitioners. The view behind the proposition is that the requirement for three medical practitioners in section 9 is unnecessary and unworkable and will of itself be a discouragement to presenting in the normal course within the Irish hospital system. This will add to the sad and continuing exodus of many thousands of Irish women for terminations outside this jurisdiction. It is believed that reducing the number from three to two will ensure there is parity between physical and mental illness, a matter my colleagues feel strongly needs to be affirmed. For too long, a distinction has been made with regard to mental health as against physical health and the argument is that there should be equal respect and understanding of the situations that apply and of the qualifications and professional capacity of the respective practitioners to make appropriate diagnoses where women present in each of these situations. The proposition is, in summary, to reduce the requirement from three to two practitioners where the woman's life is at risk as a result of a threat of suicide. Accordingly, I put the proposal to the Minister and the members.
Obviously, this is part of a group of amendments. The amendments put forward by Deputy Seamus Healy and supported by a number of us fall if the Minister's is accepted.
This really gets to a very important aspect of the Bill. This is far to onerous a bar to jump over for women whose lives may be threatened because of suicidal ideation, and we do not see the justification for having three doctors. If in other cases in which one is being certified for a mental health condition one psychiatrist would be all that was required, why in the particular case in which suicidal ideation, a mental health condition, happens to be linked to the question of a termination of pregnancy should there be an extra hoop to jump through in order to prove that there is a serious risk to someone's life? It seems there are no medical grounds for this.
That is a view that I believe is supported by the expert group. It is certainly a view that has been supported by a number of people who gave evidence to the committee and who have spoken on the issue.
Furthermore, I see no reason an obstetrician is required to testify as to whether there is a risk of suicide, because an obstetrician is not qualified in the area. Why is an obstetrician necessary to certify whether there is a risk of suicide? It is simply not necessary. The provision is too onerous, unworkable and unjustified. We propose to reduce the number to two relevantly qualified medical practitioners, which is in the best interest of safeguarding the lives of women in these situations.
I would like to speak on the Minister's amendment, No. 28.
We are debating amendment No. 32. We have finished dealing with amendment No. 28.
Amendment No. 32 is pretty much the same.
I will speak on amendment No. 32. We have had a discussion about this, but I would like to discuss section 9 specifically. I understand how the Minister has rearranged the section, which makes perfect sense. The amended section 9(1)(a) states: "subject to section 19, three medical practitioners, having examined the pregnant woman, have jointly certified in good faith". I had a look back when the Minister was talking about the legal position and the issue with best medical practice, and I have a suggestion, although I do not know whether there is any merit in it. Section 73 of the Mental Health Act 2001 is the only provision under which people must go to court to take legal proceedings against a practitioner. It mentions within that section that the court may refuse leave to initiate proceedings in cases in which "there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care". Would it be worth considering the addition of a similar phrase to the Bill? For example, the amended section might state: "having examined the pregnant woman, have jointly certified in good faith, and having acted with reasonable care, that ..."? That would provide comfort with regard to best practice without in any way detracting from the provision and in keeping with legal precedent as laid down in section 73 of the Mental Health Act 2001. It is a legal question which has resonates in sections 7, 8 and 9, but particularly section 9, and goes back to the definition of "reasonable opinion" in the interpretation section of the Bill, which states:
"reasonable opinion", 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...
Based on my suggestion, the words "and having acted with reasonable care" would come after "in good faith" and before "which has regard". What I am doing is to examine the question of good faith to find a way to provide clarity while not in any way interfering with best practice. Such a wording is there in legislation already. I would like the Minister's comment on that. My understanding is that the provisions in section 73 of the Mental Health Act 2001 are the only situation in which a patient is required to go to court to initiate legal proceedings in any shape or form against a doctor or whomever. In this case, there are two things laid down in the legislation:
(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:
(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.
I am not being vexatious today and simply wish to make a point. The section continues:
(3) Where proceedings are, by leave granted in pursuance of subsection (1) of this section [That means that the court has allowed them to proceed], instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.
This may represent a circumstance in which good faith could be clarified by a reference to reasonable care. Such a provision could provide comfort without in any way interfering with best practice. I ask the Minister to address the matter from a legal perspective.
Four Deputies are indicating. Does the Minister wish to respond to the first three Deputies or wait until he has heard the additional four Deputies?
I will respond to the first three Deputies and we might return to the Deputy O'Donnell at the end.
Deputy Ó Caoláin wants, in essence, to have one psychiatrist and one obstetrician rather than two psychiatrists. Deputy Boyd Barrett raised the same issue and said that the expert group had mentioned two psychiatrists as one of the options. The group also mentioned one psychiatrist. It is clear after consideration of the matter - and the Government has considered it - that, given the subjective nature of the practice of psychiatry, there is a real sense that because of the absence of clinical markers such as biochemical blood tests, MRIs or X-rays, in order to give a more secure diagnosis - given the fact that the diagnosis and the certification could, in certain circumstances, lead to the loss of life of the unborn - a higher standard of certainty was required. In that regard, we believe it is appropriate to have two psychiatrists involved. Therefore, I will not accept the amendment.
With regard to Deputy O'Donnell's suggestion, I have not considered the matter in great detail. The Attorney General gave some advice and I shall return to her for further clarification.
I appreciate that.
We are talking about two different circumstances. Reasonable opinion is mentioned in my amendment under subsection 1(a)(ii).
Reasonable care is a different matter because the patient is already in a clinical setting and a decision has been made.
Please repeat the last point.
I understand the Mental Health Act refers to a person who has been committed against his or her wishes, or involuntarily, to a mental health institution and who disputes the right of the clinician to have made that decision. Therefore, its reference to "reasonable care" is appropriate because the person is "in care". My amendment in today's Bill is about forming an opinion for the purpose of certification, which is different. The terms "reasonable good faith" and "reasonable opinion" are more appropriate than "reasonable care" because the latter does not apply in the same way as in the Mental Health Act 2001. My colleague will now comment.
I was gathering my thoughts about the Mental Health Act 2001.
Does the Minister of State need more time?
No. The key legal difference is as follows. The Oireachtas, in the Mental Health Act 2001, decided to protect people from being sued. In other words, the intention was to put a sort of protection around certain individuals in circumstances in which somebody was considering instituting proceedings against them. That is not what we are talking about in amendment No. 32 today. As the Minister has rightly said, we are talking about a procedure put into law or legislation. I suggest that it is quite an onerous requirement in respect of what has to be declared in order for a certification to occur. The kind of language that Deputy O'Donnell correctly quoted from the Mental Health Act 2001 protects people from being sued and, for example, states:
73.—(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:
(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.
In a sense, it is a putting a protective layer around the people's decision-making from being sued in court. There is nothing in this legislation that deals with the circumstances in which people could or could not be sued. While I understand the point the Deputy makes, which is an intelligent and reasonable one, it would be to take it out of the context in which it appears in the Mental Health Act, which is wholly different in terms of protecting individuals from being brought to court.
Clearly it is necessary to operate within parameters. We had a discussion last night on the inclusion of best practice in the legislation undermining the process of best medical practice. Would the addition of the words "good faith" have the same impact? Why cannot the provision read "good faith and acting with reasonable care". Clearly this would have particular connotations in the context of section 9, which deals with suicide and so forth. While I take on board the Minister of State's initial response perhaps for the sake of completeness he would ask the Attorney General to take another look at this. It would provide a level of comfort to some people if "good faith" could be included.
As stated by the Minister, we will consider everything that is said.
I appreciate that.
I do not believe the Minister intended to give any indication of his intention to-----
I know that.
We will consider what has been said.
As it is proposed to adjourn at 1 p.m., I ask members to be succinct.
I would like to comment on the amendments in my name, which I accept cannot be moved if the Minister's amendment is accepted.
This legislation arises from the X case judgment. There are certain tests outlined in that judgment. One of the tests referred to, namely, that it is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate, is not referred to in this or any other section of this Bill. I fail to understand the reason the Minister is prepared to include the other elements of the tests of that judgment and not that one.
As stated by the Minister, we need in this legislation to provide clarity for women and medical practitioners. That was the point of the portion of the judgment I mentioned earlier. This Bill would be considerably enhanced if that part of the test was included, in particular in this section. I also have concerns in regard to the provision dealing with the three medical practitioners. It is worth reading again what the expert report states in regard to the number of medical practitioners to be involved:
It was generally considered that two doctors with the relevant training and expertise appropriate to the case would be sufficient for making a clinical decision as to the risk to the life of the woman, whether the risk arose because of a physical or mental health condition. However, more doctors could be involved in the process by way of informal consultation among colleagues or multidisciplinary team assessment, as often occurs in complex cases at present.
I believe that this is the better provision and it should be included in the legislation. While it provides a requirement of two doctors it also provides for the option, as happens more nowadays, particularly in difficult cases, of having multidisciplinary teams and assessment and consultation between medical practitioners. I believe the Bill, and in particular this section, would be significantly enhanced by the inclusion of those two elements.
There are seven speakers remaining. I will take questions now from the next two speakers and will then allow the Minister to respond.
I respectively disagree with the argument put forward by Deputies Ó Caoláin and Boyd Barrett. We are not, in terms of the legislation before us, talking about parity between mental and physical illness rather we are talking about parity between physical illness and suicidal intent. The legislate is quite clear, as was the evidence from the witnesses who attended the committee hearings, namely, if a woman has an underlying mental health condition the question that must be asked is, is there an alternative course of treatment available that could avert the suicidal intent? The reality is, in terms of an underlying mental health condition, in the vast majority of cases there is an alternative course of action available. Only where there is no other option to avert the suicidal intent can a person certify a termination. The difficulty that arises is a woman who presents and has no underlying mental health condition cannot under the Mental Health Act be forced to have any course of treatment. There is then no alternative option but to certify that the woman have a termination. It is important to remember that Professor Veronica O'Keane in her evidence said that it is impossible to prove or disprove suicidal intent or suicidal ideation and that if a woman presents before her, which woman does not have any underlying mental health condition, and states she is suicidal her hands are tied and she must certify in the circumstances. It is right to provide for a second opinion because of the type of circumstances that will arise in regard to the certification process.
I have a question on section 9(1)(a), as amended. I would welcome if the Minister could comment on the legal opinion he has received on the following matter. Where a woman presents, which woman has no history of mental illness, and states that she is suicidal and the practitioner forms the opinion that there is a real and substantial risk to her life but the woman refuses alternative treatments, can the medical practitioner, based on the definitions of reasonable opinion under section 2, certify in good faith that in his or her reasonable opinion the risk can only be averted by way of termination? That is the crux of this. Do we need to amend this provision or does what is provided suffice?
I seek clarification from the Minister and Ministers of State on a matter which I raised with the Minister in the House the other evening. The Minister and Minister of State will be aware that Dearbhail McDonald, legal correspondent at the Irish Independent has made an observation on how section 9 of the Bill interacts with the Mental Health Act 2001.
I received some assurances from the Minister in respect of his belief that the use of section 9 would be confined, in his own words, to a handful of people. I will not quibble with him on that and I take his view in good faith and respect. I would be grateful, however, if we could explore again the assurances provided by the Minister of State, Deputy Alex White. The Bill provides that where a woman seeks an abortion under section 9, she would be automatically involuntarily admitted under the Mental Health Act.
I ask the Deputy to speak to the amendment.
I am providing some of the context for my contribution on the amendment.
The Deputy may speak to the section when we have disposed of amendments to it.
Section 9 provides that two psychiatrists may find that a woman's life is at risk from suicide and an abortion is required as a treatment. That standard seems to exceed the standard provided in the Mental Health Act. Will the Minister indicate how the Bill will be compatible with the Mental Health Act? Will he assure us, in light of his public utterance that the section will only apply to a handful of women, that circumstances will not arise in which a woman will be sectioned under the Mental Health Act for the purposes of securing an intervention, as set out in the provisions of that Act?
Deputy Seamus Healy raised the issues of an inevitable or immediate risk to a woman's life and the possibility of having two rather than three doctors involved in the process. I have made my position clear on these matters. This is a subjective assessment as there is an absence of biochemical and physical markers. We believe, and it is a Government decision, that there should be two psychiatrists rather than one involved. I will not accept an amendment to change the current provision. Deputy Denis Naughten made this point also.
Deputy Seán Conlan outlined a scenario in which a suicidal woman does not have a history of depression and refuses other treatment. He then asked whether medical practitioners could certify in such circumstances. We addressed this issue last night, although I accept the Deputy could not be present for the discussion. It is very clear that the psychiatrists concerned could not certify in the circumstances he outlined because they do not meet the test. That is an absolute and it is in the Bill.
On Deputy Colm Keaveney's question on whether a pregnant woman would be automatically committed because she is suicidal, that is absolutely not the case. He also asked whether I can guarantee a woman would not be sectioned under section 9. I cannot give such a guarantee because if there is an underlying serious psychosis, the woman, whether pregnant or not, would have to be sectioned and committed.
To return to the Deputy's first point, the very notion that one could section a woman who is expressing suicidal ideation but is not depressed to keep her confined for the duration of her pregnancy would be utter anathema and would not be tolerated or countenanced. It is very clear in the Bill that we are trying to clarify what is legally available and what criteria must be met before doctors can certify that someone in such circumstances would be entitled to a termination and it would be permissible for a doctor to perform a termination. I keep returning to the point that there are three doctors involved.
It is also important to point out that the duty of an obstetrician is to both his or her patients. That is very clear. The duty of a psychiatrist is to his or her patient. However, in this country the duty on psychiatrists, all doctors and all citizens is to protect the life of the unborn in so far as is practicable. That duty, therefore, remains with the psychiatrists involved.
What we are trying to do in the Bill is provide the clarity the medical profession needs to provide a safe service when women need to access that service.
On Deputy Keaveney's point, I fully agree with the Minister's response. There is nothing in section 9 that triggers the Mental Health Act. While I understand the Deputy's point, I do not understand the point that may be being made outside the House that the interrelationship between section 9 and the Act gives rise to some question. It does not do so.
The standard exceeds-----
The issue of involuntary admission is addressed in the Mental Health Act 2001. It is the only law that applies in the case of any individual who is to be subject to involuntary admission. If the conditions or circumstances that are contemplated in the Mental Health Act 2001 apply, a person may well be sectioned. However, there is nothing in section 9 or anywhere else in the Bill that triggers the Act.
I will refer briefly to two other points. Deputy Healy raised an issue regarding an inevitable and immediate risk. In general, it is not necessary to make provision in any legislation for a negative. If something is not required to be the case, in general there is no necessity to include in legislation that something does not have to be the case. The test is that positive things have to happen, in other words, a real and substantial risk to life can only be averted through a termination. That is the other part of the test.
This returns us to the issue of best practice and how prescriptive we want to be for doctors. In the case of a doctor applying his or her mind to a situation where he or she is asked to consider whether there is a real and substantial risk to somebody's life, there is no basis in this legislation or anywhere else for thinking that this risk must be immediate or inevitable. It is not required for the legislation to tell a doctor that the risk does not have to be immediate or inevitable. There is no such requirement and, as such, it is not necessary to include it in legislation. While I have not seen the advice, I expect it is probably the advice the Minister received.
On the expert group, Deputy Boyd Barrett raised a point which, to be fair to him, he subsequently corrected. Deputy Healy raised this issue again when he cited the expert group report. In referring to the role of psychiatrists, the expert group stated the following:
Finally, the role of the psychiatrist is key where a termination of pregnancy is prescribed as appropriate treatment in case of suicidal ideation/intent. There are recognised clinical challenges in correctly diagnosing expressed suicide intent, for instance, the absence of recognised clinical markers. Therefore, it could be argued that this is a more subjective process and requires more safeguards to be put in place for the protection of both the woman and the unborn. The need to keep up to date with clinical research on this issue is highlighted in the Medical Council Guidelines referred to in section 3.6.3 with a view to ensuring that the decision is evidence-based.
In assessing the various options the expert group report states the following:
There may be clinical challenges in correctly diagnosing expressed suicide intent. Therefore, it could be argued that a risk to life from suicide warrants extra safeguards.
To return to the issue of treatments, we have received many assurances from the Minister that all treatment options will be explored and, as a result, abortion will be a rare occurrence. While I accept the Minister's assurances, when I read the section, even as amended, it simply sets out a procedure whereby a woman, having her medical condition assessed, can establish her legal eligibility for an abortion. The Minister has stated on many occasions that the use of the word "only" has a certain meaning. Clearly, not everybody agrees that it has this meaning, least of all lawyers. I agree with Deputy Conlan in this regard.
At a certain point in the hearings of the Joint Committee on Health and Children, Professor Veronica O'Keane indicated that she did not consider her role in that circumstance was one of providing treatment but rather one of assessing eligibility for a procedure which a woman in that circumstance would request. The nub of the issue is that the Minister repeatedly points out how subjective this process is but does not reassure me. We were faced at the public hearings with the prospect that, at a certain juncture, in relation to the issue of treatment, one sees these professionals, equally qualified, who would have a divergence of view on what is the next step.
For the legislation to be truly restrictive in relation to the constitutional provision protecting the life of the unborn, the Minister must be more prescriptive. It is not fair to ask us to imply a provision or accept that, surely, something must be the case. The Minister has said that in practice it remains the duty of medical practitioners to vindicate the right to life of the unborn with due regard to the life of the mother. In fairness, that is nothing new. It has always been there. I give the example of the six young girls who were sent out of the country for terminations where a psychiatrist had assessed them. The duty originating in the X case and the Constitution remained in place and we were told that a situation like this would occur once in 50 years or in one in 500,000 pregnancies. Notwithstanding this, the odds for young girls in State care are a great deal higher. It does not add up.
The Minister's assurances to us will not stand up in a court of law. We need to see things set down in black and white. A legitimate question is being asked about the use of the word "only". The X case judgment states that in a situation where her life is at risk because of suicide, a woman is entitled to refuse treatment. The only option for the medical practitioner - the psychiatrist - is to certify. I have made a request of the Minister which does not necessarily reflect my ideal position. However, if we are to provide credible protection to vindicate the right to life of the unborn, where a woman does not have a mental illness and she is suicidal, there should be a cooling-off period from the time she makes the request and the medical assessment is conducted of a week to ten days to allow things to settle. I say this not just from my own perspective but on the basis of medical evidence given at the joint committee hearings. The committee was told that when someone was in a heightened state of anxiety and distress and experiencing suicidal ideation, the way to deal with them was to slow things down. One does not make immediate, life-changing decisions in that scenario. An amendment would accord with that evidence and give some credibility to the fact that we are taking seriously our obligation to vindicate the right to life of the unborn.
The Minister is asking us to read too much into this. While he can make his argument and I can make mine, why do we need to argue about it? Why cannot we put something down in black and white which satisfies concerned people? I do not know what is stopping the Minister from doing so if it is truly intended that the legislation will be restrictive.
Patients who present with suicidality must be treated with compassion and respect.
I ask the Deputy to speak to amendment No. 32.
I am. The Bill is all about saving lives. A woman at risk of suicide is at a risk of dying and killing her baby. Dr. Rhona Mahony told the hearings that there was no evidence to show that abortion was a treatment for suicide when she said such evidence would be impossible to obtain as the number of cases was extremely small. She said also that she would trust her psychiatric colleagues if they told her that a woman would die unless her pregnancy was terminated.
Who has the responsibility of informing the woman of her right to a review? Will a panel have access to legal advice and is there a mechanism for appealing decisions to the courts?
I will deal, first, with Deputy Michelle Mulherin's concerns. It is no harm to reiterate that I intend to introduce amendments to these sections on Report Stage. The amendments will not change the substance of the sections but will make it clear that the life of the unborn is to be protected in all instances, as well as that of the mother. Deputy Michelle Mulherin presumes that a woman who refuses treatment will be certified. I have already covered this issue with Deputy Seán Conlan. A woman who refuses treatment cannot be certified as the certifier will not be able to meet the test that all options have been explored. That does not mean that we can prescribe in law that every woman must be committed, have counselling and a course of anti-depressants. It means that an assessment must take place. Proper practice requires that such assessments cannot take place over a period of one hour. Assessment will take a period of time that is acceptable and reasonable. It may be that, following such a period, practitioners form the opinion that there is a real and substantial risk and that the only treatment which can work, having explored the other treatments, is to terminate the pregnancy. Treatments which are refused cannot have been properly explored and tried. If the opinion is formed by a second psychiatrist over a period of time also, certification takes place.
It has been suggested we provide for a cooling-off period. While that applies in other areas of law in relation to certain purchases, we are discussing a life and death issue. It will be highly prescriptive. This Oireachtas could be responsible for the death of a woman where two psychiatrists had certified that a risk was real and substantial and she had taken her life while we were having our cooling-off period. That is not something I am prepared to have on my conscience and it is not something we can prescribe in law. It is overly prescriptive. I accept that there are only good intentions behind the suggestion, but it is not possible to implement it within the law. Certainly, it would be completely contrary to the advice of the Attorney General. The medical profession would be outraged that someone's life could be left at risk on foot of a legal decision by the Oireachtas to prescribe a cooling-off period. I am sorry to say it is not feasible.
Deputy Peter Fitzpatrick asked who would have the obligation to inform a woman of her rights. It will be the doctor. The Deputy asked about appeals to the courts also. We have sought in so far as possible in the Bill to keep this process medical. It will involve a medical review. The situation with legal appeals will be the same as it is in all areas. One has a right to go to court to seek an injunction and appeal a decision. There is that right, but it is deliberately not part of the Bill. To make such a provision would be to suggest every woman who finds herself in a distressed state should be subject, having gone to three doctors and, perhaps, been subject to a review by another three doctors, to cross-examination by a group of lawyers. That is not what people would consider reasonable. It is open in cases where people believe they need relief in respect of a wrong decision.
Deputy Ó Cuív was the next to indicate. Had the Minister finished replying before the suspension?
I call Deputy Ó Cuív.
It is not my intention at this stage to press or pursue amendments Nos. 35, 48 and 53. However, I will be re-entering them on Report Stage. They seek to strengthen section 9. It is my position that I am opposed to section 9.
Can we speak to the amendment, please?
I am explaining my view on the amendment.
For that reason I will speak in opposition to the section but I wish to make the point at this stage that the issues raised by Deputies Naughten and Mulherin are germane to the whole issue of section 9 and to concerns that many people have in respect of the section. I will not be pursuing those three related amendments at this time. However, I will revisit the matter on Report Stage although the procedure on Report Stage is different because the question on the section is not part of Report Stage.
Deputy Timmins, you are next.
Can I speak to the section in general?
I only wish to speak to the section in general.
Deputy Shortall, you indicated.
I wish to add my voice to concerns about the difficulties that arise in respect of certification. We know the difficulties that exist in respect of reaching a clinical diagnosis regarding suicidal intent. My concern relates to how this will impact on the practise of medical professionals, especially in respect of the absence of legal protection in the case of, for example, a psychiatrist who has assessed a woman and deems her not to be suicidal. If that woman at some point in future, for whatever reason, goes on to commit suicide, where does that place the psychiatrist in terms of legal responsibility? My concern, which I raised on Second Stage, is that in those circumstances where there is no clear legal protection for psychiatrists, is there not a real danger that the default position for psychiatrists will be to certify in those circumstances? How do we prevent that occurring? That is the big issue.
We have been told that these cases are one in half a million, yet at the same time if we examine the experience in other jurisdictions where what seemed to be a rather strict regime developed into something entirely different. There is the genuine concern here among people that we could have the same experience. I find it hard to see what is in this legislation that would prevent that default situation arising for psychiatrists. I would welcome some clarification on that.
Significant issues were raised at the hearing by Dr. Sam Coulter Smith on the question of certification.
They have not been addressed to date. I will refer to them further on the question of the section but there is a major issue in respect of lack of legal protection for psychiatrists.
In the absence of clarity in this regard, there must be a real danger that this section will create unintended consequences. What can be done to prevent this?
I wish to revert briefly to the amendments I have tabled on behalf of my party in this grouping, namely, amendments Nos. 34 and 54. There was a strong and consistent case made in the course of the hearings on the heads of the Bill by a number of voices urging the amalgamation of the respective heads of the Bill pertaining to a risk to the life of the woman where a physical illness presents and a risk to the life of the woman where a threat of suicide is established as being real and substantial. It is important to reflect this and these amendments do so. Considerable urgings were made to amalgamate the respective heads along the lines the amendments, as presented, support. That said, I understand well the Minister's explanation and, in the context of this legislation, how could any member not?
I also note that on the passage of the Minister's amendment No. 32, amendments Nos. 34 and 54 will fall and, consequently, there will not be an opportunity to press or test them. However, for those who appeared before the committee and who argued a strong and consistent view across a number of professions and disciplines, both medical and legal, it is important that their views are reflected and taken into account in the overall consideration of the Bill at this Stage. As I have no doubt regarding the outcome of the sub-committee's discussions on this matter, I simply wish to record this observation at this point, while recognising these amendments will not proceed.
I refer to the response the Minister gave to my previous request or submission and I take issue with his suggestion that the inclusion of a pause or a cooling-off period could jeopardise women's lives. To what medical evidence is he pointing? I am not a medical person but-----
Yes. I refer to the remarks of Dr. John Sheehan, perinatal psychiatrist, who noted at the hearings of the Oireachtas Joint Committee on Health and Children that a speedy delivery of a baby is contra-indicated in psychiatry. This constitutes a significant difference between his field and that of obstetrics, where a rapid inducement is often favoured. As Dr. Sheehan outlined, there is a difference in that respect with regard to a physical threat and a threat from emotional, psychological or psychiatric reasons. Therefore, it is of great concern to me that the Minister would see a decision or a certification under section 9 being made as an emergency decision. To what evidence is he referring? Why is he not referring to the evidence from the health committee hearings? Why is he not addressing the fact that at least 50% of the medical practitioners there raised issues pertaining to the suicide grounds. While I am at it, why were no reports or findings made from two lengthy hearings of the Joint Committee on Health and Children in respect of this matter?
On a point of clarification, reports were issued on the two hearings by the Joint Committee on Health and Children.
I am asking about findings. In any event-----
Sorry, that is not relevant to this section of the Bill.
It is relevant to the point I am making. My understanding of people practising in the field of psychiatry is that invariably, many forms of treatment can be tried. Moreover, because of the subjective nature of the entire field, this in fact is how psychiatrists ordinarily proceed to treat patients. Invariably, there is one common denominator in this regard and that is time. The time required does not equate with emergency decisions and I am concerned about the Minister's response. He has not at all addressed the fact that evidence was given contrary to what he has just stated in the hearings before the Joint Committee on Health and Children. I would appreciate it if he could find medical evidence to support what he has just stated, which is that an emergency decision is the best way to approach a psychiatric situation.
I invite Deputy Boyd Barrett to speak on amendment No. 32 in the name of the Minister. There is an associated grouping. The Deputy spoke earlier on it.
The Minister has stated that the suggestion or proposal that this legislation should include the qualification that the threat to a woman's life should neither be immediate or inevitable would be superfluous. I put it to the Minister in the strongest terms that this is wrong.
To be fair to the Minister and members, we have dealt with this previously.
Yes. The Minister responded to members' points and I am responding to his point. He is completely wrong. If the Supreme Court thought it sufficiently important to put in that qualification to explain what was meant by a real and substantial risk to the life of the woman, namely, that it did not have to be inevitable or immediate, why in this legislation is the Minister second-guessing what the Supreme Court stated? How can the Minister sustain an argument that it is superfluous? Is he suggesting that the Supreme Court's inclusion of that important qualification was superfluous because clearly, it was not? It was extremely pertinent to its decision in the X case that the threat need not be inevitable or immediate. Consequently, it appears to me as though the Minister is tightening the definition in this legislation in an unacceptable way, which ultimately could put at risk the lives of women where there is a real and substantial threat but where that threat is not deemed to be inevitable or immediate.
I take on board what Deputy Ó Cuív has said. Deputy Shortall has raised the issue of a lack of legal protection for the psychiatrist. While the Minister of State, Deputy White, can deal with that matter in a more comprehensive fashion, it is dealt with in normal practice in good faith. No one can predict with certainty the outcome of a psychiatric condition and sadly, there is all too much evidence of this. However, as long as doctors act in best faith, using the latest knowledge available to them as adjudicated by their peers, they have a protection. As for the Deputy's concern on the issue of the chilling effect perhaps operating in the other direction in respect of psychiatrists, because of what she considers to be an uncertainty, being more disposed to certify, I do not believe it will arise because the law is quite clear in this regard. They have protection on it and for as long as they have acted in good faith and have a rationale for not certifying, then I believe they have protection under the law.
I mean no disrespect but I believe Deputy Ó Caoláin's comments were covered earlier. I acknowledge they were a restatement of the Deputy's opinion, which is absolutely fair and which I respect but I have no more to add. Deputy Mulherin raised a number of issues.
I agree with her that there are many forms of treatment to be tried but doctors have to act in an ethical fashion and cannot try everything that comes into their heads. They have to make a valued decision using reasonable opinion as to what is and is not likely to be of benefit, and those treatments should be tried. I think we covered this earlier, in fairness. If, in their reasonable opinion, there are one or two modalities of treatment that should be tried before they feel they can certify, they have to be tried. If they are refused, they are then not in a position to certify. That is the law in terms of this particular Bill.
The Deputy said that 50% of medical practitioners raised issues in respect of suicide grounds and were concerned. That may be true, but my response to her is very much around the idea of a cooling off period. It is worth repeating, and I say this as a doctor, that there is no way a medical practitioner would have dictated to him or her the care of his or her patient when it is he or she, in regard to a case like this, who has to deal with the clinical situation in front of him or her. The law cannot, nor should it, prescribe. We have gone over this a number of times. There may not be universal agreement on it but, by and large, I believe there is consensus that it is not the role of legislators to prescribe practice to doctors. We have to respect their professionalism. They have their Medical Council, and we have to respect that too.
I would like to clarify, lest there be any confusion, that I never said an emergency termination was the best approach. In fact, the Bill is very clear on that. The emergency provisions in this Bill do not apply to suicidal ideation on mental health grounds. It must be remembered that it is not mental health grounds; it is the risk of suicidal intent that is real and substantial to the life of the woman that can only be averted by a termination. I want to be absolutely clear about that.
Deputy Boyd Barrett just restated what he said earlier also. He restated the issue around the Supreme Court case. I would have to point out that immediate or inevitable is not part of the test. I would like to call the Minister of State, Deputy White.
To start on the point the Minister finished on, he is absolutely correct. That the risk does not have to be immediate or inevitable is not embedded in the test that was set out by the Supreme Court. The test set out by the Supreme Court is very clear. I can say with confidence that the test is whether, as a matter of probability, there was a real and substantial risk to the life of the mother, and the second part of it, we understand, is that it could only be averted by a termination. However, the fact that the court then said in the course of the judgment, and the Deputy is right, that that risk did not have to be immediate or inevitable is not embedded as part of the actual test promulgated by the Supreme Court. I am very clear on that, and that would be the advice the Deputy would get from any lawyer that examined the judgment. I would genuinely say that to the Deputy.
It is clarifying the meaning of it.
Yes, but it is not part of the test. The Deputy made the point, which was quite wrong, that we are reducing or varying the test or something like that.
We are narrowing the scope.
That is not true.
I want to address the other points. Deputy Shortall spoke about a concern, if I understand the point, that if a psychiatrist was asked to make a certification and declined to make a certification, would he or she then be in a position where they would have a concern that they might be subject to litigation in the future, having declined to make a certification. The normal rules of medical negligence apply here. The famous case of Dunne and Holles Street hospital is the case we all know about, which set out the basic principles of medical negligence. In terms of the true test, it is that as long as a doctor is acting in a way where he or she is not guilty of the kind of failure that no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care. It sounds a little clumsy but that is the test well known and applied by the courts every day of the week. The same principles apply in these circumstances as would apply generally. One would have to prove that the doctor had deviated from a general and approved practice.
We know there is a broader debate about defensive medicine, namely, that there is a concern that doctors not just in this country, but in different parts of the world, are acting in a way that always has an eye on the possibility of being sued. We are all aware of that problem and that general challenge in medicine that it should not become defensive medicine and that doctors should not act all the time or at any time thinking about what will happen if they are sued. It is no different here than it is in any other similar circumstances. Deputy Shortall, or the Chairman, can correct me if I am wrong on this but the psychiatrists in the two sets of hearings raised many issues but I do not remember that issue being raised. I say that tentatively. I may be wrong but I do not remember any of the psychiatrists worrying that they could be sued for declining to make a certification in the circumstances outlined by Deputy Shortall. I respect the point but the specific concern the Deputy has raised is misplaced.
The last point I will make concerns what Deputy Mulherin said, and I do not want to add too much to it other than to say that we are all familiar with a commonly known phrase, justice delayed is justice denied. It means that if a person does not get justice at the time their right has been engaged, it is just as bad as depriving them of the right. If somebody engages a constitutional right and that right and entitlement is his or hers, delaying it is tantamount to removing that right. We cannot do that, and it would certainly be unconstitutional. Delay is just as bad in many circumstances as removal of the right, and we cannot do that.
My simple question was for the medical evidence to support it.
Deputy Boyd Barrett is next. I will call the Deputy again.
I thank the Chairman for his indulgence because I have to attend a finance committee meeting shortly but I want to make a number of points to the Minister of State. I will begin where he concluded. I agree with the Minister when he says that delay is tantamount to not vindicating people's rights in this case and for that reason I agree wholeheartedly with what he said about Deputy Mulherin's suggestions. It would be a threat to women's lives if we were to take on board those suggestions but I ask the Minister to follow through on that logic when it comes to the issue of the number of doctors. The Minister has admitted that because there is an unborn life in this equation, he is establishing a higher bar for certification as to the threat to a woman's life when it comes to suicidal feelings than would normally be the case were there not an unborn child in the equation. That is diluting a woman's right to life because-----
Exactly, but if what we are trying to do is vindicate the woman's right to life and ensure there is no threat to her life, if we were certifying or assessing suicidal ideation in this case than would be the case normally where there was not a pregnancy means that woman's rights are being diluted. She is getting second class rights because there is a pregnancy. I am not a doctor but psychiatrists are saying that under normal circumstances, if somebody were to be certified, all that is required is one psychiatrist and one general practitioner yet in this case the Minister is requiring two psychiatrists and an obstetrician. It is a much higher bar to go through, and then there is the possibility of a review panel, all of which could mean delay, which the Minister says is unacceptable.
On a point of information-----
If I could be allowed finish-----
If I could help the Deputy-----
I will allow the Minister respond.
Finally, I want to underline the point about the obstetrician because there is no medical reason for an obstetrician to be involved in certifying whether somebody is suicidal or not and whether the threat to a woman's life in that instance is real or substantial.
The Minister has again accepted and admitted that the only reason obstetricians are being included in this very prescriptive list relates to the requirement to respect the rights of the unborn. Again, this means that the bar is being set higher in respect of women whose lives may be under threat. That is absolutely unacceptable. In the context of what is being proposed, there could be a situation where two psychiatrists certify that a woman is suicidal and that there is a real and substantial threat to her life but where an obstetrician who is not qualified in the relevant area could block this. That is completely unacceptable because it will place women's lives under threat.
The Deputy is correct when he states that there is a higher threshold with regard to the assessment of suicidality in respect of the assessment of women in the circumstances we are discussing versus the norm. He must, however, examine Article 40.3.3° of Bunreacht na hÉireann which sets out in solemn and clear terms that the State acknowledges the right to life of the unborn, with due regard to the equal right to life of the mother. These rights are set at a level which are equal to one another. I object slightly to the Deputy's references to "what you are doing here" and "what you are proposing here". We are acting within the terms of the Constitution, which belongs to the people. We are not coming up with proposals just to-----
There are other interpretations.
There are some very clear and fundamental issues which we must bear in mind and these are dealt with in the Constitution. We did not make them up.
The obstetrician will be there not to assess the level of suicidality in a woman or the risk of suicidal intent, he or she will be present to vindicate the rights of the unborn. This follows directly from Article 40.3.3° of the Constitution and it is why the legislation is called the "Protection of Life During Pregnancy Bill". It is not the protection of maternal life during pregnancy Bill, as others would like it to be called. The legislation is about protecting life on both sides and upholding the equal right to life of women and the unborn, with the full understanding that if one loses the mother, then one loses the child. In such circumstances, it is made very clear in the legislation that this can be the only action or treatment which can avert the risk to a woman's life.
The use of the maxim "justice delayed is justice denied" distracts from the fact that what we are ultimately referring to is a medical decision. We like to believe that such decisions are based on medical evidence and we are trying to provide a framework for this. The Minister referred earlier to the possibility that an emergency decision might have to be made. The comment I made was in reference to that.
I am of the view that the bar should be set higher in this case. It is close to impossible to clinically diagnose suicidal intent. What comes into play, therefore, is the opinion of the medical professionals involved. Let us consider the case of a woman who is suicidal as a result of her pregnancy rather than an underlying psychiatric illness. It must be remembered an individual with such underlying conditions would be dealt with differently and offered other treatments. Does the Minister accept that a request for a termination of pregnancy in the circumstances to which I refer would give rise to significant ethical and legal dilemmas for the medical practitioners involved? On one hand, many practitioners and the medical profession in general believe that there is no evidence base regarding the provision of a termination as a treatment for suicidal ideation. On the other hand, they know that if, in some cases, they terminate a pregnancy at a particular stage, they will jeopardise either the life or the health of the unborn. I do not believe there is sufficient advice for or protection available to medical practitioners in those circumstances. On what basis will they balance those two rights, as the are required to do under the Constitution? This issue was discussed at some length at the hearings of the joint committee but it was not actually addressed. I take the point that the joint committee was not in a position to make findings but does the Minister accept that there is a real dilemma for medical practitioners in respect of this matter? How will they achieve the balance required of them under the Constitution?
The Minister of State, Deputy White, referred to the Constitution and the equal right to life. In conjunction with the Supreme Court's ruling in the X case, the latter is the backdrop against which the legislation is framed. The Minister of State specifically referred to Article 40.3.3°, which accords an equal right to life to the unborn. As Deputy Shortall pointed out, at a certain time that right is compromised by the right of a mother to have her life saved where it is certified that termination is the only way to achieve this end. There is, however, another stage at which the right to life might not be compromised but at which the right to a quality life might be so compromised. I refer to circumstances where it is necessary to facilitate a premature delivery in order to save the life of the unborn. In the context of the equal right to life contained in the Constitution, the parity of esteem between both parties we are obliged to recognise in law, and the question that arises in respect of appropriate treatment - and not to complicate the matter further by suggesting the involvement of additional legal representation - is there a case for bringing in a medical professional to act as advocate for the life of the unborn? This might be of assistance in ensuring that both rights are vindicated in a fashion which ensures a quality of life for the unborn child.
In light of the example provided by Deputy Shortall, will the Minister clarify a matter for me? If a woman is suicidal because of her pregnancy but has an underlying mental health issue which is treatable, would she be entitled to a termination?
I will go through the questions in order. Deputy Boyd Barrett has left but I believe I answered his questions in any event. In the interests of absolute clarity, if Deputy Mulherin checks the record she will discover that I did not use the term "emergency decision". Part of my argument as to why it would be neither tenable nor permissible to include a cooling-off period is that this would be prescriptive and that a woman could die during such period. That is the reality. I do not believe doctors would be satisfied with that and I certainly do not believe the House would like to be held responsible in this regard. I understand the Deputy's concerns in respect of the controls relating to this matter. I am very much of the view - which the Government shares - that this Bill will protect the unborn in every way possible and, nonetheless, that it will also respect the life of a woman in circumstances where her life is threatened and where the risk in this regard can only be averted through a termination of pregnancy.
I will ask the Minister of State, Deputy White, to address the issue raised by Deputy Shortall. Deputy Creed referred to quality of life. In the first instance, what he described could happen now in any event. The Bill does not alter the position in this regard in any way. It is important to note that the judgment handed down by the Supreme Court in the X case refers to a threat to life rather than to health. The quality of life issue is, therefore, not contemplated by that judgment. I accept that the Deputy is approaching the matter from a different angle.
What I am trying to say is that as things stand, and as clearly demonstrated by the X case, it is open to a doctor to perform a termination if she or he believes, in good faith, that it is the only treatment that will avert the threat to the life of the mother. That can happen now. We do not know if it is happening, how often it has happened or where it is happening. There is no onus on people to report it and there is no mechanism to monitor it. This Bill does all those things.
Deputy Naughten asked about a patient who might be suicidal because of pregnancy but who has an underlying condition. This is where the psychiatrist must use his or her clinical judgment and acumen to determine that the cause of the suicidal ideation and the risk to the woman's life is one primarily brought about by the pregnancy and not due to any other circumstance.
It might help a number of members if I state what Dr. Anthony McCarthy, who is the president of the Irish College of Psychiatrists, said. He said there is no treatment for suicide and that the only course of action is to remove the risk and remove the underlying causes. That is what the psychiatrist must do in clinical practice, namely, determine the underlying cause of the suicidal ideation presenting this risk. That is what this Bill allows for. If in the very rare circumstance it is the adjudication and the clinical judgment of the psychiatrist that the risk is indeed the continuation of the pregnancy, as opposed to any other underlying cause, then he or she must treat. Dr. Rhona O'Mahony said she cannot be satisfied as she is not a psychiatrist, although she is an obstetrician, that this situation will not arise and, therefore, she feels it must be provided for by law. As we know, it is provided for by law through the Supreme Court in the X case.
Nobody can make the case that the circumstance, where there is a real and substantial risk to the life of the woman arising from a risk of suicide, would never arise. Nobody can bring that argument home. Whether it is one in 1 million or whatever figure Deputy Mulherin had, I do not know what the likely outturn would be but nobody in this room or elsewhere can say it would never arise that a woman's life would not be at risk from the risk of suicide. That case cannot be sustained and that is why we are providing for it.
To answer Deputy Shortall's question on what protection is there, I say in all sincerity - I know it is repetitive - the protection is in the Bill. The test is an extremely onerous one. The protection for doctors acting in good faith carrying out the components of the test, which appear in the Bill, are the protections a doctor has as well as the additional protection all doctors have in regard to the general principles that apply to circumstances where there might be litigation or where their actions might be attacked afterwards. There is protection there. How else could we do this? I genuinely ask Deputy Shortall and others, if they can suggest another way this can be done?
I respectfully say to Deputy Creed that I have a number of objections to the notion of having a medical advocate but the principal one is that it actually becomes circular. If one puts an advocate into the clinical situation who is speaking up for the unborn, as Deputy Creed reasonably suggested he or she might do, it cannot change the balance of the test which must be applied, which is whether there is a real and substantial risk. There is an added test in section 9 where we require two psychiatrists rather than one psychiatrist. We have the added safeguards. What would the advocate do? Would the advocate question whether in truth there really was a real and substantial risk as found by the other two? That is adding a third and is an argument for having four rather than three. One would have to define what the advocate would do.
I understand Deputy Creed said a medical advocate but it has been argued in the debate that it should be some form of legal intervention, to which I would be wholly opposed. I would not be in favour of a forensic cross-examination of a woman as to her bona fides. That is precisely what Mr. Barnes meant in his article in The Irish Times. He might not have spelled out exactly what he meant but that is the only thing he could have meant. The question of having an advocate, or having somebody to speak up for the unborn, must mean a forensic cross-examination of the woman concerned and I do not believe that could be countenanced. That adds an extra layer and is not contemplated.
The point about ethical dilemmas is addressed indirectly in the sense that the ethical dilemma doctors might have is resolved in this Bill in the provision in regard to conscientious objection. Doctors apply the test and if a doctor has a conscientious objection to being involved in that process, he or she has an out.
I do not think anybody in this room or anyone engaged in a serious way in this debate wants to put the life of a mother at risk but I come back the Minister's acknowledgement that there is an equal right to life. I suppose this question needs to be posed in the context of vindicating the right to life of the mother. Should this committee, in the context of framing this legislation, not explore the possibility of developing a way which provides for equality of life for the unborn child, without comprising the right to life of the mother?
I do not favour the point made by the former Director of Public Prosecutions in the context of legal representation. However, it is worth exploring this possibility, although not in the form the Minister of State expressed of a forensic cross-examination by a medical advocate. However, having certified that this entitlement exists medically, there is a question then of the advocate for the unborn child being involved in the management of the case to see how one could get to a situation, without compromising either the mother's or the unborn child's constitutional rights, where equality of life can be delivered for the unborn child.
Doctors have to do both. The doctors have a responsibility-----
This is the difficulty we have as lay people but I sat through six days of hearings and I suppose by a process of osmosis we have all gained some degree of medical qualification to comment-----
Some degree but not the degree.
Is there not a critical issue in terms of say 23 to 24 weeks and 28 to 30 weeks? Is there a process of case management? Is it not incumbent on us to travel that road of an advocate for the unborn child? That is something which the committee could usefully explore. Perhaps the Minister will consider coming back to it at a later Stage.
It is important to point out that this is a medical responsibility and that it is the clinical call of the doctors. We cannot legislate for that. We are back to being prescriptive and interfering in medical practice and into that dangerous territory into which I do not want to go as a Minister. I know what the reaction of members of medical profession would be. They have to do their job and they are trained to do so and we must trust them. We are back to that and I do not want to get into arguments where we are always thinking of somebody who might abuse the situation and putting in strong notifications to prevention that from happening. We have had a very good debate today and yesterday and, in fact, throughout but there have been times when people have described women as being devious and manipulative in trying to abuse this and doctors as being devious, manipulative and dishonest in abusing it.
There are rogues in every profession, albeit a very small number, and a good system protects the public from those as well as mistakes. To err is human. We must trust in the professionals, the Irish Medical Council, which now has a lay majority, and the colleges that are interested in best practice and issuing guidelines that keep people up to speed on the best way to proceed in a given case. Even they do not act in such a prescriptive way that it would interfere in an individual's clinical judgment.
In short, it is not for this Bill to address what the Deputy has expressed as a very legitimate concern in an area that perhaps needs further examination in a different forum. This Bill is clear in what it sets out to do.
We are discussing the amendments and the Minister indicated he may have amendments on Report Stage. I regret those amendments are not being put on Committee Stage as the Bill has been a long time in preparation. Will the Minister indicate to us the nature of the amendments he is considering so we might have an input into the thought process? We can still work on Report Stage but now we are operating in something of a vacuum because we do not know even the general outline of what the Minister is proposing.
What will happen if a woman turns up with suicidal tendencies at approximately 26 weeks, or a stage when a baby could live outside the womb? I was clued into what happened at the hearings and doctor after doctor indicated that everything medically possible would be done to protect the life of the woman and child. Am I clear and right in saying that?
I can answer that in one sentence. Yes.
I wanted to speak to the section because I am opposed to it.
We are on the amendment.
Based on the discussion, the issues I want to raise are pertinent to the section. We have spoken about this Bill giving rise to clarity. I have much sympathy for the Minister, the Minister of State and those in the Department in trying to formulate legislation arising from what I perceive as a flawed judicial decision 21 years ago. Retrospectively we are trying to legislate for something that has happened.
I am concerned about implementation of the legislation. Does it not set off an alarm for the Minister that so many gynaecologists see a difficulty with this? That is notwithstanding the conscientious objector issue and the ability to move to the next gynaecologist. Is the Minister not saying to himself that there may be something wrong with this when the Master of the Rotunda Hospital, speaking on behalf of all his staff, has a difficulty? What will happen in Portiuncula Hospital in Ballinasloe when somebody arrives, goes through a process and is seen by a gynaecologist who is a conscientious objector and will not do the procedure? How can the head of that hospital employ somebody who will do the procedure or advertise the position? These are very important practical issues.
During the hearings I sought to discover how many minors in the care of the HSE had availed of the X case decision on suicidal intent in order to have an abortion. The Chief Medical Officer told me the executive did not have those statistics but I have since got them through parliamentary questions from the Minister for Children and Youth Affairs. Deputy Mulherin alluded to the six minors in question earlier. Four of those appeared in court but two did not so why was there a differentiation? They were signed off by a psychiatrist. If this process is about protecting the lives of women, why did these minors go abroad for the termination? Why did it not take place in Ireland if it was legal under the X case decision and relevant to a threat to the life of the woman in question?
Deputy Creed touched on my next point, which relates to a patient who may be suicidal and does not want any treatment. That person may be certified by the psychiatrist and the gynaecologist would intervene. The Minister indicated that the same process happens now and the pregnancy is terminated, whether a foetus is viable or not. If the pregnancy is at 30 weeks and the foetus is viable, what happens if the woman argues that under the legislation she is entitled to a termination? What would happen to the child? If it is at 23 or 24 weeks-----
Will the Deputy repeat the question because I am not clear on what he means?
I am speaking about a woman who is 30 weeks pregnant and does not want to go ahead with her pregnancy, with the psychiatrist's assessment indicating that there is a threat to her life based on suicidal intent. The gynaecologist would carry out the process and the unborn child is viable. What happens to that unborn child? As Deputy Creed alluded to, there may be more tragic cases. If a pregnancy is 23 or 24 weeks along and an attempt is made to save the child but it is born with a disability, what happens to that child? Is the State liable to a damages claim from the mother? With regard to the rights of a mother, under the X case a woman is entitled to a termination. A woman may dispute the termination and say she does not want the pregnancy terminated. What will happen in that case?
What exactly does the Deputy mean?
There may be a certification that a woman's life is threatened because of suicidal intent. If a gynaecologist is doubtful about the viability of the foetus and an attempt is made to terminate the pregnancy but the foetus is born damaged but alive, what happens in that instance? I hope such a case never happens but it may. I have heard assurances from the Taoiseach and the Minister about the Bill but what status does the assurance of a Minister or Taoiseach have in the Bill?
We are debating an amendment.
The term has been used. Will the Minister give some clarification on it? Will the Minister address the case of the six minors and the hard cases I outlined, although I hope they will never come about? I do not see anything in the Bill dealing with them. I have spoken to gynaecologists but I do not have any knowledge other than what I have gleaned from evidence and what I have been requested to inquire about.
My point is further to Deputy Creed's point regarding the right or the need for representation of the unborn. This is not just something that some quarters may think desirable. How is the legislation taking into account the 2011 court decision of Dellway Investments and others v. NAMA and others, which established in law that a third party legally affected by a decision-making body is entitled to both due process and representation? This case cannot be ignored, although I have previously heard a response that this is a medical decision. That may be but the medical decision has extreme legal implications in that if certification is granted, the unborn will lose their lives. Rather than getting complicated and suggesting that all these cases will end in the High Court, I should ask that if these cases are so rare, what is the big deal with the unborn being represented?
My understanding is that the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995 came after the 1992 referendum. Counsel was appointed to represent the unborn and Mr. Justice Peter Kelly of the High Court at that stage was that individual.
I am looking at it on the basis that there is a possibility that this legislation will end up in the Supreme Court.
We will not rule on that today.
I know that but I am asking the question on that basis.
That is my first point. Second, looking at the wording in amendment No. 32 - "having examined the pregnant woman" - we have not discussed the issue of clinical guidelines to which the Minister referred in his speech. I do not see the clinical guidelines mentioned in the legislation. The Minister might give us an update as to how that will tie in with what he stated on Second Stage, that the Department is currently in consultation with the four bodies "with the ultimate aim of developing guidelines for their members on the implementation ... following enactment of the Protection of Life during Pregnancy Bill ... a multidisciplinary committee to develop these ... will be established". Where I am coming at it from a practical level is where it is at and how it ties in with the legislation. Once again, I am asking the practical question.
On the question of ethical dilemmas, it is not sufficient to state there is an opt-out clause because most staff working in the system will be faced with these dilemmas? Medical practitioners regularly are faced with these dilemmas. They have medical and legal responsibilities.
We are talking about a highly unusual situation. I am not aware, and perhaps the Minister can tell me otherwise, that there is an abortion regime in any other jurisdiction where there is a legal responsibility on the doctors concerned to protect the life of the unborn. Obviously, that arises from the constitutional provision. To say the least, it is an extremely unusual regime to have. As a result, doctors will be faced with very difficult situations which they must address. On the one hand, there is a woman who is saying she is suicidal, while on the other hand, to deal with that issue for the woman who is suicidal by virtue of the fact that she is pregnant, a doctor is required to end the pregnancy but perhaps not deal with the cause of the woman's suicidality while at the same time having an equal responsibility to protect the life of the unborn. How does a doctor make that call or balance those two sets of rights? It is a serious dilemma that arises. It is disingenuous to state they can opt out because this is, as far as I can see, a unique abortion regime that is being legislated for here.
Deputy Ó Cuív spoke about the amendments I might table on Report Stage and asked whether I could enlarge on them. I cannot at this point.
Deputy Timmins spoke about implementation of the legislation, conscientious objection and the comments by the master of the Rotunda. The reality is I met the Institute of Obstetricians and Gynaecologists and that is not its view. I respect the view of one person but there are many others involved here.
Deputy Timmins asked a specific question, which I wrote down but on which I must revert to him. Was it on the number of women who travelled abroad for terminations and who were in care?
That is not something I can answer immediately but I can check that out and come back to the Deputy.
I will be happy to get an explanation on that on Report Stage.
That is not an explanation. The question was how many.
The question was why they did not have the treatment here in Ireland.
That I can answer straight away. That is the purpose of this Bill. The reason they had to travel is because there is no clarity. They had no way of knowing how to access the service.
I thought this Bill would not lead to a change in practice.
The Minister should be let finish. I will bring Deputy Timmins back in.
I will bring the Minister back to a change of practice.
That is why we have this Bill and why we are having this debate. It is to clarify these matters for the doctors and for the women who need these services in order that they know what they are legally entitled to and, most important, how to access it. That was the tenor of the C case in the European Court of Human Rights.
It is important to note that it will lead to a change of practice. That is what I am trying to establish.
I will bring Deputy Timmins back in.
I was asked what happens to a child born at 30 weeks. The answer is that it will be same that happens at present if a child is born at 30 weeks. The child will be supported in the neonatal unit and go home with his or her parents or parent at the end. What happens, as I think Deputy Timmins was inferring, where the mother does not wish to bring the child home is that the child will be taken into care in the normal way, put up for adoption, and the best will be done for the child to find him or her a family.
Deputy Timmins asked about a 24 week gestation where disability occurs as a consequence of early delivery or, at least, where we believe it would be a consequence of early delivery, because we know there are associated disabilities with the earlier birth of children around this period of time. There is no liability on the State, but the State will look after the child if the mother does not wish to take the child home when he or she is fit to go home.
Deputy Timmins then asked a question on the assurances of the Taoiseach, etc. That is not appropriate to this setting.
I missed the beginning of Deputy O'Donnell's question. I hope I have got the right question, but this is the answer.
Before the Minister of State, Deputy White, comes in, if I may, there are the other questions. There is Deputy Mulherin's question on NAMA, which I was going to allow Deputy White answer because it is a technical, legal one, and then there is Deputy O'Donnell's one, which is-----
One is a legal question and one is on the clinical guidelines.
-----the 1995 Act and the medical guidelines. On the medical guidelines, perhaps the chief medical officer might answer.
I must go for a vote. Is it possible I can defer my response?
No. We are not doing that. We are moving on.
I will be quick in that regard.
I think that was an Article 26 reference to the Supreme Court to test the constitutionality of legislation. That would be representation appointed by the Chief Justice to argue for the unborn as a class, not the interests of a particular unborn. It sounds like a crass differentiation, but Deputy O'Donnell will know what I mean. That was to deal with legislation and the same argument cannot be employed here.
I am going on the constitutionality aspect of it.
That would be to test the constitutionality of a Bill where the lawyers are appointed by the Chief Justice only for the purpose of making that argument.
What if this went to the Supreme Court?
What is being advocated here is a representative for an individual actual unborn. In response to Deputy Shortall -----
If I could beg Deputy White's indulgence to facilitate Deputy O'Donnell-----
-----this is a medical process, it is in process at present and there is no more to add until the medics come back with the guidelines.
I will be back.
Yes, but this will not be raised again.
There are many questions that we can pose on this, but what the Government and the Oireachtas must do ultimately is come up with answers. Deputy Shortall's question was about how the doctor was to make the call. This was the dilemma she reasonably posited. Our answer to that is contained in the legislation. That is the answer to the question. With respect to Deputy Shortall, I would ask if there is a better way of doing this. If there is, I would be interested in hearing it because there is a constitutional context.
This comes back to Deputy Mulherin's point about Dellway Investments. I will not comment on that. I am here as a Minister of State and it would be above my pay grade to start doing what the Attorney General should be doing. If there is an issue about Dellway Investments in Ireland that needs specific attention, the Attorney General should be asked about it.
I will quote Article 40.3.3°, which is short. The Chairman will not mind because it is for a purpose. It 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.
I emphasise "in its laws" and "by its laws". The requirement is that we vindicate the right to life of the unborn and the equal right to life of the mother in the laws that we enact. It does not remotely require us, constitutionally, to put it into each individual case where the issue or the dilemma arises, for example, separate representation. What we are doing is we are calibrating a test in legislation, and it has been extremely difficult to do this. We are guided by the Supreme Court but we have had to listen to everything that has been said, in the committee by members and by persons outside. We are putting together, as best we can, a calibrated test that maintains equal respect for the equal right to life of the mother and the unborn. If there is a better way of achieving this, hand on heart I am genuinely interested in hearing what it is.
While I do not profess to be in any way legal, I do know that the tenet of what the Attorney General has told us is that the Delaware case was related to people in a commercial relationship and that this is about the unborn in a very different type of relationship. I can come back with more comprehensive information on the issue at a later date, in fairness to Deputy Michelle Mulherin.
With regard to the ethical dilemma involved, what struck me about Deputy Róisín Shortall’s contribution was the point that in no other regime was there any legal responsibility on doctors to protect the unborn. I doubt that there is another constitution the very same as ours. This is the explanation.
I ask speakers to be brief because we have already spent more than one hour and 50 minutes on this group of amendments.
I was very happy with the Minister's response on the issue on certification. It clarifies matters. Deputy Billy Timmins's question illustrates the reason I asked the question. He has attended all of the Oireachtas hearings and understands the issues involved. He posed the question about a pregnant woman presenting and the doctor assessing there was a real risk but the woman then refusing treatment. The Minister has clearly specified that in such a case the doctor cannot certify. However, this is not clear in the legislation. I do not know whether the Minister can deal with it through a definition of reasonable opinion or good faith. It needs clarification because those who are informed may still come to the conclusion that a doctor can certify. That is why there is a problem with the general public having a belief the legislation is not restrictive enough.
I apologise to the committee. That little bit slipped by me with regard to a woman refusing treatment. A doctor cannot certify if a woman refuses treatment. I thank the Deputy for catching this. I re-emphasise what I stated earlier today and yesterday. A doctor cannot certify and the test for certification cannot be met if, in his or her view, the woman has not availed of other treatments which, in his or her view, could ameliorate or avert the threat.
I call Deputy Éamon Ó Cuív and ask him to be brief as he has contributed a number of times.
This is the nub of the Bill and in five or ten years time when people will thank us for having taken our time.
Will the Minister clarify the issue to which he has just alluded? What will be the situation where a person does not have a mental illness and the issue of alternative treatment does not arise? I understand refusing treatment for something other than a mental illness will raise questions, considering what was stated at the Oireachtas hearings.
Irrespective of at what stage of the pregnancy the person is, at the very early stages of viability the issue is crucial because of all types of complications. What is the situation where the mother states it is not the pregnancy but the thought of bearing the child which is causing suicidal ideation and that the only thing that will stop her from committing suicide is an abortion? I will use the Irish word ginmhilleadh because it is more descriptive. What ginmhilleadh means is very explicit. What is the situation in this regard? It is germane to this question. What is the right of the child in this situation?
Time and again the Taoiseach has stated this will not lead to a change in practice, but in reply to Deputy Billy Timmins the Minister has made it absolutely clear that this is a fundamental change in practice because in the case of the six young people sent to Britain for terminations, he stated the practice was not to provide them here.
I did not.
The other issue which causes me great concern - the issue Deputy Billy Timmins has brought forward with regard to numbers is new to me - is how many pregnant young women-----
We are discussing the amendment.
This is relevant. We have had six cases. How many pregnant young women in total are in care? It seems that if this is extended to the total population, it is a very high number and a very frequent occurrence. Will the Minister address this issue because statistically it seems that very significant numbers will be involved?
I will answer these questions now as they are very salient. In an instance where there is no mental illness - bear in mind that this is a clinical assessment which will take some time to form - the Deputy has asked what will happen if the suicidal ideation remains and the risk of suicide is high and real. The pregnancy will be terminated if it is the only way to avert the risk. The risk and threat to life must be assessed. The Deputy has asked what would be the situation if the child was the problem. We have made this very clear. Neither the woman, the doctors nor any citizen or non-citizen of the country have a right to commit infanticide or the right to interfere with a child that is viable.
Before it is born.
If the Deputy's question is that suicidal ideation is only an issue as a consequence of a child being born, clearly it is not possible for a doctor to certify in such circumstances. It cannot be.
It must be the pregnancy rather than the child.
Yes, it has to be the pregnancy.
The Deputy also contends that the Taoiseach has stated this will not lead to a change in practice. This must be taken in the round. I presume we all accept that what we are trying to do - we have stated it time and again - is have clarity for the women of this country as to what is legally available and how to access it and to have clarity for the professionals who must deliver the service as to what is legally permissible and what they are duty bound and obliged to provide. The natural consequence of this is improved practice. If we get into semantics about changes in practice and whether improved practice is changed practice, one can see where I am heading.
With regard to the issue raised by Deputy Billy Timmins of the six teenagers in care who travelled, I did not state it was not the practice; I stated it was not clear to them how they could access the service, which is why they travelled and we are introducing this legislation.
Deputy Éamon Ó Cuív also asked how many pregnant young women were in care. I do not know here and now, but we can find out and come back to the Deputy. The essence of what he has asked is that if the figure is six out of 1,000 in care, what is the figure among the general population. Nobody involved in statistics or analysis would buy this for half a minute because all types of confounder are involved. Everybody acknowledges - I certainly do - and I state to the Deputy as a doctor that young girls in care are probably at higher risk of finding themselves in this situation than those in other settings. However, one does not extrapolate in a direct line, as the Deputy has perhaps suggested. I can come back to tell him how many children are in care, but the figure cannot be used in the fashion he has indicated it might be used.
The Minister has just stated something very significant and I ask him to clarify it. With regard to a woman with suicidal intent, if there is no underlying mental health issue, a psychiatrist must certify.
This is the situation under the law, and if a woman's suicidal intent is on the basis of having a baby rather than a pregnancy, a psychiatrist cannot certify. However, that is not my interpretation of this legislation or the X case judgment. Will the Minister clarify this important point?
Deputy Creed referred to an early induction of a birth resulting in a child having a profound disability. The Minister's argument is that medical practice will deal with this issue as it currently does. Under section 9, however, the suicidal intent stems from an unwanted pregnancy or birth. In the majority of cases, the babies will be unwanted by their mothers, which is understandable. A guardian ad litem would need to be appointed for such a baby. Is there an issue of medical liability for the State and the consultant involved if the baby is disabled on foot of being born prematurely because of the mother's concerns, given the possibility that the disability would not have occurred had gestation continued for a longer period? Are we opening a Pandora's box?
Perhaps the Minister will clarify a point. Is there anywhere in this Bill or amendment that the life of a viable unborn baby is not protected? Does the Minister understand what I mean?
I do, and I will answer again with a monosyllabic "No".
Regarding representation and given the rarity of this event, would the Minister consider a situation in which the documentation - not a medical assessment, but the paperwork - was handed to a representative of the Attorney General once the certification was done to ensure that everything had been attended to procedurally? By the time a failure is reported to the Minister, the life of an unborn has been terminated. That is too late for the unborn's right to life to be vindicated.
In the Minister's reply to me, he referred to not knowing where to access the service. My understanding is that cases would have been taken by the HSE, which one would expect would know where the service was available.
I accept that people in care are statistically more likely to be vulnerable. On the other hand, since they are in the top class care of the HSE or another institution, one assumes that they have better supports than a vulnerable person living in the wider community.
A final issue of major concern is that of marginal viability, where extra weeks would significantly change a child's chances of not having a disability. Being born full term gives a baby advantages. Other than the obligation to sustain the child if born, is there an obligation to try to maximise the time in which the child is born? In this way, the child would not only get the maximum chance to live, but also the maximum chance to live at the maximum quality of life. Someone born with a catastrophic disability but who is otherwise perfectly healthy could have been born with no disability had he or she been given an extra few weeks. This would affect the person for the rest of his or her life.
Will the Minister clarify his understanding of the legislation? Unusually and possibly uniquely, it draws a distinction between ending the-----
On the amendment.
Yes. It draws a distinction between terminating a pregnancy and terminating the life of the unborn. This is an unusual scenario. What are acceptable grounds for a woman claiming that she is suicidal? Which scenario is it or is it both? Is it when she claims she is suicidal as a result of the pregnancy or when she claims she is suicidal as a result of the existence of an unborn child? What is the qualifying criterion?
I wish to follow up on Deputy Ó Cuív's points. There is a difference between a child being born prematurely with disabilities, but who is a wanted child, and the scenario that could arise under this legislation, that is, an unwanted child being delivered prematurely, resulting in significant disabilities. Several questions arise out of the latter scenario, not least in respect of the State's liability, the legal and ethical responsibilities of the medical practitioners involved and the future care arrangements for such a child. The Minister can see how this is moving towards a situation that many would find unacceptable.
The Minister of State, Deputy White, asked whether there was a better way. He stated that he and the Minister were doing their best in the context of the constitutional provision and the law. I do not doubt that for a moment, but the main problem is that there is no way of knowing what the consequences of this legislation will be. People are concerned that, as it is not possible to prove clinically that a person is suicidal as a result of a pregnancy or the existence of an unborn child, the default position could become one in which medical practitioners, in order to protect themselves, would be reluctant to refuse to certify in such circumstances. This could result in a significant increase in the rate of terminations. This is the issue about which people are principally concerned. Not for a moment am I claiming that this is what the Minister and Minister of State are setting out to achieve, but it could be the unintended consequence. As such, it is fair and reasonable for people to ask them for an annual review mechanism that would be open and clear as regards the impact of this legislation and to give consideration-----
We are on section 9. The Deputy is straying.
These issues are connected. The Minister and Minister of State should consider having a sunset clause.
We discussed the matter.
I chair the meeting.
I can still refer to it under this section.
Yes, but we are on an amendment.
That clause would provide the type of safeguard that people are seeking.
The Minister of State wishes to discuss the guardian ad litem issue.
I wish to refer to a number of the points raised, including that of the potential liability on the State.
I am not saying Deputy Denis Naughten is suggesting this, but I wish to clear up one thing. In so far as anybody thinks there is a liability attaching to Members of the Oireachtas for passing particular legislation, that could never arise.
No, I am talking about the State.
In an individual case.
Yes, and the medical professionals who carry out the procedure.
The principles that apply which we went through are the same as those that apply generally in medical negligence cases.
As regards the care required to be taken in the clinical environment, as long as that is taken and the generally accepted standards of the profession are applied by a doctor in a given instance, as long as he or she applies in good faith the test set down in the legislation, as long as he or she does what is expected of him or her by law and upholds the professional practice guidelines of his or her own profession, as set out in the Dunne principles a number of years ago in the Holles Street case which is well known to the medical profession, there are no absolutes.
Deputy Róisín Shortall has asked how can we be certain. To be absolutely honest, the only answer is that we cannot be absolutely certain. No sunset clause or review will give certainty.
As regards the notion of doing our best, I was not suggesting thais. It was being characterised as doing one's best, while leaving open the question as to whether that was good enough. The fact is that is all any of us can do, on the basis of the advice we have available and in the context of the Constitution, the X case and the expert group that went through the judgment. This legislation reflects to a very considerable degree what the expert group stated. As legislators, we set down a test in good faith, to coin a phrase, and calibrated that test. We maintain at the forefront of our minds at all times the equal right to life. I ask Deputy Róisín Shortall if there is another way. Frankly, I do not understand how a sunset clause could allay people's concerns.
Because it could be revisited.
In what way? If someone has a better proposal as to how this can be done, he or she can tell us what it is now and we can consider it. As regards saying we would review it, under the Constitution one cannot have a sunset clause in legislation. One either passes legislation by voting for it or one does not. The other thing about it is that what the Oireachtas enacts, it can repeal at some point in the future. Therefore, I do not agree with the Deputy.
As regards the test, there is a constitutional imperative for everybody involved to have regard to the equal right to life of the mother and the unborn. Deputy Byrne asked the question succinctly and received a succinct answer. That is at the heart of the legislation. It is a constitutional imperative that the doctors involved must have regard to the equal right to life of the mother and the unborn. That is why we say it is not a right to kill the unborn or destroy the foetus. It is a right on the mother's part, in certain circumstances set out in the legislatin, to have a termination of her pregnancy. The two are not the same.
To come back to the point on whether there is another way of doing this, we cannot adjust the test downwards. If we say there is a real and substantial risk to the mother's life, that is clear. If it can only be averted through a termination, that is clear. We then have a legitimate concern about what the implications might be for a viable foetus. That is a legitimate concern to raise, but the answer to it cannot be to adjust in some way the test that the woman has already, as it were, passed - if I can use that term. In other words, it has already been certified that there is genuinely a real and substantial risk to her life, or is it being suggested that, in circumstances where there is a legitimate concern about the unborn, we should revisit the test of whether there is a real and substantial risk to her life? There either is or there is not a real and substantial risk to her life. That cannot be varied as a result of something happening on the other side of the equation, if I can put it that way.
Gabh mo leithscéal. Ba maith liom cúpla focal a rá.
I ask the Minister of State to answer Deputy Michelle Mulherin's suggestion of a post-certification process in order that all papers are correct.
I am afraid I missed that suggestion.
Before bringing in the Minister of State, I call Deputy Seán Conlan to contribute very quickly because he has already contributed a number of times.
It is based on something Deputy Denis Naughten asked. He said that if there was no underlying mental health issue, psychiatrists were bound to certify. I am posing the question based on the situation under the Mental Health Act 2001 where it is not permitted to impose a treatment. How does that tie in with what I asked concerning a situation where a pregnant woman refuses treatment? One may not be able to impose a treatment, but surely one has to suggest alternative treatments to comply with Article 40.3.3o, or is that not the case? I was concerned that in his answer to Deputy Denis Naughten, the Minister had stated a doctor was bound to certify in an instance where there was no underlying mental health issue.
Let me give the full answer and I will work my way back to Deputy Seán Conlon's question because he has raised a very important point.
What I surmised from Deputy Denis Naughten's question was that in the absence of any underlying psychiatric illness - this would take some time to assess and ascertain - and the risk of suicide was serious - it was real and substantial - and the only way to avert that risk was by a termination of pregnancy, a termination of pregnancy would take place.
Deputy Seán Conlan talked about the right to impose or instigate treatments, but that does not arise. A failure to certify will arise where the certifier cannot satisfy himself or herself that other modalities would not help to avert the risk and because the woman refuses to co-operate, although there is no underlying psychiatric illness and, therefore, no issue as to her capacity to give informed consent. If we have a perfectly sane person, with perfectly good compos mentis ability to give informed consent, who refuses to give consent to treatment or co-operate with treatments that could address the issue, the Bill is quite clear - the certifier cannot certify because he or she has not been able to say with absolute authority that it is the only way to avert the risk to the woman's life.
I will come back to Deputy Michelle Mulherin's point.
Deputy Éamon Ó Cuív talked about the HSE being the authority, and he should know. However, the problem is that the HSE is a composite of a load of different professionals and individuals. The reality is that there is a lack of clarity in the law and they are as afflicted by this lack of clarity as anybody else.
Deputy Róisín Shortall raised the issue of termination of pregnancy versus the right to life of the unborn. I am glad that she has raised that issue because it gives me an opportunity to clarify what I am saying. Under the Bill, a woman has a right to a termination of pregnancy if that is the only treatment that can avert the real and substantial risk to her life. It does not confer a right on her or anybody else to destroy the life of the unborn as an entity in itself. If that happens as a consequence of the gestational period involved, it is obviously going to be the outcome. However, if the pregnancy is 30 weeks in gestation, there is absolutely no right for the woman to seek the destruction of the child - none.
Deputy Róisín Shortall also talked about the legal and ethical considerations. They will continue to apply and will change and modified under the best practice guidelines from the various institutes and colleges. They will also be adjudicated on and agreed to by the Medical Council. The Deputy has said one cannot prove whether someone is suicidal and she is absolutely right. In fairness, it is very difficult to do so with absolute authority. It is a clinical decision, but what one can do as a psychiatrist and what he or she is being asked to do in the Bill is to assess the risk to the woman's life. Is it real and substantial? That being the case, is a termination the only thing that will avert the risk? I reiterate that no one has a right to destroy the baby but only to terminate the pregnancy if it is to save the woman's life and the only treatment available to save her life.
I agree absolutely. That is the position.
I asked a fundamental question. The Minister has differentiated between a pregnancy and a baby.
I ask him to clarify because that is a significant shift from my interpretation of the X case judgment and from my reading of the legislation and that needs clarity. The Minister has said that, if it is the case, a woman who has suicidal intent because she does not want to have a baby will not be certified under this provision. It is only if the suicidal intent relates to the pregnancy.
Sorry, that is why I clarified what I said a moment ago. In the case of a pregnancy that is at a gestational age where a viable baby is possible, she has no right to terminate the baby's life. I want to clarify that in case I caused confusion with my answer to Deputy Ó Cuív. The diagnostic test is whether or not she is suicidal and the only treatment is termination to avert that risk. To be absolutely clear, the test is that this woman is of a high risk of suicide, that her suicidal intent is such that it represents a substantial and real risk to her life and the only way of averting that risk is to terminate the pregnancy. If that pregnancy is below 22 or 23 weeks that is going to result in the destruction of unborn life but that is an unintentional effect. If it is at 28 or 30 weeks then a viable baby may be born. She has no right to interfere with the life of that baby, nor has anybody else. I hope that clarifies things.
With regard to the whole issue and the philosophy behind it and when we get into the practical issues of the risk to the unborn, let us take the period between 24 and 37 weeks which is 13 weeks or a third of the time that a pregnancy lasts, give or take. My understanding is that during that period unnecessarily delivering the child early creates a high risk of disability. I have been told, for example, that one third of babies born between 24 and 26 weeks will suffer a brain haemorrhage. Of those babies that survive delivery at 25 weeks, 50% will be left with cerebral palsy and severe disablement, including mental retardation, blindness and hearing problems. I understand further-----
We are discussing the amendment.
Yes, on the amendment. Effectively, the Minister's amendment covers all of this issue. The problems of prematurity exist until approximately 37 weeks so here is the issue. We know that the diagnosis of suicidality is hit and miss. In fact, there is a very low rate of successful diagnosis of whether a person would commit suicide or not.
We cannot know that.
That is what the psychiatrists have said. The issue is, with the Bill, a large number of adults could likely present to a future committee. They will say that they were perfectly healthy babies but because of the construction of the Bill they are seriously disabled as they were prematurely born due to an assessment of risk. We know from many psychiatrists that this is something that they cannot access with any accuracy. The issue is not due to a lack of term limits. When one thinks of these people as adults one will suddenly realise the enormity of the decision that we are about to make here.
I wish to ask a brief question.
I thank the Minister for coming back to me. I ask the Minister to correct me if I am wrong. He said that if a foetus is viable outside of the womb then in the case of section 9 it cannot be certified for a termination. Does that not set a term limit on it?
No. I did not say that at all. Can I deal with the last question?
I wish to call Deputy O'Donnell.
I wish to say a few things. I apologise for rushing out. I beg the committee's indulgence and ask for a quick response to my query on clinical guidelines. My question is on section 9.
We are dealing with amendment No. 32.
Sorry, I thought we were debating the section.
No. I shall allow the Deputy in later.
I know that the Minister of State, Deputy White, posed the question, if we can come up with something else, please do. Many of us have put a lot of thought into how the legislation might be amended and made more explicit in order to avoid the debate that we are having. We know what takes place in a court of law. One is given a brief, everybody argues each side and then one must see what the judge comes up with. Members have talked about legitimate concerns and proposals have been made here.
I have a question for the Minister who indicated that some of what has been said - although he did not specify what - might be taken on board for Report Stage. Can he give more details? What areas will he examine? I like to think that some of the concerns expressed here are not being dismissed but are covered by assurances, where it would seem that we are in agreement that this should be the case, but he cannot make it explicit and we must read it into the legislation based on things like the X case or the Constitution. I feel it is better, if we are truly on the line of being restrictive, that we are explicit. That is my contention. Suggestions have been made and I ask the Minister to take them on board.
I shall deal with Deputy Ó Cuív's contribution first. He has misunderstood the Bill somewhat. The Bill is to clarify existing law. I wish to clearly say that all that he elucidated regarding the complications of prematurity can occur as the law stands. All that we are doing with the legislation is bringing clarity to it for the doctors who have to provide it, the nurses and for the women who need the service. Very importantly, it will give them knowledge on how to access the service.
With regard to Deputy Naughten's comments, I am sorry but he may have misunderstood me in terms of what I have said. I am saying, very clearly, no one has a right to terminate the baby outside of the womb. A viable baby will be supported in all cases. I am not saying that a woman who is suicidal, assessed as having a serious, real and substantial risk to her health, and the only way to avert it is to terminate the pregnancy, is not entitled to that. She is entitled to it.
I cannot give Deputy Mulherin more detail about the amendments at the moment because they are still under consideration. Members will have a full opportunity before Final Stage and will have time to consider them in full.
Is Minister of State okay?
I call Deputy O'Donnell.
I ask the Minister to update us on the clinical director issue.
We have already dealt with the matter.
Sorry, I misunderstood as I had to leave. I beg the Minister's indulgence and ask him to repeat his reply because I did not hear him. Can I have a general outline on a clinical director?
This is the problem caused by the Doppler effect of sound. Is that not correct, Deputy?
On a serious note, the guidelines are under consideration and are being formulated as we speak. The process is in train and they will be made available as soon as possible. I cannot give the Deputy any more of an update.
Are consultations ongoing?
I thank the Minister.
Amendment agreed to.
I move amendment No. 39:
In page 10, line 15, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.
I move amendment No. 42:
In page 10, line 25, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.
I move amendment No. 44:
In page 10, line 26, after “consult” to insert “, with appropriate urgency,”.
I have shown latitude in the contributions on amendments, in spite of what people might think, and I would ask committee members to please be concise in their remarks on this section.
I tabled an amendment opposing the section. I am opposed to the section. I articulated my concerns earlier on this and I would like to make a few brief points on it. Suicide is a real risk in pregnancy and there is no doubt about that. We all have to acknowledge it. However, it is important that we note the evidence given by Professor Kevin Malone to the committee. A balance has to be struck on the issue. We are told that we are talking about a very small potential cohort of people, and the Minister referred to "a handful of cases." The reality is that suicidal ideation within pregnancy is quite common. The research shows it is between one in three and one in eight pregnancies, so it is quite common. I have no doubt that a sizeable proportion of the women who are currently going to the UK do so on the basis of suicidal ideation. That has to be acknowledged as well.
An impression is being given that there is a parity between mental illness and physical illness. That is not the case and it is a false impression that has been given in some quarters on the issue. The reality is that if a woman has an underlying mental health issue that provides an alternative course of treatment, then that treatment must be proceeded with and the consultant cannot certify in those circumstances. If, however, the woman does not have an underlying mental health issue and has suicidal intent, then the consultant psychiatrists' hands are tied and they must certify in those cases. In his last contribution, the Minister spoke about treatments for women who have no mental issue and who have suicidal intent. The evidence we have received from the hearings is that under the Mental Health Act 2001, while the psychiatrist may suggest counselling, it is not actually a course of treatment and one cannot recommend a course of treatment for somebody who does not have an underlying mental health issue. On that basis the psychiatrists would have to certify.
There are major ambiguities on section 9 of this legislation. It is impossible either to prove or disprove suicidal ideation. The only decision that can be made by a consultant psychiatrist is whether or not there is an underlying issue and whether that underlying issue can be treated appropriately. If it cannot be treated appropriately, their hands are tied on this issue. It opens up a very complex situation in some of the issues that have already been raised, and on that basis I am opposed to this section.
I already spoke on Second Stage in some detail on my objection to this section. The diagnosis, especially the circumstances outlined by Deputy Naughten, poses huge difficulties.
There seems to be major evidence from psychiatrists that they do not believe that abortion is a treatment for suicide and there seems to be some evidence that any possible saving of life would be more than offset by the higher rate of suicide for people post-abortion. In other words, we would not be saving people's lives. As this legislation is drafted, we could potentially leave a large number of people with severe disabilities that were otherwise perfectly healthy. We know in recent times of the huge trauma of preventable situations that come before us now that should never have happened. It puts psychiatrists in an impossible situation to make a judgment where they know that the rate of clinical accuracy is very low. As the Minister himself has said time and again, there are no clinical markers here. There are no biochemical markers here. Except for trying to get into the mind of another person, there is nothing one can do at a physical level to assess this. Therefore, in my view it puts psychiatrists in an impossible situation.
We know that mental health grounds in other jurisdictions have been the wedge to lead to a situation where I believe the Irish have said they do not want to go, because they want to protect the equal right to life of the child. For that reason, I will be opposing this section.
There is nobody in this room who has not been touched by suicide involving somebody close to them. It is a huge problem in our society. If we are all honest, we do not do enough to deal with the difficulty of suicide in our society. Whatever comes out of this Bill and whatever we decide here, if we are serious about this challenge of suicide in our society, I hope we will come back and devote the same time and resources to see how we can reduce the horrendous rate of suicide in our society, which is affecting every family in the country. Suicide in a family will change that family forever. Whatever differences of opinion we might have on this Bill and where the balance of good lies, I would hope that when we are finished here, we will not think that the suicide issue in society was dealt with, because that is not the case. I hope that we come back and really commit ourselves to seeing what we can do to reduce the horrendous rate of suicide that we have in our society at the moment.
It is important to record again that there is no view among our number or among those who came before us that abortion is a treatment for suicidal tendencies. Some with a particular view in this debate suggest that others with a different view may hold that view and that is not the case. There is no currency for the notion that abortion is a treatment for suicidal tendencies.
A woman may not have had a history of mental health issues but she, and indeed any man, presenting who is suicidal or has suicidal tendencies has mental health issues at that time. One cannot separate the reality of a situation for a person, male or female, who is suicidal or has suicidal ideation from the need for mental health treatment. That is absolutely the case. That requires best practice and address across the board. I have every confidence that the front-line service providers are doing, and will do, everything they can to give every support possible. It would be remiss of me not to add how well they are doing despite being under-resourced and under-staffed across all these areas of mental health service provision. That is another day's work. We have raised it here on many occasions and will no doubt continue to do so.
My understanding of section 9 has always been that we are obliged to address this issue as a result of the decision in the X case. It has been confirmed to us by the most eminent, informed, experienced voices in psychiatry, including peri-natal psychiatrists in this land that while it might not have been their direct experience they know that over a period of years a small number of such cases have presented. In those situations and knowing the fact that such situations can and do arise we cannot as legislators blinker ourselves to that fact. We are obliged, and it is our duty and responsibility, to face up to those situations that can and do present. We all wish they would never arise and that the incidence of it would be zero at all times but it will not be because all too sadly there will be situations that will present. This was affirmed in the course of the hearings that presumably all of us attended over the past few months.
As a member of the Opposition and health spokesperson I support the inclusion of section 9 in this Bill because, while I wish it was not necessary, I believe that all the evidence shows that it is required to protect that small number of women who will present and need that support, and for whom the clinicians and consultants who will be entrusted to provide for their care will need the clarity and certainty that this Bill can present.
I confirm my support for this section. I reiterate that we want clarity for the women concerned and for the medical practitioners. I believe that could be enhanced by the inclusion in this section of the judgment in the X case of the phrase "which may be neither immediate nor inevitable" and the recommendation in section 6.4.1 of the expert group's report for two doctors. This section and the Bill in general would be significantly further clarified by the inclusion of those two amendments which unfortunately, due to the manner in which we are dealing with the Bill, could not be moved. Overall, I confirm my support for the section.
I am opposed to this section of the Bill.
Under the section I want to raise concerns about the absence of gestational limits. Many people are disturbed by this and it is not generally known among the public. I referred earlier to ethical concerns raised at the hearings of this committee, principally by Dr. Sam Coulter Smyth on behalf of his colleagues. He is the master of one of the busiest maternity hospitals in Europe. He said:
First, if a patient at twenty-five weeks gestation is deemed sufficiently suicidal to require a termination of pregnancy by one or more psychiatric colleagues, the obstetrician tasked with dealing with this situation is faced with an enormous ethical dilemma. Delivery of this baby at twenty-five weeks gestation could lead to the death of the child from extreme prematurity, could lead to a child with cerebral palsy, or with significant developmental issues for the future. This outcome would be entirely iatrogenic and the responsibility of those clinicians who agreed to be involved in the process. This is a source of serious concern for myself and my colleagues.
Given the source of those comments we cannot continue to ignore them and that is what is happening. It is not sufficient to get the response that "you cannot limit a constitutional right" because that is the line coming out. It is wholly unacceptable that there would not be a gestational time limit in section 9 cases. If it is not possible to do anything at this point there should, as a minimum, be a clear commitment to arranging a constitutional referendum on this specific issue and to be held with the other referenda in October and prior to the commencement of this legislation. There is a way of doing it within a matter of a few months if there is a constitutional impediment. I think I speak for the majority in saying that I find the absence of a gestational time limit abhorrent.
On the other side of gestational limits we are talking about a woman's life. What do we do then? What are her rights? Where is her life to come to an end versus the gestational limits? We are talking about saving women's lives.
It is a very difficult task but we are trying to balance the two lives. The other possibility is that we let the woman die. If the woman dies, the baby dies too. Dr. Rhona Mahony, the master of the National Maternity Hospital, who also works in a very busy maternity ward, supported section 9 and made that statement during the course of our hearings.
I find some of the sentiment in regard to section 9 very disturbing. Members of the Oireachtas are constantly looking for evidence on the issue of suicidality. I and others have said this is a study which should never be done. Under such a study we would take 100 pregnant women who were suicidal, give 50 of them access to the life-saving treatment they need and refuse it to the other 50, and see what happened. That is abhorrent. The subtext of all that is going on here is a mistrust of women and their doctors. I for one am proud to support section 9 because I trust women and doctors to make the best decision for them.
People spoke about life-changing decisions in regard to certification. If we do not get certification, we will have life-ending situations facing some women and their families. I will support section 9 of the Bill.
Some of those who have opposed this element of the Bill have used something of a red herring argument, namely, that termination can never be a cure for suicidal ideation. Nobody has ever claimed that. It is off the pitch in terms of being a relevant argument to what we are talking about. The Supreme Court made the correct decision; in the case of X, a 14-year-old girl who was raped and became suicidal, to force her to continue with her pregnancy could have represented a threat to her life. This was a real situation. The Supreme Court made a decision and we should not second-guess that.
As I have indicated, this section should go further. I mentioned that the conditions are too onerous in terms of the number of doctors and too prescriptive in that an obstetrician is required. It is too onerous to talk about a perinatal psychiatrist is because that is an extra prescription. Section 9 refers to "a psychiatrist who provides, or who has provided, mental health services to women in respect of pregnancy, childbirth or post-partum care." That is too prescriptive and onerous, and I believe that the presence of an obstetrician is unnecessary. We should apply the same standards that we apply to any other mental health situation, namely, by requiring the presence of one psychiatrist and a GP. There is no medical basis for distinguishing between a medical emergency and a psychiatric emergency. That advice comes from psychiatrists whom I have consulted. Psychiatrists have said there is no medical basis for making the distinction.
When we have debated issues with regard to mental health and suicide in the Dáil in other contexts Deputies across the political spectrum have made the point that we have to take mental health seriously, that there is a stigma, that there is different treatment for different people, and that an unfair distinction is made between mental health issues and other supposedly real medical issues. People in other contexts across the spectrum have said we should not make that distinction. Yet in this Bill we make that distinction. I do not think the Minister should be dismissive when I make that point because it is one being put forward not just by me but by many other people. Such a distinction does not exist in medicine and should not exist in this Bill.
I thank the Chairman for the opportunity to speak. Everybody here could agree that we hope the legislation will not be needed, but life is not that simple.
I want to put on the record that those who propose that this section be deleted are suggesting that the constitutional rights of women, as laid down by the Supreme Court and the will of the people, be left unvindicated. They are also suggesting that a suicidal woman who would kill herself as a result of her pregnancy would have two options: she would be forced by the State to go through with that pregnancy regardless of her suicidal state, or she would be forced by the State to go to the UK without the support of her clinician, medical team and family. If we delete this section as proposed by members of the committee, they are the two options we are presenting to women who will kill themselves because of a crisis pregnancy. Those who propose deleting the section should think long and hard about that, and take into account the fact that it is the constitutional right of a woman whose life is at risk by suicide to obtain a termination on that basis. That is what the X case was all about.
I hardly ever agree with Deputy Ó Cuív but I agree that there are too many suicides in the country. Sadly, many people lose a family member without warning or a note left behind. The family members are left distraught and constantly ask why it happened. The Bill allows medical professionals to intervene and hold the hands of women in that distraught state who need to be able to terminate pregnancies because they feel there is no other option. Such women will turn up in hospitals for whatever reason. The Bill will give some clarity to professionals that what they are doing is right for certain people at certain times. For all those reasons I will support this section of the Bill and the Bill in its entirety. It is time we woke up and listened. A lot of young people have to go abroad. We owe it to a small section of them to start here.
I thank everybody for their contributions. I know this is very difficult for a lot of people. As I said, for many other people it does not go far enough.
I wish to address some of the issues raised, even though some Deputies have left the meeting. Deputy Naughten is quite right that suicidal ideation is frequent in pregnancy but the risk of suicide is very low - that is, one sixth the rate of the rest of the population, as evidenced by the incidence of suicide.
The conclusion drawn that the doctor's hands are tied is utterly untrue.
It is always down to the clinical judgment of the doctor, notwithstanding protocols or guidelines. One must use one's clinical acumen in order to assess the risk, decide whether that risk is real and substantial and decide whether the only way of reversing the risk is to terminate the pregnancy. These are my comments in response to Deputy Ó Cuív's support for Deputy Naughten's assertions. I fully accept that abortion is not a treatment for suicide, nor is it meant to be. In terms of being a termination of a pregnancy, it is a procedure to avert a real and substantial risk to the life of a woman where no other procedure is available. We know that we cannot say it will never happen. Better voices than mine, such as the master of Holles Street hospital, have said it.
I refer to the contention about a lack of objectivity. I am afraid the same logic could be applied to areas such as schizophrenia and bipolar affective disorder, because there are no blood tests, X-rays or MRI tests available to detect these conditions, but they are very real and affect many people in this country every day. The very sad fact that there is such a high incidence of suicide shows how difficult it is to predict and prevent it. I agree completely with Deputy Ó Cuív that we need to continue to address the very distressing fact that the rate of suicide in this country is so high.
In reply to Deputy Ó Caoláin, I wish to express my appreciation for his support for this section of the Bill. I must also say that he is correct in his statement that a very small number of people will be affected by this section of the Bill. Similarly, I acknowledge Deputy Healy's support for the Bill. I did not write down what Deputy Shortall said. I have the phrase "not possible". My apologies; it was a question about term limits. In reply, that is just not possible, nor will there be a referendum on that point. If time limits were to be inserted, then, as Deputy Conway said, we would be saying that a woman has a right to have her life saved but only up to 24 weeks or 20 weeks, or whatever we would adjudicate. Second, it would be the clearest sign and signal to me of a route to abortion on demand. I refer to what Deputy Conway said and I echo her sentiment. It is essential that we trust our doctors. Trust is essential in the doctor-patient relationship. The high regard in which doctors are held today is a consequence not of this generation or the generation before, but of countless generations of doctors and nurses who have given significant service unstintingly. We must also trust the mothers of this country, who are the mothers of the next generation.
In reply to Deputy Boyd Barrett, this is not limited to perinatal psychiatrists. I wish to reassure the Deputy that the definition of psychiatrists means there will be at least 150 psychiatrists in this country who will be qualified to take part in these assessments. To compare a physical emergency with a psychiatric emergency is to confuse things because they are treated in very different ways. A psychiatric emergency can be dealt with by committing a patient for his or her protection and the protection of others until the emergency can be dealt with. As we all know, a physical emergency can rapidly deteriorate beyond the ability to intervene in a meaningful fashion.
It is important to realise that this section does not confer any new rights. The right exists under the Constitution, but it is not regulated or monitored. The section sets out to regulate it and to make things safe for women and as safe as possible for the unborn.
The Minister mentioned that 150 psychiatrists would be eligible to make an assessment under the Bill. This is important. We keep referring to the X case. Twenty years ago, on the word of one clinical psychologist, which was never contested in court-----
Deputy, that is not on the section.
I have a question. One hundred and twenty consultant psychiatrists signed a letter that said effectively that abortion as a treatment for-----
That is not relevant to the section. I will not allow that question. I must put the question on the section.
Not all of them were practising psychiatrists.
Before the question on the section and the amendment to remove the section, effectively, are put, I must ask a question. A significant number of professional psychiatrists have clearly stated-----
-----written on the record-----
We can all quote psychiatry.
-----that there is no medical evidence for what is proposed. I thank the Chairman for allowing me to make my point.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Healy, Seamus.
- Ó Caoláin, Caoimhghín.
- Reilly, James.
- Kelleher, Billy.
- Naughten, Denis.
I move amendment No. 46:
In page 10, after line 36, to insert the following:
“Fatal foetal abnormality
10. (1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, a pregnancy is ended, where—
(a) the medical procedure is carried out by an obstetrician at an appropriate institution, and
(b) subject to section 19, two medical practitioners, having examined the pregnant woman, have jointly certified that the foetus in question has a fatal foetal abnormality.
(2) Of the 2 medical practitioners referred to in subsection (1)(b)—
(a) one shall be an obstetrician who practices as such at an appropriate institution, and
(b) the other shall be a perinatologist who practices as such at an appropriate institution.
(3) If practicable, at least one of the medical practitioners referred to in subsection (1)(b) shall, only with the pregnant woman’s agreement, consult with the woman’s general practitioner (if any) for the purposes of obtaining information in respect of the woman from that general practitioner that may assist the medical practitioners in their decision as to whether or not to make a section 10 certification in respect of the woman.
(4) Subject to section 19, the certifying obstetrician shall—
(a) forward, or cause to be forwarded, the section 10 certification to an appropriate institution, and
(b) make such arrangements as may be necessary for the carrying out of the medical procedure to which the section 10 certification relates at the appropriate institution.".
- Healy, Seamus.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Kelleher, Billy.
- Naughten, Denis.
- Reilly, James.
Amendments Nos. 47 and 78 are related and may be discussed together by agreement.
I move amendment No. 47:
In page 10, after line 36, to insert the following:
“Duty of care
10. (1) A medical practitioner or medical institution, if contacted by a woman seeking treatment under the provisions of this Act, shall have a duty of care to that woman. Such duty of care shall include, but not be limited to—
(a) an obligation to inform the woman as to the pathways of care to which she is entitled,
(b) an obligation, if appropriate, to provide the woman with such treatment to which she is entitled,
(c) an obligation, if such medical practitioner or medical institution cannot provide the medical treatment, to refer the woman to an appropriate medical practitioner or medical institution,
(d) if referring to an appropriate medical practitioner or medical institution, to make such reasonable enquiries as necessary to confirm that the woman has been dealt with appropriately by the medical practitioner or medical institution to which she has been referred.
(2) For the avoidance of doubt, nothing in this section shall limit the right of the medical practitioner to conscientious objection under section 17 of this Act.”.
This amendment and amendment No. 78 are to clarify and set out the duty of care of medical practitioners, medical institutions, approved hospitals and hospitals that may not be approved but which may be attended by women in the circumstances in question. A primary objective is to ensure that medical practitioners and medical institutions, be they approved or otherwise, inform women as to the pathways of care and information to which they are entitled.
I support Deputy Seamus Healy’s proposition. It is most regrettable that my amendment No. 76, which refers to aftercare and optional therapeutic counselling services, has been ruled out of order. The two proposals are not linked but both pertain to the care regime we want to see in place. Since my amendment has been ruled out of order on the basis that it may involve a potential charge on the Exchequer, I appeal to the Minister to table an amendment on the same subject on Report Stage. It is essential that the Bill reflect on the duty of aftercare, which must include optional therapeutic counselling services and aftercare provision for women who have had a termination of pregnancy under this legislation.
I support this amendment. It is a very reasonable one that underlines the need for the State to make a commitment to the care and protection of women. The Minister has pointed out that maternity services in the State have a good record but there have been significant concerns expressed by individuals in the aftermath of cases such as that of Ms Savita Halappanavar. Owing to traditional views on what medical services should be available to women, and because of persistence and the exclusion of certain services for women, it is important that we underline the duty of care and the requirement for women to be given all the support, information and treatment necessary to ensure their well-being.
I endorse Deputy Caoimhghín Ó Caoláin's amendment No. 76, because I believe in the importance of aftercare and counselling services. While we cannot table an amendment in this regard that will not be not ruled out of order-----
We have not reached that amendment yet.
It was mentioned in the context of amendment No. 47. The Minister should consider tabling an amendment on Report Stage with the same effect as amendment No. 76.
People may not be aware that there is post-abortion counselling available to women in Ireland. In order to be fair to doctors, this must be stated. The impediment to access to services for some affected women is often the very unfortunate fact that there is a considerable stigma associated with abortion in Ireland such that women do not always feel they can share information with doctors. I, for one, hope the discussion we have had in the Oireachtas over recent months will be a starting point in reducing the stigma and allowing women to share the information with their doctors so they will be able to receive the post-abortion counselling they need. While I understand the sentiment of the amendment, as tabled, and while it is suggested we must trust doctors and not be overly prescriptive, we must hope that women who have a termination in this country or who, due to the very limited nature of this legislation, must unfortunately go to the United Kingdom will feel they will be able to share that information with their doctors and receive the kind of aftercare they so badly need and deserve.
Are we discussing amendments Nos. 47 and 78 together?
A medical practitioner's ethical duty of care is already set out in the ethics guidelines published by the Medical Council, to which all medical practitioners registered on a special division are expected to adhere. These guidelines make specific provisions to ensure patients receive continuity of care, even where a medical practitioner decides to withdraw his or her services because of a conscientious objection, or other reasons, including the need to transfer the patient's medical records without delay. In addition, both the medical guidelines and the Bill make it clear that conscientious objection cannot be invoked when the risk to a pregnant woman's life is immediate, that is, when there is an emergency.
Section 10 imposes a specific duty on a treating physician who refuses certification to inform the woman that she has a right to apply for a formal review of this decision. Therefore, I cannot support Deputy Healy's amendments.
I reserve the right to resubmit the amendment on Report Stage.
I move amendment No 48:
In page 11, between lines 13 and 14, to insert the following:
"(3) The three medical practitioners who make a certification shall forthwith make an application to the Executive for a review of the relevant decision and the said section 9 shall have no effect or standing until and unless it is upheld by a review committee under section 13(3).".
Amendments Nos. 49 and 56 are related and may be discussed together by agreement.
I move amendment No. 49:
In page 11, between lines 20 and 21, to insert the following:
"(3) A medical practitioner shall be disqualified from membership of the review panel where he or she has previously refused to perform an abortion on ground of conscientious objection and or has previously expressed publicly an opinion in general opposition to abortion in all its forms and or abortion as a treatment option under the terms of this Act.".
I ask my colleague, Deputy Richard Boyd Barrett, to comment on this proposal.
The amendment provides that a person who has indicated publicly his or her opposition to abortion or terminations in the circumstances outlined in the Bill should be excluded from any panel charged with making decisions in that regard. There is at least a danger that such a person might bring his or her personal views or biases to bear in making a judgment as to whether a woman has an entitlement to an abortion as set out in the legislation, namely, where there is a threat to her life. The concern is that the process of adjudication in such circumstances might be clouded by a practitioner's personal opinions. It is a very straightforward proposal.
Where medical practitioners have particular beliefs which render them unable to participate in a specific medical procedure, it does not necessarily follow that they should be disqualified from participating in a process which calls for their clinical judgment to be applied. In situations where they are being called upon to assess whether there is a real and substantial risk to a woman's life, I believe we can trust doctors to apply their professional skill and clinical judgment to ensure the woman receives the best possible care and treatment. If we are to follow the logic that anybody who has proclaimed they would not perform an abortion or have a difficulty with it from a conscientious point of view should be excluded from the assessment of these cases, then it could equally be argued that anybody who ever expressed a willingness to perform an abortion, has performed one or has certified a person to have one performed should also be excluded. We would end up with nobody being able to give an opinion in this matter. Therefore, I do not propose to accept Deputy Healy's amendments, as enunciated by Deputy Boyd Barrett.
I anticipated that the Minister might present that argument. I would argue strongly, however, that there is a fundamental distinction at issue here. In one case, we are talking about somebody who has expressed the belief that there are no circumstances in which it is justified to carry out a termination to save a woman's life. Quite a number of medical practitioners have expressed that genuinely held conviction. The reality, however, is that we are legislating to the effect that there are, in fact, situations where terminations are required or justified in order to save a woman's life. That position is being enshrined in our law and it runs counter to the views expressed by certain medical professionals.
We are on amendments Nos. 49 and 56.
If these amendments were accepted, we would end up with nobody being able to give an opinion on one side or the other.
Amendments Nos. 50 and 51 are related and will be discussed together.
I move amendment No. 50:
In page 11, lines 21 and 22, to delete “, in addition to appointing medical practitioners duly identified by it for appointment to the review panel,”.
These amendments are fairly self-explanatory. They seek to have the Health Service Executive, HSE, appoint people to the review panel who have been nominated by the various colleges. Earlier, the Minister in another context made the point we have to trust the colleges and the regulating bodies with the guidelines and standards that are going to be set regarding the policing of this legislation. If we are going to trust the colleges in this area, why can we not trust them on making appointments to the review panel? I accept the HSE will pick from the nominated individuals but I do not see why it should be picking people outside the nominees of the review panel and can top it up with nominees from the various colleges. I hope the Minister will accept these amendments or a reworking of them.
As the convenor of the review panel, the HSE needs to be able to ensure that all the requirements for the participation of medical practitioners in respect of the formal review process as set out in the Bill, for example, in respect to registration, qualifications and composition, can be complied with. In addition, colleges may not make any nominations to the panel and as they are independent organisations, do not have any accountability. That does not make sense even to me. If the committee does not mind, I will take that out.
The HSE has a statutory obligation here. It is the one which is accountable. The colleges are not accountable. They have no legal responsibility in this regard. The HSE needs to be sure that the nominations put forward meet the standards required in respect of registration, qualifications and composition. Let us take the extreme situation where the college decides not to co-operate and not to put anybody forward. The HSE must be able to appoint people to ensure that the women have a panel. I would have considered the Deputy's position earlier and others would have raised it as well in previous discussions. I know exactly where he is coming from. The caveat here from my perspective is that this already works in terms of my role as Minister where I accept nominations to particular boards. I do not have a right to nominate the people myself but if I do not approve that nomination, they come back with a further nomination. This often happens with issues like trying to maintain gender balance on particular boards. While I appreciate what the Deputy is saying, it would be the normal practice that if somebody is not deemed suitable, another nominee is sought but we must protect ourselves and women and make sure there is a panel suitably available if a college for some peculiar reason decided not to nominate anyone. I hope the Deputy will accept that and I ask him to withdraw the amendment.
I see the Minister's logic but the problem is that the way this section is constructed is the other way round. If what he is saying is correct, he needs to invert this section because it states that the HSE will establish a panel of medical practitioners and then may add to that based on a request to the various colleges. It also states that if the HSE considers it appropriate, it can appoint one or more medical practitioners nominated by the colleges to the review panel. If what the Minister is saying is correct and the HSE's mechanism to nominate is a safety net, surely it should be the other way round with the colleges asked to nominate members and the HSE then topping that up where there are vacancies. The impression given is that the HSE is the driving force behind this rather than the college nominees. If what the Minister says is his intention, he needs to reconstruct that section to show that is his intention in respect of it.
With the best will in the world, I do not really agree. I come back to the point that the legal obligation is on the HSE and not on the colleges. We are offering the colleges the opportunity to appoint but we are not giving them the veto on it either. I will not be accepting the amendment. I hope the Deputy understands that but I cannot accept the amendment.
I do not want to dwell on this but the point I am making to the Minister is that he is not giving the colleges the opportunity to appoint. That is not what the section says. The HSE will appoint a panel and request the colleges to make nominations and it is then at the discretion of the HSE whether it appoints those nominees to the panel. It is not that the Minister is asking for the colleges to appoint people to the panel. The HSE may pick off that list to top up the panel, not the other way round. That is the problem I have with this. The driving force behind this is the HSE rather than the colleges. If we are saying the colleges are competent in regulating this piece of legislation once it is enacted, why are we not trusting them to appoint members to the review panel that will police the implementation of the legislation from the point of view of appeals and reviews?
To correct what the Deputy said, the colleges are not regulating this and have no role in regulating it. What they have a role in is in providing guidelines for best clinical practice. The reason that is not in the Bill is because best clinical practice has no status in law. Second, it is clear under section 11(3) that the HSE shall, in addition to appointing medical practitioners duly identified by it for appointment to the review panel, request the various colleges to nominate medical practitioners as well. It is both together. The other argument I made still stands. In the case of non-co-operation by the colleges, the HSE may go further and appoint the entire review panel to ensure there are sufficient people on the panel to ensure a woman has the appropriate number of individuals available to her in the event of a review. I cannot make it any clearer.
The problem is that section 11(4) adds that caveat to it. The colleges will nominate medical practitioners for appointment but the HSE will then decide if it will appoint them to the panel. I think the Minister is putting the cart before the horse and I ask him to look again at it in advance of Report Stage.
I have no further comment.
How stands the amendment?
I am pressing it.
I move amendment No. 51:
In page 11, to delete lines 28 and 29.
I have a very quick question for the Minister. Can we take it that if the four bodies put forward their nominations and if those people meet the professional qualifications requirement, they will be appointed to the review panel?
That is enough.
Amendments Nos. 52, 57 and 58 are related and will be discussed together.
I move amendment No. 52:
In page 11, line 31, to delete "3 days" and substitute "1 day".
The import of these amendments relates to the establishment of the review panel and the making of the relevant decision. The Bill as it stands provides for an overall period of ten days - three days for convening and seven days for the making of the decision. I take the view, which has been expressed fairly widely and came up a considerable number of times at the hearings, that this period is simply too long and that there is an urgency about this area, the establishment of the review committee and the decision. Amendments Nos. 52 and 57 would substitute one day for three days in respect of the convening of the review panel and three days instead of seven days for the relevant review decision.
This is, essentially, an administrative function and it should be possible to convene within a 24-hour period and reach a decision within a three-day period. That would be in accordance with what would be acknowledged as best practice.
I wish to speak to my own amendment, which is amendment No. 58. This seeks to reduce the seven-day requirement in the legislation as drafted to four days. I believe seven days for the panel to determine a review or appeal is simply too long a period of time.
Once the panel has been convened, Deputy Healy is seeking to reduce the period from three days to one day but I am not convinced of the practicality of his proposal. I can see a number of reasons that one day may not work in real terms. However, I am sympathetic to the principle of expediting the process in order that a review can be completed at the earliest opportunity. In respect of the panel's own assessment of the review, the appeal and its engagement with the appellant, my view on the deliberative period is that it is in its members' compass as professionals to make a determination within an earlier period of time than the seven days provided for in the Bill. It is reasonable in such a situation to reduce the period to four days. I am not aware that any clinician or consultant who would be party to the process has expressed concern about being unable to reach an informed opinion within a shorter period than seven days. In the interest of the woman and of providing clarity at the earliest opportunity in the process of appeal and review, I urge the Minister to agree to reducing the period from seven days to four days.
While I am conscious that the formal review process needs to be completed in a speedy manner in order to safeguard the right to life of the pregnant woman concerned, it is important to understand that the process requires the HSE, as convener of the process, to take a number of steps. The application for the review process needs to be assessed to ascertain the nature of the request and whether it concerns a section 7 or section 9 certification, as well as to identify the relevant medical practitioners, the logistical arrangements for convening them, their duty to examine the woman and her right to be heard or for someone to address the review committee on her behalf. Reasonable timeframes are, therefore, provided for in the Bill to strike a balance between the need to vindicate the pregnant woman's right to life and the logistical requirements of the process. During the drafting of the Bill my officials consulted with the relevant professional bodies and I am satisfied that the timeframes provided are appropriate.
In addition, it must be noted that the timeframes refer to an absolute upper limit and, depending on the clinical scenario at hand, the review process may take place much more speedily. Finally, were the pregnant woman's medical condition to deteriorate, provisions are made for her situation to be addressed through an emergency procedure under section 8.
We had a long conversation on this issue at Cabinet. I believe three days is a reasonable length of time and that seven days is too long for convening a committee. However, this request could come in on a Friday evening. The medical experts, all of whom have work and patient commitments, will have to be available. In any event, the process could take less than three days.
In regard to the assessment, particularly where it involves a review of suicidal ideation, we would have to leave sufficient time for a proper clinical assessment and review. This will not be a purely desktop study nor will the reviewers be required to interview the woman if that is not her desire. I imagine in a lot of cases the woman or someone on her behalf would make a presentation to the panel. As I consider these timeframes to be reasonable, I cannot accept the amendments.
I understand the issues arising in regard to convening the panel but in the circumstances I would have thought four days to be ample time for expert professionals to reach a decision once the panel has been convened. I appreciate that the initial period has at least been reduced to three days as opposed to what might have been previously suggested but I continue to believe seven days is particularly lengthy. Given that the Minister is certain to have his way on our amendments, the only consolation is that seven days is the maximum timeframe. One hopes that the process will not take the full seven days in practice and that professionals will be mindful of the situation of the woman concerned in concluding their assessments with appropriate care and without delay.
I acknowledge the points that the Minister has made and agree this should not be a desktop study. However, the Bill provides for an overall period of ten days and I do not think that reflects the urgency required under this section. This is a theme we have discussed in the context of previous amendments. Ten days is simply too long and it should be possible to shorten the period significantly.
I move amendment No. 57:
In page 12, line 25, to delete “7 days” and substitute “3 days”.
I move amendment No. 58:
In page 12, line 25, to delete “7 days” and substitute “4 days”.
I supported Deputy Healy on three days and I will now test the water with four days.
I move amendment No. 59:
In page 12, line 27, to delete "The review committee shall," and substitute "Members of the review committee may, if necessary".
This relates to the requirement for the review panel to examine the pregnant woman. While I would have no difficulty with this in the vast majority of cases and I would expect this to be the case, there may be cases where it would not be appropriate to do so. Will the Minister comment on that?
Section 13(2) states: "The review committee shall examine...". I understand what Deputy Healy is trying to do in proposing the words "may examine". It would not always be good practice necessarily to conduct a physical examination as it might be counterproductive. I would be interested to hear from the Minister on that.
To fulfil the requirements for certification, the medical review process must mirror the specifications of the assessment under sections 7 and 9. Since an examination is required under those sections, the review committee must also carry out this examination to be in compliance with the principles of the legislation. On that basis, I cannot accept the Deputy’s amendment.
Would the results of blood tests and scans not be sufficient in a regular medical case to review it rather than having to physically re-examine the woman? Perhaps the Minister can also satisfy my curiosity about another issue. Will a pregnant woman have to make unnecessary trips in an ambulance to a hospital to be reviewed or will the review committee be brought to the woman? It is an issue if a woman is sick or her life is threatened that in order to undergo a review she would have to go to and from hospitals in an ambulance. I am concerned about that.
I appreciate the validity of the Deputy's comments. Patient safety has to come first and in this instance the reviewer would have to come to see the woman and examine her.
On that specific issue, we have historical problems in Roscommon getting consultants to travel there from Galway.
There will be no mention of the Roscommon issue.
Let me finish. Deputy Conway has raised an important point. Members of the review panel should travel to meet the woman, not the other way round. If a woman is seeking a review, she should not have to travel to Dublin, Cork or Galway to meet at the behest of the panel. The panel members will have agreed to this and the three of them should travel to meet the woman if that has to be done rather than the other way round. That would be unfair to any woman who finds herself in that predicament.
This needs to be clarified in the legislation in order to ensure it happens, because consultants are loth to travel to smaller hospitals to conduct such assessments.
I support Deputy Healy's appeal. There are cases in which an examination may not be required and sufficient information may be ascertainable without a direct one-to-one meeting between the review panel and the women concerned. The amendment offers more flexibility and by removing the absolute requirement for the physical examination, it would facilitate earlier decision-making in some instances that would not mean either hasty or less than fully informed decisions. They will meet all the requirements the Bill sets down. This additional flexibility would be welcome in certain cases for women and particularly for the members of the review committee.
Does the Minister envisage that the requirement to visit the woman would be part of the reviewers' contract? I am more familiar than others with the Higgins report. Consultants will work for a hospital group rather than a particular hospital. I assume the review panels will be formed along the lines of the new hospital groups. It should be incumbent on the members of the panels to travel to review the woman's case.
Where does the woman's GP get involved in this?
I would like to address the issue of travel by the review committee in the round. The underlying policy we have is that a patient should be seen as near to home as possible, at the lowest level of complexity, in order to save time and be efficient. That means the services are provided as near to the patient as possible. That underpins what we are talking about. Our policy is changing in that consultants will travel to clinics to see patients rather than patients' having to travel long distances to see doctors. This follows from that policy, but I would like to check with the Attorney General to make sure I am not being overly prescriptive.
The Deputy asked about the involvement of the GP. He or she is not involved in certification per se but his or her knowledge of the patient is important, particularly for the initial assessment, and he or she can be consulted by the panel as well. That is provided for under this section in the same way it is elsewhere. That will not always be practicable because not everybody has a GP. In addition, the patient would have to give consent to consult the GP. It will be necessary for the patient to be examined, although she could have somebody represent her beforehand. To meet the requirements for certification to mirror the initial process, there is a need for a face-to-face examination, particularly with regard to assessing suicide risk.
The only reason I asked about the GP is that he or she could act as a go-between. If the woman is based in Dundalk and the consultants are based in Dublin, they could meet in the middle, such as in Our Lady of Lourdes Hospital, Drogheda. The GP would know the history of the women and he or she could work with the panel. The role of the GP will be important going forward, even though initially the GP would not be part of the set-up.
In the case of a review under section 9 there would nothing to prevent a GP from providing his premises as a suitable place for a review to take place.
How stands the amendment?
I agree to withdraw the amendment. I will resubmit it on Report Stage in the hope that the Minister will come back to us with something on it.
I move amendment No. 60:
In page 12, line 31, after "risk" to insert ", which may be neither immediate nor inevitable,".
I move amendment No. 63:
In page 13, line 7, after "forward" to insert "forthwith".
I wish to raise a point in the interest of consistency. Section 13(6) states: "In subsection (3) “jointly certify”, in relation to the review committee, means that all of the members of the committee make the section 13 certification concerned." That provides clarity on "jointly certify", but that paragraph does not appear in sections 7, 8 and 9. For the sake of consistency it should be part of those sections as well. I might be missing something here so perhaps the Minister would clarify it legally. What "jointly certify" means here would also apply to sections 7, 8 and 9, but I cannot see it there.
First, I might revisit the issue of the consultants travelling on Report Stage. My question is about subsection (4). It states that notice shall be given in writing. It is a technical matter, but does that include electronic communication?
I refer Deputy O'Donnell to sections 7(1)(b) and 9(1)(b).
I see that in sections 7(1)(b) and 9(1)(b) but section 13(6) refers to jointly certify in respect of section 13 overall.
It is just written in a different way. I understand what the Deputy means but it is not necessary to change it.
I am not seeking that. I am just raising the technical point. Section 13(3) provides that the committee shall, subject to section 19, jointly certify, and subsection (6) states what jointly certify means. If that paragraph was also included in sections 7, 8 and 9 it would give absolute clarity about what "jointly certify" means in those sections as well.
It would not be in section 8 because that is the emergency.
I am sorry, but in sections 7 and 9.
I will write to the Deputy to explain what the construct is. It is constructed in a different way because in one case there is only a couple of doctors while in the other case there is a review team, so it is more specifically laid out there. The Deputy said it is only a technical thing. I do not have a huge problem with it.
Perhaps the Minister will consider it.
Yes, we can look at it.
What about Deputy Naughten's comments?
I will repeat what I said. Subsection (4) states "give notice in writing". Would that include electronic communication? There is an issue in some legislation as to whether that phrase includes electronic communication. When there is an issue of time involved electronic communication should also be allowed. Is that provided for in the wording? Should it say "communicate with" the woman rather than "in writing"? It is a technical issue.
It would technically include e-mail.
I move amendment No. 65:
In page 13, between lines 18 and 19, to insert the following:
“(2) An advocate for the preservation of the life of the unborn nominated by the Attorney General shall be entitled to be heard at the review committee and shall be entitled to review all the documents and information put before the review committee but shall not be entitled to cross examine the pregnant woman.”.
The purpose of this amendment is to deal with the issue raised by the retired former Director of Public Prosecutions, DPP, which is representation for the unborn, particularly in the case of a review where, by definition, the person has been refused and has sought a review. Therefore, it must have been the opinion of the initial medical practitioners that there was not a real and substantial threat to the life of the mother which could only be thus resolved. The idea here is that somebody would be nominated by the Attorney General to be heard by the committee and to have access to documents on behalf of the unborn but specifically not have the right to cross examine the woman in question.
Deputy Ó Cuív referred to when a review is sanctioned because the first physicians who saw the woman refused. They equally could have said nothing. The Bill allows for them to give no opinion. If a doctor says nothing, the woman should have the right to proceed to a review. It is not just about the woman being turned down, then proceeding to an appeal and they trying to second guess the doctors. The Bill allows for some doctors not to give any opinion. If a physician decides not to give an opinion, that should not inhibit the woman from being able to invoke her right to a review.
Deputy Ó Cuív made reference to the review being consequential on the rejection by the initial clinician consultant assessors of the particular case under section 7 or section 9. It could be the case that it might be a divided and not a unanimous opinion. It does not necessarily mean they were all of one opinion. Given all the restrictions and requirements of the Bill and the constitutional position, is there provision for an advocate for the woman? In the context of a proposition for an advocate of the unborn, are we looking at a situation where there is an advocate for the woman? To the best of my knowledge there is no such provision. It is on the basis of the full information, given the section 7 or section 9 basis of the review, that a decision will be taken. It will not be taken on the basis of advocacy but on the basis of the professional opinion assessing all the facts.
I should not have said "been refused" and I accept that. I should have said "not received the required certificate". In other words, two medical practitioners under section 7, for example, have jointly certified in good faith. One could seek a review if one did not get the certificate. It is not that it is refused but that one does not get the certificate. I am anxious to correct what I said because Deputy Conway had a fair point in saying that there might have been divided opinion. The reality of the situation is that the woman did not get the required certificate which would have allowed the procedure to proceed so therefore she sought a review.
The amendment represents a radical change to the Bill which is not acceptable. It is important to bear in mind that the treating team is under an explicit statutory duty to have regard to the need to preserve unborn human life as far as practicable. The Bill requires the treating team to have regard to the right to life of both the woman and the unborn in accordance with Article 40.3.3° of the Constitution. The review committee is under the same obligation.
The composition of the medical team set forth in sections 7 and 9 was arrived at in order to ensure that it included appropriate expertise that would be in a position to assess the viability of the foetus and thus discharge this core duty. Specifically, each team must include an obstetrician, who can give expert input to the other doctors. The question as to whether a woman requires a termination of pregnancy to avert a real and substantial risk to her life is a medical question which must be resolved by medical practitioners who are obliged to respect the equal right to life of both woman and the unborn in the manner set out in the Bill.
As I said earlier, while it is clear that the duty of an obstetrician is to both of the patients - the mother and the unborn child - the psychiatrist, who might have but one patient in front of him or her, also has a constitutional obligation to the unborn. That is a critical element of the constitutional balance of the Bill. Adding a doctor with a specific mandate for the unborn would make a considerable impact on this careful constitutional balance. In these circumstances, it is unclear how it is proposed the additional doctor would interact with the team provided for in the Bill.
The Deputy's amendment proposes that the remit of the review committee be extended to include authorisations and represents a radical extension of the Bill, which is also unacceptable. For this reason, I cannot accept Deputy Kelleher’s amendments as espoused by Deputy Ó Cuív.
Even though what has been suggested here is not a lawyer but an advocate - I think Deputy Ó Cuív touched on this earlier when he mentioned a medical advocate or an advocate of some kind, rather than a lawyer, which is fair enough - it is still importing an adversarial approach into the clinical environment we are talking about.
Our legal system is adversarial. In order for people's rights to be vindicated, or if two people are in conflict, each side is entitled to be represented and the two sides cross-examine each other and do all those things that happen in court. That is how people's rights are vindicated and, ultimately, somebody makes a decision. However, we are talking here about a clinical environment. Even though the amendment does not propose a legal person, although it refers to the Attorney General, it mentions "[a]n advocate". In fact, it does not say the advocate is not a lawyer. I assume the Deputy did not intend the advocate to be a lawyer, but it does not actually state that he or she would not be a lawyer. In fact, on second thoughts, I believe it probably would be a lawyer under Deputy Kelleher's formulation, but not under Deputy Creed's. I think that would be all the more inappropriate and wrong.
What would this person do? I am very taken by Deputy Ó Caoláin's point, not necessarily for the reason he raised it but for another reason. In this whole process we are trying to maintain the balance all the time as best we can, and the calibration of rights is maintained as best we can in each stage through protection of the life of the unborn and the equal right to life of the mother. We are trying to maintain this all the time, meticulously, every time we go at it, in every section, every bit and every event that occurs. That is what we are trying to do. If one adds into the equation an advocate for the unborn, it necessarily has implications for how one is going to apply that scenario to the mother. I believe it does upset the balance of the Bill, which is a very delicate balance in many ways.
It is not clear what the advocate would do. The fact that the Attorney General is appointing him or her seems to suggest that it would be a lawyer, and, quite frankly, I do not know what he or she would do. This might sound a bit odd, but if one appoints a lawyer in a situation, how can he or she not cross-examine? That is how our system works. If somebody does not accept what the other side is saying, under our system they are entitled to ask them "how do you say this or why do you say that", and say "surely this" or "surely that". The whole system works in this way.
I will return to what the Minister has said, which I think is absolutely right. We are internalising, if the Deputy would like to use that word. The doctors and the review panel here are internalising within themselves the necessity to look after the rights of both parties. It is not that we are saying that over in this corner will be somebody advocating for this and in another corner will be somebody advocating for someone else. The doctors must comprehend the rights of both and must be able to balance them. That is why I use the word "internalising". They have to deal with it themselves. They have to have regard to the right to life of the unborn, always with due regard to the equal right to life of the mother. That is the proposal we have in the legislation. Putting an advocate in on one side necessarily raises the question of what one does on the other side of the equation. That would be wrong. There was one other point, which I cannot remember.
It is stated in section 13(3), "if the application ... was made by another person on behalf of the woman". Who can this-----
We have gone past that and are debating section 14.
I missed it.
Yes. I call Deputy Naughten.
I wish to make one point about the valid point made by Deputy Ó Caoláin. I can see where the Minister is coming from. As public representatives, we all attend oral hearings with the Department of Social Protection or whatever in order to assist constituents. Officialdom can be daunting and, in this case, one would be faced with three highly qualified consultants. I wish to make a suggestion that could partly meet Deputy Ó Caoláin's concerns. I suggest that the last line of section 14(1) be amended to read "to hear the woman and-or a person acting on her behalf". That would allow the woman and another person, who could be her GP or whoever, to advocate on her behalf at the hearing.
That is what it says. It is stated in section 14(1):
The pregnant woman shall be entitled to be heard by the review committee and, where the woman or a person acting on her behalf informs the committee that she wishes to be heard, the committee shall make such arrangements as may be necessary in order to hear the woman or a person acting on her behalf.
I thank Deputy Conway.
That means either her parent, her partner or her husband.
I ask members to make their comments through the Chair. Deputy Ó Caoláin is next.
I wish to clarify.
I ask that the word "or" be replaced by "and-or".
Again, it comes down to the assessment. It is not a court of law that we are creating and it is very important that this be retained.
My earlier contribution was open to a number of interpretations. I wish to make it absolutely clear that I am not supporting the amendment as proposed. The purpose of my contribution was to demonstrate that this must and can only be in the process of a clinical assessment. I can see no other justifiable approach to the process. It has to be based on the assessment of appropriately qualified professionals, whose assessment, at the end of the day, must be the final adjudication. I do not support amendment No. 65 because I do not believe that is a situation we should be going into.
I thank the Minister of State for his reply on amendment No. 65. As Members will be aware, the question was raised by somebody far more eminent in law than myself and it is important that we tease the issue out. Everybody knows my objection to section 9. However, I accept that the way in which the Bill has been constructed means that this amendment might not be a solution.
With regard to the comments made by Deputies Ó Caoláin and Naughten, there is still a case for using the words "to hear the woman and-or" so that somebody acting on the woman's behalf could attend with her and be heard. That is a reasonable proposition. At present it appears that the woman goes in on her own or somebody goes in and does the talking, but it cannot be "the woman and" a person accompanying her.
No more than Deputy Naughten, I have attended many appeal hearings and other hearings. The hearings are not major - Department of Social Protection hearings, in particular, are fairly benign - but lots of people like to have somebody with them.
People like to have somebody with them, perhaps to articulate or ask questions on their behalf. It is also essential that the woman herself be present. I support the call for the Minister, on Report Stage, to change the wording to "the woman and-or a person acting on her behalf".
Can I return to the matter on Report Stage? I hear what people have said. There is the part about the advocate on behalf of the unborn, which we have already covered and really is not workable.
I will respond to the point made about the wording "to hear the woman or a person acting on her behalf".
We have already determined the woman must be examined by someone on the committee in order to inform the review. Therefore, they must hear her and she is also entitled to have a person act on her behalf. We must include the words "and/or". We will talk to the Attorney General and come back to the issue on Report Stage.
I can totally understand what is being said about the words "and-or", but I have a concern where a woman is in a violent relationship and the person who goes in is her husband. I want to be clear that the woman has the choice.
The person must have her consent to act on her behalf.
I just want to be clear on that point.
Amendment No. 66, in the name of Deputy Seamus Healy, is out of order as it involves a potential charge on the Exchequer.
I move amendment No. 67:
In page 13, line 39, to delete “this”.
The purpose of the amendment is to correct a drafting error.
Amendments Nos. 68 and 82 are related and will be discussed together. Acceptance of amendment No. 68 would involve the deletion of section 15.
I move amendment No. 68:
In page 14, between lines 1 and 2, to insert the following:
“15. The Executive shall, for the purpose of monitoring and collecting data on the performance of medical clinical procedures, collect information on the functioning of Chapters 1 and 2 of this Act in accordance with standard Hospital In-Patient Enquiry procedures recognised by the World Health Organisation and in use by the HSE.”.
The purpose of the amendment is to standardise the collection of data on the basis of the hospital in-patient enquiry, HIPE, scheme. This is the current system and the standard in collecting and monitoring information at hospital level by individual hospitals and the HSE. It is the accepted form of data collection and recognised by the World Health Organization. It covers all of the information we want to have in respect of the Bill. It is already in operation and staff are familiar with it. It is recognised as best international practice. The system is working well and should be used in the collection of data under the Bill.
I raised this matter on Second Stage in the Dáil. The diagnostic codes are already in place with the HIPE coding. It allows for information to be collected under the pregnancy with abortive outcome heading. The secondary concern which the Minister may have addressed is the inclusion of the Medical Council registration numbers of doctors performing the terminations in the report to the Minister. The Minister has said this will not be the case in that it will be seen by the Minister but not by anyone else. That will safeguard the doctors from being targeted by anti-abortion activists, as we have seen, unfortunately, in other countries and jurisdictions.
I could not have put it better myself. I need to know the registration numbers of the doctors carrying out and certifying procedures to ensure there is no abuse. That is for the Minister to know, but publishing them would expose doctors to a witchhunt, which I do not think is appropriate and of which I disapprove.
Section 20 of the Bill covers notifications and sets out, in some detail, the records to be kept on procedures carried out under the legislation and the contents thereof. It more than adequately covers the amendments proposed by Deputy Seamus Healy; therefore, there is no need for the detail he proposes. For this reason, I cannot accept the amendments.
If amendment No. 69 is agreed to, amendment No. 70 cannot be moved. Amendment No. 70 is an alternative to amendment No. 69. Amendment No. 71 is related to amendment No. 70. Amendments Nos. 69 to 71, inclusive, 73 and 74 are related and will be discussed together.
I move amendment No. 69:
In page 14, line 3, to delete “year” and substitute the following:
“year, and the Minister shall, as soon as may be after receiving the report, cause copies of the report to be laid before each House of the Oireachtas”.
I wish to insert amendments Nos. 69 and 73 as, in the interests of transparency, it is appropriate that reports on the operation of the legislation be viewed and discussed in the Houses of the Oireachtas. In introducing the Bill I have acknowledged the complex issues at stake and in proposing these amendments I hope to reassure my colleagues that the Oireachtas will continue to have an overview once the legislation is passed. Further changes proposed in amendment No. 73 have regard to the need to protect the identities of doctors lawfully complying with the legislation and are similar to the provisions already contained in the legislation for the protection of the women concerned. In view of the approach taken in my proposed amendments Nos. 69 and 73, I suggest there is now no need for amendment No. 74 as proposed by Deputy Denis Naughten.
With regard to amendments Nos. 70 and 71, section 20 of the Bill sets out a detailed notification system which will be put in place under the legislation to monitor its operation and ensure it is not being misused. Notifications will be received on an ongoing basis and an annual report will be prepared and, subject to the acceptance of my proposed amendment No. 73, laid before the Houses of the Oireachtas. Deputy Billy Kelleher’s further requirements are, therefore, disproportionate and I urge the committee not to accept them.
I do not propose to accept amendment No. 72 proposed by Deputy Billy Kelleher. It would not be appropriate for a report of this type to contain the information specified by the Deputy. These are matters to be considered by medical practitioners involved in the formal review process only in the light of their legal and constitutional obligations.
I want to speak on amendments Nos. 69 and 73. I welcome the Minister's amendments. Amendment No. 73 refers to confidentiality, which is important.
With the indulgence of the Chairman, I want to make reference to amendment No. 83, which is relevant. Deputy Ciara Conway referred to the registration numbers of medical practitioners. There appears to be an inconsistency in this regard. The reference in the amendments is to sections 7, 8 and 9 but not to section 13. The question is whether to amend amendment No. 83 in order that it refers to sections 7, 8, 9 and 13 or to amend section 15 in order that the registration number of the medical practitioner carrying out the review is provided for the Minister or the HSE and when he produces a report he takes account of the need for confidentiality. Does the Minister see the technical point I am making? Do I need to elaborate on it? I will give it in layman's terms.
Amendment No. 83 refers to what Deputy Ciara Conway spoke about, the fact that the medical registration numbers of the doctors and medical practitioners carrying out the procedures provided for the Minister will not be provided in the review.
The Minister is saying in amendment No. 73 that one of the elements of information which will be received will not be passed on. The amendment refers to "a medical practitioner who has carried out a review". It is a technical point. Some reference should be included in section 15 or section 20 that would enable the Minister to receive the medical registration numbers of those carrying out medical procedures under section 13, which is the review section. Does the Minister understand my point?
I thank the Minister for introducing amendments Nos. 69 and 73. I think they address the concern I raised in my amendment No. 74. It is important for these reports to be laid before each House of the Oireachtas at the first available opportunity so Members can see exactly what is going on. I support the amendments that have been tabled by the Minister and I will withdraw my amendment when it is reached.
I ask those whose mobile phones are switched on, even on silent or aeroplane mode, to switch them off completely because they are interfering with the microphones.
The Bill provides that the report will refer to procedures that have been "carried out". Will the report refer to cases in which procedures were not carried out? If a negative return comes back from both the consulting physicians and the review panel, will that be reflected in the report? Will that information be collected? Will we be able to tell whether there has been a higher proportion of refusals in one area than in another area?
I take it that we are not addressing amendment No. 72.
No, we are not. We will come to it next.
I welcome amendment No. 69, in which the Minister has provided for copies of these reports to be laid before each House of the Oireachtas. As we discussed earlier, hundreds of documents are laid before the Houses of the Oireachtas. It is very important for a mechanism to be found to ensure the reports are discussed at the relevant health committee every year. I do not know whether that should be in the legislation. Perhaps it is a decision to be made by the committee itself. I outlined my fear, which is shared by many people, in relation to section 9. The Minister believes we are incorrect and does not think it will happen the way we fear. I hope he is right. Given that he is putting great store on this reporting mechanism as a means of ensuring what we fear might happen does not, it is important for these reports to come before this committee for discussion and debate as a matter of course, rather than merely being laid before the Houses, which as we all know simply involves being placed in the Oireachtas Library. I do not know how many Deputies are cognisant of all the stuff that goes into the Library. If that were to be agreed, and in view of the fact that the Minister is going to publish these reports in this way, I will not press amendment No. 70. In such circumstances, the Minister's proposal would have the same effect as what I am proposing. I am keen to put in place an early warning system, in case the numbers start increasing dramatically under section 9, to ensure it is possible to investigate whether the law is acting properly.
I support amendments Nos. 69 and 73. Amendment No. 73 strengthens what is in the legislation and I welcome it accordingly. I am sympathetic to the view expressed by Deputy Ó Cuív in relation to amendment 69. I ask the Minister to consider whether it would be feasible to add to "report to be laid before each House of the Oireachtas" at the end of his amendment No. 69 the phrase "and be notified to the Oireachtas Committee on Health". Would he be willing to consider that?
Deputy Ó Cuív raised the issue of increasing numbers. I would pick up such a development very quickly when I would look at the monthly notifications. I have the power, once I invoke the Health Information and Quality Authority, HIQA, to investigate, to suspend the service if I am concerned about safety. Such a suspension would remain in place until HIQA has reported back to me. If HIQA says in its report that the service is safe, it will be reinstated. If HIQA says after 21 or 18 days that it is still not happy, the service will remain suspended. I made it clear in my speech in the main Chamber that I will not be afraid to exercise that power.
That is you, Minister.
A report will be laid before the Houses of the Oireachtas. I am sure this committee will know that has happened, in the normal way that it always knows when issues or reports relating to it are laid before the Houses. It knows when the HSE annual report is laid before the Houses. I assure Deputy Conway that the refusals on review will be recorded in addition to the ones that are successful. There is no question in that regard. I thank Deputy Ó Caoláin for his support for amendment No. 73. Can I press the amendment?
One second now. Does the Minister of State wish to comment?
I will call Deputies Ó Cuív and O'Donnell.
We do not pass legislation on the basis that the current Minister will be the Minister forever.
We would like him to be.
We have to pass laws on the basis that different people will hold this position in the future. That is why I welcome the decision to place this report before the Houses of the Oireachtas. I would prefer if the Minister were obliged, as Deputy Ó Caoláin has suggested, to ensure the report is brought to the attention of the relevant committee. I would say it should be "referred" to the committee. The committees are autonomous and the Oireachtas is autonomous. I think the Minister should be obliged to bring the report to the committee's attention. One of the problems with providing for things to be laid before the Oireachtas is that such a provision is now being included in an increasing amount of legislation. In the early days after this idea was first suggested, presumably everyone kept an eye on the small number of documents that were being laid before the Oireachtas. This practice has become so prolific that it has become a problem for people to pick up on this stuff. The same thing applies in the case of EU legislation. It seems to me that much of the stuff that is put in the Oireachtas Library should be referred directly to one of our many Oireachtas committees, which can decide whether it wants to debate them. The Minister could start a very good practice and move things forward by recognising that times and circumstances have changed and that there are better ways of doing things than the way we did them in the past. If he gives me an assurance in this regard, I will not press my amendment. I would like to put it on the record that I welcome amendment No. 73.
I would like the Minister to clarify something. I cannot see where it is set out in the Bill that notifications for the registration of medical practitioners who will carry out procedures under the reviews will be provided to the Minister. Can the Minister tell me where that is provided for in the Bill?
As I said earlier, I support these amendments and I intend to withdraw my amendment when we reach it. I would like to pick up on the point made by Deputies Ó Cuív and Ó Caoláin. Can the Minister assure the committee that the procedure which is currently in place, whereby statutory instruments are circulated to the committee as a matter of courtesy, will be followed when the report is laid before the Oireachtas? While I do not think a provision to that effect needs to be included in the legislation, I am seeking an assurance that the report will be circulated to the committee as a matter of courtesy in the same way that statutory instruments are circulated at present. I think that would address the concerns that have been raised.
I think I have made my position clear on this. I do not have any further comment to make, other than to respond to Deputy O'Donnell, who asked where it was in the Bill. It is in section 2(2).
If a medical procedure was carried out by a hospital following a review, the hospital would be required automatically under the Act to send a notification to the Minister, similar to the notification we are inserting in section 18. There will be no need to reiterate in amendment No. 83 that this will be in sections 7, 8, 9 and 13.
That is it. There is a section 7 certificate or a section 9 certificate.
I understand from the Minister that the version of the report he will get will be different from the version that will be made public, and that there will be information to which the Minister or his successor will be privy but which will not be made available to the public, in the interests of making sure that doctors are not identified and so on. I accept in both cases that the woman's privacy is sacrosanct. The amendment keeps referring to "the report" and "a report". It is not explicit that the Minister can get a certain amount of information that he can hold but which does not appear in the published report. It seems to say that he only gets the same information as the published report, which is clearly at variance with what he has said.
That was the purpose of it. It is stated in section 15:
(1) The Executive shall, not later than 30 June in each year, prepare and submit to the Minister a report on the operation of this Chapter in the immediately preceding year. [So it is the executive that will prepare the report].
(2) Notwithstanding the generality of subsection (1), a report under this section shall, in respect of the year that is the subject of the report, include information on—
(a) the total number of applications for review received by the Executive,
(b) the number of reviews carried out,
(c) in the case of the reviews carried out, the reason why the review was sought, and
(d) the outcome of the reviews.
(3) In preparing a report under this section, the Executive shall exclude from the report information that identifies, or that could reasonably lead to the identification of, a
(a) who has made an application under section 10(2), or
(b) in respect of whom such an application has been made by a person acting on her behalf.
And the medical practitioners-----
The Minister seems to be saying that he will not be privy to who the medical people-----
I will be. I made that very clear. That will be in the regulations on the form.
No. It would be appear in the draft here-----
That is why there is a reference to "a report" as opposed to "the report". More information will be made available to me. The executive shall produce "a report" that is published, but a much more-----
Where is the legal provision for the other report?
It is in the regulations. It is in the notifications I receive. It is not so much a regulation of a report, but the notifications that will contain the information that comes to me on a monthly basis in any event and which will have all that information on it.
Under what section?
Amendment No. 70 cannot be moved as a consequence of amendment No. 69 being carried.
I move amendment No. 72:
In page 14, between lines 5 and 6, to insert the following:
“(a) in the event of a procedure being carried out under section 9 or after a review the report shall outline the counselling provided or offered to the pregnant woman, details of the alternative treatments offered and the alternative treatments provided, and details of the evidential basis on which the decisions were made,”.
This amendment asks for detail to be provided, again on the basis that no one knows who we are talking about, on the procedures that were followed under section 9 applications or a review of a section 9 application. The amendment stipulates the provision in the report of details of the counselling provided or offered, details of alternative treatments offered and provided, and the evidential basis on which the decisions were made. It seems to me to be very basic information that should be in the report in order that people can make an assessment, based on the report, on the operation of what will be an Act.
I think I addressed this already when I said I did not propose to accept the amendment tabled by the Deputy. It would not be appropriate for a report of this type to contain the information specified by the Deputy. These are matters to be considered by medical practitioners involved in the formal review process only in light of their legal and constitutional obligations.
- Kelleher, Billy.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Healy, Seamus.
- Naughten, Denis.
- Ó Caoláin, Caoimhghín.
- Reilly, James.
I move amendment No. 73:
In page 14, to delete lines 10 to 15 and substitute the following:
"(3) In preparing a report under this section, the Executive shall exclude from the report information that identifies, or that could reasonably lead to the identification of—
(a) a woman who has made an application under section 10(2) or in respect of whom such an application has been made by a person acting on her behalf, or
(b) a medical practitioner who has carried out a review.
(4) The Executive shall arrange for a report laid before both Houses of the Oireachtas in accordance with subsection (1) to be published in such form and manner as it thinks appropriate as soon as practicable after copies of the report are so laid.".
Amendment No. 76 in the name of Deputy Ó Caoláin is out of order as it involves a potential charge on the Exchequer.
I know as an Opposition Deputy that the argument will come back, as it did in the Chairman's letter, that it could constitute a potential charge on the Exchequer but I can only appeal to the Minister to offer therapeutic counselling services for a woman who has been through this procedure. It is up to her whether she would seek to avail of the services and after care. I appeal to the Minister to give that serious consideration as it is within his gift alone to allow that to proceed through Report and Final Stages.
I applaud the sentiment behind this amendment. It has been deemed out of order because of the consequences for the Exchequer but I hope that the Deputy will be reassured to know that women in Ireland are entitled to appropriate and comprehensive post-abortion care. Medical practitioners in Ireland have a duty to provide care, support and follow-up services for women who have an abortion abroad. In addition, the HSE, through its crisis pregnancy programme funds the provision of post-abortion medical check-up and post-abortion counselling services. It has been rolling out a campaign to increase awareness among women that post-abortion services have been available in Ireland for a number of years now. The abortion aftercare campaign, which consists of targeted online and print advertisements, encourages women who have had an abortion to attend for post-abortion medical check-up and promotes the availability of free post-abortion counselling. All women who have a termination of pregnancy are entitled to these services which are provided free of charge. This affords us an opportunity to make women aware that these services are there, they are non-judgmental and women should avail of them if appropriate.
I thank the Chairman for allowing us to reflect on this amendment. Could the Minister in the intervening days consider the reaffirmation of that point? It is an information mechanism and it would be helpful if that was reflected in the Bill.
I accept the Deputy's suggestion and I will mention it on Report Stage. We should take every opportunity during the course of the debate on the Bill to emphasise the services that are there for people who may not be aware of them and who are possibly traumatised.
I thank the Minister and the Chairman again.
Amendment No. 77 in the name of Deputy Naughten has been ruled out of order.
I will resubmit the amendment on Report Stage.
Amendments Nos. 77 and 78 not moved.
I move amendment No. 79:
In page 14, to delete lines 28 to 30 and substitute the following:
"(3) Notwithstanding the provisions of this section, it shall be the duty of every appropriate institution to ensure the necessary number and category of medical practitioners, nurses and midwives are made available and are not obstructed in the carrying out of such a medical procedure as are governed by this Act.
(4) No appropriate institution shall refuse to provide medical treatment to a woman under the terms of this section."
This amendment seeks to clarify and expand section 17 in respect of the obligations on hospitals in regard to the procedures provided for under the Act. I hope the Minister will be able to accept the amendment.
I know it is not Deputy Healy's intention but I would be afraid in respect of the drafting of subsection (3) that one could end up recruiting on the basis of filling vacancies with persons who would be able to perform procedures under this Bill. This issue was raised during the committee's hearings and there were concerns that something like this could happen and recruitment could be tainted by the availability of staff to carry out these procedures. In the UK there is the criticism that while it cannot be formally asked it is asked informally at a pre-interview stage. None of us wants to see such a situation arise here. Could the Minister clarify that point?
I have another question on the section which I will put now and the Minister can respond to both questions to save my returning to the second question. Subsection (3) as drafted in respect of conscientious objection states that the person must make arrangements for the transfer of care. I presume that the responsibility is not placed specifically on the individual nurse or doctor but on the institution as a whole and that the nurse or doctor working with the management in that institution would ensure there is continuity of care rather than the responsibility resting with a particular doctor or nurse to find a replacement. Could the Minister clarify that point?
That is a critically important point. It is well made and well intentioned but the obligation is absolutely on the individual, not on the institution. In some instances this individual could be a sole practitioner in general practice.
I think my question has been answered but I am concerned about this point. Does the Minister envisage a case where, if the question is not asked or recorded in some way, a team could be assembled that all have a conscientious objection? How does one weigh up the woman's right to a termination versus a doctor's conscientious objection? If one does not ask the question there could in theory be a team in a particular hospital who are all conscientious objectors.
We would be in dangerous territory if we started asking people at every interview about their conscientious objection status. It is unlikely to happen and I say this with trepidation but I know that some institutions that espouse a very Catholic ethos would be staffed by people who would not be bound by that ethos and who would have a different view of a woman in distress. I do not think it is a given.
We are very clear that an institution does not have a right of conscientious objection yet it was determined that it was not necessary to put this in the Bill on the basis that as the Minister of State, Deputy White, has said on several occasions, it is not necessary always to include the negative in Bills. I do not mean any disrespect to anybody when I say that.
I wish to assure the Deputy that, while I understand the intention of the amendment he has proposed, it is not necessary. Section 17 sets out procedures to be followed where medical practitioners with a conscientious objection do not wish to carry out the procedure in question. In all other cases, the Bill provides the legal clarity to enable doctors, nurses and midwives to carry out procedures in accordance with medical best practice that are necessary to save women's lives.
On the issue of ensuring that medical practitioners are not obstructed in carrying out a necessary medical procedure, section 19(3) of the Criminal Justice (Public Order) Act 1994 as amended by the Criminal Justice Act 2006 already provides a specific offence of obstructing or impeding a person providing medical services at or in a hospital. It provides that "Any person who resists or wilfully obstructs or impedes . . . a person providing medical services at or in a hospital . . . shall be guilty of an offence." The term "medical services" includes services provided by doctors, psychiatrists, midwives, nurses, pharmacists and social care professionals or other persons providing treatment and care for persons at or in a hospital. I identify psychiatrists, I suppose in the context of section 9 but obviously psychiatrists are doctors. The penalty on summary conviction is a term of imprisonment for up to six months and-or a fine of up to €2,500.
The initial general scheme of the Bill approved by Government included an express prohibition on conscientious objection for institutions.
This was discussed at Cabinet. I do not think I am breaching Cabinet confidentiality by saying that at this juncture. However, following the receipt of legal advice it was decided to remove this specific prohibition since the provisions contained in the Bill, as it now stands, make it clear that this right is limited to persons involved in the delivery of the treatment only. For these reasons I cannot accept the Deputy's amendment.
I am broadly sympathetic to Deputy Healy's amendment because it is reflective of a concern which has a certain currency. It is only in the practice of it that we will see whether it will be the case. We all hope it will not be. He is seeking assurance and greater certainty. It merits consideration on that basis.
On Deputy Conway's point and the response of the Minister, I accept in larger institutions it will not be an issue. However, it may be an issue in smaller hospitals. I am open to correction, but I am led to believe that all of the consultants in some smaller hospitals may have a conscientious objection to sections 7 or 9. What happens in that situation? When a post needs to be filled does the point made by Deputy Conway apply? It is a valid argument. Does whoever is conducting interviews need to be conscious of the fact that the other consultants have conscientious objections? Will an outside consultant have to be brought in to carry out those procedures? Will a vacant position be filled by someone who is prepared to carry them out? It is a tricky issue but they are the practical terms of what will happen. How does one deal with that issue?
In the instance to which Deputy Naughten referred, the hospital has to make arrangements that the woman is looked after and the service is delivered. I do not think we can get into being prescriptive in this Bill about how interviews are held in hospitals and how staff are recruited. We would be straying into a very dangerous area in employment law and everything else. I certainly do not think it is within the remit of the Bill to go in that direction.
I do not want to be prescriptive. The reason for the amendment is to ensure all appropriate institutions will be in a position to provide the services and procedures provided for in the Bill. I accept there are difficulties. At the very least, we need an assurance from the Minister that he is satisfied each and every appropriate institution covered in the Bill will be in a position to provide the procedures provided for in the Bill.
I am very pleased to inform the Deputy that as a consequence of the recently published report accepted by the Government on the formation of hospital groups, the scenario described will not pertain because within the groups there will be people who will have an obligation to travel to the hospital to perform those procedures and deliver those services if those normally present in a hospital all have a conscientious objection. They are now all under the one management, staff and team structure. It is another unforeseen bonus of hospital groups.
The Minister is correct. My concern is that when a post becomes vacant in smaller institutions there is a responsibility on the institution to provide the service. It is not included in the formal recruitment process in the UK yet it seems to happen. It is difficult for the Minister to respond to that but a genuine concern was articulated to us at the hearings. It has not been allayed by the comments today.
On the basis of what the Minister has said, I will accept his assurance that it will be possible to have the procedures available in all appropriate institutions. On that basis, I will withdraw the amendment.
I move amendment No. 80:
In page 14, line 28, after “shall” to insert “immediately”.
Amendment put and declared lost.
I move amendment No. 81:
In page 15, line 8, to delete “may” and substitute “shall”.
This amendment is solely aimed at amending the section to mirror the provisions made under the reporting system in section 20.
Amendment No. 82, if accepted, will involve the deletion of section 20 of the Bill. It was discussed with amendment No. 68.
I move amendment No. 82:
In page 15, between lines 10 and 11, to insert the following:
“20. The Executive shall, for the purpose of monitoring and collecting data on the performance of medical clinical procedures, collect information on the functioning of Chapters 1 and 2 of this Act in accordance with standard Hospital In-Patient Enquiry procedures recognised by the World Health Organisation and in use by the HSE.”.
In view of the fact that the principle of the amendment was lost on amendment No. 68 I will withdraw it.
Amendment, by leave, withdrawn.
Amendments Nos. 83 to 86, inclusive, are related and will be discussed together.
I move amendment No. 83:
In page 16, to delete lines 3 to 5 and substitute the following:
“(b) whether the medical procedure was carried out in respect of the pregnant woman pursuant to a section 7 certification, section 8 certification (whether made before or after the medical procedure was carried out) or section 9 certification and the Medical Council registration number attached to the registration of each of the medical practitioners who made the certification concerned;”.
Further to the amendments I have already proposed which will, if accepted, provide further information to be provided as part of the report on the operation of this Bill, I also propose making amendments Nos. 83 to 86, inclusive. This Bill has included provisions for notifications since its inception. However, on further analysis it was decided to specify all the information to be provided for the purpose of notification in the Bill. This is to maximise transparency in the operation of the Bill by enshrining principles and policies in primary legislation rather than providing for it in secondary legislation when it is not necessary to do so.
The intention of these additions to the Bill is to provide the maximum information on procedures being carried out under the terms of the Bill, thus enabling the Government to monitor its functioning while at the same time protecting the identities of relevant practitioners in the same way as we have provided for the women concerned. I urge people to accept these amendments. It is always preferable, and I hope members will agree, that as much as possible it is enshrined in primary legislation to give the Oireachtas absolute say over any changes, as opposed to through regulations, although I have given a commitment that any changes in regulations will always be laid before the Dáil. I commend the amendments to the committee.
I welcome amendment No. 83 and thank the Minister for moving it.
I support amendments Nos. 83 to 86, inclusive. I have nothing further to add.
I move amendment No. 84:
In page 16, line 14, to delete “year” and substitute the following:
“year, and shall, as soon as may be after preparing the report, cause copies of the report to be laid before each House of the Oireachtas”.
I move amendment No. 85:
In page 16, to delete lines 15 to 20 and substitute the following:
“(5) The Minister shall arrange for a report laid before both Houses of the Oireachtas in accordance with subsection (1) to be published in such form and manner as he or she thinks appropriate as soon as practicable after copies of the report are so laid.
(6) In preparing a report under this section, the Minister shall exclude from the report information that identifies, or that could reasonably lead to the identification of—
(a) a woman who is the subject of a notification under this section,
(b) a medical practitioner referred to in subsection (3)(a), or
(c) a medical practitioner referred to in subsection (3)(b).”.
I move amendment No. 86:
In page 16, line 21, to delete “a part” and substitute “or a part”.
Amendments Nos. 87 and 88 are related and may be discussed together.
I move amendment No. 87:
In page 17, line 25, after “person” to insert “, other than the pregnant woman concerned,”.
This amendment relates to section 22. In my view, this section is anachronistic, inhumane and indefensible. It seeks to criminalise a woman who procures a termination other than under the terms of the Bill. It prescribes a term of imprisonment not exceeding 14 years for such an offence. We should not criminalise the woman concerned and this is the point of my amendment which seeks to insert, after "person", in line 25, "other than the pregnant woman concerned". The effect of the amendment would be to differentiate between the pregnant woman concerned and others who may be party to the offence. Precedent exists for that principle and the matter was discussed at length at the hearings. The particular precedent is in the Criminal Law (Suicide) Act 1993, whereby the person who attempts suicide is not criminalised. That same principle should operate with regard to this Bill.
As it stands, the section criminalises, for instance, a young woman or girl who may well be traumatised and who may have been abused. We are storing up difficulties, both for ourselves and for others. I hope the Minister will accept my amendment. There is a widespread view across the Oireachtas and in the public at large that the pregnant woman in such a situation should not be criminalised and should not be subject to a term of imprisonment of 14 years.
Deputy Healy and I have examined how best this can be achieved. In my own consideration I examined section 22 with regard to the arguments for and against with a view to a deletion of the section entirely. I accept that is not an acceptable proposition because it would remove the penalties applying to those who act outside the scope of this legislation, either in approved institutions as itemised on the Schedule or those who would carry out such procedures in unapproved settings. It is a question of how to deal with the situation of the woman. I am of the very strong view, as is my party, that we should not criminalise the woman who seeks an end to the pregnancy. There will be any number of reasons that might be the case. However, she does not require to be brought through the courts to face fines and-or imprisonment for up to 14 years. She needs support, compassion and care. The penalties, most certainly, should apply to those who act outside the law but the woman in this instance should not be for consideration in this regard.
We should not fool ourselves into believing that a case might not present itself. If a young woman accesses tablets on the Internet unbeknown to her immediate family or whoever, what is the situation if she were to become unwell and presents at a hospital? It may then be determined that she had acted as I have just described. She had accessed tablets that would induce a termination of her pregnancy. Where does that put the clinicians and the consultants dealing with her? The very likely scenario is that this would be reported. A situation could then arise in the courts where a young woman in such circumstances could face prosecution with the type of prescribed consequences that section 22 provides for.
Over the past week I have discussed this point and the scenario I have described with very strong pro-life advocates. They agreed with me and said they would have no appetite for such a scenario, despite the fact that they would have very strong objections to this Bill in general. They would not subscribe to the view that the woman should be criminalised and that there was provision for penalties of the order provided for in this section. We need to be mindful of what is actually being allowed in this section. We should take into account the widest opinion in society which I am certain has no wish to see women placed in that absolutely objectionable situation. I commend the formula of Deputy Healy's amendment or of my own amendment No. 88. It is academic because they amount to the same. I hope our proposed amendments would find favour with the Minister and with the committee.
I agree with the two previous speakers. There is no doubt that irrespective of one's position on the overall debate or the substantive issues, the proposal in section 22 is completely unacceptable to the majority of people in society who would have grave concerns that the scale of the penalties envisaged in the Bill would apply to a woman in this situation. I appeal to the Minister to look at the amendment of section 22(2) as proposed by the Deputies and to consider accepting the amendment to insert, "other than the pregnant woman concerned".
I wish to speak on subsection 22(4).
While I have considerable sympathy for what the Deputies are seeking to achieve in these amendments, I am not convinced they would be compatible with the constitutional provision regarding the equal right to life of the unborn. My personal opinion is secondary to the parameters within which we must legislate. As I understand it, section 22 is predicated on the need to have equal regard for the life of the unborn, a provision inserted by a majority of the people.
There is a somewhat bizarre quality to this discussion. We have a number of Deputies who are advocating against this legislation, as narrow as its provisions are, yet at the same time expressing their dissatisfaction with a particular provision that is very much a reflection of the sanctity of the unborn, as set out in the Constitution. In other words, some of those who are advocating that the right to life of the unborn requires protection equivalent to that afforded to the right to life of the woman are now saying that if the life of the unborn is injured or taken, that action should somehow not be deserving of a prison sentence. As I said, that is bizarre.
We have to deal with the constitutional position. The reality, although I do not like it, is that the people voted for this in the eighth amendment. I spoke on Second Stage about my concerns that this provision would have a chilling effect on women. I have huge sympathy for the scenario outlined by Deputy Caoimhghín Ó Caoláin. I am especially concerned that a situation might arise where a teenage girl, having taken medication she had obtained from the Internet without the supervision of a doctor, experiences a failed abortion and attendant complications. A young girl might in these circumstances be afraid to impart that information to medical professionals for fear of criminal sanction. The fundamental difficulty in regard to section 22 is the constitutional provision regarding the equality of the right to life of woman and unborn child. It is strange that those who are advocating against the Bill should at the same time have huge difficulties with this section.
I appreciate that there is nothing that can be done about this provision. I disagree, however, that to be at once pro-life and to have concerns in this regard is a bizarre position to take. To put it simply, any such concern is borne out of one's humanity. While people might not agree with abortion, they certainly understand the reasons women find themselves considering whether to take that road and they have compassion for these women. It is not a case of lock the harlots in the cellar and throw away the key. We are a compassionate nation.
It is important to note that we do not know how many terminations have been carried out in Ireland since the X case judgment. We do not know how many terminations were performed in this country last year. We also do not know whether uncertainty about the law on when it is permissible to perform terminations has been abused. A major advantage of the Bill is that it will at least give clarity in this regard, which is most welcome.
The amendments seek to remove the criminal sanction for a woman who unlawfully undergoes a termination of pregnancy. While I understand the Deputies' concern in this regard, it should be noted that, as it stands, a woman may be prosecuted for non-lawful abortion under the provisions of the Offences Against the Person Act 1861 which states any such woman shall be liable to be "kept in penal servitude for life". In other words, the provision in the Bill does not create a new offence for women in such circumstances but merely brings the penalty for the existing offence in line with current parameters, namely, that instead of imprisonment for life, the sentence shall not exceed 14 years.
While it is recognised that the potential criminalisation of a pregnant woman is a very difficult and sensitive matter, this provision reflects the State's constitutional obligation arising from Article 40.3.3°. It would also be inequitable to have, as a matter of course, a significant penalty for the person performing a medical procedure but none at all for the woman who willingly undergoes that procedure. It is vital to point out that the sentence to be applied in any particular case is a matter for the courts. We are always inclined to consider the worst case scenario in these matters. There is no intention under this section that a woman would be sentenced to 14 years in prison, but it is there in the law.
There are two important issues to highlight. First, it is very clear that a prosecution can only be brought at the behest of the Director of Public Prosecutions. The latter has discretion in this regard and I have absolutely no doubt that this discretion will be exercised. Second, if a case does come to court, the court also has discretion at its disposal. I cannot foresee a case where a court would inflict that level of penalty on a woman. I share Deputies' concerns for women in difficult circumstances, potentially including minors who might be more likely to purchase certain items from the Internet. I am confident, however, that the courts have wisdom, as well as justice, as does the Director of Public Prosecutions. It is my expectation that the type of penalty described will not be inflicted on individual women and will instead be reserved for recalcitrant operators of illicit services.
In regard to the comments on suicide and how it is treated, it is important to point out that suicide is to take one's own life, whereas abortion is to take the life of another, namely, the unborn. It would not be appropriate to equate the two.
I find it very difficult to dispute Deputy Seamus Healy's description of these provisions as "anachronistic" and "inhumane". However, the Minister made an important point when he said this section continued the criminalisation of women already provided for in law rather than introducing a criminal sanction. There is a difference.
Deputy Michael McNamara is absolutely correct in his observation that the necessity of this provision arises from the decision of the people in 1983 to place the relevant clause in the Constitution. The exchange between Deputies Ciara Conway, Colm Keaveney and Regina Doherty in this regard was very interesting. There are very few people who do not baulk at the prospect of a punishment of 14 years in jail for women in the circumstances we are discussing. As Deputy Ó Caoimhghín Ó Caoláin said, even people who are very strongly pro-life wonder how this sanction could have been included. The bottom line is that the requirement in this regard is the stark and unavoidable consequence of Article 40.3.3°, a fact which we must honestly relate to the people. I am sorry if it sounds glib, but the people cannot have it both ways, no more than we can as legislators. It simply is not possible to have a clause in the Constitution which protects the life of the unborn in the way that it does without having a criminal sanction along the lines of unlawful killing to penalise persons who are in breach of that law.
These positions are not reconcilable, no matter how much persons moved by a common humanity might wish it were so. I recall this issue being raised in the debate in 1983 and it has come up many times since. In her reference to the bizarreness of the position of some of those objecting to the provision, I understand Deputy Ciara Conway was pointing to the conflict that arises. We cannot, in short, have it both ways; it is one or the other. The amendments are entirely well motivated, but they cannot be delivered. We have no right to do what the Deputies are proposing because we cannot set aside the constitutional provision, as inserted by the people.
This is possibly the most troubling aspect of the legislation. It is an unavoidable consequence of what is in the Constitution. Even worse, I cannot see any legal basis for distinguishing between the woman and the others involved. I do not see how it could be done, much as this troubles me very deeply.
I appreciate how difficult delivering on the intent of the amendment would be. If we are not able to bring this further, it will have been interesting to have noted how the brief exchange has illuminated the reality of public opinion. Despite the very strong views of some and the views of everybody else, including me, in the big swathe in the middle who are trying to manage their way through this, there is ultimately a powerful common position, as underscored very effectively by Deputy Doherty. The exchange will have been worthwhile for that alone. It has been illuminating and helpful.
I am very mindful of the challenge involved. I have no other legal resources available to try to advance the proposition. The Minister of State said that, despite his reservations - this may not be the right word - he would not make a distinction between the woman and the providers of an illicit or illegal service.
May I correct the Deputy?
I, at least, can draw a distinction. I am talking about how I view the situations that can arise. I fear that, despite all the assurances that the Minister and Minister of State, Deputy Alex White, have given us, there is no certainty that the courts might not, in a given scenario, present us with a set of circumstances and a result at which we will all be shocked. It is feasible and can happen. It is provided for. The circumstances I have described are not so improbable because the greater number, perhaps, of young women seeking the termination of a pregnancy are resorting to the Internet to gain access to imported medications. One may call them what one will. It is not beyond the bounds of possibility that a scenario such as the one I describe will arise. I definitely do not want to see a young woman in such circumstances equated with the providers of terminations, those who would perform backstreet abortions or accredited professionals within appropriate institutions named in this Bill acting outside the law. This is why I did not seek to delete section 22. We all understand and accept that what I have outlined must not be. There is a distinction to be made, however. I am willing to concede that the amendment's formulation is not perfect but the feasibility and achievability of its objective merit further consideration.
I am certainly disappointed by the responses given by the Minister and his Minister of State, Deputy White, on this matter. I do not accept that Article 40.3.3° of the Constitution obliges us to criminalise women in circumstances such as those we describe, and I do not believe the public wants us to criminalise them. There is widespread support across the Oireachtas for a change to this particular provision. One should remember that the penalty is 14 years in prison. Any perusal of sentences in recent times will indicate that a sentence of 14 years is greater than the normal sentence for crimes such as rape and manslaughter. The Minister states the courts will not impose such a penalty or may not do so, but we simply do not know. The law, as it stands, provides for the penalty. It is open to the Oireachtas to remove the provision so as not to criminalise women in the way envisaged. I wish to press my amendment.
On the discussion on the amendment on the obstruction of a staff member carrying out a function with respect to a termination, the Minister of State arrived at a position where consideration was given to a six-month sentence. If we were to accept the logic of the Minister of State, Deputy Alex White, how could we secure the position stipulating a potential sentence of 14 years? I fully subscribe to Deputy Ó Caoláin's absolute distinction in regard to the prospect of an illegal commercially motivated procedure that would not be provided for under the legislation. The distinction should be considered by the Minister of State. To avoid doubt, he should positively consider declaring section 22(2) null and void. He should consider the amendment, seek further advice and consider inserting the words "other than the pregnant woman concerned". I am at a loss to understand the sentence of 14 years given that the Minister of State can realistically declare that somebody obstructing the function of a public service delivery might be subject to a sentence of only six months.
What is the legal basis of the sentence of 14 years?
The right-to-life provisions, which are contained in practically every constitution in the world, require the criminalisation of the unlawful killing of human beings. The Irish Constitution is fairly unusual in that it affords an equal right to life to the unborn. If one criminalises the unlawful killing of people while giving the unborn an equal right to life, it is hard to see how one can vindicate it without prohibiting, on an equal basis, the killing of the unborn, regardless of who carries out the procedure, just as the provisions to criminalise unlawful killing do not differentiate between those who carry out such a killing. That is the context. Fourteen years is a life sentence, the sentence for murder. The sentence is not automatic in that it is "a term not exceeding 14 years". Therefore, judges will have discretion. I am just explaining the context.
While I do not have a vote at this committee, I see no alternative but to vote for this if I want to vindicate the Constitution. As a legislator and a democrat, I have no alternative but to do both.
To follow on from Deputy McNamara's point, am I right in thinking there is an anomaly? If a pregnant woman is assaulted and her baby dies, there is no criminal sanction for that. That is a bit of an anomaly.
It may be a question of intention.
Yes; maybe the intention is not there.
There is one other thing I would like to pick up on. If a doctor refuses to carry out a termination and the woman dies - this may be what Deputy Keaveney was getting at - what penalty is there for the doctor?
Following a certification, or before a certification?
I do not know - for whatever reason.
The Minister is prepared to provide for a penalty of six months for a public service worker who knowingly obstructs a procedure, as described earlier, in the unforeseen circumstance that there is destruction of the life of the unborn. Why would he provide for a penalty of six months on that basis when, under his own interpretation of section 22, he is prepared to imprison a woman for 14 years?
As one would expect from a barrister, Deputy Michael McNamara’s contribution was helpful. The reality is that the law is the law and we have to take the legal advice of the highest law officer, the Attorney General.
The discretion is there for the Director of Public Prosecutions and the courts. While they have wisdom and knowledge of the law, they also have compassion. I do not believe that level of penalty will be imposed on a woman, particularly a minor.
Members raised a scenario in which a woman obtains an abortifacient pharmaceutical drug on the Internet but has a partial abortion and must then go to a doctor. The patient-doctor relationship is one of absolute confidentiality. There is no onus on a patient to explain how she came across the tablets. They could have been obtained in the UK. A woman could have procured a termination in the UK, which is not illegal, and returned with complications. As I have said already, we want people to avail of the services available from the Health Service Executive for after-abortion care and counselling. The Medical Council guidelines on disclosures required by law state:
In certain limited circumstances, disclosure of patient information may be required by law. These circumstances are not limited to but may include when ordered by a judge in a court of law, or by a tribunal or body established by an Act of the Oireachtas, or where mandated by infectious disease regulations. In these instances, you should inform patients of the disclosure and the reasons for it.
I do not believe such cases will come under that. The guidelines also state:
Disclosure of patient information without their consent may be justifiable in exceptional circumstances when it is necessary to protect the patient or others from serious risk of death or serious harm. You should obtain consent of the patient to the disclosure if possible.
I do not believe a case such as we are discussing is covered by that provision, as the event has happened, the danger has passed and the damage has been done. The guidelines state:
If you consider that disclosing patient information is justifiable, you should carefully consider whether anonymisation of the information (sharing it without revealing the patient’s identity) would achieve the same potential benefits. You must also be careful to disclose the information to an appropriate person (or body) who understands that the information must be kept confidential. You should only disclose the minimum information that is necessary in the circumstances.
In the preceding instances, you should inform patients of the disclosure unless this would cause them serious harm.
The guidelines also deal with disclosures in the public interest, which would not apply here because they apply to the health of others.
In short, it is not necessary for the patient to reveal and not necessary for the doctor to inquire. From my experience in practice, I noted increasingly that patients were not presenting for certain issues relating to their health as they felt they would be reported on in insurance forms. I used to have to explain to people that insurance forms required all medical information.
I do not want the message to go out that doctors will start reporting young girls or women who find themselves in difficulty following a failed termination. It would be counterproductive. If we have any doubt, we just have to remind ourselves of the terrible tragedy in Granard, County Longford, all those years ago. I appreciate how members have expressed in different ways their compassion for women who find themselves in these circumstances. I do not want that compassion to be diluted or a message to go out from here that there will be no safe place for young girls or women who find themselves in this sort of trouble.
At the end of a long two days on this controversial and contentious legislation, we have had a good discussion and no one has questioned anyone else’s motivations in any way. I appeal to people to accept that this legislation is within the provisions of the Constitution. I hope they do not think we could just reduce the tariff. Why would the Government decide, or the Attorney General advise, that the tariff should be 14 years if it could be less? Deputy Keaveney says we should take time. We have taken time and this issue has been addressed in considerable detail. The stark implication is that the offence in question would inevitably have to carry a sanction at the high end as this is about ending another life, the point to which the Constitution refers. Deputy Keaveney can shake his head, but there is no reality in the idea that people imagine-----
The Minister of State is shaking his head himself.
It is bordering on the disingenuous to imagine we can have it both ways.
The Minister of State made that point already.
Performances aside, I want to address the Minister's last contribution and his reference to the Irish Medical Council's guidelines. I listened carefully to what he said but, in terms of reporting, he did not find a compulsion or direction in the guidelines. It is easy to be sympathetic to the GPs who do not report in the type of scenario I painted, but what if the young woman had not accessed abortion tablets on the Internet? What if she presented in a back-street situation? We are putting a further onus on the GP to decide what should or should not be reported, being mindful of the potential consequences for the patient. Deputy Healy and I have earnestly tried to find a formula to address this issue. I am aware it is not perfect or that it might allow for a different understanding of the situation. While it does not remove the point of guilt - that is, it does not actually state the woman is not guilty of a specific offence in terms of constitutional requirements - it avoids the application of penalties in her case. It is clear that we will be unable to arrive at a best place through this discussion but it underlines the need to do so at some point in the future.
The Minister referred to the Irish Medical Council guidelines and indicated that he has not found an area in which the doctor is obliged to report. The problem is that the report may not be made by a medical practitioner. It could be any category of individual. That in itself is no guarantee that a report will not be made. The Minister stated that he wants to send out a message to young women that they will be safe. The safest, and only, way to do that is by withdrawing this section, decriminalising the woman and removing the prospect of a 14-year penalty. I understand the argument that the Minister of State, Deputy White, is making but I do not accept it because it is possible not only to reduce the tariff but also to withdraw the section. That is why I tabled the amendment.
I will respond to some of the points raised by Deputy Keaveney in the interest of accuracy. We did not arrive at a period of six months as a penalty. That is already provided for in the law. The Department of Justice and Equality is responsible for the proposal of 14 years and can explain the rationale behind it. Deputy O'Donnell asked about the legal basis of this provision. I can ask the Department to outline the legal basis but it clearly relates to life terms in the modern understanding.
Is it case law?
I would have thought it related to the original Act, which provided for penal servitude for life. In modern terms that is 14 years. I do not think the Minister for Justice and Equality could be accused of being ultra-conservative in these matters.
Deputy Conway referred to a lacuna in the law. It is not for this Bill to fix such lacunae but it would be a very different matter if the assault was proven to have the intent of damaging the foetus. That would be a case of unlawful killing.
Deputy Keaveney raised a valid point about the prospect of the death of a patient being secondary to a failure to act or the obstruction of a procedure. Clearly, that issue extends beyond six months where it is possible to prove wilful intent or if the obstruction was deliberately designed to prevent the saving of the woman's life, as in a scenario where people were in the middle of an emergency and all were held captive until the woman passed away.
In regard to the issues raised by Deputy Ó Caoláin, the problem here is the Constitution and the law. That is the way it is, notwithstanding the question of compassion. We have always built compassion, wisdom and safeguards into our legal system through the DPP and the Judiciary. In respect of an abortifacient purchased over the Internet, that will affect the woman or young girl. However, an intervention by a back-street operator or somebody acting illegally in an institution involves a third party and, therefore, a public health threat to other patients. A doctor should feel duty bound to report such an intervention.
I accept Deputy Healy's point that a third party could be involved, particularly in an institution where somebody with a different view has access to case notes. Something written in the notes could lead to the individual concerned being charged. I accept that could happen but there is little we could do about that. I cannot agree to the Deputy's amendment because my legal advice is contrary to his belief. We will have to agree to disagree.
As the full membership of the select sub-committee is not present, under Standing Orders we are obliged to wait eight minutes or until the full membership is present, whichever is the earliest, before proceeding to take the division.
- Healy, Seamus.
- Ó Caoláin, Caoimhghín.
- Buttimer, Jerry.
- Conway, Ciara.
- Doherty, Regina.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Naughten, Denis.
- Reilly, James.
I move amendment No. 88:
In page 17, line 25, after "person" to insert ", other than the pregnant woman,".
I refer to the avoidance of doubt clause in section 22(4). I greatly appreciate the clear intention of the clause and support the Bill, which is about removing doubt about the procedures of which pregnant women can avail, the circumstances in which they can avail of them and, most importantly, the procedures medical personnel can carry out without facing the risk of criminal prosecution. That removal of doubt was required by the ECHR judgment. Nevertheless, section 22(4) states: "For the avoidance of doubt, it is hereby declared that subsection (1) [the offence to intentionally destroy unborn human life] shall not apply in relation to a medical procedure referred to in section 7, 8 or 9...", that is, a medical procedure carried out on a pregnant woman when there is a risk to her life through physical health in an emergency or through suicide where a reasonable opinion has been formed.
"Reasonable opinion" is defined as an opinion formed in good faith which has regard to the need to preserve human life as far as practicable, or a reasonable opinion is formed that the procedure is necessary to preserve and protect the life of the mother.
That reasonable opinion having been formed and as this subsection is worded, would it be then possible to carry out that procedure in a manner which is reckless in regard to the unborn life or even in a manner which intentionally destroys the unborn life? I appreciate that is not the intention of the subsection but I have a doubt and it is something I wish to raise at this point. It is a concern I have in that what if a procedure, which was absolutely necessary in the circumstances described, is carried out but where an unborn foetus might survive, albeit in poor health if born at 20 weeks or so, in a manner which intentionally destroys the unborn life? I wish to flag that at this stage.
Taking up Deputy McNamara's point, could it be taken that section 22(4) could prove to be inconsistent with section 22(1), which states it shall be an offence to intentionally destroy unborn human life? For the avoidance of doubt or any conflicts or inconsistencies, should section 22(4) be deleted? Does it cause more confusion than clarity when the primary section is section 22(1)?
I am sure the arguments on this section have been gone through in great detail consequent to Deputy Healy's and Deputy Ó Caoláin's amendments but I would like to signal the possibility of further amendments on Report Stage. Section 22 is ill-thought out and problematic. There is a possibility people could challenge whether doctors had made the right decision and whether they were working within the law. All sorts of things are problematic. It could still mean this section could result in the chill factor remaining and in the whole issue of termination of pregnancies being seen as some sort of criminal activity in the same way as other crimes. For all sorts of reasons, although I would have think a lot about precisely how one would formulate it differently, there is a case for deleting section 22 and for dealing with this matter in a totally different way. I want to signal the possibility of an amendment to that effect on Report Stage.
This area is fraught and I understand what people have said and I accept their concerns. It is, as people have pointed out, the only place where we actually refer to intentionally destroying unborn human life. That phrase is not used anywhere else in this Bill. The issue of avoidance of doubt was to not have any chilling effect from the point of view of doctors, which Deputy Boyd Barrett said. However, as Deputy McNamara said, it could be construed as giving free rein to intentionally destroy unborn human life. I have to take the legal advice available to me and I know that if section 22(4) was not there, section 22(1), from the Attorney General's point of view, does not present a difficulty. I think the best thing to do, given the concern expressed here and elsewhere about this section, is that the Minister of State, Deputy White, and I would return on Report Stage with a possible amendment or solution to section 22(4).
The general proposition in section 22(1) is that it is an offence to intentionally destroy unborn human life. The rationale for section 22(4) is that if there was any doubt arising from subsections (1) to (3), inclusive, it might undermine sections 7 to 9, inclusive - in other words take from them in some way. It was necessary to insert subsection (4) to ensure there could be no doubt that what was being stated in subsection (1) did not negative sections 7 to 9, inclusive. That is the rationale for section 22(4)
Sections 7 to 9, inclusive, provide for the only types of termination, if I may put it that way, which are protected from the blanket statement in section 22(1). If it is a procedure under sections (7), (8) or (9), inclusive, it is not covered by the blanket ban in section 22(1).
In regard to Deputy McNamara's point, section 22(4) states: "For the avoidance of doubts it is hereby declared that subsection (1) shall not apply in relation to a medical procedure referred to in sections 7, 8 or 9 which is carried out in accordance with the section concerned." One has to go back to sections 7 to 9, inclusive, and analyse them. One will see a requirement to preserve unborn life is inherent in sections 7 to 9, inclusive. The words do not appear there but there is a signpost to a definition of reasonable opinion which means that the requirement to preserve unborn life inheres in sections 7 to 9, inclusive.
Having said all that, the Minister is right and we had some discussion about this issue and the balancing issue. In the debate we had earlier, there were still some concerns and the Minister gave an undertaking and I agree with him. This aspect may not necessarily be something which should be dealt with in section 22 but possibly could be dealt with somewhere else in the Bill. I support the Minister in his undertaking to perhaps come back on Report Stage with some means to address the issues raised in this context.
Is section 22 agreed to?
As it presents, I am not happy that section 22 stand part of the Bill.
Section 23 agreed to.
I move amendment No. 89:
In page 18, after line 3, to insert the following:
“Offences of threat, harassment, endangerment and false imprisonment
24. (1) In the case of a person who, without lawful excuse, makes to another a threat, by any means intending the other to
believe it will be carried out, to kill or cause serious harm to—
(a) a woman as a result of her having sought to obtain or having obtained medical treatment under this Act,
(b) a medical practitioner as a result of his or her having provided or sought to provide medical treatment under this Act, or
(c) a third person involved in assisting or facilitating a person referred to in paragraph (a) or (b),
if that person is found guilty of an offence under section 5 of the Act of 1997, the court shall take such conduct into account as an aggravating factor in determining any sentence to be imposed on him or her for the offence.
(2) In the case of a person who, with a view to compel another to abstain from doing which that other has a lawful right to do under this Act, wrongfully and without lawful authority—
(a) uses violence to or intimidates that other person or a member of the family of the other, or
(b) injures or damages property of that other, or
(c) persistently follows that other about from place to place, or
(d) watches or besets the premises or other place where that other resides, works or carries on business, or happens to be, or the approach to such premises or place, or
(e) follows that other with one or more other persons in a disorderly manner in or through any public place,
if that person is found guilty of an offence under section 9 of the Act of 1997, the court shall take such conduct into account as an aggravating factor in determining any sentence to be imposed on him or her for the offence.
(3) In the case of a person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses by persistently following, watching, pestering, besetting or communicating with—
(a) a woman as a result of her having sought to obtain or having obtained medical treatment under this Act,
(b) a medical practitioner as a result of his or her having provided or sought to provide medical treatment under this Act, or
(c) a third person involved in assisting or facilitating a person referred to in paragraph (a) or (b),
if that person is found guilty of an offence under section 10 of the Act of 1997, the court shall take such conduct into account as an aggravating factor in determining any sentence to be imposed on him or her for the offence.
(4) In the case of a person who, intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to—
(a) a woman as a result of her having sought to obtain or having obtained medical treatment under this Act,
(b) a medical practitioner as a result of his or her having provided or sought to provide medical treatment under this Act, or
(c) a third person involved in assisting or facilitating a person referred to in paragraph (a) or (b),
if that person is found guilty of an offence under section 13 of the Act of 1997, the court shall take such conduct into account as an aggravating factor in determining any sentence to be imposed on him or her for the offence.
(5) In the case of a person who intentionally or recklessly without that other’s consent—
(a) takes or detains, or
(b) causes to be taken or detained, or
(c) otherwise restricts the personal liberty of—
(i) a woman seeking to obtain or having obtained medical treatment under this Act,
(ii) a medical practitioner seeking to provide or having provided medical treatment under this Act, or
(iii) a third person involved in assisting or facilitating a person referred to in subparagraph (i) or (ii),
as a consequence of that medical treatment, if that person is found guilty of an offence under section 13 of the Act of 1997, the court shall take such conduct into account as an aggravating factor in determining any sentence to be imposed on him or her for the offence.”.
I ask Deputy Boyd Barrett to speak to the amendment.
I hope people have read the amendment.
People are well aware that there have been physical attacks, assaults, harassment and so on of doctors, women and those working in hospitals or clinics where terminations are carried out. That is unacceptable in itself and represents a fear factor for women trying to access services to which they are entitled. It is adding to the stigma which often surrounds the issue and which can have a very detrimental effect on the mental health and sense of well-being of women who may require these services. This is an attempt to set out in very clear terms that having passed this Bill, we will support women and those working in the medical profession or in any way to provide the services to women which this Bill provides for. It is reasonable and quite an important signal for the Dáil to send out.
The amendment proposed by Deputy Healy and commented on by Deputy Boyd Barrett seeks the insertion of a new section 24 to the Protection of Life During Pregnancy Bill and essentially it aims to require a court to take certain factors into account as aggravating factors when sentencing a person convicted of certain existing offences under the Non-Fatal Offences against the Person Act 1997. The offences in question are: making a threat to kill or cause serious harm, which is section 5 of said Bill; coercion, as contained in section 9; harassment, as contained in section 10; and endangerment, as contained in section 13 of the Bill.
The factors the Deputy seeks to be taken into account can be summed up as the commission of the above offences against a woman who has sought treatment-----
I am interrupting the Minister as there is a vote in the Dáil and I propose to suspend the meeting and return after the vote.
In mid sentence.
Yes. I thank the Minister.
The Minister was in possession and responding to Deputy Boyd Barrett on amendment No. 89.
The factors the Deputy is seeking to have taken into account can be summed up as the commission of the listed offences against a woman who has sought treatment in accordance with the Protection of Life During Pregnancy Bill, against a medical practitioner providing treatment in accordance with the Bill or against a third person for facilitating or assisting the woman or the medical practitioner. The inclusion of a specific statutory provision is not necessary to allow a court imposing sentence for any of the above offences, or any offence, to take into account aggravating factors. It is a matter for the sentencing court to identify the mitigating and aggravating factors relevant to each case. This is already covered in the law and including the provision in the Bill would not add anything. I understand the sentiment behind the amendment which we would all share in so far as it relates to the fact that people receiving medical treatment have been certified as needing it and those providing it in good faith and a legal fashion should not be the subject of violence, harassment or any other interference. I, therefore, urge the committee not to accept the Deputy’s amendment.
I will consider bringing forward amendments on Report Stage to change the Title to refer to a Bill to protect maternal life which I think is its real purpose. There has been no dispute about the fact that there have been legal protections for unborn life, but what the Bill seeks to address is the issue of protections for maternal life. I am concerned about the tenor of the Title in this regard and may bring forward amendments on Report Stage.
I thank the Chairman and the committee for the courtesy shown and the tenor of the debate. I thank the Chairman, in particular, for his stewardship of it throughout the entire course of what have been extremely long discussions. These are probably some of the longest discussions on a particular piece of legislation and with good reason because it affects everybody in the country one way or another. I restate the purpose of the Bill is to protect the life of both the mother and the unborn and provide women with clarity on what they are entitled to and how they can access it, and the doctors and nurses who must provide this service with clarity on what they are legally permitted and obliged to do. I thank everybody for his or her co-operation and contributions which have been extremely informative. As the Bill has progressed from the production of the heads through the various Stages, the amendments made to it have all been informed by the various Members of the Oireachtas, particularly the members of the committee.
I speak in a personal capacity because my party offered members a free vote. It was interesting to observe the Bill as it passed through the various Stages. The discussions on the heads of the Bill were very informative and assisted greatly in people's understanding of what the legislation was about. People still have strong views, as is quite evident in the Dáil. Report Stage will be taken in the Dáil Chamber. When people speak on the Bill, it is important to speak on what is contained in it. If they are concerned about issues not dealt with in the Bill, they should be expressed but not in the context of what is in the Bill. Much of what is included in the Bill is already included in constitutional law and what we are doing is codifying it. People may have varying views on it, but that is my personal interpretation of it and why I supported it on Second Stage.
I thank all of the departmental officials involved, the Chairman and committee members for their commitment and the public service behind how we have worked, not only today but also in January and June.
I very much welcome the passage of Committee Stage of the Bill. I look forward to our taking Report and Final Stages in the same mature, considerate and compassionate mode which has applied yesterday and throughout today, on Second Stage and in the earlier deliberations during the hearings in January and May. I hope there will be a reflection of the thought and care exercised by members of the committee in the preparation of amendments and ideas to address perceived deficiencies in the areas they sought to strengthen. The variety of views presented will help to inform the wider public discourse which has undoubtedly continued in parallel to our engagement yesterday and throughout today.
This has been a very difficult issue for members across all shades of political opinion to address. The issues at the core of the legislation have had a very rocky address in the past. Undoubtedly, there has been a movement forward on the part of public opinion, which is reflected in the fact that we have been able to address the matters involved in what I have described as a very mature, calm and reflective mode. This is the way it should be and I hope it will continue to a successful conclusion.