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Joint Committee on Health díospóireacht -
Wednesday, 8 Dec 2021

Review of Scope and Structure of Health (Regulation of Termination of Pregnancy) Act: Engagement with Minister for Health

Apologies have been received from Deputy Gino Kenny, who will be substituted for by Deputy Bríd Smith. I welcome to the meeting the Minister for Health, Deputy Stephen Donnelly, who will brief the committee on the review of the scope and structure of the operation of the Health (Regulation of Termination of Pregnancy) Act 2018. I also welcome Ms Geraldine Luddy, principal officer at the Department of Health.

Before we hear the opening statement, I need to point out to witnesses that there is uncertainty as to whether parliamentary privilege will apply to evidence given from a location outside the parliamentary precincts of Leinster House. Therefore, if they are directed by me to cease giving evidence on a particular matter, they must respect that direction. I call on the Minister to make his opening remarks.

I thank my colleagues on the committee for their interest in this review which we can all agree is very important. The momentous referendum to repeal the eighth amendment marked a necessary and important shift in how Ireland responds to women’s healthcare. We will be looking at the review of the legislation today. As many here, and indeed those joining us remotely, will know, the Health (Regulation of Termination of Pregnancy) Act 2018 commenced on 1 January 2019. Under section 7 of the Act, a review of the operation of the legislation must be initiated within three years of the commencement of the Act.

As the Chairman said, I am joined today by Ms Geraldine Luddy from the Department of Health. She is the lead official on this work.

The main purpose of the Act of 2018 is to set out the law governing access to termination of pregnancy in Ireland. It permits terminations to be carried out in cases where there is a risk to the life or of serious harm to the health of the pregnant woman, including in an emergency; where there is a condition present which is likely to lead to the death of the foetus either before or within 28 days of birth; and without restriction up to 12 weeks of pregnancy. The review clause was included in the Act in order to facilitate monitoring of the impact, operation and effectiveness of the legislation in practice, as well as of the delivery of services. I am progressing the review this year in line with statutory and Government commitments. The terms of reference are published today and, as part of the first phase of the review, I am initiating a public consultation on the operation of the Act.

As I stated previously, an independent chair will be appointed to lead the review. I know from consultation with stakeholders that this is something that matters a great deal to many people with an interest in the operation of the Act and, therefore, in this review. Phase 1 of the review will capture information on the operation of the Act from the perspective of women who access the service, healthcare professionals who deliver the service and the public. There are three strands of work to phase 1.

Phase 2 of the review will be led by an independent chair who will assess the extent to which the objectives of the Act have been achieved, analysing in that regard the findings of the three strands of information from phase 1 on the operation of the Act. The chair will assess the extent to which the Act’s objectives have and have not been achieved and will make recommendations to address any barriers identified. The chair will also draw on the findings of other relevant peer-reviewed research and consult further with stakeholders and experts as necessary before providing conclusions and any recommendations next year.

It is important to say that, in the first instance, the review will focus on the operation of the legislation rather than on the policy underlying the Act. It will be informed by three streams from phase 1 to determine whether the operation of the legislation is appropriate and effective. Most important are women’s experiences of termination of pregnancy services and their views on how the system has operated since it commenced on 1 January 2019. That will be a critical source of information for the review. The review will draw on the large research study commissioned by the HSE sexual health and crisis pregnancy programme on unplanned pregnancy and abortion care, which is being led by Dr. Catherine Conlon.

The review will also gather the views of those involved in providing termination of pregnancy services in community and acute settings in across the country. We will commission independent qualitative research on the service provider perspective through the eTenders Government procurement process. That tender will issue today and the research will include input from hospitals and GP surgeries providing termination of pregnancy services, from individual medical practitioners, medical colleges, midwives and counsellors, as well as any other relevant service provider stakeholders who may be identified. I note that the list I have given there is not definitive. We are going to be as inclusive as possible in all three strands.

A public consultation will also be launched to provide members of the public, interest groups or any other interested parties an opportunity to submit their views for consideration in the review. The public consultation will be launched today on the Department of Health website.

Once the review has been completed by the chair, and we will issue a tender for this appointment in the coming days, a final report will be submitted to me, as Minister. I plan to submit the report to Government with a request that it is immediately referred to the Joint Committee on Health for discussion. I look forward to hearing and will welcome the committee’s views on the findings from the first phase, where a lot of information will be gathered, and from the second phase where we will get recommendations and analysis from the chair. It will then be for the Government and the health committee to discuss and identify how we might want to proceed.

Before I bring in the committee members, will the Minister clarify for the committee members and people listening to proceedings at home, his understanding or interpretation of this three-year review of the Act? Will he outline when he expects to appoint the independent chair and when the review will be up and running?

The review is up and running as of today. We are doing it in two phases. Phase 1 is very much broad consultation. It involves consultation with service users, services providers and broad public consultation. The review is being initiated today. Phase 2 will be for the chair to collate and analyse all that work and make recommendations as he or she sees fit to the Government which we will look through. We have also put out the tender for the chair today. It has to go through an official tendering process to have that person in situ.

Does the Minister know the timescale for appointing the individual?

Yes, I do. I want to appoint the chair as quickly as possible. In the context of putting the terms of reference together for the first piece, we did a consultation with Members of the Oireachtas, civil society and service providers. We did that to shape the review. When considering how long it will take, to some extent we will be led by the chair on this. It may be that there will be some complex issues that he or she will want to spend time and consult with various experts on. We have not put a timeline on when we will report back but that is to make sure that the chair has sufficient time to do the work he or she deems necessary.

I just wanted to find out when the Minister thinks the chair will be in place. He has said it will go through a tendering process or whatever. Will it be the end of this month, January or February? When will it be?

It will be early in the new year. What I hope to see happening is that the report is submitted in the summer or autumn of next year, but we want to give the chair some flexibility in that.

I now call the first questioner, Deputy Durkan.

I welcome the Minister to the committee. When does he expect the entire process to be completed?

I hope the entire process will be completed, and that we could submit something to Government and to the Joint Committee on Health, by next summer or autumn.

From the Minister's observations to date and the preliminary review, has he noticed whether the Act is operating in accordance with the original intentions?

I do not mean to be evasive but I want to be careful that I do not prejudge the work. We are about to hire an independent chair to provide us with the answer to that exact question. I have my views, obviously, that I am happy to share with the committee, if members would like, but I want to be very careful not to prejudge the piece of work we will be doing. I can certainly share some of the facts and figures we have been going through, and I might ask Ms Luddy to come in on this.

We have seen a significant reduction in the number of women travelling to the UK. For those of us who were involved in the advocacy and the Bill, one of the big questions we had was whether this would move provision of service from being mainly in the UK to mainly in Ireland. The number of women travelling versus the number of terminations provided here suggest that the objective has largely been achieved. However, there are still a number of women who are travelling and that, for example, would be one of the matters that would be covered in this review. Why are they travelling? Why do they feel the need to travel? Is the legislation operating as well as it should? Questions will be raised around the geographic coverage because it is the case that not all maternity hospitals are providing the service. A relatively small percentage of GPs are providing the service and I know there are geographic difficulties, for example.

I will get into any detail the Deputy would like, but without trying to prejudge it. In aggregate, on the main objectives we were trying to achieve, we can certainly point to a huge reduction in the number of women leaving the country. That objective, to a greater or lesser extent, has been achieved. Have we achieved broad geographic coverage?

No, I do not believe we have. In parallel, it can be covered in the review and some of the public consultation will cover this. As the Deputy will be aware, I am bringing through legislation as a priority on safe access zones. It was not covered in the legislation but it was one of the promises made as part of the service provision.

There could be a problem. For example, the legislation was passed in good faith, with the widest possible consultation of the Irish people. The legislation was published in advance of a referendum. It carried considerable weight. Does the Minister expect, as a result of this review or by whatever means, the legislation will be applied universally, across the country, and that there will be no exceptions? I know there is the provision of a possible opt-out by certain practitioners and so on, which is fine, but women the length and breadth of the country are entitled to the services purporting to be provided under the Act. Is he satisfied that can be achieved in the shortest possible time?

As referred to by the Deputy, I believe section 22 of the Act provides for conscientious objection, and that is fully covered. I am not currently satisfied with the level of provision geographically across the country. From my perspective, it is a part of our healthcare system that should be as easily accessible as possible. We have quite rightly provided for conscientious objection given the unique nature of this service. I do not believe we have achieved the level of geographic coverage and ease of access that is required. I believe it is one of the issues that will come up. It has come up in the consultation I have done in preparation for this review. It has come up with civil society groups, Members of the Oireachtas and the clinicians as well. This is exactly the kind of issue that we will be looking to the review in terms of the best way of achieving broader coverage.

How is my time, Chairman?

Deputy Cullinane is next.

Sorry, Deputy Durkan has another four minutes.

I am just testing you.

I thought you were finishing up. It was very unlike you - finishing early.

I will take his four minutes.

The Minister's reply alarms me to the effect that no matter how good the legislation is or how wide the consultation was and whatever the intentions were, for some unknown reason by virtue of numerous ways and means, it has been possible to frustrate the objectives of the legislation. That is not acceptable. I think the Minister would agree. Is that acceptable, to his mind?

I hope my response would not alarm the Deputy. We are in total agreement. I apologise if I was not clear. To be absolutely clear, I do not believe the level of coverage required has been achieved. This is one of the many reasons we need this review. Again, I cannot pre-empt the review, but I will be surprised if it does not address this exact issue.

Does the Minister believe, following this consultation period and what happens thereafter, the objectives of the Act can be achieved in full without intermittent operation?

Is it possible and intended to provide, throughout the regions, the service that is being denied women in some cases?

Do we know from the information already available to us and the Minister, in respect of the cases of women who travelled to the UK, their reasons for travelling? Was it because the services anticipated in the Act were not available, were restricted or whatever?

That is exactly what phase 1 of the review will do. It will give us granular answers to that from the women themselves, from the service providers and from public consultation.

Is it unsatisfactory from the point of view of the legislated position that three years after its operation there is still a serious intermittency in its application? It would appear, if that is the case, some people have decided that this does not apply to them and they do not have to operate the legislation. Will they operate subsequent legislation, and has that been tested?

I thank the Deputy. Was Ms Luddy looking to come in there?

Ms Geraldine Luddy

Sorry, I was to respond to the question the Deputy had in regard to travel to the UK. From the information we have from the clinics in the UK, 375 women travelled in 2020, I suppose, for different reasons but predominantly as women who had a diagnosis of a foetal anomaly that was not fatal and also women who were over the 12 weeks. Under the Act, there is unrestricted access to terminations under 12 weeks but over that there has to be clinical reason. That is to give the Deputy some sense of what we know from the figures there.

To add to what the Minister said on the operation of the Act as we know it now, the clinical lead for termination of pregnancy was appointed by the HSE at the end of 2019. She is a consultant obstetrician. She has responsibility for the delivery of the service, both in the community and in the hospitals.

The HSE knows that the coverage is not adequate and that the geographical spread needs to be improved. At present, we have ten of the 19 hospitals offering a full service. All of them offer some service of termination but in the case of a full service, we have ten. We need to have this geographical spread that the service is in every county.

This is my last question, Chairman.

You have run out of time. I ask you to contribute again later.

Can I finish on this one? I will not contribute again. Why was not an earlier intervention or review called given that the Act had then been seen to be ineffective in its spread across the country?

Ms Geraldine Luddy

In fact, there were arrangements in place. The HSE put arrangements in place to go out to the hospitals that were not performing and that were not participating and to have meetings in regard to that but Covid hit in March 2020 and those appointments were cancelled. It is my understanding that has been reinitiated now and they are hoping to bring more hospitals on board for the full range of service.

I welcome the Minister. First of all, it has to be said there is not a huge amount of detail in the Minister's opening statement. It is disappointing. We have not learned anything new in terms of detail from what the Minister published nine months ago on the three strands of this review.

If I can get straight into it, the Minister said the terms of reference are published today. I just checked the HSE website. It is still not up on the HSE website, as far as I can see. Has it been published yet?

In terms of the opening statement, unfortunately, I only get five minutes. I guess we have the next three hours to get into all of the detail. We can certainly provide the committee with a detailed note.

The terms of reference should be going up on the Department of Health website. I might ask Ms Luddy if that has been done yet. It might have been that they were waiting until after the committee to do that.

It has not gone up yet. Would it not have been better for the terms of reference to be published earlier so that when we met the Minister we would be informed of what the terms of reference were? We are meeting today blind. We can have a discussion but we do not have the terms of reference. They are not up on the Department's website and yet we are having a discussion today. The terms of reference will be crucial to the effectiveness of the operation and it is a mistake that the Minister has not published the terms of reference in advance of the committee meeting this morning.

I cannot disagree with that. My understanding was that those terms were to be published this morning. I can share them with the Deputy now, if he would like.

This is my time. If the other members agree, the time could be stopped and the Minister could share them with us. I do not want to eat into my limited ten minutes. I will leave that to the other members and the Chair.

On a point of order, I wonder could the terms of reference be circulated at this point.

It would be appropriate to give the Minister five minutes to outline them and that it would not eat into Deputy Cullinane's time.

I will allow the Minister five minutes. It would have been much more sensible if we had a copy of them and we could circulate them directly to the members.

To be honest, it is bad practice.

Can we do both, Chair?

Is it possible to get a copy of them sent to us now so that we can circulate them to members? I will allow the Minister five minutes to outline them as well.

Is it possible the officials could send that on?

This information should have been with the committee. It is not satisfactory that this information has not been shared with the committee at this point.

I am glad the Minister acknowledges it. It is terrible.

Is the Minister ready to give us an overview of the terms of reference?

I thank the Chair. As I said, there are two phases to this. With the Chairman's permission or agreement, I will give the committee the detail on both phase 1 and phase 2 and then talk briefly to the next steps after the review. Is that agreeable?

That is agreeable.

Phase 1 is collecting information and evidence on the operation of the Act. As I was saying, there are three elements to this. Element 1 is a public consultation launched today. The public consultation will provide organisations, stakeholders, advocacy groups working in the area and, indeed, all other interested parties the opportunity to inform the review of the operation of the legislation. Information on the consultation should at this point be on the Department of Health's website - apologies if it is not. It will be advertised in newspapers and through digital advertising in the coming weeks.

The second strand of phase 1 is service users - a detailed examination of the views and the experiences of women and their partners. This is arguably the most important part of the first phase. Research to inform this strand from service users is being carried out, as I was saying, by Dr. Catherine Conlon. Dr. Conlon is progressing a large qualitative study to investigate unplanned pregnancy and abortion care. The study was commissioned by the HSE sexual health and crisis pregnancy programme. Our intention is that it will generate an in-depth understanding of the experiences of women who have accessed abortion services since the commencement of the Act. Part of that, which I have discussed with Members of the Oireachtas previously in preparing the review, we all agreed is important is that the voices of women are heard and form part of this review.

The third strand of the first phase of the consultation is a tender for service provider research. Today, a request for tender to carry out the research into the views of service providers is being published on eTenders. The following are the objectives of this strand. The first is to examine the arrangements put in place to implement the Act, including, but not confined to, service provision in the community setting and service provision in the acute hospital setting. The second is to gather and analysis data from service provider stakeholders to describe their experiences and observations on the operation of the service under the Act in order to provide a comprehensive description of providing services under the Act. The third is to assess the impacts of the Act's operation on access to termination of pregnancy services in the country taking into account the level of service provision before commencement of the Act, figures on Irish women - or women in Ireland rather - accessing termination in this country and in other jurisdictions, service provision in Ireland in comparison with service provision in other countries in Europe and beyond, and any other factors that are relevant.

The fourth objective is to identify difficulties in providing services associated with provision in the Act that have expressed by stakeholders and, critically, to highlight possible solutions to address any such difficulty, for example, approaches taken in other countries as appropriate. The next objective is to assess from the service provision perspective the extent to which the Act's objectives have not been achieved and to make recommendations to address barriers. This, for example, would go to precisely the points Deputy Durkan has just raised. The final objective is to explore and weigh the evidence for and against any proposed change to the Act from the service provider's perspective, to provide conclusions based on the research findings and to draft suggestions and appropriate follow-up measures. This is the first phase.

The second phase is the appointment of the independent chair who will assess the extent to which the objectives of the Act have been achieved. The chair will analyse in this regard the findings of the three strands of information and the operation of the Act from phase 1, which I have just covered. As well as this, the chair will draw on findings of other relevant peer-reviewed research and will consult further with stakeholders as necessary before providing conclusions and recommendations to me next year.

The chair will be appointed following a procurement process. I have asked the officials to ensure a tender is issued in the next two weeks. It had been my intent to appoint a chair directly but I was informed a procurement process is necessary for the work. This is unfortunate as we had identified a number of excellent candidates and I would much rather be announcing a chair today.

There will be some overlap with the terms of reference from phase 1 and the terms of reference for the chair, as the committee would expect. I will read through them. The terms of reference for the independent chair are to: assess the extent to which the objectives of the Act have been achieved, analysing in this regard the findings and outcomes of the three strands of information from phase 1; assess the extent to which the Act's objectives have not been achieved and to make recommendations to address the barriers if any are uncovered; assess the impact of the Act's operation on access to termination services in the country, taking into account the level of service provision before commencement of the Act, figures on women in Ireland accessing terminations in Ireland and other jurisdictions, and any other factors that may be relevant; examine the arrangements put in place to implement the Act including but not confined to service provision in the community setting and service provision in the acute hospital setting; and provide a final review report with recommendations as appropriate.

I can also go into the methodology if it would be useful to members.

It would be more useful if we could get a copy of the terms of reference. Perhaps one of the officials listening in could send it directly. We can move on with the rest of the meeting. We still have not received them.

It might be useful if the Minister did outline the methodology. The process of selecting a chair is very important to the entire process. Perhaps the Minister could outline it now or at a later stage. It would reduce the number of questions later.

I am conscious that the Minister has gone well over time and that it would cut into the time of the members. I am open to what members want. Do people want to hear the terms of reference?

More than the methodology, I would like to hear the criteria that would apply to the selection of the chair. Are they set down in the terms of reference?

Does the Minister want to give us the criteria?

The methodology I was speaking about-----

-----is that which the chair will conduct. If the Deputy is looking for specific selection criteria they will be laid out in the e-tender process. Do we want to go into a normal question and answer session? This would seem to be part of a normal session.

The criteria on the expertise of the individual are what are important. The individual should have expertise in sexual and reproductive health and a background in human rights. This is what many of the organisations have been looking for. This is the question we would like answered before we proceed.

The questions we are dealing with now are exactly the point of the committee session. Should we not just go into normal question and answers at this point? I am happy to do whatever the Chair wants.

I am happy to proceed.

The questions being asked now seem to be exactly the substance of what the meeting is for. Obviously, I am happy to do it whatever way the committee wants.

Does Deputy Cullinane want to ask the question?

I will take up the point the Minister made on the criteria. I know from the submissions the committee received from the Abortion Rights Campaign, ARC, the National Women's Council of Ireland and many more organisations that the role of the chair will be very important. It is important that the chair would have expertise in sexual and reproductive health and in human rights. Will this be part of the criteria?

I thank the Deputy I will ask Ms Luddy to come in after me. The short answer is "Yes". We had several sessions. We had sessions with civil society, service providers and an Oireachtas group. Various views were given. Some were of the view that the most important aspect is a human rights-based approach. Others were of the view that clinical expertise is very important. Where I came down on this was pretty much exactly what the Deputy has articulated. There has to be legal expertise because it is a review of the operation of an Act. It should also be someone with a background in a rights-based approach to sexual and reproductive rights. I will ask Ms Luddy if she wants to add anything to this.

Ms Geraldine Luddy

I will not take up any more time. That is exactly it. It would be somebody with a legal background or certainly a knowledge of the law and a medical and human rights approach.

It is important that the person not only has a legal background but also has a background in human rights and a medical background with a specialty, I hope, in sexual and reproductive health.

With regard to the various phases, the Minister said that phase 1 will be initiated now. What is the timeframe for this phase? Why is the independent chair not in place for phase 1? It seems the independent chair will kick in in phase 2. Is this correct?

Yes, this is correct. To be honest the independent chair is not really required for phase 1. Phase 1 is a very broad consultation piece. Research is being conducted by the HSE. There is a public consultation that will be managed by the Department. It involves service users, service providers and public consultation. The chair will then look through all of this information and assess it and begin to go through the work.

I will get to phase 2 in a second. What is the estimated timeframe for phase 1?

I will ask Ms Luddy to come in on this.

Ms Geraldine Luddy

The public consultation submissions have to be in by 1 April 2022. The research tender went out this morning. It is likely to take a number of months to complete because we will expect the person to do a piece of qualitative work with the service providers. It is likely that this will be completed in the summer, in May approximately.

Will phase 2 kick in as phase 1 is happening or does it have to wait for phase 1 to conclude?

Ms Geraldine Luddy

Phase 1 will kick in today and phase 2 will kick in as soon as the chair is appointed.

The Deputy's question is whether there will be an overlap and whether a chair will be in situ while phase 1 is still going on so he or she can help inform it. The answer is "Yes".

My next question is on phase 2. This is an important phase. The Minister stated that the review will in the first instance will focus on the operation of the legislation rather than on the policy underlying the Act. Does this mean that at no point will the review look at the policy underlying the Act?

It means the policy will be looked at by the independent chair in so far as it is relevant to the operation of the Act.

I want to go through a number of issues to get to the nub of this. ARC, the National Women's Council of Ireland and others are seeking a discussion on the repeal of the mandatory three-day waiting period. Would this be deemed to be outside the scope of the review?

It would be deemed to be inside the scope of the review if it is causing operational difficulties. However, we need to be very clear that this is not a review of the policy. The policy is agreed. It is a review of the operation of the policy. If the operation of the policy uncovers issues that require recommendations on the policy, that is in scope. However, we are not reopening the question of-----

I understand the point. It sounds like a bit of a "Yes Minister" answer and I understand the distinction the Minister is making. Extended time to access abortion is an issue that has been raised by many organisations. In looking at a review process which must be independent and must put women and people who are seeking to avail of the service front and centre, if issues like repeal of the mandatory waiting period and the extended time to access abortion and other issues are important to them and could limit their access, it would be problematic if in the course of the review it then materialised that those issues were outside the scope of the review. That could cause problems for us all down the road. We need much more clarity on that.

Let me try to be as clear as possible. Everything that is involved in the operation of this Act is in scope. However, the starting position is not a policy review. The starting position is an operational review. The waiting periods, for example, have been raised with me by many people. Some people think they should be gone and some people think they should be longer. The review is not about examining that as a policy question. That is a decision made by the Oireachtas. However, the review will look at the operational implications of that waiting period.

Okay, I get that.

My last two questions relate to conscientious objection and abortions in hospital settings. How many of the maternity hospitals are not providing abortion services?

It is a question of full services versus partial services. I might ask Ms Luddy to give a detailed response on that.

Ms Geraldine Luddy

Ten are providing full service and 19 are providing part service. In other words, ten of the hospitals are providing the full service. In nine of them they are not providing services under section 12, which is the 12-week unrestricted.

We should receive a detailed note on precisely what each of the maternity hospitals are providing and also on what are deemed partial services.

I return to the issue of conscientious objection, which the Minister raised, and geographical barriers to access. I understand the law is very clear here. Individuals may object conscientiously; institutions may not. That also needs to be part of the review process. We also need to look at what each of the maternity hospitals is providing and not providing. We cannot have institutions or hospitals not providing the service because of conscientious objection as an organisation, which is outside the law if I understand it right. Will that be examined?

Yes, most definitely. I am open to correction by the lawyers but my understanding is the same as the Deputy's. We discussed this at great length during the passage of the Bill. My recollection is that it was absolutely clear that, of course, individuals may object but no institution may.

The Minister might send a note.

I go back to the previous issue I raised about the operation of the Act. The Minister has explained the main purpose of the review is to look at the operation of the Act as opposed to the policy which underpins it. The submission from the Abortion Rights Campaign states that the review should look at the substance of the law, the associated guidelines and any need for reform as well as at the operation of the current Act. Will what that group is seeking be possible within the terms of reference of the review?

I would need to look at the exact contents of its statement. I have met representatives of groups who are asking that the policy, itself, be reviewed as part of this. One of the ones they use is exactly this. It has come up several times. Several groups want the Act to be more liberal. For example, they want the three-day waiting period taken away as a matter of policy regardless of whether it is being operated correctly. They have a very coherent view which they have had right from the start for many years that it should not be there. The review is not coming at this from that perspective. It is not making any judgment as to whether it is right or wrong to have that three-day waiting period. A policy judgment, which is a matter for the Oireachtas, is out of scope.

If the review demonstrated that that three-day waiting period caused difficulties for women, I presume that would be deemed to be suitable to be part of the review.

Absolutely. It is the entire operation of the Act. I will give one quick example on exactly this point. During the Covid pandemic, an operational decision was taken that the consultation between a woman and her GP could be remote, whereas when we were passing this Act it was very much part of the discussion that they should meet up. I think we spent a lot of time discussing what was meant by the word "examination", for example. During the Covid pandemic, that was relaxed. I have no doubt that post the Covid pandemic, whenever that may be, one of the things to be looked at will be whether a remote consultation, which is deemed to be appropriate now, should stay. That is an example of how the operational recommendations could change.

As the Minister outlined in his opening statement, this was a commitment in the programme for Government. That is the first box ticked. It was to be done within three years. That is the second box ticked. Having an independent chair is another box ticked. The public consultation is another box ticked. The outreach to the stakeholders, the service users and the service providers is about as comprehensive as we could get.

I just looked at the website again. It is still not on the website and we have still not received the email. If the Minister is responsible for posting to the Department's website, the country is in a serious pickle. The Department has a highly paid Secretary General whose job is to administer this - more highly paid than any other civil servant in the country. The Minister needs to have a stern conversation when he returns to the plaza. It is not good enough. I hold the Minister responsible for it politically. Everyone will hold him responsible for it. As I said, if a Minister is responsible for what goes on a departmental website, we are in a ridiculous situation. I would go back to the Department and say it is not good enough on their part. It is now 10.20 a.m. and it was raised at 9.35 a.m. I know it takes time for these to go up but that is my view on that.

I believe the Minister has answered all the questions that have been asked on the matter. I am very satisfied that the process he is going through will be as comprehensive, open and inclusive as possible. I have a question on the recruitment of a chair. The Minister had hoped to appoint an independent chair. He said some very good names had come across his desk or had been identified for the position. Is it correct that this needs to go to an eTenders procurement? What is the tender process? The Taoiseach has asked the Attorney General to review the entire planning law system in the country and has given him and his office the required resources to do it and a timeline in which to report. Very significant resources have been allocated for that purpose. What is prohibiting the Minister from doing this. This is the only issue I see with tenders.

I am not being trite but, for example, with tenders for school buildings it is not necessarily the best builder or contractor who gets the job. It is the one who comes in with the lowest price. What criteria are there on the tendering position? I am a bit flummoxed, as I am sure the Minister is. He has stated he would like to have been in a position to appoint someone. I would have trusted him politically with that appointment. Will he give more detail on that?

I thank the Deputy. When I have finished, I will ask Ms Luddy to come in on exactly the e-tendering process that will be used. In preparing for the review, I consulted with a wide group of people, including Oireachtas Members, service providers and civil society. What came back strongly across the board was an ask for an independent chair. Often the advice I have is that if the operation of legislation is being looked at, typically the line Department would take that on and it would be considered a normal part of its job. Departments have the competency required to investigate legislation. However, based on the feedback I got across the board from Oireachtas Members, including members of this committee, civil society and service providers seeking an independent chair and given the unique nature and context of this Act, I took a decision to do that.

I then received advice that, due to the costs involved, a public procurement process is required. When the Attorney General is asked to do a piece of work, he and his staff are public servants and, therefore, do it in the normal course of work. Here we are hiring someone from outside to do the work. Given the expected quantum of money involved, the advice I got was that a tendering process was required. I have seen some excellent candidates who tick the boxes in the meaningful way we have talked about in terms of legal expertise and a rights-based approach to the issue.

On the technicalities of what is coming next, I ask Ms Luddy to give an update.

Ms Geraldine Luddy

As the Minister said, we need to go out to tender because of the amount of public money that will be involved in paying-----

How much public money is involved?

Ms Geraldine Luddy

We do not have a final figure on it but it could be up to €100,000 so we need to go out to tender. We will put together the tender. We need to go to national tender because it is over €25,000. We will do that as soon as possible and hopefully appoint the chair early in January.

Regarding the names the Minister was alerted to and whom he thought could do a job such as this, does he think some of them are interested in this or are they precluded from it by virtue of their professional or employment status or whatever?

It will go up today but, from what I have seen, I do not foresee any issues.

The Minister does not see any issues with them being precluded, so it would be open for them to apply and we may get the kind of chair the Minister had in mind but who will come through a neutral process.

Who assesses the tenders? The advertisement goes out and the expressions of interest come in. Who adjudicates on the tenders?

Typically, the Department comes to me with a shortlist of recommendations from which I will choose.

I inform the Minister and Deputy Lahart that Deputies have received the terms of reference. I thank whoever responded to that.

I thank the Minister for that.

I thank and welcome the Minister and Ms Luddy. We have been looking for this session to take place for some months and it is the eleventh hour in terms of the timescale within which the Minister is legally required to arrange the review. We are up against it and in the last three or four weeks before the legal deadline. The preparation for this meeting in terms of the information provided has been unsatisfactory and getting the terms of reference an hour into the meeting makes if difficult to consider them. Some members had to ask their questions before we got them. I am unhappy with the way the Department has handled this. It ties our hands very much.

It is a strange way to go about a review where the terms of reference are determined, the first phase of review is under way and the chair of the review is only being appointed to deal with the second phase. Generally in a well-arranged review, a chair would be identified and consulted on the terms of reference, scope and phasing of the review. It is a mistake that so many key decisions were taken by the Minister or somebody unknown in the Department. There is the potential to tie the hands of the review and the independent chair. That is poor practice. The chair should have been the first person appointed. I expected the Minister to announce the name of the chair today and I think most people expected that. It is hard to understand why he is delaying that until a later phase in the review.

On the appointment of the chair, it is important that person be totally independent and have relevant experience in sexual and reproductive health and a background in human rights. The Minister has said he agrees with that approach. Will he provide us with the criteria that will apply in terms of the necessary qualities, experience and expertise of that person, which, presumably, have been set out in the invitation to tender?

The other important point is who will be on the selection panel to select the person. All of these stages are key and essential to know about in terms of the likely outcome of the review and to ensure it is objective. Will the Minister provide us with details of the selection panel?

It is standard practice in a good review process that an independent chair is appointed and there is an advisory panel to support him or her. It is a long and wide-ranging review. Who will advise the independent chair? Has the Minister given consideration to the appointment of an advisory panel?

I thank the Deputy. I share her frustration about this morning. I do not believe this is how it should have worked. The committee should have had the terms of reference last night and the intention was that all the relevant information would be on the Department's website before this meeting. I accept the committee's frustration on that point.

The terms of reference were informed by stakeholder engagement. If memory serves, the Deputy was on the Oireachtas briefing. We had a briefing with quite a wide range of civil society groups and service providers. The terms of reference, including the independent chair, reflect the engagement I and the Department did in trying to set this up.

Regarding why the appointment of a chair of the review has been delayed, I agree with the Deputy that I would much prefer to have been announcing the chair this morning but we have e-tendering legal requirements we have to go through due to the quantum of money involved. However, it is not my intention the chair would only be appointed at the end of phase 1. Rather it is my intention the chair would be appointed relatively early during phase 1 and would be able to inform phase 1. There is also scope for the chair, in consultation with me, to adjust the terms of reference. We can have a conversation with the chair, for example, if the chair believes things are being missed.

With regard to access to expertise, absolutely, this has been raised many times. While there is not a standing advisory panel, we will make sure the chair has access to any expertise he or she deems necessary. We want that to be led by the chair.

On the Deputy’s question on the selection panel, I will ask Ms Luddy to give a description of exactly the process involved now through to where I get recommendations for the chair.

Ms Geraldine Luddy

To return to the Deputy's point on the appointment of the chair, as the Minister said, he intended to be in a position to announce the chair today and he has done considerable work in that regard, but an issue arose when we realised the sums of money involved would be more considerable. I am explaining the matter with respect to the Minister's position here this morning. Therefore, this appointment has to go out to tender. We will be drafting a tender process for the independent chair. The criteria will take account of the issues that have already been raised, namely, medical, human rights, sexual reproductive rights approach and somebody with a legal background. We will also be looking for somebody who has the skills to undertake the work and who will be available to undertake the work in that short timeframe.

I advise Ms Luddy that she is sitting in the dark. There is a window behind her and all we can see of her is a shadow.

Ms Geraldine Luddy

I am sorry. It is like I am in witness protection here. I will see if I can move.

Yes, try to move the camera.

I ask the Minister to provide us with the criteria that would apply to the chair and details of the selection panel. I ask that he would provide the committee with that information as soon as possible. It is very much putting the cart before the horse to decide on the terms of reference, the phasing and all of that before he appoints the chair, and that is unsatisfactory.

I strongly urge the Minister to change his mind on having an advisory panel and agree to appoint an advisory panel to provide support rather than the chair having to go looking for advice. There should be an experienced advisory panel there to support the chair.

My next point relates to what the Minister said in his opening statement, namely, that the review will focus on the operation of the legislation rather than on the policy underlining the Act. While running through the terms of reference for us, he said that when it comes to service providers, there would be an exploration of any changes to the Act from service providers, and I welcome that. Does the same apply to service users? If service users identify problems with the substance of the Act, will those recommendations be taken on board? When it comes to a review, the standard practice is that the operation is reviewed and any policy changes recommended that arise on foot of the review. Is the Minister open to that? If policy changes come through the review process, and I expect they would, will he give an undertaking he will take those on board and arrange for amendment of the legislation?

On the Deputy's first question, namely, will the views of service users also be taken on board in terms of potential changes to policy and of the operation of and potential amendments to the legislation, yes, they will. That applies to service providers, the public consultation process and service users. My view is that the most important group of people in this process are the service users, the women themselves. Obviously, the service providers will have an operational or technical input that is very important but, as I said, the most important group are the women themselves. If we get feedback that suggests the operation of it needs to be changed, that regulation or policy needs to be changed or that the legislation needs to be changed, absolutely, that is in scope. I could see, for example, an important role for the health committee in discussing these as well and making recommendations in terms or policy or legislative change.

The Minister is giving a commitment then. It is strange he just referenced possible changes to the Act, as recommended by service providers, but he is giving a commitment that if there are recommendations for changes to the legislation from service users, he will address those, take them on board and commit to amending the legislation.

I would go further and state that I think the single most important group we are going to listen to are the women themselves.

This is the Deputy’s last question as her time is up.

-----that possible policy changes arising from the review are not referenced in the terms reference?

That is a good question. I can certainly take a look at that. I can give the Deputy an absolute undertaking that the entire point of this review is to listen to the women themselves, the service providers and the public with a view to seeing what changes may be required.

Why did the Minister need to point out the opposite in his opening statement, clarifying that this was about the operation rather than the policy?

It is about the operation. Obviously, recommendations of changes to policy can be put forward but the starting position is a review of the operation.

It would have been better if we could have had a chance to discuss the terms of reference first.

On a point of information, the Department of Health website is updated reflecting the launch of this process, which is welcome.

I thank the Deputy for that. The next speaker is Deputy Bríd Smith.

I have a few questions, the first of which relates to the timeline involved. There is much anxiety that the timeline for the review is poor because the Act states a review shall take place within three years. Therefore, on 1 January 2022 we should have been looking at the review of it. Given that will not be taken place for some time, starting with the process today, advertising for the chair and publishing the terms of reference, the Minister has said it could be April before the chair is appointed and it could be the summer or the autumn before the results of phase 1 are collated and known to us. We need clarity on the timeline. It is all right for us as politicians to sit wondering about these things but in the meantime many anxious women are waiting for changes, support and recognition of the difficulties they face, and the same applies to service providers. To say the least, this is very sloppy but the timeline is very worrying. Perhaps the Minister or Ms Luddy could come back to us with a definite parameter of when we will have publication of the review of the Health (Regulation of the Termination of Pregnancy) Act, the finished product. We should not say it could be the summer or the autumn because then we are saying it could be June or October, given that, technically, October is in the autumn.

That is way too long for people to have to wait.

I wish to return to the issue of the appointment of the chairperson. It bothers me that there is a need to e-tender because of the costs involved. For people on the receiving end of the restrictions of this legislation, the human experience and the medical experience and how those can be improved are what really matter. The Minister stated that the costs involved could be up to €100,000. I cannot figure out how he has reached that conclusion or decided that those are the criteria on which he has to tender out. I am very worried that his desire to appoint a chairperson has been interfered with on the basis of the costs. How are those costs configured or how do they arise as an issue?

An issue I have been asked to raise by all of the groups is that of the appointment an expert panel. Deputy Shortall touched on this issue. Would it not have made the whole thing more manageable if the Minister appointed a chairperson and an expert panel with all the necessary expertise on reproductive rights, human rights and the provision of services so that there are experts feeding in to the chairperson rather than the chairperson having to be an amazing person who is an expert on all of these areas? Could that decision be revisited? By revisiting it, we would have a better and broader review of the legislation and its operation and we would also have a fairer process in terms of knowing that what is coming out of it will be genuinely dealt with. To appoint only one person to deal with this is quite cumbersome and it confers on that person a significant number of powers and rights over and above what would be the case if there were to be a group of experts. It has not yet been mentioned, but the WHO guidelines were part of what we considered in the lead-up to the legislation. The WHO guidelines and the international experience have to be taken into consideration, so that is another talent this one expert chairperson will need to have, as well as medical, legal and other expertise.

The question of who could be appointed is very open to interpretation. The explanation given by the Minister in respect of why his choices in the context of appointing a chairperson were prevented from being implemented is a bit weak. I ask him to go over that again, please.

I thank the Deputy for her questions. In terms of the timeline, to be clear, the requirement in the Act is that the review is commenced within three years. It is not required to be concluded within three years; it is required to be commenced in that timeframe. As to whether it will be April before a chairperson is appointed, it will not. A chairperson will be appointed early in the new year and will be involved as quickly as possible in phase 1 as well.

We are going out to tender because the advice I have from the Department is that there is a legal requirement to do so, given the likely quantum of money involved.

The Deputy asked a really important question regarding whether summer or autumn will be too long to wait. Obviously, there are people waiting for this. We have to try to strike a balance. The report has to be meaningful and my view is that for that to happen the consultation must be meaningful and comprehensive. We need to consult widely with the public and service providers and, most important, with the women themselves. Doing that in a meaningful manner takes time. We then need to leave time for the chairperson to absorb all that information and make recommendations. We are trying to find a balance to make sure there is sufficient time for this to a very meaningful review. Our estimate is summer or autumn.

As regards expertise, I fully agree that the chairperson, whoever he or she is, will not have all the expertise required. I doubt anybody has all the expertise that is required. As such, it is my intention that the chairperson will have access to the expertise he or she deems necessary. Should we call it an advisory panel or an expert panel? I have no issue with that at all. The most important thing is that no one is expecting this one person to be able to be across all of these complex issues. Will we have a multidisciplinary approach? We will. Will the chairperson have access to the expertise he or she deems required? Absolutely, he or she will.

I ask the Chair to bear with me for another few questions. The issue of whether a chairperson can have access to the expertise or, alternatively, an expert panel is appointed and we know who they are, their background and contribution to this process matters to service providers and users. We need to review that and consider the appointment of an expert panel. I am totally dissatisfied with e-tendering for a chairperson. We should know today who that chairperson is. My office has been searching for published criteria or an e-tender for the position of chairperson. The Minister stated that is being published today. Perhaps the civil servants who are present could circulate that information as well as the documents members have just received.

There are issues the legislation has not dealt with that are really important, such as safe zones. One of the chill factors on doctors providing the services is that of protests and intimidation at doctors' clinics or homes or affecting their families, or, indeed, intimidation of users of the service. The issue of safe access zones needs to be dealt with. It has not been mentioned.

Similarly, the issue of extending the provision of access to free contraception has not been mentioned. It is fine that it is coming in for women up to the age of 25, but women do not stop being reproductive or sexually active at the age of 25. They may still be very poor and unable to afford the type of contraception they need. That needs to be considered.

One of the key recommendations of the committee that is not in the legislation is the consideration of non-ethos-based sex education. There is no sign of that coming from the State. It is clearly connected with the question of crisis pregnancy and how we deal with the entire sector.

I ask the Minister to address my questions on safe zones, non-ethos-based sex education and the extension of the provision of free contraception to cohorts over the age of 25.

I thank the Deputy. As regards the e-tender criteria, I will ask the Department to circulate those criteria. I fully share the frustration in this regard. There is nothing I would like more than to be able to just appoint the chairperson and get on with the work, so I share the frustration. However, I am advised that it is a legal requirement for public procurement and, as such, all our hands are tied, unfortunately.

The Deputy can correct me if I am wrong but, from memory, three policy areas were discussed that were due to happen as part of the Act. She mentioned safe zones, free contraception and sex education. Two of them fall within my remit and one falls within the remit of the Minister for Education. I can assure the Deputy that the Minister for Education, Deputy Foley, is considering that issue and taking it very seriously. The Deputy will be aware that I am acting on both the issues that fall within my remit. Legislation in respect of safe access zones has been tabled for priority drafting. That is happening at the moment. The heads of Bill are being drafted by the Department. There is an ongoing conversation with the Office of the Attorney General. It is my intention to produce the heads of Bill as early as possible, get Government agreement on that, engage with the Committee on Health and legislate to that effect. I will revert later to the committee with timelines in that regard. It is a priority.

Free contraception has been spoken about for some time. As the Deputy will be aware, I have allocated a significant sum to next year's budget to bring this in. It is historic; this has not happened before. We are starting with certain age groups. The advice we have received, and it is what we have seen other countries do, is to start with particular age groups. It is my intention to phase it for universal access in the coming years, as we increase the budget for it.

On a point of information, the legislation states: “The Minister shall, not later than 3 years after the commencement of this section, carry out a review of the operation of this Act.” Arguably, the review should have been carried out within that three-year period. It is not that the Minister has to commence the review in that time but rather that the review should have been carried out. That is an important clarification on the wording of the legislation.

I hear that. The legal advice I have suggests the legal interpretation is that we must have initiated an review. Nevertheless, I take the points of the committee in regard to the wording.

I asked the question at the start of the meeting to get some clarity on that.

I very much welcome that the terms of reference for the review are now available. My first question relates to fatal foetal abnormality. One of the reports we have received sets out that half of the foetal medicine specialists have expressed uncertainty regarding a diagnosis being deemed fatal, given it depends on an individual's definition of what is fatal. Will the review examine that issue?

The review will take some time and it might be this time next year before we have finality in respect of it. If, during the course of the review, it is identified that an interpretation in one hospital is totally different from that in another hospital, will any action be taken in the intervening period before the final review is published and before whatever action the Department will take after it has been published? I raise this question for a specific reason. What is the Minister's view on it?

I am not trying to be unhelpful, but if I understand the question correctly, it is almost asking what the recommendation is going to be in this area the Deputy highlighted. Every operational aspect of the Act can be covered, so anything that is raised by the public, service users or service providers will be examined. The question of what is included and what needs to be done will, obviously, be a matter for the review itself.

I raise the issue because I am aware of two cases where different interpretations were given in maternity units. In one case, the person had booked airline tickets to travel to the UK for a termination and was persuaded to try a second maternity unit in Ireland, which adopted a different approach and provided the termination. In fact, the second maternity unit was correct in the action it took. Should that person have gone through that process of dealing with two different maternity units? I am not talking about small units but two major units where there was a significant difference in the interpretation of fatal foetal abnormality. Where a problem has been identified, will we have to wait for the full 12 months before something is done to deal with that issue?

No, not necessarily. If we can identify inconsistencies now, they should be acted on immediately. I cannot speak to the case the Deputy referenced, but if he wants to provide me with any details, they can be acted on immediately. The level of service provision and the standards provided should be consistent throughout the country. If there are issues we are aware of as legislators, we do not need to wait for a report. I can certainly raise the issue with the HSE and ask that it be looked at regardless.

The next issue I raise relates to smaller maternity units. I think there are 19 maternity units in the country. The smaller units would not have the same number of consultants as the larger ones. In fact, some of them have only three or four. Their argument, in the context of trying to provide services, relates to not having sufficient support. Over the next 12 months, even before we receive the review, will there be engagement with the smaller units to determine what supports they require to provide the service set out in the legislation?

Yes. Certainly, if there are capacity issues with termination of pregnancy services or any other services, be it in maternity or anything else where there are capacity issues, they absolutely should be addressed. We do not need to wait for a report on that.

Does the Minister agree there needs to be engagement with the smaller units at this stage to see what problems they have identified and what action they are seeking to be taken in order that they can have the necessary supports in place?

Yes, I do. There is no issue with that at all. What the Deputy is describing is an ongoing process within the HSE, throughout healthcare. It is not unique to maternity services or termination of pregnancy services. There is an ongoing and constant review within the HSE in regard to the exact question the Deputy raised, whether relating to maternity, orthopaedics or anything else.

Who is carrying out that review with the smaller units? The Minister indicated there was an ongoing review, but is somebody specifically engaged in conducting that review or is it just done within each area of the HSE?

Each of these areas has a clinical lead and a clinical programme. In the case of maternity services, it is the national women and infants health programme. That programme and the clinical lead there are in regular contact with the maternity service providers throughout the country, whether on this issue or on the wide range of other issues relating to maternity and healthcare services.

The Minister referred to the clinical lead in each area but is there an overall person nationally who co-ordinates with those clinical leads and who has individual engagement with the smaller units?

Yes, the national women and infants health programme is the national body that co-ordinates this work, under Dr. Peter McKenna.

Over the past 12 months, for instance, what level of engagement has occurred from a national point of view with the smaller units?

I can get the Deputy a detailed note on that. There is regular communication throughout the system. The national clinical leads, whether in maternity, cancer or orthopaedic services, talk to one another all the time. I can certainly get a more detailed note if that would be useful.

I thank the Minister.

I thank the Minister for his attendance. Many of the questions I had intended to ask have been covered. I am seeking clarification on the differences between the policy and the operation of the legisaltion.

Things such as the 12-week limit and so forth would be considered policy issues and the Minister said earlier that those issues are to be decided by the Oireachtas and voted on by Members of both Houses. Does the Minister therefore see this review process making recommendations that he will then follow up and put to the Houses to amend the legislation regarding things such as the 12-week limit or the three-day wait period, if that is what comes from it? I want to be absolutely clear on this. Will the Minister then propose those amendments to the legislation to the Houses?

Possibly. Once we have the report I will bring it to the Government and the health committee. The Government, the Oireachtas and the health committee will discuss all the issues and then decide what they want to do. We do not yet know what the recommendations will be. The point I was making is that if we take the 12 weeks, for example, which is in the legislation, this review is not starting from the point of asking whether 12 weeks is the right period of time. That is a matter of policy that has been agreed by the Oireachtas, so that is not what it is doing. However, possibly, as part of the consultation, there are operational difficulties. We have no idea what will come out of this, but let us say we were to hear from service providers that they struggled to be able to ascertain exactly when 12 weeks was and, for example, the GPs were nervous about going to 12 weeks and were therefore tending to err on the side of much more conservative judgments in terms of the length of the pregnancy, there might be recommendations emerging from that.

I appreciate that starting point, but I just wished to establish, for people watching and so forth, that if they were to come from this, the Minister is happy to give the commitment that he will be proposing that legislation or that he will lead off on that as the Minister for Health. I will move on to the second-----

I apologise for interrupting but I wish to be clear. The purpose here is not to come back and say that it is no longer 12 weeks and that it is 16 weeks or six weeks. It is specifically regarding operational difficulties that are found.

Okay, I appreciate that is the angle. From how this process has been talked about from the beginning, many people felt that it was going to go beyond the operational. I appreciate that the Minister is coming at it as a start point and that it may evolve from that, but I believe that many people were under the impression that it would include policy. I wanted to put that forward. I accept that the Minister has his starting point and that is fine.

I have a question about the consultation. The Minister said the closing date will be 1 April. What measures will the Department of Health take to ensure the consultation is fully accessible to enable all stakeholders to engage and contribute? I refer to migrant women, Traveller women and disabled people. The Minister says there will be advertisements and the like, but will a vigorous and strategic approach be taken? Not everybody has access and not everybody will be able to engage in the public consultation per se. Perhaps the Minister will speak a little on that.

I will fly through the questions so the Minister can answer them rather than go back and forth. The Minister said he had to go through the public tender for the chair. When did he realise the sums of money that were going to be involved? It seems a little mad that this amount of money is being spent but the chair will not be in situ from the beginning. It seems as if this is not a process that is going to be led by an independent chair. It appears that it will be more a Department of Health-led process, which is the Minister's prerogative, with the chair being brought in at a later date. The Minister mentioned that the chair could change or review the terms of reference. This seems to be a slightly topsy-turvy way to do things, and I appreciate that this is not how the Minister wanted to do things. However, this process has been known about, discussed and planned for over a year, so at what point did the Minister realise that it was going to have to go to public tender? How close to today did he figure that out?

I refer to the advisory group. Many people and groups have called for an advisory group. To follow up on Deputy Bríd Smith's point, access to expertise is very different from access to an expert advisory panel. I reiterate that point. A great deal of pressure is being put on someone so I believe that having that expert advisory panel would be very worthwhile.

There are two brief final points. How did the terms of reference come about? For example, the Abortion Rights Campaign and Lawyers for Choice put together suggested terms of reference based on legal international best practice. How did the Minister arrive at his terms of reference? It is very important that the terms of reference allow for an open and transparent process because we want our legislation to be in line with international best practice and best practice for pregnant women who will need to use abortion services.

On my final point, the Minister continually refers to peer-reviewed research. It is worth noting that many voluntary organisations such as the National Women's Council and the Abortion Rights Campaign would not have the same access to peer review panels as academic researchers would. Similarly, the WHO report is very rigorous but it has not gone through academic peer review yet. While I am all for academic vigour and peer review, many experts who work in this area in Ireland will not have access to that. Groups such as the Irish Family Planning Association, IFPA, and Well Woman Centre have done a huge amount of research and it would be great if that research was not excluded because it does not come through an academic lens.

I thank the Senator for those questions. I will ask Ms Luddy to respond on the process to ensure that the public consultation is genuinely inclusive and accessible and I will respond to the Senator's other questions.

In terms of the e-tender process, I was informed in the last few weeks that it was going to be required. As I said, it is as frustrating for me as it is for all members of the committee, but if we have legal obligations in respect of procurement we must adhere to them. Will this be led by the Department of Health? No, it will not. That is not to say that the Department of Health does not have expert people who can be involved in this. It does, and it would be normal for line Departments to review the operation of legislation. It is a core competence of any Department, but as I said earlier, a request was made to me during the initial consultation process and I wanted to make sure that we set this up right. One of the things I heard loud and clear was that people wanted an independent chair and that they wanted the independent chair to have a rights-based lens. Obviously, the chair must have some legal expertise as well. That is what I have acted on.

Regarding the terms of reference, they are very much informed by the stakeholder consultation we conducted. I would have to check to be absolutely sure but I am pretty sure that all the civil society groups the Senator mentioned were represented in the civil society meeting we had. The terms of reference, the independent chair, the access to expertise and the wide consultation are all being informed by the Oireachtas meeting on that, and the Senator will have been at that and she can correct me if I am wrong. I hope, because we have gone to a great deal of trouble to try to ensure it, that the Senator, other Members of the Oireachtas, civil society and the service providers will see that what they said to us earlier is reflected in the terms of reference. Everyone will not see everything. There were conflicting views on some of them, so we have tried to create the terms of reference that best reflect the conversations we had.

As regards an advisory panel, I have no objection to an advisory panel. The important thing is not so much that there is an advisory panel but that the chair has the best access to expertise that he or she believes he or she needs, be it in constitutional law, genetic screening or whatever it may be, and that we will facilitate that in the way that works best for the review and the chair.

I wish to be very clear about peer-reviewed research. All the important research that has been done by civil society groups that may not be peer reviewed is absolutely in scope. That will be done through the stakeholder engagement. The National Women's Council or any group can present all of its research as part of the consultation.

The point around the peer-reviewed research was to say that, as well as looking at the three strands of the consultation, the chair would look at international peer-reviewed best practice, the authors of which would not necessarily be submitting into our review.

I might ask Ms Luddy to respond to the Senator about how we are going to ensure that the public consultation process is as inclusive as possible.

Ms Geraldine Luddy

It will be advertised on the website as well as digitally and intermittently in newspapers. We are also writing to targeted groups, for example, Roma groups, migrant groups and some Traveller groups. Literacy problems are also a consideration. We are undertaking targeted communications to key stakeholder groups and writing to them to tell them that the consultation is under way, provide them with information on the consultation and ask them whether there is a better manner in which they could contribute. We will undertake targeted consultations as well as the more general public consultation. We are leaving the public consultation open until 1 April to give people and groups a great deal of time to contribute because some stakeholder groups will need longer. At the consultation's launch, we will put adverts in newspapers and publish digital adverts intermittently. We will do the same again early in the new year and coming into March so as to give people reminders.

I need to move on. Next is Senator Clifford-Lee.

I thank the Minister for his presentation and Ms Luddy for her contribution. We have received information that is important to the public. Many people are tuning in because they are eager to see this process commence.

I wish to discuss the public consultation process further. I do not want to go over ground that has been covered but I wish to hone in on this matter because I have concerns about it. Will the Minister confirm whether the questions to be advertised are in line with the strategic objective of raising quality standards and providing safer and better healthcare? My concern centres around the questions being open-ended in nature and allowing various campaign groups to submit generic responses that are not focused on the provision of better and high-quality healthcare for women but instead on the policy underpinning the Act.

I thank the Senator for her question. I might ask Ms Luddy to respond.

Ms Geraldine Luddy

To clarify, is the Senator referring to the questions we are asking in the consultation form?

Yes, at the public consultation.

Ms Geraldine Luddy

We have made it clear that only submissions on the operation of the Act will be considered. We will not consider campaign questions, that is, information that is for or against this issue. The statutory obligation under the Act is that we review whether women can access services on the four grounds that are set out in the legislation and whether health providers and professionals can provide them. That is the kernel of the consultation. People can have their views on that. We have set out the consultation form in a way that we hope is focused enough on the operation of the Act but not so restrictive that people cannot say things that may not be within the parameters of the provision but are still their experiences of how the Act has impacted on them and that they would like to share. We tried to strike a balance.

If the Senator has specific concerns, she might send me a note and we will ensure that those concerns are looked at as part of the ongoing work on the public consultation.

I thank the Minister. I am concerned that the public consultation process might be used to try to reopen the debate that we all went through three years ago and that the views of the service users over the past couple of years will be lost. Ms Luddy has outlined that any such submission would be disregarded. I thank her for confirming it.

Ms Luddy ran through the public information campaign. Will she or the Minister confirm whether it will be multilingual?

Does that include the Irish language?

Ms Geraldine Luddy

Yes.

The Senator knows it does.

And the Minister knows I will be back knocking at his door if it does not. I just wanted to flag the inclusion of Irish as well as languages targeting migrant communities before the campaign kicked off. I would be eager that Irish not be left to one side.

My next question is on the expert advisory panel. Many of my colleagues on the committee have spoken on this issue. It appears that the Minister is open to the suggestion that an expert advisory panel is necessary and would be a good addition. It is important that we have an open and transparent system while we are reviewing this legislation. For that to happen, it is in the best interests that an advisory panel be formally put together so that the public and legislators are aware of who is advising the chair on this process. Will the Minister confirm that he is open to putting together a formal panel?

I have no objection to it. All I am saying is that I want to appoint, meet and talk to the chair about it. It is important that the chair has access to the expertise that he or she needs. In our consultation to get ready for this, a wide variety of views were expressed about the skill set that the chair should have and whether the chair should have departmental advice, ad hoc expert advice or advice from an official formal panel. I just want whatever works for the review. I want to get the chair in situ and then have that conversation with him or her.

The Minister stated that the chair would be appointed in early January. The tender document just went online in the past 20 minutes. It has a closing date of 18 January, so the appointment will actually be towards the end of the month. Does he hope to act upon the shortlist recommended by those within his Department and choose soon after that deadline?

The Minister spoke about the recommendations coming from the chairperson, bringing those to the Cabinet and, if legislative changes were recommended, discussing those at Cabinet. Will he outline a timeframe within which he would envisage any legislative change appearing before the Houses of the Oireachtas?

I cannot because we do not know the nature of what might be proposed. I hope that we will have a final report by the summer or the autumn. I will bring that to the Government but I will also bring it to this committee. The committee will take whatever time it deems appropriate to discuss these issues. It might decide to issue its own report and recommendations based on the original report. I cannot pre-empt any potential legislative work because we do not know at this point what may or may not be recommended.

I thank the Minister.

I welcome the Minister and I thank him for being here. There is significant concern with regard to the chairperson still not being in place, particularly to support the development of the research tenders on service provision and the selection process for researchers. I wanted to note my concerns around all of that.

I want to follow up on a couple of points. When one is towards the end of the list, many of one's questions have been already covered by those who have gone before. I want to follow up on the expert advisory panel. I believe that is really important. I would be happy if the Minister would revisit and reconsider that going forward. That decision should come from the Minister rather than him sitting down with the chairperson in regard to what he or she wants to do. I would appreciate it if the Minister could commit today to reconsidering that.

Senator Hoey raised a number of points that I want to follow up on, in particular the consultation process within the review. Can the Minister ensure the contribution and accessibility of the consultation process for those who may have had difficulty accessing legal abortion in Ireland since the legislation came into effect, by which I mean disabled persons in inpatient and residential settings, people living with limited or no GP provision, Travellers, migrants, those without PPS numbers, international students and those in direct provision? I would appreciate it if the Minister could respond to those questions.

I thank the Senator for the questions. On the first question with regard to the expert panel, I can give the Senator a commitment that I am open to whatever works, be that an expert panel, a formal panel, an informal panel, a domestic panel, an international panel and so on. We need to make sure that the chairperson has access to the expertise that is required. That might be partly informed by, for example, the information coming back through phase 1. There will undoubtedly be issues raised. There may be issues of constitutional requirements or with regard to legal requirements in the UK, in which case the chairperson would want to find somebody who could provide that expertise, who we might not put on an initial panel. I am open to it, but more broadly, what I want to give is a commitment that we will facilitate whatever gives the best result. That might be a formal standing panel, an informal panel with a bit of flexibility in terms of being able to add people, etc., or it might just be informal consultation. I am very open to that.

I thank the Senator for her second question. It is an important question in terms of accessibility to the consultation process, be it people living with disabilities, people living with mental health issues or vulnerable groups who would not normally be checking in to statutory public consultation processes. Not only will we make sure that there are efforts made here, this group will be one of the most important groups that are listened to. As we find in healthcare, as in most things in our society, this is the group for whom things do not tend to work. This is the group we need to listen to most carefully in terms of ensuring that the operations are sufficient and meet their needs.

I thank the Minister. Will the review also look at findings of recent reports such as, Too Many Barriers, by the Abortion Rights Campaign, which highlighted structural, social policy and practical barriers that prevent legal access to abortion? An example of some of the findings include a lack of English interpreters, geographic disadvantage, lengthy travel times and participants citing not knowing where to get an abortion or where to find information on abortion. I ask the Minister to comment on that.

The short answer is "Yes". The civil society groups will have an opportunity not only to submit their research, but to highlight what they believe are the most important aspects of that research. The examples given by the Senator are a core part of what this review is about

Will the review include input and testimony from those who provide abortion services in regard to what changes they might need to deliver their services to those most in need of them? I hope that makes sense.

It does. The three strands in phase 1 include consultation with the women, with the group referenced by the Senator, which is service providers both in hospital and community care - there is a very wide group of people who can be involved - and the public consultation.

I thank the Minister.

I welcome the Minister and I thank him for attending. I also welcome the review. As somebody who voted "Yes" but, unlike others here, was not an active participant in the campaign, I am a little concerned. We are talking about the review of the legislation, but already we are hearing talk of what will happen if the review suggests that we get rid of the 12-weeks provision, increase that limit further or get rid of the three-day period. This is only three years after the referendum that was put to the people on a set of facts based on the legislation. I am a little bit concerned that we are jumping fences and are already suggesting that we get rid of the fundamentals that were part of the legislation. I would welcome a comment from the Minister on that rather than on the review of how the legislation is working.

I thank the Senator. His interpretation is exactly correct in terms of what this review about. What is not in scope of this review is consideration of whether the three-day waiting period is right or wrong, whether it should be five days, one day or not there at all. That was a matter that was discussed in detail and ultimately decided by the Oireachtas. There were very clear heads of Bill published before the referendum so that people knew what they were voting for. Similarly, the 12-weeks was in the heads of the Bill and when people were voting in the referendum, they were very clear that that is something they were voting for. It was something that was then decided upon and voted upon by the Oireachtas. It is not in scope of this review to say that other countries provide for six weeks or 16 weeks and we are recommending a move to that. That is not in scope. These are matters that have been decided.

What is in scope is how these things are being operationalised. I will give an example in regard to both provisions. On the three-days, it was agreed during Covid that an in-person consultation was not possible for infection prevention and control reasons and so remote consultation with the GP was facilitated. The three-days was not up for consideration, but how it was operationalised was. This review could, for example, look at that and consider if, operationally, there are ways that the three days is working, is not working and are there potentially changes required. The policy question as to the waiting period is not in scope.

Similarly then for the 12 weeks, it is not in scope for the policy question to be looked at in terms of it being 12 weeks, six weeks or 16 weeks. What is in scope would be if, as part of the consultations, women or services providers, for example, GPs, said that they were really nervous about the 12 weeks and so what they are tending to do is provide the services where they think the pregnancy is probably around eight or nine weeks, which gives a safety margin in terms of the 12 weeks. That clearly is an operational issue because the policy position is 12 weeks. If it turned out that women were not getting the service up to 12 weeks because the GPs were genuinely concerned and were then airing much earlier, then that is an operational issue that could be addressed.

That is fine. Obviously, the legislation as passed has to be fully supported. I agree with other speakers that there should be geographical availability of the services as per the wishes of the people in the referendum.

I am concerned, however, because the Minister stated earlier, in response to one of my colleagues, that if recommendations come from the review, they will have to be brought to the Government. To be clear, if the recommendations were that the three days or 12 weeks should be looked at, the Minister is saying that this would be only in respect of the operation of those periods rather than the lengths of time themselves.

We cannot pre-empt what the report will come back with or what is linked to operational difficulties. Is it possible that the report will come back saying the operationalisation of the three days is very difficult and it is recommended that it moves to two days or four days? The chair can recommend whatever he or she wants so long as it is linked to the operation of the Act. Then, obviously, it is for all of us in the Oireachtas to review that. I want to be very careful. That is why when Senator Hoey and I were discussing this, I wanted to try to make it very clear that a recommendation may come in that, operationally, the three days are proving very difficult. The report may provide some recommendations based on operational difficulties. It is entirely possible that those recommendations will come in, but what is not in scope is a policy analysis that is not linked to the operation of the Act. I apologise to Senator Kyne because this is tricky. There will be people on both sides of the argument who may hear things they want to hear. In that context, I want to be very clear that this review is about the operation of the Act; it is not a review of the policy decisions set out in the Act.

Tendering for consultancy services is something that many State bodies do, but I am bewildered as to how that is linked to the chair. You tender for a group or body to provide services, but I have never heard of tendering for a chair. You put an advertisement for the appointment of a chair on the Public Appointments Service website or the Minister picks a chair. I have never seen a tender for a chair. It does not make sense. If it is consultancy, fine, but tendering for a chair does not make any sense. Why is this not put out to the Public Appointments Service for a shortlist of names to be approved by the Minister and agreed with him or with the Cabinet. It is a very important decision. I am flummoxed by this tendering of a chair.

I will ask Ms Luddy to come in on the detail on that.

Ms Geraldine Luddy

Although the title is chair, this person will actually do a considerable amount of work and will be required to be paid for that work. The independent person who will lead this review will have to collate the evidence from the three different strands as well as look at other peer-reviewed studies, talk to stakeholders, do some desk-based research and look at terminations in other countries. He or she will have to do a fair bit of work and analysis and then make recommendations based on the evidence he or she is given on the operation of the Act. It will take time and work from the individual and, therefore, he or she will need to be paid for it. That is where we are. As for the amounts, I honestly do not know what it will cost at this stage but it is very likely to be in excess of €25,000, which is the ceiling before which you go to national tender.

I really do not think this makes sense at all. We should appoint the chair and the Department of Health should provide money to allow that chair to do his or her work. Is it effectively almost a consultancy company that is being tendered for? It just does not make sense to me. A company normally tenders for something and puts in a price, but Ms Luddy is stating that you get a chair and then the chair nearly has to set up a company or a body to be able to draw down funding to engage in all this work that needs doing. It does not make sense to me. I am sorry.

Ms Geraldine Luddy

I am sorry. I did not mean to mislead the Senator. The Department will pay this person.

The Department pays the person. That is fine. I am concerned now that the chair would need to be almost an expert in consultancy and everything else rather than an expert on the issues we are dealing with here. It is quite a specific skill set. Normally, from practice, chairs of new bodies, certainly when appointed by Government, are former Supreme Court or High Court judges, retired civil servants or people of that calibre. Now we expect them to be able to apply - I do not know - and to show how they will spend the money. Is it the case that they have to provide the financial backing or financial explanation as to how they will carry out this work? I do not know if other people are confused but I am confused as to how this is coming about. The chair should be appointed and the Department should fund the chair to carry out the work thereafter.

If it is helpful, I will ask the Department to send on a detailed note on this. I would very much have liked to have been able to appoint the chair. The very clear advice I have from the Department is that, given the amount of money involved, there has to be a requisite process. I will undertake to have a note sent to the Department on exactly that.

If a tribunal-----

Chair, I have a point of order on this. May I-----

Does the chair of a tribunal-----

I will bring Deputy Bríd Smith in on a point of order in a moment. Go on, Senator Kyne.

When a tribunal is established, as many have been, you do not go to tender for the chair of the tribunal, so why would we go to tender for a chair of this review body?

I will ask Ms Luddy to respond to that and, as I said, I will ask the Department to put together a note on it for the committee.

Ms Geraldine Luddy

As I said, this person will be required to do the work to undertake phase 2 of the review. Whereas the person will be have the title of independent chair, he or she will actually review the evidence and undertake to compile a report for the Minister on the recommendations. The chair will actually do the work, so perhaps it is the fact of him or her being called an independent chair that is causing the confusion.

May I raise a point of order on this, please, Chair?

Go ahead and make the point of order.

I have just checked the e-tender on the Department's website and what the Department is actually tendering for, unless it is going to do a separate tendering process for a chair, is "qualitative research ... to inform the review of the operation of the ... Act". The e-tender states: "An appropriately skilled person or team is sought." Obviously, the Department could pay a lot of money for a research team or research company, but what are we talking about here? Are we talking about professional research or an independent chair? It is very confusing and it is unfair to ask us, who have worked really hard on the Act, repeal and everything since, to accept this.

Chairman, may I take my slot, please?

The Minister has said the aim is to appoint a chair but what we have is an advertisement for a research team. That could cost in excess of €100,000. I have to agree with Senator Kyne that it is baffling that the Department has to e-tender for a chairperson.

It is a point of information you are giving us, Deputy, rather than a point of order, but anyway-----

I want clarity on this.

Let the Minister reply, please.

Is the advertisement on eTenders the only one or will there be a separate advertisement for a chairperson?

Will the Department clarify that?

We can, although it is clearly not a point of order at all.

I have just been sidelined.

I will bring in Senator Conway in a minute and we have plenty of time left. Will he allow the Minister to reply?

I will ask Ms Luddy to reply to that.

Ms Geraldine Luddy

For the information of Deputy Smith, that is a tender for the service providers strand and it is not for the chair. That research tender is for the evidence to be collected from the service provider's perspective. That is strand 3 of phase 1. The tender for a chair has not been put up yet.

When will that go up?

Ms Geraldine Luddy

We just have a bit more work to do on it. I hope it will go up in the next week or so.

If Senator Kyne is finished, we can proceed to Senator Martin Conway. I apologise for the delay.

That is fine. This is a crucial point. I welcome the Minister, Ms Luddy and the other officials. When the task force on vaccination was set up and Professor Brian MacCraith was being appointed, was a tendering process gone through?

No. There was no equivalent tendering process.

Yes. That means a precedent has already been set, and that is just one example I can think of. A precedent has already been set within the Department of the Minister appointing a chair. It is a ridiculous argument. The Minister has said the hope is for a chair to be in place by early January. Going through a tendering process, there is surely to God a period in which people can respond. How could the Minister stand over having early January for the appointment of a chair? I suggest it is more likely to be March.

I thank the Senator. All I can give is my view on it. I want this chair in place as quickly as possible and the very clear advice I have from the Department is that there is a legal requirement to go through such a process.

Has that been checked with the Attorney General? Has a second opinion been sought?

No. I got this advice directly from the Department of Health, which is right and proper. It would not be normal for me to check such advice with the Attorney General.

I hate to be difficult but even at the start of this committee we did not have the terms of reference. They are available now. We really did not have time to study the terms of reference in order to have a meaningful engagement on this. The Minister gave an assurance earlier, indicating it was his hope and intention that the chair would be appointed by early January. Going through an e-tendering process, there is a period in which people have the opportunity to submit tenders. We are now in the second week of December. The process is going backwards before it even gets started. We are up towards the end of the legally required deadline and I am just baffled. Senator Kyne articulated this very well. We have appointed chairpersons of tribunals of inquiry that did not have to go through an e-tendering process. The Minister should revisit this so would he consider doing that and reverting to a position where he would appoint a chairperson as soon as possible without having to go through an e-tendering process?

I know I am repeating myself and I am not trying to be unhelpful. I have absolutely clear advice from the Department of Health that there is a legal requirement for us to go through this process. Were I to do as the Senator suggests, I would be acting in a way I am advised is illegal. The committee at that point would, quite rightly, be asking me very different questions. As I said, I would like nothing more than to be able to appoint the chair. I know the Senator appreciates that if any of us gets official advice on legal requirements, even if we are frustrated, most, if not all, members of the committee would accept the legal requirement. It is incumbent on me as Minister to follow that legal requirement, frustrating as it may be.

There has to have been a way around this. There is a departmental budget of €24 billion and surely to God this is something so important to the health of the women of Ireland that a way around this should have been found. Perhaps the problem is the Department is completely knotted up in legality and it is possible this is why it is not achieving what it would like to. I am not going to change the Minister's mind and clearly the rest of committee will not do so either. The Minister should come before us again next week after we have the opportunity to study the terms of reference and have a proper and meaningful engagement. Unfortunately, the committee's work has been taken up significantly with this matter and the appointment of a chair. That should not be the case. It is not what the committee is about. It is very poor that we did not have the terms of reference at least 24 hours or 48 hours in advance in order to study them. I accept the Minister's apology but it is again indicative of the Department and the manner in which it engages with this committee.

I have major concerns about the roll-out of the services, particularly in rural Ireland, where people do not have the opportunity to travel or it is not easy or comfortable for them to travel to Dublin. There are parts of rural Ireland where services are not being provided to the degree they should. There is a serious urban-rural divide in the provision of termination services.

Will the Minister give his view on where he sees major gaps? We will feed into the process when it is established but I would like the Minister's view on where he sees gaps in services now.

With regard to the Senator's previous points, I am happy to state again that the information should have been provided to the committee and it is not acceptable-----

Will he come back next week for further engagement?

It is not acceptable that the committee was provided with the terms of reference at that time. The Department is no more perfect than any organisation or any of us in what we do. The Senator made some quite strong statements and I state for the record that the Department of Health over the past 18 months has been working at a pace that I have never in my life seen people work. I was at my desk long after midnight during the week to sign regulations with the teams of people there and I had regulations at my house at 11.50 p.m. the other day. We had Government decisions on Friday and they were regulated for by midnight on Monday. The women and men working in the Department of Health are as open to error as the rest of us, and God knows we all are, but I state that I have not seen anything as impressive as the work rate, output and dedication that has come from the Department of Health during this pandemic. That does not mean they get it all right.

On that point, I should state that I never once questioned the Minister's commitment or the effort he puts in.

I thank the Senator. To be clear, I was not talking about myself but rather my officials. It does not mean any of us gets everything right all the time but I just wanted to make that statement.

On the Senator's substantive point, I believe there are gaps. I need to be very careful not to pre-empt this work but there are geographical gaps, for example. That is quite clear. We do not have services fully available across our 18 maternity units, and that is a very serious matter that must be looked at. Senator Black raised a really important question about marginalised and vulnerable groups and I want that looked at to ensure there is provision and support for them. I would like to know why we still have several hundred women travelling to the UK. Maybe that is because they are travelling for reasons simply not covered under the Act. If they are travelling for services provided for under the Act, it is very important we understand why that is the case and what may be the barriers.

There are many areas we must look at, including geography, demography and healthcare provision around the country.

On the legislation to provide for safe zones, this matter needs to be dealt with. We have seen what has happened to politicians recently. It is very similar to what is happening around facilities where terminations are being offered. That is not acceptable and needs to be dealt with urgently. Women who are going through a difficult period and the trauma of going for a termination for whatever reason are being subjected to the saying of the rosary and all that sort of caper around facilities providing a service. This needs to be addressed urgently. Where is that legislation? We need a specific timeline for when it will be brought to the Houses.

I fully agree. I have got agreement from the Government and the Office of the Attorney General that this legislation would be listed for priority drafting. Drafting is under way and when we have the heads of the Bill, I will bring a memorandum to the Government. The heads of Bill will then go to the Joint Committee on Health for pre-legislative scrutiny. We will take the committee's feedback, produce a final draft Bill and then begin the legislative process.

While I appreciate that, I ask the Minister to give us a timeline for each of those steps. He said the legislation has gone for priority drafting. When will that step conclude and the next step start? When can we expect the legislation to be before the committee? The dates are important.

I will ask Ms Luddy to come in on the timeline for the process.

Ms Geraldine Luddy

We hope to have the heads of Bill for the spring legislative session. We hope to have them before the Government by Easter 2022 to then go to pre-legislative scrutiny.

We are talking about an absolute final date of the end of March. Is that fair?

Ms Geraldine Luddy

Yes. The heads should go to the Government for approval to publish and then go to pre-legislative scrutiny by the end of March.

That is fine. I thank Ms Luddy.

It is a matter for the committee how it schedules its work on that.

I fully accept that once the legislation has been referred to the committee, the timeline will be somewhat out of the Minister's hands. However, a clear commitment has been given this morning that the heads of the Bill will be referred to the committee by the end of March.

That is the intention, yes.

I welcome that commitment.

Ms Geraldine Luddy

Things can happen but that is the intention.

I am taking this as a commitment by the Minister that the legislation will be before the committee by the end of March. I thank the Minister.

It is helpful that we have a date. People at home are wondering about the timeframe for this legislation. Before we move on, I see Ms Luddy is back in the shadows.

Ms Geraldine Luddy

I will turn off the video and try to fix the issue.

I can see the Dublin skyline and cranes in the background but we cannot see Ms Luddy. It might be helpful if she could move away from the window. Senator Hoey has another question or two.

As I was thinking, I came up with another question. I know it has been said again and again but the teams in all our offices are doing the Lord's work trying to find and parse documents live as the meeting proceeds, which is exceedingly difficult. I appreciate that problems sometimes arise but it is incredibly difficult for members to do this. We want to get the best out of this meeting and engage with the Minister. People are firing in links on WhatsApp messages. That is not a good way for the Joint Committee on Health to do business on such a serious issue, or any issue for that matter.

When I asked about targeting particular groups I meant to ask about how women and pregnant people who have had to travel will be engaged with. Will there be engagement with maternity hospitals? They will have spoken to people who have had to travel. Continuity of care is very different between different maternity hospitals. Will there be an active attempt to engage with those who have had to travel? The Minister said he is concerned about the numbers still travelling and that it is a problem. How will we engage with those people? We assume people are engaged digitally. Will it be done through maternity hospitals? Will there be a direct call to GPs? Will Well Woman clinics and the Irish Family Planning Association be reached out to directly?

This matter has gone out for public consultation and there are terms of reference. We are circling back to the business of the chair. Has the decision to that before the appointment of a chair pre-empted, neutered or hampered the work the chair can do? The questions have gone out for public consultation. Perhaps the expert, on whom we may spend up to a €100,000, may have a different idea of how it would work or have a different approach. The chair will now have to work in the framework of the questions. Will this neuter or hamper his or her work?

On engaging with women who have travelled abroad, there will be input through various channels. First, the women can input through the public consultation process. Second, service providers who might be providing continuity of care in Ireland may also do so. I have no doubt the civil society groups to which the Senator referred will also have an input.

I am not concerned about the public consultation. Ultimately, this is a policy matter driven by the Government, the Oireachtas and me. We had very extensive consultation in which the Senator and other members were involved. I engaged with the Oireachtas, civil society and service providers to inform all three strands of the consultation. Once appointed, the chair can input into that and we can add anything he or she believes is important. Let us not lose sight of the fact that the review is being commissioned by the Government and is informed as such.

I will make some quick points. I thank the Minister for his response to the earlier questions. We have covered a lot of ground. It would have been better, as I said, had the independent chair been appointed prior to or in tandem with the roll-out of the first phase. I appreciate the Minister's response but for greater coherence, it would have been much better had the chair been involved from the very start of the process. The Minister explained the rationale but I still believe that would have been better.

I fully understand the Minister's points on the difference between the operation of the Act and policy. This process will clearly look at the operation of the Act. I am comforted by his comments that if there is a relationship or link between some issues that may be deemed to be policy issues which overlap or interact with the delivery of services and the operation of the Act, those issues will be looked at in that context and may well form part of future recommendations. That is an important caveat by the Minister, if I read him correctly, and an appropriate response to those who are listening to this discussion.

Many of the matters raised with us could be addressed quite quickly. We do not need a review for us to see that some of them need to be dealt with. The Minister has responded on safe access zones, on which a Bill is before the Seanad. We need to move on and resolve some of these issues. Other matters such as better or more widespread information on abortion services or counselling supports could be addressed without a review, although the review could be of further benefit.

To me, one of the issues that has come up very strongly is that the telemedicine option has proved very popular and should be maintained. Again, that could be done by the Minister for Health confirming that he will maintain the service. I know that he does not want to pre-empt a review but there are issues that would not necessarily pre-empt a review. We already know that we need better communication. I mean issues have been raised around access for people who cannot speak Irish or English. For example, the HSE's booklet is not available in all of the languages and could have more languages.

All of these issues can be done in tandem with the review. Obviously these are resource issues and I ask for a note to be provided. We often ask for notes but, as the Minister knows, they do not come. It is important that we get a breakdown of the figures that identifies which maternity hospitals provide full and partial services. I also ask for a partial service to be defined because there is a concern that some hospitals do not provide any service or a very limited one. Such information is important in order for us to understand why that happens. As the Minister has said, there are geographical gaps. I would not like to see a situation where there is institutional objection to any of this, which would not be appropriate. I hope that a note can be forwarded to us and I thank the Minister for his time.

Yes, I, too, would prefer the chair to have been appointed and I am sure that the Deputy will appreciate that I must act on the recent advice that I have received.

On the point made about policy versus operation, yes, we must take a very common sense approach. Ultimately, the point is that this review is not meant to re-open the debate about repeal. That debate has been settled and agreed. Yes, any recommendations can be made if operational challenges are found.

I agree that people have found the telemedicine service very useful.

What happens if recommendations that flow from the operation of the Act have policy implications? I presume that the Minister's response will be that it is a matter for the Oireachtas and the Government and I know that the focus will be on the operation of the Act. Is it possible that there may well be recommendations that require a policy shift?

Yes. I do not think that we want to set conditions on what can and cannot be recommended. Let us see what they come up with and then, as an Oireachtas, we will look at that. Yes, there could be policy implications.

The Deputy asked whether there are things we can do in tandem to improve services. Yes, and we do not have to wait. If there are things that we know can be improved now then we should act on that now and we do not need to wait.

I am going to ask the Department to provide the committee with as detailed information as we can in terms of the provision of services and the coverage at the moment.

I welcome the statement that the Minister made this morning that we do not need to wait until the end of the review to act on issues that impact on women regarding access and services. A number of speakers have pointed out the gaps and difficulties in service provision. It has been pointed out to us that meetings with the HSE and hospitals were happening or began to happen but then there was a problem in terms of Covid. Straightaway I was struck by the fact that most of us live our lives through Zoom now so was it not possible for hold the meetings using Zoom? Was there no other way to follow through on those meetings? Can these meetings resume? It is important that we find out what problems face the hospitals but also the women who avail of these services.

Another area is fatal foetal abnormalities. Again, the issue has caused huge pain and grief for women across the country. Some women have said that they have been told that the anomaly has been diagnosed as not fatal enough and does not qualify for fatal foetal abnormality. We have seen what the restrictive criteria of the law in the hands of medical professions in the past has done in Ireland and that was one of the catalysts for the repeal movement. Are there plans to review the fatal foetal abnormality sections and allow greater clinical freedom for medical professionals? Does the issue come under the review that we are talking about or is it separate?

I am conscious that there are gaps in services and it is clear that these are not being delivered for women in the way that we thought it would as legislators. What else can we do outside of this? The review should not stymie or stop the work of the Oireachtas and the Minister in terms of filling the clear gaps in services. What plans has the Minister for moving forward, aside from the review on which we are focussing today?

We are doing a lot in tandem. Yes, we are absolutely not waiting on this review to act in ways where we can improve the situation. As we discussed earlier, I am legislating for safe access zones and that will come before the committee, as we said, in the coming months for legislative scrutiny. We are absolutely not waiting on the review for this.

Free contraception was one of the other big service provisions that was discussed at the time. We are not waiting. The provision is being brought in next year. There are numerous other women's health initiatives that are being funded this year and then expanded through next year. For example, the national maternity strategy, which I recall is a 2016 strategy. It is a really good strategy. The strategy got full funding this year and it will get full funding next year. There is a lot of good work being done with the maternity strategy. Across the country there are a lot of other investments going on in terms of women's health.

The Deputy asked whether work can be done. Earlier it was discussed about engaging directly with the maternity units around the country to see what improvements can be made and what possible capacity gaps. That work is resuming.

The Chairman raised the issue of fatal foetal abnormality and asked whether more can be done. Yes, and in fact there is a piece of work that has been kicked off by Dr. Peter McKenna, who is the clinical director of the national women and infants programme, in terms of looking at adverse events that have happened when it comes to the termination of pregnancy engaging directly with the patients, women, partners and clinicians involved. That is something that had not been in placed before now. There is additional work going on anyway specifically around adverse events, including adverse events concerning fatal foetal abnormality when it comes to the termination of pregnancy services in Ireland.

I thank the Minister for the information that he has given to us so far but I am concerned about some of the things that I have heard. In terms of the appointment to the chair, the Minister hinted at possible legal advice. Was it legal or political advice? On what precedent is it based?

It was official advice from the Department to me that the process would have to be gone through given the scale of the money involved.

Was it on the basis of the money involved?

That is correct, yes. To be absolutely clear because the Deputy asked whether there is a political element, there is zero political element.

This is advice that I recently got from the Department on what would be required to authorise the spending of this money.

The only problem is that there have been instances in the past where major expenditure was involved and the chair was appointed by the Government and Department. Was there a precedent which identified it as being difficult to apply in this case? In other cases, where vastly greater amounts of money were spent on inquiries, the appointment was made by the Minister and, ultimately, by the Government. It was in the gift of the Minister. Why are we now looking at a departure whereby the Minister is no longer able to do this and it has to be done by way of advertising for a suitable person? Presumably, the Minister will pick somebody from a number of people. This goes back to the beginning of the conversation. Who will be deemed to be the right person, since the appointment the Minister would make in the first place in the ordinary course of events would not be acceptable?

I thank the Deputy. I cannot speak to other processes and inquiries. I can only speak to the official advice I have from the Department, specific to this chair. The clear advice from the Department is that there is a legal requirement. Therefore, I am taking that advice. I know it is frustrating for the committee and for all of us, but I do not think anyone would suggest that I should ignore that advice. I was recently provided with that advice and need to act on it.

When it was discovered, at an early stage, that the legislation was not operating as was intended, action was proposed and was about to be taken, but was stood down because of the advent of Covid. Would it not have been possible to continue whatever action was required, regardless of Covid, on the basis that it was not going to overload the system to any great extent or any more than it was already overloaded? Why was that procedure stood down?

I am not sure. The Deputy would have to ask my predecessor why it was stood down. I have ongoing engagement with the national women and infants health programme. There is regular contact across the HSE with regard to the provision of services. The national women and infants health programme is putting in place new reviews to look, for example, at adverse events. Any maternity service in the country, through the annual planning process and the national service plan, has the opportunity to feed in requirements relating to additional capacity, diagnostics, infrastructure, clinicians and so forth. The question of whether any part of the health system has the resources it needs is an ongoing part of healthcare provision in the HSE.

I note that the operational versus policy issues seem to overlap with regard to the three-day consideration and, as the Minister mentioned, the possibility of 12 weeks, 16 weeks, or whatever the case may be. I am not certain that that would not constitute a major change in what was legislated for. It could be open to a legal challenge and could ultimately lead to an overhaul of the legislation even though that legislation was published in advance of a referendum. It carries more weight than any other legislation that we have passed in recent times. Has the Minister considered all those aspects?

Yes, we cannot pre-judge what recommendations will come back from this work. We can be clear that it is not within the purpose or scope of this work to address policy questions independently, for all of the reasons we have discussed this morning and the Deputy has just set out. However, the scope covers all operational aspects of the Bill. I think we would all accept that the independent chair is free to make whatever recommendations he or she wants. We are not going to say that the chair can or cannot make recommendations about various matters. It will be up to us in the Oireachtas to consider that.

Will it? Are we not bound by a decision previously approved by the people in a referendum?

Deputy Durkan needs to finish up. Other members are trying to get in.

I know, but I need an answer to the question.

The consideration of any legislation, which this is, falls to the Oireachtas. The Oireachtas is empowered to consider any legislation before it. However, I agree with the Deputy's position that the major policy issues, relating to the three days, 12 weeks and so on, have been voted on clearly in a referendum, with much of this detail pre-published for exactly the reasons the Deputy stated.

This morning, I thought we were told that the e-tender for the chairperson would go up today. That does not seem to be the case. Will the Minister tell us exactly when it will go up? If, in the course of the review, we find barriers to equal access for all as identified by Senator Black this morning, including in the questions on fatal foetal abnormality, as identified by the chair, and serious risk to health, will the Minister ensure that legislative changes will be made to ensure equal and fair access for all? I thank the Minister.

I cannot give any answer about what changes may be required. We have to let the work happen. We have to see what policy recommendations come back and then we can consider those.

That was not really an answer to my question. If we identify barriers to free and equal access, can we get amendments to the legislation? The intent of the legislation and of many clauses in the Act was to provide equal access in the case of fatal foetal abnormality and serious risk to health. I am using them as examples. It is not clear whether the purpose of this review is to say that we are not delivering services here and there, and that they could be delivered better, or if there are barriers which we need to address. If that requires legislative changes, are we prepared to do that? That is a question that both providers and users of the service will be asking themselves and us. I want an answer on the question of the criteria. When will the criteria for the appointment of the chair be published? I have been asked this in messages. Has there ever been an e-tender for a chairperson of anything to do with the Oireachtas? Unless somebody with more experience here can enlighten me, I do not believe the appointment of a chair has ever been tendered out in the case of any investigation or tribunal, such as for mother and baby homes or climate action. This is extraordinary and we need more explanations.

The Deputy's first question is about legislative change. We are not ruling anything in or out.

Let us see what the report comes back with. It may be operational, regulatory or legislative. We do not know. We are not precluding anything but I am cognisant of the points Deputy Durkan and others have made that this is not about reviewing the major policy decisions that have been voted on and agreed. It does not mean there would not be amending legislation to parts of the Act in terms of operation. We are not adding anything in or taking anything out, but in terms of the major points of debate we had during the referendum and legislation, making fundamental changes to them is not the purpose of this review.

There is a lot of interest in the tendering process for the chair. I will ask the Department to provide a detailed note. I am not an expert in e-tendering but I have clear advice from the Department that it is required. I am sure the Deputy and everyone appreciates that I am accepting that advice. I recognise the committee has technical questions and I will ask the Department to revert with a note on them.

I think we are all struggling with the divergence from what would be regarded as a normal review process, wherein a chair is appointed, an advisory panel appointed to support that person and the terms of reference decided. Then the review proceeds. It is disappointing that the Department and Minister have chosen not to follow the normal procedures for a major review.

I support the point made by Deputy Smith. I have not come across a situation anywhere else where the Government has gone to tender for a chair. It is in the Government's gift, as I understand it, to appoint a chair, providing it is done in a transparent way. I cannot fathom why it is being done by tender.

The Minister has committed to providing a note on why he has chosen to go the tendering route. I ask him to confirm he will provide a note on the criteria that will apply to the selection of a person who will sit on the selection panel, as well as a note on the existing arrangements. We are often promised notes on things and do not get them. It takes us months to chase them up and sometimes we still do not get them then. Will the Minister put a timeline on when he will provide those four notes he has committed to? Can we have that information before the Christmas break?

Will the Minister commit again to taking on board recommendations for legislative change arising from the review process? He says in the first instance it is about reviewing the operation of the legislation but, in the course of the review and consultation with various interested parties, if there are recommendations for policy changes, will he commit that he will accept those and legislate accordingly?

I disagree on the terms of reference. They are a matter for Government and are ultimately agreed by Government. Independent chairs can have input into terms of reference but those terms for statutory reviews are, in the first instance, a matter for Government. It is right and proper that the terms of reference are set by Government.

I have no problem in sharing the criteria for selection of the chair. It is essentially in line with the conversation we had today. On the assessment panel, I will make the selection but the assessment will be by the Department, as it is across the board for appointments on a regular basis.

Through the process of the review, if there is a recommendation for legislative change, does the Minister commit to take that on board?

I cannot commit to anything until we see the recommendations. I commit that we will review the recommendations but not to acting on recommendations that have not been made yet.

The Minister will take recommendations on proposed changes to legislation in the course of the review. They will not be precluded.

Nothing will be precluded.

I am sorry to go back to the same point but there is some confusion. I do not doubt the Minister has received legal advice in the Department that this approach should be taken, but considering the level of confusion expressed by me and others this morning, will the Minister undertake to consult the Attorney General as to whether this approach is necessary? I am cognisant that in the establishment of tribunals in the future, the same issue could arise and the question asked as to why we are appointing a chair rather than tendering for one. Many points have been made and, if the Attorney General wants to look over this and give his view, that might provide clarity and legal certainty that this is the correct approach.

I thank the Senator for that. It is not legal advice I have received; it is official advice. It is not a legal note; it is advice from the Department that this is the requirement. With regard to consulting the Attorney General or anyone else, I suggest we get a detailed note to the committee from the Department. Then we can consider whether that would be required.

That would be helpful but considering the sensitivity of the matter, we do not want to get off to a questionable start. The best possible advice should be obtained on the Public Appointments Service, PAS, and the Department funding the services of the chair and the group the chair would establish around him or herself to carry out the review. If that were to be verified and checked with the Attorney General, that would provide assistance.

One of our members is making the point that the Minister said earlier it was legal advice and now it is official advice. Does the Minister want to clarify the situation?

I do not think it could be clearer. I have received advice from the Department that this is a requirement. I have not received a letter from a lawyer, which is what I would consider legal advice. It is official advice from the Department. It is the Department's view.

I will bring proceedings to an end. It has been a difficult morning for the Minister and his official alongside him. There are many lessons we can learn from today's meeting. It would have been helpful if we had had some of the information. It is basic information that was going out go out to the public. If we had had access to it prior to the meeting, I think the Minister will agree it would have been a better meeting. It is frustrating for members and for those interested enough to look in on television screens to find out what is happening on the issue.

I think we all accept there are gaps in services and women are suffering in relation to that. Many members alluded to that.

The Minister has given a commitment to come back with a detailed note on timescale around the chair and so on. I ask him to do that and give that public commitment because we have had difficulties in the past. We have looked for information and it is like pulling teeth at times trying to get information from the Department. There should not be that difficulty. There is clearly something wrong if we are not getting that information.

I ask the Minister to review today's meeting and perhaps reflect on it to see if there is a way of improving access for the committee and members to the vital information that we are trying to address. I appreciate the Minister coming in. Perhaps he wants to make some concluding remarks. We are coming to the end of our time. Does the Minister wish to add anything further?

I have said it a few times, but just to repeat it, I am not satisfied with the level of information the committee received. I have been a member of the Joint Committee on Health myself and I have been on various other committees for a decade, and I am not satisfied with the level of information provided to the committee. It is something that I am going to be discussing.

With regard to the substance and most importantly, for the people who may be watching, a lot of time has been spent talking about what the appropriate approach is to appointing a chair to the committee. While I am not saying that is irrelevant, it is certainly not remotely the most important substance of what we are discussing here today. What we are discussing here today is a really important review. The review is kicking off. It has been designed around a pre-consultation we did with service providers, civil society and Members of the Oireachtas. There was a request for an independent chair. We are doing that. There was a request that the independent chair would have a rights-based and a legal background. We are doing that. There was a request that the chair would have access to all of the expertise they need. We are doing that. There was a request that there would be a very wide consultation. We are doing that. There are three strands to it. I think the most important parts in this have perhaps been overshadowed by a technical conversation around the appointment of a chair. Ultimately, this is an important review. I believe that there are gaps in service provision and operational aspects to the provision of these services that can be improved. This review is going to be a very comprehensive approach to doing that, required under statute, obviously. It will be very useful. In the meantime, there is a lot going on in terms of safe access zones, free contraception, the reviewing of adverse events to date when it comes to the termination of pregnancies, unprecedented investment in maternity, gynaecology and fertility services, and many other things. I think for anybody watching, that is a very important message for us to repeat.

I will end on that positive note. That concludes our business for today. I thank the witnesses for their helpful contributions.

The joint committee adjourned at 12.33 p.m. until 11 a.m. on Tuesday, 14 December 2021.
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