Opening Statement
Thank you for inviting me here to make some points in relation to the Heads of Bill. Any
comments which I make are made in a purely personal capacity. As time is limited, I cannot
visit many of the issues which have been raised by these Heads of Bill and instead I want to
make four essential points regarding the proposed legislation.
Opinion of a psychiatrist necessary that risk to life of pregnant woman can only be averted by
termination of pregnancy.
Firstly, I want to emphasise that in The Attorney General v. X, the Supreme Court formulated
a test without the benefit of medical evidence or best practice. It did not actually have to
consider and weigh expert medical and, in particular, psychiatric evidence as to whether
abortion is ever a treatment for suicide or whether other treatments could be utilised to avert
the risk.
It has already been alluded to in expert testimony that a concession was made that abortion
was lawful under certain circumstances. In law a point not argued before a court is a point not
decided by that court. So essentially I want to emphasise that the Supreme Court has been
open to assimilating in its considerations developing insights gained from psychiatry and
psychology. I am thinking in particular of their approach to psychological/psychiatric
evidence in cases restraining criminal trials in relation to historic abuse cases.
The framers propose that in the case of a threat of self-destruction, a termination of
pregnancy will not be permitted unless two psychiatrists form the opinion required under
Head 4. However in X the evidence of a psychologist who was not actually advocating
abortion as a treatment was considered sufficient to fulfil the test. Having regard to the
expert testimony available to this Committee, it does not appear that the test in X is one which
is based on best psychiatric practice. Although it is now proposed to involve psychiatrists in
the decision making this is not mandated by X and legitimate concerns have been expressed
as to whether the involvement of psychiatrists may be an attempt to medicalise what is in fact
not a medical test. It is a legal test formulated by the Court without regard to any psychiatric
analysis. Indeed it might well be asked why it is proposed to involve psychiatrists at all in the
process.
However, having included the requirement that psychiatrists provide an opinion, a further
concerns arises.
No Requirement to examine patient
The Heads of Bill (2 and 4) provide that the specialists “should” examine the patient. This
can be contrasted with the requirement that under the same Heads the woman’s General
Practitioner “shall” be consulted. In law a mere exhortation is not mandatory or enforceable.
While it is understandable that there would be a reluctance to subject a woman in distress to
any rigorous or invasive procedure, this would not appear to be an adequate justification for
bypassing standard medical practice in relation to diagnosis and treatment. A Court called
upon to interpret legislation will look to the words used and not the aspirations of its framers.
The Explanatory Notes state that the Mental Health Act, 2001, has been seen as a model in
the framing of the Heads. However the involuntary detention of a patient under that Act
requires two separate and distinct examinations of the patient by a GP and a psychiatrist
respectively. (Sections 10 and 14). Failure to conduct an examination of the patient will lead
to the patient being in unlawful detention even if a collateral history is available to the
doctor1. These examinations are deemed to be “vital essential safeguards for the patient”2.
Surely in the case of suicide risk an equally robust regime should apply? Especially as best
practice indicates that an examination of the patient should precede diagnosis. If it is
considered that a psychiatric assessment is appropriate it is hard to justify not requiring an
examination of the patient. Otherwise the Heads are open to the accusation that psychiatrists
are being involved for optical purposes.
A further consequence of not requiring an examination of the patient is to increase the
likelihood of forum shopping by the patient or indeed the doctors involved.
Risk of self-destruction – the foetus and potential viability
Unlike a physical threat, the risk in a suicide case is said to come from the existence of the
pregnancy. In that sense the proposed treatment for risk of self destruction is in fact abortion
(though the psychiatric evidence for the efficacy of this treatment all points the other way).
The risk of suicide may manifest itself either before or after the unborn is potentially viable
outside the womb. Under the Heads Doctors must make all efforts to sustain the unborn’s
life after delivery3. However under the Heads they are not mandated to terminate the
pregnancy by a procedure which might ensure the baby would survive. If it is the existence of
the unborn which poses the risk, allowing a viable foetus to be born alive may not in fact
diminish this risk. Consequently the Heads do not exclude the abortion of an unborn who
could be viable outside the mother. It is hard to reconcile the right to life of the unborn with
such a position. Again this is a point not argued and therefore undecided in X.
If abortion under these circumstances is untenable, what would be the position if delaying
termination for a couple of weeks would result in the baby being born alive? It is difficult to
see where a principled line could be drawn on this issue. Abortion of a potentially viable
unborn would appear also conflict with the Medical Guidelines which provide in relation to a
therapeutic intervention that if it is necessary to intervene to terminate the pregnancy to
protect the life of the mother, every effort should be made to preserve the life of the baby4. It
1
SO v. Clinical Director of Adelaide and Meath Hospital of Tallaght [2003] IEHC 132
Per Hogan J par 12
3
Explanatory Notes to Head 4 (penultimate paragraph)
4
Guide to Professional Conduct and Ethics for Registered Medical Practices par 21.4.
2
is hard to see why an unborn should have less protection in a case of risk of self-destruction
than in a physical risk case.
Although the Heads provide for further “safeguards” it is doubtful whether these ends have
been achieved.
Location of procedures
“Safeguards” proposed in the Heads include only permitting termination of pregnancies in an
“appropriate location”5 and in “public obstetric units”6. However the possibility arises
under the Heads appears of the HSE itself establishing or entering into arrangements with
third parties to establish facilities where terminations may be carried out in the future. There
is no requirement that the consent or authorisation of the Minister or the Oireachtas be
sought. Consequently there does not appear to be anything to prevent the HSE or a dedicated
“termination of pregnancy service provider” with whom the HSE enters into an arrangement
from establishing a “termination of pregnancy clinic” provided that is on site or somehow
co-located with a general maternity and neo-natal service.
A further difficulty arises because the terms “medical procedures” and “termination of
pregnancy” appear to be used interchangeably in the Heads. To be quite clear: Necessary
medical treatment to save the life of the mother is not coterminous with “termination of
pregnancy”. Oncology treatment, general or cardiac surgery may be necessary medical
procedures to save the life of the woman. However they cannot be described as “terminations
of pregnancy” as sometimes the unborn, who is not the direct target of the procedure, may in
fact survive. Thus some medical procedures which are necessary may not in fact result in the
termination of the unborn’s life Many of these “medical procedures” 7 are not normally
carried out in public obstetric units but are carried out in general or indeed private hospitals.
So it may prove unfeasible when drafting the Bill to continue to maintain the safeguard that
“terminations” must only take place in “public obstetric units”. Apart from the need to be
entirely clear as to the important different in principle between a “medical procedure” and a
“termination of pregnancy”.
Sunniva McDonagh
17th May, 2013.
5
Head 1
Explanatory note to (subhead 1) in Head 1.
7
E.g. oncology, general surgery
6