Professor William Binchy:

There was a number of questions so I hope the committee will forgive me if I elide a few of them.

There is a notion that doctors need some degree of security a the legal standpoint for what they do.

The concern that doctors will be arrested, prosecuted and imprisoned, as mentioned yesterday, is not a real concern in the sense that the law operates on the basis of the bona fides of the doctor's approach in this area. Any lawyer - that is, non-campaigning lawyer - will tell a doctor who has a concern that there is no prospect of a bona fide judgment in terms of compliance with the existing law, which has already been stated, with regard to life-threatening conditions, and that by complying with the law he or she would not be in danger of prosecution and imprisonment. That is an unreal concern.

Let me mention a piece of information that might be of interest to all people, which is that we live with judgments made against a legal principle that is not incorporated in any legislation that I am aware of, a very general principle of civil law - that is, the law of negligence. My first point is with regard to the need to take reasonable care. We must take reasonable care driving a car, we must take reasonable care minding children and, specifically, doctors must take reasonable care of their patients. Obviously they must take reasonable care of their patients during pregnancy but also they must take reasonable care of their patients in all situations. That very general standard, which has no specificity other than the two words "reasonable care", is applied every day to every single medical decision that a doctor takes. If a doctor fails to exercise reasonable care, the doctor will be sued and a judgment will be made against him or her - and if the doctor is working for a hospital, against the hospital in question. Such lack of specificity, lack of legislation and lack of nailing everything down is part of medical practice not just in the area of obstetrics but throughout all disciplines. It is incidentally part of our lives in terms of every decision that we take which involves care for other people. One can say in regard to law that one can have a certain concern that one wants everything nailed down, but we are living in a legal environment, entirely outside the context of pregnancy, in which a generalised standard of taking reasonable care applies to doctors. One can read on the Internet all the judgments in which doctors got it wrong and did not take reasonable care and patients suffered or died as a result.

Second, let us reflect on the approaches that can be taken. What we need is clarity in the law, rather than legislation necessarily. In debates, perhaps not surprisingly, words become key words and carry messages. The word "legislation" at this stage equals the X case and the Supreme Court decision in the X case. One may say we must have legislation, which means we must have legislation that incorporates the X decision. That is a shorthand, as it were, for implementing the X case decision. However, that is not necessarily the case. One could have clarification, for example, through protocols and standards of practice with the greatest of specificity. One could have books of standards for clarification if one so desired. One could also have legislation clarifying existing medical practice in this area. It is not a question of having a fetish about legislation but rather a well-based, reasonable concern that the word "legislation" is actually a shorthand for implementation of the decision in the X case. That is a crucial point that must be made in that context.

It would be quite possible for the Oireachtas to introduce legislation if it so desires, or, as I suggest, to implement other methods such as protocols and standards of practice in this area which will cover the entire panoply of medical practice to treat a medical condition. One could do that over the next few months and produce some excellent material which would be useful and would allay any theoretical concerns that doctors might have. I stress again that the evidence the joint committee has received from doctors is that they are not actually holding back and failing to administer treatments to mothers out of concern for the law. They are going ahead and doing what they should do in the circumstances to save mothers' lives. The actuality on the ground is fine.