Dr. Ciaran Craven:

I thank the Chairman and members of the committee for the invitation to present to it this afternoon. I know the members of the committee have heard a great deal in the past few days and I do not propose to delay them unnecessarily with what I have to say. Over the next few minutes I will give a very brief outline from an ethical-legal perspective in respect of the heads of the Bill. I will begin with the ethical issues, moving on then very briefly to the legal considerations that necessarily arise. I will then synthesise them regarding some general comments I wish to make in respect of the heads of the Bill.

As the Medical Council has made clear, good medical practice depends upon a relationship of trust between the profession and society at large. That requires the highest standards of professional practice and behaviour. That is the expression the council uses in its guidance. At the heart of this are the concepts of honesty, responsibility and accountability. To fulfil the duty the council defines for doctors requires that doctors seek the highest standards regarding their practice. A failure to meet those highest standards will attract opprobrium. It may either amount to professional misconduct on what they call failing below the reasonable standard test or indeed it may also amount to poor professional performance. However, that is a bit academic. At the heart of this is a requirement that proper professional standards be met and a failure to meet those standards is one that will result in certain sanctions, the nature of which do not actually concern us this afternoon.

At the heart of this is something simple - the safety of the public. It is about assuring that individuals receive the quality of care they deserve on the one hand. It is also about assuring that one can ensure that when that care is being delivered it is being delivered safely. I want to demonstrate that it is really not about matters of simple independent opinion. In other words there are objective standards that must be applied. Lest it be considered that this is simply an ethical matter which is of concern, in our legal order this is also given certain force. In so far as the law of tort is concerned, it used to be dealt with in the context of whether one followed, adhered to or subscribed to a general and approved practice, in other words one which was followed by a responsible, reputable or respectable body of professional opinion. That was the classical test and the classical formulation.

That seems to have undergone something of a transformation, particularly in recent years. I wish to reference two particular instances where this has occurred. The first was the case HM v. the HSE and a decision of Mr. Justice Charleton from July 2011. The case is significant because it actually incorporates evidence-based professional guidance into the appropriate standard of care. It is almost a reflex of incorporation and is virtually a definition of equipollence or equal power as between professional guidance which is evidence based on the one hand and then also the standard of care in so far as the law of negligence is concerned. That seemed to represent something of a shift in so far as the courts are concerned from this deference to clinicians in terms of what is or is not appropriate. That is hardly surprising given that over the past 25 years there have been very significant shifts in terms of evidence-based practice in general.

A further issue has also arisen. In its decision in the case of Kearney v. McQuillan, the Supreme Court went further in stating that health care professionals owe and always have owed a duty to patients to protect their constitutional rights. This in so far as our legal order is concerned has been elevated to a significantly higher level as well.

There is a question of an affirmative duty - an affirmative duty on the one hand which is imposed by the proper practice of medicine and secondly an affirmative duty which is then reflected in terms of what the courts have found and in particular the decision of the Supreme Court in the past 12 months or so.

Underscoring all of these it seems there is a requirement for some evidence in terms of one's practice. In other words, in order to fulfil the obligations that doctors have, be it at an ethical level or a constitutional or legal level, there must be some evidence in terms of what they do and that is about the only way the ethical injunction of primum non nocere - first do no harm - can actually be fulfilled.

That forms the backdrop to what I want to say in the context of the heads of the Bill. It would not be particularly useful for me to go through it head by head because the members of the committee and the Members of the Houses will have heard a great deal of that from other contributors and also previously. Suffice it to say that the heads of the Bill in terms of their philosophical approach having regard to those ethical-legal imperatives seem to have adopted an inverted approach in terms of what they seek to do.

When it comes to the question of certifying certain opinions in head 2, 3 or 4, in each case there is a requirement that the opinion be formed in good faith. With respect, when one is relying upon a good safety justification, that good safety justification as a matter of practicality will always succeed. Trying to demonstrate bad faith - mala fides - or even improper motivation in this area is virtually impossible. There is a whole series of cases where this has arisen under the old mental health legislation over the past 40 years. With respect it seems that this represents a very old-fashioned approach which is inconsistent with the ethical, now the legal and elevated to a constitutional duty that the courts have elaborated over the past two years in particular.

By incorporating some kind of objective standard or a reference to evidence-based practice, at least there is some template against which practice can be measured. That is simply not possible in the context of a statutory schema, which is predicated solely on the good faith of individual practitioners. I do not need to mention in this House the issues and problems that have arisen over the years in terms of individual practitioners - one would imagine acting in good faith - who were nevertheless damaging individuals in the most egregious circumstances.

A good faith defence in those circumstances would, under the terms of the scheme of this Bill, provide an absolute defence irrespective of how that behaviour might be considered to be referenced according to a template of evidence based practice. A good faith opinion which is accepted without any reference or is unsupported by any reference to evidence based practice is regressive and potentially dangerous. It represents an old fashioned approach, one which no longer finds favour with the courts or the regulatory body.

In that context, the question of the number of individuals who are required to review any particular decision is of academic relevance and significance because it presents the same difficulty or weakness in so far as it is simply based on bona fides. Some of the particularly bad scandals we have had over the past 20 to 25 years or so would indicate there must be a limit to the deference that any society must give to what amounts to clinical hegemony. If one wishes to write a recipe for abhorrent behaviour or clinical hegemony then the way to proceed is to carry on along this line and provide for a defence based solely on good faith.

The question of conscientious objection does not arise. When it comes to proper ethical practice, particularly one which is evidence based, there can be no issue in relation to conscientious objection. The model with which any doctor here is faced when presented with a woman who is pregnant is that he or she has two patients. It does not matter what one's view is on abortion on a personal or political level. The factual reality is that when a doctor is faced with a pregnant woman he or she has two patients and a duty to both. It seems to me that this is not necessarily flagged with particular significance in the Bill.

I am happy to respond to any questions from the Chairman or members of the joint committee.