Ms Sunniva McDonagh:

I am a practising barrister, a member of the Mental Health Tribunal and a member designate of the Irish Human Rights and Equality Commission. I was also the editor of the Irish Reports at the time the X case was decided. We edited and prepared a special edition of the Irish Reports setting out the relevant arguments. However, anything I say this afternoon is entirely in a personal capacity. I want to make constructive criticisms of the Bill in a spirit of interrogating what might be possible. My criticisms should not be taken to suggest they will inevitably come to pass but, as legislators drafting legislation, it is important to examine the provisions to determine what they actually provide for, bearing in mind that our purpose is to bring clarity to the rights of the mother and the unborn child.

As there is no presumption that the heads of the Bill are constitutional, we can proceed on the basis of criticising them in that way. I do not want to rehearse the arguments made by other speakers but I wish to speak about the drafting of the legislation. In regard to clarity, head 2 on necessary medical practice in the context of physical risk contains nothing new. Medical practice in Ireland has been excellent in treating both mother and unborn child over decades. I am not sure any additional substantive clarity is brought to the matter by this head, which is unobjectionable. An issue that remains unclear, however, is head 4 and the threat of suicide. In this regard, I want to mention what was decided in the X case because we cannot leave out of the picture the fact that the Supreme Court formulated the test without the benefit of medical evidence or best psychiatric practice. The court did not have to consider and weigh expert testimony or psychiatric evidence as to whether abortion is ever a treatment for suicide or if other treatments could be utilised to avert the risk. This is what members have been considering over the past several days.

On foot of the Supreme Court judgment in X, a superstructure is going to be imposed in order to meet the test, involving various medical professionals. An earlier speaker argued that X was wrongly decided. I will not argue that but certain matters were not considered in X because certain concessions were made. X is silent on some of the issues arising around the threat of suicide and it now appears that the best psychiatric evidence indicates that abortion is not a treatment for suicide. However, the structure we are examining proposes to put in place and medicalise what in fact was a legal test. It cannot be ignored that the evidence of a psychologist, who was not advocating abortion, meant that the X test was fulfilled. A question arises as to whether we are legislating on a flawed presumption or hypothesis. It seems to me, based on the best psychiatric evidence available, that is what is being proposed. The medical evidence indicates that abortion is not a treatment for suicide.

If, however, the legislation is to proceed on the basis of this structure involving the various medical professionals, then it is important to make a few points about the draft heads of the Bill. The first point is that having involved psychiatrists in the process, there is no actual requirement that a psychiatrist must examine the patient before giving his or her opinion. The legislation states that a psychiatrist should examine the patient. However, the words "should" and "shall" are not the same. The way the word "shall" is used in relation to consulting the general practitioner can be contrasted with that particular provision. In law, a mere exhortation that somebody should do something is not mandatory or enforceable. It is very understandable that there would be reluctance to subject a woman in distress to any rigorous or invasive procedures but the question must be asked as to whether this would be an adequate justification for bypassing best medical practice in respect of diagnosis and treatment. A court called upon to interpret this legislation will consider the words used and not the aspirations of its framers.

The framers of the Bill have made reference to the Mental Health Act 2001 and it has also come up for discussion before this committee. It has been seen as a model in the framing of the heads. However, it is important to point out that the involuntary detention of a patient under that Act requires two separate and distinct medical examinations of the patient. That must be a personal examination and it must be carried out by a general practitioner and a psychiatrist. Failure to conduct such an examination will mean that the patient is actually unlawfully detained. In a recent High Court case, the judge described these examinations as vital, essential safeguards for the patient. This is altogether apart from the fact that under the mental health legislation, there is an automatic review of the detention at a later stage when two further medical professionals are involved. It is not clear why the framers of the legislation - in looking to the Mental Health Act 2001 as a model - have failed to provide that there must be an examination of the patient if, in fact, there are diagnostic criteria for evaluating suicide, etc. Failing to provide that psychiatrists must examine patients leaves the Bill open to the suggestion that psychiatrists are being involved perhaps for optical or non-medical purposes.

A further consequence of not requiring a examination of the patient is to increase the likelihood for forum shopping by the patient or the doctors involved. I ask members - as legislators - when they are examining the Bill to carefully consider what is proposed under head 4. What is proposed is that the psychiatrists involved should be employed at a centre registered by the Mental Health Commission and that one of them must be attached to the institution at which the procedure is to be carried out. One must ask what is meant by the words "attached" and "employed" because although a psychiatrist must be registered in the general specialty of psychiatry, there are extensive freedom of movement provisions. As a result of the fact that the legislation is all about clarity - and we are quite entitled to ask at this point what is intended - it is important to interrogate what precisely is to be required of the psychiatrists. For example, would it be sufficient if they hold clinics once a month or if, in circumstances where they are resident abroad, would it be sufficient for them to provide opinions without actually examining patients. This is a matter which, again, should be the subject of careful consideration.

The next point I want to make involves the risk of self-destruction and the foetus and potential viability. What is proposed represents a significant change in medical practice. Under head 2, the treatment is not actually the termination of the unborn life. Under head 2, where there is a physical risk, the unborn life, as a consequence of the medical treatment, might die but for the first time in statutory provision it is being provided that the actual treatment is the termination of the pregnancy. The proposed treatment is, in fact, abortion. Nowhere under these heads are doctors mandated to terminate a pregnancy via a procedure which might ensure the baby would survive. It might be stated that this is the intention, that the Supreme Court would never allow that, etc., but the purpose of the legislation is to bring clarity to the position. The proposed legislation does not bring clarity to the position. It should not be forgotten that the threat of suicide can be established late in pregnancy by a woman saying, for example, that it is the very fact of being pregnant or of carrying a child with a severe disability which is making her suicidal. If she is going to have the treatment, then that is actually the termination of the pregnancy. There is no comfort in the legislation that this does not extend right up until birth.

There are some other safeguards which I may not have the opportunity to discuss in view of the time limits which apply. I wish to state, however, that if members look carefully at "appropriate location and public obstetric units" in the legislation, they will see there is nothing in the legislation which seems to prevent the HSE from entering into arrangements with private providers or with co-locating the resultant services in public hospitals. After all, they only have to be co-located with maternity and neonatal services. Many treatments - for example, oncology or cardiac treatments - will not be carried out in public obstetric facilities. When the Bill is eventually published, it may well have to be extended in order to include other private or general hospitals. On the appropriate locations, one should give careful consideration to what may or not be permitted in this regard. I will be happy to answer any questions members may wish to pose.