Kieran O'Donnell (Limerick City, Fine Gael) | Oireachtas source

I will speak on amendment No. 32. We have had a discussion about this, but I would like to discuss section 9 specifically. I understand how the Minister has rearranged the section, which makes perfect sense. The amended section 9(1)(a) states: "subject to section 19, three medical practitioners, having examined the pregnant woman, have jointly certified in good faith". I had a look back when the Minister was talking about the legal position and the issue with best medical practice, and I have a suggestion, although I do not know whether there is any merit in it. Section 73 of the Mental Health Act 2001 is the only provision under which people must go to court to take legal proceedings against a practitioner. It mentions within that section that the court may refuse leave to initiate proceedings in cases in which "there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care". Would it be worth considering the addition of a similar phrase to the Bill? For example, the amended section might state: "having examined the pregnant woman, have jointly certified in good faith, and having acted with reasonable care, that ..."? That would provide comfort with regard to best practice without in any way detracting from the provision and in keeping with legal precedent as laid down in section 73 of the Mental Health Act 2001. It is a legal question which has resonates in sections 7, 8 and 9, but particularly section 9, and goes back to the definition of "reasonable opinion" in the interpretation section of the Bill, which states:

"reasonable opinion", in relation to a medical practitioner or review committee, as the case may be, means an opinion formed by the practitioner or committee, as the case may be, in good faith which has regard to the need to preserve unborn human life as far as practicable...

Based on my suggestion, the words "and having acted with reasonable care" would come after "in good faith" and before "which has regard". What I am doing is to examine the question of good faith to find a way to provide clarity while not in any way interfering with best practice. Such a wording is there in legislation already. I would like the Minister's comment on that. My understanding is that the provisions in section 73 of the Mental Health Act 2001 are the only situation in which a patient is required to go to court to initiate legal proceedings in any shape or form against a doctor or whomever. In this case, there are two things laid down in the legislation:

(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

I am not being vexatious today and simply wish to make a point. The section continues:

(3) Where proceedings are, by leave granted in pursuance of subsection (1) of this section [That means that the court has allowed them to proceed], instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.

This may represent a circumstance in which good faith could be clarified by a reference to reasonable care. Such a provision could provide comfort without in any way interfering with best practice. I ask the Minister to address the matter from a legal perspective.