Dr. Simon Mills:

I thank the committee. I compliment it on the extensive amount of work involved in the hearings of recent days as well as in the preceding hearings and the output of same, namely, the committee's report and the heads of the Bill that we are discussing today. The Bill encapsulates the terms of the X case. My broad overview of matters is that it does so adequately. As the Government was entitled to do, the Bill leaves to one side broader considerations of Article 40.3.3° for another day.

The committee has my brief written submission. Due to tight timelines and as with everyone who has contributed to the hearings, not everything that I originally thought about the Bill was contained in that submission. As I have considered the Bill, a number of other matters have also come to mind. I propose to use my opening submission to address a number of matters, aside from those set out in my written submission, that would be of relevance for the committee and, in due course, the Oireachtas to consider. I will do so in the order of the heads of the Bill, precisely as one would do if making a written submission.

The definitions of unborn and implantation as set out in the definitions section could be merged into one. Implantation is defined as "implantation in the womb", but the word only appears once in the legislation, that being in the definition of unborn. It seems logical that, if unborn is to be defined in the Bill, one could simply refer to implantation in the womb.

The requirement to form a reasonable opinion is set out in heads 2 and 4 and defined in head 1. As currently drafted, the reasonable opinion provision requires the doctors to have regard, in so far as is practicable, to the right to life of the unborn. If this definition is to articulate fully and properly the tests laid down in the X case, the expression it gave to Article 40.3.3° and the language of that Article, the reasonable opinion should also include, by way of balance, the obligation to have regard to the right to life of the mother.

I will address heads 2 and 4 together. Head 2 deals with a threat to the life of the mother arising other than by the threat of self-destruction. Head 4 deals specifically with the question of suicide and suicidality. Clearly, a decision has been taken to treat suicidality in a different and contingent fashion when compared with the threat of physical injury. We must all be pragmatic about this - the reasons are, to some extent, political. However, a number of issues should be considered in respect of heads 2 and 4 if head 4 is to survive and become part of the legislation. I will refer to that matter in a moment.

Heads 2 and 4 do not give sufficient detail to the test that is to be applied by doctors in assessing the threat to life. An aspect of the X case judgment and the articulation it provided of Article 40.3.3° is a requirement that the threat to life must be present as a matter of probability. In so far as this formed part of the X case judgment, the requirement that the standard to be met on the part of doctors assessing the threat to the life of the mother should be expressly stated to be a matter of probability.

Under heads 2 and 4, which require that there be an examination of the mother, it occurs to me that "examination" is the wrong word. I touched on this issue in my written submission. It may well be that there are assessments of the pregnant woman that do not require an examination of the woman herself, but an assessment of radiological images or blood tests. It may be that a particular condition is so rare that a consultation must be held at a distance, meaning that a physical examination is not possible. Where the word "examination" is used in heads 2 and 4, it might be made the subject of a definition under head 1 or be dealt with more extensively in heads 2 and 4 to address, among other issues, the express requirement for a consultation with the woman and the possibility that an examination might be other than a physical examination or might require something more than a mere physical examination.

I anticipate that the issue of whether heads 2 and 4 should be separate will arise in questioning and I do not propose to deal with it in this submission. I propose to speak to it later.

Heads 6 to 9, inclusive, address the issue of reviews and appeals of decisions that are or may be made under this legislation. I will deal with them collectively instead of breaking them down. Having given the Bill consideration subsequent to the preparation of my written submission, a number of issues occurred to me that may be matters that the committee and, in due course, the Oireachtas wish to consider. First, the requirement or otherwise for the provision of a scheme of legal representation for those who may require it in the setting of any review.

It strikes me that this requirement may arise in two possible settings. One relates to the simple fact that a person may not be best placed to put her own case and may require it to be put for her. Whether some form of assistance will be required is, of course, a matter for the Oireachtas. However, there is also another area that arises, relating to the question of capacity to argue one's case. Issues were touched upon yesterday by a number of the witnesses in regard to capacity in terms of age and mental capacity. It may well be that the committee and, in due course, the Oireachtas, may wish to give consideration to those.

I mentioned the issue of a matter of probability, namely, the requirement that the risk be present as a matter of probability in respect of heads 2 and 4. This issue also arises in any assessment that is to be made by a review panel under heads 6, 7, 8 and 9. The question may be asked whether ultimately there is, or should be, a role for the court in determining aspects of disputes that may arise - such as whether the High Court has a role to play as the ultimate arbiter of disputes that may arise in respect of the operation of the Act. It may be that nothing like that needs to be expressed because the court has its jurisdiction.

I refer to head 12 which deals with conscientious objection. I dealt with a number of matters in my written submissions. One issue that arises is how extensive is the right of conscientious objection, in particular to what extent, for example, conscientious objection arises where an opinion is sought; to what extent there is an obligation on an individual to notify either the existence of a conscientious objection or of previously publicly expressed views of which a patient may not be aware. It may be there is no such requirement but there is a necessity at least to consider the balancing of rights involved in freedom of conscience on the one hand and access to a constitutionally available right on the other.

The last matter I wish to deal with, briefly, is head 19, which provides for the criminalisation of certain acts. In my written submissions I set out a number of specific criticisms but it strikes me there is one more general observation to be made which, now that I think of it, was so obvious it did not occur to me at the time, as is often the way. This is the fact that head 19 is simply over broad in the offence it creates. The idea that any act done with intent to destroy human life would be a criminal offence is, on its face, a significant over-statement of the position contained within the 1861 Act. If what is intended by head 19 is a simple restatement of the criminal prohibition in the 1861 Act I would think head 19 misses that mark. It may also be wished to give some thought to the question of the criminalisation of the vulnerable and desperate pregnant woman, which the Act also contemplates. It may well be that this is dealt with by the need to bring prosecution only through the Director of Public Prosecutions but it is certainly a matter to which I ask the committee and, in due course, the Oireachtas, to give consideration.