Mr. Tony O'Connor:

I am a practising barrister with no particular expertise in the abortion area, and the use of the word "abortion" may heighten people's feelings on the subject. Before proceeding, I echo the comments of my colleague barristers on the conduct of the meetings and I congratulate the Chairman on the way they have been conducted. It is a good exercise in democracy.

I am here to try to assist the committee and others who may wish to ask questions about practicalities in the practice of medicine and law. I find myself, in practice, most of the time trying to keep people out of court as opposed to fighting in court. With particularly sensitive areas like this, courts are the not the appropriate venue to fight in an adversarial way about who is right or wrong. There is some merit in the Mental Health Commission structure regarding inquisitive processes as opposed to the adversarial process.

I thank the committee for asking me to attend the committee meetings and I focused on two particular issues, which have already been covered. I took the opportunity of reading the transcript from last Friday and have had the benefit of reading in particular the views of Professor Kieran Murphy from the Medical Council. When I prepared my written submission I had not been aware that he would cover this area and I should say for the sake of full disclosure that I attend meetings in my professional capacity before the Medical Council. I have had no communications with the Medical Council with regard to its submission. Nevertheless, Professor Murphy summarised very concisely the facts on the capacity issue and I echo and endorse the view of the Medical Council regarding the public interest in ensuring clarity for doctors in making clinical decisions.

In the somewhat rushed draft I submitted early Friday morning in advance of any of these hearings I made a submission setting out present law regarding capacity and the scenario regularly faced by doctors. Such doctors come to lawyers for advice on what to do. It may be somewhat unsatisfactory in dealing with a woman's capacity to consent or refuse a procedure when there is impairment. I note the Oireachtas Joint Committee on Justice, Defence and Equality last year led to useful work by the Centre for Disability Law and Policy and I sincerely hope the assisted decision-making (capacity) Bill, which is due to be published shortly, will be enacted this year, as it will help in many areas for doctors and clinical practice. It is not seemly or right that many of the areas concerning capacity end up in the High Court. Although it is not a frequent occurrence, one or two cases have been outlined in the written submissions of people going to the High Court in that respect.

I have suggested in the introduction an amended wording for head 2(5). It covers two or three issues that should be taken in by the legislation and although it is not perfect, it is suitable for discussion purposes. It reads:

Following certification in writing by the two registered medical practitioners in accordance with head 2(1)(b), including certification has been had with regard to the right to life of the unborn, a decision by or on behalf of the patient must be made and communicated in accordance with law before the medical procedure is undertaken by a registered medical practitioner.

I am trying to cover two elements. Head 2(1)(b) as currently drafted indicates that the patient has the ultimate decision but I am anticipating instances where the patient would not have the capacity to consent or refuse permission, and I am trying to anticipate the introduction of the assisted decision-making (capacity) Bill, which will assist rather than substitute decisions. I will go into that in more detail if this committee so wishes, although I note the justice committee has already dealt with it.

Even if that Bill is not enacted, I suggest to the committee that the wording I propose would cover the area where a substituted decision must be made. It also helps to fulfil the duty of the State as required by Article 40.3.3° of the Constitution to ensure that regard has been had to both mother and baby.

It is important. Under the present draft I believe it maybe covered but there is no harm in copperfastening the certification by the doctors regarding the defence and vindication of the rights of both parties. I note the repeated request by contributors last Friday for the merging of heads 2 and 4 and that is a decision to be made by the committee, and subsequently when it is presented to the Dáil. It is principally a matter for the Parliamentary Counsel, however I see merit in attempting to rule out possible different applications under the different headings.

I endorse the opinion of the Medical Council that the monitoring system to be provided under heads 11 and 14 should incorporate appropriate requirements to preserve confidentiality of the patient and the certifying practitioners. The provisions already in the draft heads are of the type that would allow the Minister to bring in regulations, and this would be helpful. This is a very sensitive area and I suggested the Minister would be given a focus as to what those regulations are about. The regulations should provide that this is for monitoring as opposed to enforcing any particular regime.

I have heard the comments by my colleagues, in particular Dr. Mills, about criminalisation and I echo those views. These provisions are too widely drafted. Criminal provisions should be focused on what is to be criminalised as opposed to leaving it uncertain as to what can be prosecuted in time. Again, I can address that if the members of the committee wish.

Dr. Mills in particular referred to the definitions section and, again, I believe the Office of the Chief Parliamentary Counsel will pick up on many of the topic discussed at this hearing and when this Bill goes through the Oireachtas. However it is very important to scrutinise each of the terms used in the definitions section because it will have an impact on its application. For example, the word "patient" needs a definition in light of what may happen in the future. Perhaps it is tangential to all this, but the patient in this case is clearly intended to be the woman who is carrying the foetus, as opposed to any other person who has an interest in that foetus and therefore perhaps some focus is needed in that regard.

I repeat my view that the High Court and the Supreme Court are not the places to fight out the issues that can be anticipated here. I am prepared to answer any questions and if I can provide any assistance, now or in the future, I am more than willing.