Dr. Simon Mills:

On the question of merging heads 2 and 4, there are a number of ways of looking at this. They can be dealt with separately but if they are to be dealt with separately it should be done by the application of the same legal test, whatever the threat to life of the mother. No distinction was made in the X case and no distinction is made in Article 40.3.3o to the effect that with due respect to the life of the mother, except for those threatening suicide. By that logic, once it is accepted, and I perfectly understand that there are those who do accept this view, there is no ground for discrimination between those threatening suicidality and those whose threat to health is physical, save for the expertise of doctors who may be called in aid when it comes to the provision of medical expertise. It does not seem to me that the distinction stands up.

That becomes clear when we look at head 4. It asks for two consultant psychiatrists and a consultant obstetrician and gynaecologist. It leaves open the prospect that two psychiatrists might form the view that suicidality is present such that it poses a threat to the life of the mother only to be vetoed by the consultant obstetrician and gynaecologist. That is a vanishingly unlikely prospect but it is a curious prospect to have in the legislation. Mr. Brady and Ms Simons talked about this earlier. What are the consequences of the rules the Bill is laying down? That is one consequence.

Mr. Brady mentioned that head 4 changes the law. I think the position is precisely the contrary. To exclude suicidality is to change the law because the law as it currently stands is the law as laid down in the X case by the Supreme Court in its interpretation of Article 40.3.3o. When that argument is put forward, there is curious burden shift that is not being dealt with in these hearings, which is that when the burden is all of a sudden about changing the law to exclude suicidality, that burden requires a heavy onus to be discharged by those looking to change the law. It is for the committee to decide if that onus is being discharged.

Deputy Fitzpatrick asked about consequences of delivery. I agree with Mr. O'Connor that it lies with the discussion of the heads of the Bill as they stand, save for one observation that might commend itself to the committee and the Oireachtas, whether or not there is a requirement, as there is under the Mental Health Act 2001, to deal with questions of civil liability that may arise from acts done in good faith under the provisions of the Bill. It may be that some such section would be appropriate.

Senator Bacik asked three questions. She referred to the scenario where there is no fetal heartbeat and whether some form of clarification is necessary. Once that is the scenario, one is talking about a wholly different medical phenomenon, missed miscarriage, and that falls to be treated in the way that a missed miscarriage would ordinarily be treated. There is a half-way scenario that relates to the question of the inevitable miscarriage of the non-viable early pregnancy. That remains a grey area.

On the question of consultation with the GP and the woman's consent being required, that is a difficulty created by the introduction of the world "shall", saying doctors "shall" consult with the GP. The requirement for the consent of the woman is atomised by that requirement. She does not have an entitlement to give or withhold consent. That might be a problem.

On the question of attempting a termination and whether it should be criminalised, the confounding element is Article 40.3.3o itself, which contains an obligation to have regard to the life of the unborn. It may well be, therefore, that an attempt to terminate the life of the unborn should be regarded as a criminal act.

While that is obviously a matter for the Oireachtas, I certainly believe that head 19, as currently structured, needs to be broken down very minutely to deal with different aspects, possibly with different penalties.

Deputy Naughten asked a question about probability which, with the greatest of respect, confused two issues. Noting that if the test to be applied must be whether, on the balance of probability, there is a real and substantial risk to the life of the mother, the Deputy asked about those doctors who are saying that a 5% risk is enough. That is to confuse two different things. On the one hand, there is the question of whether a risk is present that could be termed a real and substantial risk to the life of the mother. This is where the balance of probability emerges. The first consideration is whether a risk is present. The second question is what measure we apply to determine that the risk that is present is real and substantial. It may well be that 80% of something that is not especially serious is not a real and substantial risk, whereas 2% of something potentially catastrophic may be real and substantial. It will be a clinical judgment made in all of the circumstances of the case. The first question to be asked, however, is whether there is anything that, on the balance of probabilities, can be characterised as a real and substantial risk present. One then goes on to analyse the risk.

The penultimate questioner asked whether head 19 could criminalise acts carried out under heads 2 to 4, inclusive. As currently drafted, the answer is "Yes" because clearly there is a termination that could be carried out under head 2, 3 or 4 which has, as its intention, the destruction of unborn human life. The scenario outlined is certainly perfectly possible. While it may not be directly intended, it may well be an intention. If that is the case, some kind of saver needs to be inserted in head 19 referring to acts carried out under heads 2 to 4, inclusive. I addressed this issue in my written submissions.

I will briefly address the question put by Deputy Mary Mitchell O'Connor because she is my local Deputy and I want to keep her on side. There is a requirement for a balancing act. On the one hand, one has the right of the doctor to his or her conscientious objection while, on the other, one has the right of the woman to exercise her right to obtain a termination in certain circumstances.