Ms Sunniva McDonagh:

I hope I have got all the questions. The first question was on the Mental Health Act. I do not hold a view as to precisely what should happen but I would like to point out that there are other safeguards in the Mental Health Act other than the ones I have mentioned. The Mental Health Commission is an independent statutory body and it advertises and recruits independent lawyers, lay people and psychiatrists to sit on its tribunals. It is also mandated to act in the best interests of the patient. Interestingly, there is a five year review clause for the mental health legislation also. Looking at this proposed legislation, when we come to the review panel, it is the Health Service Executive that licenses the hospital, yet the HSE is also the body tasked with setting up the review panel and a HSE employee acts as convenor of the panel and chooses the panel. It was the framers of the legislation who were looking to the mental health legislation as a template and if it is to be seen as a template, it might be an idea to take some of these further safeguards from the mental health legislation.

I agree with Deputy Byrne. I do not believe that this is a very complicated issue. One would hate to think that the intervention of lawyers and doctors was over-complicating what is essentially a very simple issue in which everybody in the State and the people who enacted the Constitution have a stake and a right to have a view on. It is finding the right balance between two competing constitutional rights and one would hate to think lawyers were trying to be obtuse when, ultimately, it comes down to simple value questions.

With regard to the section 19 offence, the terminology in the draft is very unclear because it mentions the intention of ending unborn life. Throughout the Bill there is an interchangeable use of the phrases "termination of pregnancy" and "medical procedures". There is a very important principle distinction between the two but they seem to be used interchangeably throughout the Bill as if they were the same thing. Many medical procedures, such as oncology and cardiac procedures, which are performed on a woman whose life is at risk, happily do not end up with the baby dying. The intention of these procedures is to save the mother and if the baby dies it is a regrettable consequence of the necessary treatment, but sometimes the baby does not die. Interestingly the Bill mentions having procedures in place to bring to the attention of the Minister the statistics on this area. It might be a good idea not only to collate statistics on terminations at risk of suicide, but also necessary medical treatment which did not end the life of the baby.

It is a little problematic because it seems clear when a woman states she is suicidal, the reason she is suicidal is apparently the existence of the pregnancy, and this is the proposed basis for intervention. Not to minimise the terrible distress of a woman who feels she cannot possibly bring a baby to term because it has a disability or because she suffers from serious social stressors and she feels she will kill herself, surely then let us not confuse terminology. When psychiatrists certify without perhaps having examined the patient, an obstetrician will be faced with the certificates and will see in front of him or her a woman who is physically all right and baby which is physically all right. The obstetrician will then be supposed to intervene to avert the risk, which he or she must do apparently by directly targeting the unborn. I cannot see how this could be described as other than a direct termination of pregnancy. It is suggested and proposed that if the ground is enacted it will certainly be the case that this will not be a criminal offence. This is true. This is the reality and the distinction which one must emphasise between treating the mother and the baby dying unfortunately, and intervening in this direct way.