Dr. Ciaran Craven:

The questions asked by Senators Reilly, Byrne and Bacik relate to foetal abnormality and what the unborn is. I listened with interest to what Dr. Fletcher stated and it strikes me as quite a novel proposition that we can characterise life as having three different forms. Be this as it may, I am concerned about Senator Bacik's characterisation, and I am subject to correction on this, when she discussed the question of lethal foetal abnormality and whether it is something which ought to be protected. We must be very careful to note the mere fact a baby happens to have a lethal abnormality does not of itself mean it is wholly inconsistent with life. Generally it means it is inconsistent with prolonged life. It may well be a matter of minutes, hours, days or even months.

The committee should be careful not to consider lethal foetal abnormality as something that is incompatible with life outside the womb in the sense in which that is ordinarily understood.

There has been some discussion of what "unborn" means, as if it is an abstract verbal noun. Committee members will be aware that, when this is dealt with in Article 40.3.3° of the Constitution, the Irish expression is "beo gan breith", which literally means living without being born. Senator Bacik rightly referred to section 58 of the Civil Liability Act 1961. With respect, however, it does not refer to the unborn, but to the unborn child. This is not limited to our domestic legislation - it is found in European directives as well, including one referenced in my paper, the medical exposures directive. Article 10.2 of that directive refers to the duty to the mother and the "unborn child" in the context of ionising radiation involving the abdomen and the pelvis of a woman who is or may be pregnant. We must remind ourselves that we are discussing an unborn child, not an abstract verbal noun.

Deputy Catherine Byrne was right, in that one signs a consent form in good faith and expects doctors to act in good faith as well. We are entitled to rely on that expectation. My point, which I might be making somewhat inelegantly, is that good faith, while necessary, is not sufficient. I can treat someone in good faith and make a complete mess because I breach all appropriate standards of care and misunderstand what is wrong with the patient and how he or she should be treated. Good faith and proper professional practice are not interchangeable.

Reverting to Deputy Ó Caoláin's comments, my philosophical difficulty with this is that it adopts the good faith model, which is old-fashioned, regressive and potentially dangerous. Relying on the good faith of doctors in this day and age is no longer sufficient. Neither the Medical Council nor the courts believe it is sufficient.

I disagree with Senator Bacik's characterisation of the proposed legislation as something that does not change anything about the duty owed to the mother and her unborn baby. It does not recast the duty of care, but the appropriate standard. It regresses to an old-fashioned standard, one that was fashionable in the courts 30 to 60 years ago. From a patient safety point of view, it is no longer sustainable.

The point on review panels has been addressed by Ms McDonagh. That the Oireachtas vests so much trust in doctors to get it right all of the time when the natural history of health care in this jurisdiction indicates - not globally, but in certain high-profile instances - the contrary is perplexing. Doctors are good people, but they are not necessarily the ones who should have the final say in this regard. It is these questions of policy and the underlying principle that I commend to the committee.