Oireachtas Joint and Select Committees
Wednesday, 31 May 2023
Joint Oireachtas Committee on Health
Report of the Review of the Operation of the Health (Regulation of Termination of Pregnancy) Act 2018: Discussion
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Deputy Bríd Smith will deputise for Deputy Gino Kenny, Senator Sherlock will deputise for Senator Hoey and Senator Ruane will deputise for Senator Black.
Draft minutes of the committee meetings on 23 and 24 May 2023 have been circulated to members. Are they agreed? Agreed. We have some agreement this morning.
The main purpose of the meeting is to consider the report of the review of the operation of the Health (Regulation of Termination of Pregnancy) Act 2018. The report, which was commissioned by the Minister, Deputy Stephen Donnelly, was referred to the committee by him for consideration. To assist the committee's consideration of the report, I am pleased to welcome Ms Marie O'Shea, barrister-at-law, the chair of the review. Ms O'Shea is accompanied by Dr. Catherine Conlon, assistant professor in social studies at Trinity College Dublin.
All those present in the committee room are asked to exercise personal responsibility in protecting themselves and others from contracting Covid-19.
I will read a note a privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed by myself to discontinue their remarks. It is imperative that they comply with any such direction.
Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses, or an official, either by name or in such a way as to make him or her identifiable. I also remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any members taking part via MS Teams that, prior to making their contribution to the meeting, they confirm they are on the grounds of the Leinster House complex.
We will commence our discussion. I invite Ms O'Shea to make her opening remarks. She is very welcome.
Ms Marie O'Shea:
I will present the opening statement. I thank the committee very much for the opportunity to discuss the report of the independent review established in December 2021 to examine the operation of the Health (Regulation of Termination of Pregnancy) Act 2018.
The terms of reference called for an assessment of the extent to which the objectives of the Act have and have not been achieved; an assessment of the impact of its operation on access to termination of pregnancy services in the State and, in that sense, taking into account the level of service provision prior to commencement of the Act; figures on Irish women accessing termination of pregnancy in this country and in other jurisdictions; an examination of the arrangements put in place to implement the Act; and to make recommendations, as appropriate.
The report is evidence based. Pursuant to the terms of reference provided by the Department of Health, the report is informed by three strands of evidence. The first of these is the Report of the Unplanned Pregnancy and Abortion Care, known as the UnPAC Study, which was authored by Dr. Catherine Conlon, Dr. Kate Antosik-Parsons and Dr. Éadaoin Butler from the school of social work and social policy at Trinity College Dublin. This research was commissioned by the HSE sexual health and crisis pregnancy programme to develop an in-depth understanding of the experiences of people who have accessed unplanned pregnancy support services and abortion services since 1 January 2019. That project began in December 2019 and was published in July 2022.
The report is also informed by a realist evaluation of health providers’ perspectives of termination of pregnancy service implementation led by Dr. Deirdre Duffy, who was a reader in critical social policy at Manchester Metropolitan University when she was awarded the research contract by the Department of Health following a tender process. That research was conducted by Dr. Duffy, Dr. Lorraine Grimes from Maynooth University, with research assistance from Ms Bethany Jay and Mr. Jack Callan. It was also informed by a public consultation that received 6,976 submissions and was designed and facilitated by the Department of Health and analysed by M-Co, which was appointed by the Department. Additionally, supplemental research, in the form of a survey of GP practitioners, to provide a picture of termination of pregnancy in general practice and explore further the reasons for provision and non-provision, the scale of non-provision and the impact of provision in secondary care on the provision in primary care, was also conducted as an adjunct to the review of health providers’ perspectives.
The report is also informed by meetings I had with three service users, six service providers in the primary care setting,16 service providers in the hospital setting, senior management personnel in a non-providing unit and nine key senior personnel in the HSE and Department of Health; my attendance at the annual conference of the Southern Taskforce on Abortion and Reproductive Topics, START, which is an organisation comprising approximately 300 service providers from different disciplines; the preliminary findings of the Conscientious Objection after Repeal, Abortion, Law and Ethics project known as the CORALE study, which was led by Dr. Andrea Mulligan and Professor Joan Lawlor from Trinity College Dublin. This study investigates the operation of the right to conscientious objection in termination of pregnancy services in Ireland, and is also informed by a review of the literature.
To ensure that the report was underpinned by academic rigour, I invited Dr. Catherine Conlon to advise on methodology. I became aware of her academic interest in the area of termination of pregnancy upon seeing her named as the author of the UnPAC report in the terms of reference provided to me by the Department of Health.
The recommendations of the report are grounded in reality. Dr. Mark Murphy, GP, and Dr. Vicky O’Dwyer, consultant obstetrician, provided opinions on the draft recommendations. They were nominated by the president of the Irish College of General Practitioners, ICGP, and the chair of the Institute of Obstetricians and Gynaecologists, respectively. The report was also informed by the evidence-based Abortion Care Guideline, published by the World Health Organisation in 2022.
The objectives of the Act, which are to provide abortion services in circumstances where pregnancy does not exceed 12 weeks, provided for in section 12, and beyond that point, where there is a risk to life or of serious harm to the pregnant woman, provided for in sections 9 and 10, or where there is a condition present that is likely to lead to the death of the foetus before birth or within 28 days of being born, provided for in section 11, are being achieved but not in all cases. Significantly, the review discovered that women who may be eligible for care in Ireland may be travelling to procure termination of pregnancy services abroad in circumstances where they presented themselves to the GP before their pregnancy exceeded 12 weeks but timed out due to the health system not being able to provide the service within the prescribed timeframe; they presented themselves to the GP before the pregnancy exceeded 12 weeks, received treatment which failed, they continued to be pregnant and subsequently timed out of care; their request for a termination of pregnancy was refused due to the challenges that arise for medical practitioners in applying sections 9 to 11, inclusive, of the Act; the decision-making process around eligibility for a termination of pregnancy under the grounds of section 9 to 11 felt so protracted and uncertain that they feared they would exceed the time limit for termination of pregnancy in another jurisdiction; and they were unaware of their right to access care under sections 9 and 10 and their medical practitioners were unable to advise them due to a lack of clinical guidance and standardised pathways of care, in circumstances where a patient presents with, for example, mental health risk, cardiac risk, cancer care risk or teratogenic high-risk medication.
Notably, the review presents evidence of the negative effects on service users of the mandatory three-day waiting period in the early termination of pregnancy regime. In practice, the wait may extend beyond three days if it coincides with weekends or public holidays. The report addresses the challenges of operationalising the sections of the Act experienced by providing healthcare professionals and the negative effects that ensue from criminalisation of medical practitioners which risks the practice of defensive medicine and exerts a dissuasive influence over decisions to participate in the provision of services.
The Act does not sufficiently address the balance between the right to conscientiously object and the right to receive healthcare, specifically to enable employers to make the requisite inquiries in the recruitment process to identify candidates who would be willing to perform abortion services. There is believed to be a direct correlation between a GP’s decision to provide the service and the proximity of a providing maternity hospital. The review reveals the uneven geographic distribution of primary care and hospital services. As of February 2023, 422 contracts had been entered into between primary care providers and the HSE and 11 of 19 maternity units were providing full services under the Act. The right to exercise conscientious objection by consultants has been attributed by senior managers at the HSE as a major reason hospitals do not provide full services. The members of senior management at a non-providing unit with whom I met also attributed the lack of service provision to its consultants holding a conscientious objection.
Recruitment of consultants willing to provide the service is key to implementing the strategy to increase the number of providing maternity units. However, the review uncovered an apparent lack of clarity about whether employers could ask candidates about their willingness to provide abortion services or whether this could feature as a term of the contract, due to the provisions of the Employment Equality Acts 1998 to 2015. There have been two known appointments where the successful candidates, on commencing employment, declared that they held a conscientious objection to abortion.
The report contains ten recommended changes to the legislation to address the challenges and barriers to service delivery related to its provisions. It also recommends that the Department of Health take a collective leadership approach, involving health care professionals, patient representatives, lawyers and, if required, ethicists to obtain a better understanding of the difficulties surrounding operating section 11, in diagnosis and prognosis, and how the challenges can negatively impact on parents, and to consider alternative grounds that would be clear to apply in practice and would be in keeping with the spirit of the legislation. The report further recommends that a collective leadership approach should be taken to assist the Department of Health with developing guidelines to accompany the statute to assist healthcare professionals in implementing sections 9 and 10.
The report includes recommendations to address gaps in resources that are barriers to service delivery. It includes a summary of the evidence-based improvement guide to delivery of excellent services that emerged from the findings of the realist evaluation conducted by Dr. Duffy and Dr. Grimes.
I have heard senior members of Government and others voice concerns about changes to the legislation, fearing that they would be perceived as being tantamount to a breach of promise with the electorate. I have heard them express their reluctance to amend the Act in accordance with the recommendations contained in the report. At first sight, this is an understandable response. The draft framework of the legislation was presented to the people of Ireland prior to the referendum in May 2018 to provide clarity as to how termination of pregnancy services would be regulated. I think it is reasonable to say that among the 66.4% of those who voted in favour of repeal of the eighth amendment were people who would have been influenced by the scope of the proposed regulations. They may hold genuine fear that the recommendations contained in the report represent the start of a creep towards a more progressive termination of pregnancy regime.
I want to assure this committee that that is not the purpose of the recommendations. I believe the electorate could not have foreseen the difficulties that would arise in operationalising the Act. The Legislature included a provision to review the operation of the Act after three years. The inclusion of this provision reflects good practice in the modern-day design and roll-out of new health services, which are evidence-based, piloted and adapted to ensure they are capable of achieving their objectives and being implemented before being fully rolled out. My hope is that the review will lead to legislative change. This will require strong leadership and courage from the Government.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I have a proposal on the sequencing of speakers. There is one non-member of the committee present. I propose that any non-member who was here at the start be given a slot at the end of the first round of questions, members who wish to contribute a second time be permitted to do so thereafter and, if time permits, any other non-member in attendance be permitted to contribute after that. I think that is the fairest way to avoid confusion.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I second that. I think it is a very sensible proposal.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Is that agreed?
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
I think I am the non-member. I appreciate the proposal and thank Deputy Cullinane.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Senator O'Reilly agrees.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I had intended allowing the Senator in anyway.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
I think the distinction was that the proposal deals with the non-member who has been here from the beginning, rather than those who may come in later.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Members have ten minutes each in the first round. I ask them not to ask three questions and leave 50 seconds to answer them. I will try to get as many non-members as possible in the second round. Deputy Durkan is leading us off this morning.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I welcome the witnesses and thank them for their work over a relatively short time. I welcome the report. I have some questions on which I would like clarification. I come to the table as one who was on the original committee and I see some of my colleagues from that committee here today.
On the operability of the Act, it was foreseen that it would be necessary to see how the Act operated and whether the services were provided in the order and to the extent they were anticipated. It would appear that they were not for a number of reasons, including conscientious objections and the three-day waiting rule. Some of the reasons I accept and others I do not, given that I have been involved in this from the outset. I would like some elaboration on the cases of women who present to their GP before their pregnancy has exceeded 12 weeks but timed out as a result of the health system being unable to provide a service in the prescribed time.
Ms Marie O'Shea:
The dating of the pregnancy is from the first date of the last menstrual cycle. People can sometimes be quite slow in realising they are pregnant for various reasons. It might be that they have an irregular menstrual cycle. There are various different reasons and they are set out in the report. The Act states that a person can access termination of pregnancy services where the pregnancy does not exceed 12 weeks. People who present at a later stage to the GP, presenting at nine weeks plus six days, have to be referred to a hospital for a termination of pregnancy to be managed there. A person may present at week 11, and I am told by GPs that this more often affects more disadvantaged groups in society and, as I said, people who do not realise they are pregnant until later for medical reasons, and will need an ultrasound scan to date the pregnancy. Someone with an irregular cycle may not be able to date their pregnancy from the first date of the last period, for instance, and may need to be sent for an ultrasound. In some parts of the country, that works very well. In other parts of the country, the pathway is less reliable. It can work well in some of the private services but sometimes they do not. For example, it may be that the GP makes the choice to make a referral and the referral is not responded to. The GP follows up and is told the sonographer or radiologist is not there and another appointment is made. The time moves on and the clock ticks down and by the time the person has dated their pregnancy, they may be at a stage where, because of the three-day wait or simply because of the delay in assessing the time of the pregnancy, they have timed out.
There is a quotation in the report from a primary care provider where a person presented late in the first trimester. The provider was trying to arrange a hospital appointment for that person. As this service does not warrant the hospital running a service every single day of the week - even in the larger hospitals it may be two days a week - a difficulty in making a referral to a hospital for a person to be seen may result in the person also timing out. If there are public holidays, Christmas time for instance, between the first visit and the mandatory three-day wait so that the mandatory three-day wait is extended, that can exacerbate the problem.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Was there any reluctance on the part of any of the hospitals given that not all of them are operating a service?
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
We had a long discussion on this part of the Bill four years ago in which some of the issues Ms O’Shea mentions were anticipated. However, a reluctance or an inability of a hospital to provide a service was not referred to very much.
Ms Marie O'Shea:
I am sorry to cut across the Deputy. I understand what he is saying. The issue is the logistics. When services are set up it is good practice to appoint a co-ordinator in the hospital to liaise with primary care providers and then to make the arrangements in the hospital itself with the bed management, the consultant and whoever else. Those people are not always there or employed on a full-time basis. If they are not there, things can fall through the cracks and that has happened.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
This would presumably affect the post 12-week period.
Ms Marie O'Shea:
It can lead to people who are within the 12-week period, where there is a delay and the GP cannot make an appointment because, say, the co-ordinator is away and there is a failure in the pathway or there is a failure in the pathway for other reasons, being unable to access the hospital services in time.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
The other issue that comes to mind is the number of women who seek to go overseas to obtain the termination service. How prevalent was that? What were the main causes? Did conscientious objection account for that at all? Do we have precise numbers? We have heard reports in the media of thousands of Irish women going back overseas which is something the legislation was trying to prevent. Do we have numbers and information on the circumstances which drove women to go overseas in those cases?
Ms Marie O'Shea:
We do not have precise numbers because those data are not collected. One of the things mentioned in the report when it comes to monitoring and evaluation is that it would be good to get an understanding of what people did next when they were refused a termination of pregnancy here. To have that knowledge would be very important from the perspective of designing public health services. There are very few countries that disaggregate their figures. England and Wales will indicate how many people who used abortion services there provided Irish addresses. We know the same from the Netherlands, so we know from those figures that Irish people are still travelling. I know anecdotally-----
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Are they travelling to the same extent as before the legislation?
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Do we know how much of a difference?
Dr. Catherine Conlon:
One of the things that we notice in those statistics is that the numbers travelling under the fatal foetal anomaly ground have stayed quite steady. Travelling for access in the context of a fatal foetal anomaly has not changed significantly with the implementation of the Act in Ireland.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I do not have very much time left. That is an interesting subject. I will come back to it if possible.
My final question relates to the general efficacy of the Act. Has it dealt with the various issues in part, in total or not at all? I note the 61% who made a decision to go overseas made that decision in their own interests, which, of course, they are quite entitled to do, either on health grounds or whatever, and having particular regard to some of the things that happened in this country previously. I do not want to drag it on at this stage - it is not possible to do so - but I will come back to this question again.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I am going to move next to Deputy Cullinane.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I welcome our witnesses. I commend them, their team and all of those involved in the research on their work and thank them for it.
I will start by making one point . A lot of the media attention, and I would argue some of the political attention, has been on the legislative changes, which are important. The operational recommendations that Ms O'Shea makes are equally important. We are five years on from the Act coming into place. It is disappointing that we have the geographical barriers and that there are still issues with access to services for women, which can be dealt with by operational issues through resourcing and through other creative measures that Ms O' Shea recommends in her report. I commend those operational recommendations. I would argue that they should be expedited and delivered as soon as possible. Some of them, such the geospatial mapping that was referred to, should have been done already. I accept and commend those recommendations that arise out of the review.
I have some questions on the legislative changes because it is something the politicians would need to focus on, obviously, as it is our responsibility to legislate. From the witnesses' perspective, is there any medical reason why the three-day wait should remain?
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Is there any legal reason?
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
There is no medical reason and there is no legal reason.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
What is the reason for it remaining? What is Ms O'Shea's view as to why it was included in the first instance?
Ms Marie O'Shea:
It was probably included in the first instance, perhaps in good faith, because there was a fear. Nobody could anticipate how the Act would be implemented, how people would access the services, or what their attitudes would be to accessing the services under the Act. Obviously, it was included to provide people with a reflection in order that they did not make a mistake they would later regret. That would be my reading into it. It has transpired, from the evidence base we have in the report from the UnPAC study, that women almost universally said they did not benefit from having a three-day wait and that they did not see the benefit of it for themselves.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
From Ms O'Shea's perspective, and from the research that underpins this report, Ms O'Shea is very clear there is no medical reason or legal reason why it should remain.
Dr. Catherine Conlon:
If I could, I will elaborate from the position of what women who are accessing care said, given that they are trying to navigate - as Ms O'Shea described in her response to Deputy Durkan's question - a very complex care pathway as they seek very time-sensitive healthcare. The three-day wait not only has no medical or legal underpinning, one of the things it is doing is causing anxiety and distress.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I want to get to that. I have very limited time. I appreciate the answers that I have been given. The report goes into this in detail with the UnPAC report, which showed that the respondents wished to access care as expeditiously as possible and did not perceive any benefit of having a three-day period of refection on their decision. The stated that they felt certain of their decision, that they had not taken it lightly and that they had reflected prior to attending a clinician in the first instance. The Mullaly report, which is mentioned, supports that perception and describes the necessity for a waiting period as being presumptive and patronising.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Would the witnesses agree with that?
Ms Marie O'Shea:
That seems to be in line with the findings I found from this report and from the report prepared by Dr. Deirdre Duffy. The World Health Organization would support that view was well. The GPs I spoke to referred to it having a particularly punitive effect on people who were in inclusion medicine services in that they have a peripatetic and chaotic lifestyle, and arranging two appointments is quite difficult for them. They are, perhaps, in circumstances where they lose their telephones, so for those people-----
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
So from the perspective of the clinicians and women who use the service, the majority view is that the mandatory three-day wait should go.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Given this, and given that the Mullaly report talked about it being patronising, why leave it there at all? Why would we not go for a full removal? What was the logic behind not going for a full removal?
Ms Marie O'Shea:
I suppose one always has to tread with a little of caution here. I do not recommend that the contract with the GPs be changed. That provides the three visits. The first visit is to time the pregnancy and to take informal consent. The second visit is for the administration of the medication. Then maybe people need time. GPs refer to situations where they are taking consent from people. This involves seeing whether the person has given due consideration to the decision. GPs are able to recognise that and recognise hesitancy, and in those circumstances they do recommend that people have a reflection period. To have a reflection or to have the option of having a reflection period is very important. It is very important that the GP contract would not change in that regard, but I do not believe it should be mandatory.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I want to get to some other elements of it. When I look at the legislative recommendations, it strikes me that some of them can be done very quickly and removing the three-day wait is an obvious one, and in my view it should be done expeditiously.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
That brings me to the question I was going to ask. Would it be Ms O'Shea's view that a sequential change to the legislation as possible here? Ms O'Shea referred earlier to section 9, 10 and 11. She recommends that "the Department of Health should take a collective leadership approach, involving health care professionals, patient representatives, lawyers and if required, ethicists, to obtain a better understanding of the difficulties surrounding operating section 11". Obviously, that would require some work done by the Department in a process.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Is it Ms O'Shea's view that this process could happen in advance of any legislative change?
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
On sections 9 and 10, Ms O 'Shea stated, "The report further recommends that a collective leadership approach should be taken to assist the Department of Health with developing guidelines".
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
So, it is partly legislative change but Ms O'Shea is also citing the need to improve guidelines and supports for medical professionals.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Could those difficulties be resolved through improving guidelines as opposed to-----
Ms Marie O'Shea:
Section 9 provides for the risk of serious harm to the woman in particular. Medicine is not a precise science, it involves very skilled and educated guesses. When one talks to the perinatal psychiatrists, one finds that they have a fear that they may be damned if they do and they may be damned if they do not. They say that it is not always clear whether a termination of pregnancy will avert the risk. They would seek legislative change to protect them by including that at the time they make it the reasonable opinion is formed in good faith, and that it will be on the facts known to them at that point in time and not something that subsequently arose thereafter. That is another thing that could be done quite quickly.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I hear that. I just want to make a point because obviously there is political pressure on all of us to act on the report. That is understandable and correct. In my view, the recommendations stand on their own merits. The Government of the day has to make decisions on how to begin to implement the recommendations in the report. The sequencing of it is really important for me. Am I right in saying that there are some legislative changes that can be done very quickly, but then there are others in respect of which the report recommends that the Department should take a collective leadership approach, that there is engagement with stakeholders? That would have to be done before some of the other legislative changes should be enacted. In other words, there is a sequencing involved here. Is that what Ms O’Shea envisaged when she made the recommendations?
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I will come back to some of the operational issues. In the remaining time I have, I will pass over to Ms O’Shea. What would she say to the Minister for Health and the Government about those geographical barriers, the operational challenges that exist whereby five years on from the Act coming into being, women still cannot access services in some parts of the country? What are the key things that can be done very quickly right now to address those barriers?
Ms Marie O'Shea:
One of the major barriers is workforce. We have a shortage of consultants and GPs. On recruitment of consultants, I gather that the recruitment process can be a little blurry in terms of whether people feel when they are – I know the job specification now does specify termination of pregnancy but whether at interview a person can be asked about their willingness to provide the service. I think there should be some clarity in the legislation or ministerial guidelines that would state that, yes, everyone has a right to conscientious objection but the right has to be balanced. In terms of recruitment, I think that it should be balanced and that the employer, in fairness, should be able to ask somebody whether they are comfortable doing this. If the employers cannot do that, if they cannot target recruitment, but at the same time they have a statutory duty to provide a service, they could be in a pretty odd place.
There are parts of the country where consultants are less likely to want to work. I understand that there have been some issues with recruitment of consultants. Perhaps consultants could be incentivised in those areas. Perhaps they could be given protected time for research or education to improve the workforce base.
There is a shortage of GPs in the country. That is acknowledged by the Irish College of General Practitioners, ICGP. One of the issues here is that excessive workload that they carry. The Government can do all it can to help the ICGP in terms of recruitment. The Act does state in section 12 that the only people who can provide the services are medical practitioners. Sections 9 to 11 require a consultant input. It may not be necessary. One could expand the range of workers who could be trained to deliver these services under the Act. That would require legislative change as well. There is a precedent for that in New Zealand. The World Health Organisation guidance, which is evidence based, would very much support expanding the range of workers who can provide the services.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Thank you.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank our witnesses for coming before us and for all the work they have done in producing this report in a very time-sensitive fashion. I thank them and their colleagues. I would like to return to the three-day wait period as referred to by my colleague previously. Ms O’Shea has agreed that there is no medical reason for it and that there is no legal reason for it. Her belief was that there would be a fear that women might make a mistake.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Exactly, and that was the fear. I know Dr. Conlon has spoken to service users. Can she maybe briefly take me through the decision-making process when a woman decides to terminate a pregnancy?
Dr. Catherine Conlon:
What we heard in our study was that for women who discovered they were pregnant and it represented for them a crisis for which they ultimately decided to seek termination, that decision-making was something they felt competent to do. They usually discussed it with their key support networks as they would other key decisions in their lives. By the time they were making the decision to contact a health professional, they felt they had made a very sound decision at that point and that they were competent and capable to do that. They were then contacting a health professional to understand how the service worked and to access the service.
On the three-day wait, women are accessing the service early. The statistics show that a strong proportion of those accessing care under 12 weeks are accessing it through primary care practitioners in the community - so under ten weeks’ gestation. Clinical guidelines would say that is optimal in terms of the best outcomes for care. Women are making their decisions effectively and they feel with competence, and are able to do that.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Before they access any medical advice.
Dr. Catherine Conlon:
Yes. They are going to their health practitioners seeking care and being told that they have to have this enforced reflection period, which is exceptional in the abortion case in the context of healthcare. They are seeking healthcare and they are being told there is an enforced reflection period. It is at odds with the position that they are presenting.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
That is a very important point. A reflection period is not a requirement for any other medical procedure that Dr. Conlon knows of. Ms O’Shea referred to the WHO guidelines and I have them here. They find that waiting periods are unnecessary and should not be included in legislation. If I grasp what Ms O’Shea said in her previous response, her fear and the reason she left it in would be that the additional appointments that are currently available to women would be removed from the GP contract.
Ms Marie O'Shea:
That would up to the HSE. The GPs I spoke to referred to talking to women when they present to the surgery. It is a process. It is about abortion care; it is not just about delivering termination of a pregnancy. They say they do investigate how much due consideration a person has given to this, I suppose from the point of view that hypothetically maybe a person goes in and says, “I am here now, I had better go on with it.” I think if they are told by a GP that this is optional, that they do have a right to a reflection period if they need it. Some people may regard that as quite patronising and I do not intend that to be so. It is perhaps just to take pressure off people and reassure them that they do have time, they can wait, they do not have to come back. I think it is important that it would be kept in the GP contract as well.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Does Ms O’Shea accept that some people have expressed a view that it is actually stigmatising asking people to reflect on a decision that, as Dr. Conlon has already outlined, women have made by the time they come in to a GP?
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Do medical professionals not get informed consent anyway?
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
It is not put into any other medical procedure but they have to get that informed consent. Can we trust our doctors to get informed consent without it being specified in the legislation?
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
So there is no need actually to specifically refer to a reflection period or waiting period within the legislation because informed consent can be obtained.
Dr. Catherine Conlon:
Yes, that was the recommendation coming from our analysis of what women were saying their experience was. It was that they could appreciate that for some people, they may want to return for a second consultation. The model of care is a fully funded service to enhance accessibility. In order to keep that spirit of enhanced accessibility in the clinical encounter, as standard practice with any clinical encounter between a doctor and the person seeking care, if the doctor thinks there is any limitation to consent, the recommendation was that the person could be invited to come back for a second consultation and that would also be funded. That is a decision taken in the clinical encounter, as would be standard with any other clinical encounter, as opposed to it being exceptional in the context of abortion.
I agree that if it is standardised for abortion, it has that stigmatising potential.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
As I have very limited time, I want to move on to a few other things. Regarding criminalisation, I welcome the recommendation that doctors would not be prosecuted, but criminalisation still exists. Why did Ms O'Shea leave that in?
Ms Marie O'Shea:
It went on the evidence base that I had collected. A major theme of that was the criminalisation of doctors. If it was a longer piece of research with more funding, it might have come to other conclusions. I know the World Health Organization recommends decriminalisation full stop. I just had to draw on other themes that emerged through the research. That was a particularly strong theme.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
It just felt outside the scope of Ms O'Shea's research. It was not that she is against it.
Ms Marie O'Shea:
I really think so. When I took on this research, the scope of it was very much to look at when people access termination of pregnancy up to 12 weeks and not beyond that. I have definitely received criticism that I did not go along with the World Health Organization guidelines and extend without restriction up to 20 weeks or 22 weeks in keeping with international human rights bodies. I have tried as much as possible to keep to the terms of reference, to the aspects in front of me and to look at the themes that emerged.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I know that the international trend is towards fully decriminalising.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Therefore, I was wondering why Ms O'Shea did not go that far. It was just that her research did not go beyond it. It is not that she specifically wants to keep that within the legislation.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea.
I want to move on to conscientious objection. Given her research, would Ms O'Shea recommend inserting it into the legislation if she were drafting the legislation now?
Ms Marie O'Shea:
I think I would. The recruitment process seems to be a grey area not knowing whether a person can be asked if they have a conscientious objection or not. It might be something that would provide comfort to employers. It could even be in ministerial guidelines to the Act to state that there are restrictions on the conscientious objections, that it is not an absolute right and that it has to be compromised in certain conditions and one of those is in the provision of healthcare. It might be of comfort to employers to see that in that format so that-----
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Should it be in legislation? The Medical Council Guide to Professional Conduct and Ethics for registered medical practitioners amended the 2019 edition. As section 49 covers conscientious objections, it is already there. Therefore, why have it in the legislation as well?
Ms Marie O'Shea:
It is specific to recruitment and helping employers to recruit. The guidelines the Senator mentioned refer to the duties on people who have a conscientious objection and the parameters of that duty. This is to help the employer. The employer does not have the conscientious objection but is trying to put in place a workforce to provide the service. That is where I am coming from on that.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
That is exactly the point I was trying to get at. By having it in the legislation it goes beyond what the Medical Council ethics guidelines provide for. I was really struck by the evidence in the report that some practitioners actually obstructed people being transferred to other professionals' care. That is horrific and it is not what people voted for.
Dr. Catherine Conlon:
From the perspective of the UnPAC study, we would have thought that an enabling provision in the legislation that prevents overreach of conscientious objection would be appropriate, but an additional exercise of conscientious objection in relation to abortion seems exceptional and unnecessary. Something that addresses the overreach of conscientious objection seems consistent with the UnPAC study findings. I know that Ms O'Shea in her report made her own decisions on it. However, that would have been seen to be consistent with the findings from our study.
Ms Marie O'Shea:
Some women have reported to me that they are attending certain centres where they are being told that they are much earlier in the pregnancy than they are. Scan results are being misinterpreted to say that they are earlier in the pregnancy than they are. To my mind, that is coercively controlling somebody's reproductive rights.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea and Dr. Conlon. I know I am out of time and I hope the Cathaoirleach will let me in for a second round of questioning.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Ms O'Shea and Dr. Conlon are very welcome. I thank them for all the work they have done. I want to pick up on the issue of the three-day wait. The clarification provided today is important. Ms O'Shea is recommending that the mandatory element of that be removed and of course that women would still be free to attend their GP on further occasions if they have any concerns or doubts and that those appointments would be covered under the contract of the GP. That is a really important point and one that has not come out to date in my view.
I ask about the findings regarding the impact of the existing three-day mandatory wait in respect of people trying to get appointments with GPs and the difficulty of doing that given the shortage of GPs. This especially applies to people living in rural areas where there would be travel involved and all the implications of that for work and for delay.
Dr. Catherine Conlon:
From the service user experience, we spoke to 48 people who sought to access care under section 12 of the Act. As we have said, it is a complex model of care. It is described as being provided by GPs, but when a woman goes to access care, she does not necessarily know if it is provided. In our study some women assumed all GPs provide it and presented to their own GP or a local GP only to find that they did not and they ultimately found their way to My Options. Within those cases, some women were actively obstructed by doctors. In two cases they gave the impression that they would provide care and invited the woman to come back and essentially were elongating the time before she found a provider.
The review report recommends specific activities to enhance the knowledge about My Options which is the HSE's key infrastructure to allow people access a provider. Even of the 400 GPs who are providing, not all of them are on that list for my options. When somebody finds out that My Options is the access point to find a provider, they phone My Options and are advised of the one closest to them, but that can be quite a distance away. For example, one woman living in a rural area who did not drive had to pay a €90 taxi fare to attend a GP who was providing local to her. Others had to ask for lifts and arrange childcare. It is much more demanding to access this form of healthcare than any other form of healthcare. In that sense the lack of extensive provision of GPs is causing real access issues, particularly in rural areas.
Ms Marie O'Shea:
Sometimes a particular GP might be the only provider in the practice and they may work part time. Someone might make an appointment with the GP on a Tuesday and that GP might not be back until the following Tuesday. There may be difficulties with GPs who are job sharing and may be there three days one week and four days the next week. The urban areas are far more populated with GP providers than the rural areas where there is greater risk of that happening. It is fair to say that the onset of the virtual medicine has helped with accessing care. It has ameliorated the effects of the three-day wait to some extent. However, particularly in inclusion medicine surroundings, I would worry for the more vulnerable people, such as migrants who have been highlighted and disabled people. The submissions to the public consultation by disabled groups specifically referred to the three-day wait as being problematic for them. There were multiple submissions by those groups. There is the psychological impact of the three-day wait.
Dr. Catherine Conlon:
From a systems perspective, Dr. Deirdre Duffy's research highlighted that GPs who are providing often have to go above and beyond their usual healthcare delivery practices in trying to fit in appointments. As we know, it can take a week or more to get a regular GP appointment. We are finding very committed providers who are making appointments for women maybe very early in the morning or at lunchtime.
There is an impact on the sustainability of that kind of practice. GPs are giving women their own numbers for follow-up.
We heard in the UnPAC study, from women’s point of view, of GPs going above and beyond and in Deirdre Duffy’s study of the impact that has on the capacity of those GPs. Dr. Duffy’s study referred to risk of burnout and unsustainability of the service. The intent of this model of care was normalisation within general practice but the effect of the roll-out in a small number of GPs is that it is not operating in a normal way and is having an adverse impact on providers and those accessing care.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Dr. Conlon is saying there are massive logistical obstacles to keeping within the three-day wait period.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Will the witnesses expand on what has already been said about fatal foetal anomaly, the push factor in relation to people going abroad to access services and the underlying reasons for that?
Ms Marie O'Shea:
When I spoke to consultants working in the foetal medicine area, they said there are some situations where it is clear-cut that a condition constitutes a "fatal foetal anomaly" - let us call it that - which would satisfy the terms of the legislation. There are many conditions that do not. “Fatal foetal anomaly” is not a medical term. The guidelines accompanying the Act refer to the fact it is not always possible to tell until quite late or at all at what point death will occur, whetherin uteroor one day after birth, or whether the baby could be an outlier and live beyond that, even though they know the condition is ultimately fatal and the life of the baby will be poor. They are unable to inform their patients as to what the outcome will be. There is a sense of practising defensive medicine because they are afraid of making a wrong call and because of the cases that have gone wrong, the media attention and the prospect of criminalisation. They are erring on the side of safety and there is an attitude among some that this person can go abroad anyway so will ultimately get treatment.
I recall talking to one patient who had presented with foetal anomaly and who they could not advise. They said they did not know if it would be fatal enough. They thought it would not live long after birth or might die before birth. She ended up going to England for a termination of pregnancy. Her second pregnancy was affected by the same condition and she had the benefit of the genetic services in the National Maternity Hospital, which were able to pinpoint what was wrong with the baby and more or less emphatically say the child would not survive 28 days. After it was born, it survived for an hour. That person had previously gone to England beyond the 24 weeks pregnancy, had to pay €5,000 to a national health hospital, which is the only place where that is provided, and had to go through an ethics process there for a condition where the previous pregnancy would have easily fitted into the section 11 criteria, save that there is no way for doctors to determine it one way or another definitively. Also, educational supports were not really provided in time. Lack of standardised clinical guidance has not helped-----
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Ms O’Shea referred to “medical supports”. Will she clarify that?
Ms Marie O'Shea:
There might have been an assumption when the service was introduced that the medical profession would be able to run with it because it is the medical profession. If you look at training in England, most termination and pregnancy services are carried out in specialised clinics in a community setting, rather than in hospitals. If you ask somebody at what point a foetus will die, they say they are not able to say and did not have appropriate further training. The guidelines that came in when the Act was introduced said there was a need for the professional to provide further training and education. I do not think that has happened. Further supports-----
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Is Ms O’Shea saying none of the professional bodies has included termination training?
Ms Marie O'Shea:
I do not know but the impression I get is training and education are still required. There is a separate review of section 11 being conducted, commissioned by the chief clinical officer. Dame Lesley Regan is addressing that, particularly to look at what has been done to operationalise the Act. My understanding is that will not make it any easier for doctors to turn around and pinpoint the point of death.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Were the witnesses asked to change any element of the report after the draft was submitted to the Department?
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Okay. That is good. Thanks for clarifying that.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
I will go back to My Options and referral pathways in the community because the vast majority of people accessing care will be doing it in that manner. The report states there is very little access to subnational population data for each of the community healthcare organisations, CHOs. That seems extraordinary. We talk about data a huge amount in this committee. The point of CHOs was it would be a regional look at population and regional data. What would the witnesses expect to see in a perfect world? Where are we failing on that?
Ms Marie O'Shea:
It is difficult. We do not have data, for a start, to know how many GPs provide the service. All we have is data to say how many contracts have been signed by providers in general practice. We know ten of the 422 are organisations including Well Woman, the IFPA and perhaps student union bodies. We assume there are multiple GPs in that providing services.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
The witnesses cannot look at the contracts and say those 400 contracts equal 600 doctors. They have no idea.
Ms Marie O'Shea:
We do not even know where they are. We do not know if a contract represents one person providing or two, three or four people providing in one setting. We got the contractual information based on the county in which they provide. Some CHOs cross more than one county so it is difficult to work out.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
I will not even bother asking if Ms O’Shea thinks the provision of such disaggregated data for evidence-based decision-making in healthcare is useful, necessary or required.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Was Ms O’Shea given a reason it would not be forthcoming?
Ms Marie O'Shea:
I was given a reason. It was on a basis which seemed to be a complete paradox relative to the information provided before. I was given a breakdown in a table by county showing there are a range of providers but not the exact number. The range of providers was on the basis of security for the providers because they would not want to be known.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
To your report.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Does Ms O’Shea accept that reasoning?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Do you find it obstructive?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Moving to the contracts, 40% of them do not register with My Options.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
At first view, that itself is hugely problematic. From the quotes in the reports, which were really helpful in explaining why that is, one understands this comes with a body of work and it is urgent work because it is on a timeline. If you do not register with My Options, it allows GPs to limit the number of patients they accept to those on the surgery books and existing patients. Is that exacerbating and doubling down on the issue? Is there a practical reason here for people not engaging with My Options?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
So services-----
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
My point is that with regard to My Options there is an almost built-in option not to register.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
That is the fact 40% do not register.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
How important does Ms O'Shea think it is, in terms of that barrier issue and timely access to care, that My Options would have a facility to arrange an appointment for someone?
Ms Marie O'Shea:
In an ideal world that would be great. I suppose it could get quite messy if there is a situation where people potentially change their minds about appointments. For certain people, an issue arose concerning people who require interpreters and how difficult it is for them to make appointments. I think there are interpreters at My Options. They are reliable interpreters. The GPs would say they sometimes have difficulty accessing interpreting services themselves, even though they are provided free of charge. Maybe there are some situations where an interpreter could assist a person making an appointment. Whether that is through My Options or whether My Options would direct them to a HSE interpreting service, I am not quite sure.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
We are all used to that interface now where you can book an appointment online. I want finish out that piece about GPs. I was struck by the reference to obstruction and delay for non-providing GPs. Is that something which came up regularly in the work?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
To be clear, we have criminalisation in the law of those providing services right now.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
However, the obstruction and delay of referrals comes under the code of ethics.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
There is no criminal aspect to denying somebody service, but there is a criminal aspect to delivering service.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Sorry, they can proceed with impunity if they obstruct?
Ms Marie O'Shea:
More or less. Under the law they can. People could report them for malpractice, but it has to be taken in the wider context. It certainly came across in the UnPAC report that people looking for these services in Ireland, in the early days after abortion provision, felt quite stigmatised by it. Is someone really going to go to the Irish Medical Council and make a complaint?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Yes, 100%.
Ms Marie O'Shea:
That would be my view on it. I think there should be something, and the Act should be balanced. If you deliberately set out to mislead somebody, it is a form of coercive control. The Domestic Violence Act contains the offence of coercive control where it occurs in a family or an intimate relationship scenario.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
A GP or service provider is often in a position of power.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
It seems incredibly imbalanced. I would like to see criminalisation removed from the Act.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
If there is criminalisation on providing service but no criminalisation in denying service, that sounds massively unbalanced.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Okay.
Dr. Catherine Conlon:
I guess the methodology we used allowed us to hear in detail the experience of actually navigating the care pathway until you find a provider. The way we portrayed it was that if you did not know about My Options, that was not your first port of call and you were contacting GPs themselves. The way we portrayed the collective account was that it was like running the gauntlet. You could hear very negative responses to your asking for abortion care, if that was the case. We had one migrant woman living in the west of Ireland who attended seven GPs before she was referred to My Options.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Oh my God. Seven?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
She has no recourse really. Not in practice.
Dr. Catherine Conlon:
No. The woman who returned three times had reported a sexual assault as the reason for the pregnancy, so it was particularly difficult for her. She eventually made her way to a woman's health clinic, which also referred her to a sexual assault treatment unit, SATU. They spoke to her about reporting the-----
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Did she report?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Of course.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
That is an appalling story. As I understand it, the 2021 figures for people travelling were just over 200. At the end of 2022 it looked like it would be more than 300. Does Ms O'Shea more current figures?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Would Ms O'Shea accept that, at the end of Covid, numbers are returning up to a certain level?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
If action on this is delayed for another 12 months, for example, would we expect to see something in the region of between 200 and 300 people being forced to travel to another country to receive care?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
You would accept-----
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
That is just England and Wales, and not the Netherlands.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
The witnesses would accept that characterisation, that maybe in the region of 300 women will have to travel in the next 12 months.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
I thank the witnesses.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
I thank the witnesses for all of their work. It is good to have this brought out into the open. The vast majority of people I come across do not realise this is happening, that there is a lack of services and women are still being forced to travel abroad.
Apart from all the other questions that have been asked, I have a couple more. On section 9, the risk to life or health, and section 10, the risk to life or health in an emergency, these grounds only provide a viable pathway for the majority of women who are unable to access abortion care within the 12-week limits. It may include victims of sexual violence, minors, people living in coercive relationships, migrants and those in direct provision, and who are unable to access a GP locally. The low number of abortions performed post 12 weeks under this section is notable. I take it from that that many are having to travel and are included in those figures. The figures provided by the review are remarkably comparable to the figures under the previous Act, which was very restrictive. The lack of clarity around that, according to the review, states that, "The subjective nature of interpretation, together with the prospect of criminal sanction and adverse media scrutiny, risks the practice of defensive medicine, which may lead to women being denied care in Ireland." However, the witnesses are only recommending that ministerial guidelines be devised to offer more clarity.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Would the easier option for the review not have been to recommend legislative change and simply extend the period on request beyond the 12-week limit? Why did they not consider recommending that considering the WHO guidelines?
Ms Marie O'Shea:
I did take the WHO guidelines into consideration and I understand what the Deputy is saying. That would be regarded as international best practice and in accordance with the evidence-based guidelines. My task in the terms of reference was to review this legislation in particular. That provided for what is happening when people seek termination of pregnancy up to 12 weeks, what is happening in cases of termination of pregnancy where there is a risk to life or serious harm to the health of the woman, and in cases of emergency. I focused the spotlight particularly on what was happening in those scenarios. That is what I reported on. I have also been criticised for not recommending expansion to the point of 20 or 22 weeks, so I accept that criticism.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Does Ms O'Shea think that if the medical profession was able to apply the definition of health and mental health according to the WHO guidelines, this would provide better access?
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Has Ms O'Shea recommended a change in that?
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Will Dr. Conlon speak to the experience of women requesting access to abortion who are having to travel abroad post 12 weeks?
Dr. Catherine Conlon:
In our study the post-12 weeks women we spoke to, had all sought care under section 11 for foetal anomaly. We did not meet with anybody who had sought care because of risk to life or health.
We heard the following from the group we spoke to. A diagnosis happens and it is a foetal anomaly that indicates severe life-limiting impacts - potentially fatal. The law only refers to fatal foetal anomaly. These women then enter into the process of clinical assessment to see whether they qualify under the Act. It is a very protracted process that makes a number of weeks pass. All of the women we spoke to had wanted pregnancies and therefore this was a devastating diagnosis. They then entered into the assessment process in Ireland. The thing that stood out for them was the length it took. There was revisiting, rechecking and further clinical assessment going into a multidisciplinary team, yet neither them nor their partner or family was represented in that multidisciplinary team. It was all happening in a room separate to them. They felt very distant from the decision-making, yet they felt they had a devastating loss.
Women in our study said that confining the law just to fatal anomaly was not meeting their needs. Where a diagnosis was of a severe life-limiting condition, they had concerns for the quality of life for the child and their capacity to raise a child with that diagnosis in the context of very limited supports for families raising children with disabilities in Ireland. That meant they felt their only option was to terminate their pregnancy. Some qualified for care in Ireland but more opted out of the process. It took so long that they ultimately decided to opt out of the process of assessment in Ireland and travel because they were concerned of timing out in Britain. They were then faced with having to travel from Ireland. They believed the law had changed and they would be looked after but now they were being denied care. That had a compounding sense of stigmatisation and being failed by their own healthcare service. They were travelling to a totally unknown service and incurring much cost. They were mostly going in distress and with huge challenges on how they would bring the remains of their baby home, who they wanted to honour and have a memorial service for. Accessing genetic services was also hugely challenging if you had to travel.
The sense of distress of this group of people in our study was acute and we say that in the report. We reported a lot of their direct testimony. We felt that needed to be shared. These people said they felt that repeal had changed their circumstances and that stories like theirs had persuaded the Irish electorate to vote to the extent of 66% supporting repeal, and yet they found themselves in those situations and were not cared for.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
The way Dr. Conlon described that, I may as well be speaking to one of my constituents. I had the experience of a woman in my area who came to me very distressed about this.
My next question is on criminalisation. We have talked about that and how it acts as a chill factor for medical practitioners making decisions. It really is a chill factor when it is considered that criminalisation is a 14-year sentence. The report also shows that it can stigmatise women and make them feel that wanting an abortion is somehow immoral and abhorrent as an act in their life. I will ask this again. Why did Ms O'Shea fall short of recommending full decriminalisation?
Ms Marie O'Shea:
Again, I saw it is recommended by the WHO guidance and the international human rights bodies, but I had to draw specifically on the three streams of research that were set out: the UnPAC report, the service providers report and the public consultations and the themes there. It had to be a rigorous review. I appreciate totally what the Deputy has said about decriminalisation, but I did not feel in the context of the research that was informing this report – the direct evidence – that I could go into that space with a recommendation.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Fair enough and I know Ms O’Shea answered the question already. I want to push back a bit about what Ms O’Shea said in her statement. She said she thinks it is reasonable that among the 66.4% who voted in favour of repealing the eighth amendment, there would have been people influenced by the scope of the proposed regulations and have a genuine fear-----
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Okay. I might push back against it. I want to draw Ms O’Shea’s attention to probably the only bit of real evidence we had in the moment of why people voted. When asked the question on why they voted and what made up their mind, 75% said they always knew they would vote “Yes” and 1% said they were following the Oireachtas committee and the guidelines. It is a limited result for what the politicians are saying, that we presented these limitations and, therefore, we cannot let the electorate down. The witnesses are showing us the lived experience of the implementation of the law, which is welcome.
I have one final question that I think I have one minute for. On the issue of deterrence for doctors and medical practitioners to providing the service, there are a couple of things. First, did Ms O'Shea come across protests outside clinics and doctors’ spaces as being a deterrent? Second, is there medical training in all circumstances for the provision of abortion care? Third, should this be extended to allow midwives, nurses, etc.. to provide it, particularly when it is medicinal abortion, that is, meeting patients, giving them the pill and checking they are okay afterwards?
Ms Marie O'Shea:
On the protests, there is a very comprehensive paper published by a professor in Maynooth University on the effects of protests and their frequencies, so they are taking place. I spoke directly to two consultants who referred to protests taking place outside their hospitals and how they felt they were inappropriate. They felt the protests were particularly inappropriate in terms people who were coming out of that hospital having had miscarriages and seeing white coffins on the ground and people standing outside a healthcare facility referring to death, basically, when they went through circumstances where their own pregnancy had ended. I spoke to a consultant who told me it was only upon his appointment as a second consultant that the consultant in the hospital felt they could provide the service, and that had been influenced by protesting at local level. They were still in receipt of letters they found distressing but they have carried on because they believe they are doing the correct thing.
GPs I spoke to referred to having protests outside their clinics. They wondered about the effect that was having on all patients coming into the clinic, not just those seeking termination of pregnancy. They wondered whether people who worked in the clinic had voted against repeal and how they felt. Were they being looked at in some way and feeling perhaps compromised by that? Another GP in a rural area wondered whether the protesters knew where she lived. She was worried they would possibly present to her house. I heard many accounts directly of people worrying about protesting. Certainly, it seems to have an impact on those particular providers. I tried to contact non-providers during the study but it was very difficult to do that. We tried by GP survey to contact them but the response was not huge.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
I know I am out of time, but the extension to the other medical practitioners-----
Ms Marie O'Shea:
The WHO abortion guidance, which is evidence based, recommends that the service providers can be expanded beyond medical practitioners. They include nurses, midwives and even pharmacists in a community setting if they have the appropriate training. We already know through My Options that it is nurses who provide the 24-hour helpline after termination of pregnancy. Midwives and nurses can also be upskilled to provide sonography services. When talking about a medical abortion, we are talking about mifepristone, which is a tablet that is a buccal swab into the cheek of the mouth, followed by the administration of more medication. Certainly, it could be done under the supervision of a medical practitioner. We should not have to have a situation like we have now, where a consultant obstetrician has to come and provide that mifepristone to somebody. The vast majority of termination of pregnancy in Ireland under all sections of the Act are medical terminations and the inducement of-----
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Does Ms O'Shea have a percentage?
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I welcome the witnesses and thank them for the report.
We know of the difficulties with GP appointments in respect of all procedures. Are priority appointments being made for those who need them?
Dr. Catherine Conlon:
The time sensitivity is an aspect. Dr. Duffy's study referred to service providers being very conscious of the time limits associated with the care. GPs are trying. Usually, that means they are seeing the patients outside their usual practice hours. That might mean appointments very early in the morning or at lunchtime. They are not displacing other patients but trying to extend their own provision time.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
What about weekends?
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Deputy Cullinane asked why there is a three-day waiting period. Ms O'Shea said other jurisdictions have a similar period. She did not name them. I am not sure how many there are. The three-day arrangement probably came from other jurisdictions, in addition to its having been put in place to provide some comfort to those who were not fully convinced they would vote "Yes". The delegates mentioned that in their commentary.
I am a little confused about the figures. The report states there were 17,820 terminations but that the figure may not be accurate as the total number of notifications does not align with the number of claims for payment made by GPs, which, according to replies to parliamentary questions asked by Deputy Nolan, amounts to more than 28,000 for the same-----
Ms Marie O'Shea:
It is difficult to know what is accurate and what is not. Are the returns to the Minister for Health or the claims for payment the most accurate? I added a caveat stating the figure was based on returns to the Minister for Health. This is what it is supposed to be based on but it has to be acknowledged that there is a discrepancy. If one counts claims as comprising the accurate figure, one will see that there were 19,943 in the three-year period to 2021. However, it is difficult to know.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I raise these matters because the difference between the number of claims made and the number of first appointments over the three-year period is nearly 4,000, that is 3,950. I appreciate that the report states there are reasons in some instances, such as miscarriages. People may have travelled abroad or gone to another provider and commenced the process again. Some might have procured abortifacient medication illegally to self-manage their own abortions. However, the discrepancy is still nearly 4,000.
Ms Marie O'Shea:
I hear what the Senator is saying, but in our model of care the GP is the gatekeeper for all early terminations of pregnancy. If a person who approaches the GP is over nine weeks plus six days, or if the three-day wait takes her over nine weeks plus six days, the GP will claim for only one consultation because he or she then has to refer the woman to the hospital services to complete the procedure. The patient is given the termination drug at the hospital and she must then come back 72 hours later, I think, to take medication to get rid of the products of pregnancy. In those circumstances, there would be only one claim by a GP, yet the termination of pregnancy would have continued its full course. However, we do not have the figures. I have mentioned in the report, under monitoring and evaluation, that we should have the figures. When a person does not re-present to a GP, we should try to have some understanding as to why that is so. It is difficult to know.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I agree, and that is the difficulty I have with this. The safeguard of three days exists whether people agree with it or not.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I acknowledge that this is difficult for all women involved, particularly victims of rape and assault, yet the period is a safeguard. However, we do not have the data on how many women went on to give birth by virtue of there having been a three-day period.
Ms Marie O'Shea:
The Irish Family Planning Association collected data in 2001 on 500 people who presented to it. Of the 500, I think there were 470 people who, being within the 12 weeks, were eligible to access termination-of-pregnancy services, to be provided by the association alone. More than 97% returned and completed the process, and the other 2.5%, say, did not. That is consistent with data collected in an earlier study, back in 2019. That study accounted for roughly 400 people who had presented to a GP for early termination of pregnancy. Again, in the region of 2% did not return. I have heard Professor Fergal Malone state it may be partly due to the fact that some people might have had a spontaneous miscarriage, which would not be unusual. However, the truth is that we simply do not know. We know that some of the patients would definitely have been referred to hospitals. It is likely that there are people who changed their minds. I do not necessarily know that having a mandatory three-day waiting period would have influenced this. That is really the honest answer.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
That is the issue. Ms O'Shea is recommending that we get rid of the mandatory three-day waiting period but the data are not available.
Dr. Catherine Conlon:
Data are available on the way in which the three-day waiting period is not seen to support women's decision-making. What is to say that the 2%, or whatever the proportion is, who made an appointment with a GP to discuss a crisis pregnancy would not have withdrawn in any case? Why is this specifically about the three-day waiting period? It could simply have been a matter of the conversation with a professional.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
If we had the data on this, it would make the job of legislators easy. It is being recommended that we remove the mandatory three-day waiting period without being able to say that X number of women who had an initial appointment decided not to proceed with a termination.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I appreciate that, but we just do not have the data.
Ms Marie O'Shea:
We do have the data on the negative effects and unintended consequences. These are certainly causing trouble. We do have to trust our GPs. They say that the care is abortion care, not care to give a termination of pregnancy. Part of the informed-consent procedure involves ascertaining whether a person has given due consideration. People just have to be trusted. The picture as a whole points to making it optional rather than mandatory.
Seán Kyne (Fine Gael)
Link to this: Individually | In context | Oireachtas source
The difference between the number of first appointments and the number of second appointments is nearly 4,000, based on claims. It is considerable.
Dr. Catherine Conlon:
As we said, a number of the patients, once they were over ten weeks, or ten weeks plus one day, transferred to hospital care.
The one thing we know about that data is it is not reliable, in the sense there is no disaggregation of it. We cannot say anything definitively from that data because it just has not proven to be systematic in any way.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Of course.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I call Senator Sherlock. She is very welcome to the meeting.
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
I thank the Chair. I welcome Ms O'Shea and Dr. Conlon. We owe them both an enormous debt of gratitude for the work. We especially owe Ms O'Shea for the really comprehensive report she has produced. The insight provided into abortion care in Ireland is incredible.
There is a proposal to waive the three-day waiting period or statutory period of reflection. It seems like an Irish solution to an Irish problem in terms of how Ms O'Shea crafted her recommendation. Her report very clearly details the medical, psychological and logistical difficulties associated with the three-day wait. I want to understand the thinking behind this right to waive the statutory period of reflection. How does Ms O'Shea think it will operate in practice? What kind of procedures will have to be formed around it? Do we not already have the concept of informed consent? Is it really necessary to retain the three-day waiting period when we already have informed consent for every other serious medical procedure? When someone has open-heart surgery or a leg amputated there must be informed consent, so why can we not have that for the procedure we are talking about here, namely, termination care?
Ms Marie O'Shea:
Absolutely. We could have it. To change it from mandatory to advisory, I was looking at the findings in the UnPAC study. The respondents in that did not see a personal benefit but could envisage it being of benefit to other people. In that context, perhaps somebody would reassured. Again, we are in the context of the unknown here, but perhaps somebody would feel a bit reassured if they were in front of the GP and coming across as a little uncertain. In those circumstances, GPs inform me they advise patients they have time to consider it up to a certain point and decide whether they want to proceed. It is important to keep it in the contract with the GPs that there is a payment for the first visit and second visit. One would not want to see that altered. Maybe some people would feel comforted by hearing the law states they can have a reflection period. Maybe that is something that will help people.
It possibly is not necessary but it is a bit of "test and see". Hopefully there will be changes to the legislation. There should be another independent review in three years' time, just to look at things again to make sure the legislation is operating in a manner that is consistent with best practice and with how people are experiencing using the system.
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
Would Ms O'Shea have a concern that if there were a right to waive the period, it could be inconsistently applied across GPs? She talked about the payment to GPs. We know there is a very real issue with trying to encourage and incentivise GPs to participate, for a whole variety of reasons. Is payment or cost an issue in conversations with GPs?
Ms Marie O'Shea:
The GPs I spoke to felt it was fair remuneration for the work they were doing. Some GPs mentioned to me that in complicated cases or where somebody continues to be pregnant, they may have multiple visits to the GP for hormone testing to see if the hormone levels are going down or if they need to be referred to a hospital or given additional mifepristone and the treatment changed. They did not make an issue out of being paid for the additional work that can sometimes accompany this.
As for whether it would be consistently applied, in all honesty time would tell but the GPs are trained by the ICGP. It runs courses and programmes for people to attend and it is very practically focused. GPs would be advised on how to apply it in a consistent manner, probably based on national guidelines.
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
The WHO guidelines suggest there should be no gestation limit. Ms O'Shea recommended an extension of the 12-week limit. What does she have in mind? Would we not run into the same logistical difficulty, if I can call it that, with the operation of the limit if it was 14 weeks, 16 weeks or whatever? Does a new limit really need to be set down in legislation?
Ms Marie O'Shea:
We have legislation here that allows for early termination of pregnancy where the pregnancy does not exceed 12 weeks. The complication comes where people continue to be pregnant having availed of the service within the 12 weeks and then there is the risk of defects to the foetus, such as limb defects, because of the teratogenic nature of the medication. There are other cases where people just did not get in in time. That particular category of person had a statutory right to termination before the pregnancy exceeded 12 weeks. Sometimes they did not get in because the health system could not accommodate it or because of other factors. In those circumstances, the Act can operate very unfairly against that category of people. It is really for the Oireachtas, to bat it back to you, to say what should be put in. It could say to extend that period by two weeks to bring it to a 14-week period for those classes of people, or it could say to leave it to the discretion of the healthcare professionals. Maybe this requires another collective leadership consultation process with healthcare professionals to adduce that.
If someone is continuing a pregnancy where there is potential for limb defects and other defects having taken teratogenic medication, that is a pretty awful position to be in. There would certainly be a human rights violation there in terms of cruelty. If someone has not been able to access the service because the State has not been able to put the services in place for them, then where does that leave them? That person has effectively been denied their right to a termination of pregnancy and that leaves the State in a very vulnerable position. I think it has to be extended in certain circumstances if reviewing the operation of this particular legislation but, to be honest, I would not have the temerity to say to these Houses what they should put in place. It has to be deliberated on.
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
Ms O'Shea talks very clearly in the report about the effective human rights violation, particularly in sections 9 and 11-----
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
My last question relates to the criminalisation of medical practitioners. We have this bizarre situation where those who are trying to implement the system of care have that spectre of criminal sanction hanging over them but those who obstruct or get in the way of providing care have, in Ms O'Shea's own words, acted with impunity. To be clear, do we not have legislation already that criminalises bad actors or medical practitioners acting in bad faith? I want to understand the sufficiency of our existing legislative framework with regard to the criminalisation of medical practitioners acting in bad faith. Ms O'Shea's recommendation is to remove the criminalisation of medical practitioners. Could she talk to us a little about those acting in bad faith and what is already in Irish legislation?
Ms Marie O'Shea:
There is the tort of negligence where someone acts in breach of duty of their care. That is the common law. To exercise that right, a person has to go before a court and argue a case in adversarial proceedings. It would certainly help if there was also a breach of statutory duty there. If there was a statutory duty, if someone deliberately obstructed care or deliberately provided misleading information as to the date of the pregnancy with the expectation that the person will exceed 12 weeks, they would have another leg to stand on. It would be very clear and it would be set out what the statutory duty is.
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
I note the proposal to lift the criminalisation is confined to medical practitioners. What about-----
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
Sure, but what about others? I am thinking about family members. There was the famous case in the North where a family member secured medication for, effectively, a child. What is Ms O'Shea's opinion with regard to extending the lifting of the criminalisation beyond medical practitioners?
Ms Marie O'Shea:
I try not to let my personal opinion interfere with this process. As a lawyer, when I see people who are inadvertently in the courts for something they did for good reason, my heart would absolutely go out to them. They are in a very vulnerable position, particularly if they are before a jury. I do not want to state it any further than that because, as an independent review, I do not think it is really appropriate.
Marie Sherlock (Labour)
Link to this: Individually | In context | Oireachtas source
Okay. I thank Ms O'Shea.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea for the work she has done. The engagement this morning has been extremely useful. Would it be her view that the delay in bringing through safe access legislation has caused a lot of hurt and has caused some problems in terms of the provision of services, particularly in rural areas?
Ms Marie O'Shea:
I do not have a huge amount of data on that. I have the report that was compiled by the professor in Maynooth that says it certainly impacts on decision-making. I have heard from a consultant in the providing hospital that the protesters and the fear of negative reaction from the general public had dissuaded one would-be provider from providing services. They were still continuing to receive letters. I have heard from GPs who say they find it very disconcerting as providers. I can be almost sure that it is something that bears heavily on would-be providers.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
The main element of the campaign to repeal the eighth amendment was the notion of trusting women. Would Ms O'Shea consider the present system as not trusting women?
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I mean whether the system, as it is now, does not really trust women to make decisions. A lot has been said about the three-day waiting period.
Does Ms O'Shea have any evidence that people change their minds after the three-day period?
Dr. Catherine Conlon:
What we heard from the women in our study who were seeking the care in Ireland, they said that what the three-day meant for them was that they were able to make a sound decision and were confident in making that decision. If the premise of the three-day wait is to question the competency of a person to make a decision without that mandated reflection period, the evidence is in opposition to that.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Yes, absolutely. It is interesting though that there is no evidence whatsoever that even one person changed their mind after the three-day period. Really and truly, one has to question why it is there at all. I would certainly support the removal of that period. When I think of the Trust Women campaign and so on, I think of someone living in Loop Head in County Clare who contacts their GP and for various reasons does not get a quick enough referral. They may not be aware of the My Options service. One could envisage a scenario where, simply because of their geographical location, somebody could easily lose two or three weeks as they are living in a rural area rather than a city or big town. Did the research identify women of that particular profile in rural areas who had gone past the 12 weeks simply because they could not access appropriate advice and support in a timely manner?
Dr. Catherine Conlon:
In our research the people we contacted all had access to the service. That is the first thing. As I referred to earlier, there were women, particularly in rural areas, who did not know about My Options and who found it difficult to find a GP. Our findings showed that as well as the logistical impediments to actually finding a provider, the symbolic impact of that - to think there is nobody in my area who is providing this care - makes it quite distinctive from other areas of healthcare. It is a legislative part of healthcare and yet it is not provided in pockets of the country. That has a stigmatising significance on top of logistical problems. The efforts in the review to make for more widespread geographical distribution certainly go to the heart of accessibility.
Ms Marie O'Shea:
To address the point made by Senator Conway, from listening to providers, it is an issue. GPs are encountering people who come to their surgeries having timed out or timing out due to not being able to access care on time via ultrasound scanning or referral to a hospital to complete the process. It is a real issue.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Around two years ago, my office tried to do a body of work to establish the providers who were and were not providing the service. The difficulties we had, an office of a public representative, in trying to establish that information so as to have it for people who contact us were astounding. The witnesses spoke about My Options. Can anything be done, perhaps even in schools, to build awareness of My Options as a way of finding information?
Ms Marie O'Shea:
It is very important to raise the profile of My Options and the services it provides in public media and targeted populations, such as people who are of reproductive age. That would certainly include schools through sexual health programmes. There is less awareness of My Options in rural communities and migrant communities. It is all about market research. Unless one does market research, one is fumbling in the dark. My Options should be supported to do that in order to know where there are gaps in knowledge and to have sufficient resources to be able to address that.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
In the opening statement Ms O'Shea spoke about the challenges and difficulties the Government will face in terms of the legislative changes. Will she elaborate on that? Does she feel there is pushback from Government to all of the report or some of the report? Has she had any engagement, for example, with the Minister for Health, Deputy Stephen Donnelly, since the report was published?
Ms Marie O'Shea:
I engaged with the Minister for Health and he seemed to receive the proposals quite well. What I am really going on are the soundbites that came out in the media when I heard the Taoiseach and Tánaiste refer to needing to give this consideration, a breach of promise to the electorate and taking a slow and steady approach to it. This is a health service that was developed and put into implementation in 2019. Where any other health service is being designed, the HSE now has specialist clinical directorates which do not launch new health services unless they are evidence-based. They then pilot them and amend them, and it is only when they are satisfied that they are capable of being implemented and reaching their objectives that they are rolled out. I find the attitude of asking what the electorate think about it to be a little bit disconcerting.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Would it be fair to say that after publishing the report, Ms O'Shea found the response from Government to be disappointing?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I thank the witnesses for their presentations and their work in this area in reviewing what was put in place in 2018 and came into place in 2019. In real terms, that is a short time period and the scene has changed substantially. I have concerns about two areas. One is whether the witnesses are satisfied that adequate support services for women who have terminations are provided by GPs and the hospital system. Did any analysis identify a need to do a lot more in that area? What are the witnesses views on that?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Yes.
Ms Marie O'Shea:
What I did uncover in terms of the later terminations of pregnancies was that bereavement supports are available in hospitals for those patients and the parents of the child. They are generally very well received and are under quite a lot of pressure. It came through in the UnPAC report that the can sometimes be a little presumptive on occasion as to how people want their carers to respond in terms of bereavement support to assist them or not and in terms of whether they want this to be seen as the loss of a child or the loss of-----
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Of the 19 units in the country, 11 are providing a termination service and the other eight are unable to provide a service for various reasons. Are there supports in those eight units?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Are there designated people for dealing with it?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Does Ms O'Shea think it is an area on which we also need to do more work?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Providing a service is one issue but it is also about the support services thereafter. Is Ms O'Shea satisfied? Does she think we could do more in that area?
Ms Marie O'Shea:
I spoke to some counsellors from an organisation and they certainly run support services for people post termination of pregnancy and support them through it. I think the My Options counsellors are members of the One Family organisation and provide pre- and post-termination counselling services to anyone who approaches it.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I will move on to section 11 of the Act and the inability to get access in cases of fatal foetal abnormality.
I have a case where a person was turned down for care in a major facility and was travelling to the UK but was persuaded to go to one of the other major facilities, which provided the service. The analysis from day one was correct; the foetus would not have survived. Of the people the witnesses met while compiling the review, had all of them got access to a medical facility here before they travelled? Was it a case of the service not being provided?
Ms Marie O'Shea:
In cases of foetal anomalies people are supposed to now have a second scan after around 20 weeks to indicate when there are anomalies. The pathway then is to refer them to a special foetal medicine centre, of which there are six in Ireland. There are also foetal medical specialists who carry out sessional work in other hospitals in the country so they have access to those services. What the Deputy is saying goes back to medicine not being predictive and some of it would be experiential because you are making an educated guess-----
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I am asking about the people interviewed when compiling the report. Was it a case that these were people who travelled-----
Dr. Catherine Conlon:
Yes. They had gone through the service in Ireland. Of the people we spoke to, if their anomaly was detected in a non-providing hospital or in a hospital that did not have the diagnosis capacity, they would be referred to a tertiary hospital where the diagnostic care would be carried out and the treatment administered and then they would be returned to their referring hospital for any follow-up care. That is what the model of care anticipates.
One of the things with post-termination supports or supports around the termination in cases of foetal anomaly is that we have had a developed infrastructure of crisis pregnancy counselling services that have tended to be in the community prior to 2018. They have not tended to be in the hospital services so one of the things our study recommended was that there should be a recalibration of those services to make them more available for people going through the foetal anomaly-----
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I want to go back to section 11 again and to the people interviewed in compiling the report. They were not happy with the decision that was made and then they were forced to travel. Are the witnesses saying that some of these people should have been looked after within the service in Ireland? Is there adequate scope in the legislation to allow them to be provided with that service?
Dr. Catherine Conlon:
That is not a clinical judgment we could make in terms of doing the research but what we were hearing from the testimonies of the people seeking care was that the length of time for assessment was protracted and it meant that some of them opted out of the assessment process in Ireland and travelled to access care elsewhere. Also, the criterion of 28 days that was set by the legislation means that clinicians seem to be operating, not necessarily to a likelihood, which is what the legislation says, but to a high level of certainty because of the chilling effect of criminalisation. The criteria under the Act seem to be at a far higher level of certainty than for what people were seeking care.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
In the case I had, one major centre turned down the care and another major centre provided the care. The centre that provided the care took the correct decision. Is there a discrepancy between some of the major centres in the advice and support they are providing?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
It is not the opinion of just one person though.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
That is right.
Ms Marie O'Shea:
They should be supported by a multidisciplinary team, MDT, where it is a complicated decision. We know that some centres have more experience than others and they may have learned from experiential learning. They could have different supports in place. For example, The National Maternity Hospital, Holles St., has the benefit of a clinical geneticist.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
On that issue, Ms O'Shea is saying there are six major units.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Out of the 19 maternity units in Ireland, the other 13 units do not have the capacity to deal with an issue like that.
Ms Marie O'Shea:
There is always a referral to a foetal medicine centre. The Rotunda Hospital has a sessional arrangement with Cavan General Hospital or one of the other hospitals so there are sessional arrangements where a foetal medicine doctor will attend other centres, and it is not just the termination of pregnancy; it can be multiple pregnancies, twins or other complications. They would be involved in their care in terms of part of the assessment of whether they are eligible.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
From the evidence the witnesses got from the people they interviewed who travelled, is it the case that even within the current legislation we could be doing a lot more than people ending up travelling? I know we are talking about changing the legislation, which would deal with a lot of these issues, but I am talking about the current process.
Ms Marie O'Shea:
There is scope to improve the current process because you have to make sure that people have up-to-date knowledge that is in these MDTs. You also have to make sure you have access to the right screening and expertise. That is part of the review that is being carried out by Dame Lesley Regan, who is conducting a review of the operation of section 11 on behalf of the HSE. That is part of the issue but another part of the issue is the writing of the legislation because in a lot of cases you cannot definitively say a foetus will demise before birth or will die within 28 days of being born because there is no definitive list of conditions or sets of multiple conditions that say this is so. There are situations where they think it is highly likely that death will occur but there are also situations where they think there is a possibility that the baby may be an outlier. Something I never thought I would see was a consultant on the verge of tears describing how awful it was to say that to a person where they were pretty sure the baby would die shortly after birth and would have an horrific syndrome but they were not sure enough that death would take place within 28 days, even though they knew death would take place, and that the life in between would be compromised.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
In the example I give there was two major units with different opinions and the second unit was correct in its interpretation.
Ms Marie O'Shea:
It is subjective; that is an element of it. That is why I recommended a collective leadership approach where the Department of Health would bring in stakeholders to discuss and get a better understanding the problems with implementing section 11 of the Act. That is needed before any legislative change to make sure that, if legislation is changed, what is there is capable of being clarified and that they can say with some certainty and clarification that you are eligible to have an abortion.
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
I thank the witnesses and the clerk to the committee; I wrote to the committee asking to be here today. Ms O'Shea mentioned that some of the comments that have been made are a breach of promise to the electorate. Is it almost verging on a breach of the legislation itself? If you look at section 7, it states, "The Minister shall, not later than 3 years after the commencement of this section, carry out a review of the operation of this Act." The natural corollary to that is that you act following that review-----
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
-----and we are now five years down the road. From a legal point of view, if we go much beyond this we are into the territory of breaching the Act itself.
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
There is a narrative out there that people voted for the heads of Bill. Ms O'Shea is here as a legal expert so from her point of view, is it correct that people voted for this Bill in the amendment?
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
Exactly, to legislate for termination of pregnancy. Ms O'Shea has looked into it. Is it fair to say the legislation itself is preventing women, in some instances-----
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
-----from accessing terminations? Therefore, it is again a breach of promise to the electorate-----
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
-----who voted for terminations. To go back to the point, according to the exit poll, 75% of people said they voted not based on the heads of Bill or any of the conversations at committee. Much as I would like to think that the thousands of doors I knocked on was persuasive, 75% of people said they had made up their minds at a very early stage. We now have this obligation on us to carry out the recommendations the review has made. Is it also fair to say we can go beyond its recommendations?
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
Sorry I am being so brief; it is because of my time. On that point around decriminalisation, is it fair, from both witnesses' points of view, to say, from speaking to women or practitioners, that there is a chilling effect on doctors-----
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
-----from criminalisation?
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
Ms O'Shea is not saying we should not change the law to decriminalise.
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
-----the decriminalisation part.
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
The World Health Organization, WHO, is pretty firm on this point.
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
Does Ms O'Shea think this committee, which I am not a member of, should investigate the recommendations and guidelines from the WHO?
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
As Ms O'Shea said, the scope of what she has been able to do was somewhat limited.
Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source
I am from the west of Ireland. We have a challenge, ordinarily, with the recruitment of medical practitioners. Is this limiting rural Ireland even further in getting medical professionals?
Ms Marie O'Shea:
I think it is. The lead-in time to the appointment of a consultant is one year. That in itself is a delaying factor. A person may take up a post but there could be a further delay if he or she has a contractual obligation somewhere else. The bigger, more technical hospitals attract more attention than the smaller ones. It could be the case that further incentives to try to attract willing providers to certain hospitals need to be included, such as protected time.
It was notable to me that at the time of doing this review, eight hospitals did not provide services. I asked the HSE what the status of recruitment was. It indicated that an additional four hospitals would provide services this year but the recruitment process had not actually started until last year. If you infer from the fact that the HSE was interviewing in January, it means it must not have started the process until 2022. What has been happening in the interim period is another question. If there is management in certain hospitals, and that would seem to be so from the research Dr. Duffy did, who are quite apathetic towards service provision, that needs to be teased out. Where service arrangements are in place that allow the HSE in section 37 hospitals to come in and almost take over the board if it exceeds its expenditure, why cannot the HSE come in to these hospitals and take over the recruitment process?
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
On the hospitals, the report states that an additional four hospitals will come onstream for possibly the end of this year.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I did not particularly want Ms O'Shea to identify the areas-----
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
-----of the hospitals. Are the four hospitals in areas where there are services at the moment?
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea for her presentation and the work she put in to this. Some of my questions have been asked. I will ask a question on one matter on which I will be interested in her perspective. She told us that, "The right to exercise conscientious objection by consultants has been attributed by senior managers at the HSE as a major reason why hospitals do not provide full services." Have we any particular insight into how the education system as we have it, whether it is the system in general or the education system for the training of doctors, and the hospital settings into which they go, influences this?
Ms Marie O'Shea:
I do not have any evidence-based insight but I am hearing recommendations that it should be included in the undergraduate curriculum. The professional bodies should be rolling out training. The ICGP has rolled out training for its members who wish to take it up. The Institute of Obstetricians and Gynaecologists is also rolling out training and has rolled out values clarification training with the HSE. An online facility has also been developed in the HSE, which is on HSE land, that is providing training to people on the ground. However, that all depends on people's willingness to engage in it.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I want to be fair. I sometimes pick up a notion that there is a disproportionate view in the practice of this compared with the view of the public when they went to vote on it in the referendum. What are the implications of that? How do we change that? Ms O'Shea talked about bodies rolling out these things. It is as if they have been caught by surprise and realise they have to address it. Putting it bluntly, how do we create a system where we educate general practitioners and consultants that this is part of the healthcare system, and has been accepted as an essential part of the healthcare system, particularly the State healthcare system. How do we get to that point?
Dr. Catherine Conlon:
There are probably two phases. There are those who were in the healthcare system at the point where the law changed. There has been a radical change in the law and they were at mid-practice point when the law was implemented. Values clarification is something the WHO developed and the HSE engaged on. That was a very detailed exercise that went into hospital settings and engaged with multiple disciplines and all levels and forms of staff within hospitals. It had that detailed engagement on how the law had changed and what providing this care meant. At the point of early implementation, that seemed to have a strong impact in the ability, at the wider institutional level, for there to be a more fine-grained understanding of how this service could work that allowed an enabling of people to opt into the service. The review references putting in place the conditions for those who are willing to provide to speak to managers and create that condition, rather than a broad-level institutional culture prevailing. That is, on the one hand, about addressing the situation that exists when the law changes so radically. It is also about embedding it into ongoing education and training for the teacher-clinician.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Is Dr. Conlon suggesting that if we came back in five years, the situation would have improved because of these processes?
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
There is no quick fix to-----
Ms Marie O'Shea:
To improving the number of providers overnight. That is for sure. I certainly think, from what I am hearing, that where hospitals provide services, people are becoming more interested in providing when they have face-to-face encounters with patients. They are not seeing them as something that is "other". They just see them as patients and normal human beings and it rouses interest in coming on board.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Okay, so in that sense it is evolving and organic.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
That is-----
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Is that the issue? It seems to have arisen possibly before the training has begun.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Okay. Have we done any work - and I am sorry to cut across - on where the majority of our GPs come from, and the schools they come from?
Ms Marie O'Shea:
We tried. We absolutely tried to do that. We tried to survey them. We had to go through the HSE's contracts office for them to send out the survey. We advertised it twice in the Irish Medical Times, but the response rate was very low. There is a dearth of information as to why GPs do not provide the service. It is indicative. What we do know from the literature and their own responses is that excessive workload seems to be a factor. Also, the proximity of a providing hospital seems to be a factor.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Why is that? I read that. Why does Ms O'Shea think that is the case?
Ms Marie O'Shea:
I think it is because if there are complications, where does one go? It is also if somebody presents at nine weeks plus six days, they have got to be referred to a hospital, which one is not particularly familiar with. One might know the people more in one's own location, because they would be used to referring maternity patients-----
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
What would be the difficulty in referring on to a hospital where one may not know the personnel?
Ms Marie O'Shea:
A GP would want to know the pathway of care, and they do have contact details now which were set up by the clinical director for termination of pregnancy service, but those pathways of care can sometimes be very unreliable. They require follow-up, and picking up the phone and talking to people. Some of the care pathways-----
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
What is an unreliable pathway of care?
Ms Marie O'Shea:
It is where a GP has a situation where they make a referral. The referral may be by email. It is sent to the person who is the co-ordinator for termination of pregnancy services. They only work part-time. It is not picked up immediately, so there is a delay there. There are situations where a referral can be sent out for an ultrasound scan. Some centres are better than others. A reply may not be received. On many occasions, one discovers that they got it, but they did not have the people in place to give the appointment at the time, so the whole process starts again. Some of the referrals to the hospitals and into ultrasound services sometimes get lost, and I think if one knows the consultants personally in their own providing hospital, it is probably easier to pick up a phone then if one does not know them. That is the impression I get. That is what was coming through.
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Okay, but if it was embedded in the system, the pathway-----
John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea for that. I would like to come back and focus on two particular aspects of her statement. The Act does not sufficiently address the balance between the right to conscientiously object, which is on the doctor's side, and the right to receive healthcare, which is on the woman's side. Ms O'Shea might develop that, and I will finish my last question, which really goes back to my first question about employers. What are the requisite inquiries which are required in the recruitment process to identify candidates who would be willing to perform abortion services?
Ms Marie O'Shea:
That is really the one issue. When it comes to conscientious objection, nobody, including myself, would want to deny somebody the right to exercise that right. It would be psychologically unsafe to insist that somebody whose values are against provision of abortion should have to go in and, save in emergency situations, perform an abortion. If one is of a religious persuasion or otherwise, that is not a fair thing to ask anyone to do. We have a situation which we know, and the Government policy is to increase the number of hospitals which are providing termination of pregnancy services. We know that the response of the HSE to that is to recruit consultants. However, we also know that in the recruitment process in the past, there were two known cases where the persons who were recruited then declared themselves to be conscientiously objecting to the provision of abortion. Regarding those two recruits, it might well be that they were never asked.
In recent times, the HSE is including in the job specification that termination of pregnancy services are part of the remit. However, it is still very unclear to employers. What I am hearing from the HSE is that when it is looking face-to-face at the candidate, it is unsure as to whether it can ask them, "Are you comfortable with providing termination of pregnancy services?" That is because of the provisions in the Employment Equality Act 1998 about discrimination. There is nothing to say that even if one said at the interview that one felt comfortable and the employer genuinely believed that one did, one would go in and then discover "well, I actually cannot do this.". If an employer can ask the question, and make the requisite inquiries, then it lessens the chances of recruiting somebody who has a conscientious objection. There has to be something in the legislation or ministerial guidelines which would make that clear to employers.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I thank Deputy Lahart. Regarding the GP response rate, I would like to make the point that 6% is appalling, for a group which is supposed to be an integral part of the pathway of care for these women. I am going to move on to Deputy Peadar Tóibín. I ask members to bear with me. Deputy Tóibín has five minutes. I will then bring in Deputies Emer Higgins and Michael McNamara, and then I will go back to members.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
Go raibh míle maith agat, a Chathaoirligh, agus gabhaim buíochas leis na finnéithe as ucht teacht isteach inniu.. I have spoken to many people who voted on both sides of the referendum with regard to this particular review. The issue which raised the most eyebrows is around the three-day wait period. What people find hard to understand is how such a concrete recommendation could be made to get rid of the three-day wait period, without any real detail as to how the number of women who have gone through the three-day wait period then decided to go ahead and raise their own child, as such.
We have had a lot of questions on that element here today, and I still do not know. It seems really surprising that the State created a three-day wait period for the specific objective of giving mothers an opportunity to weigh up the decision, which is an enormous decision. It is a decision to end a life, which is a big decision. Yet, the report does not actually agree that any women have used the three-day wait period to change their minds about proceeding to have an abortion, and then have raised their children. Have the witnesses spoken to any women who went through that three-day wait period, and decided to go ahead and have their child?
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
Is that not a major absence from this? In the evidence which we have heard today, many people have been spoken to with regard to this key element of her proposal, and the group of is maybe up to 2,000 or 3,000 women, given the figures which we know. Yet nobody has spoken to them and asked them if that three-day period was beneficial in being able to weigh up this enormous decision.
Dr. Catherine Conlon:
Our research was tasked with speaking to service users who had used unplanned pregnancy and abortion care supports. We actively sought out anybody who was anywhere along that care pathway. Within that, there was nobody who had used either counselling services or their first consultation with the GP, who had opted out after the three-day wait. That is what we gathered from the group of people we spoke to.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
It is a decision which was come to, without asking, speaking to, consulting with, investigating or researching at all any women who actually took the three-day wait period as an opportunity to change their minds.
Dr. Catherine Conlon:
What we did research were people who entered into the care pathway for unplanned pregnancy support or abortion care. What we asked them about was how, within that care pathway, the three-day wait was operating. Those we spoke to could appreciate that it may be useful for some. However, women who go through this pathway are very alert to the seriousness of the decision which they are making.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
I have only got five minutes, and there are two minutes left. The other issue which I want to talk about is adverse incidents.
Baby Christopher was born in the National Maternity Hospital. He was a fully healthy baby born aborted under the foetal fatal abnormality element of the Bill. Did Ms O'Shea speak to his mother?
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
Did she speak to any of three women who had-----
Ms Marie O'Shea:
No. I read the submission from Deputy Tóibín's political party on the number of incidents reported to the State Claims Agency. My competency to speak to these people and draw down as to whether this was due to a personal lack of knowledge, a systems failure, whether it was related to their decision or whether all three impacted on it is not there under the terms of reference of the report. We absolutely know, and it is recommended in the report, that there need to be safer systems. There has to be improved knowledge. There has to be monitoring and evaluation of the services. I refer to the review that Dame Lesley Regan is conducting into the operation of section 11 to look at the services and the supporting services that are there. That is all in there. The greatest respect we could pay to anybody who has had the misfortune to go through an adverse incident is to make the system safer. They are documented in the media. I am not going to-----
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
Okay. One of the aspects of this particular review is there seems to be a clash over access and the qualification of the medical professional who delivers care for the mother. I have spoken to the mother in this case. She is disappointed that she has not had a conversation with Ms O'Shea. In her view the idea of reducing it to one obstetrician to make the decision would mean the protection for the mother's care would be reduced. We have heard in the report that Ms O'Shea is worried that the criminalisation element creates a chilling effect whereby obstetricians or medical professionals might find their names in the media because of something that goes wrong.
Ms Marie O'Shea:
It simply is not just that. I have not suggested that we reduce it to one clinician or one obstetrician. What I have said on section 11 cases is that it is recognised by the statute that it is a two-person process to make the decision. When people are being assessed as to whether there is a fatal foetal abnormality it does not require a physical examination of the pregnant woman. It requires looking at her medical records and testing results. If we look at the review process, where a decision would be denied in the statute, there is nothing that says people in the review process have to examine the pregnant woman physically. It is a two-person issue but it is not-----
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Okay. Hold on.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
In this particular case the woman involved said it would have benefited-----
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Okay. Hold on.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
-----in terms of accuracy-----
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Let me chair the meeting. I ask Deputy Tóibín to finish his point.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
She said a second opinion would have helped in terms of accuracy in the diagnosis and the severity of the reality of what the baby would present with at birth. It denied the parents an opportunity to ask questions.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Members of the committee want to come back in and ask questions.
Peadar Tóibín (Meath West, Aontú)
Link to this: Individually | In context | Oireachtas source
That is from me speaking to the mother.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
A non-member has been allowed to run way over his schedule.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Let me chair the meeting please. We are coming to the end of the session. Please allow the witnesses to respond.
Ms Marie O'Shea:
I cannot address what happened in the case of baby Christopher. As a lawyer I would not go into it because I do not have the details from both sides. Audi alteram partemapplies across the board. The review very clearly addresses the need for quality and safety measures, which are applicable to all practices in medicine.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea.
Emer Higgins (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I thank the Chair for facilitating me. I know he has a tough job to do today and I note that he has not used his own ten minutes. I appreciate him allowing me to speak. I have three areas of interest. These are fatal foetal abnormalities versus anomalies, the three-day wait and safe zones. I want to say this first because I have only five minutes to speak as a non-member of the committee so we might not reach them all.
Although I am not a member of the committee, prior to being elected I campaigned for repeal, I represent the constituency of Dublin Mid-West which voted 73% in favour of the referendum, and I am a young woman, so this is an area of particular interest to me. I thank the witnesses and their teams for all of the work that has gone into this because it is very important research and they are making important recommendations.
I want to be part of reforming the service and access to it to make sure it is in the spirit of what people voted for. This is why I am so interested in what has been said, in particular by Dr. Conlon, about fatal foetal abnormalities versus anomalies. I did not realise "fatal foetal anomaly" was not a medical term until today. It is quite interesting.
Emer Higgins (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source
This is the problem really. Ultimately the witnesses have detailed situations where expectant parents have had to travel to receive a termination for a much-wanted pregnancy in a situation where they have been given clinical advice that the baby will not survive very long but where they do not have the clinical clarity to be able to say they are within section 11 of the legislation. It is wrong that this is still happening. It is not what people in Ireland voted for. I would like to see the specific recommendation of the witnesses to tackle this. Is it with regard to a timeframe? What is the specific takeaway?
Ms Marie O'Shea:
In terms of fatal foetal anomaly the Department of Health has to reconsider section 11. This is down to the very fact there is no conclusive definitive list of conditions that fall into the category. The Department has to sit down with the providers, lawyers and service users and work out exactly what difficulties they are experiencing in operationalising the section. They have to examine what alternative could be put in place to keep with the legislation. They need to put in place something that can provide certainty to service users so we meet our international law obligations on this side, help our clinicians to provide the care they want to provide and ensure we do not proceed with an Act that is inoperable.
Emer Higgins (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I thank Ms O'Shea. I hope this is reflected in the committee's report on this. It is about engaging with stakeholders to see how they can reform the Act to make section 11 do what it originally set out to do-----
Emer Higgins (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source
-----and how it was sold to the men and women of Ireland.
Emer Higgins (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I know two women in this situation and it is particularly tough when they and their families voted in favour of repeal for this reason.
With regard to the three day wait we have heard a lot about the unintended consequences and people being timed out of the system. Some contributors have already made the point that we do not seem to have data on the initial intended consequence. Having said this, from the contributions that have been made today, and from the report, I am convinced by the argument on the unintended consequences but I do see that there is a gap in the data. Ms O'Shea has recommended another review in three years' time. What does she recommend we do better in terms of data collection so we have all of the information that all legislators feel they may require?
Ms Marie O'Shea:
A data collection framework needs to be set up. Practitioners and providers have very definite ideas as to what should go into a data collection framework for the purpose of providing public health and for providing clarity within the meaning of the Act. This is addressed in a chapter of the review. It would include, for instance, information on what a person does after being refused a termination of pregnancy and why a person does not return for a second visit. A lot of data that needs to be collected simply is not being collected. Setting up a new service without data collection is a bit bizarre.
Emer Higgins (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source
This is a very important recommendation for the Minister and the HSE to hear. It seems like a big gap that could be quite easily fixed.
With regard to safe zones, outside of GP surgeries in particular, the testimony that has been put on the record today is shocking. I have heard the witnesses used the phrase "coercively controlling somebody's reproductive rights". It is appalling that this is happening. There is a campaign of intimidation and blackmail, sometimes towards a woman in a crisis situation and sometimes towards a service provider. This is important to say. It is awful that this is happening in Ireland. I know I am out of time but perhaps later the witnesses could discuss solutions for this.
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
In her response to Deputy Lahart, Ms O'Shea called for people to be able to be asked at interview stage their views.
This, Ms O'Shea said, would lessen your chance of recruiting somebody with conscientious objection. Does she not believe the obvious corollary of that is that you would lessen the chance of somebody with conscientious objection being recruited in general?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
My question was specific. Does Ms O'Shea accept that it would lessen the chance of somebody with conscientious objection being recruited into the Irish health service?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
Do she think that is acceptable ?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
I thank Ms O’Shea. She has been clear. In response to Senator Pauline O’Reilly, she said that the democratic mandate that she has is to go beyond the recommendations. She called for strong leadership and courage. Does she believe that it would demonstrate strong leadership and courage to go beyond the recommendations?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
Does she think that it would also demonstrate strong leadership and courage to reject the recommendations or does she think leadership and courage are restricted to those whose views she shares? Does she think that people whose views she does not agree with can also be courageous and demonstrate leadership?
Ms Marie O'Shea:
My views are not the views which are expressed in the report. These are the reviews, are evidence-based and this country has to respond to the needs of the people. Democracy is the will of the people. The terms of reference as set down by the Department of Health were very good. They have shown an evidence base. What else is the Government going to go on except the evidence?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
I thank Ms O’Shea for that. The terms of reference were to look at the objectives of the Act.
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
Would she accept that one of the objectives of the Act is to provide for offences in respect of the intentional ending of the life of a foetus otherwise and in accordance with the Act?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
Does Ms O’Shea believe that is reflected in that objective? I refer to the protection of the right to life of a foetus, because obviously the prescription of the ending of the life is implicitly an acknowledgement of a right to life. One does not prescribe the ending of a life unless one believes there is a right to that life. Does Ms O’Shea believe that that is reflected in her report?
Ms Marie O'Shea:
I believe it is fairly reflected in the report, yes. The termination of pregnancy is illegal in Ireland unless it is done within the regulations of the Act. The difficulty, because of the way it is being regulated, is that it is causing the medical profession to practice defensive medicine. I do not believe that was ever what was-----
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
Ms O’Shea is recommending the removal of the offences which are a core objective of the Act, as defined in its Long Title.
Ms Marie O'Shea:
I am recommending that medical professionals should not be criminalised by the Act. If they are in breach of their statutory duty, that can be dealt with in the civil courts. If it is malpractice, their regulatory body can deal with that. These are long and protracted processes and nobody in this House would want to be going through them.
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
I am just conscious of the time and the latitude being afforded me and I do not want to abuse it. I thank Ms O’Shea very much for her replies.
Ms O’Shea said that there was a particular risk in trial before a jury over a trial, presumably, before a judge in a summary case. What does she mean by a particular risk where there was a trial before a jury?
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
I thought she did say that but I may have misinterpreted it.
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
People regularly commit crimes with the very best of intentions.
Ms Marie O'Shea:
They very much do and, quite honestly, one’s heart would go out to them. I refer to a trial by jury with the prospect of 14 years in prison. We had a horrendous crime which was covered in the media, a very vicious murder, and that person got 14 years because they deliberately went out and caused a horrific situation. I cannot comment on other people and I can only comment on the theme, as I see it, which came through in the research, and that concerned medical practitioners.
Michael McNamara (Clare, Independent)
Link to this: Individually | In context | Oireachtas source
I am out of time but I appreciate the time that has been afforded me. I thank the Cathaoirleach and Ms O’Shea.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I call Deputy Cullinane and Senator Clifford-Lee.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I wish to speak briefly. I will not take the full five minutes as I know that the Chair is under pressure. I just have two quick questions. The first is a very important point on the research which underpins Ms O’Shea’s report because many of her recommendations are based on the UnPAC study and other elements of research. From her perspective, as the author of the report, does she believe that the research was impartial, independent and unbiased?
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
She would fully stand over all of the research. She found it fair, inclusive, unbiased, impartial, and so on.
On conscientious objection, the potential conflict was asked about earlier with regard to a patient’s right to have access to a service and then conscientious objection arising. Is there a clash between both of those, particularly in circumstances where a conscientious objector does not refer a patient on to a clinician who does not conscientiously object? Is that something that is a difficulty and is it something that needs to be addressed?
Ms Marie O'Shea:
It is a difficulty and should not be one. The Act purports to address it by imposing that duty to transfer the care. The Irish Medical Council ethical guidelines also put duties on conscientious objectors to transfer the care to people but it is the case that it does not seem to be happening in all cases. There is a clash and there needs to be something in there that looks at the abuse of that right.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I thank Ms O’Shea.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I call Senator Clifford-Lee now.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank the Cathaoirleach. I will refer quickly back to the Irish Family Planning Association, IFPA, research on the three-day wait and the 2.5% of the clients who continued with their pregnancies. Is there any evidence from Ms O’Shea’s own research that the people who continue with their pregnancies change their mind? I am trying to establish whether they had their minds made up going into the appointment and the appointment then changed their mind or were they using the appointment with their GP just to possibly explore their options?
Dr. Catherine Conlon:
We do not have evidence as regards speaking about anybody who had that particular care pathway. However, if one thinks of the usual healthcare engagement, where somebody goes to a healthcare provider seeking care under this pathway of unplanned pregnancy and abortion care, and if one accepts that person has capacity, has the ability to make a sound decision, is having an engagement with their doctor and the doctor is acting according to best medical practice, it is a very reasonable assumption to make that in the course of that consultation, if there is any uncertainty there, they will respond to that and will withdraw from proceeding with the care.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
The point I was making is that the person had not necessarily made up their mind and may have then used the three days to make a complete flip-over to some other decision. They may have not made a solid decision when they were going there.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
They continued with the pregnancy.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I have one other question and Ms O’Shea quite helpfully confirmed with one of my colleagues that we are not confined to the legislative changes which she suggests.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I refer to the section 20 of the Health (Regulation of Termination of Pregnancy) Act 2018 on notifications. Doctors must directly notify the Minister every time they provide abortion care. That does not happen in any other aspect of healthcare. That is very stigmatising of the service. Given the fact that the information collected is not very useful, should we get rid of that section 20 notification?
Ms Marie O'Shea:
I do not believe it serves any particular purpose. I believe the monitoring and evaluation framework and what is being developed by the HSE national women and infants health programme, NWIHP, office is far more helpful because that would determine policy going forward and what needs to be done in the gaps and to make the situation safer. I do not understand why information is being collected on when the termination took place and the county the people were in.
Dr. Catherine Conlon:
It is there at the moment instead of data that are directed more towards quality of care considerations. That seems completely anomalous. It applies to abortion and any other form of healthcare. The international evidence would say that anything that makes for exceptionalism in this particular area of healthcare, whether criminalisation, a three-day wait or specific notifications, contributes to accumulation of stigmatisation and making it a particular form of healthcare that does not go towards normalisation, which it seems like this Act or model of care was intended to do.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank Dr. Conlon for that confirmation.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Deputies Shortall and Durkan can ask one question.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
The witnesses have made a range of recommendations for operational changes as well as legislative changes. I suppose it is hard to separate those in many ways.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
They are interrelated. This committee will keep a close overview of both. The reality is that the legislative changes can effectively only be brought forward by Government. Many of us would hope that there would be movement in that area as soon as possible because the witnesses are clear about the recommendations and there is a strong evidence base. Would the witnesses see those ten legislative changes that they recommend all being part of one Bill? Do they think that would be possible or are they talking about a couple, three or four Bills?
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I have a comment. As I said, I listened carefully. I believe a number of things have become apparent. The most important one is the access to the service envisaged in the legislation that was passed arising from the referendum. I hear what people say about politicians needing to be brave, to be leaders and so on. We know all about that. We are one of very few people who have to go before the public interview board every four or five years and sometimes more often than that for the renewal of our contract. That applies right across the board. If anybody else wants to copy that, I would be glad to accommodate them. The point I want to make is simply this. I think the legislation provided for the women who had need of the service but were not getting it, with regard to conscientious objections and the unavailability of the service. That needs to be, can be and should be addressed. To tamper with the three-day waiting period will result in-----
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Deputy Durkan.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
-----something serious. I indicated I wanted to get in.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I know the Deputy did. I gave him leeway for a question.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I did not overstay my welcome the last time.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Will Deputy Durkan finish up, please?
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
The point I want to make is simply this. There will be a legal challenge. There is no doubt about that in my mind. It will be decided on the basis of whether this changes the legislation. If we are changing the legislation, obviously it is good to do that. I would say that caution is needed. Let us try to make sure that we make available the services that were envisaged in all such situations and circumstances before we start to change them.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
It is a statement-----
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
-----from one of those politicians who have to go before the electorate every so often.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
How would there be a legal challenge?
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I am not opening this up to a discussion.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
We are all about changing legislation. We are the Oireachtas.
Ms Marie O'Shea:
Every time we sign up to an international convention, we are supposed to interpret our law in a way that is consistent with the obligations under that convention. This Act is falling far short of that. I think if nothing is done, it is only a question of time before we see a repeat of Mellet v. Ireland and Whelan v.Ireland and the Taoiseach standing up in the Dáil to make an apology and pay a sum of money to people. I have said that in the discussion section here.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I do not think that my remarks generate that-----
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Deputy Durkan is abusing the Chair.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Will Ms O'Shea address Deputy Shortall's point on legislative changes?
Ms Marie O'Shea:
Incremental change is probably the way forward. There has to be further discussion on section 11 and also on aspects of section 9 of the report. Some of it could be done under one Bill and should be done quite soon because of the effect that it is having on the service providers and service users. Most of it is quite straightforward, though definitely not all of it, and I hope the report speaks for itself.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Ms O'Shea might tell us about those areas that can be dealt with straightaway.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Ms O'Shea might just drop us a note.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I apologise for cutting Ms O'Shea off.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
We have run out of time. I apologise to the staff. We were supposed to finish at 12.30 p.m. On behalf of the committee, I thank the witnesses for assisting us in our consideration of the report of the review of the operation of the Health (Regulation of Termination of Pregnancy) Act 2018. I thank them for their report. We will take the information and recommendations in the report away and decide as a committee on where we will go from here. I appreciate the witnesses taking their time out. It was a really useful session. I apologise to those members who did not have enough time to put in questions. We may return to this.