Dáil debates

Wednesday, 28 November 2018

Health (Regulation of Termination of Pregnancy) Bill 2018: Report Stage (Resumed)

 

8:50 pm

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael) | Oireachtas source

I thank colleagues for their contributions. For Deputy Donnelly, I confirm that his understanding in respect of viability is correct. We discussed this on Committee Stage and doctors have already told us all through the Oireachtas Joint Committee on Health and through the Oireachtas special committee that they do not need this to be in law as it is the practice. However, we have put it in law anyway just to provide absolute, complete and utter clarity and reassurance to people. Our doctors are in the business of wanting to deliver babies and where a baby has reached viability, that baby will be delivered. I think the legislation is clear on that. We have also heard from the Institute of Obstetricians and Gynaecologists to the effect that it is already the practice in Ireland.

In response to Deputy Butler's question about what entails extraordinary life-sustaining measures, and indeed Deputy Donnelly's raising of this issue, I thank the Deputies for acknowledging that we have now put this in the explanatory memorandum, again to provide absolute clarity and certainty on what is meant in that regard. Deputy Butler is entirely correct; we have not put a timeline on viability and I think that is really important for the reasons she outlined. The committee has considered this as well. The timeline for viability can vary from woman to woman and from pregnancy to pregnancy. It should be a clinical decision and we should not have a rigid point in law. With medical advancements, viability may come earlier and earlier in pregnancy. It is appropriate that our clinicians are empowered to make those decisions. For the reasons I have outlined, I believe Deputy Donnelly's amendments, while well intended, have been dealt with through the clarification and the explanatory memorandum.

Deputies have proposed a number of amendments to insert a provision in the Bill whereby a termination of pregnancy may be carried out under section 11 in cases where the pregnant woman deems the risk to her life or her health to be unacceptable. I did say on Committee Stage that the law should not impose an obligation on a medical practitioner to carry out a medical procedure on the opinion of another medical practitioner if he or she does not agree with that opinion. While I appreciate that the Deputies wish to ensure that attention is paid to the woman's wishes, as do I, and indeed to her opinion of the risk to her life or health in this situation, I would go further and say that it would be wholly unacceptable to force a medical practitioner to arrive at that reasonable opinion based on his or her patient's view. The medical practitioner has to be able to satisfy him- or herself or the risk. That is the job with which clinicians are entrusted.

However, I think it is really important to say that medical practitioners should not decide on a course of treatment without reference to the wishes of their patient. As I have pointed out previously, the Medical Council's Guide to Professional Conduct and Ethics for Registered Medical Practitionersspecifies that a medical practitioner's responsibility to provide patient-centred care does mean treating patients as individuals, taking into account their personal preferences, goals and lifestyles, and acting with compassion and respecting patients' dignity. That is the obligation our doctors have signed up to under their regulator, the Medical Council.

Amendment No. 16 concerns the process by which a medical practitioner can ascertain whether a termination of pregnancy may lawfully be carried out. This is set out in sections 11 to 14, inclusive, of the Bill. Apart from emergency situations, which are covered in section 12, the Bill clearly sets out the steps which must be undertaken to assess termination of pregnancy in this country. The medical practitioner must examine the pregnant woman, form a reasonable opinion in good faith, certify that opinion and carry out the termination of pregnancy. In order to form a reasonable opinion in good faith, the Bill is clear that the medical practitioner is required to examine the pregnant woman. I thought long and hard about this on the basis of the very detailed discussion that we had on Committee Stage. A number of Deputies put forward different wordings to replace "having examined", for example with "following a medical consultation with" or "ascertain her views". There was quite a number of suggestions put forward. I have taken a lot of legal advice on this and I am advised that it is important that there is consistency between the various sections of the Bill from a legal point of view in order not to differentiate between them or cause unintended consequences in the way the Bill is interpreted. Given that there is a requirement for examination included in the Protection of Life During Pregnancy Act, leaving it out of the current Bill would result in a lessening of the clarity around the process, potentially causing undue confusion both for medical practitioners and for the woman. The important aspect of the requirement set out in the Bill is that medical practitioners providing the service and women accessing it are clear as to how a medical practitioner is expected to reach the reasonable opinion formed in good faith. It is therefore my opinion, heavily influenced by legal advice that I have received, that to remove this requirement would result in a lessening of the clarity around the process, potentially causing undue confusion for both medical practitioners and for women. This is something that I did insert in the Bill after publication of the general scheme on the basis of the legal advice I received in terms of providing clarity.

I also took a look at the issue in respect of the word "avert" rather than "mitigate". This wording, used in section 11, was considered at some length during the drafting of the legislation. The formulation set out in the Bill is based on the position approved by Government and set out in the general scheme published last March in advance of the referendum. The phrase "serious harm to the health of the pregnant woman" was used in the general scheme and has not been changed since. This is a phrase that, again, if we are sticking to what we said we would do in advance of the referendum, was there from the start of March. The qualification "serious" was included in section 11 to clarify from a legal perspective that the nature of the risk to a woman's health goes beyond the normal risk of harm to a woman's health which pregnancy would pose, even to a healthy woman. It was inserted on the basis of advice from the Attorney General. Pregnancy by its very nature does involve a risk to a woman's health. Evidence shows that an early termination of pregnancy, if done safely and according to best medical practice, will always - factually - pose less of a risk to a woman's health than continuing with the pregnancy to delivery. We did need to clarify in law what exactly we meant when we were talking about risk of harm. In addition, the wording used in this section makes it clear that the risk to a woman's health would not include, for example, poor health from a respiratory tract infection or another ailment that could harm a woman's health while she is pregnant but would not have sufficiently serious consequences for a termination to be justified on health grounds.

Deputies, particularly Deputy Kelly, sought on Committee Stage to replace the word "avert" with "mitigate". However, I have taken legal advice in respect of that as well. The language used in the Bill has regard to the need to clarify that the scale of risk of harm involved goes beyond that normally involved in pregnancy and that a termination of pregnancy is appropriate in cases where it can prevent rather than reduce or mitigate such harm. Under the terms of the Bill, a medical practitioner can take the decision in consultation with the woman to carry out a termination of pregnancy on the grounds that it would be appropriate in order to address that risk. Use of the word "appropriate" was deliberate to try to provide the sort of clarity that Deputy Kelly is looking for. Termination of pregnancy is not restricted to cases where the medical practitioner believes the termination is necessary in order to avert the risk. For these reasons, I am not in a position to accept these amendments.

Comments

No comments

Log in or join to post a public comment.