Carol Nolan (Offaly, Independent) | Oireachtas source

I move amendment No. 46:

In page 15, to delete lines 32 to 34 and substitute the following:

“Information and informed consent

23.(1) Except in a case of an immediate risk to the life, or of serious harm to the health, of the pregnant woman, where it is immediately necessary to carry out the termination of pregnancy in order to avert that risk, no termination of pregnancy shall be carried out without the voluntary and informed consent of the pregnant woman.

(2) Consent to a termination of pregnancy is voluntary and informed if and only if the medical practitioner who is to perform the termination of pregnancy or another medical practitioner assisting him or her—(a) has informed the pregnant woman, orally and in person, of the following:

(i) medically accurate information that a reasonable patient in the position of the pregnant woman would consider material to the decision of whether or not to undergo the termination of pregnancy, including:

(I) the proposed termination of pregnancy method;

(II) the immediate and long-term medical risks associated with the proposed termination of pregnancy method;

(III) the medical risks associated with carrying her child to full term; and

(IV) alternatives to the termination of pregnancy;

(ii) the probable gestational age of the foetus at the time the termination of pregnancy is to be performed; and

(iii) the probable anatomical and physiological characteristics of the foetus at the time the abortion is to be performed,

(b) in the case of a pregnant woman intending to avail of a termination of pregnancy in accordance with section 13, has offered the pregnant woman in person a printed copy of the document referred to in subsection (7),

(c) in the case of a pregnant woman intending to avail of a termination of pregnancy in accordance with section 11or 14, has offered the pregnant woman in person a printed copy of the document referred to in subsection (8), and

(d) in the case of a pregnant woman who expresses a wish to receive the information contained in either of the documents referred to in paragraph (b)or (c)respectively but is unable to read the said document, has conveyed the said information to the woman in an appropriate alternative manner.(3) Where it is intended to carry out a termination of pregnancy on a foetus who is twenty weeks’ gestation or more, the medical practitioner intending to carry out the termination of pregnancy or another medical practitioner assisting him or her shall, orally and in person, offer information on foetal pain to the pregnant woman.

(4) The information offered in accordance with subsection (3)shall include, but shall not be limited to, the following:(a) that maternal anesthesia typically offers little pain prevention for the foetus; and

(b) that an anesthetic or analgesic is available in order to minimize and/or alleviate pain to the foetus.(5) Where it is intended that a termination of pregnancy be performed using abortioninducing drugs, the person who supplies the drugs to the woman intending to have the termination of pregnancy shall, orally and in person, inform the woman of the following:(a) that it may be possible to reverse the effects of the abortion-inducing drugs should she change her mind, but that time is of the essence; and

(b) that information on reversing the effects of abortion-inducing drugs is available in the document referred to in subsection (8).(6) For the purposes of this section, the phrase “abortion-inducing drugs” means a medicine, drug, or any other substance prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination will with reasonable likelihood end the life of the foetus, other than drugs that may cause such a termination, but which are prescribed for other medical indication.

(7) The Health Service Executive shall cause to be published in both printed and digital formats a document containing information as to:(a) available medical and nursing assistance and care, including neonatal palliative care;

(b) available social and counselling supports and services; and

(c) contact details for public and private agencies and services,which may be of relevance and practical assistance for a pregnant woman in a case where a foetus has a condition referred to in section 13, including a pregnant woman who does not wish to avail of a termination of pregnancy in accordance with section 13.

(8) The Health Service Executive shall cause to be published in both printed and digital formats a document containing information as to:(a) public and private agencies and services available to assist a pregnant woman through pregnancy, upon childbirth, and while her child is dependent;

(b) information as to available medical assistance, supports and benefits for prenatal care, childbirth, and neonatal care;

(c) information on the support obligations of the father of a child who is born; and

(d) the information referred to in subsections (5)(a)and 5(b).(9) The Health Service Executive shall develop and maintain an internet website, which may be part of an existing website, on which the information referred to in subsections (7)and (8)can be viewed and from which the documents referred to in subsections (7)and (8)respectively can be obtained.

(10) The document referred to in subsection (8)shall also include the following statement:

“There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The law requires that your health care professional give you the opportunity to call agencies like these before you undergo a termination of pregnancy.”.

(11) Nothing in this Act shall operate to create an entitlement by a pregnant woman under the age of eighteen years to consent to medical treatment.

(12) A medical practitioner who carries out a termination of pregnancy in accordance with section 11shall certify in writing in addition to the matters referred to in section 11(1):(a) the nature of the medical emergency; and

(b) in cases where the voluntary and informed consent of the woman concerned was not obtained, the reason for its not having been obtained.(13) The failure to comply with the requirements of this section shall provide the basis for:(a) a civil action for damages (including aggravated and exemplary damages) by the woman concerned for breach of statutory duty;

(b) professional disciplinary action against the health professional concerned.(14) In any matter referred to in subsection (13)the court shall, upon application by the woman concerned or of its own motion, allow a woman to proceed using solely her initials or a pseudonym and may make such other protective orders as it considers necessary and appropriate to preserve the privacy of the woman concerned.”.

This amendments speaks on informed consent. Before we go further into discussion on the amendment, I wish to draw the attention of Members to subsection 12. The proposed section 46(12) should refer to section 12 and section 12(1) of the Bill, respectively, instead of section 11 and section 11(1). This is because the subsection refers to the section relating to termination in the case of an emergency. I wish to draw the attention of Members to that point.

The amendment makes provision for information that a woman seeking an abortion is entitled to be given. It is designed to ensure that she will have full information on the material facts and that if she is not given that information she may initiate appropriate proceedings for breach of the obligation owed to her in that regard.

The amendment is solely about information. It does not apply to emergency situations. It places no obligation on women. The amendment ensures that women are given information on relevant matters, including risks of the relevant abortion method, risks of carrying the child to term, alternatives to abortion and supports available to assist her. It is obvious that in the absence of this information any consent obtained is not an informed consent.

Consent to a medical or surgical procedure is not true consent unless it is informed consent. Without this amendment women who would elect not to have an abortion if they had complete information will instead go through with it. That must surely be unacceptable to anyone who would label themselves as pro-choice. Yet, curiously, some Deputies of that view have continuously and groundlessly criticised this amendment.

Prior to the referendum, the Tánaiste, Deputy Simon Coveney, assured people that the cooling off period of 72 hours would involve counselling and offers of alternatives to abortion. The amendment ensures that the law reflects what the Tánaiste said during the referendum. The Minister has constantly said that he wants clarity for doctors in the law. Despite this, he rejects amendments from pro-life Deputies as not being necessary in primary legislation. He has said these matters can be dealt with by guidelines etc. This is a contradictory stance. Either we give doctors clarity in the Bill, as the Minister keeps insisting on, or we do not.

At common law the more elective the procedure, the greater the duty on the doctor to warn the patient of potential negative outcomes. It is clear that most abortions under this Bill will be elective procedures. The law requires that elective procedures require a high degree of disclosure. However, the parameters of that obligation are not clear in all situations. Arguments sometimes arise in litigation over whether a given risk was material. Accordingly, for clarity, it is important to include in the Bill a provision specifying what should be disclosed.

Women need to be respected through the provision of full information instead of having information withheld based on some paternalistic assumption. It is highly paternalistic to deny a patient relevant information merely because it could give rise to upset or affect her decision. Such an approach would be entirely an unacceptable approach.

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