James Reilly (Dublin North, Fine Gael) | Oireachtas source

The process requires an assessment on medical grounds to determine whether the test set out in the Supreme Court judgment in the X case is met. The Supreme Court held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that there is a real and substantial risk to the life of the mother, and that this risk can be averted only by the termination of her pregnancy.

I have previously mentioned the definition of "reasonable opinion" given in the Bill, and I would like to expand on its explanation here.

The definition of “reasonable opinion” requires that this opinion must be formed in good faith, and must have regard to the need to protect the right to life of the unborn and preserve unborn human life where practicable. The emphasis on preserving unborn human life means that a doctor will be obliged, as far as practicable, to end the pregnancy in such a way as to preserve the life of the unborn. The registered medical practitioner(s) will be obliged to record this opinion in writing if certifying a procedure that will end unborn human life.

One of the two medical practitioners involved in the certification process will always be an obstetrician-gynaecologist and the other will be a medical practitioner in a specialty relevant to the risk to the life of the woman - for example, an oncologist, cardiologist or another obstetrician. As indicated in the definition of reasonable opinion, the test requires a clinical diagnosis in relation to the risk to the life of the pregnant woman and a foetal assessment. Therefore, the expertise of an obstetrician will always be required in ensuring patient safety, as well as in accessing services.

In addition, the Bill now makes it the duty of the obstetrician involved to deal with the issuing of the required certification so that the medical procedure may be carried out and they will also be responsible for making such arrangements with the appropriate institution.

Provision is also made in the legislation for consultation with the woman's GP in the course of the diagnostic process, where she has given her permission and where it is practicable and feasible to do so.

Section 8 deals with emergency situations, where there is an immediate risk of loss of life arising from physical health conditions only. In an emergency situation, the opinion of one registered medical practitioner will be sufficient for the termination to be lawful.

Doctors should not be prevented from saving a woman's life in a situation of acute emergency because, for example, the required numbers of doctors are not available to certify, or the woman in question arrives at a health facility that is not covered as an appropriate institution under this Bill - that is to say it is not a public obstetric unit or a large public multi-disciplinary hospital. Therefore, in emergency circumstances, the reasonable opinion of one medical practitioner is required to certify that the termination is immediately necessary to save the life of a pregnant woman, but the medical practitioner who carries out the procedure will be required to certify the reasons for his or her actions. If necessary, the certification for the procedure may be issued by the medical practitioner after the medical procedure has been carried out, but in any event no later than 72 hours afterwards.

Again, this opinion must be formed in good faith and have regard to the need to preserve unborn life where practicable. The emergency "exception" will not apply in the case of a risk to life from suicide.

Section 9 deals with a risk to the life of the pregnant woman from suicide. There are recognised clinical challenges in accurately assessing suicidal ideation, for example, the absence of objective biological markers. Therefore, this assessment requires that more safeguards are put in place.

In these cases, three medical practitioners registered on the specialist division of the Medical Council register must certify that in their reasonable opinion there is a real and substantial risk to the life of a pregnant woman arising from suicide that can only be averted by a termination of pregnancy. One of them must be an obstetrician-gynaecologist practising in an appropriate institution, and the other two must be psychiatrists, one of whom must practise in an appropriate institution, and the other must practise at an approved centre, and-or for or on behalf of the HSE. In addition, the Bill specifies that at least one of the psychiatrists must have experience in providing mental health services to women during pregnancy, childbirth and after delivery.

This section contains similar provisions to those made in section 7 regarding the duty of the obstetrician involved to issue the required certification for the medical procedure and for consultation with the woman's GP with her consent where practicable.

I am aware that questions have been raised around the role of the obstetrician in this assessment. However, the test in this case will always be multidisciplinary in nature, as it requires a clinical diagnosis in relation to the risk to the life of the pregnant woman as well as a foetal assessment. Therefore, the expertise of an obstetrician will always be required.

The establishment of a formal framework providing for an accessible, effective and timely review mechanism is one of Ireland's obligations under the judgment in A, B and C v.Ireland.

The purpose of the formal medical review process is to provide a mechanism for a woman who requests access to a review of the clinical assessment made by the original doctor or team of doctors. In practice, this will only arise where the woman's request for a termination in line with the X case criteria has not been granted or when she has been unable to obtain an opinion in this regard. The review process is provided for in Chapter 2 of the Bill at sections 10 to 15. It is important to note that this formal review pathway is in addition to and not in substitution for a woman's option to seek a second opinion as in normal medical practice.

Section 10 sets out the process for applying to have a medical opinion reviewed. The woman or a person acting on her behalf must apply in writing to the HSE for a review of the relevant decision. Section 11 provides for the establishment of a review panel by the HSE, which may be drawn upon to form a review committee. The panel will consist of at least ten relevant experts for the purposes of the formal medical review, all of whom must be medical practitioners within the meaning of the Bill. Members will be nominated by the Institute of Obstetricians and Gynaecologists, the College of Psychiatrists of Ireland, the Royal College of Surgeons in Ireland, the Royal College of Physicians of Ireland and the HSE. The HSE will draw from the panel when it needs to establish a review committee to consider an application for a review made under the Bill. Section 12 deals with the establishment of review committees. The Health Service Executive will act as the convenor for the purpose of the formal medical review process. As soon as possible and no later than three days after receiving a written request from a pregnant woman, the HSE will establish and convene a committee drawn from the review panel to consider the relevant decision. The requirements for the composition of a review committee will exactly mirror the requirements set out in sections 7 to 9, inclusive. Section 13 specifies that the committee shall complete its review as soon as possible and no later than seven days after it is established. The section further provides that the committee must inform the woman of its decision in writing as soon as possible.

Section 14 sets out the procedures of review committees. It provides for the woman or a person authorised to act on her behalf to be heard by the review committee. It also aims to empower the review committee to obtain whatever manner of clinical evidence it requires to reach a decision and to call any relevant medical practitioners to give evidence in person. Section 14 provides that the HSE will make administrative arrangements for the operation of the committee, including provision for facilities and expenses. Section 14 also provides that failure to comply with a direction issued by a review committee is an offence for which a fine may be imposed.

Section 15 provides that the HSE must submit a report on the operation of review committees to the Minister for Health not later than 30 June each year. An amendment was made to the Bill in the Dáil to specify that such reports will be laid before the Houses of the Oireachtas, which is necessary in the interests of transparency. It is appropriate that reports on the operation of the legislation should be viewed and discussed in the Houses. It is my hope that the amendment reassures my colleagues that the Oireachtas will continue to have an overview of the area once the legislation is passed. Information which must be included in a report includes the total number of applications for reviews, the number of reviews carried out, the reasons reviews were sought and the outcomes of such reviews. This information is required to monitor the implementation of the legislation and to ensure the principles and requirements of the system are being upheld. Section 15 clarifies that any information which might identify a woman who has made an application for a review shall be excluded from the report by the HSE. An amendment made by the Dáil further provides for the protection of the identity of doctors who are lawfully complying with the legislation.

Part 3 of the Bill deals with miscellaneous matters. Section 16 deals with consent and states that nothing in the Bill will affect the law relating to consent to medical treatment. The intention is that the provisions of the Bill will operate within the existing legal provisions on consent to medical procedures. Section 17 concerns conscientious objection. Professional health personnel, namely medical and nursing personnel, will not be obliged to carry out or assist in carrying out lawful terminations of pregnancy if they have a conscientious objection, unless the risk to the life of the pregnant woman is immediate. Where a doctor or other health professional has a difficulty in undertaking a required medical procedure, he or she will have a duty to ensure another colleague takes over the care of the patient, as is normal in current medical ethics.

I should note that the right to conscientious objection is a human right which is limited to persons only and which cannot be invoked by institutions. The prohibition of conscientious objection for institutions was removed from the wording of the Bill, since the provisions make it clear that this right is limited to persons involved in the delivery of the treatment.

Section 18 reaffirms the rights of freedom to travel and freedom of access to information as per the thirteenth and fourteenth amendments to the Constitution for the avoidance of doubt.

Section 19 deals with certification and states that it must be made in the prescribed form and manner and must contain the prescribed information, which must include the clinical grounds for carrying out the medical procedure. An amendment was made to this section in the Dáil. It was solely aimed at altering this section to mirror the provisions made under the reporting system in section 20.

Section 20 provides for a notification system for all terminations of pregnancy carried out under the terms of this Bill. I consider it very important to record the number and nature of terminations of pregnancy in order to monitor the Bill’s correct implementation and to detect any potential abuse of its provisions. Accordingly, the legislation includes a clear requirement on providers to notify me, as Minister for Health, of all terminations carried out under this legislation within 28 days.

Amendments were also made to this section in the Dáil. The legislation included provisions for notifications since its inception and specified the information to be provided for the purpose of notification in the Bill. This is to maximise transparency in the operation of the legislation by enshrining principles and policies in primary legislation rather than providing for it in secondary legislation when it is not necessary to do so. An amendment was made to this section to include the Medical Council registration numbers attached to the doctors who have certified terminations. The notification specified in section 20 will contain the Medical Council registration number of the medical practitioner who carried out the procedure; the grounds for carrying out the procedure; the Medical Council registration number of each of the certifying medical practitioners involved; the name of the institution, or other location in emergencies; and the date on which the procedure was carried out.

This section also contains a requirement for me, as Minister for Health, to prepare and publish an annual report on the notifications received. Following Dáil amendments, the report will be laid before the Houses of the Oireachtas. This will be done without disclosing the identifying information on the women concerned. Following one further Dáil amendment, the identities of the certifying doctors and the doctor who carried out the procedure will be similarly protected.

Section 21 amends section 9 of the Health Act 2007. These amendments were necessary to permit me, as Minister for Health, to suspend relevant medical procedures in an institution when an investigation is being undertaken by the Health Information and Quality Authority, HIQA, in a serious risk of failure by an institution to comply with the provisions of this Bill. Such medical procedures may be suspended until I am fully satisfied that the institution in question is compliant with the legislation.

Section 22 sets out the offence of intentional destruction of unborn human life. This updates the law in this area, which, as I mentioned earlier, was until now governed by the 1861 Offences against the Person Act. The penalty for the offence is now up to 14 years' imprisonment, or a fine, or both. While it is recognised that the potential criminalisation of a pregnant woman is a very difficult and sensitive matter, this provision reflects the State’s constitutional obligation arising from Article 40.3.3°. It would also be inequitable to have, as a matter of course, a significant penalty for the person performing a medical procedure but none at all for the woman who is willingly undergoing such a procedure. From a review of the main categories of criminal offences on the Statute Book, the term of up to 14 years was considered appropriate by my Department and the Department of Justice and Equality. However, a prosecution may only be brought by or with the consent of the Director of Public Prosecutions, who would use his or her discretion. If a case is taken, the sentence to be applied in any particular case is a matter for the courts involved, which would also show discretion.

While a subsection was initially included in the Bill to clarify that the offence does not apply to a medical practitioner carrying out a procedure as laid out in sections 7 to 9, inclusive, this was amended in the Dáil. While it was initially thought that this subsection was necessary for the avoidance of doubt, subsequent advice has proved that this is not the case and the subsection was deleted.

Section 23 provides for the offence by a body corporate.

A Schedule is appended to the Bill setting out the names of appropriate institutions for the purposes of the Bill. Technical amendments were made to it in the Dáil to set out the correct legal names of the institutions in question for the avoidance of doubt and to clarify the position from a legal standpoint.

I reassure the House again that the only purpose of this legislation is to clarify what is lawfully available by way of treatment in cases in which there is a real and substantial threat to the life of a pregnant woman and to set out clearly defined and specific circumstances in which this medical procedure can be lawfully provided. In connection with the operation of the Bill, I note that my Department has already commenced a consultation process with the relevant professional bodies, including the College of Psychiatrists of Ireland, the Institute of Obstetrics and Gynaecology and the Irish College of General Practitioners, with the ultimate aim of developing guidelines for their members on the implementation of the legislation following its enactment. It is expected that a multidisciplinary committee to develop these clinical guidelines will be established before the Bill is enacted and asked to complete its work as soon as possible.

As Members will be aware, a very significant amount of work has gone into producing and refining the Bill. As I alluded to, the public hearings held by the Oireachtas Joint Committee on Health and Children informed the composition of the Bill. I express my gratitude to the Chairman, Deputy Jerry Buttimer, and members of the committee for its invaluable contribution to the issue and the assistance it provided for me and my officials. I thank all those who came to the committee meetings and hearings for their contributions and Members of both Houses for the very respectful debate we have had to date. We have been able to express our own strongly held beliefs, but, equally, we have all been able to hear each other's beliefs. That has been very helpful to us in formulating a Bill which I know does not go far enough for some and goes too far for others, but it is a Bill that I believe is necessary to meet our obligations, to clarify for women what it is they are legally entitled to and, most importantly, how they can access that service and to provide professionals who must provide the service clarity on what is legally permissible and what it is their obligation and duty to provide.

I commend the Bill to the House and look forward to working closely with my colleagues in the Seanad as we discuss the legislation.