Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 15:

In page 8, line 31, to delete “have jointly certified in good faith that” and substitute “and having regard to the relevant clinical evidence, have jointly certified that”.

These issues are somewhat fite fuaite, but in a way they follow directly and logically from what we have been talking about for the last while. Whereas what we are talking about for the last while related to the question of the protection for doctors who carry out a procedure that did not take the life of the unborn - it is no consolation to me to think that doctors might none the less risk not taking the life of the child on the basis that they would be covered by their professional indemnity; I found that a very worrying sop - this amendment relates to the last issue to which I referred, namely, the certification as distinct from the carrying out of the procedure. This does not relate to the emergency procedures. A good faith certification does not arise in that situation, but it does relate to the section 7 procedure and the section 9 procedure, and it also relates to the issue of the review of the relevant decision. In the situation where abortion is not certified at first instance, the review committee has to apply the same test and ask whether there is a real and substantial risk of loss of life, and whether "in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure," that risk can only be averted by carrying out a medical procedure referred to in section 7(1) or section 9 (1), as the case may be.

We have a distinction here between the role of the person carrying out the procedure and the people who certify the procedure in the first place. As I pointed out to the Minister, it is the people who certify the procedure that must have regard to the need to preserve the life of the unborn as far as practicable, and not the people who carry it out. Let us look at the quality of that certification, given the far-reaching consequences for the unborn child, in the context of section 9. In any situation where medical professionals are asked to certify that a procedure resulting in the death of the unborn is the only way by which a risk to life can be averted, it is reasonable to expect that they would be informed by the relevant clinical evidence. There are problems with the good faith test because of its subjective nature.

My amendments provide that having examined the pregnant woman, instead of "having jointly certified in good faith", they would be required to "have regard to the relevant clinical evidence and jointly certify". Therefore, we are not talking about a requirement of good faith, which is subjective. We are talking about a requirement of having regard to the relevant clinical evidence, which is something that can be judged more objectively.

There were hardly any medical negligence cases in Ireland until 1989. In that year, the case of Dunne v. National Maternity Hospital came before the Supreme Court and remains the seminal case in medical negligence to the present day. Two of the principles set down by former Chief Justice Finlay for establishing medical negligence are as follows:

The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification.

These principles helped found the test of a reasonable standard of care, which is the main test for establishing liability in medical negligence cases. Medical professionals have to act with ordinary reasonable care. If the diagnosis or treatment were reasonable, then there can be no finding of negligence. At our hearings, Dr. Ciarán Craven pointed out that there is a higher test applying in the case of negligence. He stated:

In so far as the law of tort is concerned, it used to be dealt with in the context of whether one followed, adhered to or subscribed to a general and approved practice, in other words one which was followed by a responsible, reputable or respectable body of professional opinion. That was the classical test and the classical formulation.

He pointed out that this has undergone something of a transformation in recent years, especially since HM v. the HSE and a decision of Mr. Justice Charleton from July 2011. The key point from that decision is that evidence-based professional guidelines were deemed to be incorporated into the appropriate standard of care, and Dr. Craven stated that "seemed to represent something of a shift in so far as the courts are concerned from this deference to clinicians in terms of what is or is not appropriate." He went on to state:

A further issue has also arisen. In its decision in the case of Kearney v. McQuillan, the Supreme Court went further in stating that health care professionals owe and always have owed a duty to patients to protect their constitutional rights.

Underscoring both of these cases seems to be the requirement for some evidence in terms of one's evidence. In order to fulfil ethical and legal obligations, there must be some evidence in terms of what medical practitioners do, and that is about the only way the ethical injunction primum non nocere, or "first, do no harm" can be fulfilled.

When it comes to the question of certifying certain opinions in sections 7, 8, 9 and 13, in each case there is a requirement that the opinion be formed in good faith only. When one is relying on the good faith safety justification, that justification will always succeed. Trying to demonstrate mala fides, bad faith, or even improper motivation in this area, is virtually impossible. There is a whole series of cases where this has arisen under the old mental health legislation over the past 40 years. With respect, it seems what is happening in this Bill represents a very old fashioned approach which is inconsistent with the ethical and now the legal and constitutional duty that the courts have elaborated on over the past two years. A good faith opinion, which is accepted without any reference or is unsupported by any reference to evidence-based practice, is regressive or potentially dangerous. That is the point.