Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 19:

In page 9, line 4, after "obstetrician" to insert "or a medical practitioner of another relevant speciality, not being a psychiatrist,".

I discussed this with Senator Crown.

The Bill provides, in the case of section 7 procedures, that the procedure must be carried out by an obstetrician at an appropriate institution. I understand that at an earlier stage, the heads of Bill stage, the original proposal was that it would be capable of being carried out by a registered medical practitioner at an appropriate location. Perhaps the Minister of State can clarify that for me and maybe, for the benefit of the House, explain the reason for the change.

My amendment proposes that the medical procedure be carried out by an obstetrician or "medical practitioner of another relevant specialty, not being a psychiatrist". Obviously, the explicit exclusion of psychiatrists would be necessary to ensure there would be no ambiguity permitting the interpretation of the section to include suicidal ideation as a physical illness.

During the course of the Oireachtas health committee hearings, written and oral submissions were made by both medical and legal experts to the effect that head 2(1) was deficient in restricting the carrying out of the medical procedures in question to public obstetric units. It was pointed out that these life-saving medical procedures might need to be carried out at a general hospital where the patient might, at the time, be under the care of another medical specialist, such as an oncologist. In an apparent response to those submissions - I realise section 7 provides for the change - an appropriate institution is defined in the Bill as essentially any public general hospital and any further institution specified by the Minister. My issue relates to the change from "registered medical practitioner" to "obstetrician". It will be noted that not only has the location at which a medical procedure may be carried out been changed in the implementation of head 2(1) by section 7 of the Bill but also that the qualification of person by whom it may be carried out has been changed. Head 2 specifies that any registered medical practitioner may carry out the relevant life-saving medical procedure, but section 7 states only an obstetrician may carry out the procedure.

Is a relevant medical specialist who is not an obstetrician permitted to carry out a life-saving medical procedure? I have asked Senator Crown about this and he agrees - I do not want to put words in his mouth - that there may be a lacuna that ought to be addressed. I would like to hear what the Minister of State has to say about it. What about the case of a cancer patient in a general hospital under the care of an oncologist who wishes to prescribe or administer a medical procedure such as radiation therapy or chemotherapy in the course of which or as a result of which the pregnant woman will be at risk of losing her unborn child? If the oncologist proceeds and the unborn child dies in the course of or as a result of the medical procedure prescribed or administered, or is perhaps stillborn, will the oncologist have any protection from the law under section 7?

We all know what we would like to see happen. Good medical practice in the State has always distinguished between direct and indirect effect. It is well-established and universally accepted that good medical practice, as in cancer care, may sometimes result in the undesired death of the unborn child. Our doctors are very good at managing the care of patients in consultation with them and ensuring that care is given in a way that is least noxious to the unborn child. However, it is not always possible to save an unborn child or to prevent danger, damage or death to the unborn child when a pregnant woman needs necessary medical treatment.

Under this legislation, irrespective of what anybody else says we will have a new law stipulating it is an offence to destroy unborn human life intentionally. In the law, one is presumed to intend the natural and probable consequences of one's actions. It is a rebuttable presumption. A person who may foresee the death of a child as a result of necessary medical treatment, such as cancer treatment, might feel vulnerable in such circumstances. What is lawful is the carrying out of a medical procedure in the course of which, or as a result of which - indirect effect would seem to be provided for - an unborn life is ended, but a procedure rendered lawful by this Bill, which does not mention abortion but which criminalises the intentional destruction of unborn life, is one that can be carried out only by an obstetrician. There may be other examples that I do not know about. Perhaps the Minister of State has examined this and can assist us. Are practitioners other than obstetricians who are in the business of providing necessary life-saving medical treatment covered by this Bill when they have to carry out a medically sound procedure, in good faith, but which has the foreseeable effect of taking the life of the unborn?

This is far from an academic matter because the case of C in the case of A, B and C v.Ireland in the European Court of Human Rights involved a person in remission from cancer when she became pregnant. Is it possible that this Bill, which is intended to offer her or somebody in a similar position adequate clarity and protection, does not offer that? Could it be that section 7, as currently drafted, would have the effect of putting women's lives at risk? I do not ask this in any declamatory fashion but I am seeking clarification for the Government.