Monday, 10 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Committee Stage
I move amendment No. 2:
In page 7, line 27, to delete “physical or mental health” and substitute the following:“a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity”.
I thank the Minister for Health, Deputy Harris, for being in the Seanad today. We are looking forward to a constructive Committee Stage debate and, hopefully, we can progress through the Bill quickly. I tabled this amendment on foot of my own thoughts on how we view a woman's health throughout this Bill and regarding our needs as they apply to the termination of pregnancy. This issue arose on Committee Stage in the Dáil but I did not feel the importance of an amendment like this was properly aired. That is why I have tabled it here again today.
Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The constitution of the World Health Organization, WHO, states:
The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being, without distinction of race, religion, political belief, economic or social condition. The health of all peoples is fundamental to the attainment of peace and security and is dependent on the fullest co-operation of individuals and States. The achievement of any State in the promotion and protection of health is of value to all.
The constitution of the WHO goes on to state:
The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health. Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people. Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.
What is important for me is that we acknowledge the social and environmental elements of our well-being. Every time we give an account of lives that may be impacted by this legislation, we point to the vulnerability of people within their lives and circumstances. Whether it is poverty, disability or race, time and time again we state we want to protect them. Make health and services accessible to all women. Poverty and poor health cannot be separated and social well-being cannot be omitted from the definition of health. They are all intrinsically linked.
The primary cause of poor health for thousands of people in this country is inseparable from social and economic injustices.During the debates by the Committee on the Eighth Amendment of the Constitution I tabled an amendment to our report that would have allowed social indicators to be included in an assessment of a woman's health. At no point in this legislation do we acknowledge the role of social and financial capital on a person's well-being and-or ability to access healthcare. One way to ensure that we adequately address this matter would be to amend the definition of health in the Bill. The most vulnerable in society are the least likely to receive healthcare and we must take positive steps to address health inequity now. This amendment would amend the definition of health in the Bill from solely meaning physical or mental health to a broader holistic view of health that is used by the World Health Organization. The definition would incorporate the many factors that need to be considered when making an assessment of someone's health and frames it positively around well-being, not just a state of not being sick. My amendment proposes a better definition that I hope the Minister will accept. If we cannot add my definition, I ask that it form part of the discussions when the Bill is reviewed in three years.
There are many elements to acknowledging the role of social circumstances in a person's health outcomes. There is also a relationship between people with lower socio-economic status and the barriers they face in accessing responsive care. These include poor quality of interactions, difficult living conditions and the complexity of the healthcare system. Amending the legislation to include the definition of health approved by the World Health Organization would be a positive step towards acknowledging the health inequity that exists in this country and allow people's circumstances, living conditions, income, poverty, health outcomes and all of that complexity to be part of the framing of this legislation.
I normally agree 100% with my colleague and friend, Senator Ruane, but on this occasion I have some reservations. It is all right for the World Health Organization to have a utopian view and of course it allowed Senator Ruane to give a splendid view of utopian social circumstances. However, while I am a pretty jolly person and I have been relatively healthy since I got somebody else's liver installed, I do not think I have ever had complete physical, mental and social well-being. That is something to aim for but I do not think it exists very much in the real world. I do not oppose the amendment but I have some reservations about it because I think it is utopian.
I am delighted to be in the Seanad for Committee Stage of this legislation and look forward to a number of days of constructive debate on Committee and Report Stages.
I have just come from a meeting with many medical stakeholders who are preparing for the introduction of services in January. I am very happy to see the level of preparedness that people have made, in terms of websites, information campaigns and helplines, to make sure we will be able to support the 372 women in Ireland who will seek a termination in January in this country with care and compassion, regardless of what we do with the law. We know that nine women travel and three women take the abortion pill every day.
I look forward to debating this legislation with Senators over the coming days. I thank them for the significant effort they have put into their amendments. I have had a chance to discuss a number of amendments with Senators. I am not in a position to accept Senator Ruane's amendment, which I am sure will not come as a great surprise to her. I see what the Senator has endeavoured to do. She was honest and upfront in acknowledging that this was an issue that she pursued at the all-party Oireachtas committee. I very much see my mandate coming from that committee in terms of how the legislation should be framed. That committee made a decision not to include socio-economic grounds. Therefore, arising from that, when I published a general scheme in advance of the referendum in March socio-economic grounds were obviously not included. Again, the Senator has been entirely honest by saying that her amendment would broaden the terms. I am not here to broaden the terms but to do what I promised the people we would do when we had a referendum.
The definition of health in the Bill means a person's physical or mental health. That is important because for too long many people have tried to pooh-pooh mental health and not give it the seriousness it deserves. I know the committee, and subsequently the Government, made a very conscious decision that the definition of health should mean a person's physical and mental health. The definition in this proposed amendment means "a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity". I genuinely believe that definition is too broad and that the concept of "social well-being" is too nebulous for the purpose of legislation. The definition of well-being, as per the Collins Dictionary, is "the condition of being contented, healthy, or successful". As per the Macmillan Dictionary, it is "the satisfactory state that someone or something should be in, that involves such things as being happy, healthy, and safe, and having enough money". As per the Cambridge Dictionary, well-being is "the state of feeling happy and healthy".The inclusion of a definition of well-being would go beyond factors connected with health, extending to socio-economic and other social influences. Of course, the Senator is aware that we made a conscious decision to provide for termination up to 12 weeks without specific indication. We are not second-guessing women. There is always a reason for seeking a termination but we, as legislators, are not second-guessing that reasoning. The definition of health in the legislation as it pertains to terminations beyond the 12-week period is sufficiently broad and is in line with what we promised the people we will do.
Of course, the Senator is correct that the legislation will be reviewed in three years. I have very strong views on this. I initially proposed that the legislation be reviewed after five years but people thought that too long and we have amended it to three years. Obviously, I will be duty bound to lay annual reports before the Houses under the terms of the Bill and the HSE will produce an annual statistical report. These issues can be kept under review but I am currently satisfied with the definition of health and do not propose to accept the amendment.
The Minister referred to the service being available by January. Is he aware that the Taoiseach suggested it will not be fully available at that stage? I made the point on Second Stage that many of the difficulties we are facing with amendments and so on would have been avoided if terminations were to be provided in clinics. I do not think the Minister was present to hear my remarks. I regret that we are not providing for abortion clinics, which is what should have been done. It would have been the most practical way to do it. There would be no problems with conscientious objection if that had been done.
I do not intend to break the rules of Committee Stage as the Cathaoirleach would not appreciate it but on this occasion I will deviate from the amendment before us. Of course, I am aware of the Taoiseach's comments. He is entirely correct in his statement that if these Houses pass the legislation and the President signs it into law, services will be available in January. That is what he stated at lunchtime today. That would mean that the more than 300 women who will experience a termination in January will have access to services in their own country and that the trip to Liverpool via ryanair.com or visiting a website to buy an illegal abortion pill will no longer be necessary. The Taoiseach also truthfully pointed out that it takes time for services to embed, evolve and be fully implemented and I fully agree with him in that regard.
On clinics, the decision taken by the Oireachtas committee was that we should ensure abortion services are integrated into the public health service and provided in the community where possible. I support that decision.
I did not see the Senator indicating, so I will allow him to speak. Senator Ruane is withdrawing the amendment. If Senator Ó Domhnaill wishes to speak briefly, he may do so, but I must keep control of the debate.
I understand that and I agree with the Cathaoirleach. The Taoiseach's remarks at lunchtime indicating that he wishes for these services to commence on 1 January, as does the Minister, are in stark contrast to the remarks of the practitioners due to provide those services. Dr. Austin O'Kennedy, a renowned practitioner in County Donegal to whom I referred during Second Stage last Thursday, has outlined clearly that it would be highly absurd to proceed with this legislation with a 1 January window.
Senator Ruane's amendment is very specific and has nothing to do with the broader question being addressed by the Senator. I will not allow discussion of issues outside the scope of the amendment. I ill-advisedly allowed Senator Norris to make a further contribution, but he had spoken to the amendment. Senator Ruane indicated she is not pressing the amendment. Senator Ó Domhnaill is addressing a completely new issue.
She indicated that she will withdraw it.I cannot stop Senator Ó Domhnaill speaking on the specific amendment because Senator Ruane indicated that she was not pressing it and if it is to be withdrawn, the House has to agree to it.
It is respectful to the amendment. Senator Ruane went to the trouble of putting down an amendment and I am only giving some feedback on that. Broadening out the word "health" to include well-being would dilute the protections of the unborn child. It is not something that I could subscribe to or support. I agree with the Minister in what he had to say on broadening out the definition. There is much I could say on it but I will confine my remarks to that. Unfortunately, there is no way I could support Senator Ruane's amendment even if she was pressing it-----
I move amendment No. 3:
In page 8, lines 17 and 18, to delete “without extraordinary life-sustaining measures” and substitute “if given all practicable treatment and assistance for the purpose of ensuring her or his survival”.
By way of a prefacing remark, which will hopefully help to save a lot of time later, this is a very difficult and tragic situation for Members who are opposed to the Bill. I do not intend to speak for longer than is necessary on the amendments that I will be proposing. If I repeat myself, it will be accidental. I want to say as much as I need to say to get what is important on the record but I will certainly not engage in any kind of parliamentary tactic. This issue is too serious and too tragic for that. I hope that we will give each other some space and avoid any sledging or parliamentary obstructive tactics as we go through this.
The Minister referred to the reality of women travelling. Part of the context for this is that an analysis was never done on how many more might travel in the future as a result of this legislation and, therefore, it is not just about a reality that will somehow be transposed into law. We had a person from the Institute of Obstetricians and Gynaecologists talking about the Scottish figure of 11,000 abortions a year as being somehow suggestive of an unmet need given that Scotland has a similar population to Ireland. It did not happen before the referendum but for the first time it is emerging that there is an expectation that we might have an increased abortion reality. I fear that perhaps it will be very different from the current reality that the Minister describes some time in the future.
The Minister also briefly mentioned mental health and its importance. I agree with him. I have been falsely, wrongly and crazily accused of denying the existence of mental health or somehow denying the existence of mental health problems. The only point I have ever made on this issue, which has never been contradicted, is that there is no evidence to show that abortion helps where mental health is the health ground on which abortion is being sought. That is why leading academic experts have questioned the current law in Britain and that is why I have been, and will be, critical of the failure to distinguish in these areas and had Senator Ruane not withdrawn her amendment, that is the point I would have made. Medicine should always be evidence based. Abortion under some headings in this legislation is bring presented as medicine. It is not evidence based, however.
The final prefatory point I want to make is that repeated reference was made in the Dáil to the idea that this is how the people voted and that we have to go with that, as if to say that even proposing amendments to this legislation would somehow be obstructive of the democratic process.I do not know if anyone disagrees with me about how often that line has been used. Liam Weeks, the UCC academic, writing in the newspaper yesterday stated:
Some need reminding that the Irish electorate did not necessarily vote to legalise abortion. They voted to remove its constitutional prohibition, which is not the same thing. They also voted to give parliament the power to introduce abortion, which again, strictly speaking, does not necessarily imply an endorsement of the availability of abortion.
He went on to say the electorate handed over the right to make a decision on this policy to our legislators. If we all accept that, then we will save a good deal of time later by not having recourse to the mantra that somehow this is what the people voted for - they did not. They did not vote on the heads of the legislation, as the Referendum Commission pointed out before the referendum. We all need to accept that and proceed from that point.
Amendment No. 3 relates to the definition of viability in section 8. The current definition is inconsistent with the pre-referendum heads of Bill. It would have the effect of setting viability later than normal.
Does the term "extraordinary life-saving measures" refer to an incubator? We could have a situation where a baby who would be regarded as viable could be subjected to abortion if an incubator was seen as an extraordinary life-saving measure. I will outline where I believe we ought to be on this point. Let us remember that we are talking about the definition of viability as it relates to abortion under section 9 and section 10 grounds. Under these provisions abortion is to be permitted beyond the first 12 weeks. We are talking about a very developed unborn child.
It is important to emphasise the legitimacy and appropriateness of the consultative dimension when it comes to questions of viability and later-term terminations. Certainly, I have no wish to do anything to obstruct good normal medical judgment making. The amendment is about codifying the protections for reasonable treatment rather than denigrating doctors or women who might legitimately forego aspects of what would normally be considered to be extraordinary life-saving measures.
It seems to me that what applies in normal pregnancy situations should apply in these situations with regard to the duty of care to the child at a certain stage in pregnancy. The Medico-Legal Journal of Irelandhas stated that the appropriateness of more extensive measures, such as surgery and specialised neo-natal intensive care, is to be determined in light of the child's condition and the foreseeable benefits and burdens of the treatment options for the total good of the child.
We are talking about amending from a negative to a positive formula. Under the current definition, viability means the point at a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures. There is some ambiguity here. I believe it is more helpful if we define viability as a situation where the foetus will survive given all practicable treatment and assistance for the purposes of ensuring her or his survival. In other words, it corresponds to putting the child in the same situation as that of any premature baby requiring care. That is the proposal. It avoids the risk of pitching viability too late, thereby bringing about an increased number of later-term abortions.
Having considered it carefully, I oppose this amendment because it seems to frustrate the intention of the Bill. The woman has decided to end her pregnancy and this would frustrate that wish. For that reason, I cannot support the amendment.
In response to Senator Mullen's initial comments, we can vehemently disagree on the content of this legislation, as I know we do, and still have a debate that is respectful and constructive, and, as he rightly says, does not seek to filibuster or delay. I look forward to engaging on that basis.
I am not in a position to accept amendments Nos. 3 or 15 because these amendments, tabled by the Senators, delete the definition of viability set out in section 8 and replace it with alternative wording. This is a definition that has been debated and considered at great length, including by the Office of the Attorney General. Viability is defined in the Bill as "the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures." This was the subject of considerable discussion during the drafting of the legislation and the formulation set out in the Bill specifies that extraordinary measures which would be more than routine and go beyond those used as a matter of normal medical practice in neonatal care these days would be required in order to save the life of the foetus.
I take Senator Norris's point about the importance of considering these issues in great detail. After this matter was discussed in the other House, I revised the explanatory memorandum to the Bill and included a further clarification which states that, for the avoidance of doubt, extraordinary life-sustaining measures refer to measures which go beyond those routinely used in neonatal practice to support the life of a premature infant. I believe this is a direct answer to Senator Mullen's request that a baby in this situation would be treated in exactly the same way as a premature baby. We heard from obstetricians at the committee and they are in the business of saving life. If a baby - because it is a baby at this stage - is viable, the normal neonatal care that would be applied to anybody's newborn baby will of course be applied to these cases. The amendment is, therefore, at best unnecessary and at worst, as Senator Norris says, potentially has unintended consequences.
I also cannot accept amendment No. 15 in section 10 because it proposes that a termination of pregnancy may only be carried out in an emergency where the foetus has not reached viability. I genuinely believe that in this amendment we are putting ourselves into the clinical setting where a doctor is working might and main to save a woman's life. Under the provisions of section 10, this applies in an emergency situation where there is an immediate threat - Senators should note the word "immediate" is used - to the life, or of serious harm to the health, of the pregnant woman, and "it is immediately necessary to carry out the termination of pregnancy in order to avert that risk." There are two occurrences of the word "immediate". This is a situation in which time is of the absolute essence and if the medical practitioner does not act, the woman may die. I accept nobody wants that to be the case but in such a situation it would not be appropriate to require a medical practitioner to carry out tests, procedures or examinations to determine whether a foetus is viable before he or she could proceed because this would represent a wholly unnecessary and inappropriate interference with best medical practice and a doctor's expert decision making in the moment of a medical crisis.
Ironically, amendment No. 15 would impose a stricter regime and test than the one currently in place in Irish law under the Protection of Life During Pregnancy Act 2013. This would be more restrictive in the emergency setting than the current law, which was put in place before the repeal of the eighth amendment. The Senator is right. We can interpret and second guess why people voted "Yes" and why that was the result. However, in voting "Yes" people did not vote for a more restrictive situation in respect of an emergency setting. That would be the consequence of this.
We have to trust our medical practitioners to make decisions in the best interests of their patients. This is a case of trusting women because this is an emergency. It is a situation where a woman very much wants her pregnancy and her baby and has found herself at risk of dying or of very serious harm to her health and needs immediate medical attention. For those reasons, it would not be appropriate to accept amendment No. 15, which would impose a stricter regime than is currently in place under the emergency provisions of the Protection of Life During Pregnancy Act 2013.
I allowed some latitude to Senator Mullen at the outset to make some remarks which were balanced, and for the Minister to respond. I advise Senators that I am not going to open up a general debate on why the referendum took place, the result and so on. There are specific amendments and I would like Senators, insofar as possible and practicable, to engage on the amendments tabled.
I have absolutely no objection at all to what the Cathaoirleach said. I thank him for that. As I said, it was to say something that would avoid something being unnecessarily repeated ad nauseamlater on.
I had not actually spoken to amendment No. 15. I know the Minister gave his reply already, but I must disagree with him very strongly on this one. We need to read this amendment to section 10 in the context of the definition given in the legislation. The definition given in the legislation is of a "termination of pregnancy". It is defined as "a medical procedure which is intended to end the life of a foetus". I do not see how the Minister can say the amendment I am proposing can take us to a more restrictive situation than that which already obtains. It was the Minister himself who said before the referendum that there would be no late-term abortion. The Minister gave a campaign promise that post-viability babies would not be aborted. In the absence of the constitutional right to life of the unborn, it is all the more important for legislation to specify the duty not to directly attack the life of the unborn child in the post-viability stage.
The amendment I am proposing inserts the requirement for the child in question to be pre-viable for the purposes of any act or procedure that is intended to end his or her life. It is reckless in the extreme to allow this section to stand without any protection in the third trimester or the post-viability situation. To return to the question of what people voted on, they did not vote for a situation where a child in the third trimester could be subjected to a procedure that was intended to end his or her life. The normal practice is early delivery once a child is viable. There is nothing in this legislation to require early delivery.
The Minister, Deputy Harris, refers to the expertise of the medical practitioner. We know nothing about the expertise of the medical practitioner proposing to carry out a termination under this section. This is an extremely wide-ranging, vague and badly defined section that exposes unborn children to the risk of decisions that will be made to deliberately end their lives in the post-viability stage, because it lacks the requirement that the procedure can only occur prior to viability. What would happen post-viability? In contradiction to what the Minister has said about creating a more restrictive situation, we would revert to current normal medical practice, which is early delivery. There is nothing in this legislation or in this section that protects or requires early delivery. This is why the point I made earlier about the lack of a scientific basis for the idea that abortion has a therapeutic benefit in mental health situations is so important; because the entire debate so far has sought to disallow any discussion of when or where a health situation could genuinely and reasonably require or indicate an intervention of this kind.We have no distinction in the area of the definition of health but we have a problematic situation in Britain that has been defined by experts. Let me not be misunderstood as denigrating mental health, something which has been dishonestly said. Mental health is real and mental health problems are real. The question is whether abortion helps that situation. There is no evidence to suggest abortion improves a situation and there is a conflict of evidence about the situations where abortion may cause harm. That is the current best science on the subject. In the absence of a definition of health that confines us to bona fide medical situations and in the absence of a requirement that the intervention would not target the life of the unborn child in the post-viability stage, we are left with a very cruel and dangerous section which has to be changed if what the Minister said to the electorate is to have any reality. We need to conduct our discussion on the basis of close factual analysis. I have pointed out the problems and I really hope the Minister will change his position on this.
I support amendments Nos. 3 and 15 and I agree with my colleague, Senator Mullen, on the importance of both of them. The amendments revolve around the viability issue and the protections for babies born at a late stage.
Senator Mullen covered amendment No. 3 in detail but I will deal with amendment No. 15, which seeks to ensure that where an unborn child is capable of being born alive it is delivered, unless that course of action is not open to the treating doctors. There is currently no provision in the Bill requiring even a consideration for saving unborn life in an emergency situation. The consideration of whether or not there exists a possibility for saving a foetus does not impact on a woman's entitlement to a termination under this or any other section. This introduced a viability limit for abortion, as opposed to early delivery in emergency cases only. There is absolutely no justification for the emergency provision to extend to intentionally ending the life of an unborn child up to birth.
The people were repeatedly assured before the referendum on 25 May that there would be no late-term abortions. There would be early delivery with a medical team on hand. This is never necessary to deal with any physical danger to the mother so it is based on mental health grounds, as outlined by Senator Mullen. Section 10 opens the door to that and it is noteworthy that to certify an abortion under section 10, even for mental health grounds, the medical practitioner does not have to be a psychiatrist, an obstetrician or any other specific type of medical practitioner. Unlike even the emergency provisions in section 8 of the 2013 Act, there is no requirement in section 11 or elsewhere in this Bill for the opinion to be one which has regard to the need to preserve unborn human life as far as practicable.
It is important to emphasise that the changes suggested here do not pose any danger. There is nothing in the Bill to preclude the necessary early delivery of a baby who would survive outside the womb. Such early delivery is a way to avert the kind of risks which section 10 of this Bill is supposedly directed to addressing, without taking the life of the unborn child.The law in Ireland has always recognised a duty on the treating doctors to have regard to unborn life, even in emergency situations. However, the duty does not mean that the life of the pregnant woman is put at risk. Amendment No. 15 addresses the fact that it may be clinically possible to save foetal life at a late stage in pregnancy even in an emergency situation. The removal of a constitutional right to life for the unborn child changes the obligation on the treating doctors to take foetal life into account in making clinical decisions regarding the woman's care. This amendment simply means that in the absence of a constitutional duty, doctors will have a duty to have some regard to the possibility of saving an unborn child late into pregnancy.
In removing the eighth amendment, the people did not intend that unborn children would have no rights whatsoever in law, even late in pregnancy. This amendment does not in any way lessen the pregnant woman's right to all necessary medical treatment to end her pregnancy. It means, however, that where it is possible to save both lives, doctors exercising their clinical judgment would make an attempt to save both lives. For more than 30 years in Ireland, the law required that the unborn child would be saved if possible. With that law we had one of the lowest incidence of maternal death rates in the world, therefore, there is no evidence whatsoever that having regard to saving foetal life would lead to worse outcomes for women. This amendment is designed to reflect the fact that in an emergency situation, there is not normally a desire to terminate the pregnancy with the intention of ending foetal life. The amendment simply ensures that this reality is reflected in the law.
The Government promised voters before the referendum that late-term abortions would not be permitted in the event of repeal. Identical laws in other countries have been shown to offer no protections whatsoever to unborn babies from having their lives ended in the later stages of pregnancy. This amendment simply reflects the statements the Minister made to the people during the referendum. For instance, in the Dáil on 9 March this year, he stated: "the spectre of late or full term abortions is not the reality and is offensive to our medics". He said it was important to be clear and truthful that in cases where the foetus is viable, early delivery and the full range of neonatal care are the reality. Members should not take his word for that but, rather, should talk to those working in our maternity hospitals. We should not misinform the public. If that is the case, the Minister should be willing to accept the amendment. Again, on 28 April this year, a spokesperson for the Minister for Health outlined to thejournal.iethat if viability is established and the pregnancy is ended on health grounds, it will be done through early delivery with a full medical team on hand.
A number of days before the referendum, on 22 May, the Minister, Deputy Harris, outlined that abortion will be illegal in all circumstances beyond early pregnancy. If that is the case and if he were to follow through on those statements - they are only three but there are additional statements - surely he could reflect on this particular amendment which is a humane, compassionate amendment to try to give a child an opportunity to live. That is the purpose of the amendment and I ask the Minister to reflect on it. Just because the debate is over in the Dáil does not mean that he should not be open to accepting amendments here in the Seanad. It is not too late for him to change his mind on these issues.On this amendment, the Minister seems to have changed his mind regarding the stance taken and promises made to the electorate before the referendum on 25 May. I am providing him with an opportunity in these amendments to correct the shortcomings in the Bill. I hope he will reflect on that.
I welcome the Minister to the House, even if I do not agree with the Bill. I have two very brief points. There has been a lot of talk about mental health. I am not an expert whatsoever, and I totally admit that. I recall, however, that I have read many pieces referring to women who very much regretted having had abortions. I believe that, in some instances, sadly, it has affected their mental health. I listened to the Senators opposite. Doctors, given their hippocratic oath, ethics and everything else, will save both lives where possible. That is their commitment. Every effort should be made to save both in cases of late procedures or whatever and where there is viability. If there is such a case and there is such distress as is alluded to, bearing in mind that there are, of course, difficult cases, the doctor will save the definite life rather than risk losing two. It is important that we do not go in any way against the concept of saving life. I do not believe anybody properly believes in the wilful destruction or planned elimination or extinguishment of life. I would like to hear the Minister on those points.
We are on amendment No. 15. The key phrase is "immediately necessary". I refer to where termination of the pregnancy is the necessary and only step that can be taken to avert the risk to the life or serious health of the mother in an emergency. Therefore, the bar is already very high. Unfortunately, if we were to accept the amendment, the immediate action to be taken to avert the risk to the life or health of the woman would become conditional. That is the concern here. The factors mentioned by my colleagues have been considered in the drafting of this section.
Deputy Simon HarrisI have very little to add to the position I already outlined. Many of these debates were held during the discussion on the 2013 legislation. The reality is that we are talking about the emergency provision in the legislation in respect of which, as Senator Higgins eloquently outlined, there is an immediate risk to the life or health of the woman. Of course doctors deliver babies. Of course doctors endeavour to save life - of that there is no doubt - and so do women, by the way. The measure refers to where there is an immediate risk, however. I do not believe we should put in further restrictions in this section, on the emergency provision, than we have in the Protection of Life During Pregnancy Act.
We are in a new constitutional situation where the constitutional right to life of the unborn has been removed. That means that any obligation on treating doctors to take the unborn child's life into account in making clinical decisions regarding the women's care has changed.That obligation is now lessened under the Constitution, which means, if we are sincere about protecting unborn children's lives after viability, it is all the more necessary that the law says so and that we legislate to fill the gap that exists in the Constitution.
The 2013 legislation to which the Minister refers requires that any decision made to intervene shall have "regard to the need to preserve unborn life as far as practicable", but that is not in the legislation before us. Rather, the Bill defines termination of pregnancy as a procedure that intends to end the unborn child's life. That is what we mean by a section 10 intervention. The requirement is defined as a risk to life or a serious risk to health, but given that there is no time limit post viability after which doctors must do their best to save the child, that the procedure is intended to end the life of the child, that there is no distinction between a mental and a physical health ground, and that the medical practitioner does not have to be a psychiatrist or even have any expertise in the area, how can we all not at least agree that this is a wide-open, badly defined, dangerous section? The only thing we have to rely on is the Minister's statement that doctors are good and they will always try to save life, but that is directly contradicted by the legislation, in general, and particularly by the section and the definition, namely, that the procedure intends to end life.
There has not been any teasing-out of the reality of situations that can arise, either in the Dáil, although I did not hear everything that was said during the debate and I am open to correction, or in the Seanad thus far. Is the Minister saying that where physical health risk emerges in a post-viability situation, the only action a doctor might able to take is to terminate life simpliciter, and that imposing an obligation to do his or her best for the child if it is post viable would somehow lessen the medic's decision to act? That claim was never made about the 2013 legislation's requirement on doctors to do their best to preserve unborn life. We need to get real.
Is the Minister further saying if abortion is sought on a suddenly emerging mental health ground, and if the baby is post viable, there is a duty on doctors to save the child's life in that situation, even though the legislation concerns intending to end the life of the child? I ask these questions in all sincerity. Deputy Harris is the Minister for Health, while I am a Senator with some degree of legal training but I would not overestimate my capacity and I have been away from the Bar for a long time. I ask for simple honesty about what the words in the legislation mean, and what the lacunae in the legislation amount to. If we are not willing to discuss honestly the scenarios that might arise, such as those involving mental or physical health, those which may depend on the doctor who will make the decision, or those which may depend on what the stated request is, that is, whether it is to end the life of the foetus or whether it is a normal, legitimate medical intervention, we are not serious people or, worse, we are cynical people. I ask for detail about what will happen as a result of the legislation. It is not me but the Minister who says babies' lives will be saved in the post-viability situation, but that is not stated in the Bill, which is a significant issue of credibility that needs to be addressed.
Catherine Ardagh, Ivana Bacik, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Lorraine Clifford Lee, Paudie Coffey, Martin Conway, Gerard Craughwell, Maire Devine, John Dolan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Colette Kelleher, Anthony Lawlor, Gabrielle McFadden, Gerald Nash, Catherine Noone, David Norris, Marie Louise O'Donnell, Joe O'Reilly, Ned O'Sullivan, Niall Ó Donnghaile, Aodhán Ó Ríordáin, James Reilly, Neale Richmond, Lynn Ruane, Fintan Warfield.
Amendments Nos. 4, 5, 10, 13, 18 and 23 are related. Amendment No. 5 is a physical and logical alternative to amendment No. 4. Therefore, amendments Nos. 4, 5, 10, 13, 18 and 23 may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 8, line 21, after “woman” to insert “and consulted with her, where possible”.
I will be brief as many of my colleagues have tabled similar amendments. The phrase "consulted with" places the woman's voice at the heart of the legislation and reflects the spirit of the outcome of the referendum which enshrined a woman's right to choose. I hope the Minister will take it on board. He has maintained that the legislation must be streamlined, but this is a very practical amendment. "Consult with" is consensual language. The Bill should be specific in indicating that a woman should have her say on how she would like to be treated.
Amendments Nos. 4 and 18 seek to insert the words “and consulted with her, where possible”. The voice of the person who needs an abortion is sorely lacking in the legislation. Throughout the referendum there were constant references to the need to trust women. We now have a chance to listen to them and include their voices in seeking these medical procedures. They are simple amendments which would include in the legislation the voice of women. Therefore, Sinn Féin believes they are important.
I agree with Senator Ardagh's amendment and would like to withdraw mine which also seeks to change the wording from “examined” to “consulted with”.Having looked at section 10, which states a termination may be carried out by a medical practitioner if, having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that there is an immediate risk to life, I do not see how consultation with the woman on its own would be sufficient. There has to be an examination to determine the medical situation. It is exactly the same with the question of early pregnancy. The Bill also states a termination may be carried out where a medical practitioner examines a pregnant woman and is of the reasonable opinion formed in good faith that the pregnancy concerned does not exceed 12 weeks. I do not see how the amendment I have tabled could work because simply consulting the patient would not be sufficient. There would have to be an examination. That is perfectly logical. With the permission of the House, I will withdraw the amendments.
I support amendments Nos. 4 and 18. I will also speak on amendment No. 5, which I have tabled. The key point is the voice of the woman. We had one of the great outcomes for Irish society from what was, at times, a very difficult referendum. This was the ending of a very long silencing of women on their experiences and the decisions they often had to make about which they could not speak to anybody. I ask the Minister to note there is support across the House, particularly in respect of amendment No. 4. If necessary I will withdraw amendment No. 5 to support it.
What the Minister is hearing from the House is that we want to ensure women are consulted. These are very reasonable amendments. They do not relate to an emergency or a risk to life or health. The amendments recognise these are particular circumstances. The amendments are to the sections on where there is risk to life or health but not in an emergency context. It is in a context whereby each woman is considering what are the risks and what do they mean to her. Is it a 60% risk or a 20% risk? As we heard very eloquently during the hearings of the committee on the eighth amendment, what one person might consider a risk might be experienced differently by somebody else. Consultation is key and I am sure it is the intent of the Minister to copperfasten that this consultation would take place. Unfortunately, we have had a culture of a lack of consultation with women.
Amendment No. 18 deals with circumstances in which the foetus is not likely to survive. These are situations where we would hope that consultation would be part of the process but we have seen in the past that consultation has not always been the culture in our health service.
Amendment No. 5, which I have tabled with Senator Kelleher, is slightly different. It proposes there should be examination where necessary and consultation where possible. This is to deal with concern about any examination that would take place. We do not want unnecessarily intrusive examinations. Examinations that take place should be necessary and should not be, for example, because of the legal fears that doctors might rightly have given other parts of the Bill. An examination should take place for medical necessity. No woman should be subject to unduly invasive examinations if they are not required or medically necessary. This is the spirit of amendment No. 5 but given that the weight of the House is behind amendment No. 4, I am happy enough to withdraw amendment No. 5, reserve the right to introduce it if necessary on Report Stage and give my support to amendment No. 4.
I very much understand where Senators are coming from on this and, to be truthful, it was the same space I was coming from in the original draft scheme I published. I went through the work of the Department of Health and we had not included reference to examination, for many of the reasons Senators have referred to and endeavoured to address through their amendments. These are reasons with regard to not wanting to use the language of the past and wanting to ensure it is very much about a woman's choice. However, after clinical and legal consultation and, crucially, after taking advice from the Attorney General, and we also had these debates in the Dáil, I am not in a position to accept the amendments and I plead with the Seanad to consider not pushing them to a vote at this stage but to engage with me further on the issue before Report Stage. This is legislation where every word matters and it is in an area where we know there are often challenges.There is a real onus on me as a Minister to advise the House of the viewpoint of the Attorney General and the clinical community with which I have been engaging. The process for accessing lawful termination of pregnancy services, by which a medical practitioner can ascertain whether a termination of pregnancy may lawfully be carried out, is set out in sections 9 to 12, inclusive, of this Bill. Apart from emergency situations, which are covered in section 10, the Bill clearly sets out the steps which must be undertaken by the medical practitioner in order for a woman to access 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, finally, carry out the termination of pregnancy. In order to form a reasonable opinion in good faith, the Bill is clear that a medical practitioner is required to examine the pregnant woman. Some of the amendments tabled, however, propose deleting "having examined the pregnant woman" and replacing it with a requirement to consult with the pregnant woman where possible. During the drafting of the Bill, the requirement for a medical practitioner to examine the woman was discussed, as I mentioned earlier, at length with the Office of the Attorney General and in some depth.
The Senators will be aware the Department had originally made no provision requiring the examination of a pregnant woman in the general scheme of the Bill published in March and July. The issue also arose and was discussed at some length during the passage of the Bill in the Dáil. I assure Senators that this is an area I have given an awful lot of thought to and, having thoroughly considered the matter, I am legally and clinically advised that the wording of the Bill, as drafted, addresses the necessary practical and legal requirements in a clear and consistent manner.
For example, changing the wording to refer to "consultation" with the woman could cause particular difficulty and confusion for medical practitioners in cases falling under sections 9 or 10 of the Bill. Those sections refer to situations where a woman may be so seriously ill that it may not be possible to discuss her care. I understand the amendment states "where necessary" but even that adds a degree of subjectivity into the Bill.
Not yet, but I am addressing all the amendments in this group. I am also advised that from a legal point of view it is also very important that there is consistency between all sections of the Bill in order to not cause unintended consequences in the way the Bill is interpreted. The important aspect of the requirement set out in the Bill is that medical practitioners providing the service and the women accessing it are as clear as possible as to how a medical practitioner is expected to reach the reasonable opinion formed in good faith.
It is my opinion, heavily informed by the legal advice I have received, that to remove this requirement would result in a lessening of clarity around the process, potentially causing undue confusion for both medical practitioners and women. I would also refer the House to the Hubert court case in Scotland. That was a situation where there were pre-signed batches of forms and it caused significant legal difficulty in another jurisdiction. Considering this is Committee Stage, I respectfully ask the House that we engage on these amendments and I will share as much information as possible with Members who have an interest in this. I accept fully Senator Higgins's point that many Senators have an interest. It was the same in the other House. My own view was that it would be desirable to change the wording but what I am not going to do in this Bill is take any risk in respect of legal or clinical clarity. I am not going to put in words that are definitely preferable to me, in respect of wanting to be more inclusive and consultative, but do provide potential for confusion or lack of clarity.
I also need to refer people to the Medical Council guidelines. We debate and pass legislation and set out law in this House. What happens then is that the Medical Council, which regulates doctors and not me, takes that law and interprets it in respect of putting in place its own guide to professional conduct and ethics for registered medical practitioners. The Medical Council is the body that can sanction doctors, can strike off doctors and it is the body that sets out the standards to which our clinicians are expected to adhere. I refer the House to pages 16 and 17 of those guidelines. There is an entire section on information for patients. It clearly outlines the importance of consulting and hearing the voice of the patient. I accept that has not happened enough in the Irish health service. I cannot disagree with anything Senator Higgins has said.
I must, however, appeal to the interested Senators, considering this is Committee Stage, to engage further with my officials between now and Report Stage to try to make sure we get this right and that we are satisfied from a legal and medical point of view. Nobody in this House wants to put one word into, take one word out of or change one word in this Bill that could cause any legal confusion. I have to honest with Senators. It can be seen from my actions, and the fact this was not in my original Bill, that there is a reason that I put this in and that reason was based on legal advice.
I oppose these proposed amendments. I would have thought that examination would always include a degree of consultation.We need to be clear here again that what we have in this Bill is legislation that in one section provides for abortion up to 12 weeks without a reason having to be given. We can say that that is elective abortion. It is not grounded in any medical claim. In all of the other situations, I have said I find very troubling in their X scope. One is talking about medicalising the grounds for abortion. Therefore, one is departing from the terrain of choice into the terrain of medical necessity.
If one is arguing then that abortion should be legal from the point of view of being a medical necessity, why would one relativise the importance of the doctor's examination? We have to be honest and recognise that what has happened in Britain is that medical grounds for abortion have led to abortion on demand. We have had the situation where doctors certify abortions in advance by signing forms without ever having seen the woman involved. To talk about examination where necessary, and consultation where possible, suggests that there are situations where it is not necessary for a doctor to conduct an examination even though this is to do with sections that provide and claim some medical need. As to consultation where possible, I would have thought that consultation is always possible and, ideally, within the context of a medical examination and beyond that. So the suggestion of consultation, where possible, really makes that obligation to consult too indefinite. If a doctor is contacted about a woman in another part of the country, could that doctor certify without examination because it is not possible to do so due to geographical distance, being busy or whatever it is? We are a long way from medical treatments here if that were to be envisaged. Would this amendment open the door to certification based on hearsay where a doctor has heard from somebody who purports to speak for the woman involved?
In terms of the amendment tabled by Senator Higgins, who decides whether examining is necessary? The certifying doctors would decide. The mere fact that they are involved in the certification process shows that they are satisfied to be involved in abortion and, indeed, one of them will perform it. Would there be any doubt about their decisions? They might more easily conclude that it is not necessary to examine or consult.
I am concerned in the positive sense by language that talks about how important it is that examinations would not be intrusive. Again, I respectfully ask for clarity when we talk about those things because we are talking about medical procedures here that are intended to end the life of an unborn child. I would agree that medical examinations should never be too intrusive. They should only be so intrusive as is necessary to secure the patient's welfare. What are we talking about when we talk about intrusive or invasive? We are speaking, ironically, on the 70th anniversary of the UN Declaration of Human Rights. It is beyond issue that the procedures that we are talking about here will be both intrusive and invasive on the other subject involved, namely, the unborn child. Again, I would urge the need for clarity in all of these matters.
Yes, very briefly. I am concerned that the Minister and Senator Mullen both referred to pre-signed batches of documents. That seems to me to be a very dubious practice. I hope that the Minister can reassure the House that this will be precluded by the Bill. If not, I hope that the Minister or somebody in the House will bring forward an amendment to ensure that this practice shall not happen. It is completely and utterly wrong to have pre-signed documents. How can one possibly know the situation? Pre-signing is a disgrace and should certainly not be allowed.
The Minister has already said, in terms of this group of amendments, that he wants to reflect further between here and Report Stage and that he is open to consultation and suggestions. The Minister can come back in, if he so wishes.
Under the legislation as currently envisaged, it would not be possible to pre-sign because one would need to see and be examined by the doctor. In fairness, none of the amendments seeks to take away from that. I referenced the Hubert case in another jurisdiction where that difficulty was encountered. We are all in this together and want to do this. We are protecting women by ensuring we are moving from a situation whereby women have not been able to get medical attention and advice on this important issue to one where they can and we should value that. We should value the fact that a woman will be able to see her doctor and receive a medical examination and all of the support and information she requires.
I move amendment No. 5:
In page 8, line 21, after “woman” to insert “where necessary, and consulted where possible”.
I will withdraw this amendment in support of amendment No. 4 which may be reintroduced on Report Stage. I urge the Minister to engage with amendment No. 4 which has the preponderance of support in the House. Elements of his response on the amendment addressed amendments which were proposed in the Dáil. The issue is an addition of consultation rather than a removal of examination. We should engage on that basis as we move to Report Stage.
I move amendment No. 6:
In page 8, line 23, to delete “serious”.
The amendment seeks to remove the word "serious" from the provision dealing with the risk of harm to a woman seeking a termination of pregnancy. The Minister stated in regard to the previous grouping of amendments that he does not wish to take a risk on terms that are clinically uncertain or ambiguous. There is quite significant clinical concern about the ambiguity of the word "serious". It is disappointing that it has been retained after Committee and Report Stages in the Dáil. It is to be hoped that today we can move the conversation along a little. A Bill of this historic magnitude has no room for uncertainty or ambiguity, as the Minister stated in regard to the previous grouping of amendments.
Legislation should never hinder the practice of evidence-based medicine or harm women. However, the requirement that there must be a risk of serious harm to a woman's health before the legislation permits a medical professional to help the woman is an odious and unfair restriction being imposed by legislators. Is it fair in the Ireland of 2018 to only help women if there is a level of seriousness to which a woman's health must deteriorate before a doctor can act? That is outrageous. No other healthcare sector would tolerate such a risk. It is not right to have to wait for the health of a patient to deteriorate to such an extent as to become serious before a doctor can help the patient. The restrictive adjective "serious" must be deleted. It should be sufficient for a woman's health to be in jeopardy in any form. Harm is harm.
Dr. Mark Murphy, a general practitioner and lecturer at the Royal College of Surgeons in Ireland and a leading member of Doctors for Choice, stated that the retention of the word "serious" would cause harm to women. Like the phrase "real and substantial risk" arising from the 1992 common law interpretation of the eighth amendment, these words are not reflective of clinical best practice guidelines or evidence.Indeed, Professor Louise Kenny, in the course of the abortion referendum, talked about the effect of interpreting legislation in serious cases such as that of Michelle Harte, where doctors differed and ethics committees differed and she was not given the help she needed because of that ambiguity around legislation. We do not want to create similar situations. As we know, Michelle Harte went on to lose her life and so the doctors were wrong and she was not helped. We do not want to be in this situation again.
Much like "real and substantial", what exactly is "serious" in the context of health? At what point in time does a woman's ill health suddenly meet a legislative definition of "serious" before medical staff can intervene and help the woman? Deputy Clare Daly cited these issues on Report Stage in the Dáil. She said that many of the medical practitioners made the point that risk of the development of serious harm can fluctuate and in that context mothers can slip through the net. We cannot have such a situation pertaining. Other Deputies shared such reservations with Deputies Coppinger and O'Reilly also underlining the undue broadness implicit in "serious harm."
Uncertainties over the word "serious" as a threshold for medical harm were also raised on Second Stage in the Dáil by Deputies Joan Collins, Catherine Murphy, Mitchell and Coppinger - all women interestingly enough. Equally, during the select committee debates, Deputies argued against the use of "serious" to denote what constitutes a level of harm requiring medical intervention. Even during the committee on the eighth amendment, many medical professionals criticised the use of this language, arguing that it is simply not possible to gauge risk in this way.
Today, I and many of my Seanad colleagues are echoing these sentiments. As the Minister said, good legislation is built on clarity. Any threat of any form to the health of women should be taken seriously. We should not put vague limits based on vague definitions and vague thresholds on a statutory basis. Health and ill health are already defined in medicine and in guidelines and, as Senator Ruane reminded us, the World Health Organization defines health as "[a] state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." Why have we placed a limit above ill health, stating a level of seriousness that must be reached? Nowhere in medicine is the word "serious" used as a minimum standard before doctors can act. In the same way Senators in 1983 and 1992 predicted the medical chaos which inappropriate legal language can cause when applied to women seeking healthcare, today in 2018 we are saying again that we are running the same risk by using legalistic, restrictive language which has no basis in defining medical pathways of care.
Legislation should enable doctors to provide excellent healthcare and not impose inappropriate hurdles in the way of women's healthcare. This is all the more important when we think of the shadow of criminalisation which we seem to be determined to hold onto in the context of this Bill. If we are holding onto that and then we are also putting in ambiguous medical requirements that have no clinical basis, then we are causing a potential risk to women down the line. If a woman's health as she and her healthcare professionals define it, is in question, that alone should be sufficient for her to access care. That is why we must remove the word "serious."
If the Minister does not remove the word "serious", and I really urge him to do so, I would like him to then issue non-exhaustive guidelines on what it means. I would prefer that those guidelines come from the Department of Health. I caught sight of some guidelines that were being prepared by the Institute of Obstetricians and Gynaecologists and I was very concerned when I read them because not only do we have "harm" but we also have "serious harm" and in one section it was talking about "severe maternal risk to health." We are now entering into another level and threshold, so I am very concerned about this and I would like the Minister to give this due consideration. If the Minister can reassure me about the guidelines, that will obviously have a bearing on how we proceed on this amendment.
I do not intend to speak for long. I want to ask the Minister a few questions around the use of the word "serious" in section 9 and the words "serious harm" in section 10.How is "serious harm" defined in the guidelines? Can the Minister answer that? Must the predicted harm be permanent? Must the harm have materialised or is it enough that it is predicted? Will a small risk of serious harm suffice? Where does small become larger and larger? Must the harm be caused by the pregnancy or is it enough that it has been exacerbated by the pregnancy? Are there agreed examples of conditions or circumstances that would be at the borderline of serious harm and that might, therefore, be excluded? Is this ground confined to cases where a risk to health is expected to become a risk to life if the pregnancy continues?
The guidelines of the World Health Organization state that health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity. How does that marry with seriousness? In assessing the seriousness of the harm, will a woman's social and familial circumstances, as mentioned earlier by Senator Ruane, be considered rather than merely the narrower circumstances? Will these be taken into account? Perhaps the Minister could answer some of these questions. I have heard many long sentences but I am not getting many specific answers.
I want to raise an issue that has been brought to my attention by the Rape Crisis Network Ireland. I imagine the Minister will agree with me that those involved are really at the coalface in dealing with the situation day after day, so they must be listened to with particular attention. They are concerned about access to care for survivors of rape. They make the serious point that some of the people seeking abortion after rape under the narrow ground of section 9 will be survivors of rape who, for one reason or another, did not meet the 12 weeks situation. The network representatives maintain the term "serious" is not defined and that it is not clear what kind of suffering would be sufficient to meet the statutory threshold. Certifying medical practitioners have no legal obligation to consider the woman's assessment of relevant risks to her life or health, which is a critical matter for rape survivors. It is possible that this ground will only be applied where doctors foresee a risk to life. Since this has come from Rape Crisis Network Ireland, it is something we have to take seriously. We must not inhibit people who have been raped from getting access to these services.
I wish to speak to amendment No. 6. We have suggested deleting the word "serious". The Minister will know that witness after witness at the Oireachtas committee told us that we cannot grade risk. Professor Sabaratnam Arulkumaran, Dr. Peter Boylan and Dr. Rhona Mahony, among many others, stated as much on the record of the committee. My colleagues, including Deputy Louise O'Reilly and Jonathan O'Brien, were clear on this point. We asked the question not only once but several times. We are disappointed that the word "serious" is included. We heard at length the challenges of fixing risk in legislation. We accepted that the assessment of risk is best considered in a clinical setting and not defined in legislation as either "serious" or "severe". The provision should be amended to better support the clinical judgments of medical practitioners.
When medical professionals see or hear the words "serious" in the context of the legal parameters in which they can carry out an abortion, they will immediately question what it means regarding the person in front of them. A doctor wondering how serious something is could mean he or she cannot concentrate on the woman's health as he or she must also worry about the potential legal sanction.
This is a crucial measure to protect women's health. As we heard throughout the campaign, we need to trust women and we also need to allow doctors to be able to do their job rather than tie their hands when it comes to ensuring the safety for our women. I appeal to the Minister to give serious consideration to the amendment.
I am opposed to the amendment. It would have the clear effect of extensifying - if that is a correct word; I am referring to extending or widening - the health grounds for abortion. This is contrary to medical best practice and to unequivocal promises given to the people before the referendum. The people were promised that the Bill would require a threshold or test of serious harm to health and, therefore, the measures would not lead to abortion on demand.People were assured that the health grounds were accompanied by sufficient safeguards and that they were contrasted with their British counterparts. This amendment would have the effect of watering that down to a standard no better than the British equivalent which has resulted in abortion on demand, up to viability. The difficulty with changing it, as Senator Kelleher wishes, is that the threshold being required here is not a serious risk of serious harm but a risk of serious harm and this is occurring in the second trimester, by and large, because abortion is not required for any reason, although I suppose it could conceivably be, earlier but it could take place prior to viability.
I recall prior to the referendum Dr. Mary Holohan, a very eminent obstetrician from the Rotunda Hospital, making it clear that doctors had the scope they needed under the eighth amendment to treat women effectively. Prior to the repeal appropriate law was followed within the constitutional requirements of the eighth amendment, the best standard of healthcare was available to women in pregnancy, including in situations where it would not be possible to save the life of their unborn child as a result. That has changed now. As my colleague said, nowhere in medicine is seriousness used as the required test. That is because nowhere else in medicine is the consequence of the intervention the death of another human being. That is why the assessment of risk cannot be made subjective. There has to be an attempt to assess harm.
The distinction between mental and physical health situations is very relevant to this amendment because Senator Kelleher asked the Minister whether there would be guidelines, and, if I understand her correctly, about how the risk of serious harm to health would be assessed. If there are to be guidelines may I draw the Minister's attention to the need to consider the real situations that could occur. If there is a real scenario containing risk to health that refers to physical health, I do not think that people will disagree that all necessary medical treatment must be in place. That was Dr. Holohan's point. That was the status quopre-repeal. If, however, we are talking about the possible sudden emergence of a risk of serious harm to mental health, then it is absolutely vital there would be guidelines which take account of what the science is telling us about mental health and abortion, which is the point I made earlier and do not need to rehearse at length again. If anything, abortion, according to the literature, is associated, although this is contended, with an increased risk of adverse mental health sequelae, particularly in women who are vulnerable. There is contention in the literature but the literature is clear that abortion is not associated with an improvement in mental health. That is the situation as best I can put it as a layman. If that is the case, it would be vital if there is to be assessment of what constitutes risk of serious harm that it would be brought into the guidelines as well so that medicine is truly evidence based in this regard.
I submit to Senator Kelleher that the vagueness of the section is the problem.If this was a section that actually looked at the reality of the different kinds of medical issues that can emerge, be they mental or physical, the proposed amendment would get much closer to the point. However, in a context of vagueness it would actually expose us to a dangerous approximation of the current practice in Britain.
I want to speak briefly. This is one issue I feel very strongly about. At the committee we spoke about this at length. It is hard for me to accept a situation where we talk about the committee recommendations and not diverging from them but when it comes to this we massively diverge from them. It makes all our previous arguments about the committee recommendations seem a little tokenistic. We stick to them on one hand and then completely ignore them on the other.
We had countless conversations about doctors not being able to determine when risk begins. Everybody's situation can be so different. A patient can go from not being at risk to being seriously at risk in the space of seconds. It is not really good enough to say that we are not going to push it, today or on Report Stage. The committee was very clear on serious risk. There must be some sort of justification from the Minister for not removing "serious". I have read back and so have the other Senators. We watched the contributions in the Dáil. We did not come here without knowing what happened in there. I have never been sold on the reasons for not removing "serious", although I was in the committee when we were listening to experts in the area. I just wanted to make that brief contribution.
I welcome the Minister, and I welcome the opportunity to speak on this group of amendments. For the Labour Party Senators, I have certainly signed up to amendment No. 6. I endorse what Senator Kelleher said about a non-exhaustive list of guidelines to define this question. I agree with Senator Gavan about the danger of inserting a statutory definition of "harm" or "serious harm". The better approach from the point of view of women's health is to refer simply to "harm".
There are other ways of dealing with this. Along with a group of other Senators I have also signed up to amendments Nos. 8, 9, 16, 17 and 39, which would change the word "avert" in section 9 and the other sections to "avert or mitigate". That deals with some of our concerns to some extent. Those concerns are essentially about the threshold of risk being too high for women's health and indeed for the medical personnel who are treating them. I know the Minister takes the point on board, and I will say what I said on Second Stage. My priority and that of my Labour Party colleagues is to see women having access to abortion services from 1 January. We are very anxious to get this Bill through and that it is the best it can be for women and for all of us.
I am very glad that the Minister indicated on Second Stage that he will be bringing forward legislation in the new year to provide for safe access zones or exclusion zones, something Deputy Alan Kelly and others in the Dáil have looked for. I am very happy to hear that is happening. That legislation will also give us an opportunity to deal with some of the issues we may not be able to deal with here in the Seanad. I know we all feel very strongly that in some cases the threshold of access to treatment may be too high. That is really the purpose behind amendments Nos. 6, 14 and 37; to ensure that the provisions are workable and that women will have access. I certainly will not be pushing amendment No. 6 at this Stage, though I am a co-signatory with others. What they do is up to them. I am keen to hear what the Minister has to say on that issue and to deal with it when we come to the fifth group of amendments. Those amendments deal with the issue of assessment of risk. They seek to modify the language to make it somewhat less onerous and a less significant threshold for women and for doctors.
I thank Senators for their contributions on this important issue. I know it is one about which people feel very strongly. I approach this Bill from a simple enough perspective, namely, I feel a duty. People do not agree with me, and I have already heard people over there who do not agree with me on this. However, I am doing what I said I was going to do during the referendum campaign.There are many people, including some referenced in this House today, who campaigned for and referenced that draft legislation. They said that if one voted "Yes", this is what they would do. I accept Senator Ruane's point that it represents a deviation from the report of the Oireachtas committee but the draft legislation published in March, which people had sight of and on which I and Members of this House were questioned up and down the country, contains what I committed to doing if the people voted "Yes". Many people on the "No" side said we could not trust politicians and that we would say we would do something as regards the threshold if people voted "Yes" but would come back into the Oireachtas and do our own thing. I believe words matter and commitments matter.
I campaigned with many doctors and politicians from across the spectrum in what was a very collaborative effort, and I believe that what we promised was important. That is how I approached this legislation, in the Dáil and in this House. That is not to say I should not be scrutinised on how that works or that we should not tease out whether it actually does work and I welcome the opportunity to do that today.
Some things are statements of the obvious and, as a man, I do not feel comfortable telling female Members of the Oireachtas but, medically, I am advised that pregnancy is a risk to health. It is clinically more risky to a person's health than not to be pregnant. There is a risk attached to any individual's health from being pregnant. It is a medical fact advised to me by the chief medical officer, as well as many obstetricians and gynaecologists. We are all aware of the evidence that an early termination of pregnancy, if done safely and according to best medical practice, would always pose less of a risk to a woman's health than continuing the pregnancy to delivery. If done correctly, legally, safely and in the early stages of pregnancy, it is less of a risk to a woman's health to have an early termination than to carry a pregnancy to full term. We considered this point at some length during the drafting of the legislation and the reason the qualification "serious" was included in section 10 was to clarify, from a legal perspective, that the nature of the risk to a woman's health goes beyond that normal risk of harm to a woman's health which pregnancy would pose to anybody, including a healthy woman. We are, therefore, not talking about the risks associated with being pregnant, though many people who campaigned on the "No" side suggested we were. We always talked about a higher bar than the regular risk to somebody's health. We talked about a serious risk and that is what we are endeavouring to deal with in the legislation. What we are not doing in the legislation is defining what serious harm is, something that was in the committee's report. To do this would be, quite frankly, appalling because then we would be stepping into the shoes of doctors and making medical judgments which very few of us, if any of us, are qualified to make. We are telling the doctor that it is up to them to decide.
To answer Senator Marie-Louise O'Donnell's question, there is no exhaustive list because there cannot and should not be one. We are providing further safeguards for the doctor by a reference to his or her reasonable opinion, formed in good faith, of whether serious harm would be caused. The definition of serious harm is different from woman to woman and from pregnancy to pregnancy and it will be the subject of a clinical judgment. Two doctors will have arrived at a viewpoint, in consultation with the woman, that there could be serious harm to the woman's health. At this stage, a woman wants to be pregnant but something has gone wrong. Clinical guidance is being drawn up and that is the place for this as I do not feel suitably qualified, nor is it my role as Minister and legislator, to tell doctors what any guidance should include. It is my role to clarify what we mean to the Irish people. We are not talking about normal harm and normal risk. We mean a serious risk but we allow our doctors to decide what that is.
In answer to another of Senator O'Donnell's questions, this does not involve presuming there is a risk to life. We have broadened the grounds so that it includes a risk of serious harm to health or a risk to life. It could include a situation where a woman has serious diabetes and is at risk of losing her eyesight and going blind.Under the Protection of Life During Pregnancy Act, nothing could be done to help that woman because she was not dying. She will not die as a result of going blind but it is a serious risk to her health. That is what we are trying to get to here. We are trying to debunk some of the offensive - I have to use language correctly - suggestions or arguments put forward during the campaign to the effect that this was about minor health issues. That is not what it is about. Women do not choose to have an abortion for a minor health issue. This is about a situation where something has gone wrong in regard to a woman's health. The statutory threshold in this law is that two doctors share a reasonable opinion formed in good faith. Guidelines can, should and will play a role but it is for the doctor to determine if the risk is serious and not a matter for the law. The word "serious" is required because risk alone is too low a bar. That is what we are trying to get at here.
Senator O'Donnell asked if it is enough that it is predicted risk. The answer is "Yes" because it is a medical opinion that there is a serious risk. Does that risk need to be permanent? No. Does it need to be a risk to one's life? No. I am trying to answer as many of the Senator's questions as possible. We are not defining that risk to health. It could also be a risk to life.
Senator Norris asked about the situation regarding rape victims. It is the truth that the outer limit for accessing termination without specific indication is 12 weeks. We know the overwhelming majority of women, even today when they have to travel, access termination much earlier than that. That is desirable from the woman's perspective as well.
As these services become embedded as a normal part of the Irish public health service, it will be important that there is adequate information available to women at an early stage, including through sexual assault treatment units and the like to ensure women get access to the full spectrum of information at the earliest possible stage. However, in light of the important issues the Senator raised regarding the Rape Crisis Network Ireland, I will ask that Dr. Boylan and others meet representatives of the network and make sure we take on board its viewpoint. I think that would be very helpful.
Senator Bacik raised an important point and one on which I am happy to put on record my position. It is my intention to bring forward health legislation in 2019 to legislate for safe access zones. The Government made a decision that we should do that so I have a Government decision to do it. I also have a Government decision that it would be health legislation, which is important. I have an obligation as Minister for Health to ensure the safety of women and doctors accessing and working in our health service, so I will bring that legislation forward in 2019.
It is a statement of the obvious to say that in a post eighth amendment Ireland, the power has been given to legislators to amend, bring forward and review legislation as they see fit. I respectfully suggest, as did the Senator, that we need to be careful that we are not passing this law in the belief that the matter has been settled for a generation. This is something that will require us, as legislators, to step up to our constitutional obligation to regulate these services and ensure they work and satisfy what people voted for. The Houses of the Oireachtas are now empowered to bring forward changes and legislation as they see fit. Unlike the UK, which is referenced regularly and which passed legislation that was left sitting on a shelf for many years, we built reviews and annual reports into our legislation to allow us to monitor its operation to ensure there are no unintended consequences. I am certain there is no such thing as perfect legislation. This Bill is formed on the basis of what I promised people we would do and I take that responsibility very seriously.
This was never about the normal risk to health. It was always about serious risk. That is the balance we are trying to achieve. I accept Senator Kelleher's concerns are well-founded but we have not defined "serious" in the legislation because we want to allow the clinical guidelines to do that and give doctors maximum discretion in making their clinical decisions. I would be more than happy to make my clinical experts available to Senator Kelleher or other Senators to engage on this issue before Report Stage.
I am listening but I am not completely sold on what the Minister said. In the previous few contributions we talked about women being silenced. With all due respect to my colleagues on all sides of the House, the constant mention of 1 January feels like another silencing of women. That point is not aimed at the Minister but at my colleagues in the House.When it comes to serious risk and other sections of this Bill, such as on three-day waiting periods, some women will be failed by the legislation irrespective of whether it is in effect on 1 January next year or 20 October next year. It is more important to me that we get it right than have ourselves held to the idea that we cannot do our jobs, legislate or table and push amendments. This idea is unfair to us.
At the end of the day, the people I represent do not feel represented by this legislation in many parts. They do not feel the heads of the Bill published were what they voted for. They would have voted for repeal regardless of whether the heads were published. Sometimes using the heads of a Bill is a bit irrelevant. The hundreds of thousands of people who voted did not all vote for the heads of the Bill. Most of them did not read them. Not a single question about the heads was raised with me on the doorsteps over months of canvassing. Therefore, I do not buy the view that the heads of the Bill have to comprise something sacred under which we work rather than part of positive legislation that mitigates all the access and harm issues. I want to go forward over the next few days not feeling I am under threat of being silenced as a Senator. This threat comes from outside also.
Everyone is feeling a great need to pass the legislation without delay but the only thing that will delay it will be a Government effort to cancel in the Dáil amendments we make in the Seanad. I will not be taking responsibility at any stage for delaying. If the Government tries to undo our amendments in the Dáil, it will be its decision to delay the Bill further and not that of Senators in this House. My comments are not aimed directly at anyone. I have been hearing many different conversation points since I came into the House this afternoon. I want to be able to move forward with the legislation knowing I am here to do my job and represent the people who contact me, who have major concerns about the legislation as it stands.
-----in that we need to try to approach this with integrity having regard to the positions we hold on this issue. Anything that suggests we would be letting down the country by teasing things through properly would be very regrettable.
I want to pick up on a few points made by the Minister. He referred to the importance of information. I agree with him. This is a matter I will be returning to on a later amendment. I hope he will agree with me on the importance of information. There are at least two places where the legislation provides for both the very scant recording of information and the very scant delivery of information to those who deserve it. We will come back to that. The Minister mentioned a couple of times in his remarks that this, that and the other was said by the No side during the referendum campaign. I ask for clarity from all of us. We need chapter and verse. The Minister mentioned his discomfort over being a man and all that.
We all feel challenged in that area talking about these issues. We have to leave all that behind and try to legislate for the common good in the best interests of men, women, children and, I would wish, unborn children. What gender we are now or in the future is irrelevant in doing this terrible duty that is upon us.
The Minister referred to claims that were made about diabetes, for example. He is bringing this issue to the ground of physical health. On that point alone, a very eminent specialist in the area contradicted what was being claimed in regard to diabetes, blindness and the inability to give appropriate treatment under the then existing law. That is just an example of how political claims can be made, but this is why we need to get into chapter and verse. The Minister and I are politicians and it is true that neither of us is a medical practitioner, but there is a factual substratum to what we are talking about that is critical to the decisions we make as legislators. Pretending we should not be having a discussion or avoiding discussions about the distinctions between the types of medical situations that can arise on the basis that we are not doctors is disingenuous by way of argumentation. We can look only at what law makes sense in light of what factual circumstances arise, and we cannot shy away from talking about those circumstances. It is for that reason that I press on the Minister again the inappropriateness of the lack of clarification regarding what we mean by health.Healthcare situations can arise that necessitate a medical intervention in which the life of the child may be lost, while other situations might arise where a doctor may make a subjective judgment of harm to health that is not appropriate by any objective assessment of good healthcare. As I said, the non-exploration of distinctions in cases where there are necessary and appropriate treatments for mental and physical health reasons leaves the Bill dangerously, inappropriately worded.
I return to what I asked the Minister previously. Will those guidelines which update medical practitioners on the latest and best scientific and research information on abortion and mental health treatment be made available? Will he give a guarantee that there will not be a politicisation of medicine but rather an objective and neutral presentation of the facts? That is a critically important issue.
I hear what the Minister is saying but we are so far not convinced. He said that there is no specified definition for "serious", which is true, but the advice from everyone we heard at the Oireachtas committee was clear. Our view is simple: the Bill should be amended to better support medical practitioners' clinical judgment.
I have sympathy for what Senator Ruane said. It is bizarre that having waited for 35 years, women will be asked to wait another three years before the system is absolutely as it should be. This is an opportunity to do the right thing. While I will withdraw the amendment on behalf of my party, Sinn Féin, we will take some convincing not to table it again on Report Stage. The inclusion of the word "serious" instinctively feels like the wrong thing to do, and surely we should all agree on what is the right thing to do based on evidence, of which we have had a great deal in this regard.
The Minister talked about serious harm, and that raises a simple but profound question. Will the pregnant woman's subjective assessment of the harm coming to her be taken into account and how much weight will it carry? It is important because it concerns the balance between being told and being listened to. Will the Minister respond to that?
I agree with Senators Gavan and Marie-Louise O'Donnell. Much more needs to be answered.
Why do we need to put the word "serious" before "harm"? I find it puzzling and difficult to understand, and I have not heard anything to convince me otherwise. I understand the Minister is not for turning on it and, therefore, it is good that it will not be closely defined in the legislation if it must remain there because it is a ticking time bomb and it will be only a matter of time before it explodes and harms women.
If we are to rely on guidelines, they must be written in a progressive and enabling fashion, but I have seen some guidelines which worried me. One section, for example, relates to assessing the severity of risk to maternal health, which means that we have moved from "harm" to "serious harm" and to "severity" and "severe". The guidelines I saw recommended that each patient will need detailed individual assessment of risk and, in assessing the severity of risk to maternal health, practitioners may find it useful to refer to publications such as the annual report on severe maternal morbidity in Ireland, produced by the National Perinatal Epidemiology Centre, or international publications such as the Centre for Disease Control and Prevention's, Severe Maternal Morbidity in the United States. These publications provide context for discussions about severe risk to maternal health, but there is no mention of a woman and her self-assessment therein, which is most concerning.I want to refer to an article in which Professor Louise Kenny was quoted. While the article referred to a different regime, the questions it raised are the same. Professor Kenny, who had to make the call “was involved in the care of the late Michelle Harte, who had to travel to Britain for an abortion while terminally ill with cancer.” In 2010, after Michelle Harte became unintentionally pregnant while suffering from a malignant melanoma, doctors at Cork University Hospital advised her to terminate her pregnancy. Professor Louise Kenny was quoted in the article saying that the treatment of cancer had “advanced considerably in the last decade” with many of the newer options involving drugs that target the immune system rather than the traditional chemotoxic agents. She was further quoted as saying:
At the current time, many of these promising treatments are only available by participating in large randomised controlled trials. For obvious reasons, a woman who is pregnant or who becomes pregnant cannot participate in clinical trials.
Professor Kenny further said that in the case of Ms Harte, who was in the first trimester of her pregnancy when she presented, a termination could have been performed but she [the doctor] was “hamstrung” by an absence of clear guidelines and confusion and uncertainty about the legal interpretation of the risk to her patient’s life. The hospital’s ethics committee concluded there was no immediate risk to Ms Harte’s life and advised against performing a termination. Ms Harte died in November 2011 shortly after receiving substantial compensation from the State.
Much good that was to her. I am really concerned we are walking into the same trap by having the word "serious" in the legislation and by guidelines not being sufficiently enabling. I am concerned that doctors will be looking over their shoulders with the threat of 14 years’ imprisonment hanging over their every move and decision.
Will the Minister consider these amendments? There is a good chance that we will return to this on Report Stage unless we are given considerable reassurance on the matter.
The long and the short of this is the removal of the word "serious" would create a broadening of the grounds for termination in Ireland. I am not in a position to do that. I do not believe I am mandated to do that.
On Senator Gavan’s point, I am certainly not going to ask anyone to wait three years. I am suggesting we pass the legislation in order that women can access termination in our country. However, as I said in response to Senator Bacik, this is an issue open to anybody to bring forward a Bill at any time. Nobody needs to wait for a statutory three-year review. The purpose of the statutory three-year review is good because it is not actually about reviewing the legislation but the operation of the legislation. It would involve bringing in an external person, possibly from abroad, to look at how it is working, to talk to GPs and obstetricians and to see, overall, if it is achieving what we wanted in terms of access. If I did I apologise but I do not want to conflate the two issues.
I am not sure if Senator Ruane was referring to me, somebody else or other people. Senators, just like Deputies did, can bring forward as many amendments as they want. That is actually their responsibility and duty. As a legislator, I believe we have to balance that responsibly with the idea of making sure we can provide access. I believe we should be providing access as quickly as possible because women are waiting for these services today. There are women who cannot afford or are not able to travel. They will be able to access free, safe and legal termination in this country on a broad range of grounds from the new year when we are finished with this legislation. I fully accept we have to do our jobs, however.
Senator Ruane also referred to the Government. Not wishing to be pedantic but the Government is made up of Fine Gael and Independents. Independents, by their nature, have free votes and the Government does not have a whip on this issue. I come to the House today, guaranteed zero votes regarding this legislation. It should not be viewed through the prism of government versus opposition. There will be Members of my party who will vote against me and Members of Senator Ruane’s grouping who might vote with me. It is not a Government position versus anyone else’s.
There are draft guidelines in place which I understand will be circulated in the coming days.It is entirely appropriate that draft clinical guidelines are written by doctors and not by me. I do not think anyone would want me writing the draft clinical guidelines. I need to say to Senator Kelleher that they are evolving all the time. I was at a meeting of stakeholders this morning, including a number of medics who will be providing this service, and they are inputting and sending back their views and ideas. The guidelines are written by doctors for doctors and I think there is also something iterative in that process. Many of the concerns that people raise, from a clinical point of view, are best dealt with through their clinical guidelines, where they obviously have a role to play.
To respond to Senator Marie-Louise O'Donnell, of course the woman has a subjective role in all of this because different women will make different decisions. The Senator is looking at me in a confused or puzzled way, or an unconvinced way.
There could be two women with exactly the same medical condition that risks their health and each of those women could make different decisions. One could decide to proceed with that risk and the other could decide, for her own personal and family reasons, to terminate that pregnancy. I very much think the referendum was about choice, so yes, of course the subjective view of the woman matters, but the reasonable medical opinion of two doctors is also required. It is collaborative in that regard.
I am not in a position to accept this amendment. I believe not defining the word "serious" allows our doctors to make those individual clinical decisions. I believe they are provided with protection by the fact that they are operating as one of two clinicians and they are operating on their reasonable opinion, formed in good faith. Those words matter in that legislation. I am happy to engage further and I have no doubt we will be retuning to this on Report Stage.
That is fine, I will be very brief. I think my colleague has said that we are not simply talking about symbolic things here and sending a signal and the heads of the Bill and what we promised the people. We are talking about very real situations for women and their health and that is where we are coming from. I would point out again that my colleague, Senator Ruane, ensured we would have an extra day so that we still have time to move forward in a timely way but that we are able to debate and progress these issues and make changes if they are needed and send them back to the Dáil.
I accept the decision of Senator Ruane to withdraw the amendment and to perhaps return to it on Report Stage. I note that, in respect of the guidelines, there are key concerns, as was said, as to issue of the subjective opinion. We are almost back to that point of consultation and the view of the woman. There have been situations in the past, no more than in symphysiotomy and other situations, whereby what was determined by doctors to be serious was not. For example, does the definition relate to the health of the woman and her ability to live a healthy and full life, or that she is able to perform reproductive functions in the future? We have had a very narrow interpretation of what is deemed serious in the past. That is a concern.
I would indicate to the Minister that I think the guidelines will be key. They ensure a clear responsibility of engagement with the woman or pregnant person in question. That will be key.
I also note that, as the Minister said, health legislation may be coming through. We have seen slippages in guidelines before, such as in bereavement guidelines where there were slippages, including in language. If there is a chilling effect and we do not have satisfactory guidelines, while we absolutely respect the roles of clinicians we, as a Legislature, will be coming back and we will not be waiting three years. The Minister can expect it sooner if that is the case.
It is not the case that pregnancy is a risk to health. Pregnancy has risks associated with it and it is important to be clear. There is a slight and important difference between those two things.
I move amendment No. 7:
In page 8, line 25, to delete “appropriate” and substitute “necessary”.
Amendment No. 38 is consequential on amendment No. 7. The current section 9 relates to the risk to life or health of the mother and states, as one of the necessary factors for a termination under this section, that it be "appropriate" to carry out the termination of pregnancy in order to avert the risk.The use of the word "appropriate" seems to be inaccurate or incorrect. For that reason, this amendment clarifies that the appropriate word should be "necessary". In other words, it should be necessary to carry out a termination to avert the risk. I would make a comparison with other cases where there is a risk to life. Would we say that the use of a defibrillator to assist someone who has suffered cardiac arrest is appropriate or necessary? When an oncologist is discussing the option of chemotherapy with a patient, does he or she describe the treatment as appropriate or necessary? Surely we would describe it as being necessary in each case to avert the risk to life rather than being simply appropriate in each of these cases. The use of the term "appropriate" to describe such a drastic and invasive treatment seems almost a contradiction in terms.
I am aware that the Minister voted down a similar amendment introduced by Deputy Donnelly of Fianna Fáil on Committee Stage in the Dáil. In fact, I recall what seemed to be a bizarre contribution when Deputy Donnelly said that he was putting forward the amendment under protest at the behest of his party almost as if he had a gun to his head. The Minister rejected his amendment on the grounds of legal advice and because he feared it would have a chilling effect on medical practice. The terms "legal advice" and "chilling effect" should not have become but, sadly, have become stock phrases used by Government to dismiss any and all points or amendments without having to give proper details on the reason.
The Minister also said that he believed the word "necessary" to be too prescriptive based on his interactions with doctors. Maybe he will give a similar response here today. I would ask him to expand on this. Whom did he consult on this issue? What doctors or doctors' representative groups were asked whether this phraseology was too restrictive? Who told the Minister that an alternative wording - the use of the more normal word "necessary" - would have a chilling effect? It is important that the House has clarity on all of that before we vote on the amendment I am proposing because none of us believes that good medicine should ever be subject to anything that could be described as a chilling effect. Chilling effects are desirable when it comes to preventing bad things happening. Bad things include inappropriate interventions without proper reasonable grounds, particularly where such bad things have the effect of taking away innocent life.
The Minister also said that to use wording other than that used in the Bill could have implications for obstetric practice-----
I do not wish to interrupt Senator Mullen but, on a point of order, before the Minister leaves, could I ask whether the substituting Minister has the authority to accept amendments in the absence of the Minister? I apologise for interrupting Senator Mullen.
In light of the questions I am posing, I hope that the substituting Minister, the Minister of State, Deputy Catherine Byrne, has the necessary background information on the very specific questions I am asking about the interactions between the Minister and various doctors and doctors' representative groups. I have no doubt she does. In the Dáil, the Minister said that to use wording other than that currently used in the Bill could have implications for obstetric practice and could have a chilling effect - that phrase again - on the provision of the service. He asked how doctors would be satisfied that something was 100% necessary as opposed to trusting their clinical judgement and the clinical guidelines.That was an interesting statement by the Minister and it prompted me to look at the existing Medical Council guidelines on the termination of pregnancy in the case of a risk to the life of the mother. The Medical Council's Guidelines to Professional Conduct and Ethics for Registered Medical Practitioners 2016, at paragraph 48.2, state, "In these exceptional circumstances, it may be necessary to terminate the pregnancy to protect the life of the mother while making every effort to preserve the life of the baby." I repeat, not appropriate but "necessary". The existing Medical Council guidelines contain the exact form of words which was rejected by the Minister, Deputy Harris, in the Dáil and which is contained in amendment No. 7 here today. The relevant text of the Medical Council guidelines was not changed between the 2009 edition and the revised and amended 2016 edition. The former was revised by the Medical Council in light of the report into the death of Ms Savita Halappanavar and the introduction of the Protection of Life During Pregnancy Act 2013.
If the Minister, Deputy Harris, intends to reject this amendment today on the grounds that the wording is too restrictive and has a chilling effect, will he please clarify, first, whether he can refer to a specific situation where the current Medical Council guidelines revised after the Ms Savita Halappanavar tragedy and the 2013 Act were found to be too restrictive or to have a chilling effect? Second, will he, or she, in the case of the Minister of State, assuming the Minister does not come back, clarify whether it is current medical practice that this use of the word "necessary" in the Medical Council guidelines is interpreted so that “necessary” means "absolutely 100% necessary", as the Minister stated in the Dáil on Committee Stage. Does the use of the word "necessary" in the Medical Council guidelines mean that doctors under those guidelines cannot exercise their clinical judgment, as the Minister's words suggested? If so, which doctors or doctors' representative body have told the Minister this because this would certainly be news to a great many obstetricians currently practising? If it is alleged that the use of the word "necessary" in the Medical Council guidelines is having some kind of negative effect on obstetric practice, may we have an example of a case, since the guidelines were revised in 2016, where a termination to save the life of a woman was refused because it was not necessary to save her life and where this judgment turned out to be incorrect and lives were lost as a result? Will the Minister explain, if this phraseology is too restrictive and has a chilling effect, as stated on Committee Stage in the Dáil, why the Government did not seek an amendment to Medical Council guidelines when they were last revised in 2016? I would ask for clarity on all of these issues before we vote on this amendment.
I support both amendments. I welcome the Minister of State, Deputy Catherine Byrne, to the House in place of the Minister, Deputy Harris. Perhaps she will be more forthcoming in accepting amendments. The Minister gave sympathetic consideration to accepting some amendments, but only some.
These amendments coupled together, which have been outlined in detail, refer to section 9 which deals with risk to life or health, and section 16 which deals with the review of decisions made by the committee. These are simple amendments, replacing the word "appropriate" where it states "it is appropriate to carry out" a termination. That would somehow infer that it is in some way suitable to carry out a termination, or that it may be fitting, or that it could be relevant, or that it could be convenient.These are not prescriptive terms. The terminology of "appropriate" is quite vague. The word "necessary" is not vague. It is prescriptive. It represents a vital action, something that is imperative, that must or needs to be done. There is a reason behind it. Something can be appropriate without having a rationale behind it. If we are defining this in legislation, then it should be prescriptive. If we are dealing with the issue here, as has been outlined, around the ending of life for an unborn, then it must be black and white in this area. That is why I support the amendment and my name is attached to it.
I did not follow proceedings in the other House but I wish to elaborate on what my colleague, Senator Mullen, said on the legal advice which was given to the Minister on this and other issues. I presume that the legal advice was from the Attorney General. I would like to know who the legal advice was from? Can the legal advice be made available and published? If not, why not?
I bow to Senator Colm Burke's legal expertise. In the case where advice is given to the Government and it is not published, we are effectively left to make legislation here in the dark. We are assuming that the legislative advice given to the Government is sacrosanct. Why can it not be elaborated upon?
One then goes into the area of consultation. Consultation with whom? Is it consultation with those who support the pro-choice opinion, those who support the pro-life opinion or with those who may not have any particular view? Is this a two-way street? Is the Minister consulting with those who advocate his own position or is he consulting more widely? From what I have read and heard from the Minister, Deputy Harris, the consultation seems to be very narrow and one which garners support for his own opinion. That surely does not represent a wide-scale objective consultative analysis. Should a Minister for Health and his Department not be consulting more widely than just with those who subscribe to his own view for political purposes? As Deputy Harris is not here, I appreciate that Minister of State, Deputy Byrne, has just come to the Chamber. These are questions which are being raised and deserve answers. The legal opinion is not available. It should be available and certainly on this issue. There are other issues where sensitive legal information may not be made available for one reason or another. This information relates to the life of an unborn child and it is our wish to protect that right. That is why we are tabling some of these amendments.
I thank the Leas-Chathaoirleach. I do not necessarily agree with my colleagues. I would nonetheless like to repeat a question I already asked about the words "serious", "serious harm" or "appropriate". Language is extremely important in this context.Nobody has told me how "appropriate" will be defined. Will it merely be a synonym for the exercise of a doctor's clinical judgment? What factors will the doctor take into account in assessing the appropriateness of a termination? I asked before, and did not receive an answer, if the pregnant person's subjective assessment of her own risk will be taken into account. How much weight will it carry in the assessment of appropriateness? It seems as though the appropriateness is on everyone's side except the woman's. I am worried about that. There is a similar problem with the language of "serious". I am arguing this from a completely different standpoint to that of my colleagues, whose argument is equally as important, but I want to know how it works for the woman. Whatever the clinician thinks is appropriate, the woman might not think is appropriate at all.
The Minister will not accept this amendment. The word used in section 9 has been considered from a medical perspective and with a view to ensuring flexibility for medical practitioners practising in the field.
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 the risk to the woman's health. Use of the word "appropriate" was deliberate in this context, indicating that a termination of pregnancy may be lawfully carried out where a doctor has determined that it is a treatment option for the woman in order to address the risk to her health.
To use wording other than that currently used in the Bill, particularly more restrictive wording, could have implications for obstetrics practice and could have a chilling effect on the provision of the service or for medical practice in the area more generally.
I will read from the Minister's notes which are before me. He took advice from the Attorney General and obstetricians. Medical Council guidelines will be revised when the law is changed. "Appropriate" will not be defined. Doctors will agree with women as to what "appropriate" means.
As the late Jim Henson might have said, there is nothing like a comprehensive answer to a question and - it is not the fault of the Minister of State - that was nothing like a comprehensive answer to a question. She did clarify that the legal advice to which the Minister referred in the Dáil was that of the Attorney General. It is not the Minister of State's fault, she is only going by the Minister's notes, but we have not been given clarity on the matter I requested, namely, which obstetricians and which doctors were saying this.
I refer to all my questions about the existing Medical Council guidelines and whether the Minister could refer to a specific situation where the existing Medical Council guidelines which use the word "necessary" were found to be too restrictive or to have a chilling effect. This has not been answered. There was no answer as to whether it was current medical practice that the use of the word "necessary" must mean absolutely 100% necessary, as the Minister told the Dáil. If that is the case, there was no answer as to what negative effects this has had on obstetric practice. There has been no answer to whether the Minister can give an example of a case since the guidelines were revised in 2016 where a termination to save the life of a woman was refused because it was not necessary and where this judgment turned out to be incorrect and a life was lost as a result.That important question has not been answered. While I note what the Minister has said about seeking an amendment to the Medical Council guidelines now, I do not understand why, given that we have not been given any evidence that the word is problematic. We have the Minister's averment that the Attorney General said so and we have the vague reference to obstetricians. Perhaps the Minister, now that he is back, might give me the answers that I am asking for respectfully.
I should remind Senator Mullen that we are dealing with a collective Government situation whereby Ministers represent each other and vice versa. I know where you are coming from Senator Mullen, so if the Minister wishes-----
Now and again I have to go to the bathroom, a Chathaoirligh. Thank you for facilitating me in that regard.
My colleague, who is well able to speak on behalf of the Government, will have outlined my position to the House. I do not believe that the wording should be changed. This is based on the legal advice I have received from the Attorney General and the engagement I have had with the clinical community. This includes the leading obstetricians in the country and people who provide me with clinical advice, in particular, my chief medical officer.
The wording used in this section, as the Minister of State, Deputy Catherine Byrne, outlined to the Seanad, has been considered from a medical perspective. It has been done with a view to ensuring flexibility for medical practitioners. I have pointed out to some of my colleagues in the House that I am not approaching the Bill from the point of view of broadening the grounds but rather based on what we committed to doing. Equally, I am not engaging in this for the purpose of trying to restrict the grounds or make the Bill more restrictive.
Under the terms of the Bill medical practitioners can take a decision in consultation with the woman to carry out a termination on the grounds that it would be appropriate, using their appropriate clinical judgment. The idea that it must be necessary implies that it must be superior to all other options and amounts to providing a bar that would make it very difficult for our medical community to meet. Senator Mullen may not like the use of the word "chilling" but that is a chilling effect. That is a word I will continue to use because it is one that doctors have told me they have operated under for far too long. It amounts to asking the doctor to be satisfied absolutely and definitively that it is entirely necessary.
I do not in any way doubt the bona fides of the Senator and I know he will not doubt mine but I believe the unintended consequence of this proposal would be to almost make it unworkable. It amounts to asking a doctor to meet a test that the treatment is categorically necessary rather than appropriate. To use any wording other than that currently in the Bill, especially more restrictive wording, could have implications for obstetric practice. I say as much confident in the knowledge that the view is shared by leading obstetricians, my chief medical officer and the Attorney General of Ireland in the context of providing advice to me. For that reason I do not propose to accept the amendment.
No, I understand that. I am grateful to the Minister for coming back. The facts are here. I have raised some specific questions to which I have not had an answer.
The Minister's essential point seems to be that "appropriate" is the word that has always been used. I cannot remember whether it was at the point when the Minister left, but I put it to him that he elevated the meaning of the word "necessary" in the Dáil to mean absolutely 100% necessary. In the Minister's absence, I referred to what the Medical Council guidelines. They use the expression "it may be necessary to terminate". The word "necessary" is normal. I noted the fact that the Medical Council guidelines had been revised and amended in the wake of the death of the late Savita Halappanavar. It is a big statement to say the use of the word is too restrictive and has a chilling effect given that the word is what is the status quoin the context of necessary medical interventions for the saving of life as permitted under the 2013 legislation.
I asked the Minister whether he could refer to a specific situation where the current Medical Council guidelines were found to be too restrictive or to have had a chilling effect. I asked whether the word "necessary" has been, is being or is required to be interpreted as meaning absolutely 100% necessary, as the Minister said in the Dáil on Committee Stage, such that doctors cannot exercise their clinical judgment. I asked the Minister which doctor or doctor representative bodies told him that. The claim that the current Medical Council guidelines use of the word "necessary" is problematic will come as major news to many obstetricians practising today. I asked the Minister what actual negative effect it had had on obstetric practice. I asked whether he could give an example of a case, since the guidelines have been revised, of where a termination to save the life of a woman was refused because it was not necessary, and where this judgment turned out to be incorrect and lives were lost as a result. I asked why the Minister had not sought amendment to the Medical Council guidelines since they were last revised in 2016 in the light of any such problems.
The Minister is the person who wants to change the standard word. He has elevated the word to mean absolutely 100% necessary. I believe this is intended to give us a picture that it is difficult to reach that test. Yet, since "necessary" is the word that is in the Medical Council guidelines, I believe we are entitled to more than mere vague references to legal advice and reference to obstetricians, because the Minister is the person who wants to change it. I am suggesting is that the word "appropriate" is unusual and falls short of the current word used in broadly similar situations. My questions are reasonable.
I have no difficulty with Senator Mullen's questions. The answer is to refer to the fact that the 2013 Act refers to "immediately necessary". As a result of that, the Medical Council guidelines also refer to "necessary". The Medical Council has already indicated that its guidelines will now be updated following what I hope will soon become a new Act. Senator Mullen is quoting – he is quite right to do so – guidelines that will change as the legislation changes.
I suggest Senator Mullen is also somewhat selectively quoting. The appropriate test, if I may refer to it as such, is one of three tests that two doctors must reach in conjunction with the woman before a termination can be carried out. The amendment refers to section 9. The section states that a termination of pregnancy may be carried out in accordance with the section where two medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that there is a risk to life or serious harm to the health of the pregnant woman. We have discussed that and there are different views as to whether the word "serious" should be used. I have held the line, if I may use that phrase, in the sense of sticking to what we said we would do with that provision. The section continues by providing that the foetus must not have reached viability and that it is appropriate to carry out the termination of pregnancy in order to avert the risk.
Of course there are Senators who have tabled amendments that will come before the House later that will seek to lessen that test and replace it with the word "mitigate". There are different views on the matter. However, when we take the three items together in the round, we can see the standard of proof before a termination can take place. It requires two doctors who believe there is a serious risk of harm to the health or life of the woman and the foetus must not have reached viability. Moreover, the treatment must be deemed to be appropriate to avert the risk. The test of "avert" is, as we will be discussing later, a high bar as well. We need to be careful in this regard.
I believe it is appropriate – pardon the pun; I did not mean that – or apt that doctors and women can determine what is appropriate in this situation.
I do not think it is obscure for any member of any Government to refer to the fact that he or she has consulted with the Attorney General's office and has relied on its legal advice for clarity. That is long-standing parliamentary practice in this country.
The Minister correctly referred to the consultation by two doctors or medical practitioners and the committee. That would further strengthen the argument for the word "necessary". Surely in good faith they could arrive at a decision of "necessary" without being questioned on that. They would be well equipped to do that given their medical expertise.
There is an issue around the medical advice given to the Minister. The Minister mentioned the Attorney General's advice and that it was privileged. That is fine and I accept that. I have two supplementary questions. Was any other legal advice provided to the Minister or the Government on the issue outside of that legal advice?
I accept that. The other question relates to the advice that the Minister mentioned was provided by the chief medical officer of the Department. Has that advice been published? Is that also privileged information?
I think we are. Various people in the House will get legal and medical advice and perhaps everyone will disclose from where they get their legal and medical advice. I get mine from the chief medical officer. The chief medical officer's advice comes in many forms, including verbal form in engagements and meetings. I am confident he is satisfied it is the correct wording to use. I am satisfied the Attorney General is satisfied it is the correct wording to use and that the Government has approved the wording after careful consideration. I appreciate we are at odds on this with regard to the place we are now in, which is that I am pleased we have repealed the eighth amendment and the Senator opposed it, as absolutely is his right. We are now in a post-eighth environment, however, where the appropriate language matches what the people of Ireland voted for. It is appropriate, when the foetus has not reached viability and two doctors have decided there is a serious risk to the life or the health of a woman, for a termination to proceed.
This is concerning. I get that the Minister might make a decision to be no more specific than he has been about the source of his legal advice. If it is from the Attorney General that is fair enough. Regarding the doctors, I can only ask the Minister to share with us which doctors are informing him. He mentioned the chief medical officer. I take that as his reply.
The Minister said I was being selective. I do not think I was being selective; I was being specific. I am very well aware there are grounds in sections 9(1)(a), (b) and (c). I do not see how sections 9(1)(a) and (b) change the question of whether the right word here is "appropriate" or "necessary". I do not think I was avoiding any inconvenient facts in not delaying the debate. Nobody would want me to read out each of those lines. The point is that in section 10, the word used is "necessary" and in section 9 the word used is "appropriate" but it occurs in a section that is discussing medical assessment. Medicine is either objective or it is not. If it is the case that "appropriate" is here because there is an element of choice coming into this the Minister should come out and say it. In other words, as I said earlier, there are the section 12 grounds for abortion, which have nothing to do with medicine, although it is being delivered in a medical context. It is elective and not in any way intended to be life saving, health saving or therapeutic, if we want to use that word, as most of us here are laypersons.
We are discussing the grounds on which the Minister is making it acceptable to have unborn children aborted in later term up to viability, which is a very advanced stage of human development. We are talking about human beings all of the way through. We are definitely talking about very visible to the naked eye and developed human beings and it is important that we take our time on this. If the Minister is saying to me the use of the word "appropriate" is there so as to facilitate a more subjective judgment as to whether the abortion should be carried out then I am very troubled by it because this is a departure from objective medicine. This is supposed to be a therapeutic abortion. This is supposed to be the exception that allows abortion beyond 12 weeks, and it already troubles a lot of people that it would be available without reason up to 12 weeks. Many people, well over 50% if we look at opinion polls since the referendum in terms of "Yes" voters, are very uneasy about this if it is introducing a subjective element, in other words if this is taking a bit of section 12 into section 9. If this is what is intended, in other words, to make abortions easier to happen or more likely to happen by substituting the word "appropriate" for "necessary" then it is very troubling. It is troubling not just to people who voted "No" on 25 May. It will also be troubling to many people who voted "Yes". Is this the reason the word "appropriate" is going in here? The normal and traditional test of reasonable necessity for a medical intervention to save a life - not 100% absolutely necessary to use the Minister's language - in the 2013 legislation was not complained about by the Minister or others prior to the campaign to remove the eighth amendment. Is "necessity" not the word that ought to be here, unless what the Minister is seeking to do is to import an element of subjectivity into the decision about whether an abortion should happen?
Of course there is subjectivity in medicine every day of the week. This is about trusting clinicians to make judgments. We just had a discussion on the previous section about the variety of scenarios doctors may find themselves in, having to make decisions where there could be a very serious risk to the health of the woman. Doctors have to make decisions. The word "necessary" removes medical judgment. What "appropriate" does is protect such medical judgments. The Senator is right. In section 10 we reference "immediately necessary" as a higher bar due to the fact that under the section, one doctor is allowed to carry out a termination because it is in a very exceptional circumstance and emergency. We have the balance entirely right. In the section where it is the exceptional emergency circumstance and there is one doctor, the immediately necessary bar is applied. In the section where we are speaking about clinical judgment being reached by two doctors and a woman, "appropriate" is the correct word because it protects such judgments. I do not believe we are going to agree on this and I do not wish to go around the houses on it but my view is that "necessary" would remove medical judgment in the situation whereas "appropriate" would protect and allow it.
The use of the word "necessary" absolutely does not remove scope for judgment. Doctors make judgments on what is necessary every day and they are judged and given a considerable amount of scope for their clinical judgment to decide whether something is necessary. It is incorrect for the Minister to say the use of the word "necessary" imports some kind of strict liability to use a parallel example, or creates a situation whereby the doctor has absolutely no room to manoeuvre. That is simply not the case. Doctors make an assessment and decide whether something is necessary. It is a word that has been used all along in medicine. It is the word that delivered freedom for doctors to intervene where necessary under the eighth amendment and that was not problematic. This was stated by Dr. Mary Holohan and others in the run-up to the referendum. The Minister is introducing a new word, and what he is doing is creating a greater likelihood that abortions will take place than that they will not. This is a very serious matter and it is all the more serious because we are talking about abortions that may take place up to viability.
Catherine Ardagh, Ivana Bacik, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Lorraine Clifford Lee, Paudie Coffey, Martin Conway, Gerard Craughwell, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Colette Kelleher, Anthony Lawlor, Gabrielle McFadden, Gerald Nash, Catherine Noone, David Norris, Marie Louise O'Donnell, Joe O'Reilly, Ned O'Sullivan, Niall Ó Donnghaile, Aodhán Ó Ríordáin, James Reilly, Neale Richmond, Lynn Ruane, Fintan Warfield.