Minister Reilly’s opening statement to Oireachtas Committee on Health & Children
Good morning Chairman and members of the Committee,
I am pleased to be here today to open these hearings on the General Scheme of the Protection of Life during Pregnancy Bill.
I look forward to the presentations of your invited guests, and I am confident that these hearings will provide very useful input as we come to finalise drafting of the terms of the Bill. I was struck by the balanced and respectful approach taken by all during the last three days of hearings held by the Committee in January, and hope that the present hearings will be as productive.
As you are all aware, on 30th April the Government approved the drafting of the Protection of Life during Pregnancy Bill 2013 subject to any technical amendments that may be deemed necessary following consultation with the Attorney General, and the publication of the General Scheme of the Bill. The General Scheme aims to give effect to the Government’s decision in December 2012to legislate in this area within the parameters of Article 40.3.3 of the Constitution as interpreted by the Supreme Court in the X case, in order to implement the judgment of the European Court of Human Rights in the A, B and C v Ireland case.
Before I proceed I think it is worth reminding ourselves of the findings of this judgment. Three applicants, A, B and C, all of whom had crisis pregnancies, brought proceedings against Ireland before the European Court of Human Rights claiming violations of Articles 2, 3, 8, 14 and 13 of the European Convention on Human Rights. In its judgment delivered on 16 December 2010 the Grand Chamber determined that there had been no violation of the Convention in relation to the first and second applicants, Ms. A and Ms. B. The Grand Chamber determined that there had been a violation of Article 8 of the Convention in relation to applicant Ms. C. The Court found that Ireland had failed to respect the Ms. C’s private life contrary to Article 8 of the Convention, as there was noaccessible and effective procedure to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law.
The aim of General Scheme being discussed is to provide such a procedure. However, it is worth noting again that the issues at stake here are extremely complex, and engage with fundamental rights.
Overview of the General Scheme
I will now take you through the General Scheme head by head. I do not wish to pre-empt your discussion but I am mindful that there might be issues still to be dealt with and my own Department has already identified some provisions that might need to be revisited from a technical perspective. Furthermore, some of the participants in these hearing might also have identified additional technical issues that may need examination and I look forward to any suggestions that will lead to the improvement of the operation of this legislation.
Head 1 of the Scheme deals with the interpretation of the Bill; it defines the meanings of some of the terms used for the purposes of the Bill, including appropriate location, reasonable opinion, and unborn.
Head 2 deals with the risk of loss of life from physical illness. It provides that it is not an offence for a registered medical practitioner to carry out a medical procedure in the course of which or as result of which unborn human life is ended under certain circumstances. These are that the procedure is carried out in an appropriate location and two medical practitioners registered on the Specialist Division of the Medical Council Register have certified that in their reasonable opinion there is a real and substantial risk to the life, as opposed to the health, of a pregnant woman arising from a physical illness that can only be averted by a termination of pregnancy.
The process requires an assessment on medical grounds to determine if the test set out in the Supreme Court judgment in the X case is met. The Supreme Court held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that:
- there is a real and substantial risk to the life of the mother; and
- this risk can only be averted by the termination of her pregnancy.
It is not necessary for medical practitioners to be of the opinion that the risk to the woman’s life is inevitable or immediate.
The definition of “reasonable opinion” requires that this opinion must be formed in good faith and must have regard to the need to protect the right to life of the unborn and preserve unborn human life where practicable. The emphasis on preserving unborn human life means that a doctor will be obliged to make every effort to safeguard the unborn and, where it is potentially viable outside the womb, to make all efforts to sustain its life after delivery.
The registered medical practitioner(s) will be obliged to record this opinion in writing if certifying a procedure that will end unborn human life.
One of the two medical practitioners involved in the certification process will always be an obstetrician/gynaecologist and the other will be a medical practitioner in a specialty relevant to the risk to the life of the woman, e.g. oncologist, cardiologist, etc. As indicated in the definition of reasonable opinion, the test requires a clinical diagnosis in relation to the risk to the life of the pregnant woman and a foetal assessment. Therefore the expertise of an obstetrician will always be required. Secondly, a termination of pregnancy will most likely be carried out by, or under the care of, an obstetrician/gynaecologist, and therefore their inclusion here should be central in accessing services and ensuring patient safety.
During the process of assessment it may also be appropriate that the pregnant woman’s GP is consulted with her permission and where practicable and feasible.
In relation to appropriate locations, it is intended that these will be public obstetric units only. I believe that the State’s constitutional obligation and its responsibility to act in the common good demand that, provision of terminations of pregnancy be only allowed in health care facilities providing obstetric and mental health services and where relevant specialists are attached, that can be duly monitored and investigated, should the need arise.
Head 3 deals with emergency situations, where there is an immediate risk of loss of life arising from physical health conditions only. In an emergency situation, the opinion of one registered medical practitioner will be sufficient for the termination to be lawful.
Doctors should not be prevented from saving a woman’s life in a situation of acute emergency, because, for example, the required numbers of doctors are not available to certify or the woman in question arrives at a health facility that is not covered as an appropriate location under this Bill i.e. not a public obstetric unit. Therefore, in emergency circumstances, the reasonable opinion of one medical practitioner is required to certify that the termination is immediately necessary to save the life of a pregnant woman, but the medical practitioner who carries out the procedure will be required to certify the reasons for his/her actions, and notification of all emergency terminations will be sent to my Department.
Again, this opinion must be formed in good faith and have regard to the need to preserve unborn life where practicable. The emergency ‘exception’ will not apply in the case of a risk to life from self-destruction because of the more subjective nature of the diagnosis due to the absence of objective clinical markers.
Head 4 deals with a risk to the life of the pregnant woman from self-destruction. Assessment of self-destruction is more subjective and there are recognised clinical challenges in accurately assessing suicidal ideation, for example, the absence of objective clinical markers. Therefore, this assessment requires more safeguards to be put in place. In these cases, three medical practitioners registered on the Specialist Division of the Medical Council Register must certify that in their reasonable opinion there is a real and substantial risk to the life of a pregnant woman arising from self-destruction that can only be averted by a termination of pregnancy. One of them must be an obstetrician/gynaecologist and the other two must be psychiatrists.
I am aware that the role of the obstetrician in this assessment has been raised, however, the test in this case will always be a multidisciplinary test as it requires a clinical diagnosis in relation to the risk to the life of the pregnant woman and a foetal assessment. Therefore the expertise of an obstetrician will always be required.
Head 5 provides for the notification to the Minister of the certified medical opinions referred to in heads 3, 4 and 5. It is undoubtedly important to record the number and nature of terminations of pregnancy carried out under this Bill, in order to monitor its correct implementation and detect any potential abuse of its provisions. Therefore, the legislation includes a clear requirement on providers to notify for all terminations carried out under this legislation within 28 days.
Head 6 provides for the establishment of a formal process to allow a woman to seek a medical review of her case. The establishment of a formal framework providing for an accessible, effective and timely review mechanism is one of Ireland’s obligations under the judgment in A, B and C v Ireland. The purpose of this formal medical review process is to provide a mechanism for the woman, where she so requests, to have access to a review of the clinical assessment made by the original doctor or team of doctors. In practice, this will only arise where the woman’s request for a termination in line with the X case criteria has not been granted, or when she has been unable to obtain an opinion in this regard.
It is important to note that this formal review pathway is in addition to and not in substitution for the option of a woman seeking a second opinion as with normal medical practice.
It is intended that the Health Service Executive will act as the Convenor for the purpose of the formal medical review process and will appoint authorised persons to establish and convene a Review Committee drawn from a Review Panel. It will also establish a panel of relevant experts for the purposes of this formal medical review. Members will be nominated by the Institute of Obstetricians and Gynaecologists, the Irish College of Psychiatry, the Royal College of Surgeons in Ireland, and the Royal College of Physicians of Ireland. The HSE will draw from this panel when it needs to establish a review committee to consider an application made under this Head.
As soon as possible but no later than 7 days after receiving a written request from the pregnant woman the HSE shall establish and convene the committee drawn from a panel maintained by the executive. The Committee shall complete its review as soon as possible but in any event no later than 7 days after the HSE has formed the Review Committee.
Head 7 sets out of the functions of the Review Committee in physical illness matters. These provisions precisely mirror the provisions in Head 2 for the initial assessment in both the number and specialties of the doctors involved.
Head 8 sets out the function of the Review Committee in the case of risk of loss of life through self-destruction. These provisions precisely mirror the provisions in Head 4 for the initial assessment in both the number and specialties of the doctors involved
Head 9 sets out the general provisions for the Committee for both physical risk and risk from self-destruction. It aims to empower the review committee to obtain whatever manner of clinical evidence it requires to reach a decision, and to call any relevant medical practitioners to give evidence in person and to vindicate a woman’s right to present her case at the meeting of the Review Committee or someone authorised on her behalf.
Head 10 sets out that reports from all review committees must be reported to the Minister by the Executive.Information that will have to beprovided includes:
- the total number of applications received
- the number of reviews carried out
- in the case of reviews carried out, the reason why the review was sought and
- the outcome of the review.
Again, this information is required to monitor the implementation of the legislation to ensure that the principles and requirements of the system are being upheld.
Head 11 provides for a notification system in relation to all terminations of pregnancy carried out under the terms of this Bill. I consider it very important to record the number and nature of terminations of pregnancy, in order to monitor the Bill’s correct implementation and to detect any potential abuse of its provisions. Therefore, the legislation includes a clear requirement on providers to notify me, as Minister for Health, of all terminations carried out under this legislation within 28 days. This will be done without disclosing the names of the women involved.
Head 12 deals with conscientious objection. In this regard, professional health personnel (namely medical and nursing personnel)will not be obliged to carry out or assist in carrying out lawful terminations of pregnancy if they have a conscientious objection, unless the risk to the life of the pregnant woman is immediate. Where a doctor or other health professional has a difficulty in undertaking a required medical procedure, he or she will have a duty to ensure that another colleague takes over the care of the patient, as is normal in current medical ethics.
I should note that the right to conscientious objection is a human right, which is limited to persons only and which cannot be invoked by institutions.
Head 13 reaffirms the freedom to travel and freedom to information as per the Thirteen and Fourteenth Amendment to the Constitution, for the avoidance of doubt.
Head 14 on regulations, is a standard provision in regard to Ministerial powers to make regulations.
Head 15 states that certain regulations must be made to provide for prescribed forms listed in Heads 2, 3 and 4. In this regard, I will be making regulations to set out the way in which medical practitioners will certify their opinions regarding the risk of loss of life to the woman, and whether a termination of pregnancy is required. These regulations will require, for example, certificates to indicate the clinical grounds for the opinion and other relevant details of the case at hand. Under this Head I will also be making regulations regarding the functioning of the Review Committee.
Head 16 also deals with regulations, this time on the prescribed notification form to be filled in under the terms of Head 11 (on Notifications).
Head 17 is a standard provision for the laying of the regulations before the Houses of the Oireachtas.
Head 18 repeals sections 58 and 59 of the Offences Against the Person Act 1861, as they are replaced by the provisions made in Head 19 of the Bill. Consequential amendments may need to be inserted in existing Acts subject to legal advice from the Attorney General and these are currently being explored.
Head 19 specifies the offence of performing or effecting, or attempting to perform or effect, a termination of pregnancy. This updates the law in this area. The penalty for the offence is up to 14 years imprisonment or fine or both.
Head 20 contains a standard provision dealing with the short title and commencement date of the Bill.
In conclusion, Mr Chairman, I wish to reassure you again that the only purpose of the legislation I will be bringing before the Houses of the Oireachtas is to clarify what is lawfully available by way of treatment in cases where there is a real and substantial threat to the life of a pregnant woman, and to set out clearly defined and specific circumstances in which this treatment can be lawfully provided.
As you will be aware a very significant amount of work was involved in producing the heads of this legislation. Over 50 drafts were composed as we moved to produce what we believe to be balanced proposals that meet our obligations. I commend the heads of the bill to the Committee and I now look forward to hearing your discussion and deliberation on its proposals.
Mr Chairman I am joined at the Committee by the Chief Medical Officer, Dr Tony Holohan, who was closely involved in all of the work on the heads of the bill. I am also joined by the Secretary General of the Department of Health Dr Ambrose McLoughlin who is fully conversant with the detail of the proposals.
Dr Holohan and Dr McLoughlin will remain with you to be of assistance in ensuring that the proposals in the heads are fully understood and to answer questions on areas where members require explanation.
I think it is important in the first instance for the Committee to have an opportunity to satisfy itself that there is no ambiguity as to what the heads mean.
Of course as the Committee knows the next phase is the drafting of the legislation followed by Committee stage in the Dáil. I look forward to working closely with colleagues in the chamber as we discuss the final legislation and any amendments that it may require.
Finally, Mr Chairman, I wish to again publicly state my gratitude to the committee for your earlier hearings which informed the composition of these heads and I’d like thank you and all of those participating in these public hearings, for the invaluable contribution you are making to this issue and for the assistance you will provide to me and my officials. I wish to acknowledge deputies on both sides of the house who have discussed these matters with me and I’d like to thank all those persons who recognise the great sensitivities involved and the need for our discourse to be respectful of differing views.
I now hand over to the Chief Medical Officer, Dr. Tony Holohan, who will be provide further details on the principles underpinning this General Scheme.