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June 27, 2016

Clarity and some chiaroscuro

Dara Gantly

Dara Gantly shines a light on the role of doctors in limited terminations.

The need to create legal clarity for doctors and women was the driving force behind the drafting of the Heads of the Protection of Life during Pregnancy Bill 2013, along with the finding of the European Court of Human Rights in 2010 that Ireland had failed to provide for abortion in circumstances where the mother’s life was at risk, and the Court’s instruction to the Irish Government to legislate for suicide.

Given the subject matter, the legislation was never going to please everyone, but the Heads are a workable starting point for the legislature, which has a tough task ahead over the coming months.

The Oireachtas Health Committee is due to hold three days of public hearings over the next two weeks (on May 17, 20 and 21), with key medical and legal experts expected to be invited to address the Committee. Deputy Jerry Buttimer and his colleagues did an excellent job in January, when three days of public hearings were held following the Government’s initial decision to proceed to address the issues raised in the A, B, C judgement. The result on that occasion was a genuine enhanced public awareness of the vast complexity of the matters under consideration, and if that could be replicated again, the Committee would do the State another great service.

So, after some 21 years, we are finally legislating for the X Case. Perhaps understandably, the provision of terminations for women whose lives are endangered by suicide has dominated much of the debate thus far, both outside of and within the medical profession. But there are plenty of other items and details within the Bill that will probably be exercising doctors.

Some points to note include that terminations may only be provided in the 19 public obstetric units across the country — the 16 HSE-run facilities and the three voluntary maternity hospitals — except in emergencies. It later (Head 12) deals with conscientious objections, but clarifies that this right only applies to individuals and not institutions, so no institution can refuse to provide a lawful termination just because they may have a particular religious ethos. And what about individual conscientious objection in cases of emergency? The Heads mention the Medical Council’s Ethical Guide, which states that conscientious objection does not absolve doctors from responsibility to a patient in emergency circumstances.

At this stage, I’m sure you are all aware of how many doctors will be required to sanction the procedure: two when there is “a real and substantial risk of loss of the pregnant woman’s life other than by way of self-destruction” (the term ‘suicide’ is not used) — with one of the two doctors having to be a consultant obstetrician and the other a specialist medical practitioner.  Again, the specialty of the second physician is not spelled out. However, three doctors will have to make an assessment of suicide ideation, comprising an obstetrician and two psychiatrists. I wonder, could this difference in treatment be interpreted as in any way discriminatory?

In emergency circumstances, the reasonable opinion of just one doctor will be required to certify that the termination is immediately necessary to save the life of the woman.

The review process has also become somewhat clearer, and had to become so under the judgement in A,B,C v Ireland. The Bill may have alleviated some fears over possible 12-person psychiatric reviews that College of Psychiatrists of Ireland (CPsychI) President Dr Anthony McCarthy previously termed “abusive”, but the review mechanism is less clear than some other elements. We know the make-up: one obstetrician/gynaecologist and another medical specialist in cases arising from physical illness; and one obstetrician/gynaecologist and two psychiatrists in cases of ‘self-destruction’. We also know the HSE will set up a panel from which to choose review members and that the Institute of Obstetricians and Gynaecologists (IOG), CPsychI, RCSI and RCPI will nominate their members to the panel. But what selection criteria will be used by either the College or the HSE?

And as Dr Muiris Houston quite rightly poses in the next issue of IMT (May 10), how appropriate will it be for a consultant obstetrician to formally assess suicidality?

He also believes it would have been medically more appropriate to have included the patient’s GP in the three-doctor panel.

The Bill also does not provide a specific referral pathway, due to, it says, the “unpredictability and complexity of these rare medical cases”. So that hard work is also going to be left to the colleges, and in particular the IOG, the RCPI and the ICGP. I think everyone will welcome the fact that the penalty of penal servitude for life, as included in the Offences Against the Person Act 1861 has been replaced, but some have expressed concern that this has been replaced with a 14-year jail term, including for the pregnant woman.

The Bill has made many efforts to take the expectant mother’s opinion firmly into account, and this is to be applauded. Indeed, it reiterates that: “It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is permissible under this Act.” Yet, if you recall, the High Court ruled in 2006 that doctors in a Dublin maternity hospital could force a seriously-ill Jehovah’s Witness to have a blood transfusion, despite her refusal on personal and religious grounds, because the woman would die unless the procedure was authorised.

Another interesting detail is the definition of the ‘unborn’ as it relates to human life, which the Bill takes to mean “following implantation, until such time as it has completely proceeded in a living state from the body of the woman”. While this apparently closes-off a potential legal irregularity in legislation identified by the Expert Group in its report on the A,B,C v Ireland ruling, will it have any implications for embryo research?

We will also soon have a new Medical Council, and among its first tasks will be to review the Ethical Guide so that it mirrors whatever legislation is finally passed by the Oireachtas.

And is it fair to ask, ‘where next’? Taoiseach Enda Kenny stressed throughout his presentation of the Bill last week that the law was not changing. Indeed, the Bill does not deal with cases where women seek a termination because of rape or terminal foetal conditions. Commenting last week, Master of the National Maternity Hospital Dr Rhona Mahony said these conversations were “worth having in society”, adding that women would continue to travel in large numbers to England for abortions, despite the greater clarity the Bill provided.

On the opposing side, UCD’s Prof Patricia Casey believes the provision on suicide “compromised the profession” of psychiatry, with fellow psychiatrist Dr Bernie McCabe believing a survey of her colleagues was evidence that many of her colleagues believed the Government’s proposals were flawed.

However, equally outspoken psychiatrist Prof Veronica O’Keane, of Trinity College Dublin was pleased that some service would finally be available, although she also expressed reservations over the assessments that women endangered by suicide because of an unwanted pregnancy would have to face. So, yes, some diverging views.

It is also debatable whether the Bill, if enacted, would have made any difference in the case of Savita Halappanavar, as the evidence at the inquest suggested that it was not believed there was “a real and substantial risk of loss of the pregnant woman’s life” when she sought a termination, and that it was too late to save her life once the threat was identified.

So clarity, yes. But also chiaroscuro — plenty of dark shadows yet to be lit up, that will eventually soften the contrasts affecting the whole controversial composition.