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Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements (Resumed) (Continued)

Thursday, 6 December 2012

Dáil Éireann Debate
Vol. 785 No. 3

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(Speaker Continuing)

[Deputy Billy Kelleher: Information on Billy Kelleher Zoom on Billy Kelleher] As Ireland is part of the European convention it is obliged to abide by and implement the judgments of the European Court of Human Rights. This was recognised by the Irish Government in a press release issued on the same day the decision was delivered. It stated that the Government will examine the judgment carefully and consider what steps are required to implement the judgment. The body charged with supervising the implementation of the European Court of Human Rights is the Committee of Ministers. The current Government committed itself - on page 8 of the programme for Government 2011-2016 - to establish an expert group to address this issue, drawing on appropriate medical and legal expertise with a view to making recommendations to the Government on how this matter should be properly addressed.

  In the action plan on the implementation of A, B and C v. Ireland case submitted to the Committee of Ministers on 16 June 2011, the Government informed the committee of its intention to create the expert group. The Government announced the terms of reference of the expert group on 29 November 2011. These were as follows: 1. to examine the A, B and C v. Ireland judgment of the European Court of Human Rights; 2. to elucidate its implications for the provision of health care services to pregnant women in Ireland; and 3. to recommend a series of options on how to implement the judgment, taking into account the constitutional, legal, medical, and ethical considerations involved in the formulation of public policy in this area and the overriding need for speedy action.

  The expert group was established on 13 January 2012. The report of the expert group was published on 27 November 2012. The report is 56 pages long and it is divided into eight chapters. Chapter 1 is the introduction and sets out the terms of reference of the expert group. Chapter 2 gives an overview of the current legal provisions governing the termination of pregnancy in Ireland. Chapter 3 outlines the historical developments which have taken place on abortion in Ireland over the last 30 years. Chapter 4 sets out the decision of the ECHR and its legal implications. Chapter 5 sets out the principles adopted by the expert group for the implementation of the ECHR decision. Chapter 6 sets out the procedural options. Chapter 7 outlines the implementation options and chapter 8 sets out the conclusion. The key chapters in this report are chapters 4 and 8.

  It is useful to start at the end and mention what the expert group stated about the report in its conclusion, since this informs everything in the report. At page 53, the expert group stated:

  Under the expert group's terms of reference, it was not its function to specify how the judgment should be implemented but rather to provide options. The group has endeavoured to put forward options that are practical and consistent with the Constitution and the law of the State.

At paragraph 4.7, the expert group summarises the legal obligations on the State pursuant to the ECHR decision as follows:

a. Provide effective and accessible procedures to establish a woman's right to an abortion as well as access to such treatment;

b. Establish criteria or procedures in legislation or otherwise for measuring or determining the risk;

c. Provide precision as to the criteria by which a doctor is to assess that risk;

d. Set up an independent review system where a patient disputes her doctor's refusal to certify that she is entitled to a lawful abortion or where there is a disagreement between doctors as to whether this treatment is necessary; and

e. Address sections 58 and 59 of the Offences Against the Person Act, 1861.

Having summarised the legal obligations, the expert group goes on in chapter 5 to set out the general principles that should apply to the implementation of these legal obligations. These are as follows:

1. The entitlement to have the right to lawful termination of pregnancy ascertained should be established;

2. The State's constitutional obligations under Article 40.3.3o should be reflected in the options proposed to implement this judgment;

3. Termination of pregnancy should be considered a medical treatment regardless of whether the risk to the life of the women arises on physical or mental health grounds; and

4. 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 clinically appropriate medical treatment.

In chapter 6 the expert group goes on to examine the procedure for determining entitlement and access to termination of pregnancy. At paragraph 6.2 the test to be applied is set out. This is the test set out by the Supreme Court in the X case, as follows:

The Supreme Court in the X case held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that:
(1) there is a real and substantial risk to the life of the mother; and

(2) 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 expert group stressed that "implementing the decision does not, therefore, require another definition of the test" and added, "neither is it necessary or desirable to seek to explain it with synonymous terms."

  The expert group then considered, at paragraph 6.3, the qualifications of doctors involved in the process. At paragraph 6.4, the expert group considered the number and role of doctors. It considered three options: option 1 - two doctors of relevant speciality; option 2 - two doctors, one of whom is an obstetrician; and option 3 - two doctors of relevant speciality plus an obstetrician.

  At paragraph 6.5 the expert group considered whether provision should be made for emergency situations where the risk to life is "imminent and inevitable" rather than "real and substantial" and a medical practitioner is unable to seek the advice and assistance of another medical practitioner. It posited two options, the first of which was to make provision for emergencies, and the second of which was not to make provision for emergencies.

  The expert group then went on, in section 6.7, to consider a formal review process. The expert group stated that the review process would have to be before an independent body; competent to review (i) the reasons for the decisions and (ii) the relevant evidence; the procedures should include the possibility for the woman to be heard; it should issue written reasons for its decisions; and decisions must be timely.

The expert group underlined the words "independent", "competent", "heard", "written reasons" and "timely".

  The report has obviously presented the Government with a number of options. While it is important for us to debate the report's recommendation, it is also important to continue to debate this matter based on what is available to us as legislators.

  The key issue is that Article 40.3.3o interpreted by the Supreme Court decision in the X case in 2002, which lays out quite clearly that a lawful termination may take place when a woman's life, as opposed to her health, is at risk.

  People may have strong views - as expressed in the Upper House today and here also - on other issues such as incest, rape and fatal foetal abnormalities. The fact of the matter is, however, that unless there is an amendment to the Eighth Amendment to the Constitution, or it is repealed, we are talking about the very narrow, defined interpretation in the context of the X case. That clearly is what the expert group consistently says in its findings regarding the options available.

  Both in the debate here and in the Upper House, many speakers have referred to the Irish Medical Council's guidelines. It is not true to say that there are no guidelines available to the medical professionals. The Institute of Obstetricians and Gynaecologists has requested that there be a proper legal framework. The masters of the two largest maternity hospitals have said that clarity is needed.

  The Irish Medical Council's guidelines were most recently updated in 2009. Under section 21.1, they state that:

Abortion is illegal in Ireland except where there is real and substantial risk to the Iife, as distinct from the health, of the mother. Under current legal precedent, the exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of clinical research on this issue.

Under section 21.4, the guidelines state that:

In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.

The Irish Medical Council's guidelines clearly give guidance to medical professionals. However, when those charged on a daily basis with assisting women and at times saving their lives, say they need legal clarity it is important for us to listen to them.

  There is a big division of opinion on the issue of suicide. Most people in this Chamber would support any measures that will protect the life of the mother on medical grounds. However, the matter becomes very divisive when one discusses suicide or a threat to self destruct.

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