Tuesday, 21 May 2013

Joint Committee on Health and Children Debate

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The Joint Committee met at 09:30


Information on Catherine Byrne Zoom on Catherine Byrne Deputy Catherine Byrne, Information on Ivana Bacik Zoom on Ivana Bacik Senator Ivana Bacik,*
Information on Ciara Conway Zoom on Ciara Conway Deputy Ciara Conway, Information on Colm Burke Zoom on Colm Burke Senator Colm Burke,
Information on Regina Doherty Zoom on Regina Doherty Deputy Regina Doherty, Information on John Crown Zoom on John Crown Senator John Crown,
Information on Robert Dowds Zoom on Robert Dowds Deputy Robert Dowds, Information on Aideen Hayden Zoom on Aideen Hayden Senator Aideen Hayden,+
Information on Peter Fitzpatrick Zoom on Peter Fitzpatrick Deputy Peter Fitzpatrick, Information on Imelda Henry Zoom on Imelda Henry Senator Imelda Henry,
Information on Seamus Healy Zoom on Seamus Healy Deputy Seamus Healy, Information on Jillian van Turnhout Zoom on Jillian van Turnhout Senator Jillian van Turnhout,
Information on Billy Kelleher Zoom on Billy Kelleher Deputy Billy Kelleher, Information on Jim Walsh Zoom on Jim Walsh Senator Jim Walsh.*
Information on Mattie McGrath Zoom on Mattie McGrath Deputy Mattie McGrath,  
Information on Sandra McLellan Zoom on Sandra McLellan Deputy Sandra McLellan,  
Information on Eamonn Maloney Zoom on Eamonn Maloney Deputy Eamonn Maloney,  
Information on Denis Naughten Zoom on Denis Naughten Deputy Denis Naughten,  
Information on Caoimhghín Ó Caoláin Zoom on Caoimhghín Ó Caoláin Deputy Caoimhghín Ó Caoláin,  
Information on Mary Mitchell O'Connor Zoom on Mary Mitchell O'Connor Deputy Mary Mitchell O'Connor,  
Information on Robert Troy Zoom on Robert Troy Deputy Robert Troy,  

* In the absence of Senators John Gilroy and Marc MacSharry, respectively.

+ In the absence of Senator Ivana Bacik, for part of meeting.

In attendance: Deputies Paudie Coffey, Michael Creed, Jim Daly, Bernard J. Durkan, Alan Farrell, Terence Flanagan, Tom Hayes, Kevin Humphreys, Derek Keating, Tony McLoughlin, Peter Mathews, Olivia Mitchell, Michelle Mulherin, Seán Ó Fearghaíl, Aodhán Ó Ríordáin, John O'Mahony, John Paul Phelan, Brendan Ryan, Arthur Spring, David Stanton, Billy Timmins, Peadar Tóibín and Liam Twomey, and Senators Paul Bradford, Terry Brennan, Martin Conway, Michael D'Arcy, Fidelma Healy Eames, Terry Leyden, Rónán Mullen, Michael Mullins, Catherine Noone, Labhras Ó Murchú and Susan O'Keeffe.

Information on Jerry Buttimer Zoom on Jerry Buttimer DEPUTY JERRY BUTTIMER IN THE CHAIR.

Heads of Protection of Life during Pregnancy Bill 2013: Public Hearings (Resumed)

Medical Law

Chairman: Information on Jerry Buttimer Zoom on Jerry Buttimer I believe in starting committee meetings punctually every Thursday morning, although this is our third day. I thank members. We have a quorum of six members, at least one being from each House. Is it agreed that we begin in public session? Agreed.

I remind committee members, Members in the Gallery, witnesses and members of the media to switch off their mobile telephones instead of leaving them on silent, as they interfere with broadcasting.

I welcome everyone to our ninth session in the series of hearings that the Joint Committee on Health and Children has been asked to conduct to discuss and analyse the heads of the protection of life during pregnancy Bill. I ask committee members and non-members to be brief in their questions and relevant to the heads of the Bill. I will be strict with time today. I also want to be fair to people. I apologise to those who did not have an opportunity to contribute yesterday, in particular Deputy Maloney. I hope that he will have an opportunity today.

Deputy Eamonn Maloney: Information on Eamonn Maloney Zoom on Eamonn Maloney I did not sleep all night.

Chairman: Information on Jerry Buttimer Zoom on Jerry Buttimer I remind members to make balanced and fair remarks and to use temperate language. We should hold our debate in a balanced, fair and calm manner that befits the Houses of the Oireachtas. I thank them for their co-operation during the past three days. I ask members to focus their remarks on the Bill on a head-by-head basis.

I welcome Ms Caroline Simons, Mr. Tony O'Connor, Mr. Paul Brady and Dr. Simon Mills, who have given freely of their time to assist us. Every expert who has appeared before us - they are witnesses, not experts - has given of his or her time freely to assist us.

I remind members and witnesses of privilege, in that witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter to only a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of the proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice or ruling of the Chair to the effect that, where possible, they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

We have 50 minutes for opening statements, with four speakers. I invite Dr. Mills to begin.

Dr. Simon Mills: I thank the committee. I compliment it on the extensive amount of work involved in the hearings of recent days as well as in the preceding hearings and the output of same, namely, the committee's report and the heads of the Bill that we are discussing today. The Bill encapsulates the terms of the X case. My broad overview of matters is that it does so adequately. As the Government was entitled to do, the Bill leaves to one side broader considerations of Article 40.3.3° for another day.

The committee has my brief written submission. Due to tight timelines and as with everyone who has contributed to the hearings, not everything that I originally thought about the Bill was contained in that submission. As I have considered the Bill, a number of other matters have also come to mind. I propose to use my opening submission to address a number of matters, aside from those set out in my written submission, that would be of relevance for the committee and, in due course, the Oireachtas to consider. I will do so in the order of the heads of the Bill, precisely as one would do if making a written submission.

The definitions of unborn and implantation as set out in the definitions section could be merged into one. Implantation is defined as "implantation in the womb", but the word only appears once in the legislation, that being in the definition of unborn. It seems logical that, if unborn is to be defined in the Bill, one could simply refer to implantation in the womb.

The requirement to form a reasonable opinion is set out in heads 2 and 4 and defined in head 1. As currently drafted, the reasonable opinion provision requires the doctors to have regard, in so far as is practicable, to the right to life of the unborn. If this definition is to articulate fully and properly the tests laid down in the X case, the expression it gave to Article 40.3.3° and the language of that Article, the reasonable opinion should also include, by way of balance, the obligation to have regard to the right to life of the mother.

I will address heads 2 and 4 together. Head 2 deals with a threat to the life of the mother arising other than by the threat of self-destruction. Head 4 deals specifically with the question of suicide and suicidality. Clearly, a decision has been taken to treat suicidality in a different and contingent fashion when compared with the threat of physical injury. We must all be pragmatic about this - the reasons are, to some extent, political. However, a number of issues should be considered in respect of heads 2 and 4 if head 4 is to survive and become part of the legislation. I will refer to that matter in a moment.

Heads 2 and 4 do not give sufficient detail to the test that is to be applied by doctors in assessing the threat to life. An aspect of the X case judgment and the articulation it provided of Article 40.3.3° is a requirement that the threat to life must be present as a matter of probability. In so far as this formed part of the X case judgment, the requirement that the standard to be met on the part of doctors assessing the threat to the life of the mother should be expressly stated to be a matter of probability.

Under heads 2 and 4, which require that there be an examination of the mother, it occurs to me that "examination" is the wrong word. I touched on this issue in my written submission. It may well be that there are assessments of the pregnant woman that do not require an examination of the woman herself, but an assessment of radiological images or blood tests. It may be that a particular condition is so rare that a consultation must be held at a distance, meaning that a physical examination is not possible. Where the word "examination" is used in heads 2 and 4, it might be made the subject of a definition under head 1 or be dealt with more extensively in heads 2 and 4 to address, among other issues, the express requirement for a consultation with the woman and the possibility that an examination might be other than a physical examination or might require something more than a mere physical examination.

I anticipate that the issue of whether heads 2 and 4 should be separate will arise in questioning and I do not propose to deal with it in this submission. I propose to speak to it later.

Heads 6 to 9, inclusive, address the issue of reviews and appeals of decisions that are or may be made under this legislation. I will deal with them collectively instead of breaking them down. Having given the Bill consideration subsequent to the preparation of my written submission, a number of issues occurred to me that may be matters that the committee and, in due course, the Oireachtas wish to consider. First, the requirement or otherwise for the provision of a scheme of legal representation for those who may require it in the setting of any review.

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