Jerry Buttimer (Cork South Central, Fine Gael)
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Last night we were discussing the amendments to section 4. Deputy Naughten was in possession.

Denis Naughten (Roscommon-South Leitrim, Independent)
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Last night I was dealing section 4 which makes provision for the laying of regulations before the Houses of the Oireachtas. While I know it is not the intention of this Minister to bring in significant regulations at present, there is nothing to stop a Minister in the future from bringing in significant regulations. The wording of my amendment or the alternative wording in Deputy Ó Cuív's amendment would be acceptable. I hope the Minister can accept the principle of my amendment and agree to come back on Report Stage with a substantive amendment to the section.

Seán Conlan (Cavan-Monaghan, Fine Gael)
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I too propose an amendment. I apologise if any member has raised a similar point already. I propose to amend the section as follows:

(4) For the avoidance of doubt, any regulations made under this section must be consistent with and acknowledge the right to life of the unborn.

Jerry Buttimer (Cork South Central, Fine Gael)
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Will Deputy Conlan speak on the principle of what he proposes rather than reading out the amendment?

Seán Conlan (Cavan-Monaghan, Fine Gael)
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The reason for the amendment is explicitly to limit the power to create regulation and to ensure that it complies with Article 40, 3.3o of the Constitution. I have already forwarded proposed amendments to the Minister, so he will be aware of my amendment, but it is important to ensure we comply with Article 40.3.3o of the Constitution.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I wish to comment on amendments Nos. 12 and 13. Generally I am in favour of regulations being laid before the Houses prior to implementation, but not in this case.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The Schedule contains a large list of hospitals. Have the hospitals agreed to be on the Schedule?

Jerry Buttimer (Cork South Central, Fine Gael)
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I remind Members that brief contributions would be helpful.

James Reilly (Dublin North, Fine Gael)
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I will be brief, because we discussed this in some detail last night. Deputy Ó Cuív's question is not relevant because there is no right of refusal. In earlier debates we discussed the right of an individual to have a conscientious objection, which we fully acknowledge, as per the Medical Council guidelines. No such right is afforded to an institution.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Can I ask the Minister another question?

Jerry Buttimer (Cork South Central, Fine Gael)
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Very briefly. We have discussed the matter already.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The Minister is saying there is no right of refusal. There are hospitals which are private institutions, and they could refuse. The only sanction the Minister could take in that case, I take it, is to withdraw the money?

James Reilly (Dublin North, Fine Gael)
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Correct.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Okay, but they can refuse. Is that not correct?

James Reilly (Dublin North, Fine Gael)
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That is fine. We can have a theoretical argument here-----

Éamon Ó Cuív (Galway West, Fianna Fail)
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No. They might practically decide to refuse to be on the list.

James Reilly (Dublin North, Fine Gael)
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That is quite true.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I wish to make a brief observation on amendments Nos. 12 and 13. Deputy Naughten's amendment is quite particular on the practice and methodology of regulations as they will present. They should be presented to the Houses for approval before their introduction and not just be laid before the Houses, as is the practice in so many instances.

Amendment No. 13, which was tabled by Deputy Ó Cuív, is very different. It is but a reiteration of everything that the Bill and the constitutional position already affirm. I do not see these two amendments as a case of either-or. They are anything but.

Billy Kelleher (Cork North Central, Fianna Fail)
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I wish to ask a question on the institutions that will be licensed under the legislation, an issue that I have raised before. What happens in the event that an institution adopts a policy of recruiting people who have a conscientious view of the legislation, resulting in the institution's having a diminished clinical capacity to carry out such medical procedures as may be required under the legislation? An institution may have a religious ethos or whatever, but there will be a certain view at senior management and board levels. The process of recruitment could be used to ensure the clinicians were of the same mind. That would diminish the capacity of the hospital to carry out such procedures, because it would not have clinicians available to carry them out. How could that situation be addressed in the Bill? We have talked about licensing 19 institutions and emergency departments in hospitals, and rightly so, in view of the fact that women who require terminations will often present at an emergency department. Suppose one has a tight group of like-minded very senior clinicians, comprising obstetricians, gynaecologists, anaesthetists and others? Their capacity could be diminished very quickly. My question is primarily on emergency department presentations as opposed to planned terminations due to a physical condition or on mental health grounds.

James Reilly (Dublin North, Fine Gael)
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I will make two quick points in response. My colleague, the Minister of State, will also comment.

First, conscientious objection does not apply in an emergency because one has an obligation to save the life of the person in front of one. Thus, the emergency department issue would not arise per se. The other situation mentioned by the Deputy is theoretically possible, but we have to deal with what is real and in front of us. Staff availability is essentially an operational matter rather than a matter for the Bill, so it will be up to each institution to ensure that it has sufficient staff to provide a safe service to all of the people who attend. I have no more to say on the matter.

Alex White (Dublin South, Labour)
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There is a danger of a slight misinterpretation of what we are talking about. Arguably the most important sections in the Bill - certainly the sections that people have been most concerned with or focused on - are sections 7, 8 and 9, which are the substantive sections. What they do, simply - I should not say "simply", as there is nothing simple about it - is to allow for procedures to occur in certain circumstances where there is an onerous test and so on, as we have discussed, but also, it restricts the places in which such procedures are permitted to take place to certain institutions. It simply says that it is only permissible for these procedures to happen at these institutions. People have gone off on a complete tangent talking about compulsion and lists. The legislation is just saying that it is permissible for the procedure to take place but it must take place in these institutions.

With regard to Deputy Kelleher's question on recruitment practices. Hospitals, like every other organisation, must abide by the law of the land in their recruitment procedures, including equality legislation. I have considerable doubt in my mind that a hospital could so order its affairs as to recruit people with certain views and exclude people with other views.

Jerry Buttimer (Cork South Central, Fine Gael)
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I have a list of people who wish to comment and I call Deputy Conlan first.

Seán Conlan (Cavan-Monaghan, Fine Gael)
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With regard to the institutions, I am concerned about what is stated at the end of section 3(1).

Jerry Buttimer (Cork South Central, Fine Gael)
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We are debating section 4.

Seán Conlan (Cavan-Monaghan, Fine Gael)
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I know, but I want to ask about the institutions. I listened very carefully to what the Minister said on Second Stage about ensuring that private clinics could not be included in the Schedule. I am concerned about section 38 of the Health Act 2004. If that last part of section 3(1) was excluded from the Bill under discussion, that would mean that no future Minister could change the Schedule.

Kieran O'Donnell (Limerick City, Fine Gael)
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I have a question on section 4, which deals with the preparation of certification and prescribed forms. Will the Minister elaborate on the certification process?

My questions are also linked to section 19. Certification will apply to procedures that are granted, but will it also deal with procedures that are refused? When does the Minister expect regulations to issue? Where do clinical guidelines fit in and what is their status?

Éamon Ó Cuív (Galway West, Fianna Fail)
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We can discuss the conscientious objection dilemma again when it arises later in the Bill.

I want to make it clear that I have no issue with section 7 or 8. I presume that if there is a real and substantial risk to the life of the mother a doctor is utterly obligated to preserve her life. That has always been the medical practice and it would be outrageous if this were not the case. I do not think anybody would argue with that view. Section 9 creates all sorts of contradictions but we will discuss it later.

Deputy Naughten asked a relevant question. Section 4(1) states:

The Minister may by regulations provide--a) for any matter referred to in this Act as prescribed.

Jerry Buttimer (Cork South Central, Fine Gael)
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We are only debating amendment No. 12.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I am discussing the purpose of the amendment. Section 4(1)(a) gives the Minister the power to make an order and states "for any matter referred to in this Act as prescribed." When the phrase "as prescribed" is used in the Bill, it means the Minister is allowed to make an order on that subject.

I get a bit woolly on the limitations of this legislation. Section 4(1)(b) states: "for any matter that appears to the Minister to be necessary or expedient for bringing this Act into operation." I ask the Minister to explain the breadth of that provision. Section 4(2) states:

Without prejudice to any provisions of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I raised this issue last night and Deputy Éamon Ó Cuív has also articulated it, but it has not been addressed. Significant powers are assigned to the Minister under subsections (1) and (2) of section 4. As I said, I accept that it is not the intention of the current Minister to bring in significant regulations under these provisions. The reality, however, is that once this legislation is enacted, it will be open to any Minister at any future date to introduce fairly significant regulations by order which may be nullified but not approved by the Oireachtas.

I made two points in this regard last night. First, it is bad practice to include such provisions in any Bill. There should always be a requirement for some form of approval, either by way of the mechanism suggested by Deputy Ó Cuív or in accordance with my amendment. Second, in this particular instance, the Taoiseach gave a clear commitment when the Government decision was made in December that we would have regulations in tandem with legislation that we would have the opportunity to consider those regulations. That has not happened. It is imperative that any regulations introduced under this particular legislation are subject to approval by the Oireachtas, whether through scrutiny by this sub-committee or by being laid before both Houses. I urge the Minister, in light of the scale and scope of the powers assigned to him under section 4, either to facilitate my amendment or to undertake to bring forward an alternative wording on Report Stage which reflects the thrust of the proposal.

James Reilly (Dublin North, Fine Gael)
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With respect, Chairman, we covered all of this last night. I am not prepared to have another lengthy debate on issues that were already discussed. With respect to Deputy Éamon Ó Cuív, the Bill was published on 14 June. If he wishes to go through it all and point out where these particular provisions might apply, that is fine. I, however, do not propose to spend the sub-committee's time going through every area where there might possibly be applicability. That is neither a proper nor an appropriate use of the sub-committee's time.

I have been very clear that these regulations apply only to forms and to the issue of the designated hospitals. That is my stated position and it is all I have to say on the matter. We can go around the houses all day if that is what people desire. That is a matter for the sub-committee, but I have no more to say on this issue.

Denis Naughten (Roscommon-South Leitrim, Independent)
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With all due respect to the Minister, I am disappointed that he is not prepared to address the substantive issue I have raised. For the sub-committee's information, the word "prescribed" is used 11 times in the Bill. From the outset, therefore, there are 11 opportunities for the Minister to introduce regulations under subsection 4(1)(a), never mind in regard to the other categories. In other words, there is substantial scope in the legislation for a potentially broad spectrum of regulation. As I said, I am disappointed that the Minister will not agree to comply with the commitment given by An Taoiseach at the time of his announcement last December. I will be pressing the amendment.

Michael Creed (Cork North West, Fine Gael)
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I do not dispute - or perhaps I should say that I do not have the information to dispute - the Minister's assertion that these provisions are really to do with forms and so on. I take it he is referring to the forms that will be used by medical practitioners in the certification process. Will he clarify whether it is envisaged that certification will issue in respect of all applications, whether they result in certifications of entitlement or certifications of entitlement denied?

Éamon Ó Cuív (Galway West, Fianna Fail)
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Section 19, which deals with certification, specifies that a certification "shall be made in the prescribed form and manner". That seems fine. However, it also stipulates that the certification must "contain the prescribed information". In other words, the question of what information is included on the form will be decided by the Minister. This sub-committee would be very interested in having some input into that decision before it is signed off by way of regulation. We are not just talking about name, address and so on; it is a question of deciding precisely what information is or is not certified. There is a great deal of interest in this issue and the members of the sub-committee will certainly want to know what information will be on the form.

The Minister's dismissive response that it is only about a form is a little simplistic. I cannot understand, in the interests of general good practice - Deputy Caoimhghín Ó Caoláin was very eloquent in his comments on this matter - why we insist on bringing all EU legislation, often containing provisions that have no relevance to Ireland, before the relevant committees for scrutiny - there has been a great deal of talk about a role for the Seanad in this regard-----

Jerry Buttimer (Cork South Central, Fine Gael)
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The Deputy should speak on the amendment. He is digressing and repeating points that were discussed last night.

Éamon Ó Cuív (Galway West, Fianna Fail)
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-----while at the same time there is a refusal to put into law a requirement that the relevant Oireachtas committees examine statutory instruments.

Jerry Buttimer (Cork South Central, Fine Gael)
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The Deputy made those points last night.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The point I am making is that the Minister's very dismissive view is particularly disappointing when he could so easily accept the amendment. I realise, of course, that he is getting advice from his officials that it would mean more work for them and that he should instead keep life simple - that legislative scrutiny is not something we really need to take seriously when it comes to Dáil reform.

Jerry Buttimer (Cork South Central, Fine Gael)
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The Deputy should be careful in his remarks about officials.

Alex White (Dublin South, Labour)
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It is totally false to claim that our position on this amendment arises out of that type of advice from officials. Deputy Éamon Ó Cuív was a Minister for long enough to know exactly how the legislative process works. He is also perfectly aware that statutory instruments and orders made under legislation can only be made within the four corners of what is provided in the legislation itself. Deputy Ó Cuív knows that perfectly well, as does Deputy Naughten. It is a little disingenuous to suggest, as the Deputies certainly seem to be suggesting, that orders would be made by the current Minister or a future Minister which would in some way be questionable or would step outside what the Oireachtas is doing in this legislation.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Nobody made that claim.

Alex White (Dublin South, Labour)
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Both Deputies, but Deputy Ó Cuív in particular, know very well that this cannot happen. The Supreme Court has been very clear on several occasions, including a couple of years ago in respect of industrial relations legislation, that the Oireachtas is supreme in terms of making legislation. I am sure all members of the sub-committee are aware of that. I can only wonder, therefore, what is going on here. The provision in section 4 is standard, as anybody can see.

Denis Naughten (Roscommon-South Leitrim, Independent)
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With all due respect to the Minister of State, if he goes back through the Official Report he will see that I have raised the very same issue in the context of every single Bill with which I have engaged. I have been entirely consistent on this issue. Anybody with experience of the Opposition benches knows how frustrating it is when there is no opportunity for debate on a controversial statutory instrument.

This Bill includes 11 specific provisions whereby the Minister may prescribe certain matters by way of ministerial order or regulation. My argument is that these matters should not simply be presented to the Oireachtas as a done deal but that there should instead be consultation with the Oireachtas. This is a very emotive Bill and it is important, especially in light of the comments made by the Taoiseach last December, that we have a mechanism to allow for that type of consultation. It is unfair to suggest that I have some ulterior motive in tabling this amendment. The Minister of State can go through every debate to which I have contributed and he will see that I made the exact same point in every case in regard to the making of regulations.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I wish to respond to what the Minister of State said.

Jerry Buttimer (Cork South Central, Fine Gael)
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I ask the Deputy to be brief in his response.

Éamon Ó Cuív (Galway West, Fianna Fail)
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It will take whatever time it takes. I am very well aware, as a former Minister, of the limitations of what one can do under a statutory amendment. I am absolutely aware of that. However, taking section 19, for example-----

Jerry Buttimer (Cork South Central, Fine Gael)
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We are dealing with section 4.

Éamon Ó Cuív (Galway West, Fianna Fail)
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There might be a wide range of information required, including additional information in the future and so on.

Alex White (Dublin South, Labour)
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The committee will draw up the form.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The committee would be informed what information was proposed in the statutory instrument and that would then delimit what would be in the form. When I was a Minister, I came to the conclusion that draft statutory instruments should be brought into the House for debate. I put that into operation, although it was not a statutory obligation at the time, but I regretted that I did not made it a statutory obligation. I found doing that very useful and found that I got a better statutory instrument at the end than I would have if I had just taken the statutory instrument through without debate. I was told and advised at the time that I was creating extra difficulty for myself and putting extra pressure on staff and so on, but I still believe that if we are serious about legislation - and statutory instruments are secondary legislation - the more we involve the House, the less controversy we will have in the long term. I believe this is a case in which the Minister could accept the amendment, but, like so many things here, it is a case of more hurry, less speed. In the end of the day, the row starts after the statutory instrument is signed. We then have a big row about it, but it could all have been resolved if we just chose a date, got its view of the committee and then put it through.

James Reilly (Dublin North, Fine Gael)
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Deputy Creed raised the issue of the forms and asked whether they will show failed applications. They will not. However, the reviews will all be recorded and the result of each review will be recorded. It would not be feasible or possible to record each application because of how this will operate in reality. I admit that one would like to be able to show how many people applied and whether they were successful or unsuccessful, but there is an issue of privacy. I know Deputy Creed is concerned about this, but the privacy rights of the patient are the concern here. As a doctor, I have some experience in this area and can draw a corollary for the Deputy. If an employer asked me for all the notes for work that I had given somebody over the past three years because he had lost them, I would have no problem doing that and the patient could not really object. However, if the employer asked me how many times the patient had sought a note for work and I had declined, I would be in deep trouble if I provided that information as that would be an invasion of the patient's privacy. Therefore, providing the information being sought here is not doable and would not work.

I understand why the Deputy might like such information to be available. For instance, somebody could come in suicidal following an initial review and assessment and make a request. On this second occasion the consultant concerned might form the opinion that this constituted a real risk and seek a second opinion. Then, perhaps during the course of the second opinion, the patient's situation might change. For that to be recorded would not be allowable under legal privacy rights of patients or under Medical Council guidelines. I could not see that being allowed. I hope this explains the reason not to accept the amendment.

Michael Creed (Cork North West, Fine Gael)
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I raised the issue not out of prurience or to know who the individuals concerned might be. Section 15 makes provision for the reporting mechanism and provides for it to be anonymous. However, in the context of governance and of being in a position to have an informed overview of the effect of the legislation, we need a record. It is not just about the number of applications that have been certified. The certification process will only deal with those who have been granted an entitlement, be it under section 7, 8 or 9. We need the information in the context of being able to say we have an informed overview of the operation. We should be able to say we had X number of applications, of which 5%, 50% or 80% were granted under section 7, 20% under section 8 and X amount under section 9.

The information being sought does not seek in any way to compromise the identities of applicants. It is purely so that we can know the numbers who seek to avail of the procedure, whether they are subsequently granted or refused permission. The information made available should not identify the patients in any way. Provision is made in the review mechanism for the information to be provided in an anonymous fashion. Therefore, in the context of regulations, which one would say is about the forms used, etc., these might be an appropriate vehicle to provide this record. If not, this is something that could be included separately in sections 7, 8 and 9. In order to have the appropriate overview so as to know effectively what we are providing for and the results in terms of availing of the provisions, it would be useful to know how many people applied and were refused. It seems like a contradiction that we will make that provision available on review but it is not being included in the regulations. Perhaps it is in the context of the forms that we should provide for a record of "certification granted" or "certification denied".

Catherine Byrne (Dublin South Central, Fine Gael)
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I am not a member of the committee and had not intended to contribute but I must speak now. Making something up as one goes along is wrong. The Minister is well qualified and I believe that as a qualified doctor he knows in good faith what he must do with this section. We have had enough debate on this issue between last night and this morning. Deputy Naughten said he wanted to press the amendment, so I believe we should vote on it.

Jerry Buttimer (Cork South Central, Fine Gael)
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Thank you. Does the Minister wish to respond further?

James Reilly (Dublin North, Fine Gael)
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No; I am quite happy to go along with Deputy Byrne's contribution.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendment No. 13 has already been discussed.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendment No. 14 has already been discussed with amendment No. 3.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I move amendment No. 14:

In page 8, between lines 27 and 28, to insert the following:

Inevitable miscarriage
7. It shall be lawful to carry out a medical procedure in respect of a pregnant woman in the course of which, or as a result of which, a pregnancy is ended, where --(a) the medical procedure is carried out by an obstetrician at an appropriate institution, and
(b) subject to section 19, a medical practitioner, having examined the pregnant woman, has certified that an inevitable miscarriage is taking place.”.

Jerry Buttimer (Cork South Central, Fine Gael)
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Acceptance of amendment No. 15 will mean the deletion of section 7.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I move amendment No. 15:

In page 8, between lines 29 and 30, to insert the following:
“7. (1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, an unborn human life is ended
where--
(a) the medical procedure is carried out in accordance with regulations under this section,
(b) the unborn is potentially viable outside the womb, the medical procedure employed shall not impede all efforts to sustain life after the complete emergence of the human life from the body of the woman,
(c) regulations under this section shall not contravene current evidence based on medical treatment, or
(d) regulations made under this section shall not come into force without being laid before and approved by each House of the Oireachtas.”.

I wish to make specific reference proposals in amendment No. 15. Subsection (d) would allow for approval of the regulations by both Houses of the Oireachtas. This would give the Oireachtas an affirmative role with regard to any regulations to be published. My proposed subsection (c) provides that regulations under the section shall not contravene current evidence-based medical treatment. The consistent evidence the committee received from the witnesses in the hearings did not give any substantive evidence to support the inclusion of suicidal intent in the legislation. I refer the committee to a typographical error in that the word, "on" should not be included. If the amendment is accepted I hope that word can be removed. The Minister in earlier contribution made the point that there is no right to terminate a potentially viable foetus and I accept his point. The Minister of State, Deputy Alex White also clarified that point. This particular phrase in my proposed subsection (b) ensures that this actually happens and is the reason I have included it. If this amendment is not accepted - which is probable - I would hope the Minister would consider the wording in my proposed subsection (b) to be included in the Bill. I have tabled this proposal because of genuine concerns raised by psychiatrists who gave presentations to the committee hearings. Professor Veronica O'Keane made the point that if a woman presents to her with suicidal ideation or suicidal intent she has no choice but to believe that woman and deal with it on that basis because there is no way of disproving what the woman says. That is the reality of the situation.

I accept the evidence based on UK research which shows that one pregnant woman in every 500,000 will die by suicide. However, the difficulty is that quite a substantial number of women can have suicidal ideation and suicidal intent during the course of pregnancy. Research I referenced during Second Stage indicates that in the developed world it can be somewhere between one in eight and one in three, which is a substantial number of pregnancies.

Ciara Conway (Waterford, Labour)
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I speak against this amendment and dispute what Deputy Naughten stated. I heard very different evidence from the same experts he quoted. Dr. Veronica O'Keane clearly stated in her testimony that crisis pregnancy is the number one risk for teenage girls in terms of suicidality; there is no disputing that. Dr. Anthony McCarthy, the president of the College of Psychiatrists, who I understand is involved in maternal death inquiries - which are done in an anonymous way - would also say there are pregnant women who die perhaps for reasons of suicidality, but the results of inquiries are often recorded as open verdicts because of family considerations and sensitivities. In addition, the chief medical officer of the Department of Health, Dr. Tony Holohan, stated that although this is rare, it happens and we must legislate for it. I dispute Deputy Naughten's statement and oppose the amendment. I may speak again later.

James Reilly (Dublin North, Fine Gael)
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As mentioned, the regulations only pertain to the prescribed forms and therefore will have no bearing on the operation of Chapter 1 of the Bill. All the required principles and policies for the operation of the Act, including the provision to ensure that the right to life of the unborn is vindicated where practicable, have been enshrined in the proposed primary legislation.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I will not tease this back and forth. We have all debated these issues and know exactly what they are in this case. I have articulated my concerns in this regard and for that reason I will press the amendment.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will make one brief comment, if I may. I am concerned about the construction of the amendment, even in terms of Deputy Naughten's stated intent, which I do not question. If one follows the construction through, in view of the fact that the phrasing of section 7(1) must be capable of being read consistently into each of the subsequent subsection paragraphs (a), (b), (c) and (d), the amendment is not fit for purpose as presented, with no disrespect to the Deputy. In regard to (b), the short read would be "it shall be lawful to carry out a medical procedure in the course of which an unborn human life is ended where the unborn is potentially viable outside the womb". That is not what the Deputy suggests but it is open to that interpretation. There is a great requirement for exactitude and care in this Bill, which has been employed, but this wording will not work. What the amendment states is not the Deputy's intent but is open to that interpretation and therefore it is one I cannot support.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I acknowledge Deputy Ó Caoláin's comment. I do not have access to the Parliamentary draughtsman and had no resources for drafting the text but I accept his point.

Jerry Buttimer (Cork South Central, Fine Gael)
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If the Minister's amendment No. 16 is agreed, amendments Nos. 17 to 19, inclusive, cannot be moved. As amendments Nos. 17 to 19, inclusive, are physical alternatives to amendment No. 16, by agreeing the latter the Minister is deleting text, and therefore the members who are proposing amendments Nos. 17 to 19 cannot amend a text that has been deleted. Amendments Nos. 17 to 19, inclusive, are physical alternatives to amendment No. 16, and amendments Nos. 36, 37, 60 and 62 are related to amendment No. 18. Amendments Nos. 16 to 19, inclusive, 36, 37, 60 and 62 will be discussed together.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 16:

In page 8, to delete lines 31 to 35, and in page 9, to delete lines 1 to 6 and substitute the following:“(1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn
human life is ended where--

(a) subject to section 19, two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that--

(i) there is a real and substantial risk of loss of the woman's life from a physical illness, and
(ii) in their reasonable opinion, that risk can only be averted by carrying out the medical procedure,

and
(b) that medical procedure is carried out by an obstetrician at an appropriate institution.”.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 20:

In page 9, line 7, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 21:

In page 9, line 11, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendments Nos. 22 and 43 are related and will be discussed together.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I move amendment No. 22:

In page 9, line 12, after “shall,” to insert “only”.

James Reilly (Dublin North, Fine Gael)
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As currently drafted, it is clear that a woman's consent must be obtained before her GP can be consulted. The addition of the word "only" as proposed by Deputy Healy is superfluous and therefore I cannot support these amendments.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Are we dealing with amendment No. 18?

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendment No. 18 fell when the Minister's amendment was agreed. As I outlined in my remarks, amendment No. 16 was a physical amendment that deleted text so the subsequent related amendments were no longer relevant.

Amendments No. 23 to 26, inclusive, and amendments Nos. 44, 63, 64 and 80 are related and will be discussed together.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I move amendment No. 23:

In page 9, line 12, after “consult” to insert “, with appropriate urgency,”.

I refer to amendment No. 80.

James Reilly (Dublin North, Fine Gael)
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I have received legal advice to the effect that the legal meaning of the word "forthwith" equates to "immediately". This qualification, as well as the proposed phrases, "with appropriate urgency" and "immediately" is unnecessary as this section uses terms such as "shall make arrangements" which render such qualifications superfluous.

As Deputy Ó Caoláin pointed out, doctors fully understand the need for urgency around treatment. To suggest that we would set this out in law is to be prescriptive about doctors' medical practices. Everybody knows that delayed diagnosis can make a practitioner culpable in law for negligence. If I find out that a patient has appendicitis and the appendix bursts because I did not operate until 24 hours later, I know I will be in serious trouble. It would be the same if I know that a patient is having a heart attack and refuse to act on it for 24 hours. The wording is superfluous, although I understand why the Deputy would want to stipulate urgency out of concern that some doctors might delay. I do not believe that adding these words would have that effect. It is clear from medical guidelines that one must always act with expediency. Just because a physician has a conscientious objection that does not mean he or she can wait a week before referring the patient elsewhere. Once a conscientious objection has been made known, the individual concerned must act with all speed to refer the patient to an appropriate physician who can provide the necessary care.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I have tabled amendments Nos. 24 to 26, inclusive, which are similar to Deputy Ó Caoláin's amendment No. 23.  I understand the point that the Minister is making but we want to ensure there is appreciation of the urgency required in dealing with these matters.  Inserting "forthwith" would indicate the need for urgency in dealing with this section.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I want to speak in favour of what has been argued.  I have always been of the view that in urgent situations nothing should delay a decision taken in good faith and based on reasonable opinion to save the life of the mother.  In regard to sections 7 and 8 and the physical threat to the mother's life, while no decision is absolute, a clearly identified threat can be evaluated.

  If one is faced with that kind of situation, one has to act quickly.  It is a matter of great concern that on one occasion in Galway, issues were not addressed in a satisfactory manner.  I understand, however, that the usual practice in this regard has been of the highest calibre.  Is it currently normal practice to consult a GP where practicable?  I accept that if it is not practicable one gets on with the job and does what is required.

  Given that we are dealing with the prospect of a real and substantial physical risk to the life of the mother where the only solution is to carry out a medical procedure, I cannot understand why anybody would raise a conscientious objection.  Why are we allowing for a conscience clause in such instances?  It appears to defy logic and it goes against standard medical practice in this country.  I cannot understand how any doctor would have a conscientious objection to saving a woman's life from a physical threat.  The conscientious objection provisions cover sections 7 and 9 as well as section 8.  The dilemma is in respect of section 8.  For section 7 to apply the threat to life has to be physical and significant.  It seems to me that good medical practice and ethical guidelines would require the doctor to save the mother's life and if as unintended consequence it is not possible to save the unborn life because it is unviable, that is perfectly permissible under current practice. I have never heard of a doctor having a conscientious objection to that.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Deputy Ó Cuív made a reasonable point.  

Alex White (Dublin South, Labour)
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Deputy Creed also made some reasonable points.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I did not hear Deputy Creed's points.  In the case of Savita Halappanavar the issue of time and urgency was a factor.  Where disputes or uncertainty arise, time becomes a factor.  There is great value in underlining in the legislation the need for urgency to ensure any life-saving procedure or consultation required is expedited.  That is important in light of events that have occurred previously and the possibility for delay in the grey areas that will be encountered.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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In the Minister's reply, he sought to suggest that the urgency was in the text of section 7. Nowhere is that reflected in the section, in my opinion. I am genuinely concerned about this, and I am a Deputy who has already declared his support for the passage of this legislation. The whole intent of the amendments is to assist in strengthening the Bill and making it as assuring as possible. In his reply, the Minister focused solely on the lead clinicians - namely, the consultants - but this Bill is also about giving assurance to women who might find themselves in such a situation. It is about delivering clarity and certainty to women at risk in the course of their pregnancy. We can make all the assumptions we wish in respect of the speed with which front-line service providers will respond to given situations that present themselves. We can quote ad nauseam examples in which that has not been the case, including the tragic case of Savita Halappanavar.

There is a responsibility on us to reflect that it is the intention of legislators that consultants are required to respond with the necessary urgency, because that is what is involved. We are talking about lives at risk in respect of physical illness and the threat of suicide. In each of those cases, and as I have reflected later in amendment No. 80 in respect of conscientious objection, somebody who is making a case of conscientious objection cannot sit and twiddle over it. If that is his or her position, he or she must act immediately. That is not in any way to seek to undermine anything in the respective sections that I am addressing in the three amendments of this grouping. I respectfully appeal again to the Minister to accept that this is indeed what citizens and what women would expect from this legislation. I again urge his acceptance and the select committee's support for these amendments.

James Reilly (Dublin North, Fine Gael)
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In order to correct the record and for the purposes of absolute clarity, conscientious objection in medical practice is well understood and is provided for within the medical guidelines. It is acknowledged in section 7 of this Bill, with deals a physical threat of illness which is not immediate, and in the case of a risk of suicide. It is not provided for in section 8, where the threat is immediate and is an emergency and the doctor must deal with the patient in front of him or her to save that person's life.

With respect to Deputy Ó Caoláin, I never said expediency was mentioned in the text. I said it was in medical practice. Furthermore, with respect, I do not believe the Deputy was listening to me when I made it very clear-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Disgraceful.

James Reilly (Dublin North, Fine Gael)
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-----that medical practice dictates that one act with expediency. One does not have the luxury of sitting there twiddling one's thumbs if there is a conscientious objection. If a conscientious objection is made known, then one must act with all reasonable speed to ensure the patient is transferred to another doctor who can meet the patient's medical need.

We are stipulating in law for the first time Deputy Ó Cuív's contribution regarding consulting the GP. The literature is scattered with legal cases on malpractice where this did not happen, and had the consultant picked up the phone to the GP, the outcome might have been different. We are stipulating here that this action must be taken where it is practicable. We know, for example, that some women do not have GPs, or that they may not want to consent to that. They may also face a problem in which a GP is ill or unavailable or on a prolonged sojourn out of the country.

While I fully subscribe to the sentiment of these amendments, they are superfluous and I urge members of the committee not to support them.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I listened to the Minister very carefully, as I have done throughout this legislation since its proposal, during its presentation as heads of a Bill and right through to its publication. I am very clear on everything he said, and I repeat that nowhere in section 7 does it reflect the urgency that I, as a citizen, and on behalf of those I represent, would expect to see expressly inserted. I do not see in words the assurance that we expect from the passage of this Bill, and that is the exercise here. The purpose of the Bill is to give assurance, clarity and certainty, and I believe that citizens and especially women who may find themselves in this situation are deserving of clear, expressed intent. In no way am I questioning the overwhelming majority of those practitioners who would act as the Minister rightly describes, but where there is any prospect of dilatoriness or failure to act with the urgency and immediacy that I believe would be required in these situations, these amendments improve that certainty for those who must act accordingly, and they provide assurance to women. These are the areas that I always thought the Bill sought to address.

The amendments are reasonable. They have a clear purpose. I believe they reflect the views of the overwhelming body of legislators in these Houses, and I will respectfully ask the Minister to reconsider and to accept their inclusion. A choice is being presented as to how it can be conveyed. I happen to believe that the insertion of "appropriate urgency" in amendments Nos. 23 and 44 and "immediately" in amendment No. 80 achieves this within the Bill as constructed. I would appreciate the Minister's acceptance. I did not expect or wish to see any division on this because I know that committee members broadly share this view.

Catherine Byrne (Dublin South Central, Fine Gael)
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I have sat through these hearings and I must say that the excellent interpretation of the Bill by Deputy Ó Caoláin throughout really blew me away. What the Deputy is saying is lay person's language.

Can the Minister read out the first part of his response again? He stated that this could not be put in due to something in law, and I would like to hear that again in order to understand it. My heart believes what Deputy Ó Caoláin is saying but my head must think differently.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The Minister's explanations on consulting general practitioners are reasonable. There is an obligation to act expeditiously in all of these issues. I accept these provisions have been drafted professionally to take all of this into account.

Where there is a real and substantial risk to the life of the mother which can only be averted by the termination of the pregnancy, have there been any cases where a GP had a conscientious objection to providing the termination? This would seem to contradict or be superfluous to section 7. Section 9 is a different kettle of fish as it deals with a different issue.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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What we know is that up until now the criminalisation of certain medical practices meant there was a chill factor. Frankly, the very draconian 14-year prison sentence could still act as a chill factor which could compromise medical objectivity when making decisions in these difficult circumstances. I do not accept the Minister’s assurances on this. He does not acknowledge that time delay can be a factor. It was a factor in the Savita Halappanavar case. I do not know why the Minister finds it amusing but it was. Against that background, it is entirely right and appropriate to give assurance to women. After Savita’s case, women would be justified in being fearful as to whether they would get appropriate treatment if their life were at risk. These amendments will provide assurance to women and legal underpinning to the necessity to move quickly in such situations. I accept the majority of doctors would respond quickly but delays could occur. I cannot see what basis the Minister has for refusing these provisions. It cannot do any harm and it might do some good.

Ciara Conway (Waterford, Labour)
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I do not believe the message from this committee should instil fear in women who are engaging with maternity services. We need to be careful how we choose our words in what is a sensitive issue for half the population.

Deputy Ó Cuív asked if there have been occasions where a doctor has had a conscientious objection to providing a termination when there is a real and substantial risk to the life of a mother. What he is failing to look at is that it may not be immediate or imminent. A woman could be presenting with the physical complication but it may not be immediate or imminent. Accordingly, the doctor in that case could conscientiously object. I hope that with the passing of this legislation, a doctor in such a case would then refer it to a colleague who would be able to do it in a timely way to save the mother’s life.

Regina Doherty (Meath East, Fine Gael)
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I wish to concur with Deputy Conway on Deputy Boyd Barrett’s comments. This legislation is for someone like me, Deputy Conway and all child-bearing women. The last thing we need on our mind is a worry whether a doctor will immediately intervene. This legislation gives legal clarity when there is a doubt over how a doctor can intervene with regard to the risk to the life. It is not about whether they will or will not. The language we use at this committee is so crucial.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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The Deputy is politicising this.

Regina Doherty (Meath East, Fine Gael)
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I am not politicising it.

Jerry Buttimer (Cork South Central, Fine Gael)
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Can we speak through the Chair? We can discuss this matter moderately and we will get through it sensibly.

Regina Doherty (Meath East, Fine Gael)
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I will be moderate. Words are extremely important and how we use them in the committee is important. Half the women in this country are of child-bearing age. How we reflect on what we are doing with this legislation is extremely important.

Catherine Byrne (Dublin South Central, Fine Gael)
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Will Deputy Boyd Barrett withdraw his remarks about the Minister not fully understanding urgency? That is very wrong for the Deputy to say. The Minister has been a medical professional for a long time.

Jerry Buttimer (Cork South Central, Fine Gael)
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The request has been made.

Catherine Byrne (Dublin South Central, Fine Gael)
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We are not here to insult people. We are here to guide people. A remark like that brings this committee down and it needs to be withdrawn.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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It is unfortunate people are choosing to score political points.

Jerry Buttimer (Cork South Central, Fine Gael)
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To be fair to committee members, we do not play politics in here.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I made a point which I stand over. The context is the Savita Halappanavar case where time and delays were an issue. It is reasonable to point to that and say women would have concerns and fears. I said the Minister was not acknowledging the fact that this fear of delay was a legitimate concern.

Éamon Ó Cuív (Galway West, Fianna Fail)
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All of us are concerned at what happened in the case of Savita Halappanavar. However, we must examine the reports into the case and ensure procedures are put in place so that it would not happen again. Obviously, there was a real and substantial risk to her life and the intervention did not happen in time.

Will the Minister accept maternal care has been traditionally of a high standard in this country and, where necessary, interventions have taken place? Will sections 7 and 8 confirm medical practices which have delivered a very high level of maternal care and care for the unborn in our hospitals?

James Reilly (Dublin North, Fine Gael)
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Deputy Catherine Byrne asked me to read the first part of my response again. I am happy to do so. Legal advice has been received to the effect that the legal meaning of the term "forthwith" is "immediately". This qualification, like other proposed phrases such as "with appropriate urgency" and "immediately", is unnecessary because this section of the Bill uses terms such as "shall make arrangements" which render such qualifications superfluous for the reasons I have outlined. That is why I have urged the members of the committee not to support these amendments. The word "immediately" has a very clear meaning in law. Other things may need to be done more urgently before this needs to be done. Those things might take just ten, 15, 20 or 35 minutes.

The Minister of State, Deputy White, will speak about the nitty-gritty legality of what these terms mean, and what they might mean in practice. That is the problem. I have no problem with the sentiment behind these amendments. I know they are well intentioned and seek to send a message, but in so doing they could cause serious problems for medical practice. We will all accept that in 99% of cases, medical practice in this country is excellent and is world-leading. This small country produces doctors and nurses who are the best in the world. That is proven by dint of the fact that when they leave this country, they go to the best of the best places and excel there.

Deputy Ó Cuív asked whether we know of a termination of pregnancy that ever took place anywhere, where conscientious objection was used in this regard. I can say I do not know of such a case, but that does not mean it has not happened. I do not profess to have my hand on every situation in this country or elsewhere in the world. Without being in any way disrespectful, it is an unanswerable question. I know what the Deputy is trying to say. The Medical Council guidelines are very clear and they cover this. Clearly, these issues have been raised before. They would not be in the medical guidelines if they had not been raised before.

I will not get into precisely what Deputy Boyd Barrett said or did not say. His statement that these provisions, as explained by the legal meaning of the terms used, "cannot do any harm" is far from the truth. I know he might believe they cannot do any harm. They have a clear meaning in law. I will rephrase what others have said. The purpose of this Bill is to reassure people; most importantly, the women of this country who use our health services, but also the medics who have to provide those services. That reassurance will come through the clarifications we are giving around the law now.

I will restate what I said last night - we are conferring no new rights on anyone and we are not taking any rights away from anyone. We are doing something that I, as a Minister, as a citizen and as a doctor, believe we must do. We must clarify for women what is available to them in this country and, most importantly, how they can access it. We must clarify for the doctors and nurses who provide this care what is legally permissible and what they are obliged to deliver. I think that is at the core of what we are doing. If we keep that to the fore, we will realise that while some people are very uncomfortable with this and other people do not feel it goes far enough, this is what we must do.

I have to make the point that this process was in train before the terrible and tragic event in Galway. Equally, I have to say that stipulating in law that something should be done "immediately" or "with appropriate urgency" would not have changed the outcome. The clarity we are trying to bring to this would have changed the outcome, in the sense that any delays occasioned by a lack of certainty would not have come into play. As we know from the reports we have received, an awful lot more than that was involved in the Galway case. I do not want to make any further comment on it other than to say that the HSE report was comprehensive. At an early stage during the course of the compilation of the report, the chairman, Sir Sabaratnam Arulkumaran, made certain recommendations that were immediately acted upon. Further to that, we were already developing an early warning score system for the maternity services. We had brought in such a system for adult services. We were the first country in the world to do so. We have now done it for maternity services as well. We are working on a system for paediatric services. They are all different because the biology, the parameters, the biochemical markers and the clinical findings are different in all cases.

I would like to confirm what Deputy Ó Cuív said. I believe we have one of the highest standards of maternity care in the world here. I say that on the basis of perinatal mortality and survival rates. I commend the excellent men and women who have delivered that service, which I commend to the women of this country. No matter how good things might be, I would never say they could not be made better or safer. Better systems can be put in place, as has happened in the airline industry, to ensure the wrong thing to do becomes the most difficult thing to do. In some situations in the past, the wrong thing to do was made easier because of the system that existed. I could give examples of that, but I do not think it would be productive for me to do so at this forum. I want to reassure everybody that I fully respect the intent behind these Opposition amendments. The legal situation and the implications for practice are such that I do not believe the amendments should be supported or accepted.

Alex White (Dublin South, Labour)
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I want to endorse absolutely what the Minister has just said. It captures the point very well. There is no doubt in my mind that Deputy Ó Caoláin's amendments are very well motivated. I do not say that in a condescending way. No citizens - politicians or otherwise - would regard delay in clinical practice as acceptable. It horrifies us all. In some cases, it has the most dreadful outcomes. We can all understand and see that.

It comes back to what we think we can do and what our responsibility is as legislators. As the Minister has said, when we are setting out the law as politicians, that does not involve us stepping into the clinical environment. It cannot involve us stepping into the clinical environment for the exact same reasons I gave when we were debating Deputy Mulherin's query about why we cannot include in the legislation a requirement to exercise best practice. I made the point that such a provision would involve including in the legislation a further definition of what best practice entails, and that would take us into a whole new area of legislating in detail for what constitutes best practice. Best practice is set out, supervised and changed when necessary by the professional bodies, including the Medical Council. There is a statutory basis for that. We do not step into the clinical environment. There must always be an arm's length between the Government and the Oireachtas, on the one hand, and the actual clinical practice, on the other hand. That must be the case even in these really very difficult and delicate areas. There needs to be a high level of trust.

I would like to comment on the issue of delay, which has come up again. I believe that acting in a timely fashion, quickly and expeditiously is a fundamental aspect of professional medical practice. I am reminded of what we were saying last night. I would regard all doctors as having a requirement to act in accordance with best medical practice, without that needing to be included in legislation by means of the use of certain words. All doctors have to apply best medical practice and all doctors have to act in an expeditious manner. Time is of the essence in clinical practice. It seems to me that if we include this in legislation, we would risk it having the opposite effect. It would almost raise - I am trying to put this in a way that does not misrepresent what I want to say - the possibility that the Legislature has a doubt in some way as to the likelihood of best medical practice, or acting in an expeditious manner, actually occurring. I think that would be unfortunate and wrong.

I agree with what Deputy Ó Cuív said. He is absolutely right about the very high standards of care that exist throughout our hospital system. It is not the case that the Oireachtas has prescribed a certain method or rule that a doctor should follow. We have a statutory regime, through the Medical Council. We have reliable professional bodies that uphold these standards. We also have laws. People have the option of bringing cases to court. Medical negligence cases are brought when things unfortunately go wrong. We have a very strong legislative and statutory infrastructure. We have other ways for people to vindicate their rights if things go wrong, as they unfortunately do in a small number of cases.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Is the intention of sections 7 and 8 to confirm and clarify current best medical practice as is the situation under Article 40.3.3° in respect of physical risk? Do they seek just to clarify rather than to change it?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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There will be no meeting of minds given the positions that the Minister and Minister of State have taken on the amendments being required or not. I take the view that the Bill is there to address not only those who are entrusted with clinical practice making the decisions but also to address the greater body of citizens, especially women. That was most certainly large in my mind when drafting the amendments I have tabled. I suggest that, without any further beating around it, we should move to make a decision on these amendments and move on to the later sections.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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The Minister of State, in dealing with this matter, indicates that we are not in a position to instruct medical practitioners or to interfere in best medical practice. The amendments that I have tabled are administrative amendments. They do not seek to instruct a medical practitioner. If the Minister of State reads the amendments and the section we are referring to, "forwarding forthwith" or causing to be "forwarded forthwith" the section 7 certification to an appropriate institution and "(b) to make forthwith such arrangements as may be necessary" he will see that these are matters of administrative action and nothing else.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Deputy Healy has made an important point. There is a disagreement about this but the Minister and Minister of State have made a reasonable point about not interfering with-----

Jerry Buttimer (Cork South Central, Fine Gael)
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I apologise for interrupting the Deputy but there is a vote in the Dáil.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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-----best medical practice and being too prescriptive. We have made a reasonable point about the need to underline urgency. If the Minister accepts the sentiment he might consider some way of addressing both those concerns, for example one could insert after if practical, "and with due regard to the urgency of the situation".

Jerry Buttimer (Cork South Central, Fine Gael)
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I propose in the light of the fact that there are two votes in the Dáil, we suspend the sitting until noon. Is that agreed? Agreed.

Jerry Buttimer (Cork South Central, Fine Gael)
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We are in public session. Amendment No. 23 was lost. Amendment No. 24 was discussed with amendment No. 23.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendment No. 27 in the name of Deputy Kelleher has been discussed with amendment No. 6.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I move amendment No. 27

In page 9, between lines 22 and 23, to insert the following:“(5) Where the unborn may be potentially viable outside the womb, every effort must be made to sustain its life after delivery.”.

Jerry Buttimer (Cork South Central, Fine Gael)
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In the absence of Deputy Ó Cuív I am calling the question.

Michael Creed (Cork North West, Fine Gael)
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This section is one of the areas of relatively little contention. On foot of the expert view report what struck me was that no accurate statistics were available in respect of the number of medical terminations in Irish maternity hospitals. Arising from section 7 of the Bill, there is provision for the reporting of certified entitlement to terminations and the appropriate institution will be reporting to the Minister. That will be an improvement.

Reference to the excellent level of care in Irish hospitals is acknowledged. It was distasteful when outside parties commenting on the tragic circumstances of Savita Halappanavar's death raised the correlation between it and the level of care in Irish hospitals. In regard to that particularly difficult case, we will not know the number of cases in which a person may have sought a termination but was denied it. I think that is a weakness in arriving at the overall picture. Will the Minister comment on it please?

In line ten of page 9, section 7(2)(b) states: "the other shall be a medical practitioner of a relevant speciality." I raise this point in the context of the smaller maternity units around the country in which two medical practitioners are required to have certified the procedure. Would it not be appropriate for the wording to be tightened up to reflect that the "relevant speciality" is a specialty relevant to the pregnancy woman's medical circumstances? It may be the case that a woman in one of the co-located maternity hospitals will have at her immediate disposal, all of the relevant medical specialties that are necessary to care in a comprehensive way for a woman who might present with difficulties in which the risk of the loss of her life emerges. It might be the case in one of the smaller units that they do not have oncology, neurology or the medical specialty that may impinge on her life. It might be appropriate to change that wording to a specialty relevant to the pregnant woman's medical circumstances rather than just a - - - -

James Reilly (Dublin North, Fine Gael)
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In the interests of speed will the Deputy look at the definition of "medical speciality" in section 2 as it is defined exactly as he has outlined on the very last line of page 6.

Jerry Buttimer (Cork South Central, Fine Gael)
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Others have indicated. I call Deputies Boyd Barrett, Naughten and Healy.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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On the section.

Jerry Buttimer (Cork South Central, Fine Gael)
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I ask members to keep their contributions tight.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I will do that.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I wish to make a brief point on section 7 in regard to compiling the figures. It appears that there will not be a differentiation between an induction and a medical abortion, as may be required under the terms of the legislation. It is normal practice in the third trimester to talk about an early induction. That is usually the procedure involved. What the Minister has outlined to us in compiling the figures in regard to section 7 does not actually provide for a differentiation-----

Jerry Buttimer (Cork South Central, Fine Gael)
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Is that included in the amendment?

Denis Naughten (Roscommon-South Leitrim, Independent)
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No. The point I am trying to make to the Minister is that there is a need for differentiation between an induction and a medical abortion in how the statistics are compiled. In the third trimester the normal medical procedure involves an induction and an early cessation of the pregnancy rather than an abortion. At earlier stages different procedures are involved. The statistics should differentiate between actual medical abortions and early deliveries. Provision needs to be made to differentiate between the two categories.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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The Minister has said on numerous occasions - I agree with him - that the Bill is about providing clarity for women and medical practitioners. I think he said last evening that we should use the terminology of the Constitution, the X case and the expert report. In relation to the tests to be applied, the report of the expert group on the judgment in the X case, at page 30, paragraph 6.2, reads:

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 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.

James Reilly (Dublin North, Fine Gael)
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The amendments proposed by Deputy Seamus Healy and some other amendments which I have dealt with already apply throughout the Bill and would add additional wording in respect of the nature of the risk to indicate that while it must be real and substantial, it does not need to immediate or inevitable. The amendments are unnecessary because section 8 provides for circumstances where the risk to the pregnant woman is immediate and, therefore, by default it is addressed in sections 7 and 9. I, therefore, urge-----

Jerry Buttimer (Cork South Central, Fine Gael)
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We are on section 7. We have dealt with the amendments, but I will go back over them again.

James Reilly (Dublin North, Fine Gael)
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What I am saying is that the amendments are unnecessary. I fully acknowledge what Deputy Seamus Healy has said about the Supreme Court's judgment in the X case, that the risk does not need to be either immediate or inevitable. As a consequence of ministerial amendment No. 16, amendments Nos. 17 and 18 fell.

Perhaps I can refer to my notes in dealing with the other contributions made. Deputy Denis Naughten asked about the differentiation between induction and a medical procedure. Of course, one would argue that an induction was a medical procedure. One can argue the difference between surgical procedures and medical procedures. However, the judgment in the X case is not specific in this regard. It refers to a termination of pregnancy, whether it be medical or surgical, and mentions termination, as opposed to what some refer to as abortion, which others believe is destruction. In the way in which the Bill is worded, it is clear that the termination of the pregnancy must be done having every regard to preserving the life of the unborn. At this point I do not see the necessity to differentiate between the two.

In regard to the notice of failed application referred to by Deputy Michael Creed, we discussed the whole difficulty in this area earlier. Let me give a few scenarios. If a lady is suicidal and approaches a psychiatrist, having been referred by her GP, he or she will assess the risk and after a week form an opinion on whether this is really a serious risk and that in his or her opinion she should or should not be certified. She seeks a second opinion and during the course of the second week things change. Let us look at the scenarios. First, she may have had a miscarriage. Do we report this? Second, she may have had a change of heart and, third, the psychiatrist may have decided that it was not appropriate. The first psychiatrist who had formed the original opinion may be of a similar mind and another week having elapsed, things may have changed. I do not believe it is practical to report in such situations. I have had long conversations with certain other members in this regard.

Michael Creed (Cork North West, Fine Gael)
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I am thinking that the suicide issue is the most serious one.

Kieran O'Donnell (Limerick City, Fine Gael)
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In general.

James Reilly (Dublin North, Fine Gael)
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Exactly. I do not believe it is practical and do not see how it would work. There would be huge issues around privacy and doctors would object hugely in terms of interference in the doctor-patient relationship. One can argue and take a different view as a legislator - I accept that - but I do not see how it would work. As such, I would not be prepared to accept an amendment.

Michael Creed (Cork North West, Fine Gael)
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I accept that and do not wish to engage in an argument with the Minister on the issue, but it is ironic that it is provided for under the review mechanism, not in the initial process.

James Reilly (Dublin North, Fine Gael)
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That is much more practical because an application will have been made and certified. A review will be sought and it is the woman's prerogative to so do. In the other case she has not given her consent for all of this information to be made available and I believe it would have detrimental effects on the doctor-patient relationship if that were to be the case.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I do not want to prolong the discussion, except to say that the Minister's response to the point that I and Deputy Seamus Healy have raised is inadequate. The Supreme Court felt it important enough to put in this important qualification in terms of what represents a real and substantial risk to the life of the woman. They felt it was necessary to clarify that such risk must not be inevitable or immediate. That, as the Minister will be aware, is a very important qualification and really speaks to the uncertainty about what point one decides that a woman's life is really under threat. This qualification, put in by the Supreme Court, is erring on the side of caution in relation to a woman's life and it is right and proper that it should do so. In this section and throughout the Bill, this is a significant inadequacy in the safeguards for a woman's life. The Minister might not accept the amendments now but I would urge him to consider what we have said. We will be returning to this in the other sections and on Report Stage.

James Reilly (Dublin North, Fine Gael)
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I am always happy to consider what has been said but I must advise Deputy Boyd Barrett that we consulted the Attorney General on this very point. She stated it was superfluous and unnecessary and would lead to complications within the Bill as one would then have to go down the route - which the Minister of State, Deputy White, has already mentioned - of defining what "immediate" and "inevitable" mean, etc., and then one is really into Pandora's box. My best legal advice is that such wording is not necessary and it is not wise to put it into the Bill. I hope Deputy Boyd Barrett will accept my bona fides on that. I am quite happy to go back and consider further, but I must advise Deputy Boyd Barrett that I doubt the advice will change.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendment No. 28 is in the name of the Minister. If amendment No. 28 is agreed, then amendment No. 29 cannot be moved. Amendments Nos. 28 and 30 are related. Amendment No. 29 is a physical alternative to amendment No. 28, and amendment No. 61 is related to amendment No. 29. Amendments Nos. 28 to 30, inclusive, and 61 will be discussed together.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 28:

In page 9, to delete lines 24 to 34, and substitute the following:"(1) Notwithstanding the generality of section 7, or any determination made or pending pursuant to section 13 of an application under section 10(2), it shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where--

(a) a medical practitioner, having examined the pregnant woman, believes in good faith that there is an immediate risk of loss of the woman's life from a physical illness,
(b) the medical procedure is, in his or her reasonable opinion, immediately necessary in order to save the life of the woman, and
(c) the medical procedure is carried out by the medical practitioner.".

Denis Naughten (Roscommon-South Leitrim, Independent)
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I wish to refer to my amendment, No. 15, regarding my definition in subsection (1)(b). I may come back on Report Stage with an amendment to that.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 30:

In page 9, line 38, to delete “subsection (1)(b) and (c)” and substitute “subsection (1)(a) and (b)”.

Jerry Buttimer (Cork South Central, Fine Gael)
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Is Deputy Naughten opposing the section?

Denis Naughten (Roscommon-South Leitrim, Independent)
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My opposition to it was related to amendment No. 15. I do not oppose section 8.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendment No. 32 in the name of the Minister. If amendment No. 32 is agreed, amendments No. 33 to 37, inclusive, cannot be moved. Amendments No. 33 to 35, inclusive, are physical alternatives to amendment No. 32; amendments No. 48 and 53 are related to amendment No. 33; and amendments Nos. 38 to 54, inclusive, are related to amendment No. 34. Amendments Nos. 32 to 35, inclusive, 38, 48, 53 and 54 are related and will be discussed together.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 32:

In page 10, to delete lines 4 to 14, and substitute the following:"(1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where--

(a) subject to section 19, three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that--

(i) there is a real and substantial risk of loss of the woman's life by way of suicide, and
(ii) in their reasonable opinion, that risk can only be averted by carrying out the medical procedure,

and
(b) that medical procedure is carried out by an obstetrician at an appropriate institution.".

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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As the tabler on behalf of Sinn Féin of amendment No. 34, I wish to speak to this. The amendment seeks to place the requirements in relation to medical practitioners vis-à-vis section 9 on a similar basis to that applying in section 7 - that is, two medical practitioners. The view behind the proposition is that the requirement for three medical practitioners in section 9 is unnecessary and unworkable and will of itself be a discouragement to presenting in the normal course within the Irish hospital system. This will add to the sad and continuing exodus of many thousands of Irish women for terminations outside this jurisdiction. It is believed that reducing the number from three to two will ensure there is parity between physical and mental illness, a matter my colleagues feel strongly needs to be affirmed. For too long, a distinction has been made with regard to mental health as against physical health and the argument is that there should be equal respect and understanding of the situations that apply and of the qualifications and professional capacity of the respective practitioners to make appropriate diagnoses where women present in each of these situations. The proposition is, in summary, to reduce the requirement from three to two practitioners where the woman's life is at risk as a result of a threat of suicide. Accordingly, I put the proposal to the Minister and the members.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Obviously, this is part of a group of amendments. The amendments put forward by Deputy Seamus Healy and supported by a number of us fall if the Minister's is accepted.

This really gets to a very important aspect of the Bill. This is far to onerous a bar to jump over for women whose lives may be threatened because of suicidal ideation, and we do not see the justification for having three doctors. If in other cases in which one is being certified for a mental health condition one psychiatrist would be all that was required, why in the particular case in which suicidal ideation, a mental health condition, happens to be linked to the question of a termination of pregnancy should there be an extra hoop to jump through in order to prove that there is a serious risk to someone's life? It seems there are no medical grounds for this.

Kieran O'Donnell (Limerick City, Fine Gael)
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I would like to speak on the Minister's amendment, No. 28.

Jerry Buttimer (Cork South Central, Fine Gael)
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We are debating amendment No. 32. We have finished dealing with amendment No. 28.

Denis Naughten (Roscommon-South Leitrim, Independent)
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Amendment No. 32 is pretty much the same.

Kieran O'Donnell (Limerick City, Fine Gael)
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I will speak on amendment No. 32. We have had a discussion about this, but I would like to discuss section 9 specifically. I understand how the Minister has rearranged the section, which makes perfect sense. The amended section 9(1)(a) states: "subject to section 19, three medical practitioners, having examined the pregnant woman, have jointly certified in good faith". I had a look back when the Minister was talking about the legal position and the issue with best medical practice, and I have a suggestion, although I do not know whether there is any merit in it. Section 73 of the Mental Health Act 2001 is the only provision under which people must go to court to take legal proceedings against a practitioner. It mentions within that section that the court may refuse leave to initiate proceedings in cases in which "there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care". Would it be worth considering the addition of a similar phrase to the Bill? For example, the amended section might state: "having examined the pregnant woman, have jointly certified in good faith, and having acted with reasonable care, that ..."? That would provide comfort with regard to best practice without in any way detracting from the provision and in keeping with legal precedent as laid down in section 73 of the Mental Health Act 2001. It is a legal question which has resonates in sections 7, 8 and 9, but particularly section 9, and goes back to the definition of "reasonable opinion" in the interpretation section of the Bill, which states:

"reasonable opinion", in relation to a medical practitioner or review committee, as the case may be, means an opinion formed by the practitioner or committee, as the case may be, in good faith which has regard to the need to preserve unborn human life as far as practicable...

(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

(3) Where proceedings are, by leave granted in pursuance of subsection (1) of this section [That means that the court has allowed them to proceed], instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.

Jerry Buttimer (Cork South Central, Fine Gael)
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Four Deputies are indicating. Does the Minister wish to respond to the first three Deputies or wait until he has heard the additional four Deputies?

James Reilly (Dublin North, Fine Gael)
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I will respond to the first three Deputies and we might return to the Deputy O'Donnell at the end.

Deputy Ó Caoláin wants, in essence, to have one psychiatrist and one obstetrician rather than two psychiatrists. Deputy Boyd Barrett raised the same issue and said that the expert group had mentioned two psychiatrists as one of the options. The group also mentioned one psychiatrist. It is clear after consideration of the matter - and the Government has considered it - that, given the subjective nature of the practice of psychiatry, there is a real sense that because of the absence of clinical markers such as biochemical blood tests, MRIs or X-rays, in order to give a more secure diagnosis - given the fact that the diagnosis and the certification could, in certain circumstances, lead to the loss of life of the unborn - a higher standard of certainty was required. In that regard, we believe it is appropriate to have two psychiatrists involved. Therefore, I will not accept the amendment.

With regard to Deputy O'Donnell's suggestion, I have not considered the matter in great detail. The Attorney General gave some advice and I shall return to her for further clarification.

Kieran O'Donnell (Limerick City, Fine Gael)
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I appreciate that.

James Reilly (Dublin North, Fine Gael)
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We are talking about two different circumstances. Reasonable opinion is mentioned in my amendment under subsection 1(a)(ii).

Kieran O'Donnell (Limerick City, Fine Gael)
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Yes.

James Reilly (Dublin North, Fine Gael)
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Reasonable care is a different matter because the patient is already in a clinical setting and a decision has been made.

Kieran O'Donnell (Limerick City, Fine Gael)
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Please repeat the last point.

James Reilly (Dublin North, Fine Gael)
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I understand the Mental Health Act refers to a person who has been committed against his or her wishes, or involuntarily, to a mental health institution and who disputes the right of the clinician to have made that decision. Therefore, its reference to "reasonable care" is appropriate because the person is "in care". My amendment in today's Bill is about forming an opinion for the purpose of certification, which is different. The terms "reasonable good faith" and "reasonable opinion" are more appropriate than "reasonable care" because the latter does not apply in the same way as in the Mental Health Act 2001. My colleague will now comment.

Alex White (Dublin South, Labour)
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I was gathering my thoughts about the Mental Health Act 2001.

Kieran O'Donnell (Limerick City, Fine Gael)
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Does the Minister of State need more time?

Alex White (Dublin South, Labour)
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No. The key legal difference is as follows. The Oireachtas, in the Mental Health Act 2001, decided to protect people from being sued. In other words, the intention was to put a sort of protection around certain individuals in circumstances in which somebody was considering instituting proceedings against them. That is not what we are talking about in amendment No. 32 today. As the Minister has rightly said, we are talking about a procedure put into law or legislation. I suggest that it is quite an onerous requirement in respect of what has to be declared in order for a certification to occur. The kind of language that Deputy O'Donnell correctly quoted from the Mental Health Act 2001 protects people from being sued and, for example, states:

73.--(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

Kieran O'Donnell (Limerick City, Fine Gael)
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Clearly it is necessary to operate within parameters. We had a discussion last night on the inclusion of best practice in the legislation undermining the process of best medical practice. Would the addition of the words "good faith" have the same impact? Why cannot the provision read "good faith and acting with reasonable care". Clearly this would have particular connotations in the context of section 9, which deals with suicide and so forth. While I take on board the Minister of State's initial response perhaps for the sake of completeness he would ask the Attorney General to take another look at this. It would provide a level of comfort to some people if "good faith" could be included.

Alex White (Dublin South, Labour)
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As stated by the Minister, we will consider everything that is said.

Kieran O'Donnell (Limerick City, Fine Gael)
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I appreciate that.

Alex White (Dublin South, Labour)
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I do not believe the Minister intended to give any indication of his intention to-----

Kieran O'Donnell (Limerick City, Fine Gael)
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I know that.

Alex White (Dublin South, Labour)
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We will consider what has been said.

Jerry Buttimer (Cork South Central, Fine Gael)
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As it is proposed to adjourn at 1 p.m., I ask members to be succinct.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I would like to comment on the amendments in my name, which I accept cannot be moved if the Minister's amendment is accepted.

This legislation arises from the X case judgment. There are certain tests outlined in that judgment. One of the tests referred to, namely, that it is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate, is not referred to in this or any other section of this Bill. I fail to understand the reason the Minister is prepared to include the other elements of the tests of that judgment and not that one.

As stated by the Minister, we need in this legislation to provide clarity for women and medical practitioners. That was the point of the portion of the judgment I mentioned earlier. This Bill would be considerably enhanced if that part of the test was included, in particular in this section. I also have concerns in regard to the provision dealing with the three medical practitioners. It is worth reading again what the expert report states in regard to the number of medical practitioners to be involved:

It was generally considered that two doctors with the relevant training and expertise appropriate to the case would be sufficient for making a clinical decision as to the risk to the life of the woman, whether the risk arose because of a physical or mental health condition. However, more doctors could be involved in the process by way of informal consultation among colleagues or multidisciplinary team assessment, as often occurs in complex cases at present.

Jerry Buttimer (Cork South Central, Fine Gael)
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There are seven speakers remaining. I will take questions now from the next two speakers and will then allow the Minister to respond.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I respectively disagree with the argument put forward by Deputies Ó Caoláin and Boyd Barrett. We are not, in terms of the legislation before us, talking about parity between mental and physical illness rather we are talking about parity between physical illness and suicidal intent. The legislate is quite clear, as was the evidence from the witnesses who attended the committee hearings, namely, if a woman has an underlying mental health condition the question that must be asked is, is there an alternative course of treatment available that could avert the suicidal intent? The reality is, in terms of an underlying mental health condition, in the vast majority of cases there is an alternative course of action available. Only where there is no other option to avert the suicidal intent can a person certify a termination. The difficulty that arises is a woman who presents and has no underlying mental health condition cannot under the Mental Health Act be forced to have any course of treatment. There is then no alternative option but to certify that the woman have a termination. It is important to remember that Professor Veronica O'Kane in her evidence said that it is impossible to prove or disprove suicidal intent or suicidal ideation and that if a woman presents before her, which woman does not have any underlying mental health condition, and states she is suicidal her hands are tied and she must certify in the circumstances. It is right to provide for a second opinion because of the type of circumstances that will arise in regard to the certification process.

Seán Conlan (Cavan-Monaghan, Fine Gael)
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I have a question on section 9(1)(a), as amended. I would welcome if the Minister could comment on the legal opinion he has received on the following matter. Where a woman presents, which woman has no history of mental illness, and states that she is suicidal and the practitioner forms the opinion that there is a real and substantial risk to her life but the woman refuses alternative treatments, can the medical practitioner, based on the definitions of reasonable opinion under section 2, certify in good faith that in his or her reasonable opinion the risk can only be averted by way of termination? That is the crux of this. Do we need to amend this provision or does what is provided suffice?

Colm Keaveney (Galway East, Independent)
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I seek clarification from the Minister and Ministers of State on a matter which I raised with the Minister in the House the other evening. The Minister and Minister of State will be aware that Dearbhail McDonald, legal correspondent at the Irish Independent has made an observation on how section 9 of the Bill interacts with the Mental Health Act 2001.

Jerry Buttimer (Cork South Central, Fine Gael)
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I ask the Deputy to speak to the amendment.

Colm Keaveney (Galway East, Independent)
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I am providing some of the context for my contribution on the amendment.

Jerry Buttimer (Cork South Central, Fine Gael)
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The Deputy may speak to the section when we have disposed of amendments to it.

Colm Keaveney (Galway East, Independent)
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Section 9 provides that two psychiatrists may find that a woman's life is at risk from suicide and an abortion is required as a treatment. That standard seems to exceed the standard provided in the Mental Health Act. Will the Minister indicate how the Bill will be compatible with the Mental Health Act? Will he assure us, in light of his public utterance that the section will only apply to a handful of women, that circumstances will not arise in which a woman will be sectioned under the Mental Health Act for the purposes of securing an intervention, as set out in the provisions of that Act?

James Reilly (Dublin North, Fine Gael)
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Deputy Seamus Healy raised the issues of an inevitable or immediate risk to a woman's life and the possibility of having two rather than three doctors involved in the process. I have made my position clear on these matters. This is a subjective assessment as there is an absence of biochemical and physical markers. We believe, and it is a Government decision, that there should be two psychiatrists rather than one involved. I will not accept an amendment to change the current provision. Deputy Denis Naughten made this point also.

Deputy Seán Conlan outlined a scenario in which a suicidal woman does not have a history of depression and refuses other treatment. He then asked whether medical practitioners could certify in such circumstances. We addressed this issue last night, although I accept the Deputy could not be present for the discussion. It is very clear that the psychiatrists concerned could not certify in the circumstances he outlined because they do not meet the test. That is an absolute and it is in the Bill.

On Deputy Colm Keaveney's question on whether a pregnant woman would be automatically committed because she is suicidal, that is absolutely not the case. He also asked whether I can guarantee a woman would not be sectioned under section 9. I cannot give such a guarantee because if there is an underlying serious psychosis, the woman, whether pregnant or not, would have to be sectioned and committed.

To return to the Deputy's first point, the very notion that one could section a woman who is expressing suicidal ideation but is not depressed to keep her confined for the duration of her pregnancy would be utter anathema and would not be tolerated or countenanced. It is very clear in the Bill that we are trying to clarify what is legally available and what criteria must be met before doctors can certify that someone in such circumstances would be entitled to a termination and it would be permissible for a doctor to perform a termination. I keep returning to the point that there are three doctors involved.

It is also important to point out that the duty of an obstetrician is to both his or her patients. That is very clear. The duty of a psychiatrist is to his or her patient. However, in this country the duty on psychiatrists, all doctors and all citizens is to protect the life of the unborn in so far as is practicable. That duty, therefore, remains with the psychiatrists involved.

What we are trying to do in the Bill is provide the clarity the medical profession needs to provide a safe service when women need to access that service.

Alex White (Dublin South, Labour)
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On Deputy Keaveney's point, I fully agree with the Minister's response. There is nothing in section 9 that triggers the Mental Health Act. While I understand the Deputy's point, I do not understand the point that may be being made outside the House that the interrelationship between section 9 and the Act gives rise to some question. It does not do so.

Colm Keaveney (Galway East, Independent)
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The standard exceeds-----

Alex White (Dublin South, Labour)
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The issue of involuntary admission is addressed in the Mental Health Act 2001. It is the only law that applies in the case of any individual who is to be subject to involuntary admission. If the conditions or circumstances that are contemplated in the Mental Health Act 2001 apply, a person may well be sectioned. However, there is nothing in section 9 or anywhere else in the Bill that triggers the Act.

I will refer briefly to two other points. Deputy Healy raised an issue regarding an inevitable and immediate risk. In general, it is not necessary to make provision in any legislation for a negative. If something is not required to be the case, in general there is no necessity to include in legislation that something does not have to be the case. The test is that positive things have to happen, in other words, a real and substantial risk to life can only be averted through a termination. That is the other part of the test.

This returns us to the issue of best practice and how prescriptive we want to be for doctors. In the case of a doctor applying his or her mind to a situation where he or she is asked to consider whether there is a real and substantial risk to somebody's life, there is no basis in this legislation or anywhere else for thinking that this risk must be immediate or inevitable. It is not required for the legislation to tell a doctor that the risk does not have to be immediate or inevitable. There is no such requirement and, as such, it is not necessary to include it in legislation. While I have not seen the advice, I expect it is probably the advice the Minister received.

On the expert group, Deputy Boyd Barrett raised a point which, to be fair to him, he subsequently corrected. Deputy Healy raised this issue again when he cited the expert group report. In referring to the role of psychiatrists, the expert group stated the following:

Finally, the role of the psychiatrist is key where a termination of pregnancy is prescribed as appropriate treatment in case of suicidal ideation/intent. There are recognised clinical challenges in correctly diagnosing expressed suicide intent, for instance, the absence of recognised clinical markers. Therefore, it could be argued that this is a more subjective process and requires more safeguards to be put in place for the protection of both the woman and the unborn. The need to keep up to date with clinical research on this issue is highlighted in the Medical Council Guidelines referred to in section 3.6.3 with a view to ensuring that the decision is evidence-based.

There may be clinical challenges in correctly diagnosing expressed suicide intent. Therefore, it could be argued that a risk to life from suicide warrants extra safeguards.

Michelle Mulherin (Mayo, Fine Gael)
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To return to the issue of treatments, we have received many assurances from the Minister that all treatment options will be explored and, as a result, abortion will be a rare occurrence. While I accept the Minister's assurances, when I read the section, even as amended, it simply sets out a procedure whereby a woman, having her medical condition assessed, can establish her legal eligibility for an abortion. The Minister has stated on many occasions that the use of the word "only" has a certain meaning. Clearly, not everybody agrees that it has this meaning, least of all lawyers. I agree with Deputy Conlan in this regard.

At a certain point in the hearings of the Joint Committee on Health and Children, Professor Veronica O'Keane indicated that she did not consider her role in that circumstance was one of providing treatment but rather one of assessing eligibility for a procedure which a woman in that circumstance would request. The nub of the issue is that the Minister repeatedly points out how subjective this process is but does not reassure me. We were faced at the public hearings with the prospect that, at a certain juncture, in relation to the issue of treatment, one sees these professionals, equally qualified, who would have a divergence of view on what is the next step.

Peter Fitzpatrick (Louth, Fine Gael)
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Patients who present with suicidality must be treated with compassion and respect.

Jerry Buttimer (Cork South Central, Fine Gael)
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I ask the Deputy to speak to amendment No. 32.

Peter Fitzpatrick (Louth, Fine Gael)
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I am. The Bill is all about saving lives. A woman at risk of suicide is at a risk of dying and killing her baby. Dr. Rhona Mahony told the hearings that there was no evidence to show that abortion was a treatment for suicide when she said such evidence would be impossible to obtain as the number of cases was extremely small. She said also that she would trust her psychiatric colleagues if they told her that a woman would die unless her pregnancy was terminated.

Who has the responsibility of informing the woman of her right to a review? Will a panel have access to legal advice and is there a mechanism for appealing decisions to the courts?

James Reilly (Dublin North, Fine Gael)
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I will deal, first, with Deputy Michelle Mulherin's concerns. It is no harm to reiterate that I intend to introduce amendments to these sections on Report Stage. The amendments will not change the substance of the sections but will make it clear that the life of the unborn is to be protected in all instances, as well as that of the mother. Deputy Michelle Mulherin presumes that a woman who refuses treatment will be certified. I have already covered this issue with Deputy Seán Conlan. A woman who refuses treatment cannot be certified as the certifier will not be able to meet the test that all options have been explored. That does not mean that we can prescribe in law that every woman must be committed, have counselling and a course of anti-depressants. It means that an assessment must take place. Proper practice requires that such assessments cannot take place over a period of one hour. Assessment will take a period of time that is acceptable and reasonable. It may be that, following such a period, practitioners form the opinion that there is a real and substantial risk and that the only treatment which can work, having explored the other treatments, is to terminate the pregnancy. Treatments which are refused cannot have been properly explored and tried. If the opinion is formed by a second psychiatrist over a period of time also, certification takes place.

It has been suggested we provide for a cooling-off period. While that applies in other areas of law in relation to certain purchases, we are discussing a life and death issue. It will be highly prescriptive. This Oireachtas could be responsible for the death of a woman where two psychiatrists had certified that a risk was real and substantial and she had taken her life while we were having our cooling-off period. That is not something I am prepared to have on my conscience and it is not something we can prescribe in law. It is overly prescriptive. I accept that there are only good intentions behind the suggestion, but it is not possible to implement it within the law. Certainly, it would be completely contrary to the advice of the Attorney General. The medical profession would be outraged that someone's life could be left at risk on foot of a legal decision by the Oireachtas to prescribe a cooling-off period. I am sorry to say it is not feasible.

Deputy Peter Fitzpatrick asked who would have the obligation to inform a woman of her rights. It will be the doctor. The Deputy asked about appeals to the courts also. We have sought in so far as possible in the Bill to keep this process medical. It will involve a medical review. The situation with legal appeals will be the same as it is in all areas. One has a right to go to court to seek an injunction and appeal a decision. There is that right, but it is deliberately not part of the Bill. To make such a provision would be to suggest every woman who finds herself in a distressed state should be subject, having gone to three doctors and, perhaps, been subject to a review by another three doctors, to cross-examination by a group of lawyers. That is not what people would consider reasonable. It is open in cases where people believe they need relief in respect of a wrong decision.

Jerry Buttimer (Cork South Central, Fine Gael)
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Deputy Ó Cuív was the next to indicate. Minister, had you finished replying before the suspension?

James Reilly (Dublin North, Fine Gael)
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Yes, I had.

Jerry Buttimer (Cork South Central, Fine Gael)
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I call Deputy Ó Cuív.

Éamon Ó Cuív (Galway West, Fianna Fail)
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It is not my intention at this stage to press or pursue amendments Nos. 35, 48 and 53. However, I will be re-entering them on Report Stage. They seek to strengthen section 9. It is my position that I am opposed to section 9.

Jerry Buttimer (Cork South Central, Fine Gael)
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Can we speak to the amendment, please?

Éamon Ó Cuív (Galway West, Fianna Fail)
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I am explaining my view on the amendment.

Jerry Buttimer (Cork South Central, Fine Gael)
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Thank you.

Éamon Ó Cuív (Galway West, Fianna Fail)
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For that reason I will speak in opposition to the section but I wish to make the point at this stage that the issues raised by Deputies Naughten and Mulherin are germane to the whole issue of section 9 and to concerns that many people have in respect of the section. I will not be pursuing those three related amendments at this time. However, I will revisit the matter on Report Stage although the procedure on Report Stage is different because the question on the section is not part of Report Stage.

Jerry Buttimer (Cork South Central, Fine Gael)
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Deputy Timmins, you are next.

Billy Timmins (Wicklow, Independent)
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Can I speak to the section in general?

Jerry Buttimer (Cork South Central, Fine Gael)
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No.

Billy Timmins (Wicklow, Independent)
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I only wish to speak to the section in general.

Jerry Buttimer (Cork South Central, Fine Gael)
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Deputy Shortall, you indicated.

Jerry Buttimer (Cork South Central, Fine Gael)
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On the amendment, please.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I wish to revert briefly to the amendments I have tabled on behalf of my party in this grouping, namely, amendments Nos. 34 and 54. There was a strong and consistent case made in the course of the hearings on the heads of the Bill by a number of voices urging the amalgamation of the respective heads of the Bill pertaining to a risk to the life of the woman where a physical illness presents and a risk to the life of the woman where a threat of suicide is established as being real and substantial. It is important to reflect this and these amendments do so. Considerable urgings were made to amalgamate the respective heads along the lines the amendments, as presented, support. That said, I understand well the Minister's explanation and, in the context of this legislation, how could any member not?

I also note that on the passage of the Minister's amendment No. 32, amendments Nos. 34 and 54 will fall and, consequently, there will not be an opportunity to press or test them. However, for those who appeared before the committee and who argued a strong and consistent view across a number of professions and disciplines, both medical and legal, it is important that their views are reflected and taken into account in the overall consideration of the Bill at this Stage. As I have no doubt regarding the outcome of the sub-committee's discussions on this matter, I simply wish to record this observation at this point, while recognising these amendments will not proceed.

Michelle Mulherin (Mayo, Fine Gael)
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I refer to the response the Minister gave to my previous request or submission and I take issue with his suggestion that the inclusion of a pause or a cooling-off period could jeopardise women's lives. To what medical evidence is he pointing? I am not a medical person but-----

Jerry Buttimer (Cork South Central, Fine Gael)
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On the amendment, please.

Michelle Mulherin (Mayo, Fine Gael)
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Yes. I refer to the remarks of Dr. John Sheehan, perinatal psychiatrist, who noted at the hearings of the Oireachtas Joint Committee on Health and Children that a speedy delivery of a baby is contra-indicated in psychiatry. This constitutes a significant difference between his field and that of obstetrics, where a rapid inducement is often favoured. As Dr. Sheehan outlined, there is a difference in that respect with regard to a physical threat and a threat from emotional, psychological or psychiatric reasons. Therefore, it is of great concern to me that the Minister would see a decision or a certification under section 9 being made as an emergency decision. To what evidence is he referring? Why is he not referring to the evidence from the health committee hearings? Why is he not addressing the fact that at least 50% of the medical practitioners there raised issues pertaining to the suicide grounds. While I am at it, why were no reports or findings made from two lengthy hearings of the Joint Committee on Health and Children in respect of this matter?

Jerry Buttimer (Cork South Central, Fine Gael)
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On a point of clarification, reports were issued on the two hearings by the Joint Committee on Health and Children.

Michelle Mulherin (Mayo, Fine Gael)
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I am asking about findings. In any event-----

Jerry Buttimer (Cork South Central, Fine Gael)
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Sorry, that is not relevant to this section of the Bill.

Michelle Mulherin (Mayo, Fine Gael)
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It is relevant to the point I am making. My understanding of people practising in the field of psychiatry is that invariably, many forms of treatment can be tried. Moreover, because of the subjective nature of the entire field, this in fact is how psychiatrists ordinarily proceed to treat patients. Invariably, there is one common denominator in this regard and that is time. The time required does not equate with emergency decisions and I am concerned about the Minister's response. He has not at all addressed the fact that evidence was given contrary to what he has just stated in the hearings before the Joint Committee on Health and Children. I would appreciate it if he could find medical evidence to support what he has just stated, which is that an emergency decision is the best way to approach a psychiatric situation.

Jerry Buttimer (Cork South Central, Fine Gael)
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I invite Deputy Boyd Barrett to speak on amendment No. 32 in the name of the Minister. There is an associated grouping. The Deputy spoke earlier on it.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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The Minister has stated that the suggestion or proposal that this legislation should include the qualification that the threat to a woman's life should neither be immediate or inevitable would be superfluous. I put it to the Minister in the strongest terms that this is wrong.

Jerry Buttimer (Cork South Central, Fine Gael)
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To be fair to the Minister and members, we have dealt with this previously.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Yes. The Minister responded to members' points and I am responding to his point. He is completely wrong. If the Supreme Court thought it sufficiently important to put in that qualification to explain what was meant by a real and substantial risk to the life of the woman, namely, that it did not have to be inevitable or immediate, why in this legislation is the Minister second-guessing what the Supreme Court stated? How can the Minister sustain an argument that it is superfluous? Is he suggesting that the Supreme Court's inclusion of that important qualification was superfluous because clearly, it was not? It was extremely pertinent to its decision in the X case that the threat need not be inevitable or immediate. Consequently, it appears to me as though the Minister is tightening the definition in this legislation in an unacceptable way, which ultimately could put at risk the lives of women where there is a real and substantial threat but where that threat is not deemed to be inevitable or immediate.

James Reilly (Dublin North, Fine Gael)
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I take on board what Deputy Ó Cuív has said. Deputy Shortall has raised the issue of a lack of legal protection for the psychiatrist. While the Minister of State, Deputy White, can deal with that matter in a more comprehensive fashion, it is dealt with in normal practice in good faith. No one can predict with certainty the outcome of a psychiatric condition and sadly, there is all too much evidence of this. However, as long as doctors act in best faith, using the latest knowledge available to them as adjudicated by their peers, they have a protection. As for the Deputy's concern on the issue of the chilling effect perhaps operating in the other direction in respect of psychiatrists, because of what she considers to be an uncertainty, being more disposed to certify, I do not believe it will arise because the law is quite clear in this regard. They have protection on it and for as long as they have acted in good faith and have a rationale for not certifying, then I believe they have protection under the law.

I mean no disrespect but I believe Deputy Ó Caoláin's comments were covered earlier. I acknowledge they were a restatement of the Deputy's opinion, which is absolutely fair and which I respect but I have no more to add. Deputy Mulherin raised a number of issues.

Alex White (Dublin South, Labour)
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To start on the point the Minister finished on, he is absolutely correct. That the risk does not have to be immediate or inevitable is not embedded in the test that was set out by the Supreme Court. The test set out by the Supreme Court is very clear. I can say with confidence that the test is whether, as a matter of probability, there was a real and substantial risk to the life of the mother, and the second part of it, we understand, is that it could only be averted by a termination. However, the fact that the court then said in the course of the judgment, and the Deputy is right, that that risk did not have to be immediate or inevitable is not embedded as part of the actual test promulgated by the Supreme Court. I am very clear on that, and that would be the advice the Deputy would get from any lawyer that examined the judgment. I would genuinely say that to the Deputy.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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It is clarifying the meaning of it.

Alex White (Dublin South, Labour)
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Yes, but it is not part of the test. The Deputy made the point, which was quite wrong, that we are reducing or varying the test or something like that.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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We are narrowing the scope.

Alex White (Dublin South, Labour)
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That is not true.

I want to address the other points. Deputy Shortall spoke about a concern, if I understand the point, that if a psychiatrist was asked to make a certification and declined to make a certification, would he or she then be in a position where they would have a concern that they might be subject to litigation in the future, having declined to make a certification. The normal rules of medical negligence apply here. The famous case of Dunne and Holles Street hospital is the case we all know about, which set out the basic principles of medical negligence. In terms of the true test, it is that as long as a doctor is acting in a way where he or she is not guilty of the kind of failure that no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care. It sounds a little clumsy but that is the test well known and applied by the courts every day of the week. The same principles apply in these circumstances as would apply generally. One would have to prove that the doctor had deviated from a general and approved practice.

We know there is a broader debate about defensive medicine, namely, that there is a concern that doctors not just in this country, but in different parts of the world, are acting in a way that always has an eye on the possibility of being sued. We are all aware of that problem and that general challenge in medicine that it should not become defensive medicine and that doctors should not act all the time or at any time thinking about what will happen if they are sued. It is no different here than it is in any other similar circumstances. Deputy Shortall, or the Chairman, can correct me if I am wrong on this but the psychiatrists in the two sets of hearings raised many issues but I do not remember that issue being raised. I say that tentatively. I may be wrong but I do not remember any of the psychiatrists worrying that they could be sued for declining to make a certification in the circumstances outlined by Deputy Shortall. I respect the point but the specific concern the Deputy has raised is misplaced.

The last point I will make concerns what Deputy Mulherin said, and I do not want to add too much to it other than to say that we are all familiar with a commonly known phrase, justice delayed is justice denied. It means that if a person does not get justice at the time their right has been engaged, it is just as bad as depriving them of the right. If somebody engages a constitutional right and that right and entitlement is his or hers, delaying it is tantamount to removing that right. We cannot do that, and it would certainly be unconstitutional. Delay is just as bad in many circumstances as removal of the right, and we cannot do that.

Michelle Mulherin (Mayo, Fine Gael)
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My simple question was for the medical evidence to support it.

Jerry Buttimer (Cork South Central, Fine Gael)
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Deputy Boyd Barrett is next. I will call the Deputy again.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I thank the Chairman for his indulgence because I have to attend a finance committee meeting shortly but I want to make a number of points to the Minister of State. I will begin where he concluded. I agree with the Minister when he says that delay is tantamount to not vindicating people's rights in this case and for that reason I agree wholeheartedly with what he said about Deputy Mulherin's suggestions. It would be a threat to women's lives if we were to take on board those suggestions but I ask the Minister to follow through on that logic when it comes to the issue of the number of doctors. The Minister has admitted that because there is an unborn life in this equation, he is establishing a higher bar for certification as to the threat to a woman's life when it comes to suicidal feelings than would normally be the case were there not an unborn child in the equation. That is diluting a woman's right to life because-----

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Exactly, but if what we are trying to do is vindicate the woman's right to life and ensure there is no threat to her life, if we were certifying or assessing suicidal ideation in this case than would be the case normally where there was not a pregnancy means that woman's rights are being diluted. She is getting second class rights because there is a pregnancy. I am not a doctor but psychiatrists are saying that under normal circumstances, if somebody were to be certified, all that is required is one psychiatrist and one general practitioner yet in this case the Minister is requiring two psychiatrists and an obstetrician. It is a much higher bar to go through, and then there is the possibility of a review panel, all of which could mean delay, which the Minister says is unacceptable.

Alex White (Dublin South, Labour)
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On a point of information-----

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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If I could be allowed finish-----

Alex White (Dublin South, Labour)
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If I could help the Deputy-----

Jerry Buttimer (Cork South Central, Fine Gael)
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I will allow the Minister respond.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Finally, I want to underline the point about the obstetrician because there is no medical reason for an obstetrician to be involved in certifying whether somebody is suicidal or not and whether the threat to a woman's life in that instance is real or substantial.

Alex White (Dublin South, Labour)
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The Deputy is correct when he states that there is a higher threshold with regard to the assessment of suicidality in respect of the assessment of women in the circumstances we are discussing versus the norm. He must, however, examine Article 40.3.3° of Bunreacht na hÉireann which sets out in solemn and clear terms that the State acknowledges the right to life of the unborn, with due regard to the equal right to life of the mother. These rights are set at a level which are equal to one another. I object slightly to the Deputy's references to "what you are doing here" and "what you are proposing here". We are acting within the terms of the Constitution, which belongs to the people. We are not coming up with proposals just to-----

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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There are other interpretations.

Alex White (Dublin South, Labour)
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There are some very clear and fundamental issues which we must bear in mind and these are dealt with in the Constitution. We did not make them up.

James Reilly (Dublin North, Fine Gael)
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The obstetrician will be there not to assess the level of suicidality in a woman or the risk of suicidal intent, he or she will be present to vindicate the rights of the unborn. This follows directly from Article 40.3.3° of the Constitution and it is why the legislation is called the "Protection of Life During Pregnancy Bill". It is not the protection of maternal life during pregnancy Bill, as others would like it to be called. The legislation is about protecting life on both sides and upholding the equal right to life of women and the unborn, with the full understanding that if one loses the mother, then one loses the child. In such circumstances, it is made very clear in the legislation that this can be the only action or treatment which can avert the risk to a woman's life.

Michelle Mulherin (Mayo, Fine Gael)
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The use of the maxim "justice delayed is justice denied" distracts from the fact that what we are ultimately referring to is a medical decision. We like to believe that such decisions are based on medical evidence and we are trying to provide a framework for this. The Minister referred earlier to the possibility that an emergency decision might have to be made. The comment I made was in reference to that.

Michael Creed (Cork North West, Fine Gael)
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The Minister of State, Deputy White, referred to the Constitution and the equal right to life. In conjunction with the Supreme Court's ruling in the X case, the latter is the backdrop against which the legislation is framed. The Minister of State specifically referred to Article 40.3.3°, which accords an equal right to life to the unborn. As Deputy Shortall pointed out, at a certain time that right is compromised by the right of a mother to have her life saved where it is certified that termination is the only way to achieve this end. There is, however, another stage at which the right to life might not be compromised but at which the right to a quality life might be so compromised. I refer to circumstances where it is necessary to facilitate a premature delivery in order to save the life of the unborn. In the context of the equal right to life contained in the Constitution, the parity of esteem between both parties we are obliged to recognise in law, and the question that arises in respect of appropriate treatment - and not to complicate the matter further by suggesting the involvement of additional legal representation - is there a case for bringing in a medical professional to act as advocate for the life of the unborn? This might be of assistance in ensuring that both rights are vindicated in a fashion which ensures a quality of life for the unborn child.

Denis Naughten (Roscommon-South Leitrim, Independent)
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In light of the example provided by Deputy Shortall, will the Minister clarify a matter for me? If a woman is suicidal because of her pregnancy but has an underlying mental health issue which is treatable, would she be entitled to a termination?

James Reilly (Dublin North, Fine Gael)
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I will go through the questions in order. Deputy Boyd Barrett has left but I believe I answered his questions in any event. In the interests of absolute clarity, if Deputy Mulherin checks the record she will discover that I did not use the term "emergency decision". Part of my argument as to why it would be neither tenable nor permissible to include a cooling-off period is that this would be prescriptive and that a woman could die during such period. That is the reality. I do not believe doctors would be satisfied with that and I certainly do not believe the House would like to be held responsible in this regard. I understand the Deputy's concerns in respect of the controls relating to this matter. I am very much of the view - which the Government shares - that this Bill will protect the unborn in every way possible and, nonetheless, that it will also respect the life of a woman in circumstances where her life is threatened and where the risk in this regard can only be averted through a termination of pregnancy.

I will ask the Minister of State, Deputy White, to address the issue raised by Deputy Shortall. Deputy Creed referred to quality of life. In the first instance, what he described could happen now in any event. The Bill does not alter the position in this regard in any way. It is important to note that the judgment handed down by the Supreme Court in the X case refers to a threat to life rather than to health. The quality of life issue is, therefore, not contemplated by that judgment. I accept that the Deputy is approaching the matter from a different angle.

James Reilly (Dublin North, Fine Gael)
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What I am trying to say is that as things stand, and as clearly demonstrated by the X case, it is open to a doctor to perform a termination if she or he believes, in good faith, that it is the only treatment that will avert the threat to the life of the mother. That can happen now. We do not know if it is happening, how often it has happened or where it is happening. There is no onus on people to report it and there is no mechanism to monitor it. This Bill does all those things.

Deputy Naughten asked about a patient who might be suicidal because of pregnancy but who has an underlying condition. This is where the psychiatrist must use his or her clinical judgment and acumen to determine that the cause of the suicidal ideation and the risk to the woman's life is one primarily brought about by the pregnancy and not due to any other circumstance.

It might help a number of members if I state what Dr. Anthony McCarthy, who is the president of the Irish College of Psychiatrists, said. He said there is no treatment for suicide and that the only course of action is to remove the risk and remove the underlying causes. That is what the psychiatrist must do in clinical practice, namely, determine the underlying cause of the suicidal ideation presenting this risk. That is what this Bill allows for. If in the very rare circumstance it is the adjudication and the clinical judgment of the psychiatrist that the risk is indeed the continuation of the pregnancy, as opposed to any other underlying cause, then he or she must treat. Dr. Rhona O'Mahony said she cannot be satisfied as she is not a psychiatrist, although she is an obstetrician, that this situation will not arise and, therefore, she feels it must be provided for by law. As we know, it is provided for by law through the Supreme Court in the X case.

Alex White (Dublin South, Labour)
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Nobody can make the case that the circumstance, where there is a real and substantial risk to the life of the woman arising from a risk of suicide, would never arise. Nobody can bring that argument home. Whether it is one in 1 million or whatever figure Deputy Mulherin had, I do not know what the likely outturn would be but nobody in this room or elsewhere can say it would never arise that a woman's life would not be at risk from the risk of suicide. That case cannot be sustained and that is why we are providing for it.

To answer Deputy Shortall's question on what protection is there, I say in all sincerity - I know it is repetitive - the protection is in the Bill. The test is an extremely onerous one. The protection for doctors acting in good faith carrying out the components of the test, which appear in the Bill, are the protections a doctor has as well as the additional protection all doctors have in regard to the general principles that apply to circumstances where there might be litigation or where their actions might be attacked afterwards. There is protection there. How else could we do this? I genuinely ask Deputy Shortall and others, if they can suggest another way this can be done?

I respectfully say to Deputy Creed that I have a number of objections to the notion of having a medical advocate but the principal one is that it actually becomes circular. If one puts an advocate into the clinical situation who is speaking up for the unborn, as Deputy Creed reasonably suggested he or she might do, it cannot change the balance of the test which must be applied, which is whether there is a real and substantial risk. There is an added test in section 9 where we require two psychiatrists rather than one psychiatrist. We have the added safeguards. What would the advocate do? Would the advocate question whether in truth there really was a real and substantial risk as found by the other two? That is adding a third and is an argument for having four rather than three. One would have to define what the advocate would do.

I understand Deputy Creed said a medical advocate but it has been argued in the debate that it should be some form of legal intervention, to which I would be wholly opposed. I would not be in favour of a forensic cross-examination of a woman as to her bona fides. That is precisely what Mr. Barnes meant in his article in The Irish Times. He might not have spelled out exactly what he meant but that is the only thing he could have meant. The question of having an advocate, or having somebody to speak up for the unborn, must mean a forensic cross-examination of the woman concerned and I do not believe that could be countenanced. That adds an extra layer and is not contemplated.

The point about ethical dilemmas is addressed indirectly in the sense that the ethical dilemma doctors might have is resolved in this Bill in the provision in regard to conscientious objection. Doctors apply the test and if a doctor has a conscientious objection to being involved in that process, he or she has an out.

Michael Creed (Cork North West, Fine Gael)
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I do not think anybody in this room or anyone engaged in a serious way in this debate wants to put the life of a mother at risk but I come back the Minister's acknowledgement that there is an equal right to life. I suppose this question needs to be posed in the context of vindicating the right to life of the mother. Should this committee, in the context of framing this legislation, not explore the possibility of developing a way which provides for equality of life for the unborn child, without comprising the right to life of the mother?

I do not favour the point made by the former Director of Public Prosecutions in the context of legal representation. However, it is worth exploring this possibility, although not in the form the Minister of State expressed of a forensic cross-examination by a medical advocate. However, having certified that this entitlement exists medically, there is a question then of the advocate for the unborn child being involved in the management of the case to see how one could get to a situation, without compromising either the mother's or the unborn child's constitutional rights, where equality of life can be delivered for the unborn child.

Alex White (Dublin South, Labour)
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Doctors have to do both. The doctors have a responsibility-----

Michael Creed (Cork North West, Fine Gael)
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This is the difficulty we have as lay people but I sat through six days of hearings and I suppose by a process of osmosis we have all gained some degree of medical qualification to comment-----

James Reilly (Dublin North, Fine Gael)
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Some degree but not the degree.

Michael Creed (Cork North West, Fine Gael)
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Is there not a critical issue in terms of say 23 to 24 weeks and 28 to 30 weeks? Is there a process of case management? Is it not incumbent on us to travel that road of an advocate for the unborn child? That is something which the committee could usefully explore. Perhaps the Minister will consider coming back to it at a later Stage.

James Reilly (Dublin North, Fine Gael)
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It is important to point out that this is a medical responsibility and that it is the clinical call of the doctors. We cannot legislate for that. We are back to being prescriptive and interfering in medical practice and into that dangerous territory into which I do not want to go as a Minister. I know what the reaction of members of medical profession would be. They have to do their job and they are trained to do so and we must trust them. We are back to that and I do not want to get into arguments where we are always thinking of somebody who might abuse the situation and putting in strong notifications to prevention that from happening. We have had a very good debate today and yesterday and, in fact, throughout but there have been times when people have described women as being devious and manipulative in trying to abuse this and doctors as being devious, manipulative and dishonest in abusing it.

Éamon Ó Cuív (Galway West, Fianna Fail)
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We are discussing the amendments and the Minister indicated he may have amendments on Report Stage. I regret those amendments are not being put on Committee Stage as the Bill has been a long time in preparation. Will the Minister indicate to us the nature of the amendments he is considering so we might have an input into the thought process? We can still work on Report Stage but now we are operating in something of a vacuum because we do not know even the general outline of what the Minister is proposing.

Catherine Byrne (Dublin South Central, Fine Gael)
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What will happen if a woman turns up with suicidal tendencies at approximately 26 weeks, or a stage when a baby could live outside the womb? I was clued into what happened at the hearings and doctor after doctor indicated that everything medically possible would be done to protect the life of the woman and child. Am I clear and right in saying that?

James Reilly (Dublin North, Fine Gael)
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I can answer that in one sentence. Yes.

Billy Timmins (Wicklow, Independent)
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I wanted to speak to the section because I am opposed to it.

Jerry Buttimer (Cork South Central, Fine Gael)
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We are on the amendment.

Billy Timmins (Wicklow, Independent)
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Based on the discussion, the issues I want to raise are pertinent to the section. We have spoken about this Bill giving rise to clarity. I have much sympathy for the Minister, the Minister of State and those in the Department in trying to formulate legislation arising from what I perceive as a flawed judicial decision 21 years ago. Retrospectively we are trying to legislate for something that has happened.

I am concerned about implementation of the legislation. Does it not set off an alarm for the Minister that so many gynaecologists see a difficulty with this? That is notwithstanding the conscientious objector issue and the ability to move to the next gynaecologist. Is the Minister not saying to himself that there may be something wrong with this when the Master of the Rotunda Hospital, speaking on behalf of all his staff, has a difficulty? What will happen in Portiuncula Hospital in Ballinasloe when somebody arrives, goes through a process and is seen by a gynaecologist who is a conscientious objector and will not do the procedure? How can the head of that hospital employ somebody who will do the procedure or advertise the position? These are very important practical issues.

During the hearings I sought to discover how many minors in the care of the HSE had availed of the X case decision on suicidal intent in order to have an abortion. The Chief Medical Officer told me the executive did not have those statistics but I have since got them through parliamentary questions from the Minister for Children and Youth Affairs. Deputy Mulherin alluded to the six minors in question earlier. Four of those appeared in court but two did not so why was there a differentiation? They were signed off by a psychiatrist. If this process is about protecting the lives of women, why did these minors go abroad for the termination? Why did it not take place in Ireland if it was legal under the X case decision and relevant to a threat to the life of the woman in question?

Deputy Creed touched on my next point, which relates to a patient who may be suicidal and does not want any treatment. That person may be certified by the psychiatrist and the gynaecologist would intervene. The Minister indicated that the same process happens now and the pregnancy is terminated, whether a foetus is viable or not. If the pregnancy is at 30 weeks and the foetus is viable, what happens if the woman argues that under the legislation she is entitled to a termination? What would happen to the child? If it is at 23 or 24 weeks-----

James Reilly (Dublin North, Fine Gael)
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Will the Deputy repeat the question because I am not clear on what he means?

Billy Timmins (Wicklow, Independent)
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I am speaking about a woman who is 30 weeks pregnant and does not want to go ahead with her pregnancy, with the psychiatrist's assessment indicating that there is a threat to her life based on suicidal intent. The gynaecologist would carry out the process and the unborn child is viable. What happens to that unborn child? As Deputy Creed alluded to, there may be more tragic cases. If a pregnancy is 23 or 24 weeks along and an attempt is made to save the child but it is born with a disability, what happens to that child? Is the State liable to a damages claim from the mother? With regard to the rights of a mother, under the X case a woman is entitled to a termination. A woman may dispute the termination and say she does not want the pregnancy terminated. What will happen in that case?

James Reilly (Dublin North, Fine Gael)
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What exactly does the Deputy mean?

Billy Timmins (Wicklow, Independent)
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There may be a certification that a woman's life is threatened because of suicidal intent. If a gynaecologist is doubtful about the viability of the foetus and an attempt is made to terminate the pregnancy but the foetus is born damaged but alive, what happens in that instance? I hope such a case never happens but it may. I have heard assurances from the Taoiseach and the Minister about the Bill but what status does the assurance of a Minister or Taoiseach have in the Bill?

Jerry Buttimer (Cork South Central, Fine Gael)
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We are debating an amendment.

Billy Timmins (Wicklow, Independent)
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The term has been used. Will the Minister give some clarification on it? Will the Minister address the case of the six minors and the hard cases I outlined, although I hope they will never come about? I do not see anything in the Bill dealing with them. I have spoken to gynaecologists but I do not have any knowledge other than what I have gleaned from evidence and what I have been requested to inquire about.

Michelle Mulherin (Mayo, Fine Gael)
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My point is further to Deputy Creed's point regarding the right or the need for representation of the unborn. This is not just something that some quarters may think desirable. How is the legislation taking into account the 2011 court decision of Dellway Investments and others v. NAMA and others, which established in law that a third party legally affected by a decision-making body is entitled to both due process and representation? This case cannot be ignored, although I have previously heard a response that this is a medical decision. That may be but the medical decision has extreme legal implications in that if certification is granted, the unborn will lose their lives. Rather than getting complicated and suggesting that all these cases will end in the High Court, I should ask that if these cases are so rare, what is the big deal with the unborn being represented?

Kieran O'Donnell (Limerick City, Fine Gael)
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My understanding is that the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995 came after the 1992 referendum. Counsel was appointed to represent the unborn and Mr. Justice Peter Kelly of the High Court at that stage was that individual.

Jerry Buttimer (Cork South Central, Fine Gael)
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We will not rule on that today.

Kieran O'Donnell (Limerick City, Fine Gael)
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I know that but I am asking the question on that basis.

Jerry Buttimer (Cork South Central, Fine Gael)
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On the amendment, please.

Kieran O'Donnell (Limerick City, Fine Gael)
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That is my first point. Second, looking at the wording in amendment No. 32 - "having examined the pregnant woman" - we have not discussed the issue of clinical guidelines to which the Minister referred in his speech. I do not see the clinical guidelines mentioned in the legislation. The Minister might give us an update as to how that will tie in with what he stated on Second Stage, that the Department is currently in consultation with the four bodies "with the ultimate aim of developing guidelines for their members on the implementation ... following enactment of the Protection of Life during Pregnancy Bill ... a multidisciplinary committee to develop these ... will be established". Where I am coming at it from a practical level is where it is at and how it ties in with the legislation. Once again, I am asking the practical question.

James Reilly (Dublin North, Fine Gael)
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Deputy Ó Cuív spoke about the amendments I might table on Report Stage and asked whether I could enlarge on them. I cannot at this point.

Deputy Timmins spoke about implementation of the legislation, conscientious objection and the comments by the master of the Rotunda. The reality is I met the Institute of Obstetricians and Gynaecologists and that is not its view. I respect the view of one person but there are many others involved here.

Deputy Timmins asked a specific question, which I wrote down but on which I must revert to him. Was it on the number of women who travelled abroad for terminations and who were in care?

Billy Timmins (Wicklow, Independent)
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Yes.

James Reilly (Dublin North, Fine Gael)
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That is not something I can answer immediately but I can check that out and come back to the Deputy.

Billy Timmins (Wicklow, Independent)
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I will be happy to get an explanation on that on Report Stage.

James Reilly (Dublin North, Fine Gael)
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That is not an explanation. The question was how many.

Billy Timmins (Wicklow, Independent)
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The question was why they did not have the treatment here in Ireland.

James Reilly (Dublin North, Fine Gael)
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That I can answer straight away. That is the purpose of this Bill. The reason they had to travel is because there is no clarity. They had no way of knowing how to access the service.

Billy Timmins (Wicklow, Independent)
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I thought this Bill would not lead to a change in practice.

Jerry Buttimer (Cork South Central, Fine Gael)
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The Minister should be let finish. I will bring Deputy Timmins back in.

Billy Timmins (Wicklow, Independent)
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I will bring the Minister back to a change of practice.

James Reilly (Dublin North, Fine Gael)
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That is why we have this Bill and why we are having this debate. It is to clarify these matters for the doctors and for the women who need these services in order that they know what they are legally entitled to and, most important, how to access it. That was the tenor of the C case in the European Court of Human Rights.

Billy Timmins (Wicklow, Independent)
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It is important to note that it will lead to a change of practice. That is what I am trying to establish.

James Reilly (Dublin North, Fine Gael)
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No.

Jerry Buttimer (Cork South Central, Fine Gael)
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I will bring Deputy Timmins back in.

James Reilly (Dublin North, Fine Gael)
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I was asked what happens to a child born at 30 weeks. The answer is that it will be same that happens at present if a child is born at 30 weeks. The child will be supported in the neonatal unit and go home with his or her parents or parent at the end. What happens, as I think Deputy Timmins was inferring, where the mother does not wish to bring the child home is that the child will be taken into care in the normal way, put up for adoption, and the best will be done for the child to find him or her a family.

Deputy Timmins asked about a 24 week gestation where disability occurs as a consequence of early delivery or, at least, where we believe it would be a consequence of early delivery, because we know there are associated disabilities with the earlier birth of children around this period of time. There is no liability on the State, but the State will look after the child if the mother does not wish to take the child home when he or she is fit to go home.

Deputy Timmins then asked a question on the assurances of the Taoiseach, etc. That is not appropriate to this setting.

Alex White (Dublin South, Labour)
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I missed the beginning of Deputy O'Donnell's question. I hope I have got the right question, but this is the answer.

James Reilly (Dublin North, Fine Gael)
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Before the Minister of State, Deputy White, comes in, if I may, there are the other questions. There is Deputy Mulherin's question on NAMA, which I was going to allow Deputy White answer because it is a technical, legal one, and then there is Deputy O'Donnell's one, which is-----

Kieran O'Donnell (Limerick City, Fine Gael)
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One is a legal question and one is on the clinical guidelines.

James Reilly (Dublin North, Fine Gael)
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-----the 1995 Act and the medical guidelines. On the medical guidelines, perhaps the chief medical officer might answer.

Kieran O'Donnell (Limerick City, Fine Gael)
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I must go for a vote. Is it possible I can defer my response?

Jerry Buttimer (Cork South Central, Fine Gael)
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No. We are not doing that. We are moving on.

Alex White (Dublin South, Labour)
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I will be quick in that regard.

James Reilly (Dublin North, Fine Gael)
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Okay.

Alex White (Dublin South, Labour)
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I think that was an Article 26 reference to the Supreme Court to test the constitutionality of legislation. That would be representation appointed by the Chief Justice to argue for the unborn as a class, not the interests of a particular unborn. It sounds like a crass differentiation, but Deputy O'Donnell will know what I mean. That was to deal with legislation and the same argument cannot be employed here.

Kieran O'Donnell (Limerick City, Fine Gael)
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I am going on the constitutionality aspect of it.

Alex White (Dublin South, Labour)
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That would be to test the constitutionality of a Bill where the lawyers are appointed by the Chief Justice only for the purpose of making that argument.

Kieran O'Donnell (Limerick City, Fine Gael)
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What if this went to the Supreme Court?

Alex White (Dublin South, Labour)
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What is being advocated here is a representative for an individual actual unborn. In response to Deputy Shortall,-----

James Reilly (Dublin North, Fine Gael)
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If I could beg Deputy White's indulgence to facilitate Deputy O'Donnell-----

Alex White (Dublin South, Labour)
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Okay.

James Reilly (Dublin North, Fine Gael)
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-----this is a medical process, it is in process at present and there is no more to add until the medics come back with the guidelines.

Kieran O'Donnell (Limerick City, Fine Gael)
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I will be back.

James Reilly (Dublin North, Fine Gael)
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Yes, but this will not be raised again.

Alex White (Dublin South, Labour)
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There are many questions that we can pose on this, but what the Government and the Oireachtas must do ultimately is come up with answers. Deputy Shortall's question was about how the doctor was to make the call. This was the dilemma she reasonably posited. Our answer to that is contained in the legislation. That is the answer to the question. With respect to Deputy Shortall, I would ask if there is a better way of doing this. If there is, I would be interested in hearing it because there is a constitutional context.

This comes back to Deputy Mulherin's point about Dellway Investments. I will not comment on that. I am here as a Minister of State and it would be above my pay grade to start doing what the Attorney General should be doing. If there is an issue about Dellway Investments in Ireland that needs specific attention, the Attorney General should be asked about it.

I will quote Article 40.3.3°, which is short. The Chairman will not mind because it is for a purpose. It states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

James Reilly (Dublin North, Fine Gael)
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While I do not profess to be in any way legal, I do know that the tenet of what the Attorney General has told us is that the Delaware case was related to people in a commercial relationship and that this is about the unborn in a very different type of relationship. I can come back with more comprehensive information on the issue at a later date, in fairness to Deputy Michelle Mulherin.

With regard to the ethical dilemma involved, what struck me about Deputy Róisín Shortall’s contribution was the point that in no other regime was there any legal responsibility on doctors to protect the unborn. I doubt that there is another constitution the very same as ours. This is the explanation.

Jerry Buttimer (Cork South Central, Fine Gael)
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I ask speakers to be brief because we have already spent more than one hour and 50 minutes on this group of amendments.

Seán Conlan (Cavan-Monaghan, Fine Gael)
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I was very happy with the Minister's response on the issue on certification. It clarifies matters. Deputy Billy Timmins's question illustrates the reason I asked the question. He has attended all of the Oireachtas hearings and understands the issues involved. He posed the question about a pregnant woman presenting and the doctor assessing there was a real risk but the woman then refusing treatment. The Minister has clearly specified that in such a case the doctor cannot certify. However, this is not clear in the legislation. I do not know whether the Minister can deal with it through a definition of reasonable opinion or good faith. It needs clarification because those who are informed may still come to the conclusion that a doctor can certify. That is why there is a problem with the general public having a belief the legislation is not restrictive enough.

James Reilly (Dublin North, Fine Gael)
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I apologise to the committee. That little bit slipped by me with regard to a woman refusing treatment. A doctor cannot certify if a woman refuses treatment. I thank the Deputy for catching this. I re-emphasise what I stated earlier today and yesterday. A doctor cannot certify and the test for certification cannot be met if, in his or her view, the woman has not availed of other treatments which, in his or her view, could ameliorate or avert the threat.

Jerry Buttimer (Cork South Central, Fine Gael)
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I call Deputy Éamon Ó Cuív and ask him to be brief as he has contributed a number of times.

Éamon Ó Cuív (Galway West, Fianna Fail)
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This is the nub of the Bill and in five or ten years time when people will thank us for having taken our time.

Will the Minister clarify the issue to which he has just alluded? What will be the situation where a person does not have a mental illness and the issue of alternative treatment does not arise? I understand refusing treatment for something other than a mental illness will raise questions, considering what was stated at the Oireachtas hearings.

Irrespective of at what stage of the pregnancy the person is, at the very early stages of viability the issue is crucial because of all types of complications. What is the situation where the mother states it is not the pregnancy but the thought of bearing the child which is causing suicidal ideation and that the only thing that will stop her from committing suicide is an abortion? I will use the Irish word, ginmhilleadh, because it is more descriptive. What ginmhilleadh means is very explicit. What is the situation in this regard? It is germane to this question. What is the right of the child in this situation?

Time and again the Taoiseach has stated this will not lead to a change in practice, but in reply to Deputy Billy Timmins the Minister has made it absolutely clear that this is a fundamental change in practice because in the case of the six young people sent to Britain for terminations, he stated the practice was not to provide them here.

James Reilly (Dublin North, Fine Gael)
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I did not.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The other issue which causes me great concern - the issue Deputy Billy Timmins has brought forward with regard to numbers is new to me - is how many pregnant young women-----

Jerry Buttimer (Cork South Central, Fine Gael)
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We are discussing the amendment.

Éamon Ó Cuív (Galway West, Fianna Fail)
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This is relevant. We have had six cases. How many pregnant young women in total are in care? It seems that if this is extended to the total population, it is a very high number and a very frequent occurrence. Will the Minister address this issue because statistically it seems that very significant numbers will be involved.

James Reilly (Dublin North, Fine Gael)
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I will answer these questions now as they are very salient. In an instance where there is no mental illness - bear in mind that this is a clinical assessment which will take some time to form - the Deputy has asked what will happen if the suicidal ideation remains and the risk of suicide is high and real. The pregnancy will be terminated if it is the only way to avert the risk. The risk and threat to life must be assessed. The Deputy has asked what would be the situation if the child was the problem. We have made this very clear. Neither the woman, the doctors nor any citizen or non-citizen of the country have a right to commit infanticide or the right to interfere with a child that is viable.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Before it is born.

James Reilly (Dublin North, Fine Gael)
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If the Deputy's question is that suicidal ideation is only an issue as a consequence of a child being born, clearly it is not possible for a doctor to certify in such circumstances. It cannot be.

Éamon Ó Cuív (Galway West, Fianna Fail)
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It must be the pregnancy rather than the child.

James Reilly (Dublin North, Fine Gael)
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Yes, it has to be the pregnancy.

The Deputy also contends that the Taoiseach has stated this will not lead to a change in practice. This must be taken in the round. I presume we all accept that what we are trying to do - we have stated it time and again - is have clarity for the women of this country as to what is legally available and how to access it and to have clarity for the professionals who must deliver the service as to what is legally permissible and what they are duty bound and obliged to provide. The natural consequence of this is improved practice. If we get into semantics about changes in practice and whether improved practice is changed practice, one can see where I am heading.

With regard to the issue raised by Deputy Billy Timmins of the six teenagers in care who travelled, I did not state it was not the practice; I stated it was not clear to them how they could access the service, which is why they travelled and we are introducing this legislation.

Deputy Éamon Ó Cuív also asked how many pregnant young women were in care. I do not know here and now, but we can find out and come back to the Deputy. The essence of what he has asked is that if the figure is six out of 1,000 in care, what is the figure among the general population. Nobody involved in statistics or analysis would buy this for half a minute because all types of confounder are involved. Everybody acknowledges - I certainly do - and I state to the Deputy as a doctor that young girls in care are probably at higher risk of finding themselves in this situation than those in other settings. However, one does not extrapolate in a direct line, as the Deputy has perhaps suggested. I can come back to tell him how many children are in care, but the figure cannot be used in the fashion he has indicated it might be used.

Denis Naughten (Roscommon-South Leitrim, Independent)
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The Minister has just stated something very significant and I ask him to clarify it. With regard to a woman with suicidal intent, if there is no underlying mental health issue, a psychiatrist must certify.

Catherine Byrne (Dublin South Central, Fine Gael)
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Perhaps the Minister will clarify a point. Is there anywhere in this Bill or amendment that the life of a viable unborn baby is not protected? Does the Minister understand what I mean?

James Reilly (Dublin North, Fine Gael)
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I do, and I will answer again with a monosyllabic "No".

Michelle Mulherin (Mayo, Fine Gael)
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Regarding representation and given the rarity of this event, would the Minister consider a situation in which the documentation - not a medical assessment, but the paperwork - was handed to a representative of the Attorney General once the certification was done to ensure that everything had been attended to procedurally? By the time a failure is reported to the Minister, the life of an unborn has been terminated. That is too late for the unborn's right to life to be vindicated.

Éamon Ó Cuív (Galway West, Fianna Fail)
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In the Minister's reply to me, he referred to not knowing where to access the service. My understanding is that cases would have been taken by the HSE, which one would expect would know where the service was available.

I accept that people in care are statistically more likely to be vulnerable. On the other hand, since they are in the top class care of the HSE or another institution, one assumes that they have better supports than a vulnerable person living in the wider community.

A final issue of major concern is that of marginal viability, where extra weeks would significantly change a child's chances of not having a disability. Being born full term gives a baby advantages. Other than the obligation to sustain the child if born, is there an obligation to try to maximise the time in which the child is born? In this way, the child would not only get the maximum chance to live, but also the maximum chance to live at the maximum quality of life. Someone born with a catastrophic disability but who is otherwise perfectly healthy could have been born with no disability had he or she been given an extra few weeks. This would affect the person for the rest of his or her life.

Jerry Buttimer (Cork South Central, Fine Gael)
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On the amendment.

Jerry Buttimer (Cork South Central, Fine Gael)
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We are on section 9. The Deputy is straying.

Jerry Buttimer (Cork South Central, Fine Gael)
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We discussed the matter.

Jerry Buttimer (Cork South Central, Fine Gael)
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I chair the meeting.

Jerry Buttimer (Cork South Central, Fine Gael)
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Yes, but we are on an amendment.

James Reilly (Dublin North, Fine Gael)
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The Minister of State wishes to discuss the guardian ad litem issue.

Alex White (Dublin South, Labour)
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I wish to refer to a number of the points raised, including that of the potential liability on the State.

Denis Naughten (Roscommon-South Leitrim, Independent)
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No, I am talking about the State.

Alex White (Dublin South, Labour)
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In an individual case.

Denis Naughten (Roscommon-South Leitrim, Independent)
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Yes, and the medical professionals who carry out the procedure.

Alex White (Dublin South, Labour)
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The principles that apply which we went through are the same as those that apply generally in medical negligence cases.

As regards the care required to be taken in the clinical environment, as long as that is taken and the generally accepted standards of the profession are applied by a doctor in a given instance, as long as he or she applies in good faith the test set down in the legislation, as long as he or she does what is expected of him or her by law and upholds the professional practice guidelines of his or her own profession, as set out in the Dunne principles a number of years ago in the Holles Street case which is well known to the medical profession, there are no absolutes.

Deputy Róisín Shortall has asked how can we be certain. To be absolutely honest, the only answer is that we cannot be absolutely certain. No sunset clause or review will give certainty.

As regards the notion of doing our best, I was not suggesting thais. It was being characterised as doing one's best, while leaving open the question as to whether that was good enough. The fact is that is all any of us can do, on the basis of the advice we have available and in the context of the Constitution, the X case and the expert group that went through the judgment. This legislation reflects to a very considerable degree what the expert group stated. As legislators, we set down a test in good faith, to coin a phrase, and calibrated that test. We maintain at the forefront of our minds at all times the equal right to life. I ask Deputy Róisín Shortall if there is another way. Ffrankly, I do not understand how a sunset clause could allay people's concerns.

Alex White (Dublin South, Labour)
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In what way? If someone has a better proposal as to how this can be done, he or she can tell us what it is now and we can consider it. As regards saying we would review it, under the Constitution one cannot have a sunset clause in legislation. One either passes legislation by voting for it or one does not. The other thing about it is that what the Oireachtas enacts, it can repeal at some point in the future. Therefore, I do not agree with the Deputy.

As regards the test, there is a constitutional imperative for everybody involved to have regard to the equal right to life of the mother and the unborn. Deputy Byrne asked the question succinctly and received a succinct answer. That is at the heart of the legislation. It is a constitutional imperative that the doctors involved must have regard to the equal right to life of the mother and the unborn. That is why we say it is not a right to kill the unborn or destroy the foetus. It is a right on the mother's part, in certain circumstances set out in the legislatin, to have a termination of her pregnancy. The two are not the same.

To come back to the point on whether there is another way of doing this, we cannot adjust the test downwards. If we say there is a real and substantial risk to the mother's life, that is clear. If it can only be averted through a termination, that is clear. We then have a legitimate concern about what the implications might be for a viable foetus. That is a legitimate concern to raise, but the answer to it cannot be to adjust in some way the test that the woman has already, as it were, passed - if I can use that term. In other words, it has already been certified that there is genuinely a real and substantial risk to her life, or is it being suggested that, in circumstances where there is a legitimate concern about the unborn, we should revisit the test of whether there is a real and substantial risk to her life? There either is or there is not a real and substantial risk to her life. That cannot be varied as a result of something happening on the other side of the equation, if I can put it that way.

James Reilly (Dublin North, Fine Gael)
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Gabh mo leithscéal. Ba maith liom cúpla focal a rá.

Jerry Buttimer (Cork South Central, Fine Gael)
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Yes.

James Reilly (Dublin North, Fine Gael)
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I ask the Minister of State to answer Deputy Michelle Mulherin's suggestion of a post-certification process in order that all papers are correct.

Alex White (Dublin South, Labour)
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I am afraid I missed that suggestion.

Jerry Buttimer (Cork South Central, Fine Gael)
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Before bringing in the Minister of State, I call Deputy Seán Conlan to contribute very quickly because he has already contributed a number of times.

Seán Conlan (Cavan-Monaghan, Fine Gael)
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It is based on something Deputy Denis Naughten asked. He said that if there was no underlying mental health issue, psychiatrists were bound to certify. I am posing the question based on the situation under the Mental Health Act 2001 where it is not permitted to impose a treatment. How does that tie in with what I asked concerning a situation where a pregnant woman refuses treatment? One may not be able to impose a treatment, but surely one has to suggest alternative treatments to comply with Article 40.3.3o, or is that not the case? I was concerned that in his answer to Deputy Denis Naughten, the Minister had stated a doctor was bound to certify in an instance where there was no underlying mental health issue.

James Reilly (Dublin North, Fine Gael)
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Let me give the full answer and I will work my way back to Deputy Seán Conlon's question because he has raised a very important point.

What I surmised from Deputy Denis Naughten's question was that in the absence of any underlying psychiatric illness - this would take some time to assess and ascertain - and the risk of suicide was serious - it was real and substantial - and the only way to avert that risk was by a termination of pregnancy, a termination of pregnancy would take place.

Deputy Seán Conlan talked about the right to impose or instigate treatments, but that does not arise. A failure to certify will arise where the certifier cannot satisfy himself or herself that other modalities would not help to avert the risk and because the woman refuses to co-operate, although there is no underlying psychiatric illness and, therefore, no issue as to her capacity to give informed consent. If we have a perfectly sane person, with perfectly good compos mentis ability to give informed consent, who refuses to give consent to treatment or co-operate with treatments that could address the issue, the Bill is quite clear - the certifier cannot certify because he or she has not been able to say with absolute authority that it is the only way to avert the risk to the woman's life.

I will come back to Deputy Michelle Mulherin's point.

Deputy Éamon Ó Cuív talked about the HSE being the authority, and he should know. However, the problem is that the HSE is a composite of a load of different professionals and individuals. The reality is that there is a lack of clarity in the law and they are as afflicted by this lack of clarity as anybody else.

Deputy Róisín Shortall raised the issue of termination of pregnancy versus the right to life of the unborn. I am glad that she has raised that issue because it gives me an opportunity to clarify what I am saying. Under the Bill, a woman has a right to a termination of pregnancy if that is the only treatment that can avert the real and substantial risk to her life. It does not confer a right on her or anybody else to destroy the life of the unborn as an entity in itself. If that happens as a consequence of the gestational period involved, it is obviously going to be the outcome. However, if the pregnancy is 30 weeks in gestation, there is absolutely no right for the woman to seek the destruction of the child - none.

Deputy Róisín Shortall also talked about the legal and ethical considerations. They will continue to apply and will change and modified under the best practice guidelines from the various institutes and colleges. They will also be adjudicated on and agreed to by the Medical Council. The Deputy has said one cannot prove whether someone is suicidal and she is absolutely right. In fairness, it is very difficult to do so with absolute authority. It is a clinical decision, but what one can do as a psychiatrist and what he or she is being asked to do in the Bill is to assess the risk to the woman's life. Is it real and substantial? That being the case, is a termination the only thing that will avert the risk? I reiterate that no one has a right to destroy the baby but only to terminate the pregnancy if it is to save the woman's life and the only treatment available to save her life.

Alex White (Dublin South, Labour)
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I agree absolutely. That is the position.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I asked a fundamental question. The Minister has differentiated between a pregnancy and a baby.

James Reilly (Dublin North, Fine Gael)
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Sorry, that is why I clarified what I said a moment ago. In the case of a pregnancy that is at a gestational age where a viable baby is possible, she has no right to terminate the baby's life. I want to clarify that in case I caused confusion with my answer to Deputy Ó Cuív. The diagnostic test is whether or not she is suicidal and the only treatment is termination to avert that risk. To be absolutely clear, the test is that this woman is of a high risk of suicide, that her suicidal intent is such that it represents a substantial and real risk to her life and the only way of averting that risk is to terminate the pregnancy. If that pregnancy is below 22 or 23 weeks that is going to result in the destruction of unborn life but that is an unintentional effect. If it is at 28 or 30 weeks then a viable baby may be born. She has no right to interfere with the life of that baby, nor has anybody else. I hope that clarifies things.

Éamon Ó Cuív (Galway West, Fianna Fail)
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With regard to the whole issue and the philosophy behind it and when we get into the practical issues of the risk to the unborn, let us take the period between 24 and 37 weeks which is 13 weeks or a third of the time that a pregnancy lasts, give or take. My understanding is that during that period unnecessarily delivering the child early creates a high risk of disability. I have been told, for example, that one third of babies born between 24 and 26 weeks will suffer a brain haemorrhage. Of those babies that survive delivery at 25 weeks, 50% will be left with cerebral palsy and severe disablement, including mental retardation, blindness and hearing problems. I understand further-----

Jerry Buttimer (Cork South Central, Fine Gael)
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We are discussing the amendment.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Yes, on the amendment. Effectively, the Minister's amendment covers all of this issue. The problems of prematurity exist until approximately 37 weeks so here is the issue. We know that the diagnosis of suicidality is hit and miss. In fact, there is a very low rate of successful diagnosis of whether a person would commit suicide or not.

Alex White (Dublin South, Labour)
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We cannot know that.

Éamon Ó Cuív (Galway West, Fianna Fail)
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That is what the psychiatrists have said. The issue is, with the Bill, a large number of adults could likely present to a future committee. They will say that they were perfectly healthy babies but because of the construction of the Bill they are seriously disabled as they were prematurely born due to an assessment of risk. We know from many psychiatrists that this is something that they cannot access with any accuracy. The issue is not due to a lack of term limits. When one thinks of these people as adults one will suddenly realise the enormity of the decision that we are about to make here.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I wish to ask a brief question.

Jerry Buttimer (Cork South Central, Fine Gael)
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Very quickly.

Denis Naughten (Roscommon-South Leitrim, Independent)
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I thank the Minister for coming back to me. I ask the Minister to correct me if I am wrong. He said that if a foetus is viable outside of the womb then in the case of section 9 it cannot be certified for a termination. Does that not set a term limit on it?

James Reilly (Dublin North, Fine Gael)
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No. I did not say that at all. Can I deal with the last question?

Jerry Buttimer (Cork South Central, Fine Gael)
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I wish to call Deputy O'Donnell.

James Reilly (Dublin North, Fine Gael)
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Okay.

Kieran O'Donnell (Limerick City, Fine Gael)
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I wish to say a few things. I apologise for rushing out. I beg the committee's indulgence and ask for a quick response to my query on clinical guidelines. My question is on section 9.

Jerry Buttimer (Cork South Central, Fine Gael)
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We are dealing with amendment No. 32.

Kieran O'Donnell (Limerick City, Fine Gael)
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Sorry, I thought we were debating the section.

Jerry Buttimer (Cork South Central, Fine Gael)
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No. I shall allow the Deputy in later.

Michelle Mulherin (Mayo, Fine Gael)
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I know that the Minister of State, Deputy White, posed the question, if we can come up with something else, please do. Many of us have put a lot of thought into how the legislation might be amended and made more explicit in order to avoid the debate that we are having. We know what takes place in a court of law. One is given a brief, everybody argues each side and then one must see what the judge comes up with. Members have talked about legitimate concerns and proposals have been made here.

I have a question for the Minister who indicated that some of what has been said - although he did not specify what - might be taken on board for Report Stage. Can he give more details? What areas will he examine? I like to think that some of the concerns expressed here are not being dismissed but are covered by assurances, where it would seem that we are in agreement that this should be the case, but he cannot make it explicit and we must read it into the legislation based on things like the X case or the Constitution. I feel it is better, if we are truly on the line of being restrictive, that we are explicit. That is my contention. Suggestions have been made and I ask the Minister to take them on board.

James Reilly (Dublin North, Fine Gael)
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I shall deal with Deputy Ó Cuív's contribution first. He has misunderstood the Bill somewhat. The Bill is to clarify existing law. I wish to clearly say that all that he elucidated regarding the complications of prematurity can occur as the law stands. All that we are doing with the legislation is bringing clarity to it for the doctors who have to provide it, the nurses and for the women who need the service. Very importantly, it will give them knowledge on how to access the service.

With regard to Deputy Naughten's comments, I am sorry but he may have misunderstood me in terms of what I have said. I am saying, very clearly, no one has a right to terminate the baby outside of the womb. A viable baby will be supported in all cases. I am not saying that a woman who is suicidal, assessed as having a serious, real and substantial risk to her health, and the only way to avert it is to terminate the pregnancy, is not entitled to that. She is entitled to it.

I cannot give Deputy Mulherin more detail about the amendments at the moment because they are still under consideration. Members will have a full opportunity before Final Stage and will have time to consider them in full.

Jerry Buttimer (Cork South Central, Fine Gael)
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Is Minister of State okay?

Alex White (Dublin South, Labour)
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Yes.

Jerry Buttimer (Cork South Central, Fine Gael)
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I call Deputy O'Donnell.

Kieran O'Donnell (Limerick City, Fine Gael)
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I ask the Minister to update us on the clinical director issue.

Jerry Buttimer (Cork South Central, Fine Gael)
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We have already dealt with the matter.

Kieran O'Donnell (Limerick City, Fine Gael)
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Sorry, I misunderstood as I had to leave. I beg the Minister's indulgence and ask him to repeat his reply because I did not hear him. Can I have a general outline on a clinical director?

James Reilly (Dublin North, Fine Gael)
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This is the problem caused by the Doppler effect of sound. Is that not correct, Deputy?

On a serious note, the guidelines are under consideration and are being formulated as we speak. The process is in train and they will be made available as soon as possible. I cannot give the Deputy any more of an update.

Kieran O'Donnell (Limerick City, Fine Gael)
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Are consultations ongoing?

James Reilly (Dublin North, Fine Gael)
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Absolutely.

Kieran O'Donnell (Limerick City, Fine Gael)
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I thank the Minister.

Jerry Buttimer (Cork South Central, Fine Gael)
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Amendments Nos. 33 to 37, inclusive, fall as a consequence. Is that agreed? Agreed.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 39:

In page 10, line 15, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.

James Reilly (Dublin North, Fine Gael)
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I move amendment No. 42:

In page 10, line 25, to delete “subsection (1)(b)” and substitute “subsection (1)(a)”.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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