Dr Simon Mills, Barrister-At-Law 21St May 2013

Joint Committee on Health and Children - Public Hearings on the Protection of Life During Pregnancy (Heads of) Bill 2013

Dr Simon Mills, Barrister-at-Law – 21st May 2013

Opening Remarks

I will make a brief opening statement, but it will consist of only very brief remarks and a summary of the points set out in my – comparatively brief – written submission, so I do not set out detailed opening remarks in full here.

I note that the Invitation to appear for the Committee requires me to confine my remarks and submission to the Head of Bill and I set out the submissions on a “Head by Head” basis, as requested by the Committee.

General observation

How does the Bill propose to deal with minors: does a 14 year old have the right to request and consent to a termination? It is noted that a “woman” is defined as a female person of any age.

What about women who lack mental capacity or whose mental capacity is doubtful?

Head 1

Consideration might be given to stating – in the interests of clarity - 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.”

Rationale for suggestion – while the kernel of the X case test is expressly set out Heads 2-4 (namely that there must be a real and substantial threat to the life of the mother), it might be helpful to expressly set out this related aspect of the X case test.

Head 2

(3)(a)In forming their opinion, at least one of the two medical practitioners referred to in paragraph (b) of subhead (1) shall consult with the pregnant woman’s general practitioner where practicable.

Rationale:Should this obligation be present, even for those situations where it is manifestly not necessary? The reason offered for including this provision is two-fold:

This would provide access to their knowledge of the patient and
The need for knowledge from the GP only arises where there is a deficiency in assessment of the doctors. Is the theory that the information from the GP could “tip the balance”, even though the GP will not have carried out an examination? It would seem preferable that the obligation should not be merely “where practicable” but rather “where clinically appropriate”

Establish continuity of care for the woman after the treatment has been delivered.

This reasoning does not provide a basis for the GP to be contacted before the forming of an opinion prior to termination; continuity of care can be ensured by ensuring contact is made afterwards.

What if the woman does not want her GP contacted?

(3)(b) In forming the aforesaid opinion both medical practitioners should examine the woman.

Issues:Is the choice of the word “should” (as opposed to “shall” deliberate?

Is there always a need to “examine” the woman? Better to have a test based on an appropriate assessment of available clinical evidence:

Might be that test for need for operation is not a physical examination but the consideration of radiological evidence or test results.
May be that expert opinion needs to be obtained remotely

(5) It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is permissible under this Act.

What about lack of capacity, especially mental capacity?

Head 3

It is presumed that “medical emergency” includes all forms of clinical emergency, including surgical, gynaecological and clinical crises where the woman’s life is in danger.

What if a “threat of self-destruction” was itself a “medical emergency” in the particular circumstances of a woman’s case? Is the Committee satisfied that no such emergency could ever arise?

Head 4

(1)(b) one obstetrician/gynaecologist, who must be employed at that location, and two psychiatrists, both of whom shall be employed at a centre which is registered by the Mental Health Commission, and one of whom shall be attached to an institution where such a procedure is carried out, in accordance with this head, jointly certified in good faith that –

(i)there is a real and substantial risk of loss of the pregnant woman’s life by way of self-destruction, and

(ii)in their reasonable opinion this risk can be averted only by that medical procedure

Issue: What clinical role is there for an obstetrician in this assessment? The assessment of suicide appears to be a matter for psychiatrists.

(2) (a)At least one of the three medical practitioners referred to in paragraph (b) of subhead (1) shall consult with the pregnant woman’s general practitioner where practicable.

Issue:It is easier to see rationale under Head 4 for consulting with general practitioner, where past mental health history may be of great relevance to a patient’s current condition.

The need to ensure continuity of care, on the other hand, seems an unsound basis for insisting on GP contact prior to the termination

(3)Where three medical practitioners referred to in this head have jointly certified an opinion … the certifying obstetrician/gynaecologist… shall forward the certificate to a location …and shall make arrangements for the carrying out of the procedure at that location.

Issue:There is scope for a possible of psychiatrists by obstetrician on a question of psychiatry; similarly, if there is a role for obstetrician (an one must be open-minded that this is possible) then s/he might be vetoed by psychiatrist on question of obstetrics

Does Head 4 discriminate on any impermissible grounds and – if so – is that discrimination justifiable?

Extra doctor
No scope for “emergency” under Head 2
What if a threat of suicide is so serious that – in the opinion of a treating doctor (perhaps with the opinion of a single other relevant specialist) – it brings the case within Head 2?

Heads 6-9

Issues:

Review in the case of those lacking capacity and who therefore cannot request it

What if a review is not timely?

What if non-attendance by a witness or the non-production of a document causes a termination to be refused that would otherwise have been granted?

What about conflict of interest on a panel? Should a Panel Member should be obliged to declare any conflicts of interest?

Heads 10-11

Issues:

Are these two Heads unnecessarily repetitive: if the Executive is going to report to the Minister under Head 10, why does each individual procedure also have to be notified to the Minister? Does is not make sense for the locations to report each case to the HSE and then for the HSE to report to the Minister as provided for by Head 10.

Head 12

(1)“assisting” in the carrying out a termination

Issue:The term “assistnot defined and there has been recent case law (in Scotland) dealing with the scope of conscientious objection under the 1967 Abortion Act: DooganAnor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36 (24 April 2013)

In the UK legislation the word used is “participate”, which is arguably a word with a wider ambit than the word “assist”, so the same uncertainty may not arise in this jurisdiction.

(3) What is a “third party”?

Practical implications of imposing an obligation on an institution: Equality Legislation?
What if everyone in the Institution has the same conscientious objection: the net effect will be that the institution has – in effect – a conscientious objection. Is the intention to compel all institutions to have on their staff at least one person who does not have a conscientious objection
Note the Council of Europe Guideline which require a balance between conscientious objection and those who may be vulnerable as a result of the exercise by others of their right of conscientious objection:

Parliamentary Assembly of the Council of Europe

The right to conscientious objection in lawful medical care

Resolution 1763 (2010)[1][1]

No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.
The Parliamentary Assembly emphasises the need to affirm the right of conscientious objection together with the responsibility of the state to ensure that patients are able to access lawful medical care in a timely manner. The Assembly is concerned that the unregulated use of conscientious objection may disproportionately affect women, notably those having low incomes or living in rural areas.
In the vast majority of Council of Europe member states, the practice of conscientious objection is adequately regulated. There is a comprehensive and clear legal and policy framework governing the practice of conscientious objection by healthcare providers ensuring that the interests and rights of individuals seeking legal medical services are respected, protected and fulfilled.
In view of member states' obligation to ensure access to lawful medical care and to protect the right to health, as well as the obligation to ensure respect for the right of freedom of thought, conscience and religion of healthcare providers, the Assembly invites Council of Europe member states to develop comprehensive and clear regulations that define and regulate conscientious objection with regard to health and medical services, which:
guarantee the right to conscientious objection in relation to participation in the procedure in question;
ensure that patients are informed of any objection in a timely manner and referred to another healthcare provider;
ensure that patients receive appropriate treatment, in particular in cases of emergency.

[Emphasis added]

(4) In the event of a doctor or other health professional having a difficulty in undertaking a required medical procedure, he or she will have a duty to ensure that another colleague takes over the care of the patient as per current medical ethics

issue:The current medical ethical guidelines, unlike their predecessor editions, do not expressly say that referral must be to a person who will provide the treatment in question:

10 Conscientious objection

10.1 As a doctor, you must not allow your personal moral standards to

influence your treatment of patients.

10.2 If you have a conscientious objection to a course of action, you should explain this to the patient and make the names of other doctors available to them.

10.3 Conscientious objection does not absolve you from responsibility to a patient in emergency circumstances.

Issue:What about the provision of an opinion? If you have a conscientious objection to the carrying out a termination, should you be permitted, for example,

to provide an opinion under Heads 2-4 or
to sit on Review body under Heads 6-9?

Issue:The explanatory text refers to pharmacists, although they do not appear in the text of Head 12

Were they intended to be included in Head 12 as having a right of conscientious objection?
If so, they are surely not “carrying out” a termination of pregnancy by dispensing medication and the section (or the definition) may need to be amended.

Head 13

Is there an argument for simplifying the existing legislation on the Provision of Information.

The need for Head 13(2) is a clear acknowledgement that there will still be significant travel from this jurisdiction to the UK in the event that the Bill becomes law.

Head 19

(1) It shall be an offence for a person to do any act with the intent to destroy unborn human life

issue:This section is problematic.There may well be terminations carried out under heads 2, 3 and 4 where some (or the entirety) of the intention is to destroy human life (albeit to save the life of the mother). To claim that such terminations (if not all of them) are not intentional destructions of the foetus is a legal (and arguably philosophical) fiction: on the face of Head 19, such terminations would run the risk of being both legal (pursuant to the relevant Head under which the termination was carried out) and illegal (pursuant to Head 19) at the same time.

A saver clause to deal with such terminations as may be carried out under Heads 2,3 and 4 is clearly necessary.
Similarly, a provision to the effect that for a person other than a registered medical practitioner to carry out a termination that is purported to be otherwise in accordance with Heads 2,3 and 4 might need to be an offence.
Biographical Note

Dr Simon Mills

Qualifications:

MB, BCh, BAO, BA (U Dubl); BCL (NUI), MSc (Lond), MICGP, Barrister-at-Law

Medical Background:

I qualified in medicine from Trinity College Dublin in 1993. I was awarded Honours in that part of my final examination dealing with Medical Jurisprudence (including Medical Law and Ethics). While a student at TCD, I was president of the Irish Medical Students’ Association.

I completed a pre-registration intern year in St James’ Hospital in 1993-4, including periods in surgery and medicine. I was accepted onto the Dublin Regional Vocational Training Scheme in General Practice (now the TCD Training Scheme in General Practice) in 1994 and commenced a 3-year training rotation in General Practice. During that course I obtained a Diploma in Child Health and a Certificate in Palliative Care. At the conclusion of the course, in 1997, I was successful in the Membership Examination of the Irish College of General Practitioners (MICGP).

From 1997-2011, I practised as a part-time General Practitioner, predominantly in the Dublin 7 area. During that time, I saw many patients who were considering termination of pregnancy and in particular those who were experiencing crisis pregnancies and those whose pregnancies were affected by lethal foetal abnormalities.

Legal Background:

While practising as a part-time General Practitioner, I attended University College Dublin from 1997-2000, where I studied for the degree of Bachelor in Civil Law. I was awarded the Swift McNeill Scholarship and a medal in Constitutional Law.

I completed the Barrister-at-Law degree from the Honorable Society of King’s Inns in 2002 and have practised since 2002 as a Junior Counsel at the Law Library, specialising in all aspects of healthcare law. I am the author of Clinical Practice and the Law (Bloomsbury Professional, 2ndedn, 2007; 3rdedn in preparation) and lead author of Disciplinary Proceedings in the Statutory Professions(Bloomsbury Professional, 2011). I am contributing lecturer and external examiner in Medical Law at the Law Society, Blackhall Place.

I was admitted as a Foundation Member of the Faculty of Forensic and Legal Medicine in 2009.

Medical Ethics:

I hold an MSc in Philosophical Medical Ethics from Imperial College London. I was awarded First Class Honours and first place in the Class. I was also awarded First Class Honours for my thesis, which dealt with the subject of abortion and was entitled Identity, Dependency and Rawls - Notes Towards a Pluralist Abortion Law. I lectured in Medical Ethics at the Royal College of Surgeons of Ireland from 2004 until 2011,.

Interest in this matter:

• I have been invited to attend by the Committee, following a an appearance before the Committee earlier this year, when I was also invited to attend. I have previously contributed to broadcast and other media on the issue of abortion, including calls for reform of abortion law.