A Separate Process for Suicide within the Scheme of the Protection of Life during Pregnancy Bill 2013

 We are delighted to welcome this guest post on the Protection of Life during Pregnancy Bill from Dr Claire Murray of the Faculty of Law, UCC.

 

After considerable speculation, a number of delays, and a few leaks the draft Scheme of the Protection of Life during Pregnancy Bill 2013 was published on Wednesday 1st May. The Taoiseach was keen to state that the draft legislative framework did not in any way extend the rights of women in Ireland. The sole purpose was to provide clarification for doctors and women on the availability of abortion in Ireland in accordance with the extremely narrow terms set out in Article 40.3.3 and the Supreme Court ruling in the X case. The Scheme of a Bill outlines the general shape of the proposed legislation and it will now be sent to the Joint Oireachtas Committee on Health and Children forfurther discussion and debate.Relevant persons will once more be invited to address the Joint Oireachtas Committee and further information on making a written submission can be obtained here. The intention is that the legislative process will be complete by the end of July 2013.

This post will focus on the process contained in Head 4of the draft Scheme to assess “the risk of loss of life from self-destruction.” The inclusion of suicide within the draft legislation has been the primary site of struggle in the recent debates on abortion in Ireland.Once it became apparent that, despite vigorous campaigning, the legislative framework would include a risk to life by suicide the focus of anti-choice campaigners shifted fromarguingthat suicide should be excluded to arguing that there should be a distinct process for assessing the risk to life from suicide and that this should be a more rigorous and onerous process. I have blogged here about the narratives of the untrustworthy, unreliable and hysterical woman underpinning this position. Making it more difficult to obtain an abortion where the risk to life is from suicide is portrayed by those who argue from an anti-choice perspective as the only effective barrier against “opening the floodgates” to “abortion on demand” in Ireland. Clearly these negative narratives have influenced the politicians as the Scheme of the Bill does include a separate process for assessing a risk to life through self-destruction. This distinguishes suicide as a case apart and one that is worthy of additional checks and balances to ensure that the system (and the medical professionals involved) are not manipulated by women who want abortions but do not meet the very strict criteria.

The Heads of the Bill propose that where the risk to the life of the woman is from self-destruction there should be three medical specialists involved in assessing whether there is a risk to her life which can only be averted by providing her with an abortion.Where the risk to life arises from a physical condition two medical specialists are sufficient to certify that the test has been satisfied. The three specialists to be involved are an obstetrician/gynaecologist and two consultant psychiatrists. Both consultant psychiatrists must be employed at a centre that is registered by the Mental Health Commission and one of them must be attached to an institution which has a public obstetric unit.The Scheme requires all three medical practitioners to unanimously certify “in good faith” that there is a real and substantial risk to the life of the woman by self-destruction that can only be averted by obtaining an abortion. At least one of the medical practitioners on the panel must consult with the woman’s GP “where practicable.” In forming their opinion the medical practitioners “should examine the woman.” There is no definition of examination provided in the draft scheme of the Bill. Head 4, subhead 4 states “[i]t 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.”

The inclusion of a separate process for assessing risk to life by self-destruction involving three medical practitioners is in line with Option 3 set out in the Report of the Expert Group. According to the explanatory notes under Head 4 this provision arises “from the recognised clinical challenges in accurately assessing suicidal intent, and the absence of objective clinical markers.” The Bill does not provide that the three doctors examine the woman together or that they examine her at the same location. Detail has not been provided in the draft legislation on how a referral to the panel might occur in a case where a woman is seeking an abortion and experiencing suicidal thoughts. The reason given is that clinical situations of this nature are bound to be unpredictable and complex and so flexibility should be allowed for standard medical practice to respond to the circumstances that arise.

The provisions contained in the draft Billappear relatively level-headed and balancedafter the leaks that emerged over the past few weeks. Suggestions that women would be required to be assessed by a panel of six medical practitioners were generally met with a sense of disbelief that this could be considered practical or appropriate. The proposals were described by Dr. Anthony McCarthy, President of the College of Psychiatrists in Ireland and one of only three perinatal psychiatrists practising in the country, as “abusive” and “some sort of sick joke.” However the leaking of these proposals served a purpose. As a result of those leaks there is now a considerable sense of relief that the legislation does not include anything so clearly excessive. Three doctors assessing the risk to life by self-destruction is now viewed as a compromise position, perhaps the best we could hope for, rather than being criticised for being unduly onerous and unnecessary.

In this context I think it is important to reiterate the objections to includingin the legislation a separate process in circumstances where the risk to the life of the woman is from suicide. These difficulties were recognised by the Expert Group in their Report when they suggested including a distinct process in relation to suicide.First, it is inherently discriminatory to have a different procedure in place for women who are experiencing mental health difficulties or suicidal ideation and wish to avail of a lawful abortion. Second, these “safeguards,” as they are termed, serve to reinforce the stigma surrounding mental health conditions in Ireland by treating it as a case apart. Finally this proposal places an extra burden on women by requiring three doctors to make the final decision in cases involving suicide. In general society accepts that one psychiatrist can assess suicidal ideation and this is a routine procedure for clinical psychiatrists.For further discussion on this issue see de Londras at humanrights.ie.

The requirement set out in the draft Scheme that the decision of the three doctors assessing the risk to life be unanimous may create practical difficulties. It allows for the possibility that one medical practitioner could veto the decision in circumstances where the other two doctors are willing to certify that the legal test has been satisfied. Given the recent statement issued on behalf of 113 consultant psychiatrists in Ireland to the effect that “legislation that includes a proposal that an abortion should form part of the treatment for suicidal ideation has no basis in the medical evidence available” it is clear that there is a difference of opinion within the psychiatric profession on this issue. There are, therefore, legitimate reasons for fearing that this situation will arise. The perception of suicidal women seeking an abortion as inherently untrustworthy will continue to impact on the operation of this process once it is introduced.

The inclusion of obstetricians in the panel to assess the risk to life from suicide is also worthy of comment. Obstetricians have no training or expertise in assessing suicidal ideation or risk to life by self-destruction and so it is unclear what they will add to the panel in making this decision. This was highlighted in the response of Doctors for Choice to the Heads of the Bill.The explanatory notes under Head 2 of the Scheme, which relate to assessing a risk to life, other than from self-destruction,note that in all situations, except emergency circumstances, one of the certifying medical practitioners will always be an obstetrician/gynaecologist. The note goes on to state “[t]his provision is deemed appropriate for two reasons. Firstly, in accordance with current clinical practice, an obstetrician/gynaecologist isobliged to care for the pregnant woman and the foetus and, therefore has a duty of care toboth patients and to have regard to protecting the right to life of the unborn and to bring thatto bear on the care of the woman and her unborn child. Secondly, a termination ofpregnancy will most likely be carried out by, or under the care of, anobstetrician/gynaecologist, and therefore their inclusion here should be central in accessingservices and ensuring patient safety.”The obstetrician therefore seems to be included in order to ensure that the position of the unborn is given sufficient consideration in any decision being made.

The suggestion in the Scheme that consultation take place between one of the panel members and the woman’s GP is sensible, but under this scheme the GP will have no direct input into the decision-making process. Arguably it would have made more sense, given the acknowledgement of the valuable contribution that can be made by the woman’s GP in the explanatory notes under Head 4, that the GP be included on the panel making the decision in relation to the risk to life. This is not a suggestion that a fourth doctor should be added to the panel. Rather, if the general position is that two doctors are required to assess the risk to the life of the woman then where that risk is of self-destruction a GP and a consultant psychiatrist would seem to be a reasonable combination. In the context of involuntary admission under the Mental Health Act 2001 the process requires a GP toprovide a recommendation for admission and the final admission order is made by a consultant psychiatrist. There should not be a more onerous process in place under the 2013 Bill in relation to suicide.

Finally, the draft legislation does not provide that the woman must be examined by all three medical practitioners at the same time. While this approach may have been adopted to avoid the process being described as similar to an inquisition, a term that was used in respect of the proposals for six medical practitioners to assess the woman, it may have other negative consequences. Allowing for the possibility that a woman in distress, who states that she is suicidal,might be required to attend at three different appointments to meet with three different medical practitioners and to recount her story three times is questionable. It has the potential to draw out the process and it gives the appearance of a series of obstacles being placed in the way of the woman. It is likely that the repeated recounting of her story by the woman may operate to compound her distress. There is also the risk that any slight variations in the story told by the woman over multiple examinations could be seen as evidence that she is not being entirely truthful. It may be the case that this issue will be addressed in regulations or guidelines, but the provisions in the draft Scheme of the Bill are troubling.

The proposed legislation will provide a degree of clarity to medical practitioners and women in Ireland. However, it will affect only a tiny proportion of women. Those women who have been the victim of rape or incest, those who are carrying a foetus with a fatal abnormality incompatible with life outside the womb, those women whose health will be seriously affected by carrying a pregnancy to term, and those women who wish to obtain an abortion for socio-economic reasons will continue to travel outside of the jurisdiction. Doctors for Choice note that it is unclear whether the Bill would provide an “effective and accessible” procedure for someone in the position of Savita Halappanavar. The Irish state will continue to ignore the difficult circumstances ofmany women. In order for the debate on abortion in Ireland to move forward and begin to engage with issues of autonomy, choice and reproductive rights it is necessary to repeal the 8th Amendment to the Constitution.

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