‘Best practice’ guidelines would be better informed than legislation based on the flawed X Case.

This article appeared in the print edition of the Sunday Independent on 10th February 2013

The recent three-day hearings of the Joint Oireachtas Committee on Health and Children on abortion, established by the Government and including representation from across the Dail, heard expert evidence from witnesses with authoritative clinical experience in obstetrics and psychiatry.

The key point for Government, political parties and for individual TDs is this: the weight of the evidence from the Joint Committee indicates that it is not now tenable for the Government to base its response to the European Court of Human Rights (ECHR) judgement in Applicant ‘C’ in the ABC judgement, on the 1992 Supreme Court decision in the X Case.

More positively, the hearings also identify an alternative, and far less risky, way forward, based not on legislation on the X Case but on guidelines which were directly aligned to ‘best practice’ maternal healthcare in Ireland.

The outcomes of the hearings have wholly altered the debate on abortion. The Government and political parties are now in a position to say, in effect, “we established the Joint Committee to establish the truth and the facts. It did. We will now proceed to respond to the ECHR judgement by way of guidelines based on ‘best practice’ of those who actually deliver care and support, day in and day out, for mothers and babies.”

There is a narrow ‘window of opportunity’ to get things right before the Cabinet announces its decision, and the tone and substance of the debate then become set.

Governments sometimes believe foolishly that to change a decision is necessarily to lose face. The great economist John Maynard Keynes was once criticised for changing his mind on a matter of high policy. He responded: “When circumstances change, I alter my conclusions. What do you do, Sir?” No truer words could be spoken in the present circumstances.

A body of evidence presented to the Joint Committee from psychiatrists specialised in the whole field of suicide, in particular as it relates to women expecting a baby, is compelling. It undermines, beyond retrieval, any claim that the X Case decision is in line with good medical practice in regard to the proper medical treatment of a threat of suicide.

This is perhaps not surprising. No specialised psychiatric evidence of the nature delivered to the hearings was heard by the Supreme Court in the X Case.

There are some that may still regard abortion as a ‘treatment’ for an unwanted pregnancy. They may assert, on this basis, that abortion may sometimes be appropriate for a woman who presents with suicidal intent on account of an unwanted pregnancy. The evidence of three perinatal psychiatrists – Dr Joanne Fenton, Dr Antony McCarthy and Dr John Sheehan – to the hearings on this point is compelling.

Dr Sheehan, for example, noted that: “I refer to (the) question on whether we, as perinatal psychiatrists, have ever seen a situation in which termination of pregnancy has been the treatment for a suicidal woman. To reiterate our statement, with more than 40 years of clinical experience between us, we have not seen one clinical situation in which this is the case.” (Page 74.)

Turning specifically to the X Case on which the Government – prior to the hearings – proposed to address the ECHR judgement, Professor Patricia Casey, who runs the attempted suicide service in the Mater Hospital which sees and assesses more than 400 attempted suicides in women every year, made the point that: “X Case legislation would expect doctors to recommend an intervention – an abortion – that has not been shown to be of benefit to mental health, in order to prevent a rare outcome – suicide – that cannot be predicted. In my view, legislation for the X Case that includes suicide risk is not supported by any scientific evidence.

“The two tests envisaged in the X Case – that suicide will occur, on the balance of probability, and can only be averted by abortion – cannot be met.”

Turning to the views of experts who provide obstetric care, the evidence is no less compelling. Presentations given by some of the leading obstetricians to the committee confirm that there is no need to legalise abortion to ensure that women in pregnancy receive the medical care needed to safeguard their lives.

This is what the Medical Council’s guidelines say (S.21.4): “In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.”

And this is what Dr Rhona Mahony, Master of the National Maternity Hospital, had to say as part of her presentation to the Joint Committee: “Occasionally it is required that we deliver a pregnancy before the baby is viable or capable of surviving in our neonatal intensive care unit. When there is any possibility at all that we can preserve the life of the baby we will do so. We are able to do so from very low gestations, from 23 weeks on, and in those cases members can be very certain that we will make every effort to preserve life.

“In other cases, we are required to terminate a pregnancy as part of a treatment of a medical condition because we feel a woman will die. That is not killing the baby. That is simply delivering the baby before it is viable. There is a difference. It is always our wish to preserve life and society should be very reassured about that.” (Hearings, January 8, 2013, page 42.)

The evidence given by consultant obstetricians to the hearings make clear that current ‘best practice’ in Irish maternal care offers an alternative basis for the Government to proceed on in responding to the C Case in the ECHR judgement. How so? Because obstetricians confirmed that they already give women in pregnancy all essential medical care to safeguard their lives, even in the few rare situations where the treatment results unavoidably in the death of the baby.

Guidelines based on ‘best practice’ in Irish medical care Ireland are a better – more informed, less risky – alternative to legislation based on the flawed X Case. Such an approach would be consistent with the ECHR judgement, which does not require that Ireland respond by primary legislation. It would seem clear from the hearings that the best, and most responsible, way forward is by way of guidelines that would be fully in line with the commitment that Fine Gael gave, prior to the last election, not to legislate for abortion – and would of course vindicate all of the protocols and assurances given over the years since the Maastricht treaty, regarding Ireland’s position on abortion.

The Government will have to deal with the reality that, because the X Case is not in line with ‘best practice’ for mothers, it must be put to rights. It would be unsafe to leave uncorrected a situation where doctors were being advised to have regard to a judgement now recognised as contrary to medical ‘best practice’. This need not be contentious.

The key ‘building blocks’ of an evidence-based alternative approach to the Government’s present stance – which in fairness was formulated prior to the Joint Committee hearings – are as follows.

Firstly, an undertaking to the ECHR that the X Case will be addressed. Ireland can now also provide an undertaking that the necessary clarity to which women are rightly entitled will be provided by way of ‘best practice’ guidelines.

Crucially, this means the Irish maternal medical professions can continue to provide evidence-based care to mothers and babies that are exceptional in terms of outcomes, by international standards.

Secondly, the Irish Government is now in a position to invite the relevant bodies of medical expertise to draw up these procedures in the form of guidelines. The objective, which is certain to be widely shared across the medical and midwifery professions, will be directed towards providing the necessary certainty whereby mothers, in the course of their pregnancy, may have clarity about the medical treatment to which they are entitled, in their specific condition.

The advantages of guidelines rather than primary legislation are that the medical professions are used to working with them.

Guidelines are more quickly and easily updated.

By contrast, legislation changes societal norms and standards in relation to, for example, cherishing all individuals equally, irrespective of physical or intellectual disabilities or syndromes with which such individuals may be born.

Guidelines, based on ‘best practice’, and vindicated by the data and which go with the grain of medical and midwifery protocols, uphold these norms and values – which encompass Ireland’s present outstanding record in delivering ‘best practice’ maternal healthcare.

Reassurance about the lawfulness of medical treatments in the rare situations where the death of the baby may result can be provided by amending, rather than repealing, sections 58 and 59 of the Offences against the Person Act, 1861.

This would also meet the concern expressed by a number of obstetricians at the hearings for legal reassurance that their actions were lawful – while maintaining the present national law on abortion which is consistent with the provisions of the Convention and with recent rulings of the ECHR.

The substantive threat to the public interest now arises from a momentum to legislate generated when the facts elicited from the hearings were simply not known to Government, individual TDs or to the general public. They are now.

Economist Ray Kinsella is editor of ‘Acute Healthcare in Ireland’

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