Jennifer Carroll MacNeill: Warns on legal risks in abortion Bill

Thank you Cathaoirleach. I'd like to begin this morning by acknowledging the women who have had truly heartbreaking personal circumstances in pregnancy and whom I know have been the motivation behind this Bill by the Social Democrats. Many deputies in all parties in government and opposition do know people, do know someone who has struggled in the worst news with pregnancy and I think of all of those women who inspired the Bill and your work on this debate today. I truly respect all deputies' commitment to raising these issues. I always vote to enable debate. I worked in government in 2017 and 2018 to support the debate and I also want to thank the Social Democrats for meeting me on Friday along with the State's Interim Chief Medical Officer, Deputy Chief Medical Officer and officials from my Department to discuss this Bill. I'm grateful to them for that discussion. I think it was a very constructive discussion and it gave me a much better opportunity to understand exactly what was trying to be put forward because I did have some concerns and questions about the way in which it was drafted. I must say I'm always reluctant to criticise drafting of a Bill because I was a drafter in opposition for Fine Gael for three years so I know how difficult that is and I really respect that process and I also agree that most legislation can be fixed if you agree on principles. It can be fixed throughout the House, throughout the different stages but in this case I'm afraid I can't agree in that way because the issues are based on principles and I'll discuss those that are so fundamental that they go beyond what I can agree here and fix later. A different approach and I'm asking you to consider a different approach that potentially we could work with, asking you to consider that. I'm asking you to consider could we for example facilitate that. I'm asking you to consider could we engage with NWIP and with the doctors who are discussing the improvements made since the O'Shea report which you've correctly relied on in the drafting and the motivation of this Bill. Structured engagement with any deputy who wishes to understand exactly what has changed and how that's working from their perspective. That offer remains open irrespective of what happens today or any other time. So in that sense this Bill, the reality is that the words do matter. Legislation does matter. We are here as legislators and the courts presume that we mean the impact of the words that we say and so the words really do matter and this Bill has raised significant both legal but operational concerns and I have to bring those concerns to the House. The Bill makes five major changes to the existing legislation and in four cases I see policy difficulties as such and one not but in all they have legal difficulties. I don't believe in my heart that they were all necessarily intended and that's why I'm so careful around this question of drafting because I have done what you are doing which is to bring something to debate which is the purpose of this House in many ways but it is also the purpose to enact legislation and I have to point out the difficulties. So first and so there's five issues. First and the least problematic in my view the amendments on the three-day waiting period and the arguments for and against the removal of the three-day waiting period have been well aired in the public domain. I personally don't see any difficulty with it. That is my personal position. It is a policy choice and the HSE advise that the current model of care is safe and effective but look and that they're reliant on it but that could change were the Oireachtas to make changes in legislation. So as I said I think this is the least problematic. The only drafting issue which of course this one could be fixed is that you make reference to a statutory right to a reflection period which doesn't exist. There is no reflection period that exists anywhere else. There is no such statutory right so but that is fixable. That is policy and that is fixable and I leave the rest of my comments to that because I appreciate I've gone longer than that but I would make the point that a woman is already entitled as a matter of ordinary medical law and practice to take any such time as she deems appropriate to consider her decision and to either avail or not avail. So I don't believe that creating a specific statutory right of reflection is helpful either. It's not a panacea to it so it's just a drafting one but as I said that provision could be fixed. The others are more difficult. The second one is the reduction in the number of doctors making the decision and you do that in two areas. So the bill proposes to amend the statutory language to remove the requirement for two clinicians to be involved in the decisions regarding the termination. A termination where the life or health of mother is at risk. Now there are really practical and clinical reasons why the input of more than one clinician is relevant in the decision making. Doctors work as a team and so where for example a woman's life or health is at risk because of psychiatric illness or cardiology issue or a neurology issue of necessity you're going to need both the cardiologist and the obstetrician involved. That is just the practical medical reality and removing or changing that creates an uncertainty that I don't believe is helpful and courts will interpret that later and that is meaningful and I don't have time to go into exactly how meaningful it is but again then in section 11 we would you change the number of doctors involved in the decision about a fatal foetal abnormality not requiring them both to examine it. It's a subtle nuance and potentially to be dependent on notes but again the practical reality is that two doctors are necessary. You would have an obstetrician but you would also have a geneticist, a neonatologist, the other doctor who is identifying the fatal foetal abnormality and the trajectory of that and to be dependent then changing the purpose of the threshold from examination to potentially including notes it brings in a measure of uncertainty for the courts later. Well hold on a second you know what I mean are you saying that the notes going back to when how does that you know what I mean there's an extra element of uncertainty and I think you're trying to reduce uncertainty not create it and I wish I had more time to go through it but the practical and the dual professional signatory is a fundamental principle of safety it's widely practiced in health care and it's a critical safety mechanism for high-risk actions and serious decisions and this is a serious decision and I am very aware of the tragic outcomes unintended or tragic outcomes that have already occurred where core principles of safety have not been adhered to in that way so it is so so in that sense that that is the difficulty with that but it also legally the bill provides that both of those sets of decisions would be based on reasonable opinion formed in good faith on knowledge available at the time now that is language that you did take from the O'Shea report and I understand and that is correct and I understand that the motivation behind that but they're legal she's she's with every respect not a drafter and when you bring in more words so the good faith test is already well understood by the courts and adding words to that introduces more complexity. The third issue is the ministerial clinical guidelines in section 9, 10 and 11. There is no I don't believe in short that it's appropriate for me as a minister or any minister to make clinical guidelines in any context. I think it's an interference in the independence of the medical profession and I think that you may sort of be assuming that every minister is going to make guidelines that align to your view of the world. We already know that that is not the case in respect for example of the heartbeat law that was brought in in Hungary in 2022 which if a minister were to bring in something similar here in clinical guidelines would require a woman to listen to the heartbeat before making a termination. I am you know a progressive right if you're progressive left I'm progressive right but there are other members of this house that take a very different view and I don't want any of them being minister for health and having the capacity to make ministerial guidelines and I don't believe that we should bring that concept into legislation. I don't think it adds to what we're trying to do to make things easy to make things more complex and if you're the doctor you're introducing more uncertainty because what you're doing is you're saying here's the statutory rules but then there's also these ministerial guidelines and which does the court test how does that work and we are presumed to intend what the words that to intend an impact from the changes that we make in law and the courts will view it as such. So I can't support that concept a because I don't want to create a precedent where we interfere in the medical profession in any area of clinical practice whether it's obstetrics or whether it's cardiology b I don't want to give a different minister the opportunity to do something that would be very different to my world view I don't believe it's a concept we should embed in legislation. The fourth issue is the decriminalization of medical practitioners that's a very substantial policy and legal change and at the present the doctor's decision doesn't have to be correct they don't have to be right they just have to have made it in good faith that is the defense but what a question arises as to why a doctor who carries out a termination unreasonably or acting not in good faith in bad faith why should they be exempt from criminal sanction what is proposed is a blanket decriminalization and it's not confined to the woman's treating doctor but to any doctor so that is a very significant change and that it's not just a drafting issue that could be fixed I only have one minute so I really want to deal with the most important issue which is fatal fetal abnormality it's extremely complex and it raises so many different issues ethical issues and I can totally empathize with what the bill is trying to achieve I myself have listened to have met women who have faced unimaginable and harrowing circumstances I want to explain why the 28 days is is is the is the way that the Oireachtas took that approach because I know that that's not easy desperately desperately difficult for anybody who falls outside that and I don't it's only that I only have one minute to speak that I don't spend more time on that so please forgive me because I could detail some of those stories as you have the death of a live-born I don't mean to cause any upset for anybody now but the reason it's 28 days is where there's going to be a condition that results in the death of an infant it's nearly always certainly in the first 28 days it's known as the neonatal period that first four weeks of the approximately 190 infant deaths that occurred last year about 150 of them were within that period so it's not a figure that's chosen at random it's chosen because it's related medically to the period where an infant is most most at risk beyond that it's extremely complicated the social people for profit others have said the period should be up to a year but if a baby can live for two months three months four months I don't understand how you put a timeline on that or how you pick a timeline I'd ask you to pick the number of days that are appropriate beyond 28 days because I personally find it impossible instead you have created the idea of a fatal condition that the foetus might have and that is the most expansive position that anybody has ever taken not just in this house so far but it impacts any condition that an infant might have that a child might have it goes way beyond the neonatal period a fatal condition in the foetus is also one that a child would have and there are a whole range of conditions that we know as members of the Oireachtas of people who are living till seven eight nine ten twenty these are fatal conditions and there's no point shaking your head at me this is this is the reality this is true and this is I really regret it and I'm asking you to come with me to take a different approach take up my offer of meeting NWIP take up of my offer of debating this in a different chamber because I don't want to be in a space against this when I know what you're trying to do is resolve the cases of so many women that have had such difficulty but it is so complex it is so complex and I need to I need I need more time and space to explain that.