Legislating for Article 40.3.3: Daly on the Role of the Medical Profession

Author: Dr Brenda Daly, School of Law and Government, Dublin City University

Assessing the options for legislating under Article 40.3.3: the role of the medical profession

The public hearings before the Joint Committee on Health and Children on “the Implementation of the Government Decision following the publication of the Expert Group Report into matters relating to A, B, C vs Ireland” from medical, legal and church representatives and advocacy groups last week highlight yet again how extremely divisive and emotive the abortion issue is in this jurisdiction.

Undoubtedly the legislature is faced with an arduous task to draft legislation and regulations to address the main recommendations of the Expert Group while taking into account the demands of the respective interested parties.  However, one fundamental issue that the Government must not overlook when drafting the legislation is the role of medical professionals in the process, both in terms of medical professionals being involved in determining if a woman is eligible for a lawful abortion, and in the administration of abortion services.


Procedural framework

The European Court of Human Rights in A, B, C v Ireland was extremely critical of “the lack of effective and accessible procedures to establish a right to abortion.” (A, B, C v Ireland, Application No. 25579/05, paragraph 241).

To be effective, the procedural and regulatory framework will have to clarify the process by which medical professionals will determine when women will be entitled to an abortion in Ireland within the confines of Article 40.3.3.  It is vital that the draft legislation makes provision for an appropriate and independent decision-making process. This decision-making process will need to address the composition and availability of a suitably qualified panel, and perhaps most importantly must incorporate an appeals mechanism for women who are refused an abortion to avoid a scenario such as that which arose in Tysiąc v. Poland, Application No. 5410/03, whereby a pregnant woman was unable to appeal a decision refusing her a medical termination simply because the right to appeal did not exist within Poland’s procedural framework. The Expert Group listed a number of recommendations regarding the procedural and regulatory framework, and indicates that it is preferable that any such process must involve at least two doctors with requisite experience and training.

This decision-making process must be accessible to those pregnant women who need to use it. However, this may prove to be a logistical headache, as clarity is needed as to whether this means women would have access to a panel in any medical facility where they present for treatment, or whether it is restricted to those medical facilities which have a neonatal intensive care unit. Certainly the Expert Group recommends that this treatment ought to take place at those facilities with neonatal intensive care units. However, difficulties may emerge where a pregnant woman presents for emergency treatment at a facility without such units.  To accommodate this, provision ought to be made in the draft legislation and regulations for a system of patient referral either to another facility which provides such services, or if the pregnant woman is medically unfit to be moved, to enable the decision to made by a panel based in a different facility, though this may necessitate suitably qualified staff having to travel for the purposes of administering abortion services should this be appropriate.


Conscientious objection

A further matter that the Government will have to address when drafting legislation and regulations is the matter of conscientious objection. The legislature must strike a balance between respecting the right to conscientious objection (as provided for both by the Medical Council Guide and also under Article 9(1) of the European Convention on Human Rights) while ensuring that medical professionals are available to administer abortions in hospitals.

The legislature will have to factor in the reality of many maternity wards and how to address the issue of conscientious objection when some staff, as part of their job, are responsible for delegating, supporting or supervising staff who will be providing nursing care for pregnant women who seek abortions. In practical terms, this ought to mean that each hospital maintains a database of staff willing to perform abortions, and also keep a record of those staff who have indicated that they have a conscientious objection to abortion to ensure that they are not placed in a position where they would be asked to undertake such a procedure. Although pragmatically this may create difficulties for the hospital administration to ensure that another staff member who does not object is available to step in when necessary, otherwise failure to do so would render any legislation ineffective.

The Expert Group recommends that there ought to be limitations on the extent to which a staff member may object to the administration of abortion services. The legislature may wish to consider the inclusion of a provision to ensure that where situations arise whereby a conscientious objector may be asked by a pregnant woman about abortion, that the conscientious objector will have a legal duty to refer the pregnant woman to another staff member who is willing to provide such information and services. Failure to do so could simply create further problems for any pregnant woman soliciting advice on whether her condition is such that she would be eligible for a lawful abortion.

Qualification and training

Provision of medical training on abortion for students is currently unavailable in Ireland, with many who wish to undertake such training having to travel to the UK (Wickes E.  Abortion law under the European Convention on Human Rights. Human Rights Law Review. 2011; 11(3): 556-566). Medical professionals who will be responsible for the administration of abortion must be suitably qualified, albeit that this will be a matter for the professions rather than the Government to address.  However, to provide for effective access to abortion services, hospitals will have to ensure that sufficient qualified staff are available to administer abortion services, ranging from providing information about abortion and the pregnant woman’s situation, to undertaking the termination procedure, otherwise women’s constitutional right to access such services will be unenforceable.