Legislating for Article 40.3.3: Murray on ‘Hysterical Women’

by Human Rights in Ireland on January 16, 2013

Author: Dr Claire Murray is a lecturer in law in the Faculty of Law, University College Cork.

One of the most striking aspects of the recent debate on legislating for abortion is the persistent underlying narrative of the unreliable and hysterical woman. This narrative is particularly to the fore in the context of discussions on the requirement to include the risk of suicide as a threat to the life of the woman in any statutory scheme introduced. The suggestion appears to be that legislating to give effect to the decision of the Supreme Court in the X case will result in women fabricating suicidal ideation in order to manipulate doctors and obtain an abortion in this jurisdiction. A variation on this theme is that women and doctors will conspire to provide women who are not bona fide suicidal with abortions in this state. See here for a discussion of this before the Joint Oireachtas Committee hearings on abortion. These suggestions are insulting to both women and the medical profession. Dr. Anthony McCarthy from the College of Psychiatry of Ireland addressing the Committee noted that the discourse in relation to suicidal pregnant women was markedly different from that in relation to suicidal ideation among other groups in society. Why is it acceptable to view pregnant women experiencing suicidal thoughts with suspicion while others are treated with compassion and concern? Traditional feminist critiques of the mental health system highlighted the fact that women who deviated from societal norms, for example those women who rejected the role of wife and mother, were at greater risk of being labelled as “mad.” (Chesler, Ussher). They argued that this allowed the mental health system to operate as a tool of social control and to sanction those women who stepped outside stereotypical gender roles. These critiques of the mental health system are now outdated, given the significant changes in the operation of the system and mental health law in recent years. However it is possible to detect traces of the narrative of the unreliable woman who rejects the maternal role and must be controlled underpinning the current abortion debate in Ireland.

 

One of the consequences of this underlying narrative is the suggestion that a different procedure should be introduced to determine if the woman is entitled to an abortion where the threat to her life is from a risk of suicide. The Report of the Expert Group on Abortion states that “it could be argued that a risk to life from suicide warrants extra safeguards,” on the basis that it is a more subjective process and there is an absence of recognised clinical markers. These additional safeguards are expressed to be for the protection of both the woman and the unborn. Option 3 set out in the Report of the Expert Group requires three doctors – two psychiatrists and an obstetrician/gynaecologist – to make a decision in relation to an abortion in circumstances involving a risk of suicide. This raises a number of difficulties. It is inherently discriminatory to have a different procedure in place for women who are experiencing mental health difficulties and wish to avail of a lawful abortion. It also serves to further reinforce the stigma surrounding mental health conditions in Ireland by treating it as a case apart. In circumstances where a woman is experiencing suicidal ideation or suicidal intent but is not pregnant, and seeking an abortion, there is no requirement to have a second psychiatrist verify the decision of the first psychiatrist that the woman does in fact pose a threat to her own safety. In general we trust psychiatrists to assess risk in the context of suicide and treat the patient appropriately; this is a routine process for the psychiatric profession. However, there was some disagreement among medical experts testifying at the hearings of the Joint Oireachtas Committee as to whether there was a need for two psychiatrists to be involved.

The concept of a second-opinion psychiatrist already exists in Ireland within the framework of the Mental Health Act 2001 (MHA 2001) and a second-opinion is required where particular treatments for a mental disorder, ECT and long-term medication, are to be provided where the patient is unwilling or unable to consent. The provision of these treatments where a competent patient has refused consent is particularly controversial and recommendations have been made in the Interim Report on the Review of the MHA 2001 for the removal of the term “unwilling” in this context. In the mental health context the second-opinion psychiatrist role is intended as a safeguard for the patient against unnecessary treatment for a mental disorder. In the current proposals in relation to abortion this is flipped, and the second opinion psychiatrist appears to be included as an additional hurdle for the woman to overcome to obtain the medical treatment she is seeking i.e. an abortion.

It is also important to highlight that if the procedure for accessing an abortion in circumstances where there is a risk of suicide is cumbersome and lengthy, and there is the potential for that where you have three doctors involved and an appeals process, women will not avail of it and will continue to travel outside the jurisdiction to access the medical treatment they require. This would mean that the legislation would not adequately give effect to the decision of the Supreme Court in the X case as the right would remain, in many instances, an illusory one.

In conclusion it is worth noting that just because a woman is experiencing suicidal ideation/intent or a mental disorder (and these are not necessarily one and the same) it does not mean that she automatically lacks decision-making capacity. See Fitzpatrick v K for a discussion on the test for capacity in this jurisdiction. The issue of capacity is undoubtedly important in this context, as it is in relation to all serious medical and legal decisions, but its relevance is not limited to those women whose lives are at risk because of a threat of suicide. Ciara Conway TD in questioning those appearing before the hearings of the Joint Oireachtas Committee repeatedly raised the very valid issue of how the proposed legislation would address the capacity of children and adolescents, such as the 14 year old at the centre of the X case, to consent to abortions in circumstances where they satisfied the legal test. The current discussion on abortion is highlighting many other areas where legislative reform is long overdue, for example, mental capacity legislation and legislation regulating the ability of children and young people to consent to and refuse medical treatment. However, legislation providing for limited access to abortion is not the appropriate forum in which to address these complex issues.

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