Abortion ‘suicide test’ hurdle still to be overcome

Idiotic. Ridiculous. Unworkable. It wasn’t the language itself that came as a jolt. Even in a political culture as relatively low-key as ours, terms such as these are standard tools in the rhetorical armoury of anyone who wants to make themselves heard.

But these weren't the idle thoughts of a caller to Liveline or an Opposition politician straining for attention. They were the words of Dr Anthony McCarthy, one of just three perinatal psychiatrists in Ireland, in his calmly delivered denunciation of the proposal – reportedly circulating in Government – that a suicidal pregnant woman would have to be assessed by six consultants before a termination could be allowed. "It would be an abuse of women," he told RTÉ's Morning Ireland . "It's truly idiotic... When I first heard it yesterday, I thought it was almost a sick joke. I began to wonder: where are we in Ireland?"

How the risk of suicide in a pregnant woman is to be assessed has emerged as the chief point of tension as the Government prepares to legislate for the X-case ruling of 1992.

McCarthy, of Holles Street maternity hospital, was responding to reports that the publication of the heads of the Protection of Maternal Life Bill would be delayed because Labour Ministers had said they could not accept a draft put forward by Minister for Health James Reilly.

This draft reportedly proposes that a panel of two obstetricians and four psychiatrists – one of whom must be a perinatal psychiatrist – must assess a woman who is seeking an abortion on the grounds of “suicide ideation”.

As the Constitution stands – including as it does article 40.3.3 – and as interpreted by the Supreme Court in the X case, termination on grounds of suicide risk is legally permissible here. Given that the only way that could change would be by another referendum – a highly remote prospect – and that the Government has pledged to enact a law to give effect to the X case ruling, those in favour of restricting abortion have focused on lobbying for the tightest possible “suicide test”.

That lobby includes a significant number of Fine Gael TDs and Senators, leaving the party in an awkward position and presenting it with the biggest threat to its cohesion since entering government in 2011. Its intake of new TDs in that year’s election included a sizeable cohort of social conservatives, shrinking the influence of the party’s liberal wing.

As many as 20 of the party’s TDs have expressed public opposition to the inclusion of suicide, and it’s a reasonable bet there are others who share that point of view but have kept their reservations private. “A number of ministers have given public assurances that such legislation would be very restrictive,” wrote Fine Gael Senator Fidelma Healy-Eames at the weekend.

“There is a suggestion in the last few days that a ‘sunset’ or review clause may be inserted into the legislation. This new development clearly indicates the concerns that a number of my Fine Gael Oireachtas colleagues have with the proposed suicide clause.”

If it’s true that Fine Gael proposed an assessment by six doctors, it could be that it was striking a bargaining posture in negotiations with Labour, for whom (notwithstanding the presence of some anti-abortion TDs among its ranks) the issue is considerably less problematic. It could also be that the leadership in the larger party is fearful it could face open dissent when the Bill goes to a vote. Whatever the explanation, a proposal for six doctors would be far more stringent than even the most restrictive scenario set out by the expert group that reported to the Government last November. That report offered three options: two doctors; two doctors, one of whom is an obstetrician; and two doctors plus an obstetrician.

The expert group identified one advantage to the final, three-doctor suggestion – “the woman and her doctors may be more secure in the diagnosis and decisions” – but it pointed out four disadvantages. First, the proposal would put an extra burden on a patient and her doctor(s). Second, it noted the diagnosis of expressed suicide intent was a “routine process” for psychiatrists and “it would therefore be hard to justify formally requiring a second psychiatrist when this does not occur when a pregnancy is not involved”. Third, access to a necessary medical treatment could be curtailed due to “geographical and service delivery issues”. Fourth, this option risked stigmatising mental health conditions.

In a draft Bill he presented to the Oireachtas Committee on Health and Children in January, the barrister and doctor Simon Mills proposed that in each case where a termination is to be lawful, at least two doctors must be involved in certifying that a termination is the only way to remove the potential risk to the mother's life. But where the risk to life of a pregnant woman arises from a threat of suicide, one of the two certifying doctors must be a consultant psychiatrist. Moreoever, Mills proposed, each of these two doctors must carry out an actual examination and assessment of the patient on two occasions "to ensure that any suicidality is consistently present and expressed".

Independent TD Clare Daly, in her Private Members' Bill on the issue, set the bar for the "suicide test" a little lower. She proposed that a clinical psychologist could be one of the certifying professionals where the threat of suicide was an issue.

The master of Holles Street Hospital, Dr Rhona Mahony, said yesterday that two obstetricians and "one if not two psychiatrists" would give a reasonable opinion on whether or not a pregnant woman was at risk of suicide.

Within hours of McCarthy’s intervention yesterday, Reilly moved to calm the waters, insisting no pregnant suicidal woman would have to face six consultants. The heads of Bill had not yet been finalised. That should be enough to defuse the latest controversy, or at least – and more likely – defer it until the Cabinet offers its reply to the question first set out by the Supreme Court more than 20 years ago.

Ruadhán Mac Cormaic is Legal Affairs Correspondent