Medico-legal opinion has suggested that the abortion referendum Bill represents a threat to patient confidentiality, according to a leading general practitioner and academic.
Prof Tom O'Dowd, Professor of General Practice and Community Health at Trinity College Dublin, has written to the Minister for Health to express concern that paragraph 5 (2) of the Protection of Human Life in Pregnancy Bill 2001 is in direct conflict with professional guidelines on doctor-patient confidentiality.
Paragraph 5 (2) of the Bill states: "An order may make such provisions relating to the making, keeping and confirmation of records (including records of opinion) of medical procedures referred to in section 1 of this Act as may be considered by the member of the government concerned necessary or appropriate to the purposes of this Act."
According to Prof O'Dowd, medico-legal advice has confirmed that the paragraph opens the way for a breach of confidentiality. "An unspecified government minister will have legislative back-up to confirm the records, including records of opinions, relating to an abortion. This means, in particular, that a very ill woman who has had a termination can be investigated by an order of a government minister. This will happen when there is doubt expressed about the need for and timing of the termination," he said in a letter to the Minister, Mr Martin, dated February 4th.
The letter also stated: "The doctor and the assisting team can be prosecuted and if found guilty, can serve up to 12 years in prison. The patient's name will be known to the courts and the media."
Asked by The Irish Times to elaborate on his concerns, Prof O'Dowd said that where a woman was seriously ill and required a termination of pregnancy as part of treatment to save her life and there was disagreement as to the nature and timing of the procedure, a minister would be entitled to make an order asking for confirmation of facts and opinions. This order would result in professional opinions as well as the woman's identity being made public.
Section 18.1 of the Medical Council's code of ethical conduct and behaviour specifically states that a doctor "must not disclose information to any person without the consent of the patient". It points out that medical confidentiality is fundamental to the doctor-patient relationship and extends after death.
In a response dated February 11th, 2002, the Minister stated: "Section 5 (2) of the envisaged Protection of Human Life in Pregnancy Act contains absolutely no basis for any ministerial access to confidential records as your letter suggests."
He added: "The requirement referred to in section 5 (2) is in no sense a breach of confidentiality but, on the contrary, is designed to ensure that the interests of women patients and medical practitioners treating them are fully respected and vindicated, and these interests include the well established entitlement to doctor-patient confidentiality."
Referring to a careful consideration of the matter in the drafting process for the legislation, the Minister said: "I am advised by the Attorney General that there is no basis, expressed or implied, in the text of the envisaged legislation for the type of breach of confidentiality about which you have expressed concern."
The Minister's reply also referred to a "double-lock" against a breach of confidentiality in the form of a requirement that a ministerial order would require the approval of both Houses of the Oireachtas. Noting that the intent of the Act was to make clear for doctors what was legal, he said: "It clearly excludes from the definition of abortion medical interventions necessary to save a woman's life during pregnancy."