Suicide 'test' should now be key focus of abortion debate

The hearings on abortion legislation conducted this week by the Oireachtas health committee, far from being window dressing as some cynics originally suggested, actually performed a very important function. The presentations by experts, and indeed questioning by parliamentarians, brought much clarity on some of the central issues to be addressed in this legislation.

This was so particularly on the issue of terminating pregnancy when a mother’s life is at risk because of a threat of suicide.

Some would wish that termination on these grounds would never be available in Ireland. However, as the Constitution stands – including as it does article 40.3.3 inserted by the 1983 referendum – and as interpreted by the Supreme Court in the X case, termination on grounds of suicide risk is legally permissible in this country.

The only way that can change is if there is another referendum to change it. For this to happen those opposing termination on this ground would have to persuade a majority in the Dáil and Seanad to put a referendum in those terms (again) to the people, and then persuade a majority of voters to support this new amendment. That is just not going to happen.

The efforts of those who wish to restrict abortion here would therefore be more usefully focused in the coming months on arguing for the best possible safeguards on the so-called suicide test.

The task for the Government and the Oireachtas is to frame the legislation to provide reassurance to those concerned the suicide ground might dramatically expand the availability of abortion, while ensuring that the small number of women whom the law says should be entitled to a termination when it is the only option to save their life should be able to obtain it.

Such careful legislative framing is a difficult task but not an insurmountable one. The complexities involved were well aired at the health committee this week, but the hearings also provided some ideas on how these issues might be addressed.

Anyone seeking reassurance that the need for termination on grounds of suicide would arise in only a handful of cases, and would be competently and professionally assessed by psychiatrists, needs do no more than read or listen back to the evidence to the committee on Tuesday of Dr Anthony McCarthy, consultant perinatal psychiatrist at the National Maternity Hospital.

The most useful presentation, however, was that given by the barrister and doctor Simon Mills on Wednesday morning. Mills came along with his own draft of a Bill. It runs to just seven pages and seeks, he said, to reflect the moderate consensus on what can and should be done within the existing constitutional framework.

There is real value in actually sitting down to draft legislation. It forces one to consider exactly what policy choices are available within the existing legal framework and forces one to choose precise words and mechanisms to achieve those policy objectives. The question here was how to provide for termination on grounds of suicide within the Constitution and in particular what medical assessments should be required.

The Mills Bill provides, as the report of the expert group chaired by Seán Ryan suggested, that terminations be carried out in designated medical centres, likely to be HSE-run hospitals. It also provides that in each case where a termination is to be lawful, whether on grounds of physical threat to the life of the mother or threat of suicide, at least two doctors must be involved in certifying “in good faith in all the circumstances of the woman’s case” that a termination is the only way to remove the potential risk to the mother’s life. In those cases not involving threat to suicide one of those registered medical practitioners must be an obstetrician.

The draft Bill , however, provides for what he called “more stringent” safeguards where the risk to life of a pregnant woman arises from a threat of suicide. This is necessary, Mills says, because of the “special nature of suicidality” and to make it “less probable that insubstantial claims of suicidality will be advanced”.

For these cases Mills provides that one of the two certifying medical practitioners must be a consultant psychiatrist. He goes further to provide that each of these two doctors must carry out an actual examination and assessment of the patient on two separate occasions “to ensure that any suicidality is consistently present and expressed”. His Bill therefore provides that two registered medical practitioners, one a consultant psychiatrist, each having separately assessed the patient on two separate occasions, would have to certify in good faith that termination was the only way to remove the risk of suicide.

The safeguards for the suicide test in Mills’s draft Bill go somewhat further than those in the Private Members’ Bill on this issue proposed by Clare Daly TD last year. She proposed that a clinical psychologist could be one of the certifying professionals where the threat of suicide was in issue. She did not require assessment on two separate occasions and she provided that in the absence of an available consultant psychiatrist or a clinical psychologist, the opinion of a psychiatrist or psychologist would not be required.

The contrast even between the Mills Bill and the Daly Bill illustrates there is still a debate to be had about the safeguards in cases involving threat of suicide. It is on these detailed issues that the debate on the law should focus rather than simply rehashing the wider abortion debate.