Association of Catholic Lawyers of Ireland
Professional Standards Section
Medical Council
Lynn House
Portobello Court
Lower Rathmines Road
Dublin 6.
Dear Sirs,
SUBMISSION REGARDING PROPOSED REVIEW OF THE MEDICAL COUNCILS ETHICAL GUIDELINES.
The following is submitted in relation to section 24.6 of the IMC Guide to Ethical Conduct and Behaviour;This section should be revised to read, as it formerly read, “The deliberate and intentional destruction of the unborn child is professional misconduct. Should a child in utero lose its life as a side-effect of standard medical treatment of the mother, then this is not unethical. Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct”
The reason for this submission is that the present phrase contained in section 24.6 which reads;
“real and substantive risk to the life of the mother.” (s.24.6 IMC Guide to Ethical Conduct and Behaviour)
allows direct, intentional abortion.
Direct abortion is in contravention of the Constitution and is also contrary to the Criminal Legal position in the Republic of Ireland.
The Offences Against the Person Act 1861 makes it an offence to deliberately kill an unborn child throughout a pregnancy. Therefore the Mens Rea and the Actus Reus required to commit this criminal act would be satisfied by the DIRECT abortion of any child in utero.
There would be no crime committed in the instance of an unintentional abortion which occurred as a side effect of standard medical treatment. This would be because the Mens Rea would never be present in those circumstances. This is clearly supported in the original phrasing of section 24.6, to which it is submitted the Council should return.
Therefore the current phrase in the IMC guidelines is manifestly ILLEGAL, in that is supports the direct and delberate abortion of a child. The current phrasing of section 24.6 is therefore vulnerable to:
1. Judicial Review for illegality.
2. A doctor suing the IMC for defective guidance.
3. The IMC being complicit in the criminal act of abortion contrary to the Offences Against the Person Act 1961.
(these points are not exhaustive).
Further it is clear that the phrase
“real and substantive risk to the life of the mother.” (s.24.6 IMC Guide to Ethical Conduct and Behaviour)
is in fact borrowed from the interpretation of the English Bourne case. (R v Bourne 1938). Whilst this case may be binding in Northern Ireland it has no bearing whatsoever on the Criminal Law in the Republic of Ireland.
Why would the Irish Medical Council refer itself to a position on abortion which is in line with the UK but which is not in keeping with their own laws?
In fact the phrase currently used by the IMC at section 24.6 is fraught with potential difficulties.
The words “real” and “substantive” and “risk” and “life” are all relative and undefined.
It is anticipated by these writers that there will be attempts to introduce the following concepts: That the word “life” should include “health”.
That the word “health” should include “mental state”.
These interpretations are already being attempted in the North of Ireland with the introduction of Draft Guidelines for Doctors on abortion. I have enclosed a copy of the “Briefing Paper” compiled by Mrs J Higgins LLB for the information of the Northern Ireland Assembly Members on the matter. Many of the concerns therein will be relevant to the defective phrase used in the IMC guidelines.
It is also important to note that the words “risk” and “life” appear in the Abortion Act 1967 (in place in England, Scotland and Wales). And that if those who seek to widen the interpretation of abortion laws in Ireland wished to widen the interpretation of these words where else would they look but the Abortion Act itself?
Abortion Act 1967
1. Section 1 (1) of the Abortion Act 1967 states that a registered medical
practitioner may lawfully terminate a pregnancy, in a NHS hospital or
on premises approved for this purpose, if two registered medical
practitioners are of the opinion, formed in good faith:
(a) that the pregnancy has not exceeded its twenty-fourth week and
that the continuance of the pregnancy would involve risk, greater
than if the pregnancy were terminated, of injury to the physical
or mental health of the pregnant woman or any existing children
of her family; or
(b) that the termination is necessary to prevent the grave
permanent injury to the physical or mental health of the pregnant
woman; or
(c) that the continuance of the pregnancy would involve risk to the
life of the pregnant woman, greater than if the pregnancy wereterminated; or
(d) that there is a substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as to be
seriously handicapped.”
This submission outlines some of the serious legal and moral difficulties inherent in the current phrase at section 24.6. These are not exhaustive.The writers would be pleased to give an oral submission to the Council to more fully develop these arguments.
Yours faithfully, Mrs Johanna Higgins LLB, of the Inn of Court of Northern Ireland, the Kings Inns, Dublin and the Inner Temple, London, Barrister.
Ms Geraldine Foley LLB, of the Kings Inns, Dublin and the Inner Temple, London, Barrister.
On behalf of:
The Association of Catholic Lawyers of Ireland
