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Service, not Servitude

Service, not Servitude

Dáil Éireann

Report Stage Debate (Resumed): 5 December, 2018

Health (Regulation of Termination of Pregnancy) Bill 2018

Extracts re: Conscientious objection (P. 296-309)

Copyright the Houses of the Oireachtas. Reproduced under the Oireachtas (Public Sector Information – Open Data) Licence. Links, comparative tables and annotations added by the Protection of Conscience Project.

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[P. 296]

Deputy Mattie McGrath

I move amendment No. 48:

In page 15, line 37, after “practitioner,” to insert “pharmacist,”.

Bill text Amendment 50

Conscientious objection
24. (1) Subject to subsections (2) and (3), nothing in this Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 11, 13 or 14 to which he or she has a conscientious objection.

(2) Subsection (1) shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 12.

(3) A person who has a conscientious objection referred to in subsection (1) shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned.

Conscientious objection
24. (1) Subject to subsections (2) and (3), nothing in this Act shall be construed as obliging any medical practitioner, pharmacist, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 11, 13 or 14 to which he or she has a conscientious objection.

[Protection of Conscience Project comparison]

Tá [Yea] 38; Níl [Nay] 67; Staon [Abstain] 1.  Amendment declared lost


[P. 298]

Deputy Stephen Donnelly

I move amendment No. 49:

In page 15, line 37, after “practitioner,” to insert “student doctor, student nurse, student midwife,”.


Amendment, by leave, withdrawn. [Reported as "not moved"]


Deputy Catherine Murphy

I move amendment No. 50:

In page 16, between lines 4 and 5, to insert the following:

“(3) Medical practitioners who refuse to carry out a procedure for the procurement of an abortion on the basis of conscientious objection must notify the Minister for Health in writing within 28 days of the decision being taken.

(4) No corporate body or institution in receipt of public monies may refuse to carry out a procedure in order to procure an abortion on the basis of conscientious objection.”.

Bill text Amendment 50

Conscientious objection
24. (1) Subject to subsections (2) and (3), nothing in this Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 11, 13 or 14 to which he or she has a conscientious objection.

(2) Subsection (1) shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 12.

(3) A person who has a conscientious objection referred to in subsection (1) shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned.

Conscientious objection
24. (3) Medical practitioners who refuse to carry out a procedure for the procurement of an abortion on the basis of conscientious objection must notify the Minister for Health in writing within 28 days of the decision being taken.

(4) No corporate body or institution in receipt of public monies may refuse to carry out a procedure in order to procure an abortion on the basis of conscientious objection.

[Subsection (3) would be renumbered and follow.]

[Protection of Conscience Project comparison]

I tabled the amendment despite the issue of conscientious objection being covered in other amendments because I wanted specifically placed on record the point that publicly-funded institutions cannot use any loophole relating to the moral ethos of the organisation in question to circumvent the legislation. The United Nations has explicitly confirmed that the relevant regulatory framework must ensure an obligation on healthcare providers to refer women to alternative health providers and must not allow institutional referral of care.

While I understand the need to allow for personal conscientious objections, it must be done in a way that means that conscientious refusals do not lead to access barriers for women in accessing the healthcare to which they are entitled. My amendment stems from a concern that where a publicly funded institution is under the effective control of a religious organisation with a particular ethos, medical practitioners could effectively be advised not to agree to provide this healthcare within their working arrangements within the institution. This could potentially lead to a situation whereby medical practitioners who potentially do not have a conscientious objection to carrying out the procedure could find themselves refusing to carry out the procedure as part of their public health work while simultaneously offering patients appointments in their private clinics to perform procedures.

Such a possibility is not merely conjecture. A similar situation was referred to earlier this evening; abortion services in Italy were pushed almost exclusively into the private medical sector by way of institutional objections. With this amendment to the Bill we can ensure that no such situation arises in Ireland and that institutions are under no illusion as to the fact that legis-

[P. 299]

lation takes precedence over their ethos. The amendment will ensure that all patients can access this healthcare procedure via the public health system as intended by the Bill. Indeed, when this issue was debated at committee we wanted to ensure that this would be part of the public system and be GP-led or provided in public hospitals. This amendment seeks to provide for that.

Deputy Simon Harris

I am not in a position to accept the amendment for two reasons. We have just had a very lengthy debate about conscientious objection and the obligation to ensure that a woman can access health services. Nobody can obstruct that. Conscientious objection is therefore an accepted part of medical practice and already exists in a number of areas, not just in the termination of pregnancy. I do not see any reason to have a different set of rules. This is the same argument used by those who are against the legislation and who want a different set of rules for conscientious objection. I apply the same principle to this amendment. The rules on conscientious objection should be the same for this health service as any other. That covers the first part of the Deputy's amendment No. 50.

The second part of the amendment raises an important point about institutions. Institutions do not have consciences and cannot conscientiously object. Section 24 of the Bill sets out that persons who may refuse to participate due to a conscientious objection, including medical practitioners, nurses and midwives, have that right, but by not including references to other personnel or to institutions the Bill is clear that that provision does not extend to them. I sought the legal opinion of the Attorney General because of the sensitivities involved in this, and have been informed that one of the first tenets of law making is that the expression of one thing leads to the exclusion of the other. In other words, when certain persons are specified in a law an intention to exclude all others, in this case institutions, from its operation can be inferred. This means that by not including a reference to other personnel or institutions the Bill is absolutely clear that conscientious objection does not extend to institutions. I am very clear on that. The HSE is also very clear on that matter, and indeed has been in contact with all 19 maternity units with a view to preparing an implementation plan.

An Leas-Cheann Comhaire

Is Deputy Catherine Murphy pressing the amendment?

Deputy Catherine Murphy

I will withdraw the amendment on that basis.

Deputy Matthie McGrath

I move amendment No. 51:

In page 16, to delete lines 5 to 8.

Bill text Amendment 51

Conscientious objection
24. (1) Subject to subsections (2) and (3), nothing in this Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 11, 13 or 14 to which he or she has a conscientious objection.

(2) Subsection (1) shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 12.

(3) A person who has a conscientious objection referred to in subsection (1) shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned.

Conscientious objection
24. (1) Subject to subsections (2) and (3), nothing in this Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 11, 13 or 14 to which he or she has a conscientious objection.

(2) Subsection (1) shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 12.

(3) A person who has a conscientious objection referred to in subsection (1) shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned.

[Protection of Conscience Project comparison]

Amendment No. 51 seeks to delete lines which force doctors to refer. This speaks fundamentally to the right of doctors to conscientiously object and to the whole reason we are debating this issue. Doctors should not have to refer against their will. We also must ask what "refer" means. It might mean that the life of one of the two patients a doctor is treating will be ended, which is an important reason for putting this amendment forward. Many doctors have a fundamental issue with this approach, but the Minister has steadfastly refused to meet those doctors. There was a call for an EGM, which was tailor-made to be held after the debate finished last Thursday, but that did not happen. We saw what happened at the EGM. It is not for me to tell the Irish College of General Practitioners how to organise itself, but democracy was shut down in that organisation. Indeed, Dr. Kirsten Fuller, who is an excellent GP from County Tipperary, was one of the people who lead the walk out to fight that provision. Dr. O'Regan from Kerry and many others were also involved. They have not been listened to or engaged

[P. 300]

with, and conscientious objections have not in any way been dealt with. Any degree of consultation might have allayed their fears and allowed the Minister to find a wording that would have pacified many of those genuine GPs who have taken the Hippocratic oath in the first instance and who strive every day to give a service.

Many GPs work in country areas where there is no Caredoc or out of hours service. Those doctors and their families answer calls at all times of the day and night; their duty of care and desire to try to save lives is their motive at all times. They have a genuinely held fear that they are going to be forced to refer, and are worried about what that referral means. If the Minister or his officials had engaged with those doctors in any way we might have had clarity and a better understanding of this Bill, and we would not have 700 or 800 of them threatening not to co-operate in any way with this legislation. There is a scarcity of GPs in urban and rural areas and few GPs are even applying to run a practice. They are dealing with a contract that is almost 50 years old and which has not been renewed. The Minister chose to engage at a senior level with the two doctors' organisations and did not listen to the members of those groups. The organisations did not listen to their members either; democracy has been damaged there as well. Those organisations are able to talk for themselves.

I am here to speak on behalf of the many doctors working at different levels who contacted me about this legislation and to protest at the sheer speed with which it is being rushed through the Dáil. People here are talking about the rights of staff. I am hearing that staff are being told they have to work all night tomorrow if this Bill passes tonight in order to get the Bill through the Seanad. We can cry about workers' rights and complain all we like, but we are now making people work unreasonable hours. We are now making staff here work unreasonable hours because of unreasonable sittings. I do not know if that is definitely happening but that is what I have been told. It shows little care about the staff here and their families who have to stay up working late. I include the Senators, those working in committees, the secretariat, ushers and indeed all the people who attend on the House.

An Leas-Cheann Comhaire

The Deputy should concentrate on the amendment.

Deputy Matthie McGrath

I am concentrating on the amendment. This is the fundamental part of the problem. The Minister might have reached agreement with the vast majority of GPs had the Minister engaged in a modicum of consultation with these doctors and listened to their fears. They are busy in their practices every day of the week. They are not people who are out marching and protesting about this, that and the other. However, this interferes with a fundamental part of their Hippocratic oath, their beliefs and their education. They spent a lot of time gaining their medical degrees and developing their working expertise, and they want to be listened to, which is not unnatural in a democracy. They should have been listened to and engaged with. The Minister went out of his way to meet all sorts of groups with any acronym on the other side but would not meet the GPs at any stage to discuss this legislation. What was he hiding? What was he afraid to debate? Why does he have to run to the populist side and use a bulldozer to drive this legislation through at all costs? It is a trophy project for himself. Those GPs are facing absolute and utter chaos on a daily basis. When they refer people to accident and emergency departments they cannot get an ambulance so people are left in their surgeries.

10:00 o'clock

They go to an accident and emergency department in Tipperary and they are lucky if they get a trolley. They cannot get a pillowcase or a blanket. Then there are early discharges.

[P. 301]

The front line is the GP service. It is nowhere else. We have seen all the areas of the free GP care for young people. Now this service is going to be rolled out against GPs' will. They will be forced and coerced to refer against their fundamental beliefs. It is despicable, it is sad and it is disrespectful towards a profession that has served this State well. I know many of them who continue to work long after retirement age because they have a rapport and a sense of commitment to patients, their families and their communities. I am not just talking about rural areas. I am talking about urban areas as well. They are part of the very fabric of what makes it good to live in a community. This Government is shamelessly stripping everything from our community.

My fundamental reason for putting this amendment forward is the lack of clarity on the implications that arise if doctors have to refer. One of the lives they see in a pregnant woman would be taken. That is what they fundamentally disagree with. This could have been worked out if the Minister had the courage or the respect to meet with GPs.

Deputy Simon Harris

We have had a very long debate on conscientious objection, and this is another issue relating to it. It was quite a good and useful debate. The points I made during that very long debate, to which we all contributed, I reiterate here. The Medical Council guidelines are very clear on what the duty to refer comprises. The law on conscientious objection is not changing even though the law on abortion is, and therefore I do not see any reason to accept this amendment.

Deputy Peadar Tóibin

Obviously there have been a couple of debates around conscientious objection. I am surprised this has not been grouped with the other ones.

Deputy Simon Harris

Me, too.

Deputy Peadar Tóibin

However, the fact is that it is not, and I wish to make a couple of short points. Points were made about the Protection of Life During Pregnancy Act 2013. The Medical Council guidelines relating to that Act state that doctors must do their utmost to protect the mother and baby. We are told those guidelines will not change. They iterate a very strong pro-life view. The issue that has struck me the most is this. Doctors around the country have stated to me that the very basis of their function, the very reason they are practicing, is being radically undermined by the Government. Doctors have said to me that they invested time, energy and money into studying to become doctors in order to protect, nurture and save lives. They have stated that it is unprecedented in their experience for a Government to change the environment of a group of workers so radically, thereby undermining them in their ability to provide services. We know from experience around the world that when freedom of conscience is not properly provided to doctors and medical health workers it leads to certain people leaving the profession. It also leads to certain workers not entering it. Those who operate under those terms suffer burnout more in the long run, because they are constantly in mental dissonance with the work they are involved in.

The Minister has stated that we are simply talking about arrangements for a doctor to pass a patient on to another individual. The key point is this. If I was to arrange for the ending of the Minister's life in the way that this Bill envisions, I would be seen as morally and legally complicit. The doctors we are talking about see an abortion in those terms. They see the unborn child as a living individual human being and therefore as having the same value and worth as anybody else. The fact that they are being told under this legislation that they have to make arrangements for that unborn child to be aborted is a real difficulty for them. These people are

[P. 302]

crying out for the Minister to take that into consideration.

I heard Deputies Kelleher and Micheál Martin speak. It seems to me that they are looking to dictate to the conscience of doctors. Why have Deputy Martin, Deputy Kelleher and the Minister not sat down with the thousands of healthcare workers?

Deputy Simon Harris

We have.

Deputy Peadar Tóibin

These people are not making it up. They are not pretending that there is a serious difficulty here. To stand up on this issue in the environment of today's society is actually a really hard thing for people to do. To make the point that this is such a difficulty, to swim against the tide, is a very hard thing for people in their professions to do.

Deputy Ruth Coppinger

It was very hard to be pro-choice for a long time.

Deputy Peadar Tóibin

We hear another point as well. On one side of the debate we are told-----

An Leas-Cheann Comhaire

If there are Members who want to contribute, I ask them to wait and to indicate to the Chair. I ask Deputies to allow Deputy Tóibín to speak, whether they agree with him or not, and to stop interjecting.

Deputy Peadar Tóibin

This is hard to understand. We are told that there are oceans of doctors who are willing to deliver this service. However, we are then told that we have to force certain doctors to make arrangements for it. It is either one or the other. If there are adequate numbers who are happy to provide the service we do not actually need to go down this particular route. As I said earlier, the limits of one individual's rights are where they infringe on another individual's rights. Most people would understand that it is an infringement of a person's rights to force him or her to be involved in a process that leads to the end of another human being's life. This is something that thousands of doctors are crying out for, and I ask the Minister to accept the amendment.


Tá [Yea] 27; Níl [Nay] 75; Staon [Abstain] 0.  Amendment declared lost


[P. 304]

Deputy Simon Harris )Minister of Health

[Simon Harris moved amendments 52 and 53, which carried.]

Bill text Amendment 52 and 53

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011.

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives, or the midwife candidate division of the candidate register established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives, or a division (other than the midwife candidate division) of the candidate register established under section 46 of the Act of 2011;

[Protection of Conscience Project comparison]

Deputy Mattie McGrath

I move amendment No. 54:

In page 16, line 16, to delete “2011.” and substitute the following:

[P. 305]

“2011;

“pharmacist” means a person whose name is for the time being registered in the register of pharmacists established under section 13 of the Pharmacy Act 2007.”.

Bill text Amendment 51

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011.

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011;

"pharmacist” means a person whose name is for the time being registered in the register of pharmacists established under section 13 of the Pharmacy Act 2007.

[Protection of Conscience Project comparison]

Tá [Yea] 29; Níl [Nay] 65; Staon [Abstain] 11.  Amendment declared lost


[P. 306]

Deputy Mattie McGrath

I move amendment No. 55:

In page 16, between lines 16 and 17, to insert the following:

[P. 307]

"(5) A reference to medical practitioner, nurse or midwife in this section shall include any person studying or training to qualify or work as a medical practitioner, nurse or midwife as the case may be.".

Bill text Amendment 51

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011.

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011;

(5) A reference to medical practitioner, nurse or midwife in this section shall include any person studying or training to qualify or work as a medical practitioner, nurse or midwife as the case may be.

[Protection of Conscience Project comparison]

[P. 308]


Tá [Yea] 30; Níl [Nay] 63; Staon [Abstain] 11.  Amendment declared lost


Deputy Brid Smith

I move amendment No. 56:

In page 16, between lines 16 and 17, to insert the following:

“(5) Nothing in subsection (1) shall be construed as applying to an institution, hospital or medical facility.”.

Bill text Amendment 51

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011.

Conscientious objection
24. (4) In this section—

“Act of 2011” means the Nurses and Midwives Act 2011;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Act of 2011;

(5) Nothing in subsection (1) shall be construed as applying to an institution, hospital or medical facility.

[Protection of Conscience Project comparison]

[P. 309]

I speak on behalf of all the signatories to this amendment. I am willing to withdraw it on the basis that the Minister is willing to reiterate the commitment he gave us on Committee Stage, and which I think he gave to Deputy Catherine Murphy earlier, that there will be no chance whatsoever that any institution, hospital or organisation, in particular the promised new maternity hospital, will have a right to conscientious objection.

Deputy Simon Harris

I am very happy to give that commitment to Deputy Bríd Smith. As I said to Deputy Catherine Murphy, institutions cannot have conscientious objection, and the law and the view of the Attorney General in this regard is very clear. One of the first tenets of lawmaking is that the expression of one thing is the exclusion of the other. There is absolutely no place in this law for institutions to have conscientious objection.


 

Amendment, by leave, withdrawn.