Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.

Mairead Enright (@maireadenright)

Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A  suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access a life-saving abortion must be certified by three doctors (two psychiatrists, at least one of whom has experience in treating pregnant women, and an obstetrician). Their job is to assess whether there is a real and substantial risk to the woman’s life from suicide, which risk can only be averted by terminating the pregnancy. This statutory test, restrictive as it is, mirrors the 8th Amendment as interpreted in the X case – the sources of constitutional law which provide that abortion is only available in Ireland where necessary to save the pregnant woman’s life.

This girl apparently saw only one psychiatrist, who decided that, although she was suicidal and at risk of self-harm, an abortion was not ‘the solution for all of [her] problems at this stage’. On his evidence, involuntary admission proceedings were begun under s. 25 of the Mental Health Act 2001 (MHA). The Health Service Executive (HSE) applied to the District Court to have the girl detained on the grounds that she was suffering from a ‘mental disorder’ (which meant that she was at risk of causing ‘immediate and serious harm to herself or other persons’) and required treatment which she was unlikely to receive unless such an order was made.The order was granted on the consultant psychiatrist’s evidence, and the child was detained in a psychiatric facility. We do not know what treatment it was proposed to subject her to. It was not suggested that any question arose around her capacity to consent.

At the time of making the detention order, the District Court judge appointed a guardian ad litem to represent the best interests of the child. The guardian employed another consultant psychiatrist to assess the detained girl. This second psychiatrist found that the girl was not (or was no longer) suicidal. By this point, the treating psychiatrist in the institution where the girl was detained also agreed that the initial risk of self-harm had abated. The guardian ad litem therefore applied for discharge of the detention order on the grounds that the girl was no longer suffering from a ‘mental disorder’ within the meaning of the 2001 Act, and so there were no grounds for her detention.

It is not known what happened to this girl after her release; whether she was facilitated to travel to seek an abortion to preserve her mental health or whether she was compelled to continue the pregnancy in Ireland. Suppose for a moment that her pregnancy was advanced, and that she was subsequently unable to travel – that she was effectively denied an abortion.  Later in the month, the Minister for Health will report on the number of abortions carried out under the PLDPA, as required by s. 15 of the Act. Refusals will not be reported, which makes it difficult to spot oppressive patterns of obstruction. This case demonstrates that the PLDPA, as it is applied in practice, is incapable of vindicating vulnerable women’s rights. There are three key points:

(i) Was the PLDPA applied here? The prominence of one psychiatrist in the report does not tell us anything by itself. S.9 of the Act says that in order to access an abortion, a woman must have been examined by 2 psychiatrists and an obstetrician; it refers to ‘joint certification’. However, the Department of Health Guidance on the operation of the Act places a lot of power in the hands of the first psychiatrist. S/he may assess the patient alone, without discussion with other doctors. If s/he decides that the statutory test is not fulfilled, the pregnant person may accept that clinical recommendation. Even so, the first psychiatrist must notify the woman of the refusal in writing, of her formal right to review under s.10 of the Act and of her right to a second opinion. It not known what was done to help this, apparently very confused, child avail of those statutory rights (to advocate for her, to fill out paperwork, to clarify her choices and their consequences) once she received a first refusal. It is also important to note that this staged chain of assessment is not set out on the face of the Act – it is the Department of Health’s interpretation. It is not obvious that it is the correct interpretation of the Act: for instance it is strange that a woman’s constitutional right to a life-saving abortion can effectively be overridden by one doctor, but the right to access an abortion cannot be confirmed without the intervention of three. 

(ii) How should the PLDPA interact with the MHA? During the PLDPA debates, the Minister for Health assured the Oireachtas that a woman who did not suffer from a mental disorder within the meaning of the MHA would not be detained merely for requesting an abortion. The Department of Health must guide against any such slippage. The Department of Health Guidance on the Act does not help here. For the avoidance of doubt the guidance should clarify that the PLDPA should be considered first where possible. Even where circumstances require a pregnant person’s temporary detention, the PLDPA process should be commenced as soon as practicable. To take any other position might allow the MHA to be used to bypass the PLDPA. The MHA should not be seen as an alternative to the PLDPA even where the assessing psychiatrist guesses that a patient would not pass the test under s.9. First, if it were, the temptation to allow the MHA to become a conscientious objector’s charter in suicide cases clearly arises. The HSE should ensure that conscientious objection is clearly exercised under s. 17 of the PLDPA, rather than concealed. Second, the Acts should not be treated as triggers for one another. The statutes have different purposes – the MHA test determines the legality of detention for the purpose of treatment, while the PLDPA determines the legality of the treatment itself; the approach to one should not pre-determine the approach to the other. Refusal under the PLDPA should not automatically lead to detention. If, however, the phrase ‘immediate and serious harm…to other persons’ in the MHA is being read – by psychiatrists or by the courts at the urging of foetus’ own guardians ad litem – to include the unborn, the possibility of slippage between the Acts becomes starkly apparent. The government must address this interpretation.

I am not, for a moment, defending the PLDPA process. Under the PLDPA a suicidal woman may be assessed by 6 or more doctors before being granted an abortion. Even when applied properly the PLDPA assessment process may be gruelling. But it is equally indefensible to avoid the process altogether when a woman has requested it, and in so doing to strip her of all rights-protecting procedural safeguards.

(iii) Finally, we might ask when the Department of Health will provide full guidance on what doctors should do when a woman is refused access to an abortion. We know, for example, from the earlier case of Ms. Y, that such a woman may legally be subjected to treatment for the purposes of extending her pregnancy to viability, in order to facilitate later live delivery.  (Ms. Y was threatened with detention). Was it proposed to detain this child for that purpose? The law does not tell doctors how far they may go to preserve a pregnancy if it is determined that a pregnant person is not entitled to an abortion under the PLDPA. (Oddly, lack of ‘legal certainty’ in this respect has not become the same political football as has the same uncertainty around the right to access an abortion). The Department of Health Guidance reminds doctors that, under the Act, they must act ‘as far as practicable’ to preserve unborn life (including inducing labour or delivering early by C-section) without compromising the life (but not the other rights) of the pregnant woman.This girl was detained (apparently to her great shock) and in the process was prevented from travelling. Were appropriate safeguards in place?

This is a grey area, where doctors have been left largely free to exercise their own discretion, and where the state has failed to elaborate on any human-rights based limits. However, the limits are there. Today, for example, we got word of the UN Human Rights Committee’s decision in Whelan v Ireland. The principles are essentially those in Mellet v Ireland; that the Irish criminalisation of abortion, the attendant requirement to travel for non-life-saving abortions, and the associated restriction of abortion information, violate the human rights of women whose foetuses have been diagnosed with fatal foetal abnormality. Whelan is about a case outside the PLDPA regime, whereas this girl’s case was firmly within it. But Whelan, like Mellet, provides means to critique refusals under the PLDPA too. In particular, the defeated arguments advanced by the state in Whelan map how legal attitudes must be altered. First, in Whelan the state attempted to defend drastic and distressing infringements on women’s rights; prioritising unborn life over women’s autonomy. Whelan confirms that, under the ICCPR, the state does not have the power to arbitrarily restrict women’s rights in a broadly drawn attempt to protect unborn life.

Second, Whelan confirms the state does not fulfil its human rights obligations merely by clarifying the law of abortion on the face of statutes, without supporting women to navigate the structures governing that lawful abortion. ‘Legal certainty’, for this government means words on the statute books, not the effective empowerment of women or the alleviation of their distress. This must change. It must change for abortions under the PLDPA as well as for abortions accessed in line with the right to travel.  

Third, women’s rights are violated through omission to adequately support them as much as by the culpable acts of individual state agents. At the same time, the state must restrict opportunities for individual obstructionist interpretations of the abortion laws, as discussed above. This must be done through the provision of proper guidance and training on the implementation of abortion legislation; whether the PLDPA or its inevitable successors.

Finally, it is no longer enough for the state to argue as it did in Whelan  (and A, B and C v. Ireland, D v. Ireland and Mellet)  that women can vindicate their rights (and extend the existing constitutional law) by bringing cases to the High Court. It is for the government to create genuinely workable law – this function cannot be delegated to women at the most vulnerable time of their lives.

 

Ireland’s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.

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