OPINION:An evaluation by two psychiatrists is sufficiently robust for tiny number of women asserting suicidality
Noel Whelan (Suicide ‘test’ should now be key focus of abortion debate, Opinion Analysis, January 12th) has much to say that is positive about the Oireachtas health committee’s recent hearings.
As a witness before that committee, I drafted outline legislation to show how an abortion law might be codified within the strictures, properly understood, of article 40.3.3. I also echo his view that the hearings illuminated many issues for the undecided and for those who Catherine McGuinness termed the “middle ground”.
However, I part with him when he focuses on the question of the threat of suicide as a ground for the X case and suggests (wrongly, in my view) that there is potential for significant ongoing disagreement about how to legislate for the question of suicide.
As one basis for this argument, he advances the discrepancies between the proposed statutory measures contained in Clare Daly’s draft Bill and those in the draft Bill I offered for consideration by the committee. He concludes the different approaches “illustrate there is still a debate to be had about the safeguards in cases involving threat of suicide”.
In reaching his conclusion about different approaches to date on legislating for suicide, he omits a critical consideration: at the time of the drafting of both Bills, no one knew quite what Irish doctors, especially Irish psychiatrists, thought about all of this.
Both Bills were drafted in advance of helpful exposition before the Oireachtas health committee and did not have the benefit of the full discussion that the health committee hearings both facilitated and subsequently generated. As a result, differences between the two Bills are understandable given the lack of clarity when they were drafted.
Before considering what an abortion law should say about the threat of suicide, there are two other issues. The first is whether we can legislate for suicide at all. I think both Bills (their differences notwithstanding) make clear workable frameworks can be codified without great complexity. It is also instructive to recall that complex aspects of mental health (including threats of suicide) are already unexceptionably legislated for in the Mental Health Act 2001.
The second issue is the main distinction noted by Whelan in his article: who should assess suicidal risk?
Clare Daly’s Bill envisaged the risk could be assessed by either a psychiatrist or a psychologist; my Bill provides that it can only be a psychiatrist who carries out the assessment. I think I understand the reasoning behind Daly’s Bill. First, in the X case itself the evidence from a psychologist was accepted; and secondly, there may be questions of accessibility if all assessments must be carried out by consultant psychiatrists.
But that is, I think, to misunderstand three things. The first is that (as the evidence to the Oireachtas committee confirmed) we are dealing with tiny numbers of women who are (a) suicidal in pregnancy, (b) suicidal because of that pregnancy and (c) falling into the X case scenario of requiring a termination to treat their condition.
The numbers cannot be known: with 4,000 travelling to Britain for terminations, we cannot be sure of their health profile prior to travelling. However, small numbers mean resources are unlikely to be an issue.
A second factor is one of equality: the test under all other aspects of Clare Daly’s draft Bill and my draft Bill is a medical one, not a paramedical one. It is preferable, I think, to have equality of assessment within any legislation by doctors who are all subject to the same regulatory checks and balances and whose broader training across medical disciplines will necessarily bring benefits to any assessment.
Third is the question of broader consistency across legislation: for the purposes of the Mental Health Act, all relevant assessments are medical and not paramedical. In my original draft Bill, I provided that in the assessment of suicide, there should be assessments by two doctors (one of whom should be a consultant psychiatrist) and that each doctor should assess the woman on two separate occasions. However, that was my view when, as it were, “drafting blind”.
Having heard the various submissions and having reflected on the report of the expert group, I think that the test set out in my draft Bill is not the proper one. First, by requiring – in effect – four examinations, it creates obstacles for women with mental health problems that are not in place for a patient with physical health problems, which may be discriminatory.
Second, the original Bill raises the prospect that one assessment of suicide risk could be carried out by a doctor who is not a psychiatrist, which on balance would be to stray from the requirement for appropriate specialisation that was called for by the expert evidence (and, indeed by the report of the expert group).
Thus, I would now suggest that any Bill would apply a test for women threatening suicide that is identical to the test for women facing physical threats to life, with one important distinction. The required assessments and opinions by doctors should both come from consultant psychiatrists, independently examining and assessing the patient on separate occasions. I think the requirement for double psychiatric assessment is sufficient to allow for robust assessment of the small number of women asserting suicidality.
All of this is, of course, quite aside from a discussion about whether suicide should be legislated for at all. It seems clear to most legal commentators that it would not be possible to legislate for abortion without legislating for suicide as a ground.
By all means, adherents of the contrary view can wage their campaign for constitutional reform, but that should not delay the Government, in the meantime, from legislating for abortion promptly, thoroughly and in accordance with article 40.3.3 of the Constitution.
SIMON MILLSis a barrister, former doctor and author. He presented a draft Termination of Pregnancy Bill to the Oireachtas Committee on Health and Children