Abortion Discussion

volchitsa

The only source we have for this AFAIK is the one Irish Times article.

I'm sure you're wrong about this - for one thing your own link mentions on p 17 that the Dublin neurologists requested legal advice but couldn't get any in writing - clearly the legal department was not prepared to commit itself in that way.

But in any case this would indicate that there were attempts made to work out what to do from a legal point of view, so the IT account seems to be confirmed by that.

recedite

volchitsa wrote: »

No time just now, got to run, but by the other members of the team I meant the other two doctors, and particularly the neurologist whose opinion was to take her off the life support. I'm obviously aware that nurses don't make decisions of that nature anyway, so would have no "opinion" to give.

Also, I may be wrong, but my understanding of the origins of GUH was that it was a secular hospital, unlike some of the Dublin ones. I'm surprised to hear the opposite, and unfortunately your link leads to a content-free page, so there is no confirmation of that. Do you have anything to back this up?

OK I stand corrected on GUH Galway, it was always secular apparently. I was getting mixed up with the controversies in the Mater hospital.

So when you say "the neurologist whose opinion was to take her off the life support", I'm assuming you mean Dr. McNally of Beaumont hospital as mentioned in the report. It describes how she was transferred for the first week of December to "a Dublin Hospital" where she was declared clinically dead and they recommended a "no resuscitation" policy in the event of heart attack then. Presumably they expected that the heart would be next to stop, after the brain had died.

page 2 wrote:

On the 27th November, 2014, N.P. was admitted to a hospital outside Dublin complaining of persistent headaches and nausea. On the night of the 29th November 2014, N.P. sustained a fall while in hospital and was later found to be unresponsive and was urgently incubated. Later that day, N.P. was transferred into the care of a Dublin hospital where, on the 2nd December, 2014, at a meeting with medical clinicians in that hospital, the plaintiff was advised that his daughter’s medical condition was such that there should not be an attempt at resuscitation in the event of her suffering cardiac arrest...

There is also a mention that in Dublin they sought legal advice from their own legal dept. re the unborn, but did not get it within the timeframe. Assuming it was actually Beaumont, which is a hospital specialising in brain trauma, and not a maternity hospital, that is not altogether surprising. The body containing the still living foetus was returned to Mullingar on 8th Dec.

page 16 wrote:

Finally, evidence was given by Dr. Stephen McNally, consultant neurosurgeon and national lead in neuro-oncology in the hospital to which N.P. had been transferred in Dublin in which he set out how on arrival she was incubated and ventilated. Her Glasgow coma score was 3/15 and... These changes were consistent with brain death.
Having had to deal with the family of N.P., he found their frustrations and their humanity both touching and humbling. While he had seen some dreadful things in neurosurgery he had never seen this. It was very difficult not to be able to follow the wishes of the family because of uncertainty as to the legal standing with regard to the unborn child. Legal advice had been sought but no opinion in writing had been received prior to the time for a transfer back to the hospital outside Dublin.

As this particular doctor is a brain specialist, it would be unfair to have expected him to give a prognosis as to the viability of the foetus or otherwise. Therefore he could not reasonably accede to any request to turn off the life support, after the foetus had become the primary patient. At that stage his primary patient (the mother) was dead and the next patient (the foetus) was being transferred to another hospital.
At this point, its a pity the body containing the foetus was not transferred to the Rotunda, where they would most probably have switched off life support immediately, and been properly qualified to do so.

volchitsa

recedite wrote: »

The Galway hospital had their own policy which involved leaving the doomed foetus for as long as possible to die by itself, even when they knew its death was inevitable and there was at the same time a real threat to the mothers life. I can't say why they had that policy, just that it did not reflect a requirement imposed by the 8th amendment in the Constitution.

The RC policy is that all abortion is forbidden, but an act to save the life of a dying mother which results in the "termination" of the foetus does not constitute an act of abortion. That is a much higher bar than is described in the 8th amendment, which allows abortion if there is a substantial risk. The word "substantial" does not mean "grave" it means;
1. "not-makey uppy" and 2. "not insignificant".

Ok, I have a little more time now. I still don't know whether your assertions about there being a difference in the ethos of GUH vs the Midland Hospital, but there are some major inaccuracies in what you post about the catholic stance on pregnancy termination. It's not so much about it being allowed to save the life of the dying mother (which is pretty much the original 8th amendment, before subsequent court judgements which started from the view that this is actually too harsh and have worked back from there, to some extent anyway).

No, the RCC view is that termination is only permissible if it occurs as a secondary result of a different action which must be performed only in order to save the life etc etc. That is the doctrine of double intention.

If we take the example of an ectopic pregnancy, it isn't acceptable to use the far less mutilating surgical technique of removing only the piece of Fallopian tube which contains the embryo, surgery is only permitted under RCC "double intention, doctrine if the entire Fallopian tube is declared diseased, and removed as though it were cancerous. Even though it isn't, it just contains an embryo which, if left to develop, would kill the pregnant woman. But that doesn't matter: if for some reason the major surgery weren't possible, the more minor version would not become possible, even to save the woman's life.

Your point about the fetal heartbeat being some sort of lone gallop by GUH is also wrong. It is absolutely the norm in all the catholic hospitals in the USA, and presumably those are considered more suitable places for catholic-ethos-based hospitals in Ireland to model themselves on for all "pro-life" issues than the godless NHS ones which tend to be the day-to-day models of care used by Irish medical teams.


https://www.aclu.org/sites/default/files/assets/conflicts_in_care.pdf
Or this:

While near-death was not typical, delaying and denying care was. Another physician told a story of how she and another physician were called before their ethics committee and colleagues to defend their course of care for a different case. This time the woman had begun miscarrying a fetus with a heart problem:

There were two members of the committee who were very vocally sort of accusing us of carrying out an elective abortion. And I said, you know, “There was nothing elective about this. This woman didn’t choose to have her membranes rupture at 19 weeks. She didn’t choose to have a baby with the most severe form of congenital heart disease. There was nothing elective about this.
In that case, two physicians were publicly admonished because they had not delayed care, and had instead administered medication without asking the committee first. In a Catholic hospital, while the fetus still has a heartbeat, no matter how inevitable the loss is, treatment that speeds it up is considered to be an abortion. These ethics committee leaders told the physicians they should have managed the patient “expectantly,” meaning they should not have given medications. They should have waited for her to expel the pregnancy on her own, regardless of what the patient wanted or the fact that it could take a long time, be quite painful, and bring about infection.

http://www.newrepublic.com/article/116034/catholic-hospitals-lawsuit-usccb-doctrines-determine-care

Sounds familiar, doesn't it?

volchitsa

recedite wrote: »

OK I stand corrected on GUH Galway, it was always secular apparently. I was getting mixed up with the controversies in the Mater hospital.

So when you say "the neurologist whose opinion was to take her off the life support", I'm assuming you mean Dr. McNally of Beaumont hospital as mentioned in the report. It describes how she was transferred for the first week of December to "a Dublin Hospital" where she was declared clinically dead and they recommended a "no resuscitation" policy in the event of heart attack then. Presumably they expected that the heart would be next to stop, after the brain had died.There is also a mention that in Dublin they sought legal advice from their own legal dept. re the unborn, but did not get it within the timeframe. Assuming it was actually Beaumont, which is a hospital specialising in brain trauma, and not a maternity hospital, that is not altogether surprising. The body containing the still living foetus was returned to Mullingar on 8th Dec.
As this particular doctor is a brain specialist, it would be unfair to have expected him to give a prognosis as to the viability of the foetus or otherwise. Therefore he could not reasonably accede to any request to turn off the life support, after the foetus had become the primary patient. At that stage his primary patient (the mother) was dead and the next patient (the foetus) was being transferred to another hospital.
At this point, its a pity the body containing the foetus was not transferred to the Rotunda, where they would most probably have switched off life support immediately, and been properly qualified to do so.

Total speculation again. You think the neurologist is not qualified to know what happens to the body of a brain dead person and in what timescale? Of course he is.

Only if there had been medical evidence that live healthy babies could be born from the uterus of someone who had been dead for months could his opinion that she was dead have been superseded by this other information that it didn't actually matter to the fetus - but we know that there is no such information, since the judge said that all the medical evidence pointed the same way (the few cases where the baby was born alive were all from women who died later in pregnancy, and even then they seem to be very much in a tiny minority of successes with far more failures).

recedite

volchitsa wrote: »

I'm sure you're wrong about this - for one thing your own link mentions on p 17 that the Dublin neurologists requested legal advice but couldn't get any in writing - clearly the legal department was not prepared to commit itself in that way.

OK, so this evidence concerns yet another doctor, this one an obstetrician I think from Holles St. National Maternity hospital, which BTW has quite a different ethos to the Rotunda.
It seems Dr. Peter Boylan appeared at the court later as an independent witness who had reviewed the notes of the doctors at Mullingar and Beaumont. He seems to have dwelled (unduly IMO) on the uncertainty experienced by Dr. Mc Nally's team at Beaumont re the viability of the foetus and the resultant legal uncertainty. He seems to have picked up on this from reading the medical notes.

page 8 wrote:

Dr. Peter Boylan is a consultant obstetrician. He provided a detailed report to the Court dated the 22nd December. He had seen the medical records and traced the chronology of N.P.’s various hospital admissions and treatment.....
A study of the notes brought home that the doctors in the Dublin hospital
were clearly concerned, having regard to the mother’s pregnancy, not to do anything that would “get them into trouble from a legal point of view and were awaiting legal advice”. ...
He adverted to the discussions which had taken place between the members of the multi-disciplinary medical team within the Dublin hospital, all of which emphasised and were focussed on the difficulties for medical practitioners as a consequence of the absence of medico-legal guidelines and because of difficulties arising from the 8th Amendment to the Constitution.

I refer you to this post, which explains how the Irish Times reporter then used Dr. Boylan's evidence as quoted above to conjure up a picture of a medical team sitting around with a copy of the Constitution.

Another interesting thing; I have googled this Dr. Boylan, and he is the same independent witness that was used in the Savita inquest, where he basically blamed the Constitution for that tragedy, on this same "legal uncertainty" basis, and by implication cleared the hospital.
Here he is criticised for this by a significant number of consultants.

This is also interesting; his opinion at the brain-death court hearing was to switch off life support, as per every other doctor, but his rationale is interesting;

page9 wrote:

..This would result in the mother’s death which would inevitably be followed by the death of the unborn because its intensive care support would be withdrawn. However, this was entirely different to an abortion because it is the withdrawal of ongoing support rather than the direct termination of life.

So this corresponds with the RCC view of an acceptable termination which is not an abortion, and also the same kind of rationale that was being used (inappropriately) in the Savita hospital, and probably would also have been the policy at Holles St. too (up until recent legislation changes at least).
In this particular case the religious view does coincide with the law, but only because the mother was already dead, and the court could not therefore authorise a positive step, such as abortion, which would kill the foetus.
In the vast majority of other cases, where the mother is living but her life endangered, the positive step of abortion is legal.

volchitsa

recedite wrote: »

I refer you to this post, which explains how the Irish Times reporter then used Dr. Boylan's evidence as quoted above to conjure up a picture of a medical team sitting around with a copy of the Constitution.

No, it speculates that this may be where that claim came from, but in no way disproves it. But so what anyway? What matters is that medical experts spend their extremely expensive time discussing legal ambiguities instead of getting on with what they are trained to do, medicine.

recedite wrote: »

Another interesting thing; I have googled this Dr. Boylan, and he is the same independent witness that was used in the Savita inquest, where he basically blamed the Constitution for that tragedy, on this same "legal uncertainty" basis, and by implication cleared the hospital.
Here he is criticised for this by a significant number of consultants.

Yes I remember that, here is some information from your own link about who this group is :

The group is led by Dr John Monaghan, an obstetrician in Portiuncula Hospital in Co Galway known for his pro-life views.

It includes retired specialists of a similar opinion, Professor John Bonnar and Professor Eamon O'Dwyer.

I also remember that Dr Boylan pointed out that they had not read her notes and so couldn't possibly provide a professional opinion on the case.
And I note that none of them are anywhere to be seen at all these days, so either they think that Boylan is right now, whatever about then, or he comprehensively trashed them last time and they don't wish to tackle him again. Or both.

recedite wrote: »

This is also interesting; his opinion at the brain-death court hearing was to switch off life support, as per every other doctor, but his rationale is interesting;
So this corresponds with the RCC view of an acceptable termination which is not an abortion, and also the same kind of rationale that was being used (inappropriately) in the Savita hospital, and probably would also have been the policy at Holles St. too (up until recent legislation changes at least).
In this particular case the religious view does coincide with the law, but only because the mother was already dead, and the court could not therefore authorise a positive step, such as abortion, which would kill the foetus.
In the vast majority of other cases, where the mother is living but her life endangered, the positive step of abortion is legal.

Not sure what you are saying there. It is most unclear, and I'm not sure you are right about either Boylan's views or the RCC's, since that quote would seem to imply that the hospital should have known to turn off the life support immediately - yet I'm sure he said that the 8th was a real issue. There is a contradiction there, and I suspect it may to some extent be in the context which is missing from that quote. I imagine he was being asked about what the situation was at that point, not what they should have done at the start. No?

Loafing Oaf

volchitsa wrote: »

Your point about the fetal heartbeat being some sort of lone gallop by GUH is also wrong. It is absolutely the norm in all the catholic hospitals in the USA, and presumably those are considered more suitable places for catholic-ethos-based hospitals in Ireland to model themselves on for all "pro-life" issues than the godless NHS ones which tend to be the day-to-day models of care used by Irish medical teams.

You say 'presumably' but in reality we don't know what practice in this area is in Irish maternity hospitals, Catholic or hospitals. When obstetricians are asked about it interviews, they are always reluctant to engage with the specifics. My suspicion, based on the fact that we are not hearing about Savita-type cases on a regular basis, is that most Irish obstetricians follow international best practice and adopt a very broad definition of what constitutes a 'substantial' threat to a woman's life. A 'mental reservation' one might say...Of course it's completely unsatisfactory to be putting medical staff in this position.

lazygal

Loafing Oaf wrote: »

You say 'presumably' but in reality we don't know what practice in this area is in Irish maternity hospitals, Catholic or hospitals. When obstetricians are asked about it interviews, they are always reluctant to engage with the specifics. My suspicion, based on the fact that we are not hearing about Savita-type cases on a regular basis, is that most Irish obstetricians follow international best practice and adopt a very broad definition of what constitutes a 'substantial' threat to a woman's life. A 'mental reservation' one might say...Of course it's completely unsatisfactory to be putting medical staff in this position.

I think it also depends on the doctor. When I was pregnant I was lucky to be able to afford to go private and select a consultant who was all about early intervention. I had slight complications which might have become more problematic had I been under a different consultant. I'm also well used to speaking my mind about medical matters and had to do so with a different consultant, who I will be requesting does not treat me even in an emergency if I am pregnant in the future. There's not a doubt in my mind had my consultant been called if I was miscarrying at 18 weeks that they'd have acted swiftly and proactively.

Eta there's a lot to be said for having your baby in a place that delivers thousands of babies every year and will have seen nearly every complication before. When I was having my first the theatre was full of students observing my surgery.

volchitsa

Loafing Oaf wrote: »

You say 'presumably' but in reality we don't know what practice in this area is in Irish maternity hospitals, Catholic or hospitals. When obstetricians are asked about it interviews, they are always reluctant to engage with the specifics. My suspicion, based on the fact that we are not hearing about Savita-type cases on a regular basis, is that most Irish obstetricians follow international best practice and adopt a very broad definition of what constitutes a 'substantial' threat to a woman's life. A 'mental reservation' one might say...Of course it's completely unsatisfactory to be putting medical staff in this position.

We don't hear about them in America though either, in fact one of the points made on one of the articles I linked to is that the obstetricians themselves are surprised to find themselves in opposition to their hospital administration over these questions. But then they themselves are made to understand that it will be better for their career if they don't make a fuss, and since the patients themselves tend to trust the medical advice they're given, it's hard to see who has both the knowledge and motivation to do something about it.

And of course luckily most patients don't die - and being left harmed by an action or lack of action which was ostensibly to protect the unborn would not be covered by normal malpractice unless you could actually prove that the doctor could not have believed what he claimed to believe. Which is damn near impossible. There is no EBM on how to respect Ireland's unique legal situation, so obstetric staff can claim what they want. As a recent court case showed, the usual rules don't apply in pregnancy : http://nocountryforpregnantwomen.blogspot.fr/2014/08/the-constitution-is-not-only-legal.html

Loafing Oaf

lazygal wrote: »

I think it also depends on the doctor. When I was pregnant I was lucky to be able to afford to go private and select a consultant who was all about early intervention. I had slight complications which might have become more problematic had I been under a different consultant. I'm also well used to speaking my mind about medical matters and had to do so with a different consultant, who I will be requesting does not treat me even in an emergency if I am pregnant in the future. There's not a doubt in my mind had my consultant been called if I was miscarrying at 18 weeks that they'd have acted swiftly and proactively.

Eta there's a lot to be said for having your baby in a place that delivers thousands of babies every year and will have seen nearly every complication before. When I was having my first the theatre was full of students observing my surgery.

You might have thought Irish obstetricians might have adopted an informal common practice about how to deal with problematic pregnancies that aren't necessarily posing an immediate threat to the woman's life, based on private conversations at conferences etc. But perhaps the subject is so radioactive they can't even talk about it candidly in those contexts and doctors have to work out for themselves what they can 'get away with' under Irish legal/constitutional constraints...

recedite

volchitsa wrote: »

Not sure what you are saying there. It is most unclear, and I'm not sure you are right about either Boylan's views or the RCC's, since that quote would seem to imply that the hospital should have known to turn off the life support immediately - yet I'm sure he said that the 8th was a real issue. There is a contradiction there, and I suspect it may to some extent be in the context which is missing from that quote. I imagine he was being asked about what the situation was at that point, not what they should have done at the start. No?

Dr. Boylan was being asked about the situation at that point, but the same ethical/legal principles applied at the start. He was able to sidestep the issue of what should have been done at the start, because nobody asked him that.

If you look at what he said it is very clever, because it appeases everyone; pro-life, pro-choice, RCC, the HSE, the family, and the High Court judges who wanted to be able to give the order to terminate but could not authorise a positive step to kill someone. Here's his quote again

...This would result in the mother’s death which would inevitably be followed by the death of the unborn because its intensive care support would be withdrawn. However, this was entirely different to an abortion because it is the withdrawal of ongoing support rather than the direct termination of life...

There is a slight inaccuracy in that the mother was already declared dead, but we know what he means; the remaining living tissues would die.
So what I am saying about this guy is that he has done what he did in the Savita inquiry; he goes in and defuses the situation while creating a bit of a smokescreen by ranting on about the 8th amendment and the supposed confusion in the medical profession about it.

As a result nobody saw fit to ask Dr. Mortel what reasons he had for thinking a 15 week old foetus could be incubated successfully inside a rotting body.

Similarly in the Savita inquiry, the salient question (what reason did they have for letting her go way beyond the point at which a substantial risk to her life was identified) was obscured by the very same smokescreen.

Medical profession colleagues off the hook, job done, everyone goes home.

volchitsa

recedite wrote: »

Dr. Boylan was being asked about the situation at that point, but the same ethical/legal principles applied at the start. He was able to sidestep the issue of what should have been done at the start, because nobody asked him that.

If you look at what he said it is very clever, because it appeases everyone; pro-life, pro-choice, RCC, the HSE, the family, and the High Court judges who wanted to be able to give the order to terminate but could not authorise a positive step to kill someone. Here's his quote again
There is a slight inaccuracy in that the mother was already declared dead, but we know what he means; the remaining living tissues would die.
So what I am saying about this guy is that he has done what he did in the Savita inquiry; he goes in and defuses the situation while creating a bit of a smokescreen by ranting on about the 8th amendment and the supposed confusion in the medical profession about it.

As a result nobody saw fit to ask Dr. Mortel what reasons he had for thinking a 15 week old foetus could be incubated successfully inside a rotting body.

Similarly in the Savita inquiry, the salient question (what reason did they have for letting her go way beyond the point at which a substantial risk to her life was identified) was obscured by the very same smokescreen.

Medical profession colleagues off the hook, job done, everyone goes home.

You see, again you are misrepresenting things in quite a subtle way - exactly what you accuse Boylan of doing.

He was not the only person to say the 8th was the source of the confusion, and indeed why shouldn't he say so - it was, because it says nothing about the predicated future state of the fetus. If that were relevant, women would be allowed abortions for FFAm and we know they aren't, and this woman, being dead, was not in any further danger. It was fair enough for the court to decide that this was not an issue, but how would doctors know that without there being some precedent set by a court judgment? It's like saying the police should have put a criminal directly in jail, since the court found him guilty!

Secondly, how is it Boylan's fault of the court decide not to put awkward questions to Mortell? He isn't there to do the job of the counsel for the unborn or for the mother is he? They both had representation, aren't they capable of deciding what questions to ask?

And finally, re Savita, it isn't true that he failed to address that point, he most certainly did. He said that even if all the testing had been done, the infection she had was such a virulent strain that it would almost certainly have been too late by the time the infection was identified. That fits with international EBM, which says that in cases of suspected chorioamnionitis, any unnecessary delay, such as waiting for blood results is dangerous, as the sepsis can quickly spiral out of control in the pregnant woman.

So whether you just forgot that or whether you were deliberately trying to rewrite Boylan's role there, you are doing him an injustice and propagating untruths. I can't let that past.

recedite

volchitsa wrote: »

He was not the only person to say the 8th was the source of the confusion, and indeed why shouldn't he say so - it was, because it says nothing about the predicated future state of the fetus. If that were relevant, women would be allowed abortions for FFAm and we know they aren't, and this woman, being dead, was not in any further danger.

Lots of people blame the 8th amendment, and they have lots of different reasons and agendas.

Regarding FFA, abortions would be legal in certain FFA cases, if they satisfied the same criteria as discussed in the judgement; distressed existence, dying naturally anyway (or "the predicated future state of the fetus" as you put it), and in the best interests of the patient etc..The same as the criteria for all born and unborn persons. That is the situation today, and it was the same before the 8th amendment.

volchitsa wrote: »

Secondly, how is it Boylan's fault of the court decide not to put awkward questions to Mortell?

Of course its not his job to implicate his colleagues (far from it) Nor was it the court's job.
And the court did not set out to identify the actual faults in the system that let to this scandalous case, they were only asked to decide whether the machine should be switched off or not.

We should really have some kind of permanent dedicated medical ombudsman that the relatives of a patient could go to quickly, if they felt the treatment regime being imposed by the hospital was inappropriate. A person with both legal and medical qualifications.

volchitsa wrote: »

And finally, re Savita, it isn't true that he failed to address that point, he most certainly did. He said that even if all the testing had been done, the infection she had was such a virulent strain that it would almost certainly have been too late by the time the infection was identified. That fits with international EBM, which says that in cases of suspected chorioamnionitis, any unnecessary delay, such as waiting for blood results is dangerous, as the sepsis can quickly spiral out of control in the pregnant woman.

Not sure what you are trying to say there. Either they identified a threat of some substance to her life or they did not. If they did, and the threat could be neutralised by an abortion, then the abortion would have been legal.

ProfessorPlum

recedite wrote: »

Lots of people blame the 8th amendment, and they have lots of different reasons and agendas.

Regarding FFA, abortions would be legal in certain FFA cases, if they satisfied the same criteria as discussed in the judgement; distressed existence, dying naturally anyway (or "the predicated future state of the fetus" as you put it), and in the best interests of the patient etc..The same as the criteria for all born and unborn persons. That is the situation today, and it was the same before the 8th amendment.
Of course its not his job to implicate his colleagues (far from it) Nor was it the court's job.
And the court did not set out to identify the actual faults in the system that let to this scandalous case, they were only asked to decide whether the machine should be switched off or not.

We should really have some kind of permanent dedicated medical ombudsman that the relatives of a patient could go to quickly, if they felt the treatment regime being imposed by the hospital was inappropriate. A person with both legal and medical qualifications.
Not sure what you are trying to say there. Either they identified a threat of some substance to her life or they did not. If they did, and the threat could be neutralised by an abortion, then the abortion would have been legal.

It must be wonderful to be the only person in the country who understands the 8th amendment, and the law regarding the abortion question in general. If only our doctors and lawyers were as well informed as you, (and of course in possession of the necessary crystal ball that is no doubt prominent in your life).

Honestly, I don't understand why anyone would even bother debating the issue with you.

volchitsa

recedite wrote: »

Lots of people blame the 8th amendment, and they have lots of different reasons and agendas.

Yes but among them were the judges in the case. Are you suggesting they have an agenda? Maybe they were simply telling the truth?

recedite wrote: »

We should really have some kind of permanent dedicated medical ombudsman that the relatives of a patient could go to quickly, if they felt the treatment regime being imposed by the hospital was inappropriate. A person with both legal and medical qualifications.

You think? Really?

Sounds like a recipe for disaster to me, and an expensive one at that. Untried in any other country - what could possibly go wrong??

Why don't you tell me how that would be better at saving women's lives than getting rid of the 8th amendment and having even a restrictive law on abortion such as they have in Poland? But one that allows the family and the doctors to decide for themselves if there is any chance of saving a fetus inside a dead woman, that would be a step forward, surely? No need for lawyers who will bleed everyone dry. Why are we doing this? I forget. It seems crazy now. Let's admit we got the amendment wrong, it was a time when people believed the church was a genuine moral arbiter, and that is what is behind the 8th amendment. Remember?

Or how about we really break boundaries and bring in legal first trimester abortion for anyone who requires it, and only in exceptional cases thereafter, as they do in France and Germany? What exactly would be the problem - and if you don't want one, don't have one. Simple.

recedite wrote: »

Not sure what you are trying to say there. Either they identified a threat of some substance to her life or they did not. If they did, and the threat could be neutralised by an abortion, then the abortion would have been legal.

They did, but the doctor in charge said she believed the risk had to be over 50%, to outweigh the fetus' right to life. How would she know she was wrong, since there was no law to guide her in that level of medical detail?

alaimacerc

volchitsa wrote: »

They did, but the doctor in charge said she believed the risk had to be over 50%, to outweigh the fetus' right to life. How would she know she was wrong, since there was no law to guide her in that level of medical detail?

How would we know she was wrong either medically, or more to the point, on the matter of law? If she had erred "low", we might have found out, had she been prosecuted and the Gards, DPP, and jury each decided other than she as to what a "substantial" risk was. If she erred high, there could in theory have been a fitness to practice hearing or such like, but that's not competent to rule on facts of criminal law.

recedite

I don't think the judges said they didn't understand the couple of lines that are in the 8th amendment.

If all relevant laws were changed (including the 8th amendment) in order to remove the long established notion of a right to life for the unborn, then pregnancy and childbirth would obviously be safer for the women who chose to abort, because they would be aborting pregnancy and childbirth. Its a truism.
But there has not been a mandate from the electorate for removing that right, so there are two sets of possibly competing rights to think about.

Re Savita case,

volchitsa wrote: »

but the doctor in charge said she believed the risk had to be over 50%, to outweigh the fetus' right to life. How would she know she was wrong, since there was no law to guide her in that level of medical detail?

That's where a quick phonecall to a medical ombudsman would have been useful.
If she meant a 50% chance of death for the mother, I would call that a very substantial risk to life.

obplayer

recedite wrote: »

I don't think the judges said they didn't understand the couple of lines that are in the 8th amendment.

If all relevant laws were changed (including the 8th amendment) in order to remove the long established notion of a right to life for the unborn, then pregnancy and childbirth would obviously be safer for the women who chose to abort, because they would be aborting pregnancy and childbirth. Its a truism.
But there has not been a mandate from the electorate for removing that right, so there are two sets of possibly competing rights to think about.

Re Savita case,
That's where a quick phonecall to a medical ombudsman would have been useful.
If she meant a 50% chance of death for the mother, I would call that a very substantial risk to life.

When you're in a hole, stop digging.

alaimacerc

recedite wrote: »

Regarding FFA, abortions would be legal in certain FFA cases, if they satisfied the same criteria as discussed in the judgement; distressed existence, dying naturally anyway (or "the predicated future state of the fetus" as you put it), and in the best interests of the patient etc..

Certainly not on the same basis. A termination of pregnancy is not going to be regarded as "facilitating" a "natural death" in the way that turning off a life-support machine is, much less

A closer comparison to the "same criteria" would be if a foetus required a particular medical treatment to survive, while in vivo. If the pregnant woman refuses consent to such a procedure (she being "in the way", after all), but some other interested party with standing (... if there could actually be such, bear with me...), then does foetal right to life apply? (There's the complication here about whether it further trumps the woman's bodily integrity, so you may have to further complexify the case by assuming incapacity on her part.) Well, at least not where the treatment would be "futile" and someone competent to exercise the foetus's "right to a natural death" deemed it to be in its best interest. Which according to the High Court, would apparently be "the High Court".

(Before anyone howls for me to be disbarred from my nonexistent legal practice, the usual obvious disclaimers apply. Doubtless there's probably other law to cover the above type of case anyway, in which case the point is moot in practice, but that's a more parallel case, I reckon.)

The same as the criteria for all born and unborn persons. That is the situation today, and it was the same before the 8th amendment.

And round and round we go, never actually troubling to argue for this, but constantly asserting from it. Review my response to your "Offences Against the Person Act established foetal personhood" post, for starters.

volchitsa

recedite wrote: »

I don't think the judges said they didn't understand the couple of lines that are in the 8th amendment.

No, I don't think they did either. The doctors said they didn't know if it applied in this case, and the HSE legal team wouldn't put their answer in writing. The judges weighed it up and found that in this case, it need not apply. But only in this case, not in all cases of brain dead women.

So we're not much further on really, for the next time this happens.

recedite wrote: »

If all relevant laws were changed (including the 8th amendment) in order to remove the long established notion of a right to life for the unborn, then pregnancy and childbirth would obviously be safer for the women who chose to abort, because they would be aborting pregnancy and childbirth. Its a truism.
But there has not been a mandate from the electorate for removing that right, so there are two sets of possibly competing rights to think about.

Re Savita case,
That's where a quick phonecall to a medical ombudsman would have been useful.
If she meant a 50% chance of death for the mother, I would call that a very substantial risk to life.

yeah, I think obplayer is right. Stop digging you're only looking sillier and sillier.

That isn't what an ombudsman does, you know, the ombudsman gets involved after there has been a problem and someone is unhappy with how they've been treated. They try to avoid a court case when possible, but sometimes it isn't possible.

What you mean is that a quick call to the HSE legal advisers would have been useful - but oh yeah, funnily enough in the case of the life support question they don't appear to have been willing to commit themselves, and we don't know for GUH whether they were asked and if so what they said. But since Dr Astbury wasn't fired for incompetence one must suspect that she did her best to get an answer from them there too.

Here's a crazy thought - would society collapse if we let women and their doctors take these decisions without any input from lawyers at all? You know, like for a heart transplant or other surgery?

alaimacerc

recedite wrote: »

If all relevant laws were changed (including the 8th amendment) in order to remove the long established notion of a right to life for the unborn

Those laws being what, precisely? Name three fast, other than the 8th. Heck, name one. (Two separate klaxons and -20 points if you include the OAtPA; one per previous observation, and another because those sections are in any case already repealed.)

Re Savita case,
That's where a quick phonecall to a medical ombudsman would have been useful.
If she meant a 50% chance of death for the mother, I would call that a very substantial risk to life.

I think we've established that, given your Orwell-bothering (and incidentally, pretty clearly incorrect) "not insignificant" interpretation of "substantial". The question is, what would everyone else call it? Or in particular, the doctors, your ombudsman, the Gardai investigative unit, the judge ruling on a point of law as to its meaning, the jury if it's held to be a matter of fact for them... 50% is a plausible interpretation for the baseline for "substantial" risk according to a literalistic reading of "equal right to life", in cases where the foetus is more-or-less guaranteed to survive if the woman does. (Which in practice won't be the case, so even for the most brutalist utilitarian reading likely to be at least somewhat lower.)

recedite

alaimacerc wrote: »

How would we know she was wrong either medically, or more to the point, on the matter of law?
If she had erred "low", we might have found out, had she been prosecuted and the Gards, DPP, and jury each decided other than she as to what a "substantial" risk was.

An interesting point. Here's how I think it would work if they erred low;
Some pro-life person, possibly an outsider or possibly on the hospital board would file a complaint to the Gardai alleging unlawful abortion. The DPP would have to examine the statements and decide to prosecute, which would probably be unlikely unless the doctor was running an abortion clinic.
In court, the doctor might say they assessed a risk of death at say, around 40%. The judges would decide if this corresponded with "substantial risk" and "with due regard to the the equal right to life of the mother". "With due regard" means bearing in mind that if the mother dies, the foetus is also endangered, so if a conflict of interests between the two arises, even a perfectly healthy foetus has to be the first to go (as happened in the x-case). In other words, any risk to the mother translates as an additional risk to the foetus, so even a less than 50% risk to the mother can become a legal abortion in that circumstance because the balance is skewed towards her.
If the baby is unhealthy and dying as in the Savita case, the risk to the baby's life is minimal or irrelevant because it is dying anyway. This "lack of life prospects" was the same basis for switching off foetus life support in the recent case. Even a minimal risk to the mothers life would make it a legal abortion in that circumstance, providing there was some substance to the risk.
Those are the principles anyway. The assessing and balancing of percentages and risks is a medical matter, and best not just left to one person on their own. Hence three medical opinions are now required, according to the legislation.
IMO if these three people could also consult with an ombudsman type figure, the decisions would be more consistent around different hospitals.

alaimacerc wrote: »

If she erred high, there could in theory have been a fitness to practice hearing or such like, but that's not competent to rule on facts of criminal law.

So this is similar to what happened, hence we had what might be considered a bit of a whitewash, with Dr Boylan doing his rant, and "the law" itself being held to be unfit by the medical hearing.

alaimacerc

recedite wrote: »

An interesting point. Here's how I think it would work if they erred low;

Would have worked; this is now covered by the PoLDPA, of course.

Some pro-life person, possibly an outsider or possibly on the hospital board would file a complaint to the Gardai alleging unlawful abortion. The DPP would have to examine the statements and decide to prosecute, which would probably be unlikely unless the doctor was running an abortion clinic.

Doesn't that depend on just how "low" they "erred"? And do you at least acknowledge that it's not completely irrational to be anxious (concerning one's career and liberty, for a start, to which optionally add scandal and conscience) about taking such actions on the basis of what you say is merely "likely"?

In court, the doctor might say they assessed a risk of death at say, around 40%.

Let's skip ahead a few iterations and suppose it were assessed at 4%. Is that "substantial"? It's certainly "not insignificant", if you ask most people -- at least if it's their life they're staking.

The judges would decide if this corresponded with "substantial risk" and "with due regard to the the equal right to life of the mother".

My guess is that this is actually a matter for the jury, as it's "fact", and not "law".

"With due regard" means bearing in mind that if the mother dies, the foetus is also endangered, so if a conflict of interests between the two arises, even a perfectly healthy foetus has to be the first to go (as happened in the x-case). In other words, any risk to the mother translates as an additional risk to the foetus, so even a less than 50% risk to the mother can become a legal abortion in that circumstance because the balance is skewed towards her.

Suicidality is clearly the most extreme case of a conflict, as it's the one that's 100% correlated to the risk to the other. But as I said above, in theory you could, if you knew the assessed risks to a reasonable precision, and really did regard the two lives as being "equal" in value, just "do the maths". In practice the "unknown unknowns" of assessing the risks make that impossible anyway, but even if it were, I'm strongly of the belief the considerable majority of people would not consider that acceptable.

If the baby is unhealthy and dying as in the Savita case, the risk to the baby's life is minimal or irrelevant because it is dying anyway.

As I understand that case, the issue was rupture (and subsequent infection) of the membranes, not foetal health per se. Non-viable pregnancy, not non-viable foetus (though unless and until Star Trek's foetal transporter and Brave New World's artificial uterus, distinction is fairly academic).

Hence three medical opinions are now required, according to the legislation.

Two docs, for "somatic" medical conditions.

IMO if these three people could also consult with an ombudsman type figure, the decisions would be more consistent around different hospitals.

For reference, in Sweden for terminations in the 18-22 week range there is a single "central committee" that makes all such decisions. (Obviously a rather narrower range of work than "all medical treatment that someone's not happy with".)

So this is similar to what happened, hence we had what might be considered a bit of a whitewash, with Dr Boylan doing his rant, and "the law" itself being held to be unfit by the medical hearing.

Possibly, maybe. From memory (don't really want to start trawling through the whole thing right now) she was at one point reported as saying the threshold from 8th+X was itself 50%. But in the transcript it seemed like more like she was saying her understanding of "substantial risk" was that there had to be... a substantial risk "on the balance of probability" (i.e. 50%). Which gets us nowhere, and just adds an uncertainty to an uncertainty, recursively.

alaimacerc

volchitsa wrote: »

And I note that none of them are anywhere to be seen at all these days, so either they think that Boylan is right now, whatever about then, or he comprehensively trashed them last time and they don't wish to tackle him again. Or both.

I very much suspect "they haven't gone away, you know". I vividly recall Bonnar (one of the signatories -- elderly chap with a Scottish (or else so Antrimish as to be indistinguishable to my ear) accent) on a PrimeTime debating the SH case with the very same Boylan. The thrust of his argument was essentially that doctors can and do "medically intervene" regardless of consequences to the foetus whenever they darn well like, and it's "not considered abortion". Seemed pretty fast and loose about the whole "law" angle. And I give him some credence when he says so: a certain combination of high-handed medico mentality and a certain take on Catholic "reproductive ethics" might well lead one to thinking -- and thence to acting -- along these lines. The old joke about god having a "doctor" complex occurs. Though of course he was speaking with hindsight in this case. How quick and on what basis of certainty he and his colleagues actually intervene is another matter.

But likely he's not especially unhappy with the PoLDPA. It essentially empowers docs to continue doing what they were doing anyway. Or refusing to do, likewise. At least if you can get two of them that were actually ever doing the same thing anyway, in a way they can bring themselves to articulate to their mutual satisfaction. ("Seem substantialish?" "It has a not insubstantial-like quality to my mind." "Excellent. Spot of lunch?")

alaimacerc

On the broad topic of legal uncertainty being a "smokescreen" or a wrong-headed misunderstanding by we atheist fundies... Seems we have quite a few such bad actors hanging around in Strasbourg:

ECHR 2032 (253) wrote:

While a constitutional provision of this scope is not unusual, no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application. Indeed, while this constitutional provision (as interpreted by the Supreme Court in the X case) qualified sections 58 and 59 of the earlier 1861 Act (see paragraph 145 above), those sections have never been amended so that, on their face, they remain in force with their absolute prohibition on abortion and associated serious criminal offences thereby contributing to the lack of certainty for a woman seeking a lawful abortion in Ireland.

(254) wrote:

Against this background of substantial uncertainty, the Court considers it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act. Both the third applicant and any doctor ran a risk of a serious criminal conviction and imprisonment in the event that a decision taken in medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to accord with Article 40.3.3 of the Constitution.

(264) wrote:

The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation

(279) wrote:

However, the Court considers it evident that the lack of an effective procedure, which meant that she could not effectively determine her right to a lawful abortion in Ireland, caused considerable anxiety and suffering to the applicant, confronted as she was with a fear that her life was threatened by her pregnancy and an uncertain legal position, set against the highly sensitive backdrop of the abortion issue in Ireland.

I'm thinking those guys seemed pretty certain there was indeed some uncertainty in the legal position.

Absolam

alaimacerc wrote: »

On the broad topic of legal uncertainty being a "smokescreen" or a wrong-headed misunderstanding by we atheist fundies... Seems we have quite a few such bad actors hanging around in Strasbourg:
I'm thinking those guys seemed pretty certain there was indeed some uncertainty in the legal position.

Though it would be fair to point out that that was four years ago, and they weren't saying repeal the 8th, they were saying the lack of legislative implementation and procedures was a problem. Hence the PoLDPA.

volchitsa

Absolam wrote: »

Though it would be fair to point out that that was four years ago, and they weren't saying repeal the 8th, they were saying the lack of legislative implementation and procedures was a problem. Hence the PoLDPA.

Which so far, going by the disasters it is creating, is showing itself to be unfit for purpose, apparently. That doesn't invalidate the point in the least.

Absolam

volchitsa wrote: »

Which so far, going by the disasters it is creating, is showing itself to be unfit for purpose, apparently. That doesn't invalidate the point in the least.

Which disasters is it creating?

alaimacerc

Absolam wrote: »

Though it would be fair to point out that that was four years ago, and they weren't saying repeal the 8th, they were saying the lack of legislative implementation and procedures was a problem. Hence the PoLDPA.

Baby steps. If we can get recedite to acknowledge (after explicitily and lengthily denying) the legal uncertainty in the cases covered by abortion law, we might eventually get recognition of similar issues in the cases that aren't, but do fall under the scope of the 8th.

recedite

alaimacerc wrote: »

Would have worked; this is now covered by the PoLDPA, of course.
Doesn't that depend on just how "low" they "erred"? And do you at least acknowledge that it's not completely irrational to be anxious (concerning one's career and liberty, for a start, to which optionally add scandal and conscience) about taking such actions on the basis of what you say is merely "likely"?

I agree with the most of your points in that post, and the idea of the Swedish style "central committee" acting as referee is a good one.
When I said it would have been "unlikely" that the DPP would have initiated a prosecution if someone erred low, that in itself would not have constituted a disaster for the doctor. The prosecution would have to succeed, and most of the evidence would come from the medical team that was being accused. They would more or less have to admit that they aborted even when they believed there was little risk of death to the mother, and in doing so disregarded the rights of the foetus.

There is not a huge difference in principle now, after the PoLDPA legislation. The way the risk of death to the mother was expressed that time in terms of "percentage threat" (and any resultant mathematical juggling) could now be be replaced with the statement "an opinion was formed in good faith which had regard to the need to preserve unborn human life as far as practicable" led to the decision to terminate/abort. Then accompany that with some medical evidence showing that the risk was real, and that the abortion was the reasonable way to neutralise the risk. That now constitutes a robust legal defence.The wording of the PoLDPA allows for a medical opinion (or 2 or 3 specialist expert opinions depending on the situation and level of emergency) having due regard to the right to life of the unborn, and "made in good faith" to be an acceptable defence, without necessarily going into percentages.