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Opening new chapters in Ireland’s abortion saga

Renewed controversy with each unfolding chapter is the established narrative surrounding the Protection of Life during Pregnancy Act. The trauma of Ms Y and the disturbing case of a brain-dead pregnant woman kept on ventilatory support — a situation that underlined a persistent ‘chill effect’ on the medical profession — have recently heightened emotions and anxieties in an area seldom short of polemics.

Documentation obtained by the Medical Independent (MI) from the Department of Health under Freedom of Information (FoI) legislation, points to further issues of concern following the Act’s commencement in January 2014. These relate to the seeking of assurances, by a Government-appointed committee, over resources necessary to operate the Act and specific training for psychiatrists in obstetrics and women’s health issues.

HSE correspondence accessed under FoI, and enquiries by this newspaper, suggest these issues have not been fully addressed by the Executive.

In March 2014 — two months after the Act’s commencement — the multidisciplinary Committee tasked with developing a guidance document for health professionals asked that the HSE address a number of issues before final sign-off. This was to “ensure appropriate service delivery and patient safety,” according to correspondence seen by MI.

The Committee identified the need for specific training for psychiatrists in “women’s health and obstetrics issues” and queried whether adequate clinical resources were in place to support the Act’s operation.

The Committee operated under the auspices of the Department of Health, which published the guidance in September 2014. It had relayed its concerns to the Chief Medical Officer (CMO), Dr Tony Holohan, who communicated these to the HSE Director General, Mr Tony O’Brien.

The Committee Chair Dr Declan Bedford, in his letter to the CMO in March 2014, had conveyed “the need for training” on the clinical and operational requirements of the Act, in particular, specific training for psychiatrists on women’s health and obstetric issues”. Dr Bedford wrote that the Committee also sought confirmation that the HSE was satisfied of “an appropriate level of clinical resources” to ensure the operation of the Act.

The appropriateness and practicability of a proposal in the draft guidance document — that the Executive Clinical Directors (Mental Health) would assist in ensuring that GPs/other medical professionals may successfully make referrals to psychiatrists for assessments under the Act — was another matter on which confirmation was requested.

According to Dr Bedford’s letter, the Committee wished to stress the importance of the HSE keeping the Act’s operation under review and ensuring the Department of Health was informed of developments that could potentially necessitate update of the guidance. Personnel or boundary changes linked to the work of the ECDs were exampled by Dr Bedford.

In response to the CMO’s consequent enquiries, the HSE Director General stated, in June 2014 correspondence, that he had requested each Division to put in place a plan for implementing the legislation. He wrote that each National Director was required to monitor implementation of the legislation in their divisions and identify corrective actions if difficulties arose.

Referral pathways would be managed within the operational structures of each division and would be “continually reviewed”.

The HSE would inform the Department of Health of any difficulties that arose, stated Mr O’Brien.

Clinical resources

However, on the aspect of clinical resources, Mr O’Brien’s response appeared to reveal much, while saying little: The HSE was “currently implementing the legislation with existing clinical resources,” he wrote.

Moreover, while Mr O’Brien stated that he had “engaged with” the College of Psychiatrists of Ireland, and “it has been agreed” a training programme would be developed by the College and the Institute of Obstetricians and Gynaecologists (with HSE support), MI has established that this training programme is not available to date.

In response to queries from MI, the Institute of Obstetricians and Gynaecologists at the RCPI did not wish to issue any comment on the proposed training programme.

Obviously if a woman is in distress…they need appropriate assessment and advice and direction, without going through hoops to find it

Spokesperson for the College of Psychiatrists of Ireland, Consultant Psychiatrist Dr John Hillery, tells this newspaper that a member of the College has been delegated to liaise with the Institute of Obstetricians and Gynaecologists regarding the development of the programme. The process is in its preliminary stages, however.

“The plan behind it is that it will be presented as training available to psychiatrists and obstetricians which would allow people to get recognition for that training, and which will be available on a voluntary basis.”

Currently, Dr Hillery cannot speak as to the precise length of this CPD initiative, but it would be “more intense” than a one-day course.

He foresees that the course would inform obstetricians and psychiatrists on mental health and obstetrical issues, respectively, and address the “various individual requirements for each specialty in the context of the Act”.

Last week, the College received confirmation that the HSE would fully fund the course.

As Dr Hillery outlines, the College’s key responsibility is in life-long learning, from training in the specialty of psychiatry to the ongoing competency of qualified psychiatrists, and this is an issue that requires the availability of training.

Dr Hillery says he does not anticipate that the programme would give the HSE leverage to restrict sanction of perinatal psychiatry posts.

From the perspective of psychiatry, Dr Hillery says the course would be aimed at giving “extra skills” to general adult psychiatrists to whom a pregnant woman in mental distress may present. It could “in no way be seen as sufficient to allow a participant to portray themselves as a perinatal psychiatrist”.

The legislation does not require that an assessing psychiatrist be a perinatal psychiatrist. The College of Psychiatrists has highlighted the paucity of available provision in this area, with only three such sub-specialists, all of whom are based at Dublin hospitals. According to Dr Hillery, the College has not adopted a position on whether an assessing psychiatrist, for the purposes of the Act, should ideally be a perinatal psychiatrist.

He points out that the College has always advocated that any patient be seen “by fully-trained specialists” in line with their needs.

While there is no sub-specialty training in perinatal psychiatry available in Ireland, those wishing to sub-specialise would go abroad, primarily to the UK and North America.

Dr Hillery adds that higher trainees in Ireland do spend time in the area of perinatal psychiatry, in ‘Special Interest’ sessions, “which allow them to gain supervised experience in aspects of perinatal psychiatry, but it is insufficient to give the trainee specialist status in the area”.

Protection of Life during Pregnancy Act

The Protection of Life during Pregnancy Act places particular demands on the profession of psychiatry. Termination based on risk of loss of life from suicide requires that three medical practitioners certify that this risk is “real and substantial” and which, in their reasonable opinion (having regard for the need to preserve unborn human life as far as practicable), “can only be averted” by carrying out the termination.

One of the practitioners must be an obstetrician and the other two psychiatrists, all registered in their respective specialist divisions with the Medical Council. One of the two psychiatrists “shall be a psychiatrist who provides, or who has provided, mental health services to women in respect of pregnancy, childbirth or post-partum care”.

This is also stipulated in respect of one of the two psychiatrists who would be on the Review Committee established under the Act.

But the deficit of consultant psychiatrists in post has concerned the College, both in respect of the general provision of care and in the context of the Act.

In a submission to the Joint Committee on Health and Children in January 2013, following publication of the Expert Group Report into matters relating to A, B, C vs Ireland, three perinatal psychiatrists who are members of the College stated: “If legislation is introduced, careful consideration must be given to the demands on already-overstretched psychiatric services.”

The College’s Workforce Planning Report 2013-2023, published in December 2013, was prepared to answer questions from HSE-MET on the number of specialists and consultants required in psychiatry in forthcoming years. It provided an insight into the scale of the manpower deficit at play.

The report noted that, within Europe, the number of consultant psychiatrists per head of population varied from 30 per 100,000 population in Switzerland, to one per 100,000 in Albania and Turkey.

When looking at total numbers of psychiatrists (consultant and NCHD) per 100,000 in OECD countries, Ireland, at 19 per 100,000, ranked below all other northern European countries, with consultant numbers at eight per 100,000. (OECD paper, 2012.)

The College paper recommended that Ireland move to a situation where it had 800 consultants (16 per 100,000) and the number of psychiatry trainees required to meet future manpower planning needs for these 800 consultants.

In recent years, “increased demands” are being placed on psychiatrists and psychiatry. “Scientific advances in neuroscience, identifying the impact of early development, and current environment on gene expression and neuroplasticity continue to increase the complexity of psychiatry,” it noted. “The psychiatrist is the only member of the multidisciplinary team who has expertise in the biological, social and psychological sciences, and it is the integration of this expertise which makes the psychiatrist unique within the team (Cox J, 2006).”

Within Ireland, stated the report, the consultant psychiatrist had specific named duties, obligations and responsibilities under the 2001 Mental Health Act and further responsibilities coming on-stream in the areas of abortion and capacity laws. These were statutory duties that could not be performed by any psychiatrist other than a consultant, it was noted.

According to the Medical Council’s most recent Workforce Report, outlining registration data from 2013, there were 475 doctors registered as specialists in psychiatry (in addition to 124 specialists in child and adolescent psychiatry, 76 specialists in old-age psychiatry and 33 specialists in learning disability psychiatry).

Psychiatry had 10.3 specialists per 100,000 population in 2013, according to the Medical Council’s report (this would include practitioners registered but not practising in Ireland).

MI asks Dr Hillery if there is concern about the shortfall in the context of the operation of the legislation.

“Well, I think we have already expressed some concerns and there are a lot of issues involved here that will affect the availability of people because there is a ‘conscience clause’ too,” he notes.

“I think that is obviously going to affect the numbers available to do the assessments, and then there will be the fact that there aren’t enough psychiatrists to provide ongoing mental health services.”

The key issue

Dr Hillery adds: “The key issue, as we have consistently pointed out as regards the issue of women in distress, is that they have access to appropriate assessments and interventions when they need them. And that is something that is still a concern for the College obviously, as regards a lot of the resourcing of mental health services at the moment — especially when we have shortages of allied health professionals, community psychiatric nurses, for instance, and the people who are needed to deliver a community-based mental health service. Obviously, if a woman is in distress because of an unplanned pregnancy, or for whatever reason, they fulfil those needs-criteria — they need appropriate assessment and advice and direction, without going through hoops to find it.”

The Department of Health Press Office did not provide information requested by MI on how many terminations had been notified under the Act and on what grounds.

“The Minister for Health is under an obligation under the Protection of Life During Pregnancy Act 2013 to prepare and lay before the Houses of the Oireachtas an annual report on the terminations of pregnancy that have taken place in accordance with this Act in the preceding year by 30 June,” a spokesperson explains.

“As the Act was commenced on 1 January 2014, the first annual report is due at the end of June 2015.”

‘Insufficient assistance’ in guidance document

Amnesty International’s report on global human rights in 2014, which was released last week, states that abortion legislation and guidance in Ireland have failed to comply with the country’s human rights obligations.

“Neither the Act nor related guidance published in September 2014 provided sufficient assistance to medical professionals in assessing when a pregnancy posed such a [real and substantial] risk to life, or adequately protected the rights of the pregnant woman or girl,” stated the report.

The report contended that, on access to abortion, Ireland and Poland both failed to fully implement European Court of Human Rights rulings, in 2010 and 2012 respectively, requiring that women be guaranteed effective access to abortion under certain circumstances.

“Despite this, the Committee of Ministers decided to close its monitoring of the execution of the judgment in the Irish case,” it maintained.

The 12-member Committee that developed the guidance for healthcare professionals comprised of respected experts across medical specialties, medical ethics, and nursing and midwifery. The Committee convened in September 2013, with the guidance published 12 months later under the auspices of the Department of Health.

According to the Department, the guidelines are designed to assist professionals in the practical operation of the Protection of Life during Pregnancy Act and “are not clinical guidelines”.

“The guidance document includes identifying referral pathways to fulfil the requirement of the Act and other relevant matters,” it stated.

When the legislation was commenced in January 2014, without guidance, the then Minister for Health Dr James Reilly faced heavy criticism from the medical community.

The College of Psychiatrists of Ireland expressed “extreme concern” at the absence of guidance for GPs in finding suitable psychiatrists to assess a suicidal woman requesting an abortion, for example.

The ICGP also issued a statement that “expressed concern at the enactment of the Protection of Life in Pregnancy Act without guidance for health professionals on implementation of the Act”.

Furthermore, at the IMO annual conference in April 2014, the then President of the Organisation, consultant psychiatrist Dr Matthew Sadlier, said the continued absence of what he termed “clinical guidelines” had made “a very complicated area even more complicated”.

Proposing a motion that the IMO call on the Minister to “urgently” publish the guidelines — which was carried — Dr Sadlier said he intended “no criticism” of the clinicians drafting the document, but rather of Minister Reilly.

“The guidelines are going to be complex,” said Dr Sadlier in response to views from the floor, “which is why the Act should not have been enacted until the guidelines were ready. But this Act has been enacted and at the moment we are in a vacuum.”

Further controversy followed publication of the guidelines. Doctors for Choice Ireland, for example, pointed to a number of issues, including frequent mention of the term ‘suicide/suicidal intent’, “instead of the term ‘risk of suicide’, even though the term ‘intent’ is not mentioned anywhere in the legislation”.

It noted that, although not explicitly stated in the summary of requirements, the frequent use of this term “implies that ‘suicidal intent’ is required to certify eligibility to access abortion services under the Act”.

According to Doctors for Choice, this would place a higher threshold than that needed to certify a patient for involuntary detention under the Mental Health Act 2001 “where suicidal ‘intent’ is not required in cases where a risk of suicide is the main grounds for detention”.

Secondly, it noted, the Supreme Court judgment in the X Case “specified that the risk of suicide did not need to be ‘imminent or inevitable’ and the use of the term ‘suicidal intent’ would imply imminence as a condition”.

In its conclusion, it recommended that the term ‘suicide/suicidal intent’ be removed from the guidelines.

Amnesty Ireland also issued a highly-critical press release, following publication of the guidance document last September.

“The only thing these guidelines really clarify is the incredibly restrictive and unworkable nature of the existing law,” said Ms Elisa Slattery, sexual and reproductive rights researcher at Amnesty International.

“Drawing-up burdensome guidelines to implement a highly-restrictive law that is out of kilter with international human rights standards is an exercise in futility. Issuing guidelines to poor legislation isn’t enough; we need a completely different approach.”

Mr Colm O’Gorman, Executive Director of Amnesty International Ireland, stated at the time that the guidelines still required health professionals to “engage in a constitutional balancing act when making decisions about whether a woman or girl qualifies for an abortion.

“Rather than piecemeal measures which provide illusory access to abortion to save a woman or girl’s life, Amnesty International calls on Ireland to fully decriminalise abortion.”

The guidelines also came under fire from the Life Institute, which opposes abortion.

In a post on the draft guidelines, on its website, consultant psychiatrist Dr Sean O’Domhnaill reiterated strong criticism of the legislation, which he said was not evidence-based. “Abortion was legalised in Ireland in the aftermath of the tragic death of Savita Halappanavar, despite the fact that subsequent investigations found that her death was due to mismanagement of a resistant E.coli infection arising in pregnancy occurring in an overstretched maternity unit.”

Later in his post, Dr O’Domhnaill queried what will happen to children delivered prematurely under the provisions of the legislation.

According to the guidelines, there is no time limit imposed by the Act in carrying out a termination. However, it adds that the Act legally requires doctors to preserve unborn human life as far as practicable without compromising the woman’s right to life.

In the context of terminations of pregnancy which do not end the life of the unborn — such as through early delivery via induction or C-section — Dr O’Domhnaill commented: “What will happen to the child, who has been purposely burdened with all the possibly serious complications of prematurity, which include cerebral palsy, blindness and brain damage? Will the doctors — and the State — also be liable to be sued by that child in later years?”

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