This Story Doesn’t Make Sense

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ifpa

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A timeline of events surrounding the refusal of abortion to an asylum seeker who said she had been raped,  according to versions given by the HSE and The Irish Family Planning Association.

They can’t all be telling the truth.

January 2014: The Protection of Life During Pregnancy Act 2013 comes into force
Section 9 of the Act provides that it shall be lawful for

– an obstetrician at an appropriate institution (a list of which in the Schedule to the Act includes most hospitals within the State)
– to carry out a medical procedure in respect of a pregnant woman in the course of which, or as a result of which, an unborn human life is ended
– where three medical practitioners (an obstetrician and two psychiatrists) having examined the pregnant woman, have jointly certified in good faith that there is:

(i) a real and substantial risk of loss of the woman’s life by way of suicide, and
(ii) in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.

February 2014: The woman in this case conceives, allegedly due to a rape in her country.

March/April 2014:
The woman arrives in Ireland claiming asylum.

Early April 2014: Pregnancy identified during routine refugee medical assessment by Health Service Executive. HSE nurse refers woman to Irish Family Planning Association (IFPA) for confirmation of pregnancy and advice.

Pregnancy confirmed by IFPA.

The woman informs IFPA that she is not capable of going through with the pregnancy and could die because of it. IFPA informs woman that abortion is available in England up to 24 weeks but that documentation would have to be arranged in order for her to travel for England and that this process would take six weeks.

A subsequent hospital scan finds that the woman is 8 weeks and 4 days pregnant which even allowing for a six week delay in processing travel documentation should permit an abortion in England within the 24 week time limit. Documentation is completed by IFPA and submitted and the woman believes the process is underway.

Late May 2014 (14-15 weeks pregnant): The woman is informed by an IFPA counsellor that although it is not too late for her to have an abortion in England which it is stated can be carried out at up to 28 weeks (in fact the deadline in England is 24 weeks but the woman is still well within that limit) the cost of the abortion ‘could be’ over €1500 Euros (including travel, abortion and possible overnight stay’) and that the State would not fund these costs.

The woman is told the problem is money.

She does not appear to have been given details of charitable organisations in the United Kingdom, which fund abortions for impoverished women. The woman then states: “I could die because of this pregnancy.I am prepared to kill myself.” That evening, the woman attempts suicide, but is interrupted.

Contact between the IFPA and the  woman apparently breaks down after she is moved to a new accommodation centre within the direct provision system.

Around this time, the IFPA make contact with the HSE nurse who initially referred the woman alerting that nurse to her deteriorating mental health. It is unclear whether or not the question of termination under the 2013 Act was discussed in this phone call. It does not appear to have been discussed with the woman by the IFPA.

Mid/Late July: The woman goes to a General Practitioner, explains the situation and states that she is suicidal. She is subsequently admitted to a psychiatric hospital and is interviewed by two psychiatrists. Her pregnancy is confirmed at 24 weeks and 1 day – too far progressed for abortion in the United Kingdom.

July 25- 27: Woman commences thirst and hunger strike.

Care order obtained permitting hydration.

Panel of three experts convened. Current reports ( “the woman’s request for a termination on the basis of suicidality was acceded to” HSE) indicate that the panel was in agreement that the woman was suicidal, and that the pregnancy would be terminated (although initial reports indicated that the expert panel’s decision was not to terminate, due to the objections of the obstetrician on the panel).

July 28: The woman informed that abortion would be carried out the following Monday, August 5


July 30-August 2:
The woman is informed that termination to be by way of Caesarean:

According to an interview with her in the Irish Times, she was told “The pregnancy was too far. It was going to have to be a Caesarean. In the world, in the United States, anywhere, at this point it has to be a Caesarean.”

In fact this is not correct.

Methods of late term abortion in the United States and elsewhere involve non-Caesarean procedures such as dilation and evacuation and intact dilation and extraction. Both of these procedures, in contrast to Caesarean section, involve the death of the foetus.

It should however be noted that the medical procedure contemplated by Section 9 of the 2009 Act, which the HSE has stated was assented to, also necessarily involves, by definition, the death of the foetus.

The HSE has stated that “it is important to note that a pregnancy can be terminated by way of delivery through Caesarean section.”.

However Section 9 does not permit ‘termination of pregnancy’. What it permits is ‘a medical procedure in the course of which, or as a result of which, an unborn human life is ended’.

A finding that Section 9 was applicable necessarily meant that the woman was entitled not just to a ‘termination’ of pregnancy, but to have that pregnancy terminated in a way involving the death of the foetus. This appears to be something, which has been misunderstood or ignored by the HSE both in the information provided to the woman and in their subsequent statement of this week.

August 5: Following a meeting with an obstetrician, the woman consented to a Caesarean. As stated, irrespective of the fact that the woman was being told that a Caesarean was her only option, it would appear that if a decision had been made under Section 9 she was entitled, by reason of the wording of Section 9, to another method of termination.

Conversely, if a decision had not been so made, she was entitled to be informed of her right of appeal. Neither of these matters appear to have been communicated to her prior to her giving consent to the Caesarean.

August 6: Caesarean carried out.

On the above timetable, the woman should have been over 25 and quite possibly over 26 weeks at the time the procedure was carried out (on the basis that she had been one day over the 24 week limit for obtaining an abortion in England prior to starting her thirst and hunger strike on Friday July 25).

However a report in the Irish Independent describe her as 23-25 weeks at the date of the Caesarean.

August 13: The woman is released from hospital.

August 16 – 21 :  The woman’s story breaks in The Irish Independent. Initial reports indicate that the woman’s application under Section 9 of the 2013 Act was refused.

This is subsequently denied by the HSE who state that the application was successful and that the procedure was carried out by Caesarean. As stated above, this appears to be inconsistent with Section 9 itself.

Anyone?

(IFPA/HSE)

142 thoughts on “This Story Doesn’t Make Sense

  1. Bobby

    Probably a stupid question, but why would she have to be sent to England for an abortion? Are there no facilities in Northern Ireland?

    1. Don Pidgeoni

      I think women from NI have to travel to England as well – though they are not covered by the NHS

    2. Ahjayzis

      60’s abortion law in the UK was never brought in by the old Stormont Parliament – it’s as illegal up there as it is down here.

  2. Spartacus

    Help me out here.

    Section 9 says “It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended…”

    I’m not seeing “It should however be noted that the medical procedure contemplated by Section 9 of the 2009 Act, which the HSE has stated was assented to, also necessarily involves, by definition, the death of the foetus.” in there.

    Nothing I can see *requires* the destruction of the foetus.

    Anyone?

    1. Salmon of Nollaig

      There’s a difference between termination, and termination by deliberate abortion.

      A pregnancy can ‘terminate’ by lots of means, including natural childbirth, caesarean, unintentional miscarriage.

      Termination under Section 9 is termination by deliberate abortion, doing something which will end the life of the unborn child.

      If sanction was given under Section 9, this sanction must have been, not to put too fine a point on it, for deliberate abortion since this is the procedure referred to in Section 9.

      NOT for a Caesarean, which isn’t covered by Section 9 at all.

      There’s no authority under Section 9 to approve a Caesarean (as shown by the fact they needed the woman’s consent). Proper consent involves informing the person being asked to consent of their rights if they choose not to consent. If Section 9 approval had been granted (as the HSE statement in the post indicates) then she had a right to an abortion if she didn’t consent to a Caesarean. She should have been told that. She wasn’t. That raises questions as to the validity of her consent.

      The HSE appears to have misread Section 9 to think it authorised ‘termination’ generally. It doesn’t

      1. Spartacus

        The act does not use the term “termination” anywhere that I can see. It also appears to be silent on defining *any* acceptable medical procedures. There is no mention of Caesarean delivery.

        1. Salmon of Nollaig

          Quite right. And no reference to 25 weeks either.

          All the legislation does is give authority to a hospital to carry out a procedure which will result in the death of an unborn child.

          1. Spartacus

            I beg to differ. What it appears to do is to permit (under certain circumstances) medical procedures which *may* result in the death of an unborn child.

          2. Salmon of Nollaig

            No, if you look at the section it does not use the word ‘may’. If it did, I would agree with you. But it doesn’t.

            here is the section.

            9. (1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where—

            (a) subject to section 19 , three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that—

            (i) there is a real and substantial risk of loss of the woman’s life by way of suicide, and

            (ii) in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure,

            and

            (b) that medical procedure is carried out by an obstetrician at an appropriate institution.

          3. Silken Thomas

            All the act says is “It shall be lawful…”

            For this read “No Doctors need go to jail….” (if they were ever to perform such a procedure.)

            However, because such a series of committees must be assembled to agree on the permissable circumstances, it is unlikely that any majority could come together to take such a decision. The more people you involve in such a decision, the less likely the decison is to be made.

            A while it is legal for a doctor to perform an abortion in such circumstances, it has nothing to do with what the pregnant woman wants. As in the case of Savita Hallipanavar, we see the medical professionals lying to to this rape victim and manipulating the facts in order to pursue their own agenda.

            You’re in a Catholic country now.

      2. Cinsire

        This is a Youth Defence talking point that doesn’t seem to go back any further than their submission to the Oireachtas last year — i.e. that miscarriage, induced delivery, and even birth count as a termination of pregnancy. Medical science draws a distinct line between induced abortion and ‘spontaneous’ abortion, or miscarriage.

        It’s pure spin and a very deliberate attempt to muddy the waters.

        1. Spartacus

          Just to be clear – are you suggesting that the posters engaged in this debate about a legal point are guilty of generating spin and “muddying the waters”?

          1. andyourpointiswhatexactly

            Nope. I am pretty sure they can keep a baby of approx 24 weeks alive. I think medicine is a bit ahead of itself there though as although they can keep the baby alive, it’s very hard to deal with all the problems that come with such an early birth.

  3. Carlos

    Spartacus – I think the ‘is ended’ and not ‘could be ended’ which removes any ambiguity.

    Bobby – two things. Abortion heavily restricted in NI also (although not to quite the same level since there’s no constitutional protection for unborn in UK) and lack of suitable papers meant she’d probably have been deported straight back down to Dublin if stopped by authorities.

  4. Sidewinder

    Given the panel’s determination re her mental health she would likely have qualified for an abortion in NI but generally women in the republic go to England as the laws are less restrictive and you’re less likely to waste time and money and go through more stress for nothing.

  5. Carlos

    Sidewider – in the very rare cases that abortion is available in NI, it’s to people resident in NI only.

  6. Ag

    “It should however be noted that the medical procedure contemplated by Section 9 of the 2009 Act, which the HSE has stated was assented to, also necessarily involves, by definition, the death of the foetus.”

    But also see Section 9(1)(a) (iii): in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.

    It would appear that this section obliges the medical team to choose the procedure that terminates the pregnancy but also saves the life of the foetus where this is possible.

    1. Salmon of Nollaig

      No, what it does is it obliges the panel of 2 psychiatrists and an obstetrician, when adjudicating on whether or not the case comes within Section 9, to take into account what alternatives are available.

      The panel could for instance have decided NOT to make a Section 9 certification because the alternative of Caesarean section was available (assuming the woman consented). The woman would have had the right to appeal that.

      However that’s not what the panel decided, according to the HSE – instead they made a certification under Section 9. A certification under Section 9 is a certification that an abortion – NOT a caesarean can be carried out.

      http://www.rte.ie/news/2014/0819/638049-abortion-legislation/

      Sorry to be so lawyerly but it amazes me as a UK solicitor how bad Irish civil servants are at interpreting legislation that is quite clear.

      1. Salmon of Nollaig

        In short I don’t have any difficulty with Caesarean being taken into account as an alternative but this should be done BEFORE certifying under Section 9, not after, and you can’t certify that a caesarean will be carried out as part of a Section 9 procedure because it’s a completely different thing which does not necessarily result in the death of the baby (unlike the procedure contemplated by Section 9.

      2. Ag

        But it’s about the certification of a ‘medical procedure’ being carried out, not an ‘abortion’.
        Prior to this legislation being enacted, the doctors would not even have been able to prescribe a c-section at the stage that they did, for the reasons they did. Instead the woman would have had to carry the foetus to term.
        By deciding to order a c-section under section 9, the doctors were terminating the pregnancy while having regard to the life of the unborn in accordance with section 9(1)(a)(iii). If, however, the foetus did not survive this c-section then the doctors would have avoided criminal liability. This did not arise as the foetus did survive.

        1. Spartacus

          I’m very much inclined to agree with your analysis Ag, at the same time keeping an open mind in case the Salmon convinces me otherwise (not happening yet!).

          1. Salmon of Nollaig

            Ag – yes it says ‘medical procedure’ but read what comes after.

            A ‘medical procedure in respect of a pregnant woman in the course of which, or as a result of which, an unborn human life is ended’

            It all has to be read together.

            They may not have used the term ‘abortion’ (for obvious reasons!) but that’s an abortion.

          2. Ag

            The fact still remains that this c-section (medical procedure) to terminate the pregnancy early would not have been possible prior to the act coming into force. An interpretation that would mean that section 9 envisages only medical procedures that would inevitably result in the death of the foetus would (1) render section 9(1)(a)(iii) redundant; and (2) arguably be unconstitutional.
            Medical procedure in section 9(1) must be interpreted as meaning a procedure that will inevitably cause the death of the foetus AND also one that POTENTIALLY will cause the death of the foetus. Section 9(1)(a)(iii) would then suggest that the procedure that potentially will kill the foetus is preferable to the procedure that actually will kill the foetus. It’s just that the result in this case was that the foetus did not die.

          3. Salmon of Nollaig

            Firstly, I’m not sure at all that the caesarean needed Section 9 to be legal (what it did need, however was the mother’s consent, which wasn’t given because not fully informed!) The terms of the Constitutional provision (“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”) would appear to permit caesareans in such circumstances. I think that the Caesearian could have been carried out under this provision independently of Section 9, provided that the mother consented.

            Secondly, the presumption of constitutionality is just that, a presumption, and is only available if there is an interpretation open, on the literal wording of the section, which justifies it. It cannot be used to twist words into something they are not.

            In short, the words of s9 refer to abortion, not caesarian section.

            You don’t need s9 to carry out a caesarian and even if you did I don’t think even the presumption of constitutionality would permit twisting of Section 9 to allow it.

          4. Ag

            You cannot consent to something that is illegal. Nor can consent make something that is illegal legal. A c-section, the medical justification of which is that the patient is suicidal and that such suicidal tendencies are due to the fact that she is pregnant, would not have been legal prior to the Protection of Life During Pregnancy Act 2013.

            Even if you are going to argue that a c-section on these grounds would have been (or still is) legal without the 2013 Act, no doctor would have carried out the procedure. Prior to the 2013 Act, no doctor was going to rely on a vaguely worded constitutional provision before ordering a medical procedure that could be tantamount to abortion. This legal uncertainty was the very issue that the European Court of Human Rights in A,B and C v Ireland found that Ireland’s law pertaining to abortion was in breach of Article 8 (family and private life) as it denied a woman clarity and certainty in the abortion laws to enable them to conduct their affairs properly.

        2. Ronan

          No. It’s about the certification of a ‘medical procedure, in the course of which, or as a result of which, an unborn human life is ended’. That is quite clearly the definition of an abortion.

        1. Salmon of Nollaig

          Sadly I can’t claim the credit.

          I believe Irish lawyers like to be paid in coffee ;-)

    2. Barry the Hatchet

      Nope, it does not. The section you quoted relates to the question of whether certification for an abortion should be given in the first place. Certification *was* given. Which means the medical panel was satisfied that the risk of death by suicide could only be averted by carrying out an abortion. The decision to effectively force this woman to undergo a C-section instead appears to have been taken completely outside the Act. Once certified, she was *entitled* to an abortion. The fact that this information was either deliberately withheld or wasn’t made clear means she could not possibly have given informed consent.

      1. Barry the Hatchet

        Ack, sorry for doubling up on your excellent explanation, Salmon. You’re clearly a much faster typist than I!

      2. Starina

        So the HSE’s next step is obviously to either cover it up or throw money at her because it’s starting to sound like she has very solid grounds to sue the sh*t out of them.

  7. dd

    Another point raised though, is that under medical councils guidelines,
    ” there may be little or no hope of the baby surviving. In these
    exceptional circumstances, it may be necessary to intervene to
    terminate the pregnancy to protect the life of the mother, while
    making every effort to preserve the life of the baby. ”

    in which case the obstetrician is stuck between a rock and a hard place…terminate to protect teh life of the mother whilst making every effort to protect the life of the baby under ethical guidelines or terminate a life on the basis of untested and unwieldly legislation that has caused huge confusion…

    1. Salmon of Nollaig

      Yes. So take that into account in REFUSING to certify under Section 9, and allow the woman her right of appeal/judicial review whatever.

      Just for god’s sake interpret and apply the law PROPERLY.

      1. scottser

        i’d say the threat of a 14 year sentence would be enough for the medical profession to err on the side of extreme caution salmon. but you are absolutely correct in that this woman’s rights were not fully explained to her and consent for a cesarian was obtained fraudulently given her previous assessment.

      2. dd

        But if the law is in conflict with medical council guidelines, and your career is on the line…

        i’d seek a judicial review…which still wouldn’t solve the problem. Only solution is a new, proper law.

        1. Salmon of Nollaig

          If they were that worried they could have refused to certify, and let her appeal. That would have been the safest course of action for them, and wouldn’t have involved playing ducks and drakes with the legislation.

  8. dd

    Tbh despite Charlie Flanagan’s assertions, the fact is we need a referendum.

    Also, it’s lamentable that the only reason this is in public discourse is because of anecdotal cases, which, in medicine anyway, are never relied upon for “evidence”. It is to our shame as a country that a young woman has had a turbulent time (putting it mildly) and then has her story splashed over every media outlet for days.

    1. martco

      probably like a few people out there I’m struggling a bit with the divil of the detail in this
      thanks Salmon for the clarity

      meanwhile as for Charlie Flanagan he’s nothing but a windbag, a grey middle manager bullshitter well trained by bunny carr in the art of filling 45mins with a series of sentences that actually mean nothing…whomever votes for him at GE time is an arse just like him

  9. JunkFace

    Oh my God! It came down to money. She’s a refugee! This story is so shameful for Ireland. Jesus F***ing Christ!

    1. Jay

      Actually it’s worse than that. It will likely cost far more money. The figures for such a premature birth result in an 80% likelihood of some level of disability showing before age 6. So the cost of caring for a child with such a likelihood of disability will far outstrip the 1500€.

      Aside from that, given the child will not have Irish citizenship by being born here due to the results of the citizenship referendum, and that it will be unable to articulate grounds for permission to stay, it in theory could be deported at the earliest opportunity. Which I imagine will cost more than €1500 as well.

      So denying abortion on the grounds of cost seems pretty bad.

      *hides*

  10. Rob

    She wasn’t entitled to an abortion under the legislation.

    From section 9, a woman is entitled to an abortion if (my caps):

    (i) there is a real and substantial risk of loss of the woman’s life by way of suicide, and

    (ii) in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can ONLY BE AVERTED by carrying out the medical procedure ,

    The medical procedure is the abortion. As there was another option (cesarean) to end the pregnancy, she was not entitled to an abortion.

    I am sure I will attract ire for this position, but I also think this is morally correct position. While being forced to carry a rapist’s child is the worst torture I can imagine, bar none, when it has reached the stage that there is a viable child and there are two options to end the pregnancy, I believe the option where the child may survive should be taken.

    Though the cesarean is obviously a more physically traumatic procedure, both options are invasive, and at the point where both lives are independently viable, I believe it has reached the point where the rights of both need to be balanced.

    1. Spartacus

      How can you possibly know if the opinion of the three medical professionals was honestly held?

      1. Rob

        The fact that the baby was delivered by cesarean means that they were correct in their belief.

        There is objective proof.

          1. Rob

            Undisputed facts leading to the only possible logical conclusion?

            That is exactly how proof works.

          2. Jay

            No, that they were wrong doesn’t mean that their decision wasn’t in their reasonable opinion.

          3. Rob

            I’m not saying that.

            Based on the fact that the child survived (fact 1) and the pregnancy was terminated (fact 2), it must be the case that there was an alternative to the medical procedure [abortion] to terminate the pregnancy [the risk].

            QED

          4. Jay

            Sure there was an alternative, we could have forced her to have the baby against her wishes, which is what happened.

            Under the legislation in question however, given the way it was written, termination where the foetus died was the only permissible option if the procedure been carried out in line with the law.

            I’d guess there’s a medical malpractice lawyer somewhere rubbing his hands with anticipation and glee right about now though.

          5. Spartacus

            not D at all…

            Given “in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable)…”, the question you were asked was how could *you* reasonably know if the *opinion* of the three medical professionals was honestly held.

          6. Rob

            Termination where the child necessarily dies is only possible under this section.

            It is only allowed under this section in the circumstances where there is no alternative.

            We know there was such an alternative.

            Therefore a termination where the child necessarily dies was not permitted.

          7. Rob

            There is objective proof that their stated belief was correct.

            Do you think they lied about their belief and that belief just happened to be true?

          8. Spartacus

            I am baffled by your apparent inability to see the word “opinion” clearly written several times, above.

          9. Jay

            At the time of the decision that was the only option. The fact that it was delayed either through incompetence or on purpose altered the medical possibilities subject to the consent of the patient. Though whether that consent amounted to informed consent, and indeed whether it was legal will be a matter for the courts to decide at some point.

          10. Salmon of Nollaig

            Rob, in other comments you agreed with me that there is no authority under Section 9 to certify a Caesarean.

            Doesn’t it necessarily follow that if, as you say, they honestly or reasonably believed that Caesarean was a better alternative, they shouldn’t have certified under Section 9?

          11. Rob

            Jay,

            I agree that the delay was the only reason the alternative procedure was an option, but it was an option nevertheless. Consent is a whole other issue, but I don’t think a lack of consent would have allowed the doctors hands to be forced into a belief that an abortion was the only option.

            Spartacus,

            Are you actually trying to say that their stated belief, which was correct, was not honestly held? Seriously?

          12. Spartacus

            Rob

            I think you need to go outside, walk around in the fresh air for a few minutes, then come back in and read it again.

          13. Salmon of Nollaig

            Well then, Rob, isn’t your whole point moot. They acted wrongly. It doesn’t matter if they acted reasonably, or honestly, they acted illegally. With respect, I think you’re trying to defend the indefensible. People are entitled to their legal rights. The means do not justify the end if obtained illegally?

          14. Jay

            The problem is Rob, that delay isn’t an option under section 9. That there was a delay was possibly an illegal act.

            As for the lack of informed consent, it appears the taxpayer will be on the hook for a LARGE settlement. If it was me or someone I knew I’d be very much encouraging them to sue for everything they could.

          15. Rob

            Salmon,

            I think we are at cross purposes.

            My point is not moot. My point was that an abortion could not have been given legally, given the circumstances at the time the decision was made.

            I was not saying that they correctly applied the law. If she wanted a termination at that point, the cesarean was the only option, though obviously if that was done without informed consent there are huge problems with that.

            Jay,

            I am not trying to defend the delay. If the decision had been taken earlier, it is likely the a S.9 certification should have been granted.

            I am merely saying that at the time of the decision, such a cert could not have been legally granted.

      2. Salmon of Nollaig

        Rob, I wrote below that if the panel had refused to give Section 9 certification, for the reasons you outlined, that probably could not have been judicially reviewed, for the reasons you set out. In point of fact, though, the panel did give Section 9 certiication, so your point was moot.

        You appear to be saying that one illegality cancels out another. I don’t agree with this. It’s a very dangerous game to play.

        Incidentally, the fact that imho failing to give Section 9 certificaiton would not have been grounds for judicial review doesn’t mean that to give such certification would be illegal, in the right circumstances.

        Examine the wording of the Act.

        a) subject to section 19 , three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that—

        (i) there is a real and substantial risk of loss of the woman’s life by way of suicide, and

        (ii) in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure,

        Let’s take a situation where it was reasonably felt that the mother would commit suicide, following a Caesarean. In that situation, one of the two would die. I can see how the panel would be justified in granting Section 9 certification in such circumstances (or indeed, as I pointed out above, where due to medical reasons, a Caesarian would kill the mother).

        In such cases, under the legislation, and indeed under the Constitution, a Section 9 cert would be justified.

    2. Salmon of Nollaig

      Rob, see my comment above. I think that (b) is something which the panel is legitimately entitled to take into account in deciding not to grant Section 9 certification in the first place. In such case there is a right of appeal and the appeal body may or may not decide differently. I completely understand the point of view expressed by you to the extent that I would be doubtful whether or not a decision to hat effect could be challenged on judicial review for instance.

      However my point (and I think the point of the post too) is that in this case Section 9 certification was granted according to the HSE. That’s certification for an abortion. Under the legislation I don’t think there’s authority to go back on this certification if granted, not at least without allowing a right of appeal.

        1. Salmon of Nollaig

          Do you also agree that the HSE statement that the caesarean was carried out under the Section 9 cert is pretty shockingly incompetent, in light of that?

          1. Salmon of Nollaig

            Just so curious as to how what appears to be a group of smart Irish people put up with their incompetent bureaucracy.

            I mean this woman was advised by a solicitor, right? The post doesn’t mention it but I saw the reference somewhere.

            I know some Irish solicitors in London and they’re pretty smart. All the bright ones must have left!

          2. Spartacus

            Now, Salmon, don’t go and undo all of your good work so far. You claim to be a UK solicitor (and I won’t question your bona fides), that doesn’t make you omnipotent. I’ve spent enough money with some of your UK legal colleagues over the years to buy a few very nice cars, and I can tell you that legal competence amongst them is far from universal.

          3. Zynks

            Salmon, this incompetence is likely to be voluntary. i.e., an attempt to bypass or test the law. My fear is that they may have found a loophole if this current case is not taken very seriously.

          4. Rob

            This isn’t a loophole, this (the actual result rather than a S.9 termination) is exactly what was intended. There was a risk to the life of the mother. It was considered that there was an alternative to an abortion to avert that risk. Therefore there was no entitlement to an abortion.

            The legislation is at the limit of what the constitution permitted.

          5. Salmon of Nollaig

            That’s the big dilemma as I see it in Ireland Zynks…. is it incompetence, or something more sinister?

            Most of the time probably incompetence, but a smart elite could get away with a lot under this heading…

          6. Salmon of Nollaig

            Rob, the result may have been what was intended, but it was achieved at the expense of the mother’s legislative rights and indeed her right to informed consent.

            It has also exposed the HSE (and their solicitor) to hefty costs for which irish taxpayers would be liable.

            I don’t think we can call it a success- more of a giant fupp up.

            The same result could have been achieved – subject of course to appeal and judicial review – by refusing to grant certification but offering caesarean as an alternative.

            Maybe I’m old fashioned, but I DON”T think the means justify the end, not when it involves walking slipshod over people’s legal rights.

          7. Jay

            @Zynks If you put “medical malpractice informed consent” into google there’s plenty of solicitors that might be willing to pick it up and plenty of info on how it is defined. You might even find ICCL or someone pick up the case, or some patients rights organisation maybe.

        2. Salmon of Nollaig

          Yes, but the Tim Nice But Dims aren’t usually appointed to act in highly sensitive, potentially boss-sackable, cases like this one…

    3. scottser

      rather than this woman’s rights balanced against the unborn child’s, it seems her rights were pretty much trampled over, in fairness rob.

      1. Rob

        I agree that it seems the woman was treated horrifically throughout the ordeal, but when the decision was made, there was an option which would allow both people to live.

        i don’t think the prior poor care should affect the decision to take that option.

  11. Sidewinder

    @Ahjayzis: No, it’s not. Abortion is legal under strict guidelines but not as strict as ours.

  12. dd

    I suppose another issue is, if, as suggested above, a late term, partial birth abortion is performed, where would one find an obstetrician skilled in such a procedure? It would be extremely difficult I’d imagine….and the doctor would also be bound by Irish Medical Council guidelines.

    1. Rob

      I can’t imagine a situation where a partial birth abortion would be allowed under the legislation. If that were the only option available to perform the abortion, then there would be alternatives which would not definitely end the life of the child. because of those options a partial birth abortion would not come under section 9.

      1. Salmon of Nollaig

        Not at all Rob, even on your analysis (Caesarean solves the problem) there are cases where the mother may have a particular medical condition that makes caesarean life-threatening to her.

  13. Sidewinder

    @Carlos: NHS provides abortions are only for people resident in NI, the Marie Stopes clinic is private and under no such restrictions.

  14. Carlos

    @Sidewinder – the NHS doesn’t provide abortion for anyone living in NI resident or non-resident – anyone travelling to England or Wales for an NHS abortion from NI has to pay for it. Abortion procedures authorised in NI are carried out by clinicians under the auspices of the Health and Social Care Board. The regimes are totally different.

    And the Marie Stopes Clinic in NI operates under the same regulations as Health & Social Care Board. That is, termination available up to 9 weeks if there’s an immediate risk to life or risk of real & serious long term damage to physical and/or mental health.

  15. Clampers Outside!

    That’s a lot of comments on a story that there’s apparently “no appetite” for Charlie boy.

    I’ve emailed Charlie and asked if he would clarify whether he was speaking about himself or the people when he said there was “no appetite” for another referendum. I also asked him clarify his evidence of “no appetite” if he says it is the people.

    I’m holding my breadth…. by the hips.

  16. rotide

    At the risk of sounding like ABM, I’ll ask the question that noone has asked yet.

    How is the child?

    1. Rob

      Still in hospital as it was premature, but the prognosis is good apparently (I’m no doctor).

      Understandably, the mother has not had any contact since the birth.

  17. eamonn clancy

    Apart from the horror the poor girl ensued here, you’d think, after a rape, she’d report it to the police and aswell get a pregnancy test, instead of booking a flight to Dublin?

    1. Salmon of Nollaig

      I’m not sure the kind of country you’re coming as a refugee from is necessarily that good on rape crisis counselling, police sympathy or prosecution of offenders.

    2. Jay

      Well, if it was a certain muslim countries she may very well have ended up getting stoned for sex outside marriage if she reported it.

    3. Spartacus

      You’d think that all right, wouldn’t you Eamonn? I’m sure she’s only an economic refugee with no reason to mistrust the police in her home country. A country with excellent ante-natal care too, no doubt. Sure, she probably only got herself pregnant so she’d get a free pass to social welfare once she landed in Dublin, the little trollop.

  18. WhoAreYa

    Do people agree that Bodger is one of the best journalists currently active in this country?

    Fair fupping play in fairness.

      1. dd

        Well he/she is good at aggregating stories from other journalists’ work. I’m not sure there’s much original research here.

        It’d be hard to suggest that bodger is on the same playing field as, say, Kitty Holland for example.

        1. WhoAreYa

          This is new media innit!

          Bodger is very hard-working, conscientious and consistent.

          There is a slant to her work but the facts are there and I can make up my own mind.

          Kitty Holland has been criticised by many for flaws in her work by the way, (mostly a**holes as far as I can see) but I do take the point, she is doing some good work also.

        1. James Egan

          I have been reading Bodger for some time and have been consistently impressed with his/her policy of res ipsa loquitur (the facts speak for themselves).

          Apart from Legal Coffee Drinker (where is he gone I wonder?) he is my favourite contributor.

          1. WhoAreYa

            I completely agree. None of this oul opinioneering or ‘analysis’ – far more insightful.

            The courts close during August ;)

            I guess LCD will be back during school term.

  19. andyourpointiswhatexactly

    Apparently they do abortions up to 26 weeks in the UK. I’m pro-choice but that makes me very uncomfortable, I must say. Therefore I’m pro-choice only up to a point, I suppose.

    1. Jay

      The UK is actually a bit of an anomaly, in most of Europe it’s 10/12 weeks under normal circumstances.

    2. WhoAreYa

      Why (does it make you uncomfortable) ?

      I mean it’s not called ‘termination’ for no reason?

      1. Silken Thomas

        The apparent loop hole that the HSE has sought to exploit here is based on the fact that “Termination” means the termination of a pregnancy and not the termination of a life.

        (Although under S9 the outcome should be one and the same.)

  20. Spartacus

    Setting aside the nuances of the legal discussion for a moment…

    Reviewing this article, and all of the comments so far (117 of them), I’ve got a few questions.

    From the article above:

    “The woman informs IFPA that she is not capable of going through with the pregnancy and could die because of it. IFPA informs woman that abortion is available in England up to 24 weeks but that documentation would have to be arranged in order for her to travel for England and that this process would take six weeks.”

    Who said this? The IFPA on their website say the following:

    “The IFPA is unable to comment on the specifics of media reports concerning the case of a young woman who sought an abortion because of the confidentiality of our counselling service.”

    So, who makes the claims above?

    “A subsequent hospital scan finds that the woman is 8 weeks and 4 days pregnant which even allowing for a six week delay in processing travel documentation should permit an abortion in England within the 24 week time limit. Documentation is completed by IFPA and submitted and the woman believes the process is underway.”

    Why was travel to England a consideration? Were the criterai for an abortion in Ireland not met? If so, who made that decision? How do we know this?

    Later:

    “….the IFPA make contact with the HSE nurse who initially referred the woman alerting that nurse to her deteriorating mental health. It is unclear whether or not the question of termination under the 2013 Act was discussed in this phone call. It does not appear to have been discussed with the woman by the IFPA.”

    Who says this? The HSE? Where is their statement?

    “According to an interview with her in the Irish Times, she was told “The pregnancy was too far. It was going to have to be a Caesarean. In the world, in the United States, anywhere, at this point it has to be a Caesarean.”

    In fact this is not correct.”

    Has this claim been substantiated?

    “However Section 9 does not permit ‘termination of pregnancy’. What it permits is ‘a medical procedure in the course of which, or as a result of which, an unborn human life is ended’.

    Then

    “Following a meeting with an obstetrician, the woman consented to a Caesarean. As stated, irrespective of the fact that the woman was being told that a Caesarean was her only option, it would appear that if a decision had been made under Section 9 she was entitled, by reason of the wording of Section 9, to another method of termination.

    So, is a Caesarean a method of termination in this context or not?

    Also how do we know what the woman discussed with this obstetrician? Has a statement been issued? Has a witness to that consultation come forward? Was it her “friend from her home country” who spoke to the Irish Times?

    In the absence of a statement from the woman herself, the IFPA, the HSE, and the Department of Justice, how much of this article above is supported solely by the story published in the Irish Independent?

    1. Bodger

      Spartacus, apologies for the delay.

      “The woman informs IFPA that she is not capable of going through with the pregnancy and could die because of it. IFPA informs woman that abortion is available in England up to 24 weeks but that documentation would have to be arranged in order for her to travel for England and that this process would take six weeks.”

      Source – Interview with woman, Irish Times, 19th August http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258
      _______________

      Why was travel to England a consideration? Were the criteria for an abortion in Ireland not met? If so, who made that decision? How do we know this?

      The woman’s account in the article of August 19 above indicates that the IFPA advised only on the possibility of an abortion in England. Why was an abortion in Ireland not considered? Your guess is as good as ours..
      _____________

      Later:

      “….the IFPA make contact with the HSE nurse who initially referred the woman alerting that nurse to her deteriorating mental health. It is unclear whether or not the question of termination under the 2013 Act was discussed in this phone call. It does not appear to have been discussed with the woman by the IFPA.”

      The woman says that termination under the 2013 Act was not discussed by the IFPA.

      The account of the HSE nurse is from this article in the Irish Independent of August 20.http://www.independent.ie/irish-news/news/young-woman-in-abortion-case-got-lost-in-the-system-30521491.html

      The Irish Independent has learned that the Irish Family Planning Association (IFPA), to whom the young girl was referred by a HSE nurse, contacted the nurse last May.

      The phone call alerting that nurse to her deteriorating mental health was placed by the IFPA during the teen’s last counselling session, where she learned that it could cost more than €1,500 to travel overseas for an abortion.

      __________

      “According to an interview with her in the Irish Times, she was told “The pregnancy was too far. It was going to have to be a Caesarean. In the world, in the United States, anywhere, at this point it has to be a Caesarean.”

      In fact this is not correct.”

      Again interview with woman in the Irish Times http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258?page=2

      ___________

      “However Section 9 does not permit ‘termination of pregnancy’. What it permits is ‘a medical procedure in the course of which, or as a result of which, an unborn human life is ended’.

      Then

      “Following a meeting with an obstetrician, the woman consented to a Caesarean. As stated, irrespective of the fact that the woman was being told that a Caesarean was her only option, it would appear that if a decision had been made under Section 9 she was entitled, by reason of the wording of Section 9, to another method of termination.

      So, is a Caesarean a method of termination in this context or not?

      The HSE appears to think it is in a statement to the Irish Times in which it is quoted as describing the pregnancy as having been ended under the 2013 Act on grounds of suicidality http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258
      “A spokeswoman for the HSE, asked about the allegation that she was not offered a right to appeal the decision to carry out a Caesarean section, said the woman’s request for a termination on the basis of suicidality was acceded to. It is important to note that a pregnancy can be terminated by way of delivery through Caesarean section, as it was in this instance. As they were acceding to her request for a termination of the pregnancy on those grounds, there is no requirement for a review pursuant to section 10.”

      However the termination referenced in Section 9 is termination by death of the foetus. A Caesarean does not satisfy this requirement. As stated, the HSE appears to be mistaken in its interpretation of the Act.

      _______

      Also how do we know what the woman discussed with this obstetrician? Has a statement been issued? Has a witness to that consultation come forward? Was it her “friend from her home country” who spoke to the Irish Times

      It appears that the woman spoke directly to the Irish Times. See article of 19 Augustin which the journalist recounts having met the woman and quotes directly from this meeting. http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258

      _________

      In the absence of a statement from the woman herself, the IFPA, the HSE, and the Department of Justice, how much of this article above is supported solely by the story published in the Irish Independent?
      There are direct quotes from the woman herself in the Irish Times article of the 20th August referenced above.

      These and the statement from the HSE cited in the same article article of support the above.

      Details of contact between the IFPA and HSE come from the Irish Independent article of the 20th August also cited above which does not give the source.

      Hope this helps.

      1. Spartacus

        Thank you, Bodger.

        The bottom line seems to be that we are almost entirely reliant (for the moment) on the Kitty Holland article, and the subsequent Irish Independent articles. This makes me uncomfortable about drawing too many conclusions just yet.

        The woman at the centre of this has suffered very badly, and appears to have been treated appallingly; it remains to be seen who dropped the ball, when, and why.

        The eagerness with which the extreme of both “camps” want to seize on the fallout is ugly.

        1. James Egan

          Not exactly.

          The key component of this post as I understand it is that the Caesarean was purportedly carried out pursuant to Section 9 – this appears to be accepted by both the woman concerned and the HSE – see article of 20th February 2014 above. Bodger is saying that this appears to be based on a misunderstanding of the Act and that accordingly the woman was not properly advised as to her rights.

          Leaving aside all the other facts – in relation to which I agree we are reliant on the word of the woman involved, but which do not appear to be disputed by either the IFPA or the HSE – this in itself is post-worthy. Incidentally the HSE/IFPA ‘confidentiality’ point doesn’t appear to hold water – given that the woman herself has spoken about her situation, thus waiving confidentiality.

          Well done Broadsheet on this post.

          1. Spartacus

            The woman has not identified herself in public, so respect for her confidentiality remains. The HSE and the IFPA have not commented other than to effectively say “no comment”, so it is misleading to say that they have not disputed the claims. Everything we have is based on the testimony of the journalists, nothing from any of the parties directly involved.

          2. James Egan

            The HSE has specifically stated to the Irish Times that the caesarean section was carried out under Section 9 of the 2013 Act by reason of suicidality.

            That is sufficient to allow Broadsheet to stand over a post the central premise of which – again correct me if I’m wrong Bodger – is that Section 9 sanctions abortion rather than caesarean, and that an error was made in the HSE’s interpretation of Section 9.

            Irrespective of the other facts, that alone raises serious questions.

          3. Spartacus

            No. Kitty Holland tells us that an un-named HSE spokesperson told her:

            “.(when)..asked about the allegation that she was not offered a right to appeal the decision to carry out a Caesarean section, said the woman’s request for a termination on the basis of suicidality was acceded to.

            “It is important to note that a pregnancy can be terminated by way of delivery through Caesarean section, as it was in this instance.””

            A statement by Kitty Holland (or any other journalist) does not a fact make.

          4. Salmon of Nollaig

            You are incorrect in your statement that the HSE has not made a statement.

            There is a statement here from Tony O’Brien (dealing with the proposed inquiry) in which he says that the woman had her pregnancy ended under the 2013 Act. Although this statement does not specifically reference s9 it must have been section 9 as this was the only section in the 2013 Act applicable.

            http://www.irishtimes.com/news/politics/hse-to-review-care-given-to-woman-in-abortion-case-1.1900411

            So irrespective of whether the woman herself is to be believed it seems to be accepted by the HSE that a s9 order was made.

            James Egan is right!

          5. Spartacus

            Salmon, I realise that you are a pedant by profession, while I am a mere amateur. However (unless I have a blind spot) there are only two quotes directly attributed to Tony O’Brien:

            “that establishes all of the facts surrounding the care given to a woman who had her pregnancy ended pursuant to the Protection of Life During Pregnancy Act 2013.”

            “the full facts surrounding the matter, the sequence of events, the care given to the woman involved, the operation of the 2013 Act and any learnings that can be gleaned from the case,”

            Neither of these sentences appear to lend support to your position. Have you seen a copy of the full statement? I’d have expected to find it on the HSE website, but if it’s there it eludes me.

          6. Salmon of Nollaig

            Au contraire.

            I refer you to what James Egan wrote above, with which I am in agreement:-

            The key component of this post as I understand it is that the Caesarean was purportedly carried out pursuant to Section 9 – this appears to be accepted by both the woman concerned and the HSE – see article of 20th February 2014 above. Bodger is saying that this appears to be based on a misunderstanding of the Act and that accordingly the woman was not properly advised as to her rights.

            Leaving aside all the other facts – in relation to which I agree we are reliant on the word of the woman involved, but which do not appear to be disputed by either the IFPA or the HSE – this in itself is post-worthy. “

            I found the HSE statement – unsurprisingly – on its website here.

            http://www.hse.ie/eng/services/news/protectionoflife.html

            It acknowledges that the woman “had her pregnancy ended pursuant to the Protection of Life during Pregnancy Act 2013”

            The wording is the same as reported in the paper. Obviously the journalists got the facts right here!

          7. Spartacus

            You view this with a legal eye, I see it through the prism of a layman (albeit one who tries to be informed). You are drawing an inference from that statement that I struggle to see.

            Thank you for the link, by the way.

          8. Salmon of Nollaig

            I feel like you that the facts are full of gaps and mostly substantiated only by the woman’s account.

            However there appear to be three indisputables
            (i) the law is as set out in the 2013 Act, which provides for abortion (not caesarean) as shown by the words – “a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended ” which is the procedure to be certified under the Act
            (ii) a certification under s9 took place – verified by HSE statement above – pregnancy ended pursuant to the 2013 Act
            (iii) as a result of the certification a caesarean was carried out – the HSE has not specifically said that the procedure was a caesarean but this seems undisputed – if any other termination procedure had been carried out the baby would not be alive and the baby is very much alive.

            (iii) is inconsistent with (i) and (ii). Irrespective of whether all the facts are known, enough are known to know that the law has been misapplied. I agree with James that that’s the point of the Broadsheet post (as well as setting out all the facts that are being alleged at present). It’s an important one.

          9. Spartacus

            Thank you, Salmon. I’ve been reflecting on this today, and have gone back and re-read this thread (and the various arguments), as well as the various media pages for the umpteenth time.

          10. Spartacus

            Hadn’t finished typing there…

            I believe that I now understand your argument (and James’ original point above) and I concede to your analysis.

            However I have to say that I find the wording of section 9 ambiguous. It may convey obvious meaning to the experienced legal mind, but I can’t help feeling that it could have been worded in far clearer terms. It will be interesting to see if the HSE ultimately argue that a Caesarian was a valid procedure under s9. I genuinely hope that they would fail in any action to defend such an argument as it would otherwise undermine the effectiveness of the legislation, or so it seems to me. Your thoughts on that?

  21. radsroc

    Seems pretty clear to me that there are two extraordinary failures in the care of this unfortunate woman:
    1. a major failure in adequate communication between the IFPA and this woman. The critical period for her was betwwen April and June when she could have met with the three person team or traveled to England with funding from somewhere. Someone should have been able to advocate for her, and should not have dropped this ball.
    2. Performance of an elective C section at 26 weeks would be a very unusual way of terminating a pregnancy in other countries, and exposes the foetus (if it survives long-term) to huge risk. Really extraordinary medical decision

    1. James Egan

      Yes.

      I cannot understand how the woman could fall out of the system, effectively, between May and July. She was after all a refugee and therefore her whereabouts would have been ascertainable. She should have been told in May, at the very earliest, of her right to abortion on the basis of suicidality and the process should have been set in train. Then there’s the question of whether or not she could or should have been informed of charitable abortion assistance for women travelling to UK.

      In addition the whole s9 procedure in July does not appear to have been handled properly. There was no authority under s9 to agree to a caesarean.

      One other issue concerns me, and that is the no. of weeks the woman was pregnant when she was admitted to hospital in July. It has been stated that she was 25 weeks when the caesarean was performed. The above account indicates she was in hospital for over 10 days between being told too late to go to England and caesarean. England is 24 weeks. Could she have been got there in time in July.

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