pro life campaign - submission to irish medical council ethics committee - september 2007

8/9/2019 Pro Life Campaign - Submission to Irish Medical Council Ethics Committee - September 2007

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INTRODUCTION

The Pro-Life Campaign is a non-denominational lobby group drawing its

support from a wide cross-section of Irish society. The Campaign promotes

pro-life education and defends human life from unjust attack at all stages,

from conception to natural death. It also campaigns for resources to support

and assist pregnant women and those in need of healing after abortion.

This submission to the Ethics Committee of the Medical Council deals with

five major areas: abortion, abortion assistance, euthanasia and the withdrawal

of feeding and the protection of human embryos.

Each chapter of the submission is laid out in a similar format a short general

introduction setting the background to the chapter topic, followed by more

detailed background information and an ethical and legal appraisal of the

issues raised therefrom.

Each chapter ends with a number of short recommendations that the Pro-Life

Campaign would urge the Ethics Committee to adopt in its revision of the

Medical Councils A Guide to Ethical Conduct and Behaviour and to Fitness to

Practice.


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INDUCED ABORTION

Introduction

In Ireland, the unborn child has for centuries been regarded as worthy of legal

protection. The Offences Against the Person Act 18611 prohibits abortion

under threat of penal sanction. In the 1983 referendum, the people approved

the insertion of Article 40.3.3o (the Eighth Amendment) into the Constitution

whereby 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. Given

the circumstances of the insertion of this assertive amendment into the

Constitution, it was considered at the time to copperfasten the legal prohibition

on induced abortion. However, following the decision of the Supreme Court in

the Attorney General v X and others (1992)2 it now appears that induced

abortion, in certain circumstances, is lawful in this jurisdiction. However, the X

case judgement is notoriously difficult to interpret as a basis for legislation.

The commendable attempt to correct the situation in the March 2002

referendum failed, amid unparalleled public confusion, but the result clearly

showed a national majority opposed to induced abortion in the Republic under

any circumstances.

Present Guidelines

The 1998 Ethical Guidelines of the Medical Council on induced abortion

(Section 26.5) read:

The Child In Utero

The deliberate and intentional destruction of the unborn child is

professional misconduct. Should a child in utero suffer or lose its life

as a side effect of standard medical treatment of the mother, then this

is not unethical. Refusal by a doctor to treat a woman with a serious

1Sections 58 and 59.

21992 1 IR 1.


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illness because she is pregnant would be grounds for complaint and

could be considered to be professional misconduct.

That guideline was a satisfactory and concise statement of the principles

involved. It is unusual for guidelines to be changed in a Councils mid-term,

especially when there is no pressing need to do so. However, after a bizarre

series of divisive confrontations in 2001, the Council altered Section 26.5 of

the 1998 Guide on 12th September 2001 to read as follows (which then

became Section 24.6 of the 2004 Guidelines):

The Child In Utero

The Council recognises that termination of pregnancy can occur when

there is a real and substantial risk to the life of the mother and

subscribes to the views expressed in Part 2 of the written submission of

the Institute of Gynaecologists and Obstetricians to the All-Party

Oireachtas Committee on the Constitution as contained in the Fifth

Progress Report, Appendix IV, page A407.

This is reinforced by Clause 24.1 in the present 2004 Guidelines.

This is not as clear a statement of principle as what it replaced but is

acceptable in light of the meaning of the Obstetricians and Gynaecologists

statement on which it relies. It is important to note that termination of a

pregnancy is not the termination of a life where the child is deliberately

targeted, disregarding, of course, the common usage of that word. Births and

caesarean sections terminate pregnancies as do interventions in eclampsia,

pre-eclampsia et cetera, but they do not deliberately terminate lives.


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Approach to revising Guidelines

The PLC suggests to the Medical Council that the revision of the Ethical

Guidelines be approached from the following standpoint:

1. The recognition that human life, born or unborn, is worthy of protection;

2. The presumption that in pregnancy the doctor has a duty of care towards

two patients, the mother and the unborn child.

3. That the availability of induced abortion is a social question, not one of

medical necessity;

4. That the onus of proof is upon those who propose induced abortion to

produce evidence that there is no absolutely alternative.

In the light of this, the Pro-Life Campaign suggests that the following additions

to the Guide may clarify the matter beyond even unreasonable doubt:

1. A positive re-statement of the line that in pregnancy the doctor has a duty

of care towards two patients, the mother and the unborn child;

2. An affirmation of the principle that necessary treatments which carry a risk

of unsought side effects are ethical even when the unsought effects are

foreseeable, while procedures the purpose of which are to cause the death

of a patient are unethical.

General Background

The Legal Background

Notwithstanding the statutory prohibition on abortion contained in the

Offences Against the Person Act 1861 and the terms of the Eighth

Amendment to the Constitution, in X a 1992 case (involving a minors

alleged suicidal intentions) the Supreme Court concluded

that the proper test to be applied is that if it is established as a


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matter of probability that there is a real and substantial risk to the

life, as distinct from the health, of the mother, which can only be

avoided by the termination of her pregnancy, such termination is

permissible, having regard to the true interpretation of Article

40.3.3. of the Constitution.

The rest of the Supreme Court judgements in Xoffer no guidance as to how

this opaque test is to be applied in practice. Nor did the Court consider nor

did it have the opportunity to consider the clinical reality of induced abortion

known at that time and since articulated in Medical Council ethical guidelines.

Since that case, different Governments took different approaches to the issue.

Following the rejection of the November 1992 referendum that allowed fordirect abortion along the lines envisaged in X (excluding suicide threats); A

commitment to legislate for X was later recognised as very difficult, if not

impossible3 and the commitment was dropped from subsequent programmes

for government. The narrow rejection of the 2002 Referendum indicated that

there was a majority opposed to induced abortion being carried out in Ireland

in any circumstances and also showed great concern for unimplanted human

embryos.

The Issues Raised

General

It is widely accepted that good ethical medical practice must always be based

upon principle. Ad hoc arrangements rather than responses based on

principle and ethics for dealing with any given situation could readily lay the

medical profession open to the charge of inconsistency at least and of being

self-serving at worst and would threaten the professions deserved reputation

for impartiality and the provision of medical care regardless of the class,

creed, lifestyle and ethnic origins of the patient and the doctors own personalfeelings towards him or her.

3Health Minister Brendan Howlin, The Irish Times, 25 November 1994


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Legality and Ethical Permissibility

The rule of law aims to serve society at large, while simultaneously upholding

the rights of the individual, insofar as they do not conflict with essential

societal interests. Whereas some unethical acts may be illegal, legality alone

does not determine whether a practice is ethical or not.

The Councils 1994 Guidelines emphasised that:

In this whole area of conflicting attitudes [referring to reproductive

medicine generally], doctors while obeying the laws of the State,

must always be guided by their own informed consciences.

And the 1998 & 2004 guideline, now in force, holds the sameindependent line:

Medical care must not be used as a tool of the State, to be

granted or withheld or altered in character under political pressure.

Doctors require independence from such pressures in order to

carry out their duties. Regardless of their type of practice, the

responsibility of all doctors is to help the sick and injured. They

must practice without consideration of religion, nationality, gender,

race, politics or social standing. They must not allow their

professional actions to be influenced by any personal interest.

The Clinical Issues

The most frequent arguments for induced abortion in the debate since 1992

are the supposed risks to the health or life of the mother. Other arguments

e.g. congenital handicap in the unborn child or the economic burden to

society, raise broader issues. As such, although the Pro-Life Campaign

similarly opposes such arguments, for the purposes of this submission, they

fall outside the parameters of the medical debate on induced abortion andhave no bearing on the right to life of the mother.

The Medical Response

The issue of whether induced abortion is in some cases necessary to save a

mothers life or health has been discussed extensively. As the Medical


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Councils 1994 Guidelines pointed out, no evidence has been produced to

support this position. The Pro-Life Campaign has continued to monitor the

national and international literature on the topic, and is satisfied that this

remains the case. By the word abortion, the Pro-Life Campaign means

induced abortion directly and deliberately targeting the life of the unborn child,

not where the unborn child is indirectly affected by proportionate and

necessary treatment of the mother. Deliberately induced abortion has no

place in the treatment of any maternal condition, either physical or

psychological.

Would medical practice be inhibited by a complete prohibition on

induced abortion?

Concern was expressed that a medical practitioner may find himself/herselffalling foul of a total professional or legal prohibition on induced abortion in the

ordinary course of good ethical clinical practice. In our view, such concerns

are unfounded.

Foreseeability is not the test of intention in a prohibition on induced abortion.

In everyday clinical practice, harm or injury to a patient is readily foreseen as

a consequence of medical intervention. Nevertheless, especially in instances

of life-threatening conditions, it is perfectly permissible to use treatments that

are associated with serious or even life threatening side effects. In such

circumstances, the doctors judgement may well be that it is proper to incur

grave risks in the management of grave conditions. For example, in the

treatment of leukaemia, induced myelosuppression exposes the patient to

risks of overwhelming sepsis and severe haemorrhage. Nevertheless, in the

circumstances, such risks are assessed as acceptable in terms of the desired

outcome of cure. However, the medical and ethical principle governing such

decisions is that the therapeutic option chosen must be the most effective and

least toxic. Thus, if there are two treatments, Treatment A and Treatment B, of

equivalent therapeutic efficacy, the ethical obligation is to choose the one

associated with the least severe side effects. This is an essential component

of ethical practice but does not, of itself, preclude running serious risks in

grave conditions.


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In summary, the risks of treatment must be proportionate to the condition

being treated. In pregnancy, where uniquely, there is a simultaneous duty to

two patients, a fortiori, these considerations apply with due regard to side

effects not alone to the mother but also to her unborn child. In no

circumstances, however, is it permissible to compromise the therapeutic

objective merely by virtue of the mothers pregnancy. In this regard, the

Councils current position on induced abortion reflects the reality but could be

strengthened to make the principles more explicit and clarify them. .

Foreseeability, in effect, is merely a matter from which, depending on the

circumstances, an inference of intention may be drawn. However, it does not

follow that an act which causes the foreseeable death of a patient may be

excused, merely because what was intended was the relief of some condition,

e.g. severe pain or depression. Thus, if the death of the patient was atreatment or an intrinsic part of the treatment of the condition in question,

liability, both ethical and legal, attaches.

A clear judicial expression of the underlying principle, in a case involving a

charge of attempted murder of a patient by her consultant physician, which

encapsulates the essentials of ethical (and lawful) treatment was stated thus:

We all appreciate that some medical treatment, whether of a

positive, therapeutic character or solely of an analgesic kind designed solely to alleviate pain and suffering, carries with it a

serious risk to the health or even the life of the patient. Doctors

are frequently confronted with, no doubt, distressing dilemmas.

They have to make up their minds as to whether the risk, even to

the life of their patient, attendant upon their contemplated form of

treatment, is such that the risk is or is not medically justified. Of

course, if a doctor genuinely believes that a certain course is

beneficial to his patient, either therapeutically or analgesically, even

though he recognises that that course carries with it a risk to life, heis fully entitled, nonetheless to pursue it. If sadly, and in those

circumstances the patient dies, nobody could possibly suggest that

in that situation the doctor was guilty of murder or attempted

murder.


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There can be no doubt that the use of drugs to reduce pain and

suffering will often be fully justified notwithstanding that it will, in

fact, hasten the moment of death, but what can never be lawful

is the use of drugs with the primary purpose of hastening the

moment of death. It matters not by how much or by how little [a]

death is hastened or intended to be hastened even if [it be the

case that death was only hours or minutes away] no doctor can

lawfully take any step deliberately designed to hasten that death by

however short a period of time. Alleviation of suffering means

the easing of it for so long as the patient survives, not the easing of

it in the throes of and because of deliberate purposed killing.4

There is no reason to suggest that the courts in this jurisdiction would differ

from this statement of the law in its articulation of the underlying principles inrelation to the death of an unborn child during the course of the treatment of

an ill mother especially given the delimitation on the vindication of the right to

life of the unborn by considerations of reasonable practicability. The approach

that informs the Medical Councils 1998 Guidelines on induced abortion also

reflects the principles underlying this analysis and again urges its retention.

Negative consequences of abortion

Rather than encourage abortion, the medical profession has a responsibility to

take seriously the growing body of evidence showing the negative after-effects

of abortion on women. Most early studies of the effects of abortion on women

were limited to the immediate post-abortion period. Now long-term studies are

giving a clearer picture. One such study was published in 2006 in the Journal

of Child Psychology and Psychiatry.5 This was a 25 year longitudinal study

which showed that women having an abortion had elevated rates of

subsequent mental health problems including depression, anxiety, suicidal

behaviours and substance use disorders. This association persisted after

adjustment for confounding factors. The main author of this New Zealand

4R v Cox12 BMLR 38 (Winchester Crown Court per Ognall J and approved in Airedale NHS

Trust v Bland1993 1 All ER 821 (HL).

5Fergusson DM, Horwood LJ, Ridder EM, Abortion in young women and subsequent mental

health, Journal of Child Psychology and Psychiatry, 47 (2006), 1: 16-24.


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study, Prof. David Fergusson admitted: Im pro-choice but Ive produced

results which, if anything, favour a pro-life viewpoint.

An earlier study in Finland6 examined data from 1987-2000 and highlighted

the fact that the suicide rate was almost seven times higher in women who

had abortions compared to those who gave birth. This is particularly relevant

to the Irish situation given the calls for abortion to be legalised on grounds of

threatened suicide. A recent Norwegian study found that women after induced

abortions suffered more long-term after effects than those who had

miscarriages. 7

These latest findings oblige medical practitioners to give full information to

patients about the medical consequences of abortion.

6Mika Gissler, Cynthia Berg, Marie-Hlne Bouvier-Colle, and Pierre Buekens, Injury deaths,

suicides and homicides associated with pregnancy, Finland 1987-2000, The EuropeanJournal of Public Health 2005 15: 459-463.

7Anne Nordal Broen, Torbjrn Moum, Anne Sejersted Bdtker and ivind Ekeberg, The

course of mental health after miscarriage and induced abortion: a longitudinal, five-yearfollow-up study, BMC Medicine 2005, 3:18


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Recommendations

That the revised Ethical Guidelines maintain the formulation of 12thSeptember 200 1,

Clause 24.6 and 24.1 in 2004 guidelines, but, in other clauses, assert:

1. The principle that in pregnancy the doctor has a duty of care towards two patients,

the mother and the unborn child;

2. The principle that necessary treatments which carry a risk of unsought side effects

are ethical, even when the unsought effect is foreseeable, while procedures the

purpose of which are to cause the death of a patient are unethical.

3. Induced abortion does not constitute medical treatment in any circumstances.

4. Therapeutic convenience is never a sufficient justification for induced abortion and

the adoption of such an approach is unethical.

5. Medical ethics do not follow each change in the law and mere legality is not

equivalent to ethical practice.

6. A prohibition on induced abortion is both feasible and ethically necessary, and has

not resulted in the treatment appropriate for the management of any ill mother

being compromised in any way.


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EUTHANASIA

Introduction

In 1994, the Medical Council in A Guide to Ethical Conduct and Behaviour and

to Fitness to Practisestated its position in relation to euthanasia as definedtherein. The Pro-Life Campaign welcomes the evolution of the Councils

treatment of the issue over the past fifteen years and specifically endorses the

approach, which firmly places a prohibition on a medical practitioners

involvement in euthanasia within an ethical framework irrespective of what the

current legal situation might be. The Pro-Life Campaign urges the Medical

Council to re-assert the traditional opposition of the medical profession to

euthanasia and to further strengthen the professions protection of chronically

and terminally ill patients by stressing the relevance both of intention and

directness in the prohibition of killing, or causing the deaths of, such patients.

In the 1998 Guidelines, the principles are adequately covered in Sections 24

& 25 and in the 2004 Guidelines in Sections 22.1 and 23.1.

General Background - Euthanasia

The Legal Background

Euthanasia is, and has always been, illegal in Ireland. Involving, for medical

practitioners, as it does, the direct and intentional killing of a patient, it falls

within the general prohibition on homicide within the general law. Thus, briefly

put, a person is guilty of murder if (s)he, while intending to kill another or to

cause him or her serious injury, acts in a way that results in that other

persons death within a year and a day of the date upon which the injury was

inflicted. However, because of a curious anomaly in the law, omissions that

have the same effect, except in certain limited circumstances, do not result in

criminal liability. In this regard, the law presumes (although it is a refutable

presumption) that a person intends the natural and probable consequences ofhis or her actions8 (as distinct from omissions).

8Criminal Justice Act 1964 s. 4.


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However, that is not to say that foreseeability, in this context, is the test of

intention. Interestingly, the principle which underlines the treatment of

terminally ill patients is the same as that which governs the treatment of

illness in pregnant women, and would equally benefit from an explicit

affirmation that necessary treatments which carry a risk of unsought side

effects are ethical, even when the unsought effect is foreseeable, while

procedures which lead directly and intentionally to a patients death are

unethical.

In this regard, the Pro-Life Campaign herein repeats the arguments advanced

in considering procedures to save a pregnant womans life, which may

indirectly damage the unborn child. Thus, in everyday clinical practice, harm

or injury to a patient is readily foreseen as a consequence of each and every

diagnostic or therapeutic intervention. Nevertheless, in instances of serious orlife-threatening conditions, it is perfectly permissible to use treatments that

carry a risk of serious or even life threatening side effects. In such

circumstances, the doctors judgement may be that it is proper to incur grave

risks in the management of grave conditions. Thus, for example, in the

treatment of leukaemia, induced myelosuppression exposes the patient to the

risks of overwhelming sepsis and severe haemorrhage. Nevertheless, in the

circumstances, such risks are deemed acceptable in terms of the desired

outcome. However, what is intrinsic to such treatment decisions is that the

therapeutic option chosen must be the most effective and least toxic. Thus, ifthere are two treatments, Treatment A and Treatment B, of equivalent

therapeutic efficacy, the ethical obligation is to chose that which is associated

with the least severe side effects. This is an essential component of ethical

practice but does not, of itself, preclude running serious risks in grave

conditions. In summary, the risks of treatment must be proportionate to the

condition being treated.

Foreseeability, in effect, is merely a matter from which, depending on the

circumstances, an inference of intention may or may not be drawn. However,

it does not follow that an act that causes the foreseeable death of a patient

may be excused, merely because what was intended was the relief of some

condition, e.g. severe pain or depression. Thus, if the death of the patient was

a treatment or an intrinsic part of the treatment of the condition in question,

the doctor would have moral and legal culpability for the death.


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It has already been proposed in this submission that this principle might be

usefully incorporated in the section of the Guide pertaining to Ethical Conduct.

It is also worth reiterating the clear judicial expression of the underlying

principle, in a case involving a charge of attempted murder of a patient by herconsultant physician, which encapsulates the essentials of ethical (and lawful)

treatment was stated thus:

We all appreciate that some medical treatment, whether of a

positive, therapeutic character or solely of an analgesic kind

designed solely to alleviate pain and suffering, carries with it a

serious risk to the health or even the life of the patient. Doctors

are frequently confronted with, no doubt, distressing dilemmas.

They have to make up their minds as to whether the risk, even to

the life of their patient, attendant upon their contemplated form of

treatment, is such that the risk is or is not medically justified. Of

course, if a doctor genuinely believes that a certain course is

beneficial to his patient, either therapeutically or analgesically, even

though he recognises that that course carries with it a risk to life, he

is fully entitled, nonetheless to pursue it. If sadly, and in those

circumstances the patient dies, nobody could possibly suggest that

in that situation the doctor was guilty of murder or attempted

murder.

There can be no doubt that the use of drugs to reduce pain and

suffering will often be fully justified notwithstanding that it will, in

fact, hasten the moment of death, but what can never be lawful

is the use of drugs with the primary purpose of hastening the

moment of death. It matters not by how much or by how little [a]

death is hastened or intended to be hastened even if [it be the

case that death was only hours or minutes away] no doctor canlawfully take any step deliberately designed to hasten that death by

however short a period of time. Alleviation of suffering means


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the easing of it for so long as the patient survives, not the easing of

it in the throes of and because of deliberate purposed killing.9

As already suggested, there is no reason as to why the approach of the courts

in this jurisdiction would differ from this statement of the law in its articulationof the underlying principles in relation to euthanasia, especially given the

constitutional guarantees of the right to life of the citizen.

Councils Position

The Medical Council, in A Guide to Ethical Conduct and Behaviour and to

Fitness to Practisehas repeatedly asserted the duties of medical practitioners

in regard to dying patients. Thus, for example, in the 1984 edition of the guide,

it asserted:

Where death is imminent, it is the doctors responsibility to takecare that a patient dies with dignity and with as little suffering as

possible. Euthanasia involves actively causing the death of a

person and is illegal.

In the 1989 edition the final sentence of this statement was amended to read:

Euthanasia, which involves actively causing the death of a person,

is illegal in Ireland and is professional misconduct.

In the 1994 edition, the final sentence was further amended as follows:

Euthanasia, which involves deliberately causing the death of a

patient, is professional misconduct and is illegal in Ireland.

This was strengthened in the 1998 edition.

In the 2004 edition, the prohibition on euthanasia is contained in two

sections:

22.1 For the seriously ill patients who is unable to communicate or

9R v Cox12 BMLR 38 (Winchester Crown Court per Ognall J and approved in Airedale NHS

Trust v Bland1993 1 All ER 821 (HL).


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understand, it is desirable that the doctor discusses management

with the next of kin or the legal guardians prior to reaching a

decision about the use or non-use of treatments which will not

contribute to recovery from the primary illness. In the event of

a dispute between doctors and relatives, a second opinion should

be sought from a suitably qualified independent medical

practitioner.

Access to nutrition and hydration remains one of the basic needs

of human beings, and all reasonable and practical efforts should

be made to maintain both of them.

23.1. Where death is imminent, it is the responsibility of the doctor

to take care that the sick person dies with dignity, in comfort, and

with as little suffering as possible. In these circumstances, a

doctor is not obliged to initiate or maintain a treatment that is futile

or disproportionately burdensome. Deliberately causing the death

of a patient is professional misconduct.

It is clear from both the precision of the definition of euthanasia which has

evolved in the Medical Councils guide over the past fifteen years, which

avoids doubt as to the subject matter of the prohibition, and the firm placing of

that prohibition within an ethical, as distinct from a solely legal, framework,that the Medical Council was properly concerned with euthanasia as an

ethical issue, quite irrespective of what the prevailing law might happen to be.

Indeed, the Medical Council has gone further in this regard. In a statement

issued by the Council after its statutory meeting on August 4, 1995, the

Council drew attention to, and emphasised other provisions of the 1994 guide.

Thus, the Council noted paragraph 13.01 which states inter alia:

Doctors must do their best to preserve life and promote the

health of the sick person

and paragraph 12.05; of the 1994 Guide as follows:

Medical care must not be used as a tool of the State to be granted


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or withheld or altered in character under political pressure,

Regardless of the type of their practice, the responsibility of all

doctors is to help the sick and injured. Doctors must practise

without consideration of religion, nationality, race, politics or social

standing. Doctors should not allow their professional actions to be

influenced by any personal interest

The Council also drew attention to the provisions of Article 2 of the Principles of

MedicalEthics in Europewhich states:

In the course of his professional practice a doctor undertakes to

give priority to the medical interest of the patient. The doctor may

use his professional knowledge only to improve or maintain the

health of those who place their trust in him; in no circumstance may

he act to their detriment.

and to Article 4 which states inter alia:

The doctor must not substitute his own definition of the quality

of life for that of his patient.

General Background Withdrawal of feeding

On July 27, 1995, a majority of the Supreme Court upheld an earlier order of

the High Court that it was lawful to withdraw feeding from a seriously

handicapped woman described as being in a near permanent vegetative

state - in order that she might die.10 Although similar problems had previously

come before the courts in other jurisdictions, this was the first such case in

Ireland and focused attention not alone on an intensely difficult human

dilemma but also on conflicts between medical and legal analyses of thesame issues.

At its statutory meeting on August 4, 1995, the Medical Council considered

the decision of the Supreme Court in re a Ward of Court. In a statement

10In the matter of A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 IR 100.


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issued after the meeting, the Medical Council drew attention to A Guide to

Ethical Conduct and Behaviour and to Fitness to Practise and, having

emphasised a number of particular paragraphs, already set out above, in

relation to a medical practitioners duty of care and euthanasia, stated:

It is the view of the Council that access to nutrition and hydration is

one of the basic needs of human beings. This remains so even

when, from time to time, this need can only be fulfilled by means of

long established methods such as nasogastric and gastrostomy

tube feeding.

The Council sees no need to alter its Ethical Guide.

The Pro-Life Campaign wholly endorses the position adopted by the MedicalCouncil and urges the express re-affirmation of the underlying principle in the

revised Guidelines.


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Recommendations

That the revised Ethical Guidelines assert:

1. The prohibition on euthanasia, in the clear and robust terms of the 1998 and 2004

Guides.

2. A re-statement of the Medical Councils position on the withdrawal of feeding in line

with its statement of August 4, 1995.

3. A continuation of the Medical Councils independent stance on the issues of

euthanasia and the withdrawal of feeding notwithstanding the effective change in

the law in relation to euthanasia consequent on the decision of the Supreme Court

in the Wardcase.

4. An express statement that any complicity of a medical practitioner in the

withdrawal of feeding from a chronically ill patient with the intention or purpose that

the patient will die as a result is unethical and will attract such sanctions as the

Medical Council sees fit to impose.

5. An affirmation, (perhaps in the section on Ethical Conduct), of the principle that

necessary treatments that carry a risk of unsought side effects are ethical, even

when the unsought effect is foreseeable, while procedures intended to cause the

death of a patient are unethical.


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IVF INCLUDING EMBRYO FREEZING AND STORAGE

Introduction

On the 31st May 1985, it was reported in the medical press that three Irish

women had been successfully implanted in Ireland with ova fertilised in vitro.The work, carried out by Prof. Robert Harrison, Consultant Gynaecologist, in

St. James's Hospital and Sir Patrick Dun's Hospital involved two campuses, as

equipment in each was essential.

In July 1985, the then Minister for Health, Barry Desmond, announced in the

Dil that his department would examine the issue with a view to legislation.

One month later, in August 1985, a conference on the ethical and legal issues

in IVF was held in Maynooth. The Board of St. James's Hospital imposed amoratorium on further IVF work in St. James's, pending the outcome of an

inquiry by a Board sub-committee into the matter. The Medical Council, by a

majority decision in December 1985 approved the guidelines on IVF

promulgated by the Institute of Obstetricians and Gynaecologists of the Royal

College of Physicians of Ireland.11 This effectively delayed the re-introduction

of IVF in St. Jamess until January 1986 at which point, however, the IVF

debate in Ireland, what little there was, had been effectively completed.

The Medical Council subsequently approved the therapeutic application to

married couples of the revised guidelines on IVF of the Institute of

Obstetricians and Gynaecologists of the Royal College of Physicians of

Ireland.12

More Recent Developments

By 1998, it increasingly appeared from the medical press that embryo storage

was considered desirable from a clinical and patient standpoint. A sub-

11A Guide to Ethical Conduct and Behaviour and to Fitness to Practise (Third Edition)

approved by the Medical Council at its meeting on 7th October 1988 and published in March1989.

12A Guide to Ethical Conduct and Behaviour and to Fitness to Practise (Fourth Edition)

approved by the Medical Council at its meeting on 1st October 1993 and published in January1994


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committee of the Institute of Obstetricians and Gynaecologists of the Royal

College of Physicians of Ireland met to review its guidelines on IVF and as it

reached no agreed conclusions its Report was not published. In the meantime

the HARI Unit at the Rotunda Hospital in Dublin unilaterally proceeded with

freezing human embryos and even allegedly had clients sign agreements

that unwanted human embryos would be destroyed after five years. This

would, of course, be clearly unethical, illegal and opposed to the present

Guidelines. Clearly, the issue of freezing and storage of human embryos, as

opposed to the freezing of sperm and ova, will have to be seriously addressed

by the Medical Council and sanctions imposed. It is in this context and in the

context of disturbing and uncontroverted media reports regarding abuses in

IVF in Ireland that the Pro-Life Campaign makes this submission to the

Medical Council.

The inadequacy of previous guidelines

It is of great concern that the guidelines promulgated by the Institute of

Obstetricians and Gynaecologists of the Royal College of Physicians of Ireland

and approved by the Medical Council in 1994 were merely exhortatory in

nature. The language, couched in subjunctives and in terms of proposed and

recommended best practice, seemed devoid of any imperative force and

apparently relied on a benign self-regulatory environment for adherence.

There were significant changes between the guidelines in the 1989 and 1994

editions of the Medical Councils Guide to Ethical Conduct and Behaviour and

to Fitness to Practise. For example, guideline number 2 in the 1994 edition

provided as follows:

All fertilised embryos produced by IVF should be replaced, optimally this

should be three in any treatment cycle

whereas the previous guideline required that

All fertilised embryos produced by IVF should be replaced in the potential

mother's uterus.


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Leaving to one side the slightly difficult concept of who constitutes a potential

mother in this context, given what has gone before, the fact of the deletion to

the mothers uterus cannot be wholly without effect.

Should embryo storage or freezing be permissible?

Rapidly developing technologies and the willingness of certain practitioners to

seek loopholes in the Ethical Guidelines make this revision particularly

relevant.

A definitional problem arises in respect of what constitutes, what is unhappily

referred to as, a spare embryo. Thus, it is unclear as to whether it represents

the excess above the three that it is recommended be implanted in any given

treatment cycle or an embryo which is simply surplus to requirements, at theelection of either of the parents or IVF medical specialist. Unfortunately, the

exhortatory language used in 1994 made it difficult to interpret this provision.

There was concern that the guidelines raised the possibility that there was a

difference between a fertilised ovum and an embryo. There was further

concern that the guidelines did not contain an express prohibition on research

on embryos not produced specifically for that purpose and on the storage of

embryos for any purpose.

In this context, any express and favourable consideration of proposals for the

storage or freezing of human embryos by the Medical Council would

compound the underlying unsatisfactory nature of the regulation of IVF in

Ireland. Moreover, it would further compromise the right to life of countless

further embryos by exposing them to conditions minimising or significantly

reducing their chances of survival.

It is disingenuous to justify the storage or freezing of human embryos on the

basis that it is either pro-life or represents a pro-life strategy. Apart from the

very dramatic lessons that can be learned from the British experience in this

regard, the storage of a human embryo is not pro-life it merely tolerates the

existence of the unborn human involved without respecting its right to life and,

in circumstances where there is no guarantee that its right to life will ever be

respected. In the circumstances, the storage of human embryos is

fundamentally violative of the constitutionally protected right to life of the


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unborn enshrined in the Eighth Amendment of the Constitution. The Medical

Council might consider adopting, as a statement of ethical principle, the

affirmation at its April 1996 Annual General Meeting by the Irish Medical

Organisation that the freezing of embryos is inconsistent with the medical

professions long-held tradition of respect for human life at all stages of

development.

The R versus Rcase before the Supreme Court will examine the current legal

status of frozen human embryos but, as stated already, the courts determine

what is legal, not what is ethical. Hence whatever the decision of the court in

this matter it will not negate the ethical requirement for respect of all life from

conception to natural death.

THE CURRENT 2004 GUIDELINES

24.1 In this rapidly evolving and complicated area the Council reminds

doctors of Reproductive Medicine their obligation to preserve life and to

promote health. The creation of new forms of life for experimental

purposes or the deliberate intentional destruction of human life already

formed is professionalmisconduct.

24.4 Frozen Sperm and Ova

There is no objection to the preservation of sperm or ova to be used

subsequently on behalf of those from whom they were originally taken.

Doctors who consider assisting with donation to a third party must have

regard to the biological difficulties involved and pay meticulous attention

to the source of the donated material. Doctors who fail to counsel both

donor and recipient thoroughly about the potential social, medical and

legal implications of such measures and the possible consequences for

the would-be parents and their baby could face disciplinary

proceedings.

24.5 In Vitro Fertilisation (IVF)

Techniques such as IVF should only be used after thorough

investigation has failed to reveal a treatable cause for the infertility.


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Prior to fertilisation of an ovum, extensive discussion and counselling is

essential. Any fertilised ovum must be used for normal implantation and

must not be deliberately destroyed.

If couples have validly decided they do not wish to make use of their

own fertilised ova, the potential of voluntary donation to other recipientsmay be considered.

The last paragraph in the 2004 Guidelines contradicts the essence of the 1998

guidelines in that it implies acceptance of freezing embryos where the 1998

guidelines did not. This paragraph should be dropped from the new guidelines.

The new guidelines should also clarify that using human embryos as a source

of stem cells either for research or therapeutic purposes is unethical as it

constitutes an attack on the life of the embryo.

After all, there can be no doubt that the human embryo is alive and unborn.

The embryo is not potential human life - it is human life with potential, albeit

fragile and dependent. The suggestion that an embryo should only enjoy

protection rights when implanted in a woman's womb is arbitrary and ignores

the fact that each of us began our life as a human embryo.

Recommendations

That since IVF is at present under-regulated and its control is left to the vagaries of

the individual practitioners whose activities cannot be controlled, the revised Ethical

Guidelines, should include the content of 24.2, 24.3 and 24.7 should also assert

1. A prohibition on freezing and deletion of last paragraph of current Clause 24.5:

2 A prohibition on the placing of embryos in a part of the womans body where it is

anticipated that they will not survive.

3 A prohibition on embryo storage or freezing, accompanied by notice ofappropriate powers of inspection and applicable sanctions.

4 A prohibition on embryo research or the use of human embryos as a

source of stem cells for research or therapy.


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OTHER MATTERS

Abortion Assistance and Referral

Introduction

All editions of the Medical Councils Guide to Ethical Conduct and Behaviour

and to Fitness to Practiseare opposed to induced abortion. In this submission,

the Pro-Life Campaign sets out why opposition to induced abortion should

logically apply also to abortion assistance and referral. There is a clear ethical

and logical, if not legal, dichotomy between having abortion in Ireland unethical

and at the same time allowing medical practitioners to actively assist having

unborn children aborted outside the State.

In 1995 the Oireachtas passed the Regulation of Information (Services

Outside State for Termination of Pregnancies) Bill 1995 (referred to as theAbortion Information Act). The President referred the Bill to the Supreme Court

to consider its constitutionality, which subsequently ruled that it was

constitutional.

The Act provides for the giving of Act information, i.e. information likely to be

required by a woman to avail of services provided outside the State for the

termination of pregnancies. This information relates to such services and to

the persons who provide them,

13

given by a person who engages in, or holdshimself out as engaging in, the activity of giving information, advice or

counselling to individual members of the public in relation to pregnancy. 14

Termination of pregnancies is defined as the intentional procurement of

miscarriages of women who are pregnant

Although the Act provides that it is unlawful for a person, upon a request to

give information, advice or counselling in relation to the particular

circumstances of a pregnant woman, to advocate or promote the termination

of her pregnancy, the giving of Act information is perfectly lawful, subject to

certain conditions. In this regard, the Supreme Court noted that:

13s. 2.

14s. 1.


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Constitutional justice requires that in the giving of such information,

counselling and advice regard be had to the rights of persons likely to be

affected by such information, counselling and advice.15

Furthermore, it provides that whereas it is unlawful for the persons giving theAct information to make an appointment or any other arrangement for, or on

behalf, of a woman with a person who provides abortion services outside the

State, it was held by the Supreme Court that this provision

... does not preclude [a doctor] once such appointment is made from

communicating in the normal way with such other doctor with regard to

the condition of his patient provided that such communication does not in

any way advocate or promote and is not accompanied by any advocacyof the termination of pregnancy16

Giving to the woman a written copy of, or the medical, surgical, clinical, social

or other records or notes, which he has in his possession relating to her, is not

prohibited by this provision.

The conscientious objection to the giving of Act information is permitted.

Breach of the provisions of the Act constitutes an offence, punishable

summarily by a fine not exceeding 1,500.AbortionInformation Act 1995 An Ethical Appraisal

Contradiction

There is an inherent contradiction in a system which permits a medical

practitioner, who on the one hand is required to subscribe to a professional

ethical guide that obliges that (s)he shall endeavour to preserve life and

health, to, at the same time, counsel and/or refer for the destruction of that life.

The fundamental principle of medical practice is primum non nocere first, do

no harm. Because of the intimacy and dependency that underpin the doctor-

15In Re Article 26 and theRegulation of Information (Services Outside State for Termination

of Pregnancies) Bill 1995.

16In Re Article 26 and theRegulation of Information (Services Outside State for Termination

of Pregnancies) Bill 1995.


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patient relationship, adherence to this principle is essential to the proper

practice of medicine, breaches being punishable by professional sanction and

at law. In general, therefore, to assist in, or refer for, the destruction of the life

of any patient is ethically and legally prohibited.

Dual Patient Model

A doctor, when dealing with a pregnant mother, has two patients - the mother

and her unborn baby, and has a duty of care, both ethical, and enforceable at

law, simultaneously to each. As in any other clinical situation, a medical

practitioner cannot ignore his or her responsibilities to one patient in order

merely to satisfy the wishes of another. To deny the existence of such a duty is

to ignore the teaching of generations of obstetricians, the clear, almost

intuitive, knowledge of all parents and the reality of ever increasing medical

malpractice premia. If it is bad medicine to do, or fail to do, something which

results in damage to an unborn child en ventre sa merehow can it be good

medicine to do something which assists in procuring that childs death? To

consider or counsel (however this counselling is done) abortion as merely one

option, from among many, which may be legitimately chosen, or to assist in, or

refer for, the destruction of the life of one patient is surely an abrogation of a

doctors duty to that patient.

Recommendations


1. An ethical prohibition on abortion referral and assistance by doctors.

2. The duty of a medical practitioner to give full information to patients about the

medical consequences of having an abortion.


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SUMMARY OF RECOMMENDATIONS

Induced Abortion

That the revised Ethical Guidelines, while maintaining the revised Section 24.6 and

24.1of the 2004 Guidelines and assert in other clauses:

1. The principle that in pregnancy the doctor has a duty of care towards two patients,

the mother and the unborn child;

2. The principle that necessary treatments which have a risk of unsought side effects

are ethical, even when the unsought effect is foreseeable, while procedures the

purpose of which are to cause the death of a patient are unethical.

3. Induced abortion does not constitute medical treatment in any circumstances.

4. Therapeutic convenience is never a sufficient justification for induced abortion and

that adoption of such an approach is prima facie unethical.

5. Medical ethics do not follow each change in the law and that mere legality is not

equivalent to ethical practice.

6. A prohibition on induced abortion is both feasible and ethically necessary, and has

not resulted in the treatment appropriate for the management of any ill mother

being compromised in any way.

Euthanasia


1. The prohibition on euthanasia, in clear and robust terms of 1998 and 2004 Guide.

2. A re-statement of the Medical Councils position on the withdrawal of feeding in line

with its statement of August 4, 1995.

3. A continuation of the Medical Councils independent stance on the issues of

euthanasia and the withdrawal of feeding notwithstanding the effective change in

the law in relation to euthanasia by withdrawal of feeding consequent on the

decision of the Supreme Court in the Wardcase.

4. An express statement that a medical practitioners complicity in the withdrawal of

feeding from a chronically ill patient with the intention that the patient will die as a

result is unethical and subject to disciplinary procedures by the Council.


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5. An affirmation of the principle, perhaps in the section of the Guide pertaining to

Ethical Conduct, that necessary treatments which have a risk of unsought side

effects are ethical, even when the unsought effect is foreseeable, while procedures

intended to cause the death of a patient are unethical.

Right to Life of the Human Embryo (freezing and storage)

That since IVF is at present under-regulated and its control is left to the vagaries of

individual practitioners whose activities cannot be monitored, the revised Ethical

Guidelines, should retain in essence the content of the2004 Guidelines 24.2, 24.3,

and 24.7, including the prohibition on deliberate destruction of the fertilised ovum and

also assert:

1. A prohibition on freezing embryos and deletion of final paragraph of 24.5

2 A prohibition on the placing of embryos in a part of the womans body where it is

anticipated that they will not survive.

3 An explicit prohibition on embryo storage or freezing, accompanied by notice of

appropriate powers of inspection and applicable sanctions.

4 A prohibition on embryo research or the use of human embryos as a source of

stem cells for research or therapy.

Other Matters

Abortion Assistance


1. An ethical prohibition on abortion referral and assistance by doctors.

2. The duty of a medical practitioner to give full information to patients about the

medical consequences of abortion.


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CONCLUSION

The medical Council has an enormous responsibility to promote the ethos of

care in the medical profession that respects all human life. In our democracy

based on equality before the law, some values, some rights are non-

negotiable. First among these is the right to life. Without it, all other rights are

meaningless. If the Guide to Ethical Conduct lacked clarity regarding that

most basic right, it would undermine the basis for all other self-evident rights

we cherish. Even where there is disagreement, the just response is to err on

the side of life.


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SubmissionTo

Medical Councils

Ethics Committee

Pro-Life Campaign

34 Gardiner Street Upper

Dublin 1

T: 01-8748090,

F: 01-8748094,E: [email protected]

6th September 2007


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pro life campaign - submission to irish medical council ethics committee - september 2007

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