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Legal focus - Protection of life during pregnancy

Edward Mathews outlines the recently issued guidance for health professionals in relation to the implementation of the Protection of Life During Pregnancy Act 2013

The Protection of Life During Pregnancy Act 2013 was enacted in July 2013 and the legislation came into force in January 2014. The stated purpose of the legislation is to protect human life during pregnancy, to make provision for reviews at the instigation of a pregnant woman of certain medical opinions given in respect of pregnancy and, among other things, to provide for an offence of intentional destruction of unborn human life.

The context in which this Act arises is the Eighth Amendment to the Irish Constitution which provides that: “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.”

This Amendment was subsequently considered in the vexed decision of the Supreme Court some years ago in the case of Attorney General v X in 1992, and the European Court of Human Rights case of A, B, & C v Ireland in 2010. This is a brief and impoverished account of the developments preceding the Act, however, in essence, the legal processes outlined, and various other matters, led to the Oireachtas enacting this piece of legislation.

Fundamentally, the Act represents a reforming and implementing piece of legislation that provides a clear prohibition on abortion, with the only exception being where there is a real and substantial risk to the life of a woman, which can only be averted by the termination of a pregnancy. The Act then provides a specific regulatory regime to deal with three distinct situations:

  • Where there is a real and substantial risk to life arising from physical illness
  • An immediate risk to life from a physical illness
  • A real and substantial risk to life arising from suicide intent.

The INMO recognises that the issues touched upon by this Act are deeply personal and heartfelt irrespective of one’s position. While not adopting a position, I feel it is important that our members are aware of the Act, and the guidance that has been offered regarding its implementation.

In September 2014, the Department of Health issued a guidance document for health professionals in relation to the implementation of the Act. The guidance document has been developed to assist health professionals in implementing the Act when providing care to pregnant women with life threatening conditions, and was prepared by the Department of Health in collaboration with a multidisciplinary committee of experts in medicine, nursing, midwifery and law. The document operates in addition to, and not in replacement of, relevant professional and clinical guidelines and requirements.

Given that the implementation of this Act has the potential to involve nurses and midwives, it is important that members of the professions take the time to familiarise themselves with this important document. While the decision-making process under the Act is undertaken exclusively by physicians, nurses and midwives may well be involved in initial referral pathways or in the support of the pregnant woman when the decision-making processes provided for in the Act are underway.

On the issue of referral pathways, the guidance document recognises that an underlying principle of the Act is that termination of pregnancy is a medical treatment. Thus, if a health professional is of the opinion that the life of a pregnant woman might be at risk, and does not feel qualified to treat her, they would be expected to make urgent referral to an appropriate medical practitioner for further assessment.

The health professional who makes the initial referral will be responsible for the care of the patient until an appropriate doctor accepts this responsibility. In the main, these responsibilities will generally fall on medical practitioners, however, the guidance document, while recognising the limited involvement of nurses and midwives in onward referral in such cases, does make specific mention of the role of our professions.

The guidance recognises that nurses and midwives are expected to provide safe and holistic care and support by incorporating best available evidence. In addition, a midwife or nurse could play a role in the referral pathway if they are the first point of contact for a woman who requires care, such as in community mental health services, general practices or advanced nurse/midwife practitioners, and would be expected to refer the woman as per the process outlined in the guidance document.

In effect, a nurse or midwife would be expected to urgently refer a woman to an appropriate medical practitioner for further assessment.

The practitioner to whom the woman is referred will obviously depend on the source of the risk to life, and the setting in which the nurse or midwife meets the woman. While one might well choose a woman’s GP as the appropriate referral pathway, that might of course change if the presentation of risk amounted to an emergency, whether arising from physical illness or suicidal intent. Whatever the pathway chosen, the essential message is that nurses or midwives, who are the first point of contact, do have obligations to make urgent referrals where a risk to life is foreseen, and they would remain responsible for the care of the woman until an appropriate medical practitioner has accepted care.

The Act provides for specific decision making, certification and appeal processes, depending on the source of the risk. While the nurse or midwife will not be a decision maker in this context, members of the professions will no doubt be called on to support women at this difficult time and the guidance document provides a clear and concise map of how these processes are employed.

Another point of relevance in this context is that health professionals will need to be mindful of child protection issues when dealing with minors and especially any requirements under Children First: National Guidance for the Protection and Welfare of Children, and local policies and procedures for reporting child protection concerns. In addition, members should be conscious that pursuant to the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012, it is now an offence for anybody to withhold information relating to the commission of a serious offence, including a sexual offence, against a child.

If a decision is made that there is a real and substantial risk to the life of a woman that can only be averted by the termination of a pregnancy, then a nurse or midwife may face a situation where they are asked to assist with the procedure. This can generate deeply held reservations on the part of a professional, and circumstances may arise where one may not want to participate in light of what is referred to as a conscientious objection.

Provision for such objections is made in section 17 of the Act, and nurses and midwives will not be obliged to carry out, or to assist in carrying out, medical procedures under the Act if they have a conscientious objection. In accordance with the Act, a professional who has a conscientious objection shall arrange for the transfer of care of the pregnant woman concerned, as this may be necessary to enable the woman to avail of the medical procedure concerned. Importantly though, conscientious objection is not applicable in emergencies where the woman’s life is at immediate risk and thus, a nurse or midwife would not be permitted, under the Act, to opt out of assisting in the procedure in this instance.

Moreover, the issue of conscientious objection is also dealt with in the revised Code of Professional Conduct and Ethics for Nurses and Midwives recently published by the NMBI. The revised code defines such an objection as where a nurse or midwife has a strong objection – based on religious or moral grounds – to providing or participating in the provision of a particular service. Principle 2 of the code, dealing with professional responsibility and accountability, outlines the standards of conduct expected from those who hold such objections.

These standards expect that if you have a conscientious objection based on religious or moral beliefs that is relevant to your professional practice, you must tell your employer and, if appropriate, tell the patient as soon as you can. Further, if you cannot meet the patient’s needs because of this objection, you must talk with your employer and, if appropriate, talk to the patient about other care arrangements. Finally, even if you have a conscientious objection, you must provide care to a patient in an emergency where there is a risk to the patient’s life. These principles are similar to those enshrined in the Act, but, in addition, a nurse or midwife has a duty to inform their employer as soon as they can, to make alternative arrangements, and ultimately to participate notwithstanding ones objection in emergency situations.

Overall, the role of the nurse and midwife has the potential to be quite limited in the implementation of the Act. However, important points are made about initial referrals, dealing with child protection issues, and where conscientious objections arise.

Notwithstanding these important issues, the guidance document will be essential reading for those involved in the care of pregnant women who may need to navigate the procedures outlined, and may need support from a nurse or midwife at that time of their life.

Edward Mathews is INMO director of regulation and social policy

Legal focus - Protection of life during pregnancy
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