Thursday, 2 May 2013

Deference to Doctors as Gatekeepers

The Irish Government has published the heads of its proposed legislation to implement the Supreme Court's judgment in the X Case and the European Court of Human Rights' judgment in the A, B, C case. Abortion is illegal in Ireland: the unborn child has constitutionally protected status. But in some cases, as the Supreme Court recognized in X, there will also be a threat to the life of the mother necessitating a termination of the pregnancy.

This is being parsed by others much more qualified than me (here is a good primer with helpful links) so I will just make two brief observations.

The first is that much is placed on the shoulders of doctors in the proposed legislation. In emergency situations, the opinion of one doctor as to the seriousness of the threat to the mother's life is required. In 'regular' situations, two opinions are needed. In cases where the threat to the mother's life is that she is suicidal, three doctors must be consulted. Appeals will lie from these doctors to a review board. There is much deference to doctors in this scheme. One wonders how medical decisions will be treated if -- as seems inevitable -- refusals to permit abortions are judicially reviewed in the High Court.

The second is that there is a risk that doctors may not wish to exercise this gatekeeper function. A related problem has (allegedly) occurred in Ontario in respect of medical marijuana. Sufferers from chronic pain have a constitutional exemption from the general criminal prohibition on cultivation and possession. Certification by a doctor is a pre-condition to the exemption. In R. v. Mernagh, 2013 ONCA 67, a challenge was made to this scheme on the basis that an insufficient number of doctors were participating and that some of those participating exercised their functions in an arbitrary manner. The challenge failed on appeal for want of convincing statistical evidence. Nonetheless, it demonstrates how reliance on doctors as gatekeepers might lead to trouble in the future.

No comments:

Post a Comment