21 November 2012

I wonder how many of the commentators on this awful case have even read the X case?  Your heart goes out to the surviving relatives.  No amount of censure and no amount of compensation will ease their grief.  You don’t want to pre-judge a case, but if negligence was involved, then I hope the hospital gets what they deserve.  I hope the arrogant crank in the hospital who, in blatant ignorance of Irish law, allegedly claimed that no medically-necessary abortion was possible in Ireland gets what he deserves.  Let’s not get into the wider issue of health service under-funding driven by right wing Irish politicians, with their IMF agenda; but if we’re searching for macro causal factors in this tragedy, our prevailing ‘money first person second’ political creed perhaps ought to be in the dock, not Irish law.    

The focus on Irish law reform as a panacea is blatantly illogical.  Sure, Irish law needs to make up its mind on, for instance, the issue of whether or not an abortion is permitted where the mother may be suicidal.  There is a separate debate to be had about whether this should be an objective test or a subjective test (i.e., where the mother states that she is suicidal).  For the record, I’d be against a subjective test – any person who states that they are suicidal needs psychiatric help, and resources ought to be made available for that; but the statements of a person with a temporary mental illness should not be driving policy in relation to unborn children.  If I said the neighbour’s dog barking 24x7 was making me suicidal, purely on the basis of that statement, the State wouldn’t send the cops round to shoot the dog; and it’s difficult to see how the unsupported statement of someone claiming to be mentally ill should trump the rights of an unborn child.  Anyway, that’s a wider debate and I agree that it legitimately will be a complex and fractious debate.      

However, the point is that none of the above is relevant in the Galway case.  This was not a case of mental risk – this was a clear-cut case of unambiguous physical risk to the mother.  And in that objective scenario, Irish law is more than adequate. In the 1992 Irish case of Attorney General v X, the Irish supreme court stated that:

‘the law in this State is that surgical intervention which has the effect of terminating pregnancy bona fide undertaken to save the life of the mother where she is in danger of death is permissible under the Constitution and the law. The danger has to represent a substantial risk to her life though this does not necessarily have to be an imminent danger of instant death. The law does not require the doctors to wait until the mother is in peril of immediate death.’

There you have it. Plain as the nose on your face.  Just how dumb would you have to be not to understand that paragraph?  It’s crystal clear.  However, a consistent theme in all the comments I’ve seen is that ‘the State now needs to legislate on the basis of the X case’. 

Well, got news for you – it doesn’t.  Certainly in relation to the tragedy in Galway,  the law is fine.  I’m not sure whether this nonsense about needing legislation is driven by a covert agenda for lifestyle abortion or whether it’s down to sheer ignorance about what constitutes ‘Irish law’.  I suspect the latter.  You get the distinct impression that many non-lawyers in Ireland are under a bizarre misapprehension that Irish law is comprised of a hierarchy of legal sources, with acts of parliament at the top of the hierarchy.  As far as I can work out, people are either daft, or have a hidden agenda – or genuinely hold to an erroneous idea that a mere judicial pronouncement, no matter how unambiguous and now matter how relevant, is somehow ‘defective’ until it has been reflected or repeated in legislation.  Of course, this latter attitude chimes with the instinctive statist mindset in Ireland – we look to the state to sort out all our problems.  Whereas I consider that a state that bankrupted itself in needlessly appeasing foreign bankers is often the primary source of many of our problems, and the less input they have on anything, the better.

For the record, and since this seems to have been forgotten, Ireland is a common law country.  Do I need to spell out what this means?  This means (read slowly now folks) that ‘case law, i.e., judgments of the Courts deriving from actions that may have involved citizens, are binding law of the land, every bit as much as any statute’.  Gosh!  Really?  Who’da thunk it? 

Stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.  This seems to have been forgotten in the lemming rush to assert that all Ireland need do is ‘pass new laws’.

As any first year law student will tell you, a good decision by the higher courts in any common law country is miles better than any act of parliament.  Acts of parliament (which are political creatures, pushed by semi-literate, populist politicians and written in the main by legally inexperienced civil servants) often need to be explained and rationalised by senior judges. 

Case law is law – it’s disturbing in a democracy that this seems to have been forgotten – or that it never was understood in the first place.  So much for the Irish education system teaching people about their own constitution and law making process.  As the above extract should make clear, the law in this area is very clear already. It may be that the surgeons concerned were as legally ignorant as most of the commentators. In any event, the idea that they were ‘afraid to act’ because the ‘law was unclear’ is wrong-headed – or a cop-out.

The redress and the remedy here is one of possible medical negligence.  Banging on about Irish law being defective in this area is misinformed bandwagon jumping by people with a vested interest in
attributing the seeming failings of an individual hospital / medical team to the entire country and / or using this possible negligence by an individual hospital as a conveniently-emotive excuse to usher in lifestyle abortion; but the uninformed media narrative has already bolted.

It’s a straightforward issue – Irish law covers the situation adequately.  No fresh legislation is needed in this case.  When half the country is calling for legislation that, on any objective consideration of the existing law, simply is not needed, one may conclude, that such people are misinformed, dumb or cynical.  Take your pick.  If we had half a collective brain, a tragedy such as Galway should be causing us to look afresh at our austerity policies, at our shabby and under-funded hospitals and at our run-down health care system, and at our spineless appeasement of foreign bankers.  What we do instead?  Clamour for more domestic legislation.  As a collective non sequitur response, this takes some beating.