Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Karen Pearson and Amanda Patterson. I remind you that the session is being recorded and will be published in due course. When you are ready, you can make your opening comments. We will open up the meeting for questions afterwards.

Ms Karen Pearson (Department of Justice): Thank you, Chair. We are here today to offer any further briefing the Committee might find helpful on the responses to the public consultation on the criminal law on abortion. Committee members have a paper from the Department — we are conscious that it is a long document — that provides a brief overview of the results and the conclusions.

I will recap. The Minister published a consultation paper on 8 October last year presenting proposals to adjust the law on abortion for lethal foetal abnormality. The consultation followed the then Health Minister's conclusion that the issue of abortion for cases of lethal foetal abnormality could not be addressed in guidelines but could only be dealt with by a change to the criminal law. The consultation paper also set out a number of questions relating to abortion for sexual crime. The consultation period closed on 17 January and, since then, we have been involved in preparing a summary of responses that the Committee now has in draft and which we intend to publish later today. Chapter 1 of the paper provides a brief summary of the views expressed, and chapter 8 outlines the policy development and proposals for legislative change. As indicated in the covering paper, the proposals at this stage are confined to foetal abnormality. The responses to the consultation did not allow for a clear policy position to be reached in respect of sexual crime, and we have dealt with that in chapter 9 of the document. The covering paper sets out the scale of responses to the consultation and details some of the major issues raised by those in favour of change and those against change. We have provided figures at paragraph 3. The response was large and varied, and the Minister was very grateful to have such a wide-ranging engagement in the consultation.

The content of the responses was very varied. However, we think that we can draw out some themes, and I will summarise those for you. They are set out in paragraphs 5 and 6 of the covering paper. In very broad terms, we think the responses can be said to span a range of opinion falling into five broad categories. First, there are those who are against a change in the law. The petitions, the various lobbying campaigns and over 500 of the individual responses fall into that group. Secondly, there are those who are prepared to offer qualified support for a change on lethal foetal abnormality but only with judicial oversight and where there is no feticide involved. Thirdly, there are those who gave full support for a change on lethal foetal abnormality. A number of organisations, including a major proportion of the medical bodies, were in that group, albeit with different views on the best way to achieve the policy outcome. Fourthly, there are the others who offered support for a wider change, going further than the Minister's proposals, and that includes serious abnormality and cases of rape and incest. Finally, there is the fifth group. A number of responses, including some from political parties, albeit not in the Assembly, argued for something equivalent to the 1967 Act.

The covering paper also outlines the policy development process and notes the substantial body of evidence from medical practitioners and their professional bodies, which stated that women in those circumstances need to have an option to terminate the pregnancy for their own health and well-being. The concerns expressed by those who were opposed to change were also considered very carefully by the Minister, and we hope that we have adequately summarised those in chapter 8.

Paragraph 12 of the paper refers to the proposed legislative framework set out in chapter 8 of the document. The Minister is proposing to bring forward a change to the law that would provide a statutory exception, in addition to the existing case law exceptions, to the criminal offence of abortion in the circumstances where a diagnosis has been made of foetal abnormality that is likely to prove fatal and where the continuance of the pregnancy would be likely to have a detrimental effect on the health and well-being of the woman. The proposal also requires that, in relation to a diagnosis of that type, an assessment must be made by two suitably qualified medical practitioners that the condition is likely to cause death either before birth, during birth or in an initial period after birth and that, in the event of the child being born alive, there would be no medical treatment other than appropriate palliative care and nursing care that could be offered to treat the condition. The proposals would also bring forward a clause on conscientious objection.

We are happy to leave it there, Chair, and take any questions. We invite the Committee to note the responses that we have received, the policy development and proposed legislative framework in the document and the Minister's intention to publish the document later today.

The Chairperson (Mr Ross): Thank you. Before I open it up to other members, I have a couple of questions. Leaving aside the merits or otherwise of the policy proposals and specifically talking about the consultation exercise, I note that the correspondence to the Committee stated:

But, reading through the consultation responses, it appears to me that, if you collate the individual written responses, the responses from representative bodies, the letters and the petition signatories, about 99% of people are opposed to any change. Leaving aside the merits or otherwise of the proposals, how can the Minister say that he has substantial support or that he believes that there is substantial support if, in the public consultation, 99% of people did not want any change?

Ms Pearson: I think that the Minister says in the consultation document that he took the broadest view of the material that he had in front of him. I do not think that he took it to be how many people responded to the consultation. It was the totality of what was said to him in this and in the public engagement prior to the consultation. I think that Amnesty conducted a survey that showed high levels of support. He took all that in the round, and his view is that there is support for this proposal.

Ms Amanda Patterson (Department of Justice): Could I add to that? Although there was a substantial number of signatures on the petition, there were some 65 responses from representative groups with a key interest, of which 47 were in support of some form of change to the law. Most of those groups were representative of a broad swathe of interested opinion, such as the medical bodies, the medical professional bodies, medical practitioners, the Royal College of Midwives and the Royal College of Nursing. Those responses created a large weight of evidence in support of some form of change. I think that is one of the things that the Minister was referring to.

The Chairperson (Mr Ross): There is an argument that some of the petition signatories may be from outside Northern Ireland, and I accept that. Even when you take them out, you are still dealing with a high proportion — around 89% — of people who are opposed to any change.

Ms Patterson: If you look at it purely in terms of the response to the consultation, but look at it in terms of the weight of the arguments, the substance of the arguments and the content of what was put forward by the individual organisations, which are representative of a wide range of opinion. We had a lot of responses from trade union organisations, for example, which were representative of a lot of individual opinions. The petitions had 23,000 signatures. We are not sure that they all came from Northern Ireland, but even if you accept that they did, it is still a very, very small percentage of the overall adult population of Northern Ireland, so that was also taken into account.

The Chairperson (Mr Ross): In a consultation exercise, would you not expect that, if people are particularly supportive of something, they too would take the time to write in, even if it was a short response?

Ms Patterson: That is not what experience would show to me. Mostly, where people are not supportive of an issue, that is more likely to encourage them to respond, rather than the other way around.

The Chairperson (Mr Ross): I just found the language curious when you said "substantial support". Again, without any judgement on the proposals themselves, I think it is clumsy language to say that there is substantial support, particularly on the same line as some of the results. I think the public will, rightly, ask what the point of a public consultation is if the results are 99% against and the Minister then claims that there is substantial support.

Ms Patterson: I do not think that we would accept that it is 99%, given that the responses from the organisations also represent a huge number of people; all the GPs in Northern Ireland, and the nurses and midwives, if you want to look at it on that sort of basis, but we were not doing that, which is why, in the consultation document, we set out the responses in that way to show that it is not a matter of numbers. It was not a referendum on which way somebody voted. It was to do with what was being said, who said it and the content of the responses.

The Chairperson (Mr Ross): It is a particularly difficult subject issue for politicians or for anybody out there. I and many others have met families who have been through it, and your heart breaks for them. I know that the Minister is trying to find a way of ensuring that families in those situations do not go through the stress that they have, and I acknowledge it. It is also important that we listen to what the medical professionals say. They know far more about those issues than we do. I noted that the:

The health and well-being of the mother is hugely important, and rightly so. Was the medical profession saying to you that it needed legislation in order to have the arrangements that it wanted? Were they specifically saying to you that they want the legislative change and they want legislation on the statute books to give them cover or certainty, or what was their response?

Ms Patterson: Yes, I think that would be a fair summary of what they were saying. They were looking for a way of ensuring that they could offer what they thought was compassionate and the best practice in medical treatment for women in those circumstances. I think they would probably take a step back from how that is done, given that legislation is not for them to decide on, but they were very anxious that there should be clarity and that it would offer them as medical professionals and women in those circumstances sufficient clarity to know when such an option was available to them.

The Chairperson (Mr Ross): It is much the same as in the other side of the consultation in terms of sexual crime regarding pregnancy from rape or incest. Most people would acknowledge the difficulties there are in legislating for that because of proving a rape or different things like that. It is very difficult to legislate for that. On the fatal foetal abnormality issue, were there any concerns from those in the medical profession, who perhaps agree with the destination that the Minister wants to get to but perhaps take a different view on the route to get there? Are there any concerns that, by legislating for that issue, there may be unintended consequences and it may actually cause them difficulties in some of the other procedures that they carry out on a routine basis?

Ms Patterson: No, I would not say that that came across at all. I certainly think that there was a degree of reference in the responses from the royal colleges and others to the fact that they still require and would like to see guidance on the case law and how that should be operated. That did not detract from looking to legislate in a statutory way for this particular exception.

The Chairperson (Mr Ross): I noticed at Question Time in the House before the Easter recess that the Health Minister indicated that he was going to be bringing forward new guidance to the Executive in a matter of weeks, I think he said. In your view, if that guidance gives more clarity to medical professionals across Northern Ireland, would that be enough to give the medical profession the comfort that it can carry out the procedures that it believes are necessary? Therefore, would the Minister consider not bringing forward legislation on the issue?

Ms Pearson: I think that it really depends on what the guidelines say. If the guidelines really deal with the existing case law, I think that the Minister's proposals would be going further than that but still in the very limited circumstances of fatal foetal abnormality. If the guidelines are confined to, say, the Bourne judgement, there would be a difference between the guidelines and the Minister's proposals. We have not seen them and we do not know, so it is difficult to comment.

Ms Patterson: I think that that point is addressed in the proposals and in the paper. There would still be a gap, and the current case law would not necessarily work and would not offer clarity to women in the circumstances where they had a diagnosis of fatal foetal abnormality.

The Chairperson (Mr Ross): The Minister has indicated that he will now bring forward proposals to the Executive. When does he anticipate that that will happen?

Ms Pearson: As quickly as we can follow the normal processes for that. This is a priority area for us now, and, after today, obviously subject to what you say to us, we will be proceeding with that process.

Mr Dickson: Thank you for bringing forward something on what is a very sensitive and difficult subject for everyone. It has been exercising minds in Northern Ireland. I am not saying this because the Minister is in the same political party as me, but I believe that he has genuinely dealt with this matter incredibly sensitively in response to the responses that have been received. The narrowing of the areas that were under the initial consultation have now come down to probably the areas where, as you and the Chair said, if you listened to the people who have come and spoken to us, particularly Sarah Ewart and others, about their very personal and very harrowing cases, there is a clear and overwhelming need to legislate in this area, even in this very limited form. Perhaps there are others who would like to see a much wider debate and aspect to the legislation. I certainly believe that this meets a very specific need.

I have a question for you in respect of those who said that they felt that there should be some judicial oversight of the way forward and those who suggested that it should be based on the opinion of two doctors. Can you tease that out for us? Was there any interrelation between doctors and the judiciary? Were some people saying that it perhaps should be a mixture of both? Why, then, come down on the side of what the proposal is now that it should be on the opinion of two medically qualified practitioners? Finally, can you take us through the area of the conscience opt-out, if you like, for those people in the medical profession who have a personal reason for not wishing to participate in a procedure of this nature?

Ms Patterson: On judicial oversight and the number of doctors, I think that we took what seemed to be the popular view of the medical professions and the professional bodies that having two doctors provides everyone with a degree of insurance that the diagnosis is agreed. Due to some concerns that were expressed by various bodies, we are considering putting into the legislation that the medical practitioners have a certain background in obstetrics or gynaecology etc.

In terms of judicial oversight, it was a suggestion that did not come to us from very many respondents, but we could not see how a decision that is clearly a clinical diagnosis made by medical practitioners could be anything but second-guessed by the judiciary. It would be a step in a process that was unnecessary. It would take time, and it would not in any way help the person whom the legislation is designed to help: the woman who is going through it, is in crisis and has made it clear that she wants a termination. We did not think that that was an issue that bore any further investigation.

There was a more or less unanimous desire from all respondents that there should be a right to conscientiously object. There were differences and varieties of opinion in how far that right should be available. We looked at the various responses. The large majority of the medical professional bodies would want to see conscientious objection only for people who have a direct involvement in the procedure for termination. That was backed up by the Supreme Court judgement in the Doogan and Wood case, which looked at the conscientious objection right under the 1967 Act. That is what we propose to do. If a woman requires medical care following a termination, there should not be an ability to say, "No, I'm not prepared to look after this woman because she's had a termination".

Mr Lynch: In relation to sexual crime, did the responses show some support in cases of that nature?

Ms Pearson: It was mixed. If an organisation or person did not favour a change in the law for anything, obviously, that came over into that issue as well. There was some support for the need to do something, but there was very little by way of ideas or suggestions on how a law could be framed. You will recall, Mr Lynch, that the consultation was very much in two parts. Part 1 was, "Here's a proposal; may we have views?", and part 2 was more along the idea of, "Could we have ideas and suggestions for how a law could be framed?". Chapter 9 came to the conclusion that it is not possible to frame a proposal at this stage. The Minister has not ruled it out, but it not something that he will move forward on in this mandate.

Mr Lynch: Given that some support exists, why has the Minister not planned to legislate within this mandate?

Ms Pearson: It is because of the time that it would take us to develop a workable policy proposal. Some responses to the consultation came back with support for the idea that something should be done, but they tended to accept that it was going to be very difficult to put a justice provision and a medical provision together into a single framework to say, for instance, "Should a woman be required to have reported the crime to the police? What would happen if the case didn't proceed and the abortion had already taken place?". It is a complex area, and we just would not have time to develop a good and robust proposal in the amount of time left in the mandate.

Mr Lynch: As the Chair said, it is a complex area. Does the Minister have any timeline to deal with this? It is an issue that needs to be dealt with, and it is your responsibility to deal with it.

Ms Pearson: We do not have a timeline for it. It is something that we need to keep thinking about and working on, but I do not think that it will be possible to do something at the moment.

Ms Patterson: I just want to remind the Committee members that, in terms of the law on sexual crime and abortion — incest is often referred to — there is the upcoming judicial review by the Northern Ireland Human Rights Commission that, of course, may have an impact on that area as well.

Mr Frew: Thank you very much for your presentation. The Chair has asked questions on the consultation, so I will not cover that ground. You separated the two parts or persons that responded to the petition, and organisations. I think you stated that 47 out of 65 representative organisations were in favour of change. Can you give us the percentage of the organisations that stated that a change in the law was specifically what they required? You have talked about a method of resolving the issue, which is very, very sensitive. You also used the word "clarity". A method to resolve the issue and clarity around the issue are very different from legislative change. So, 47 organisations are supportive of change, and 18 are not. Can you give us a percentage of the 47 that stated categorically that they preferred a change in the law?

Ms Patterson: I am not sure that I can give you a percentage, certainly not off the top of my head at this point. However, I can say that the proposals that they were responding to were proposals for legislative change. I do not think that they were looking at how you might do this outside of that context. They were responding to proposals that would change the law. Off the top of my head, I cannot think of anything specifically that said, "We would rather you did this by some other way". I cannot give you an exact percentage.

Mr Frew: Again, that may not have developed because of the wording of the consultation, which is very important. I understand and take your point about it being a proposal to change the law, but many, if not all, of the 65 representative groups or organisations will, surely, have been medical-based groups.

Ms Patterson: A degree of them were; not all of them, no.

Mr Frew: Those that were medically based would have been looking at this in not only a legal sense, but in a medical sense and alongside the guidelines that they work to on a day-to-day basis. There may be other ways of resolving a thing or an issue — any issue, whatever it may be, not just a legislative one.

Ms Patterson: It did not come across to me in the responses that they were looking at some other way of doing this; it really did not. They responded to the questions in the consultation, which were about the proposal for a change in the law, and that is what they responded to. I cannot say this for sure, but I cannot think of any that said that there is another way that we can do it.

Mr Frew: Yes, but they are using the word "method". There are many methods for many things. They are using the term "clarity". The law is clear now. So, if they are seeking clarity, and if the law is clear now, they are obviously not talking about the law.

Ms Pearson: May I just refer to the first question in the consultation? It was this:

We took the responses to be about the law. The second question was this:

So, our reading is that there is support for a change in the law as the way to provide clarity. But you are right that there might have been an element of, "Yes, there is a different way of doing this", but we did not see that. There might be that view, but we did not see that in this consultation.

Mr Frew: Page 24 of our packs — it is point 11 — refers to a letter. The paper states that:

Obviously, we are talking about disabilities and illnesses. I want to ask you about the sentence:

Of course, we are talking about the condition of the child. He is talking about it in the context of opening the floodgates around the law. I hope that you have grasped me there; I am sorry for being so patchy. What does "treat the condition" mean? People get treated for every and any condition, whether it is fatal or otherwise. Sometimes, treatment does not prolong life. Sometimes, treatment is all about making people comfortable. In this context, what does "treat the condition" mean? That is very important, because then the statutory exception will not apply, so it is fundamental.

Ms Patterson: It means that, at the point of the scan, or at whatever point the clinical assessment is being made, the doctors, the practitioners, will make a decision that the foetal condition is such that there is no treatment that they can offer that will mean a different outcome: that the condition is fatal and the foetus will either die in utero or will die at birth, or that any live birth will only be for a very short time, and there is no treatment that they can offer that will make a difference to that final outcome. That is the clinical assessment at that 20-week scan stage. That is what that means. It is to try to make sure that the condition is what the law will say it is and that there is no ability with these proposals to have a situation, which I think you are referring to, where a child might be born with severe disabilities but treatment could be used to ensure that life could continue, rather than the wording of the 1967 Act. This is very, very different.

Mr Frew: There are treatments that may prolong life for a number of days, hours or weeks. There is also treatment out there that may well make someone's life comfortable.

Ms Patterson: Yes, and we have said that, when we are talking about the inability to offer treatment, we are not talking about palliative care. If a woman decides to continue with a pregnancy to its natural conclusion and if a child is born, it does not mean that there can be no palliative care given to that child. Of course there will be, and we have made that very clear. I cannot find it in the time available, but you may find it in the document at some point where either the GMC or the BMA has guidelines where it talks about when treatment should be offered in the neonatal period where a child has got really severe disabilities. That is a decision that is then made at that stage, but the same sort of issues apply. The doctor should know at the 20-week scan point whether or not it is possible to offer treatment that could make a difference to the actual outcome.

Mr Frew: Moving on to the conscientious objection, I note very clearly that you say that there should be conscientious objection for all abortions, and, of course, abortions happen here in Northern Ireland lawfully.

In a practical sense, how will a member of staff who wishes to object and withdraw know the difference in the abortion setting and context? I am not using my words right here; it is a sensitive issue, so please excuse me. How will they know, in a practical sense, when they are so busy and things are happening, when they are in a surgery or a midwifery room, and how will they know and, at that point, be able to extract themselves without placing a burden on other staff members and causing problems with logistics and staffing?

Ms Patterson: I honestly think that that will have to be looked at. It is probably not an issue for the criminal law but for the guidelines and guidance, which will be a matter for the Department of Health. If the law is passed and there is a conscientious objection clause, the implementation of it and how it could be dealt with and implemented in a practical setting will be a matter for guidance and the likes of the Royal College of Midwives, the Royal College of Nursing, the GMC, the BMA and the trusts to look at. It must ensure that people are allowed to have their right to conscientious objection, but the care of the patient has to be uppermost. Although there is no statutory ability to conscientiously object at the minute, there are still administrative guidance and policies about ensuring that people are not doing things that they do not want to do. I think that would be a matter for slightly further down the line than the change to the law.

Mr Frew: OK. Thank you very much.

The Chairperson (Mr Ross): You mentioned that that is an issue for health and not for justice. I think that most of us would probably think that this is a health matter and that it is unfortunate that criminal justice is looking at this area. However, until fairly recently, clinicians were comfortable enough with being able to offer whatever support or procedure for mothers who found themselves in these tragic circumstances. However, they have found that the most recent guidelines have been perhaps more restrictive, and they are more afraid to offer the sort of advice than previously. If that is the case, is it not a matter of amending the guidelines, and then it does not become a justice issue for which there has to be legislation? I know that I have asked this question before, but I have spoken to clinicians about this issue and they feel that it is a more recent thing that they are more restricted in what they can do. My view on most issues is that, if there are experts there to take decisions, I trust the experts. They may say to us, "It is not necessarily legislation that we need; it is guidelines to allow us to do what we were doing prior to the most recent guidelines". That is perhaps more a question for officials in the Department of Health and, if it is, I apologise to you.

Ms Patterson: If you look at the case law and the Bourne judgement, you see that all that guidance and guidelines can do is follow that. The case law within the criminal law is that there must be a serious risk to the mother's — sorry, to the woman's — life or to her mental or physical health that is likely to be long-term or permanent. I think the Health Minister at the time made it clear that, when that is the law, guidance could not address the question of people like Sarah Ewart who were in those terrible circumstances and yet could not access a termination of pregnancy. Guidance could still not allow that to happen because they are still going to have to make a judgement that the woman has got a serious, long-term risk to her physical or mental health. That may not always be the case, but the circumstances at the time were circumstances of extreme crisis and distress. That does not necessarily fall within the case law out of the Bourne judgement. When you have a chance to look at the paper, you will see that we have actually covered that in it.

Mr McCartney: In a sense, my first question follows on from that. When the Minister of Health said that the guidance did not cover it, did he make the case that there should be legislation or that only legislation could cover this?

Ms Patterson: I think, at that time, the point was being made that, if the guidance were changed to allow for fatal foetal abnormality, cases such as Sarah Ewart's at the time would fall within that guidance. But he made the point that the guidance can only follow the criminal law as it stands and the case law, so it could not.

Mr McCartney: It needed legislation even to allow the guidance to be changed. Is that what you are saying?

Ms Patterson: Yes.

Mr McCartney: OK. Have you a timeline for taking this forward?

Ms Pearson: As quickly as we can move through the process. The next stage is to bring a proposal to the Executive, and we have taken some preparatory steps, assuming that we move ahead, for how we start to put a Bill together. The process for that will be the normal process. There is not a lot of time left in the mandate, which is why I said that it is a priority for us. The Minister has been very clear that he would like to move this forward, and that is what we will do, but we just need to take each step as we can. The next step will be the Executive.

Mr McCartney: Will you take it to the Executive in proposal form, or will you have the draft Bill?

Ms Pearson: We have to get Executive permission to draft.

Mr McCartney: OK. Have you a cut-off date after which it would run on to such an extent that it will not be covered in this mandate?

Ms Pearson: The normal thinking is that, if we can introduce a Bill prior to summer recess, it would have a reasonable chance. We must try for that, but I would not say that, if we do not make it before summer, there is no prospect. That is just the normal way of thinking about it. We imagine this to be a Bill dealing with just this subject matter; we do not intend to align it with other provisions. The Minister thinks that this is of such importance that it deserves its own time and space in this mandate.

Mr McCartney: Have you any sense of the size of the Bill in terms of clauses and so on? Will it be short or long?

Ms Pearson: Short.

Mr A Maginness: Thank you for your presentation. There was a specific proposal that the right to conscientious objection should extend to institutions as well as individuals. I do not see that as part of the proposal for legislation. Would you like to comment on that?

Ms Patterson: That was a suggestion, as far as I can remember, although I may be wrong, from one respondent.

Mr A Maginness: The Catholic bishops?

Ms Pearson: Yes.

Ms Patterson: We do not think that was reflective of the responses on that subject.

Mr A Maginness: That would mean that, for example, the ethos of the Mater Hospital, which is protected in law, could be seriously damaged by your proposed legislation. There would be no protection for that institution.

Ms Patterson: There would be the same protection for the staff there as in any other hospital.

Mr A Maginness: Yes, but there is no protection for the institution.

Ms Pearson: Not in the proposal, no.

Mr A Maginness: Despite the fact that, in law, the Catholic ethos is protected. Can you reconcile that with the current position?

Ms Patterson: In what way?

Mr A Maginness: The Mater Hospital has a protected Catholic ethos. How can you protect that ethos and not have institutional protection?

Ms Pearson: If every member of staff engaged in this area of women's health did not want to participate, they would have the same right of conscientious objection.

Mr A Maginness: Yes, but that is not the point, and you know it is not the point: this is about the institution itself. How is the institution protected in the context of your proposals?

Ms Pearson: It would not be.

Mr A Maginness: It would not be. That is precisely the point that I make. I would advise you to look at that again because it is a very important point.

In relation to what is proposed, there would be a statutory exception on foetal abnormality. Is that based on option 4? In what respect is it based on option 4?

Ms Patterson: It would be —

Mr A Maginness: The basic, substantive feature of option 4 is "incompatibility with life". That was the test.

Ms Patterson: No. Well, that was part of it. Option 4 was about it being based on an assessment on the clinical judgement of medical practitioners at the 20-week scan. We had some responses about the terminology that was used, and you will see in paragraph 12 of your paper that the terminology of the proposed legislative framework is now slightly different. It talks about:

It continues:

We mentioned the point about palliative care earlier. There was a degree of concern about the wording, "incompatibility with life". As the original consultation document produced proposals, not a definite legislative framework, we have refined that somewhat. This is still not the actual legislative —

Mr A Maginness: So you have removed "incompatibility with life".

Ms Patterson: Yes.

Mr A Maginness: And you are saying that makes no difference, really, to the original option 4.

Ms Patterson: I would say that it does not.

Mr A Maginness: What is the difference? I am trying to probe the difference.

Ms Patterson: Paragraph 12 is trying to make as clear as possible what the test is when a termination of pregnancy is an option in a particular set of circumstances and, as a result of the consultation and the responses from medical practitioners, we have put together the proposed legislative framework as in paragraph 12 to set out precisely what the medical assessment would have to be at the 20-week scan.

Mr A Maginness: Can I ask you a further —

Ms Patterson: It may change again during the process of legislative drafting.

Mr A Maginness: I get the general drift; I am just trying to probe. It says:

So, there are two tests there. One, you have to establish that there is fatal foetal abnormality.

Ms Patterson: That is the test.

Mr A Maginness: That is the first part of the test. Is that correct?

Ms Patterson: Well, that is the test, yes.

Mr A Maginness: No, it is not the test; it is one part of the test.

Ms Patterson: Well, the detrimental —

Mr A Maginness: Sorry, just to be clear, I am not trying to trick you; I am trying to understand what you are putting forward. You are saying that you establish fatal foetal abnormality, and then:

So there are two aspects to the test. Do you agree with that?

Ms Patterson: Two aspects; yes.

Mr A Maginness: OK. I am unclear about the response of the Northern Ireland Committee of the Royal College of Obstetricians and Gynaecologists. They rejected options 1, 2 and 3. Did they accept option 4, did they reject it, or did they qualify it?

Ms Patterson: They qualified it.

Mr A Maginness: In what respect did they qualify it?

Ms Patterson: From that, you will find similar wording about the detrimental effect on the health and wellbeing of the woman.

Mr A Maginness: Yes, but what about the test of incompatibility? What did they say about that?

Ms Patterson: Well, we have removed "incompatibility with life".

Mr A Maginness: But what did they say?

Ms Patterson: I do not have it in front of me at the moment; sorry.

Mr A Maginness: OK. I suggest to you that they were not happy with that particular approach and expressed that it was unclear.

Ms Patterson: Yes.

Mr A Maginness: So, they did not accept option 4.

Ms Patterson: Well, they accepted it, only they wanted it worded in a different way. As I was trying to say, the proposals in the consultation document were purely that — proposals for us to work on and to amend as a result of responses, which we have done.

Mr A Maginness: Yes, but they did not accept option 4. That is the point that I am making to you.

Ms Patterson: I think that they did.

Mr A Maginness: How could they if they said that it was unclear and that the test of incompatibility —

Ms Patterson: As it was drafted in the original consultation document, parts of it were unclear. However, I think that they were very much in agreement that the decision in terms of a termination should be on the basis of a clinical judgement at the 20-week scan or thereabouts, and not on the other three options that were put forward.

Mr A Maginness: Well, we can ask them about that and whether, in fact, they accepted option 4 or not. You are saying that you are going with option 4, essentially, but you have changed option 4. I am still unclear as to how you have changed it, but I will leave it there.

Finally, supposing that we had this statutory change introduced, what time limit would there be on the termination of a pregnancy in such a situation?

Ms Patterson: We have not proposed —

Mr A Maginness: So, it goes up to birth.

Ms Patterson: — to put a limit on the time.

Mr A Maginness: It is pre-birth.

Ms Patterson: We have not proposed to put a limit on it.

Mr A Maginness: There is absolutely no time limit.

Ms Patterson: None of the responses from any of the medical bodies or medical practitioners argued in favour of putting a particular time limit on it.

Mr A Maginness: Which is curious.

Ms Patterson: Well —

Mr A Maginness: I am saying that it is curious; you might not agree with me. We would have the same situation as in England under the amended 1967 Act, where you can abort an abnormal foetus right up to birth. Is that right?

Ms Patterson: Yes, but there is a big difference. I am assuming that the reason the responses did not argue for a time limit is because we are proposing that this should occur only in the particular and very specific circumstances that a decision has been made that there is going to be no life after birth. Therefore, it becomes —

Mr A Maginness: But there will be life after birth.

Ms Patterson: Well, not in terms of where it becomes sustainable life. We are talking about death in utero and —

Mr A Maginness: Is there a difference —

Ms Patterson: Sorry. It is on the basis that the assessment is that there is no likelihood that this will happen other than death in utero, a stillbirth or death shortly after birth.

Mr A Maginness: Could you define "sustainable life after birth"?

Ms Patterson: We have not used the term "sustainable life after birth"; we are talking about life in an initial period after birth and, therefore, the issue of a time limit does not really have relevance in that context.

Mr A Maginness: Well, I think that it has relevance, and I think that the vast majority of people would say that it has relevance. We will agree to disagree on that.

Ms Patterson: For example, if a person with an anencephalic pregnancy did not find that out until 25 weeks and that person was extremely distressed and upset and requested a termination, would they not be able to have it at 25 weeks but would have been able to at 20 weeks?

Mr A Maginness: I have one last point in relation to the consultation. It seems to me and, perhaps, to others that this was a preordained outcome. Have you given disproportionate weight to the medical people who commented on the consultation?

Ms Pearson: I do not believe so. The Minister has had access to the full range of views. He says in chapter 8 that he has been very mindful and respectful of the range of views that have come forward for and against change, but he has to come down in favour of where he thinks the criminal law should be. He has given weight to all of this — the number, the nature and the quantity of responses — and this is where he thinks we should go next.

Mr A Maginness: You are saying that there was not disproportionate weight given to the medical profession.

Ms Pearson: I do not believe so. That is part of the weight of evidence. He has put some weight on that, obviously, but we would not agree that it is disproportionate.

Mr Elliott: Thank you, and apologies for missing your presentation. I have not had time to go through all the responses, but were there any responses to the consultation from women or ladies who found themselves in the position?

Ms Patterson: Yes.

Mr Elliott: Were all of those responses of a similar nature? Did they agree, or were they opposing?

Ms Pearson: We try to bring out personal experiences on both sides of the argument. Some people were speaking from a similar position as Sarah Ewart, but there were others who felt that it was absolutely right to continue with their pregnancy. We heard both of those experiences, and both are reflected in the paper.

Mr Elliott: The medical profession, by and large, is in support of a proposal to change, is that right?

Ms Patterson: That is right.

Mr Elliott: Finally, can you explain a wee bit more — apologies if you have done this — around the conscience issue? Can you explain a wee bit about that?

Ms Patterson: The responses to the consultation were more or less unanimously in favour of a right to conscientious objection, but varied considerably in the application of that right.

Mr Elliott: Varied in what way?

Ms Patterson: In the extent to which you could apply that right. Should it be for all aspects of medical care and medical administration, from cleaning the ward to arranging the appointments and all of that, or should it just be about the procedure for termination? The proposal, given the Supreme Court judgement — not just that, but various other things — is for a right of conscientious objection for direct involvement in the procedure of termination.

Mr Elliott: What is the timescale for bringing proposals to the Executive?

Ms Pearson: Our next process step is to bring a proposal to the Executive. We will aim to do that as quickly as possible, and we were explaining earlier that the normal time frame would be to try and get a Bill introduced before the summer recess. Whether we can do that or not depends on time, but going to the Executive is our next step and we aim to do that quickly.

Mr Elliott: You say quickly. Within —

Ms Pearson: I would not want to put a date on it and then say that we have missed that date. All that I can say, as I said earlier, is that it is a priority for the Department and the Minister.

Mr Poots: At the outset, I caution Ms Patterson about putting words in my mouth, in her response to Mr McCartney, that are wholly inaccurate. I am quite capable of answering any questions on that issue, but will not have Ms Patterson wrongly reflecting my views and position relating to guidelines and regulations.

Ms Patterson: I am sorry, Mr Poots: if we got something wrong, we will address it now.

Mr Poots: I caution you that you were wholly wrong in your response to Mr McCartney. If you care to look at Hansard and seek to identify where I have stated that position, you will not find it. I expect greater care to be taken by senior civil servants when giving evidence to a Committee, because it does not strengthen your case when you make inaccurate comments. In terms of —

Ms Pearson: Sorry, do you wish us to deal with that now, Mr Poots? I am sorry if we got something wrong.

Mr Poots: I do not think it can be dealt with; it is on the record. I am on the record now as having challenged that position, and I have urged you to identify where that was said in a public way.

How much did the consultation exercise cost?

Ms Pearson: There were no costs outside those for our own time and the time taken to prepare the documents within the Department. If what you mean, Mr Poots, is did we spend any money on external assistance with this, no. It is departmental time.

Mr Poots: What is the purpose of a public consultation?

Ms Pearson: To seek public views.

Mr Poots: OK. Maybe you could just go through the figures quickly again on the public viewpoints.

Ms Patterson: On what view?

Mr Poots: On what the expressions were. How many people indicated that they were opposed to this?

Ms Patterson: They are in our briefing paper.

Mr Poots: Yes, I know, but I would like to put them on the record.

Ms Patterson: Do you want me to run through the figures?

Mr Poots: Please.

Ms Patterson: There were 712 individually written responses from members of the public. Of those, 579 were against change, and 133 were in support of change. There were 65 responses from representative organisations and interested groups. Of those, 47 supported change and 18 were against. There were 921 letters opposing change, written in support of seven lobby campaigns, and there were 23,622 petition signatures opposing change.

Mr Poots: I think you will find the figures will tally up to something like this: 99·3% of people who responded were opposed, and 0·7% were in favour. If you remove the petition, 89·4% of people expressing an interest were opposed, with 10·6% supporting it. If you drill down to organisations, it is 72·3% opposed, with 27·7% in favour. You engaged in a public consultation exercise and then chose just to ignore the outcome of that consultation. What was the point of a public consultation if you were not going to pay any attention whatsoever to what was being said to you?

Ms Patterson: The purpose of the consultation exercise and of this very lengthy and comprehensive document was to present a response to that consultation exercise. We have been open and transparent about what we included in that document. The figures quoted were signatures to a petition that said one thing. That petition was organised by an organisation based in Dublin, and we cannot guarantee that all the signatures were from addresses in Northern Ireland. We also had to take account of the fact that the 65 responses from the representative organisations were just that — representative organisations representing a large number of people and a large swathe of opinion across society.

We mentioned all that in the summary of responses to the consultation. In the way we gave weight to particular responses, we faithfully tried to reflect those responses, but at the end of it, this was not a referendum. It was not about working out how many people said one thing and how many said the other. It was to look at arguments and positions and decide on the substance, content and weight of those arguments.

Mr Poots: Yes, and excluding the petition, which will not have the issues that you are concerned with for, potentially, people out of state having signed, you still had almost 90% opposed to change and 10% for it.

Ms Patterson: That is if you disregard the fact that the 65 responses were from organisations representing a large, large amount of opinion. We cannot work out how many people those 65 responses came from, but they represented a large number of people. Even having said that, the consultation was not about finding out how many people were in support or how many people were against; it was about looking at the arguments and the weight of the arguments. I think we put in the document the total figure — 25,000 or whatever it was — which works out at something like 2% of the adult population in Ireland, although I cannot really remember here. If you want to look at percentages, it becomes difficult to respond to a consultation on the basis of figures like that.

Mr Poots: Certainly, when you go to public consultation and you do not like the outcome, that is a line that you would be likely to take. You have decided to proceed with recommending option 4.

Ms Patterson: A version of it.

Mr Poots: A version of option 4. The RCN would have preferred option 3, and the obstetricians would have preferred option 4 but, as you indicated, that was qualified support. You have been happy to ignore everybody else and go for something that is the qualified support of one particular group.

Ms Pearson: I do not think that that is the case.

Ms Patterson: That is not the case.

Ms Pearson: The Minister has looked at the totality of what he has got here, and that is the basis for his decision.

Mr Poots: I think, Chairman, that it is hard to deviate from the fact that we had decided to go down this particular route and, legally, we have to have a public consultation process. Having conducted the process, we will go down the route that we had decided to go down in the first instance and pay absolutely scant regard for the views of the public who came forward.

Ms Patterson: I think that the consultation document suggests that the Minister has, in fact, looked at a lot of the concerns that were raised from those people who were opposed to any change in the law, and those concerns have been addressed quite comprehensively in the document.

Mr McGlone: I would like to go back to something that we were discussing in the context of what Mr Maginness said. To pick up on the theme of life, can you give me the Department's definition of what constitutes a human life, both post- and pre-birth? You took us into that arena earlier.

Ms Pearson: This came up the last time that we were here, during the launch of the consultation exercise. I think that it was me rather than Amanda who said at that time that that is really not a DOJ issue. We are not medical people, and we are not qualified to give a view on that. We are here to talk about the criminal law. It may have been unsatisfactory that we did not answer it the last time, but we are not in a position to give a view this time either, I am afraid.

Mr McGlone: Are you prepared to seek advice around what that is, because you are obviously heavily reliant on the advice of other key stakeholders in the medical profession and the like?

Ms Patterson: I think that the Minister's position on the consultation is quite clear. It is set out in the summary document. This is only about the limited circumstances of a foetal abnormality that is likely to cause death either before birth, during birth or in the initial period after birth. The Minister's view is that in those circumstances — in that very strict set of circumstances — the health and well-being of the woman must take priority. That has been set out in the document, and that is as far as the Department and the Minister's position is available.

Mr McGlone: To get it clear and for the record, the Department has not sought any advice on what constitutes a human being or a human life, either pre- or post-birth.

Ms Patterson: There are varying views on where that is. In this context and in the specific circumstances of this consultation, it was made clear in the initial consultation document that we were not opening up the debate on issues of that nature. That is as far as we can go today. The Minister has made his position clear in the context of this consultation.

Mr McGlone: In a respect you are here representing the Department. The answer is no, then. OK.

The Chairperson (Mr Ross): Thank you very much. I appreciate your time.