Abortion Discussion, Part Trois

Absolam

Absolam wrote: »

Gosh, I hardly think "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." is complicated legislation.

Surely that's exactly the point?

Absolam

oldrnwisr wrote: »

I have grouped these three points together because they are all dealt with in the court transcript I have previously linked to. Contrary to your assertion highlighted in the second point above, it was not the legal team who made the decision to continue somatic support, rather it was the doctors who made the decision in the absence of advice from the legal team. The court transcript notes:"He was told by the medical staff that, for legal reasons, they felt constrained to put his daughter on life-support because her unborn child still had a heart beat.""A study of the notes brought home that the doctors in the Dublin hospital were clearly concerned, having regard to the mother’s pregnancy, not to do anything that would “get them into trouble from a legal point of view and were awaiting legal advice”."

Well, the Court transcript of the judgement certainly touches on the points, though I did say it was my recollection. Still... the transcript quotes you provided show that P.P. said he was told by medical staff that, for legal reasons, they felt constrained to put his daughter on life-support because her unborn child still had a heart beat, but it doesn't say he knew how they arrived at that legal reasoning, does it? And yes, according to another doctors reading of their notes the doctors were concerned, but the transcript doesn't show where that concern came from does it? In fact, the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay. Still, I'll agree, my recollection may not be all that accurate; certainly the Examiner at the time said that "Neurosurgeons recommended that her life-support machine be switched off after determining she was clinically dead. However, lawyers for the HSE stepped in after another medical specialist treating the woman expressed concern about legal issues arising in the case." so perhaps it was more correct to say the Doctors excepting one wanted to discontinue somatic support, the dissenting doctor had legal concerns, and at that point lawyers for the HSE stepped in.
I'm happy enough to concede that at least one Doctor had legal concerns, whether those concerns emanated from, or were simply taken up by, the legal team

oldrnwisr wrote: »

As for the Constitution, it is the current legislative environment that caused the doctors to act the way they do. A legislative environment which has its roots in the 8th Amendment. So although this case doesn't deal directly with abortion, it is the side effects of the 8th Amendment which caused legal uncertainty in this matter which caused distress to the patient's family.

The POLDPA is the legislative environment that gave the Doctors legal concerns, and it doesn't rely on either the Constitution or the 8th Amendment. Neither the Constitution nor the 8th places any obligation on the Doctors in this regard, nor does it express a penalty for contravening it. The POLDPA does provide for a penalty to the doctors if they intentionally destroy unborn human life; which is why the Examiner at the time offered the point "Clinicians fear that they will breach their ethical and legal duty to preserve the life of this unborn child if they remove life support from this woman. Indeed, the Protection of Life During Pregnancy Act exposes clinicians to a maximum term of 14 years imprisonment if they “intentionally destroy unborn human life”.". And the POLDPA obviously does not rely on the 8th; it's an independent piece of legislation which gives effect to the States obligation under the 8th, but if the 8th were repealed, the POLDPA would still be law (until someone decided to repeal that as well).

oldrnwisr wrote: »

You're right, there isn't a reference in what I've quoted to the unborn. I wasn't speaking about the unborn. I was talking about the responsibilities had in relation to the patient (i.e. the mother), responsibilities which extend (from Article 22.1 above) unto death. Those are the responsibilities that you wish to ignore for the sake of a possibility of a live birth.

Gosh no, I wholly concur that the Doctors had an obligation to the woman as their patient unto death, and should have done everything they could to save her life (including terminating her pregnancy if necessary) in accordance with her wishes (if she had expressed any wishes regarding extraordinary measures etc). But only unto death. Once she was dead, they still had an obligation to their other patient, her child, and at that point the dead womans wishes were irrelevant to that patients care.

oldrnwisr wrote: »

However, this is not a gish gallop. This isn't a multitude of minor arguments. The quotes are examples of the ethical requirements doctors must consider in the care of their patient (i.e. the mother).

They're certainly a multitude of examples of authorititve looking quotes which seem to relate to the subject in hand by comprehensively setting out the care required, yet oddly entirely fail to point out anything about the ethical requirements doctors must consider in the care of their other patient (i.e. the child), who, as you say, you didn't include a reference to in your quotes. So yes... kind of a gish gallop in fairness.

oldrnwisr wrote: »

No, it wasn't. An appeal to emotion typically takes the form:Favourable emotions are associated with X, therefore X is true. That is not my argument. Instead I was pointing out that the distress being caused to the relatives of the patient by undertaking the course of treatment is a valid and necessary consideration.

Perhaps I read your post as more emotive than you intended it so. Perhaps it isn't a typical appeal to emotion? Certainly mentioning that the family coping with the loss isn't just a family but includes two children, who aren't just children but are young children would appear to be playing on sympathies, but perhaps you only mentioned them because you wished to be specific about what members the family consisted of, and they were the only two you were aware of?

oldrnwisr wrote: »

We are talking about bad science here. As shown by ProfessorPlum, the treatment was experimental. You don't experiment on patients without their informed consent (as detailed in the guidelines above).

Well no.. Prof Plum said one obstetrician witness said the 'form of somatic maintenance is still relatively experimental', and another said that in her view it " amounted to “experimental medicine”." Which is a bit different from your notion that I would "make this woman the subject of a speculative scientific experiment".

oldrnwisr wrote: »

As ProfessorPlum has explained, it is not all about a live birth at all costs. Consideration must be given as to what kind of life that would be. There is a significant level of disability in children born very prematurely (i.e. <30 weeks) which must be considered in a decision like the one in this case.

Prof Plum definitely offered the opinion all right, but I think I'm free to disagree; as I said, I don't have an issue with people making their own decisions about their quality of life vs life, but I do have an issue withe people making that decision on behalf of others. No Doctor knows, or is expected to know, what quality of life is acceptable to a patient they're treating unless that patient provides a directive. The child in this case was in no position to provide such a directive. I don't think there's anything at all in your ethical guidelines to suggest it's up to a Doctor to decide that potential quality of life can be used to determine whether life support should be continued? Care that is futile or disproportionately burdensome in and of itself wouldn't seem to qualify as a quality of life based decision.

oldrnwisr wrote: »

Just to clarify one point here, when I said that "the doctors in this case wanted to experiment on a brain-dead woman" the point that ProfessorPlum disputed (which I acknowledged) was that "wanted" had nothing to do with it. The doctors didn't want to continue somatic support but felt that they had to.

Well, more specifically it appears that one of the doctors raised the point that there could be legal issues with discontinuing somatic support. Not unreasonably, in my opinion. And not the same thing at all as engaging in speculative scientific experiments.

oldrnwisr wrote: »

You, on the other hand are disputing my use of the term experimentation. It absolutely is experimentation. This was mentioned by two of the expert witnesses in the trial and I have also linked to the scientific literature to show that this is the case. The use of somatic support in this case had no prospect for success and had no support from previously published research. Therefore it was experimental.

Actually, I was disputing your characterisation of me; that I "would make this woman the subject of a speculative scientific experiment". I never said I would, nor do I think that any of the Doctors involved felt that they were engaged in a speculative scientific experiment; that the treatment had practically no chance of success was certainly something that seemed evident to all involved not too long into the process, and as I said earlier, the expert witness testimony that it was 'relatively experimental', and in her view 'amounted to experimental medicine' is a long way from engaging in speculative scientific experiments.

Absolam

ProfessorPlum wrote: »

^^^^ Thank you. That was also my point, which Absolam seems to have missed. Not a 'big picture' kind of guy, maybe.

I don't know why you think it's a 'big picture' kind of thing, or why you're imagining I missed it... but I don't think I would want to make a woman the subject of a speculative scientific experiment, I don't think the Doctors involved wanted to make a woman the subject of a speculative scientific experiment, and I don't think the Doctors involved did make a woman the subject of a speculative scientific experiment. Is there a bigger picture?

Absolam

Deleted User wrote: »

Surely that's exactly the point?

Doesn't seem to be? The proposition was "The constitution is no place for complicated legislation. When people argue against repealing the 8th amendment with the question "what would you replace it with?" the answer is simple: legislation."
It's in the Constitution, and it's not complicated; check.
There is legislation, which is (moderately) complicated, and not in the Constitution; check.

If you're arguing to repeal the 8th on the basis that the Constitution is no place for complicated legislation, there's no need.

Absolam

Absolam wrote: »

Doesn't seem to be? The proposition was "The constitution is no place for complicated legislation. When people argue against repealing the 8th amendment with the question "what would you replace it with?" the answer is simple: legislation."
It's in the Constitution, and it's not complicated; check.
There is legislation, which is (moderately) complicated, and not in the Constitution; check.

If you're arguing to repeal the 8th on the basis that the Constitution is no place for complicated legislation, there's no need.

Considering the extent of the difficulties and nuance of the entire situation of access to abortion (and indeed the seemingly ever-changing landscape of thought); an overly simplistic 'catch all' within our constitution (from which all law must indeed work from) ensures that the the difficulties and nuance cannot be adequately captured and controlled for by legislation.

Straightforward enough.

Absolam

Deleted User wrote: »

Considering the extent of the difficulties and nuance of the entire situation of access to abortion (and indeed the seemingly ever-changing landscape of thought); an overly simplistic 'catch all' within our constitution (from which all law must indeed work from) ensures that the the difficulties and nuance cannot be adequately captured and controlled for by legislation.
Straightforward enough.

That seems to be a different proposition, but still... how so? Right now, the Constitutional provision severely limits what legislation may be created infringing on an unborn persons right to life, which is the point of it. You could say it's overly simplistic (though the Court cases we've all pored over show it's quite nuanced nonetheless), or you could say it's straightforward (if in some particularly difficult regards requiring Judicial judgment). Whether or not the difficulties and nuance cannot be adequately captured and controlled for by legislation would certainly be a matter of opinion; that it largely prevents such legislation being subverted to impinge on the right to life of the unborn would seem to be less so.

Honestly, I think the whole 'Oh it's too difficult to make it work properly we should get rid of it' is really just a smokescreen for 'Oh it's too difficult to make abortion more available we should get rid of it'.

oscarBravo

Absolam wrote: »

If you're arguing to repeal the 8th on the basis that the Constitution is no place for complicated legislation, there's no need.

If I was arguing that, you might have a point. On the contrary, I would argue to repeal the 8th because it's a blunt instrument that makes it difficult to frame laws with the level of nuance required.

A simplistic article like 40.3.3 that grants a blanket right to life of the unborn has no other purpose than to require the state to criminalise abortion. The result is legislation like the POLDPA. We've already seen numerous problems resulting from that Act, and those problems are notoriously hard to fix because any fixes would likely run into the brick wall that is 40.3.3.

There are two possible answers: make the prohibition on abortion in the Constitution more nuanced, or remove it and deal with the issue in legislation where it belongs. I'm arguing for the latter.

oscarBravo

Absolam wrote: »

Honestly, I think the whole 'Oh it's too difficult to make it work properly we should get rid of it' is really just a smokescreen for 'Oh it's too difficult to make abortion more available we should get rid of it'.

Calling it a smokescreen suggests that those of us who believe women should have a right to choose whether or not to be pregnant are in some way coy about that belief, and feel the need to disguise it in some way.

Let me be crystal clear: I believe that a woman should have a right to choose whether or not to be pregnant. An unsubtle "right to life of the unborn" clause in the Constitution removes that right, and does so purely on the basis that a non-sentient clump of cells has a right to life that exceeds a woman's right to bodily integrity.

If you want to talk about smokescreens, we can discuss the repeated use of the word "baby" to describe non-sentient clumps of cells, for the specific purpose of clouding the issue.

Absolam

Absolam wrote: »

That seems to be a different proposition, but still... how so? Right now, the Constitutional provision severely limits what legislation may be created infringing on an unborn persons right to life, which is the point of it. You could say it's overly simplistic (though the Court cases we've all pored over show it's quite nuanced nonetheless), or you could say it's straightforward (if in some particularly difficult regards requiring Judicial judgment). Whether or not the difficulties and nuance cannot be adequately captured and controlled for by legislation would certainly be a matter of opinion; that it largely prevents such legislation being subverted to impinge on the right to life of the unborn would seem to be less so.

Cool.

My position on the 8th Amendment is simple and above. I don't think that the constitution is a suitable place for difficult and changeable legislation concerning an extremely nuanced issue.

Absolam wrote: »

Honestly, I think the whole 'Oh it's too difficult to make it work properly we should get rid of it' is really just a smokescreen for 'Oh it's too difficult to make abortion more available we should get rid of it'.

No smokescreen here. I'm quite open about it.

Deleted User wrote:

I support access to abortion in the same way as I support access to amputation.

If the option needs to be exercised, I'd like it to be available. If it is to be available, I'd like the best services possible to be available.

By supporting amputation being an option in Irish Medicine, I am not pushing for amputations to become common. I would be very happy for not a single amputation to take place in a calendar year.

I am also more than happy to leave the mechanics of the procedure to those that are best placed to decide on them; that is the medical professional taking care of the patient involved.

ProfessorPlum

Absolam wrote: »

Well, the Court transcript of the judgement certainly touches on the points, though I did say it was my recollection. Still... the transcript quotes you provided show that N.P. said he was told by medical staff that, for legal reasons, they felt constrained to put his daughter on life-support because her unborn child still had a heart beat, but it doesn't say he knew how they arrived at that legal reasoning, does it? And yes, according to another doctors reading of their notes the doctors were concerned, but the transcript doesn't show where that concern came from does it? In fact, the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay. Still, I'll agree, my recollection may not be all that accurate; certainly the Examiner at the time said that "Neurosurgeons recommended that her life-support machine be switched off after determining she was clinically dead. However, lawyers for the HSE stepped in after another medical specialist treating the woman expressed concern about legal issues arising in the case." so perhaps it was more correct to say the Doctors excepting one wanted to discontinue somatic support, the dissenting doctor had legal concerns, and at that point lawyers for the HSE stepped in.
I'm happy enough to concede that at least one Doctor had legal concerns, whether those concerns emanated from, or were simply taken up by, the legal team
The POLDPA is the legislative environment that gave the Doctors legal concerns, and it doesn't rely on either the Constitution or the 8th Amendment. Neither the Constitution nor the 8th places any obligation on the Doctors in this regard, nor does it express a penalty for contravening it. The POLDPA does provide for a penalty to the doctors if they intentionally destroy unborn human life; which is why the Examiner at the time offered the point "Clinicians fear that they will breach their ethical and legal duty to preserve the life of this unborn child if they remove life support from this woman. Indeed, the Protection of Life During Pregnancy Act exposes clinicians to a maximum term of 14 years imprisonment if they “intentionally destroy unborn human life”.". And the POLDPA obviously does not rely on the 8th; it's an independent piece of legislation which gives effect to the States obligation under the 8th, but if the 8th were repealed, the POLDPA would still be law (until someone decided to repeal that as well).

After reading that, I'm wondering did you bother to read the judgment in the case at all? Your post is littered with errors, beginning with the name of the plaintiff (it was P.P.) Several of the doctors who were directly involved in N.P.'s care were mentioned in the judgment and their testimony summarised. The POLDP Act, however wasn't mentioned, and the 8th Ammendment was mentioned, and discussed in detail, both wrt the case in question and how it applied in other relevant cases. As to you assertion that it is not a complicated piece of 'legislation', there was even disagreement as to what it means, and the nuances of the English and Irish language version. This was not the first, and won't be the last case before the courts where the nuances of the 8th are argued!
As to who brought the legal concern to light, but I have yet to see lawyers wandering the wards of our hospitals, and as they have no right to confidential patient records unless consulted, it would seem to be beyond reasonable doubt that it was the clinicians who first raised the legal question.

recedite

There seems to be a bit of flip flopping going on here about whether the doctors were engaging in "experimental medicine" or whether they wanted to end the life support.

It was actually the brain specialists in the Dublin hospital who only had the patient for a short time, and were unsure about the legal situation of the foetus after they declared her to be brain dead. Which is only to be expected, as it is not their area of expertise. So they sent her back to the maternity wing of the hospital in the midlands, where she had been before the tragic fall.

It was Dr. Mortell in the maternity hospital who was then accused of engaging in experimental medicine by a different doctor. By a Dr. Colreavy who wanted to switch off the machine.

From the judgement;

Dr. David Mortell is the obstetrician who dealt with N.P. and her unborn child. While he had provided a report, it was simply intended to address what he was doing at any particular moment in time and what might happen perhaps in the future. Having heard the evidence of Dr. Colreavy,he was now aware of the “dreadful state that the patient is in”. The mother’s temperature is going up, there is infection and her blood pressure is difficult to control. He now had great concern about her somatic care and about her chances of survival. Since he wrote his original report there had been an ongoing evolving situation which was getting worse day by day. Asked if he believed in the light of Dr. Colreavy’s evidence of deterioration in the mother’s condition that somatic support remained a viable option, he replied that he did not.

Mortell gave no indication that he had any intention of ending the "experiment" until he was dragged into the courtroom, where he performed his own u-turn.

The real issue in that case was the question; at what stage do you stop imposing active life support on a dying person who is suffering? The question was not specific to a foetus, it could equally be applied to an adult.
If people want to take a pro-choice view, and say the foetus should have no rights whatsoever, then the answer (in that specific case only) would have been to disregard the foetus, and to discontinue life support as soon as the mother was declared brain dead. But that only side-steps the real issue.

Absolam

Deleted User wrote: »

Cool. My position on the 8th Amendment is simple and above. I don't think that the constitution is a suitable place for difficult and changeable legislation concerning an extremely nuanced issue.

That's the point of it being in the Constitution; whether or not someone finds it difficult, putting it in the Constitution makes it not changeable, other than by referendum. It makes it the least changeable legislation in the State.

Deleted User wrote: »

No smokescreen here. I'm quite open about it.

And that would not be an argument for removing the Amendment from the Constitution because it's too difficult to make it work properly, that would be an argument for removing the Amendment from the Constitution because it prevents access to abortion.

Absolam

ProfessorPlum wrote: »

After reading that, I'm wondering did you bother to read the judgment in the case at all? Your post is littered with errors, beginning with the name of the plaintiff (it was P.P.)

Duly amended Though that seems to be the only error you've pointed out, so littered might be overstating things!

ProfessorPlum wrote: »

Several of the doctors who were directly involved in N.P.'s care were mentioned in the judgment and their testimony summarised.

I didn't say they weren't mentioned (or that their notes weren't referred to), only that the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay. None of the Doctors engaged in the care of the unborn child at time, presented testimony, did they? And If the Doctors who did testify presented what they read from the other Doctors notes or were told by those Doctors (which they did), would that not be hearsay?

ProfessorPlum wrote: »

The POLDP Act, however wasn't mentioned, and the 8th Ammendment was mentioned, and discussed in detail, both wrt the case in question and how it applied in other relevant cases. As to you assertion that it is not a complicated piece of 'legislation', there was even disagreement as to what it means, and the nuances of the English and Irish language version. This was not the first, and won't be the last case before the courts where the nuances of the 8th are argued!

I don't think I said it was mentioned in the case, did I? I said the Examiner offered an opinion on it, and that the Doctors had no reason to have any legal concerns based on the 8th since it placed them under no obligation, and subjected them to no penalty. Unlike the POLDPA, which does.
And discussing the specific meaning of the wording doesn't make it complicated; it just means there can be more than one interpretation of a simple phrase, which is why Judges rule on these things in the first place.

ProfessorPlum wrote: »

As to who brought the legal concern to light, but I have yet to see lawyers wandering the wards of our hospitals, and as they have no right to confidential patient records unless consulted, it would seem to be beyond reasonable doubt that it was the clinicians who first raised the legal question.

Yep, I'm pretty sure I agreed that it was a Doctor who had legal concerns, but as I said I don't think we can say where those legal concerns came from; it's neither in the transcript nor the reporting.

Absolam

oscarBravo wrote: »

If I was arguing that, you might have a point. On the contrary, I would argue to repeal the 8th because it's a blunt instrument that makes it difficult to frame laws with the level of nuance required.

In fairness, you did say

oscarBravo wrote: »

The constitution is no place for complicated legislation. When people argue against repealing the 8th amendment with the question "what would you replace it with?" the answer is simple: legislation.

So you can see why one might think you are arguing that.
But I wold say; it is simple, and makes it difficult to frame legislation with a level of nuance required to introduce infringements on the right to life of the unborn. And that's what it's for.

oscarBravo wrote: »

A simplistic article like 40.3.3 that grants a blanket right to life of the unborn has no other purpose than to require the state to criminalise abortion. The result is legislation like the POLDPA. We've already seen numerous problems resulting from that Act, and those problems are notoriously hard to fix because any fixes would likely run into the brick wall that is 40.3.3.

I disagree, and I'd say simply that demonstrates the point of view you approach it from rather than the Constitutional provision itself. The article has no other purpose than to protect the life of the unborn; protecting their lives requires the State to criminalise abortion. Nor do I agree we've already seen numerous problems resulting from that Act; like any piece of legislation we've seen Court cases and jurisprudence arise from that. Nor have any problems been particularly hard to fix, have they? For instance, how many Court cases turning on the POLDPA have been appealed, or had to be referred to the Supreme Court?

oscarBravo wrote: »

There are two possible answers: make the prohibition on abortion in the Constitution more nuanced, or remove it and deal with the issue in legislation where it belongs. I'm arguing for the latter.

Oh, I reckon there are tons of possible answers, those are just the two that work best for your argument. We could, for instance, keep the Amendment in place, and alter the POLDPA should it turn out to be necessary.

oscarBravo wrote: »

Calling it a smokescreen suggests that those of us who believe women should have a right to choose whether or not to be pregnant are in some way coy about that belief, and feel the need to disguise it in some way.

No, it suggests those who want to bring in abortion are aware that such a notion will meet with opposition, and convincing people to remove the 8th on the pretext that it's not about introducing abortion but bringing bringing clarity to the legislation, will make it easier to introduce abortion.

oscarBravo wrote: »

Let me be crystal clear: I believe that a woman should have a right to choose whether or not to be pregnant. An unsubtle "right to life of the unborn" clause in the Constitution removes that right, and does so purely on the basis that a non-sentient clump of cells has a right to life that exceeds a woman's right to bodily integrity.

You're saying you believe they should have a right, but you claim the Amendment removes that right; so you obviously know it doesn't. The 8th means such a right can never be conferred in the first place, and you can't remove something that wasn't ever there.

oscarBravo wrote: »

If you want to talk about smokescreens, we can discuss the repeated use of the word "baby" to describe non-sentient clumps of cells, for the specific purpose of clouding the issue.

You can if you like, but all you're really saying is both sides use terms the other feels are pejorative to their positions. Both would like the discussion to be framed in ways that will cause people to be more sympathetic towards what they want (non-sentient clumps of cells isn't exactly a fulsome description of what we're talking about, but terminating a non-sentient clumps of cells definitely sounds more palatable than killing a baby...). It should be pretty obvious at this stage that neither side is going to get to control the language being used in the debate.

ProfessorPlum

Absolam wrote: »

Duly amended Though that seems to be the only error you've pointed out, so littered might be overstating things!.

Try reading the judgement - you're sure to find some more. I even went to the bother of pointing them out to you, but I haven't the time, nor frankly could I be arsed to help you further.

Good luck out there in the big bad world. I imagine you don't interact with it much.

Absolam

ProfessorPlum wrote: »

Try reading the judgement - you're sure to find some more. I even went to the bother of pointing them out to you, but I haven't the time, nor frankly could I be arsed to help you further.

Ah.. I thought I corrected those misapprehensions in the part of my post that you didn't quote. To save you worrying about helping me further, here's a quick recap.
"the doctors who were directly involved in N.P.'s care were mentioned in the judgment and their testimony summarised"
I never said they weren't, only that they didn't give testimony before the court that was mentioned in the transcript of the judgement.
"The POLDP Act, however wasn't mentioned, and the 8th Ammendment was mentioned"
I didn't say that the POLDPA was mentioned, or that the 8th Amendment wasn't, only that any legal concern of the Doctors would neccasarily be founded on the POLDPA, not the 8th.
"As to you assertion that it is not a complicated piece of 'legislation', there was even disagreement as to what it means"
Not complicated is not the same as not debatable.
"it would seem to be beyond reasonable doubt that it was the clinicians who first raised the legal question"
Which does not mean that their raising it wasn't as a result of information provided by their legal team.

ProfessorPlum wrote: »

Good luck out there in the big bad world. I imagine you don't interact with it much.

Thanks. I'm happy to say that what you imagine has no bearing on reality

Absolam

Absolam wrote: »

That's the point of it being in the Constitution; whether or not someone finds it difficult, putting it in the Constitution makes it not changeable, other than by referendum. It makes it the least changeable legislation in the State.

Well once again, isn't that exactly the point!?

The public opinion on the matter is and has been extremely intricate, nuanced, and from opinion polls across the state over the last 20 years appears to be extremely changeable and fluid.

The legislation is unable to accurately react and adjust to reflect this opinion because of the inflexible rule that it must inherit from.

Absolam wrote: »

And that would not be an argument for removing the Amendment from the Constitution because it's too difficult to make it work properly, that would be an argument for removing the Amendment from the Constitution because it prevents access to abortion.

See above for the argument against having it in the Constitution. Same argument that I've been making the whole time!

Absolam

Deleted User wrote: »

Well once again, isn't that exactly the point!?
The public opinion on the matter is and has been extremely intricate, nuanced, and from opinion polls across the state over the last 20 years appears to be extremely changeable and fluid.

Public opinion is generally changeable and fluid, especially if looked at over 20 years. That's why the Article was placed in the Constitution; so it couldn't be changed on a whim, and it's why it should stay in the Constitution.

Deleted User wrote: »

The legislation is unable to accurately react and adjust to reflect this opinion because of the inflexible rule that it must inherit from.

It's not supposed to accurately react and adjust to reflect this opinion; it's supposed to remain unchanged unless there is an undeniable overwhelming desire to change it from the majority of the electorate. If that ever is the case, politicians will be falling over themselves to be the ones that propose a referendum, because it will guarantee their re-election.

Deleted User wrote: »

See above for the argument against having it in the Constitution. Same argument that I've been making the whole time!

Your argument against having it in the Constitution is the same as the argument for having it in the Constitution I'm afraid. Making it very very difficult to change is the best reason for putting anything in the Constitution; to get there it must have huge support from the people, and to be taken out it must have the same.

But really, if it were taken out of the Constitution, would you accept the exact same provisions in legislation? Or would you want to see somewhat different provisions, which reflect what you consider to be current 'difficulties and nuances', provisions which would not be possible to have with that Article in the Constitution? I suspect the latter rather than the former, which brings you back to what I said; it's not an argument for removing the Amendment from the Constitution because it's too difficult to make it work properly, it's an argument for removing the Amendment from the Constitution because it prevents access to abortion.

Talk me through that logic.

Is it 'Laws that we feel might not accurately represent the will of the people should be pushed up to the Constitution so as to make them more difficult to change'?

Absolam

Deleted User wrote: »

Talk me through that logic.
Is it 'Laws that we feel might not accurately represent the will of the people should be pushed up to the Constitution so as to make them more difficult to change'?

Do you really think that's the logic? Or do you think that presenting a nonsensical notion instead somehow furthers your own point of view? I have to say it doesn't seem to do so...

If it were thought something might not represent the will of the people, what reason would there be to put it to a referendum? If it's not the will of the people it won't pass. Unlike the 8th Amendment.

Still, Cearbhall Ó Dálaigh said "Constitutional rights are declared, not alone because of bitter memories of the past, but no less because of the improbable but not to be overlooked perils of the future". Which is to say, the logic is that placing such rights beyond ordinary legislative amendment safeguards them from the vagaries of politics and the fluctuations of opinion.

I asked you to talk me through the logic and explained what I read it as. You could have talked me through the logic and said no if I was wrong (which you suggest).

Could you talk me through the logic of what you've suggested please? About how the nuance of the situation is an argument for having it the Constitution not against. Your logic behind your suggestion would be superb.

Thanks

Absolam

Deleted User wrote: »

I asked you to talk me through the logic and explained what I read it as. You could have talked me through the logic and said no if I was wrong (which you suggest).

Nah, I don't think so; I don't think you read it like that, I think you read it, and decided you could portray it like that in order to deride it. You could have read it and engaged with what I actually said, but you didn't; you made something up instead.

Deleted User wrote: »

Could you talk me through the logic of what you've suggested please? About how the nuance of the situation is an argument for having it the Constitution not against. Your logic behind your suggestion would be superb. Thanks

Sure. Though I didn't say the nuance of the situation is an argument for having it the Constitution not against; you made that up as well.
The logic behind placing rights in the Constitution (which is not a suggestion, we do it already) is that placing such rights as are made Constitutional by the will of the people (as in the case of the 8th Amendment) beyond ordinary legislative amendment safeguards them from the vagaries of politics and the fluctuations of opinion (that may sound a little familiar). So intricate, nuanced, extremely changeable and fluid public opinions cannot alter those rights without going through the same process as established them.

Nice one.

Time to ask the people again so imo.

The process that would be required to make that change is a referendum and a referendum only.

I have no problem asking the people again. And respecting the will of the people on the matter.

A referendum regarding the 8th gives us the opportunity to test assumptions.

It would test my assumption that public opinion would agree that it is time to remove it and adequately legislate for access to abortion. Likewise, the assumption that the public at large would like to keep the amendment.

Making available the opportunity to test those assumptions is in both a pro and anti choice parties interests surely? If we do indeed both respect the will of the people and their ability to forge and edit the guiding document of our state.

I'd imagine both sides of the debate would be happy to avail of the chance to vindicate their position if that was the case.

What would be eminently undemocratic and disrespectful of that guiding document would be if people were against offering The People the chance to update or vindicate it.

It would open some very interesting questions if people wanted to rely on the document to vindicate a position (the people have spoken) but be against the proposition of asking the people to speak again.

volchitsa

Deleted User wrote: »

Nice one.

Time to ask the people again so imo.

The process that would be required to make that change is a referendum and a referendum only.

I have no problem asking the people again. And respecting the will of the people on the matter.

A referendum regarding the 8th gives us the opportunity to test assumptions.

It would test my assumption that public opinion would agree that it is time to remove it and adequately legislate for access to abortion. Likewise, the assumption that the public at large would like to keep the amendment.

Making available the opportunity to test those assumptions is in both a pro and anti choice parties interests surely? If we do indeed both respect the will of the people and their ability to forge and edit the guiding document of our state.

I'd imagine both sides of the debate would be happy to avail of the chance to vindicate their position if that was the case.

What would be eminently undemocratic and disrespectful of that guiding document would be if people were against offering The People the chance to update or vindicate it.

It would open some very interesting questions if people wanted to rely on the document to vindicate a position (the people have spoken) but be against the proposition of asking the people to speak again.

My understanding is that the original (declared) motivation behind putting the amendment into the constitution was not so much to prevent any future change in society's general view of the question as to prevent a militant minority from using another part of the constitution, specifically the rights to privacy, to bring in a right to abortion against the majority's wishes.

That was what they felt had been done with Roe-Wade in the USA and it was felt there could potentially be a risk of a similar ruling at some future point in Ireland.

(This was despite the fact that such a militant minority didn't appear to exist at all in Ireland, since there was exactly zero pressure for such a court case in Ireland then. Which is of course why it's said with some justification that the 8th amendment is in fact what brought legal abortion into Ireland.)

So since the alleged reason behind the amendment was to prevent a minority firm enforcing its will on the majority, it makes perfect sense for there to be a test that it is the majority actually still wants from time to time.

Once a generation would be fair enough, IMO, so that people of childbearing age get at least one chance to express themselves on something that has a huge effect on their personal lives.

Absolam

Deleted User wrote: »

Nice one. Time to ask the people again so imo.
The process that would be required to make that change is a referendum and a referendum only. I have no problem asking the people again. And respecting the will of the people on the matter. A referendum regarding the 8th gives us the opportunity to test assumptions. It would test my assumption that public opinion would agree that it is time to remove it and adequately legislate for access to abortion. Likewise, the assumption that the public at large would like to keep the amendment.

You seem to be look to test two at odds assumptions there; that public opinion would agree that it is time to remove it and that the public at large would like to keep the amendment. Are you offering both for the sake of completeness, or do you think the two aren't mutually exclusive?

Deleted User wrote: »

Making available the opportunity to test those assumptions is in both a pro and anti choice parties interests surely? If we do indeed both respect the will of the people and their ability to forge and edit the guiding document of our state.

That's a very very poor assumption, don't you think? How is offering an opportunity to remove the right to life of the unborn in the interests of the pro life side of the debate? I would think it's very much in pro life interests to prevent even the discussion of a possibility of a referendum. You may be mixing up Pro Life with Pro Referenda?

Deleted User wrote: »

I'd imagine both sides of the debate would be happy to avail of the chance to vindicate their position if that was the case.

That's a great imagination you have so

Deleted User wrote: »

What would be eminently undemocratic and disrespectful of that guiding document would be if people were against offering The People the chance to update or vindicate it.

It might be undemocratic (though if it is, so is not offering the people the chance to update or vindicate every other Article of the Constitution and there's not a lot of people campaigning for that), but it would be Pro Life...

Deleted User wrote: »

It would open some very interesting questions if people wanted to rely on the document to vindicate a position (the people have spoken) but be against the proposition of asking the people to speak again.

I think most Pro Life positions rely more on the notion that it's a person / soul etc etc therefore ought to have the right to life. I don't think the fact that most people agreed with that position to such a degree that it was placed in the Constitution is the foundation of that position; it's the defense of it. And having created that defense, I don't see anyone who does think the person should have that right is likely to give up that defense in order to satisfy a sense of democracy. Do you?

ProfessorPlum

Absolam wrote: »

In fact, the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay.



The POLDPA is the legislative environment that gave the Doctors legal concerns, and it doesn't rely on either the Constitution or the 8th Amendment. Neither the Constitution nor the 8th places any obligation on the Doctors in this regard, nor does it express a penalty for contravening it.

ProfessorPlum wrote: »

After reading that, I'm wondering did you bother to read the judgment in the case at all? Your post is littered with errors, beginning with the name of the plaintiff (it was P.P.) Several of the doctors who were directly involved in N.P.'s care were mentioned in the judgment and their testimony summarised. The POLDP Act, however wasn't mentioned, and the 8th Ammendment was mentioned, and discussed in detail, both wrt the case in question and how it applied in other relevant cases. As to you assertion that it is not a complicated piece of 'legislation', there was even disagreement as to what it means, and the nuances of the English and Irish language version. This was not the first, and won't be the last case before the courts where the nuances of the 8th are argued!
As to who brought the legal concern to light, but I have yet to see lawyers wandering the wards of our hospitals, and as they have no right to confidential patient records unless consulted, it would seem to be beyond reasonable doubt that it was the clinicians who first raised the legal question.

Absolam wrote: »

Duly amended Though that seems to be the only error you've pointed out, so littered might be overstating things!
I didn't say they weren't mentioned (or that their notes weren't referred to), only that the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay. None of the Doctors engaged in the care of the unborn child at time, presented testimony, did they? And If the Doctors who did testify presented what they read from the other Doctors notes or were told by those Doctors (which they did), would that not be hearsay?

I don't think I said it was mentioned in the case, did I? I said the Examiner offered an opinion on it, and that the Doctors had no reason to have any legal concerns based on the 8th since it placed them under no obligation, and subjected them to no penalty. Unlike the POLDPA, which does.


And discussing the specific meaning of the wording doesn't make it complicated; it just means there can be more than one interpretation of a simple phrase, which is why Judges rule on these things in the first place.
Yep, I'm pretty sure I agreed that it was a Doctor who had legal concerns, but as I said I don't think we can say where those legal concerns came from; it's neither in the transcript nor the reporting.

Absolam wrote: »

Ah.. I thought I corrected those misapprehensions in the part of my post that you didn't quote. To save you worrying about helping me further, here's a quick recap.
"the doctors who were directly involved in N.P.'s care were mentioned in the judgment and their testimony summarised"
I never said they weren't, only that they didn't give testimony before the court that was mentioned in the transcript of the judgement.
"The POLDP Act, however wasn't mentioned, and the 8th Ammendment was mentioned"
I didn't say that the POLDPA was mentioned, or that the 8th Amendment wasn't, only that any legal concern of the Doctors would neccasarily be founded on the POLDPA, not the 8th.
"As to you assertion that it is not a complicated piece of 'legislation', there was even disagreement as to what it means"
Not complicated is not the same as not debatable.
"it would seem to be beyond reasonable doubt that it was the clinicians who first raised the legal question"
Which does not mean that their raising it wasn't as a result of information provided by their legal team.
Thanks. I'm happy to say that what you imagine has no bearing on reality

Ok, I know I'm probably wasting my time, but I'll just clarify some of the errors for you.

1. The title of the case, as already discussed.

2. The assertion that "In fact, the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay. "

Except the judgement does have testimony from her treating doctors, and testimony from her doctors was widely reported on in the press at the time (which might be considered hearsay to 3rd party readers, but was actual evidence in court.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/fb8a5c76857e08ce80257dcb003fd4e6?OpenDocument

Dr. David Mortell is the obstetrician who dealt with N.P. and her unborn child. While he had provided a report, it was simply intended to address what he was doing at any particular moment in time and what might happen perhaps in the future. Having heard the evidence of Dr. Colreavy, he was now aware of the “dreadful state that the patient is in”. The mother’s temperature is going up, there is infection and her blood pressure is difficult to control. He now had great concern about her somatic care and about her chances of survival. Since he wrote his original report there had been an ongoing evolving situation which was getting worse day by day. Asked if he believed in the light of Dr. Colreavy’s evidence of deterioration in the mother’s condition that somatic support remained a viable option, he replied that he did not.
He honestly did not think there was any hope of the baby surviving with the “storm” that is going on around it and would give up all hope for the baby. The mother in the instant case has an open wound in her head, she has four or five tubes out of her body and is deteriorating rapidly. He and his team would be prepared now to withdraw somatic treatment in consultation and in liaison with the family members.

He was cross-examined as to why he had changed his view as to the prospects for the unborn child from the more optimistic tone of his earlier report. He answered that the infection which has become evident over the past few days “seems to be taking over”. He stated that if you have a dead brain that is infected it will be a constant seat of infection. He said that the brain itself is “liquefying” and thus pouring toxins into the blood stream. As this goes on, the deterioration of the mother’s condition will undoubtedly affect the baby and he did not believe that its viability would continue. He believed that “we have all the signs of the perfect storm and it does not seem to be improving”.

Finally, evidence was given by Dr. Stephen McNally, consultant neurosurgeon and national lead in neuro-oncology in the hospital to which N.P. had been transferred in Dublin in which he set out how on arrival she was incubated and ventilated. Her Glasgow coma score was 3/15 and her pupils were bilaterally fixed and dilated.She was taken directly to theatre from the A & E department at which time a right frontal bactiseal external ventricular drain was inserted. Intra operatively the cerebro spinal fluid was noted to be under high pressure.

On the 3rd December, 2014 a cerebral angiogram was performed which confirmed no intracranial flow to the anterior circulation and the basilar artery was narrow and displaced without any flow into the posterior cerebral arteries. These changes were consistent with brain death.

Having had to deal with the family of N.P., he found their frustrations and their humanity both touching and humbling. While he had seen some dreadful things in neurosurgery he had never seen this. It was very difficult not to be able to follow the wishes of the family because of uncertainty as to the legal standing with regard to the unborn child. Legal advice had been sought but no opinion in writing had been received prior to the time for a transfer back to the hospital outside Dublin. He believed that, having regard to N.P.’s condition when admitted to hospital in Dublin, that she was “probably gone” by the time she arrived in their door.


3. That the legal concern was founded on the POLDP act, and not the 8th amendment.

Skip to the part of the judgment entitled 'Legal Principals', where, unsurprisingly, the legal principals of the case are discussed. It is almost entirely taken up with discussion of the 8th amendment, whereas the POLDP act is not mentioned. Not once. Although not conclusive, it would be strange then if it was the POLDP act that gave rise to the legal concern.

In fact, also reported in the news at the time was the testimony of the treating neurosurgeon, where he described, with other clinicians of trying to work out the 8th amendment. Not the legislation, but the 8th. So, nothing to support that it was the POLDP act that caused the concern.


http://www.independent.ie/irish-news/courts/pregnant-womans-life-support-should-be-turned-off-court-told-30860620.html
A leading neurologist, who cannot be named as he works at a hospital which cannot be identified under the terms of a court order, said he and colleagues had sought legal advices from authorities two days before the woman was declared dead on December 3, but none was forthcoming.
"We are not lawyers. We will, like all clinicians, err on the side of caution," said the consultant.
"We were three clinicians trying to figure out the eighth amendment."

4.That we don't know if it was the lawyers or the doctors who first raised the legal concern.

Now I've already explained to you why it couldn't have been the lawyers, owing to the fact that they would have not had access to the patients records. But if you look again at the report of the testimony of the neurosurgeon, it will confirm that it was he and colleagues who sought legal advice. Perhaps the other colleagues who were trying to work out the constitution?

5. That the 8th amendment is not complicated.

Well, here I wil bow to your superior power of thought, as I and everyone else it seems, finds the 8th a very difficult piece of law. So much so that barristers and judges spend days trying to work out exactly what it means.


Although I am probably wasteing my time here, because if Jesus Christ himself appeared to you and swore the facts, you still probably wouldn't be swayed from your own erroneous opinion.

recedite

ProfessorPlum wrote: »

In fact, also reported in the news at the time was the testimony of the treating neurosurgeon, where he described, with other clinicians of trying to work out the 8th amendment. Not the legislation, but the 8th. So, nothing to support that it was the POLDP act that caused the concern.


http://www.independent.ie/irish-news/courts/pregnant-womans-life-support-should-be-turned-off-court-told-30860620.html
A leading neurologist, who cannot be named as he works at a hospital which cannot be identified under the terms of a court order, said he and colleagues had sought legal advices from authorities two days before the woman was declared dead on December 3, but none was forthcoming.
"We are not lawyers. We will, like all clinicians, err on the side of caution," said the consultant.
"We were three clinicians trying to figure out the eighth amendment."

They were neurosurgeons, and had little or no expertise in obstetrics or the legal implications of the 8th amendment. That's why they sent the brain dead woman with the live foetus back to the obstetrician, instead of switching off the life support.
It seems to have been a very sensible approach.

volchitsa

recedite wrote: »

They were neurosurgeons, and had little or no expertise in obstetrics or the legal implications of the 8th amendment. That's why they sent the brain dead woman with the live foetus back to the obstetrician, instead of switching off the life support.
It seems to have been a very sensible approach.

In other countries a phone call to the obstetricians would have been enough to ascertain that previous medical evidence pointed to the impossibility of a healthy baby ever being born given the circumstances (not only the time left before viability but also the treatments used to try to save the woman's life).

Do you really think it was a good thing to have to physically send the woman back, when it was clear that no-one thought the baby could live, they just didn't want to be the ones to take the legal responsibility of turning off the life support?


Subsidiary question : was she really sent to her initial maternity department? It would hardly be suitable to have a dead woman gestating in the midst of all the live ones, surely?
Or perhaps she was actually in the general ICU, but if so, wouldnt it have been better to have kept her in Dublin?

Absolam

ProfessorPlum wrote: »

Ok, I know I'm probably wasting my time, but I'll just clarify some of the errors for you.
1. The title of the case, as already discussed.

Sure... I don't think I disputed the title of the case? I certainly don't recall discussing it. If you mean my error in referring to P.P as N.P, I'm sure you can accept we all make mistakes (and I did amend it); particularly when you yourself took my reference to "the Doctors engaged in the care of the unborn child at the time" and engaged with it as '"the doctors who were directly involved in N.P.'s care", which is a slightly more egregious rewriting than misplacing one initial...

ProfessorPlum wrote: »

2. The assertion that "In fact, the judgement transcript oddly doesn't have any testimony from any of the Doctors engaged in the care of the unborn child at time, so all we really have is is hearsay. "
Except the judgement does have testimony from her treating doctors, and testimony from her doctors was widely reported on in the press at the time (which might be considered hearsay to 3rd party readers, but was actual evidence in court.

Well, I certainly agree that testimony from doctors was reported in the press at the time.
In terms of the testimony presented in the transcript;
Dr Brian Marsh give testimony; the transcript doesn't say he was one of the Doctors engaged in the care of the unborn child at the time, but that he had seen the mother before giving testimony.
Dr. Peter Boylan also gave testimony, the transcript doesn't say he was one of the Doctors engaged in the care of the unborn child at the time, but does say he had reviewed the records, and the notes of the Doctors involved which included the concerns of Doctors in the Dublin hospital not currently caring for the patient that they were concerned not to do anything that would “get them into trouble from a legal point of view and were awaiting legal advice”.
Dr. Timothy Lynch gave testimony, the transcript doesn't say he was one of the Doctors engaged in the care of the unborn child at the time either.
Dr. Frances Colreavy gave testimony, the transcript doesn't say she was one of the Doctors engaged in the care of the unborn child at the time, but does say she had examined the somatically sustained corpse of the mother.
Dr. Peter McKenna gave testimony; the transcript doesn't say he was one of the Doctors engaged in the care of the unborn child at the time either.
Dr. David Mortell gave testimony, and transcript says he dealt with N.P. and her unborn child (not that he was dealing with). That he wasn't at that point one of the Doctors engaged in the care of the unborn child at the time (which was my point, if you recall) is indicated by the past tense used (dealt) and the fact that he wasn't up to speed on N.P.s condition; the transcript says 'Having heard the evidence of Dr. Colreavy, he was now aware of the “dreadful state that the patient is in”'.
Finally, testimony was given by Dr. Stephen McNally, the transcript doesn't say he was one of the Doctors engaged in the care of the unborn child at time either.

Have I missed anyone?
If it helps things move along (and I am conscious that you haven't the time, nor frankly could you be arsed to help me further), I'll happily stipulate that a less specific reading of the transcript could leave room for someone to conclude that one or more of the Doctors engaged in the care of the unborn child at the time was present and gave testimony. And, of course, that my assertion wasn't that no testimony was given by any Doctors who were directly involved in N.P.'s care at some point.

ProfessorPlum wrote: »

3. That the legal concern was founded on the POLDP act, and not the 8th amendment. Skip to the part of the judgment entitled 'Legal Principals', where, unsurprisingly, the legal principals of the case are discussed. It is almost entirely taken up with discussion of the 8th amendment, whereas the POLDP act is not mentioned. Not once. Although not conclusive, it would be strange then if it was the POLDP act that gave rise to the legal concern.

And (again) I never said it was mentioned in the case, did I? I said the Examiner offered an opinion on it, and that the Doctors had no reason to have any legal concerns based on the 8th since it placed them under no obligation, and subjected them to no penalty. Unlike the POLDPA, which did.

ProfessorPlum wrote: »

In fact, also reported in the news at the time was the testimony of the treating neurosurgeon, where he described, with other clinicians of trying to work out the 8th amendment. Not the legislation, but the 8th. So, nothing to support that it was the POLDP act that caused the concern.

Other than that it was also reported in the news? After all, the Examiner at the time said "Clinicians fear that they will breach their ethical and legal duty to preserve the life of this unborn child if they remove life support from this woman. Indeed, the Protection of Life During Pregnancy Act exposes clinicians to a maximum term of 14 years imprisonment if they “intentionally destroy unborn human life”. Whereas, as I've said, the clinicians had no obligation under the 8th, nor does it express a penalty for their non compliance. If they were concerned about it, it doesn't seem they had any reason to be....

ProfessorPlum wrote: »

4.That we don't know if it was the lawyers or the doctors who first raised the legal concern. Now I've already explained to you why it couldn't have been the lawyers, owing to the fact that they would have not had access to the patients records. But if you look again at the report of the testimony of the neurosurgeon, it will confirm that it was he and colleagues who sought legal advice. Perhaps the other colleagues who were trying to work out the constitution?

And whilst I agreed with Oldrnwisr some time ago that it appears that one of the doctors raised the point that there could be legal issues with discontinuing somatic support, that doesn't preclude the possibility that their raising it was as a result of information provided by their legal team. Does it?

ProfessorPlum wrote: »

5. That the 8th amendment is not complicated. Well, here I wil bow to your superior power of thought, as I and everyone else it seems, finds the 8th a very difficult piece of law. So much so that barristers and judges spend days trying to work out exactly what it means.

And just as not complicated is not the same as not debatable, so also not complicated is not the same as not difficult.

ProfessorPlum wrote: »

Although I am probably wasteing my time here, because if Jesus Christ himself appeared to you and swore the facts, you still probably wouldn't be swayed from your own erroneous opinion.

Well, I might inquire as to his sources and at least give them the once over before arriving at an opinion...... erroneous or not.

recedite

volchitsa wrote: »

Do you really think it was a good thing to have to physically send the woman back, when it was clear that no-one thought the baby could live, they just didn't want to be the ones to take the legal responsibility of turning off the life support?
Subsidiary question : was she really sent to her initial maternity department? It would hardly be suitable to have a dead woman gestating in the midst of all the live ones, surely?
Or perhaps she was actually in the general ICU, but if so, wouldnt it have been better to have kept her in Dublin?

It would not really be within the competence of the brain specialists to pronounce on the viability of the foetus. So I don't think it would be fair to impose that decision on them, and indeed nobody did try to impose it on them, except possibly the dead woman's family.

To answer your first question; if there was some doubt, then the woman's obstetrician should have visited the ward in the Dublin hospital. But in this case it would not have made any difference if Dr. Mortell had made that trip because he was obviously keen to maintain the life support as long as it was in any way feasible, and way beyond that too.

AFAIK the undead woman and the foetus were then kept in a private room back at the original hospital, while hooked up to the machine.