Dr. Simon Mills:

In fact, I can deal with a couple of the questions in a way that I hope will respond to two or three of the Deputies and Senators at once, and I mean no disrespect if I do not deal with each of the questions raised by individual members.

To deal with the first broad rubric which is that of capacity, and that arises from Senator Colm Burke's question, from Deputy Kelleher's question and from Senator van Turnhout's question. Capacity comes in two forms when it comes to medical treatment. The first is one's mental capacity, that is, whether or not one has the cognitive ability to take the decision in question. The second aspect of capacity is one's capacity in terms of age - whether one was of sufficient age such that the law recognises one's ability to take a decision.

To deal with Deputy Kelleher's question first in relation to capacity and legal representation, it is a somewhat complex issue. In fact, capacity arises somewhat earlier in the process than merely heads 6 and 9 because one wonders what is the situation, for example, for a patient who may require a termination in a life-threatening emergency or who may require a termination under head 2 and who lacks capacity. How are such decisions to be taken? They are likely to be taken by reference to the mental capacity legislation, which is due to be introduced. It currently goes by the Title, assisted decision-making (capacity) Bill. It strikes me that a big part of the conversation we are having in so far as it concerns those who are vulnerable in terms of capacity can be answered by the prompt introduction of that legislation.

The question that flowed from that is, "What is the story then about representation when it comes to a review panel?" Again, the answer to that question starts slightly earlier. What is the right of review for a person who lacks capacity? If somebody lacks capacity - it has been suggested, for example, that she might well be somebody to whom head 2 applies and a decision is taken that head 2 does not apply to her - how is it determined whether that person has a right of review and how is that review to be exercised? It is something that the Bill might consider.

In terms of the specifics of representation, it seems that one of two approaches can be taken. The first is that the Bill would provide for a general right of representation such that a person can be represented if the person wishes. The alternative would be that some form of representation is guaranteed. One thinks about, for example, the model under the Mental Health Act 2001 where a person is entitled to a review of his or her involuntary detention and legal representation is appointed for him or her.

In regard to age, which Senator Colm Burke raised and which also touches on Senator van Turnhout's question, the law in relation to age is reasonably straightforward for over 16s. Once one is over 18, one is an adult and there is no issue. One has the right to consent to and to refuse medical treatment. If one is 16 or 17, section 23 of the 1997 Non-Fatal Offences against the Person Act, which is, perhaps, an odd legislative instrument in which to repose the right to consent to treatment but which is where it resides, gives those aged 16 and 17 the right to consent to medical, surgical and dental treatment. It does not give them the right to refuse, which is a significant omission that has been identified by the Law Reform Commission. We simply do not know what the legal position is in the case of under 16s. The Law Reform Commission has called for reform in this area and reform is certainly required. The United Kingdom has adopted a doctrine called Gillick competence, which confers on under 16s a limited right to consent to treatment. There is no such equivalent doctrine here, although the Law Reform Commission has recommended that one be adopted.

To deal with Deputy Seamus Healy's question, the three assertions that he makes are absolutely correct. It is worth observing that the three interpretations he invites us to agree with are also part of the bulwark which is, in effect, erected against many of the so-called floodgates arguments that are advanced, that however this Bill is ever to be interpreted, it is always to be interpreted against the backdrop of Article 40.3.3°.

Lastly, to deal briefly with Deputy Ó Caoláin's question about GP involvement, it may well be that there is a wider role for the general practitioner than that which is currently countenanced by the legislation. A GP is a doctor on the register of medical specialists. He or she is on the register of medical specialists as a general practitioner. The issue that I raise, I suppose, is the requirement that a GP shall be consulted where practicable raises at least the possibility of a bizarre procedural wrangle over the question of whether or not a particular decision is defective because sufficient efforts were not made to contact the GP prior to the termination being carried out. It strikes me that the rationale offered in the Bill, which, ultimately, relates to follow-up care, certainly places an obligation on doctors to liaise with the GP on follow-up care but it is not clear to me that there must be an obligation for certifying doctors to deal with a GP, although there may well be a role for a GP in the certifying process. I hope that answers all the questions that were put.