Frances Fitzgerald (Dublin Mid West, Fine Gael)

I agree with Deputy Ó Caoláin it is of the utmost importance that regard should be given to the views of the child prior to the HSE taking steps under section 23ND, which includes provision where a child requires medical treatment while subject to a special care order. This Bill amends the Child Care Act 1991, where it is provided in section 3(2)(b)(ii) that the HSE in the performance of its functions to promote the welfare of children "shall, in so far as is practicable, give due consideration having regard to his age and understanding to the wishes of the child."

The point raised by Deputy Kelleher is very interesting and describes a situation that is arising more frequently, not only because of children who do not have English as a first language but also because of the sizeable number of children with speech difficulties. What the Child Care Act would say is that the best interests of the child must be at the centre of decisions. Therefore, if that is the case, the answer to the Deputy's question must be "Yes" and every effort must be made, whatever this implies in terms of interpretation. Whatever effort is needed to ensure that the best interests of the child are considered and that their wishes can be ascertained as far as possible must be made.

Section 3 has the same effect as the proposed amendment. Therefore, what the amendment proposes is already included in the Child Care Act 1991 and it applies to section 23ND. Also, under section 23ND(1)(b) of this Bill, the HSE is charged with promoting the welfare of the child. It states that the HSE should do whatever is reasonable, subject to this Part, to promote the child's health, development or welfare and to protect his or her life, health, safety, development or welfare having regard to all the circumstances of the child.

I addressed this issue of consent in my contribution on the Bill in the Seanad. On Committee Stage in the Seanad, an amendment was brought forward to insert a new subsection (3) in section 23ND, the effect of which is to ensure that any consent to medical treatment, which would have been effective if the provision had not been included, which gives the right to the HSE to consent is still effective. Thus, the HSE's right to consent does not affect the validity of any medical treatment decision which would lawfully be made by any other person, for example, the parents, guardians or the child as appropriate. For those reasons, I do not consider it is necessary to accept the amendment.

I reiterate that the views of the child should be taken into account. It is essential that prior to the HSE taking steps under section 23ND, the wishes of the child are taken into account. This is essentially what the Deputy's amendment proposes, that the HSE should have regard to the views of the child, taking into consideration the child's age and understanding. I assure the Deputy the issue is dealt with and already covered in the legislation.

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