Mr. Tony O'Connor:

Senator Healy Eames asked about the obligation to legislate for the X case. Mr. Justice McCarthy stated in respect of the X case that there was a deficiency and it was up to the Legislature to legislate. The Legislature can abdicate its responsibility and leave it to the courts to decide issues as they arise. However, my personal view is that the Legislature should legislate. Senator Healy Eames also asked about other examples where the Supreme Court may have been critical of non legislating. There are quite a few cases, the most recent being the case involving Roche, in which parties had to go to the High Court and Supreme Court to vindicate their rights. There are many instances. I note the Senator is nodding in agreement.

Although not directed to me, Deputy Flanagan asked if the view of the psychologist in the X case would be sufficient under this legislation. The answer to that question is, "No, because there was only one person involved." If I understood him correctly, Deputy Durkan asked if the obligation to legislate was in contravention of the Supreme Court or if the Legislature takes it upon itself to legislate contrary to what the Supreme Court suggested. That is dangerous territory. I am not sure if the Deputy is advocating that. The Supreme Court is the ultimate arbiter of the Constitution. If the Constitution has been ruled upon by the Supreme Court the Legislature cannot ignore that.

Deputy Mathews, my local representative, referred to the six line recommendation I made as being too wordy. It is only a suggestion. Members may feel free to amend it. I do not believe Deputy Mulherin was overly critical. Deputy Fitzpatrick asked a number of questions. Each case, particularly in terms of negligence and duty of care, what loss will be compensated by doctors and so on, will have to be considered on its own merits. I cannot give a general answer to that question. It is worthy of a good article. I could not understand all of the facts which the Deputy provided but I am more than happy to sit down with him and to advise in relation to each of them. The Deputy will be aware that each case must be looked at on its own merits. As regards the relevancy of this to the heads of the Bill, my understanding is that the heads of the Bill do not deal with negligence and duty of care.

Deputy Creed asked some interesting questions. I will try to address his question on whether, in terms of capacity and under-age, there is a deficit in there being no authorised officer to vindicate the rights of the young mother or unborn child. There is a deficit. I suggested at the beginning of my presentation that the joint committee send out the message that we need legislation to cover capacity and representation for other parties. There are examples in other jurisdictions. The Law Reform Commission report on vulnerable adults and under-age provides examples. The Deputy also referred to the sunset clause provided in other legislation, whereby legislation falls after a specified period.

My answer is that it is a political decision. If members want a sunset clause it is up to them to introduce one. As legislators, they can also decide that the Act is not working as they anticipated. I am putting the onus on them to do that.