Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move amendment No. 1:

In page 10, line 1, to delete "This Act" and substitute "Subject to subsection (3), this Act".

The Committee Stage amendments include an entire new Part, Part 8, which provides a legislative framework for advance health care directives. The incorporation of these provisions into the Bill represents the culmination of a process that was agreed by the Government in March 2013.

Amendments Nos. 1 and 2 provide for the Minister for Health to commence the provisions on advance health care directives, in consultation with the Minister for Justice and Equality. It is standard for the commencement order to be made by the Minister who has policy responsibility for a specific Part.

I propose to discuss the remaining amendments in this grouping somewhat out of sequence in order that the consequential amendments will make sense when I discuss them. As amendments Nos. 253 to 264, inclusive, encompass the new Part on advance health care directives, I will discuss these amendments together. An advance health care directive is a statement made by a person with capacity setting out his or her will and preferences regarding treatment decisions that may arise in the future, in the event that he or she lacks the capacity to provide consent to or to refuse those treatments. The Assisted Decision-Making (Capacity) Bill was considered the most appropriate vehicle for providing a legislative framework for advance health care directives. This is an efficient and practical method of consolidating the law in this area. Officials in the Department of Health published the draft general scheme of the advance health care directive provisions in February 2014 and conducted an extensive public consultation process on those provisions.

I will now provide a brief overview of the main provisions relating to advance health care directives encompassed by amendments Nos. 253 to 264, inclusive. Amendment No. 253 defines key words and terms used within the advance health care directive provisions. Amendment No. 254 outlines both the purpose of providing the legislative framework for advance health care directives and the guiding principles that underpin the provisions in Part 8. Amendment No. 255 sets out the various practicalities required to make an advance health care directive - for example, in order to make such a directive a person must be an adult, that is, be over 18 years of age, and must have capacity. In addition, a directive must be made in writing, signed and witnessed accordingly.

Amendment No. 255 also states that in order for a refusal of treatment in an advance health care directive to be considered legally binding, the person must lack capacity to consent to the treatment at the time in question, the treatment being refused must be clearly identified and the specific situations in which the treatment refusal is intended to apply must also be clearlyidentified. These provisions also enable a person to outline specific treatment requests in his or her directive. These requests would not be legally binding but would have to be taken into consideration during the decision-making process relating to that person's treatment.

A directive would not be considered applicable if at the time in question the directive-maker still had capacity, or if the treatment in question and-or the circumstances that had arisen were not broadly recognisable as those specified in the directive. A directive would not be applicable to life-sustaining treatment unless it included a specific statement from the directive-maker to that effect.

Amendment No. 256 also outlines the approaches to be adopted when considering the applicability of advance health care directives during pregnancy. Where the directive does not specifically state that it was intended to apply even if the woman is pregnant, there would be a presumption that treatment would be provided or continued. Where the woman specifically stated in her directive that she wanted her refusal of treatment to apply even if she was pregnant, an application would automatically be referred to the High Court to resolve the case.

In addition, an advance health care directive would not be legally binding where a person’s treatment is regulated under Part 4 of the Mental Health Act 2001 or where a person is the subject of a conditional discharge order under the Criminal Law (Insanity) Act 2006. However, these restrictions would not apply to such individuals where the treatment refusal outlined in the directive pertains to a physical illness, which is not related to the amelioration of that individual's mental disorder.

Amendment No. 257 sets out the effect of an advance health care directive and also includes considerations regarding liability matters. For example, it clarifies that a treatment refusal outlined in a directive would have the same effect and autonomy as a similar refusal made contemporaneously by the directive-maker when he or she had capacity. This amendment offers protection from liability to health care professionals in their dealings with advance health care directives, provided certain conditions are satisfied. Amendment No. 257 also clarifies that these provisions do not pertain in any way to euthanasia or assisted suicide and they do not alter the existing legislation on homicide under which both euthanasia and assisted suicide are illegal.

Amendment No. 258 introduces a mechanism through which an adult with capacity may nominate in his or her directive a legal representative to be involved in the health care decision-making process on his or her behalf, if he or she was to subsequently lose capacity. This nominee is known as the designated health care representative. This amendment also outlines the specific safeguards and conditions that apply in relation to who may or may not be nominated as a designated health care representative.

Amendment No. 259 encompasses the functions and powers of designated health care representatives. Under the provision a designated health care representative will be authorised to ensure that the terms of the advance health care directive are upheld. The decision-maker may, if he or she so wishes, confer additional powers on the designated representative, which would include advising on and interpreting the decision-maker's will and preferences regarding treatment as outlined in the directive. The designated health care representative could also be given the authority to consent to or refuse treatment, which could include life-sustaining treatment on behalf of the directive-maker.

Amendment No. 260 sets out the role of the courts and clarifies that an application can be made to the court to decide whether an advance health care directive is valid and applicable or whether or not a designated health care professional is acting in accordance with his or her relevant powers. Such an application might arise where there is doubt or disagreement about the validity and applicability of a given directive. If the application involves consideration of life-sustaining treatment it will be made to the High Court, rather than the Circuit Court.

Amendment No. 261 relates to offences arising under this Part. It would be an offence for a person to use fraud, coercion or undue influence to force another person to make, alter or revoke an advance health care directive or to knowingly create, falsify, alter or try to revoke a directive on behalf of somebody else without the person's written consent.

Amendment No. 262 clarifies that the Minister for Health will convene a multidisciplinary expert group to assist with the development of a code of practice to provide advice and guidance in relation to the advance health care directive's provisions.

Amendment No. 263 outlines certain practical and procedural matters relating to court applications under the advance health care directive's provisions. Amendment No. 264 clarifies that the Minister for Health will conduct a review of the functioning of the advance health care directive provisions before the fifth anniversary of the commencement of this Part of the Bill.

The remaining amendments in group one are consequential amendments arising as a result of the incorporation of the new Part on advance health care directives. I will deal with these amendments in the order that they appear.