Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

The Deputies referenced three separate areas in their contribution and I will look to address each of them. Amendment No. 1 seeks to repeal section 85(6) of the 2015 Act. Section 85(6) was originally included to qualify and limit the application of advance healthcare directives in the context of pregnancy. As Deputies will be aware, the provisions regarding advance healthcare directives set out in Part 8 of the Act of 2015 are the responsibility of the Minister for Health. My Department has been in contact with the Department of Health in the preparation of the Bill, including on this proposed amendment. Section 85(6) was inserted into the original 2015 Act to take account of the previous constitutional position regarding the unborn. Following the repeal of the eighth amendment, that position has changed. As was said during the Second Stage debate, I am happy to agree to the deletion of section 85(6) and I have issued instructions to the Office of the Parliamentary Counsel to draft the required provisions. That will allow for formal drafting. I do not propose to accept Deputy Ward's amendment specifically but I will be bringing forward a Government amendment on Report Stage in Dáil Éireann that will fully delete section 85(6).

I will turn to amendments Nos. 2, 19 and 27. There is no disagreement between us on the importance of parity in the operation of advance healthcare directives to physical and other types of healthcare and to mental healthcare. However, this is a technically complex issue. We are looking at it in light of the ongoing work with regard to the entire revision of the Mental Health Act 2001. It is important to look at what is being done here in that context. For that reason, I am not in a position to accept these two amendments that would impact section 85(7) and section 136.

The application of the 2015 Act to persons whose treatment is regulated under Part 4 of the Mental Health Act 2001 is currently being considered by the Department of Health. It is appropriate that full and proper consideration would be given to this within the context of the ongoing reform of the 2001 Act. In particular, that consideration needs to benefit from the policy and clinical expertise on the issue of mental health that exists within the Department of Health.

The Minister for Health and I are in full agreement with Deputies that there is a need for parity of care. I want to be clear that there is no question of the issue not being addressed. The Government will address the gap here but there is a risk of moving too hastily in making the changes and not properly sequencing what we are doing with this legislation and the Mental Health Act. That 2001 Act is going to be radically changed, if not entirely replaced, by the new mental health reform Bill. I note there have been calls for the outright deletion of these provisions. I cannot commit to doing that in what we are addressing today. However, this issue will be addressed within the context of the reform of the 2001 Act.

Deputy Ward asked where we are with respect to the reform of the 2001 Act. My understanding is that work is under way. A general scheme was approved by the Government and published in July 2021. The Office of the Parliamentary Counsel is currently working with the Attorney General's office to progress the completion of the Bill in a timely manner. Pre-legislative scrutiny is being undertaken by the Sub-Committee on Mental Health and it is a priority for the Minister for Health and the Minister of State, Deputy Butler, to get that legislation passed. Last week, the Minister of State, Deputy Rabbitte, and I met with representatives of Mental Health Reform. They clearly articulated the concerns that Deputies Ward and Whitmore have also articulated. We responded with our concerns about acting without the overall understanding of the change that is going to be made to the mental health legislation. The real concern relates to people who are involuntarily detained where there is a risk of them doing harm to somebody else. We must consider to what extent a decision by such people to refuse certain treatments on the basis of an advance healthcare directive will then prevent a clinician undertaking a treatment that lessens the risk of harm to somebody else. That is the central issue. There is a complicated balance of constitutional rights involved. The issue must be addressed but there is a tricky balance to strike. That is why we feel that the analysis and balancing required is best undertaken through the wider understanding of the mental health reforms. Whatever is decided in terms of that balance can then be used to amend the 2015 Act.

We committed to the representatives of Mental Health Reform, and I am happy to commit again, that the Minister of State, Deputy Rabbitte, and I will write to the Minister for Health and seek an on-the-record commitment from the Government to address this particular issue and also to seek an update on the timeline for the delivery of a completed Bill on mental health reform, which I know is very much desired in response to this issue and a whole range of other issues.

Amendment No. 17 addresses an issue that must be looked at in the context of wider reform. The issue here is slightly narrower. While I cannot accept amendment No. 17 today, I will continue to engage with the Departments of Health and Justice on the issue of the application of the Bill to 16- and 17-year-olds. This amendment would allow minors who have reached the age of 16 to make an advance healthcare directive. It would, in effect, allow minors to make decisions regarding their own treatment. The 2015 Act was designed for adults because it related to decisions about property, banking and the like; 16- and 17-year-olds were not considered because they are thought not to have capacity in respect of the commercial issues that much of the Act addresses. It was never envisaged that the 2015 Act would apply to those under the age of 15, having regard to their legal status as minors. That remains the position in most cases. However, I am aware in the context of healthcare that 16- and 17-year-olds have the legal capacity to consent to medical, surgical and dental treatment. Persons under the age of 18 have agency but there is a body of case law that is not entirely clear about the capacity of a 16- or 17-year-old to refuse consent to a treatment if their parent or guardian wishes them to take that treatment. That is another example of the balancing issues involved.

I am wary not to overpromise. The issue here may be a little less broad than the issue we were speaking about in respect of the previous set of amendments. We will go back to the Departments of Health and Justice and see if there is anything that could be brought forward on Committee Stage. I cannot make an absolute commitment at this point. I see the need but a balancing is required. Those 16- and 17-year-olds can consent but there remains a question mark over their capacity to refuse consent, particularly when there is a clash in views between them and their parents.