Oireachtas Joint and Select Committees

Tuesday, 14 June 2022

Select Committee on Children and Youth Affairs

Assisted Decision-Making (Capacity) (Amendment) Bill 2022: Committee Stage

Photo of Mark WardMark Ward (Dublin Mid West, Sinn Fein)
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I move amendment No. 14:

In page 31, to delete lines 25 to 34.

Section 46 of the Bill amends section 59 of the 2015 Act to remove the option to grant powers to consent to or refuse health treatment from an enduring power of attorney. This means that individuals who wish to confer powers to consent to or refuse health treatment to a trusted supporter, at a time when they are no longer able to communicate their wishes, will have to complete a separate advanced healthcare directive, even if they are also making an enduring power of attorney. This places an additional bureaucratic burden on the relevant person, if that person is required to draft two separate instruments with different requirements for supporting evidence, witnessing, etc.

It is especially burdensome if the relevant person wishes to authorise the same person who holds the enduring power of attorney as his or her designated healthcare representative to consent to or refuse treatment on his or her behalf, in accordance with his or her will and preference. It would also be inconsistent with the approach in the rest of the Act to exclude healthcare treatment from enduring powers of attorney, when decisions about healthcare treatment can be included in any other decision support arrangement under the Act, including decision-making assistance agreements and co-decision-making agreements. It is also inconsistent with the recommendations of the Joint Committee on Children, Equality, Disability, Integration and Youth, which recommends that health and medical treatment decisions should be retained in the scope of an enduring power of attorney. That was pre-legislative recommendation No. 52.

The amendment would also restore the original power which the present Bill proposes to remove from individuals making enduring powers of attorney. We argue that the removal of this power is unnecessary for the Minister's stated purpose of giving clarity to healthcare professionals who have the authority to make a healthcare decision where a person lacks capacity. Sections 12 and 20 of the principal Act clarify that when a person makes a decision-making assistance agreement or a co-decision-making agreement that relates to healthcare, such agreement will be null and void, as respects decisions also covered in an advanced healthcare directive, if that directive enters into force because the person has lost capacity.

Therefore, it is already foreseen in the principal Act that in situations where one or more decision-makers may have authority in respect of powers, for example, to consent or refuse health treatment, the advance healthcare directive and designated healthcare representative take precedence over other instruments. This provides the necessary certainty to healthcare professionals on what instrument to follow in this situation. Therefore, there is no need to remove the option of individual choice from donors of enduring power of attorney, who should be able to continue to confer these powers in their enduring powers of attorney, should they wish to do so, rather than imposing a bureaucratic burden or creating a separate legal instrument with separate witnessing and notification requirements to give effect to their choice.