Lucinda Creighton (Dublin South East, Fine Gael) | Oireachtas source

My final point continues this very important underlying thread. We have all been repeatedly told that we must include the suicide clause, against all of the medical evidence, in order to satisfy the X case test. However, this legislation ignores a very recent Supreme Court case and indeed a range of developments in that court in recent times. I draw Members' attention to the case of Cosma v. the Minister for Justice, Equality and Law Reform from 2006, in which a woman sought that her deportation order be quashed on the grounds that if she were to be deported she would commit suicide. She argued that an action by the State should not be allowed to occur because she felt suicidal. The finding in that case is now the binding test laid down by the Supreme Court and I ask Members to pay attention, please, as I outline it.

The court found, first, that the absence of a treatment plan for a psychiatric condition and the fact that the person was not undergoing therapy or counselling were relevant factors in determining how real and substantial was the risk to life. Several Members of this House have proposed precisely the same thing - a treatment plan - to enhance this legislation, but it has simply been dismissed out of hand by the Minister. Second, the court found that the fact that the woman had not even considered removing the risk to life by treatment or some other means was relevant to considering whether the risk could only be averted by the course of action she preferred. The third finding was that the Minister was entitled to take into consideration arguments of public policy, as he had argued very vigorously in submissions that he should be, making the point that "to permit the threat of suicide to act as a stop on the execution of administrative decisions such as deportation would be to open a Pandora's box of potential abuse with possible effects of paralysing administrative activity in any given area of government".

On the Cosma reading of the X case, section 9 would fail to meet the necessary standard because it does not require evidence of a treatment plan or consideration of other means of avoiding the risk to life of the mother, and does not take into account, as the then Minister for Justice, Equality and Law Reform insisted we should, the public policy arguments that are relevant in assessing claims of suicidality.

This is not to mention the medical evidence. If we value the X case so much, which I argue is an obiter dictajudgment, how can we ignore this very specific and refined test urged by the Minister in the case of Cosma v.Minister for Justice, Equality and Law Reform? It is an entirely contradictory position and a position of convenience to suggest that the threat of suicide of a person at risk of deportation, who may be an inconvenience to the State, is not entertained but in other circumstances it is. It is entirely inconsistent, contradictory and hypocritical. Selective constitutional interpretation is happening in the Department of Health.

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