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

I move amendment No. 20:

In page 16, to delete lines 26 to 31 and substitute the following:“(3) Notwithstanding any other provision of this Act—

(a) any decision regarding the donation of an organ from a living donor shall, where the donor is a relevant person who lacks capacity, be determined by the High Court, and

(b) where an application in connection with the withdrawal of life-sustaining treatment from a relevant person who lacks capacity comes before the courts for adjudication, that application shall be heard by the High Court.

(4) Nothing in this Act shall be construed as authorising any person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity.”.

Amendment No. 20 has been proposed to clarify more precisely the Bill's intention with regard to organ donation and the withdrawal of life-sustaining treatment and non-therapeutic sterilisation.

On the issue of organ donation, the existing provision is that the High Court would have jurisdiction in every matter concerning organ donation. The proposed amendment clarifies that the decision on the donation of organs from living donors who lack capacity will have to be determined by the High Court. The jurisdiction will remain that of the High Court, which reflects the seriousness of decisions that might need to be taken on this issue. The proposed amendment relates only to organ donation from living donors and will not have any impact on current or planned policies of the Department of Health on cadaveric organ donations.

An amendment is necessary to the Bill's provisions with regard to the withdrawal of life-sustaining treatment. Medical personnel have alerted us to the risk that the provision as currently drafted would cut across existing clinical practice and would make it impossible for clinicians to take the decisions they take every day to determine when treatment should cease, for example, where further treatment would be considered futile or would create unnecessary suffering for the patient at the end of life. The provisions as drafted would require hospitals to have recourse daily to the courts to decide when life-sustaining treatment might be withdrawn from patients in terminal cases. This would create circumstances of great trauma for families at a time when a loved one is at the end of life. The amendment I propose is intended to rectify the situation where an application is made to the courts in the context of the dispute or where legal clarity is required on a decision to withdraw life-sustaining treatment. This application will be reserved to the High Court. Reserving such cases to the High Court reflects the seriousness of such decisions where they have to be determined by the courts. This means that if a family member disagrees with a clinical decision, she or he will have the option to apply to the High Court for a determination on the matter. Similarly, if a hospital is unclear as to the decision that needs to be taken, it can apply to the High Court for adjudication.

On the issue of non-therapeutic sterilisation, my amendment seeks to strengthen the legislative protection in this area. The amendment would bring the Bill into compliance with a series of international human rights conventions that reject forced sterilisation of a person without his or her consent. Forced sterilisation of girls or women with disabilities is a breach of Article 10 of the International Covenant on Economic, Social and Cultural Rights. The Committee on the Rights of the Child has identified forced sterilisation of girls with disabilities as a form of violence, while the Committee on the Elimination of Discrimination against Women regards forced sterilisation of women as contrary to the woman's right to informed consent. Similarly, Article 23(1)(c) of the UN Convention on the Rights of Persons with Disabilities requires state parties to ensure persons with disabilities retain their fertility on an equal basis with others. The amendment, therefore, would strengthen the legislative protection for persons with capacity difficulties by preventing anyone from using the Bill as authorisation to take a decision on the non-therapeutic sterilisation of a person lacking capacity. The effect of the amendment would be to reinforce the right to bodily integrity of a person with capacity difficulties. I consider this amendment to be a significant step forward in protecting persons with capacity difficulties against non-therapeutic sterilisation.

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