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

I will speak to amendment No. 2 first. Deputy Collins is right that there is agreement among everyone that there must be parity between physical healthcare and mental healthcare in the operation of advance healthcare directives. I reiterate what I and the Minister of State, Deputy Rabbitte, said on Second Stage. The Minister for Health, Deputy Stephen Donnelly, and I, our respective Departments and the Government are in absolute agreement that this is an issue which has to be addressed as soon as possible. However, I have stated at all points that this is a technically complex issue, from both the legal perspective and the healthcare policy point of view. In light of the current work to reform the Mental Health Act 2001 in a comprehensive fashion, I am not, at this point, able to support the complete deletion of sections 85(7) or 136.

The application of the 2015 Act to persons whose treatment is regulated under Part 4 of the Mental Health Act 2001 is being considered by the Department of Health. It is appropriate that full and proper consideration will be given to this issue within the context of the ongoing reform of the 2001 Act and with the input of the clinical and policy expertise of the Department. The Minister for Health and I are in full agreement with Deputies about the need for parity of care. I will be very clear that there is no question of not addressing this issue. Government will address the gap that exists. However, it is important to ensure that the changes we are bringing forward to make sure that gap is addressed are properly sequenced in terms of changes to the 2015 Act, on foot of this legislation, and the 2001 Act. If we do not properly sequence these issues, we risk putting something on the Statute Book that risks leaving somebody lacking legal or clinical certainty at a point in their lives when they are particularly vulnerable and need the full protection of the legislation.

The amendments call for outright deletion. I am not in the position to support them at this time. However, my officials and officials in the Department of Health are continuing to engage on this issue. If we are able to devise a policy solution that can be implemented in this legislation, I will bring forward an amendment on Committee Stage or Report Stage in the Seanad. Engagement is continuing. We are still trying to find at a solution here. I cannot guarantee that will happen because this matter is complicated. It is very much dependent on the wider reforms and how the reforms of the 2001 Act will apply.

The same applies in the context of amendment No. 36, which I am also not in a position to accept today. My officials will, however, continue to engage with their counterparts in the Department of Health on this. As the Deputies know, this falls within Part 8. That is a matter of responsibility for the Minister for Health. The proposed amendment from Deputy Ward seeks to allow minors who have reached the age of 16 to make valid advance healthcare directives and this would allow minors to make decisions with regard to their own treatment.

The 2015 Act was designed with respect to adults because it is about capacity in terms of decision-making. It was not designed, originally, to apply to those who are under 18. I am aware - and I have stated this before in the context of healthcare - that 16- and 17-year-olds have legal capacity to consent to surgical, medical and dental treatment. However, there is a body of family law that regulates their capacity to refuse treatment in certain circumstances. More examination is ongoing in respect of that. If I am able to bring forward a resolution regarding 16- and 17-year olds, I will do so in the form of an amendment in the Seanad.

I am bringing forward two amendments, Nos. 34 and 35, both of which need to be read together. As recommended in pre-legislative scrutiny and as I committed to in early stage, amendment No. 34 proposes to delete section 85(6) of the 2015 Act. This amendment has been drafted with the Attorney General. The Office of the Attorney General identified a need for a related amendment to section 89 as well. It is important to state that section 85(6), which was originally included to qualify and limit the application of advance healthcare directives in the context of pregnancy, was required by the then constitutional provision. As we know, that constitutional provision was wrong.

Now section 85(6) will be deleted if the amendment is passed.

Amendment No. 35 applies to section 89 of the principal Act, which includes provisions on the role of the High Court when considering an application on the validity of an advance healthcare directive in respect of life-sustaining treatment. The sole change there is that we are substituting the term "her pregnancy" for "the unborn". It is the sole change in that provision. It is important to state the provision we discussed that caused so much concern in terms of the maintenance of the approach that followed the repeal of the eighth amendment, section 89(6), is to be deleted.

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