Joe O'Toole (Independent)

While this is an imperfect argument that we are putting forward, I could come up with the perfect result. I will explain it shortly. We must deal with the issue raised by Senator Harris when we reach a situation that the best thing for a person is a particular treatment and the person does not want it. That happens every week in hospitals. A doctor might ask a patient to take a course of treatment but the patient may decide that, knowing the risks and making a judgment, he or she does not want the treatment. There may also be people who do not have the capacity to make that judgment. That is where the perfection and imperfection of the argument come together.

The current protection is that one can get a second opinion. We are all real people in this Chamber. I would love to know how many times a second opinion was refused. I might ask the Senator to sign a document and he will do so. That is the way it is done. I do not see it as any protection. One is asking a colleague to second-guess another colleague, with no great gain in doing so. I do not think that happens. Where is the weakness or imperfection in my argument and what is wrong with what is being proposed in this legislation? The real reason is that it does not deal with the point touched on by my previous colleagues, coming at this from different ways. A treatment may be the best for the patient but the patient may not want it or may not have the capacity to make a proper judgment. We have not dealt with this because we do not have legislation.

Senator Norris talked about the duty of care and common law, which applies to everyone in any profession. I used to have to explain to teachers that one was guilty of negligence through omission as well as commission. Doing the wrong thing or not doing the right thing is equally balanced in the law. Somebody can err in either direction. Senators on these benches have proposed the following matter a number of times over in the past 20 years. Issues concerning guardianship, mental capacity and how decisions can be taken by those not in a position to take a decision must be discussed. That is how we perfect the issue so that we get away from the question of ECT. We should have a generalised view on how to deal with someone with a mental capacity issue and who is not in a position to make a decision. This does not only apply to ECT but to a variety of aspects of life. Governments are not keen to deal with this because it is awkward. Very conservative people, very liberal people and those of the laissez-faire view will come at it from every side on whether we should interfere. It is very difficult. A number of former colleagues dealt with this issue.

The duty of care and the common law was opened clearly on "Morning Ireland" by Mr. Hugh Kane, who was mentioned in some of our briefing documents. He made it clear that our proposal does not rule out the use of ECT, which is important in respect of the point made by Senator Harris. If the duty of care overrides other issues or common law is the basis on which a decision is taken, it is arguable in court. However, it is not very attractive to professionals. Doctors prefer the existing legislation rather than what we propose. It leaves them swinging and they must make the arguments in favour of their professional decision. I would prefer the doctor who took a decision on the basis of common law or the duty of care to have to argue his or her position in defence of performing ECT in a court of law afterwards rather than the current situation where the patient does not have any right to argue for or against it. The patients must simply shuffle up and the procedure is carried out.

We should support the legislation before the House. At that point, the Bill will go to the other House and that is the opportunity for the Minister of State to polish the legislation. The arguments raised in this House can be dealt with. I support Senator Boyle's proposal because it is a clear and obvious improvement on the current situation although it is not a perfect solution. In that regard, we should support it and urge the Minister of State to take a wider review of mental health and capacity legislation and deal with the genuine arguments passionately put forward today.