Fintan Warfield (Sinn Fein) | Oireachtas source

I move amendment No. 31:

In page 38, to delete lines 12 to 21.

Section 46 of the Bill amends section 59 of the 2015 Act to remove the option to grant powers to consent or refuse health treatment from an enduring power of attorney. This means individuals who wish to confer powers to consent or refuse health treatment on a trusted supporter at a time when they are not able to communicate their wishes will have to complete a separate advance healthcare directive even if they are also making an enduring power of attorney. This places an additional bureaucratic burden on the relevant person if they are required to draft two separate instruments with different requirements as to supporting evidence, witnessing and so on. It would be 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 or refuse treatment on his or her behalf in accordance with his or her will and preference. It is 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 recommendation No. 52 of the Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth in its pre-legislative scrutiny that health and medical treatment decisions be retained in the scope of an enduring power of attorney.

Amendment No 31 would restore the original power the Bill proposes to remove from individuals making enduring powers of attorney. The removal of this power is unnecessary for the Minister's stated purpose of giving clarity to healthcare professionals as to who has the authority to make a healthcare decision where a person lacks capacity. Sections 12 and 21 of the principal Act clarify that where a person makes a decision-making assistance agreement or co-decision-making agreement that relates to healthcare, such an agreement will be null and void in respect of decisions also covered in an advance 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, for example, in respect of powers 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 as to what instrument to follow in this situation. In addition, this provision will ensure healthcare professionals will not have to check whether any elements of the 2015 Act are engaged beyond an advance healthcare directive before providing treatment, as others appointed under the Act may have health decision-making powers.

Therefore, there is no need to remove the option of individual choice from donors of enduring powers of attorney, who should be able to continue to confer these powers in their enduring power of attorney should they wish to do so, rather than imposing a bureaucratic burden of creating a separate legal instrument with separate witnessing and notification requirements to give effect to their choice.