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

I note Senator Mullen's opposition to the section and the detailed remarks he made at our previous session. The provision under consideration came about as a result of careful deliberation on the constitutional, legal and clinical considerations arising from the recommendation of the post-legislative scrutiny report on the removal of section 85(6) from the 2015 Act to ensure that pregnant women who have an advance healthcare directive are treated equally to other directive-makers, particularly with regard to their rights to autonomy and bodily integrity. At the time of drafting the 2015 Act, and in to take account of the constitutional position in respect of the unborn under Article 40.3.3°, section 85(6) was drafted so as to limit the rights of directive-makers who were pregnant at the time they lost their capacity by balancing those rights with the then-existing rights of the unborn under the Constitution. Given the changed legal position arising from the removal of Article 40.3.3° from the Constitution, it is now possible to treat pregnant women the same as all other patients when determining the validity and applicability of their advance healthcare directives, AHDs, through the removal of section 85(6) from the 2015 Act. This approach both recognises the autonomy of directive-makers who are pregnant and ensures protection of their recognised right to refuse treatment. If the provisions are deleted, the effect will thus be that pregnant women will be treated the same as any other patient. If their AHDs specifically provide for pregnancy, their wishes will be followed. If they do not, any ambiguity in respect of their wishes will be determined in accordance with section 85(5) of the 2015 Act. At the same time, in circumstances in which there are doubts as regards the applicability or validity of an AHD, it would also be possible to obtain a court determination on the validity or applicability of the AHD pursuant to the general process set out in section 89. These provisions provide safeguards where questions arise as to the will and preference of a pregnant woman who has made an AHD and whether such an instrument should apply in the particular circumstances arising.

With regard to the interaction between the 2015 Act and the Health (Regulation of Termination of Pregnancy) Act 2018, in circumstances in which a healthcare professional withdraws life-sustaining treatment from a patient on the basis of a valid and applicable AHD that then leads to the demise of a foetus, that would constitute neither a termination of pregnancy within the meaning of the 2018 Act or the offence of termination of pregnancy outside the circumstances permitted under that Act. This arises from the previous case law on the withdrawal of medical treatment, which makes clear that such acts are not legally regarded as positive acts committed with the intention of ending the life of a patient as well as the case law recognising patient autonomy and the right of a competent adult with capacity to refuse medical treatment, even where that will involve a risk to his or her life or the health of a foetus.