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

What we are seeking to do with this provision is to reflect the situation where a pregnant woman will not be denied the benefit of her advance healthcare directive solely on the basis of her pregnancy. That is what the current provision allows for and following the repeal of the eighth amendment, that is a position we are moving away from. With the greatest of respect to Senator Mullen, the core of his concern is more of a reflection of the current law in the country on abortion rather than on the current law as it applies to Assisted Decision-Making (Capacity) Act. It is important to remember that an AHD does not provide an entitlement to a treatment that is not otherwise available. It is an expression of the individual's will and preference. The Senator spoke about situations of real life and in real life, a pregnant directive maker is treated the same as any other person. Persons who have capacity can refuse treatment, notwithstanding their pregnancy. That can happen at the moment if they have capacity. In a situation where they do not have capacity, the content of their AHD will be followed.

Senator Mullen spoke about the consequence of non-treatment, where a medical practice followed on from an AHD is a termination but it is important to point out that the law does not recognise that as a termination. The interaction between the 2015 Act and the 2018 Act does not recognise those situations where treatment has been withdrawn legally as falling within the definition of termination. It is also important to remember that we do have section 89 here as well. We have a provision that addresses a situation like the one about which the Senator is concerned, where an AHD is vague, and it makes provision for continued treatment. It specifically references a woman who is pregnant in terms of that continued treatment as well. There is protection for continued treatment while questions on the validity of the directive are determined by the court. The legislation does make provision for situations where there may be ambiguity. It provides for the potential continuity of treatment in those situations while the legal issue is addressed.