Rónán Mullen (Independent) | Oireachtas source

Let us try to make clear what is being said here. Is the Minister saying that because the 2015 legislation has not been commenced? The 2015 legislation provides that there is a presumption in favour of continuing treatment where not to do so - let me make sure that I am not confusing the House and myself. What is being deleted, among other things, is the following provision in section 85(6)(a) of the Assisted Decision-Making (Capacity) Act 2015:

Where a directive-maker lacks capacity and is pregnant, but her advance healthcare directive does not specifically state whether or not she intended a specific refusal of treatment set out in the directive to apply if she were pregnant, and it is considered by the healthcare professional concerned that complying with the refusal of treatment would have a deleterious effect on the unborn, there shall be a presumption that treatment shall be provided or continued.

That is what the 2015 legislation says. Is the Minister saying that because that has not been commenced, therefore what he is referring to is some status quo antewhen he tells us that existing clinical practice will continue? The point I made to him a few moments ago was that I am not the one proposing a change here; it is the Minister. The Minister is the one proposing to take that out of the 2015 legislation. It is there. I did not dream it up. I am asking the Minister why he would take it away when by doing so he is, as I said, exposing families to the cruel situation potentially, in a given set of circumstances, that they must make an application to the court to secure the continuation of treatment so as to avoid damage to the unborn and so as to preserve the life of the unborn and, as I said, potentially the situation where you could have some kind of a dispute and a life is lost where, if this were the legislation there would at least be the presumption in favour of continuing treatment. It seems to me that the Minister has introduced a measure of confusion here by telling us that things are going to continue as they currently are. I do not know if he is saying "as they currently are" because this has not been implemented. There is a reason the Minister is proposing, in a section in the legislation being debated today, to delete something. He is proposing to delete what I have just read out. What I am saying to the Minister is that what I just read out is reasonable, is more decent and more in keeping with the existing provisions of the very different abortion legislation. I accept we are not talking about a termination of pregnancy in terms of the law on termination of pregnancy but we are talking about what the public policy attitude to a child after 12 weeks is supposed to be.Despite the change in our law, it is still meant to be substantially protective. That is certainly what we were told a few years ago. There may be all sorts of issues and debates that we could have about that, but it is supposed to be substantially protective. The Minister is proposing to get rid of a section that at least gives the presumption that treatment would be continued where an AHD specifying the refusal of treatment is silent about what is going to happen during pregnancy.

I am happy to withdraw my opposition today. I am not proposing an amendment, but I am opposing a section that I have a problem with. I am not going to put anything to a vote; it would not make much difference if I did. However, it is not a lot to ask that the Minister would take away the concern that has been expressed on different sides of this House today, at least about that section. I can well imagine that Members will have different views about the next section, which specifies that even if one is pregnant, there is to be a refusal of treatment. The Minister is proposing to get rid of the provision that an application shall be made to the High Court. He appears to be confused about that. What he is proposing to do in that case is to get rid of the requirement of an application to the High Court in a case where an AHD says that even if someone is pregnant, treatment should be refused. What he is leaving, and what is not disputed, is the possibility of an interested person making an application to the High Court about this, and the law will allow that a healthcare professional may continue to give care until that issue is determined but that is a massive step down in the potential protection of the unborn and it is potentially a lot of stress and cruelty towards a family or to family members who are already suffering. This is quite apart from the justice issues around how the unborn child in that potentially late-term pregnancy situation is to be cared for.