Frances Black (Independent) | Oireachtas source

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 to or refuse health treatment on a trusted supporter, at a time when they are no longer able to communicate their wishes, will have to complete a separate advanced healthcare directive. Even if they make an enduring power of attorney, the requirement to draft two separate instruments with different requirements, such as supporting evidence and witnesses, places an additional bureaucratic burden on the relevant person. This is especially burdensome if the relevant person wishes to authorise the same person, who holds the enduring power of attorney, as their designated healthcare representative to consent to or refuse treatment on their behalf, in accordance with their will and preference.

It would be 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-supporting arrangement under the Act, including decision-making assistant agreements and co-decision-making agreements. It would also be inconsistent with the recommendation of the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth. In its pre-legislative scrutiny report, the committee recommended that health and medical treatment decisions should be retained in the scope of an enduring power of attorney.

The amendment would restore the original power that the Bill proposes to remove from individuals making an enduring power of attorney. The removal of this power is unnecessary to achieve the Minister's stated purpose of giving clarity to healthcare professionals about who has the authority to make a healthcare decision where a person lacks capacity. On Committee Stage in the Seanad, the Minister stated this was required to provide legal clarity for medical professionals and clinicians, citing a concern that if two decision supporters, such as an attorney and a designated healthcare representative, were to have equal rights in treatment decisions and were to disagree, it would be unclear as to whose view would prevail. The Minister's rationale for his amendment was to ensure all healthcare decision-making is governed by the safeguards contained in Part 8 of the principal Act. As Senator Warfield explained on Committee Stage, the principal Act already provides, in situations where one or more decision makers may have authority, the advanced healthcare directive and-or designated healthcare representative take precedence over other instruments. Certainty is already provided by the existing legislation. Deleting the Minister's amendment and retaining the option for people to appoint an attorney for healthcare decisions will ensure individuals who may use such instruments, such as older people, will not have an additional obstacle to making their will and preference known by having to make a separate advanced healthcare directive.

The Minister can be assured that his concern about the need for safeguards is well addressed within the provisions of enduring power of attorney, including the right of complaint to the Decision Support Service where there is concern an attorney has acted or may act outside the scope of his or her function. The Decision Support Service may then refer the matter to the courts for a determination which may, in turn, remove the attorney from that role.

By refusing to accept amendment No. 10 and removing the option for people to set out their healthcare decisions in an enduring power of attorney, the Minister is creating unnecessary hurdles to the vindication of the will and preferences of individuals who wish to plan for various aspects of their lives within a single instrument.