Seanad debates

Tuesday, 29 November 2022

Assisted Decision-Making (Capacity) (Amendment) Bill 2022: Report Stage

 

1:00 pm

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

Amendment No. 15 seeks to delete a provision relating to the ongoing care of pregnant directive-makers where the High Court is deliberating on the validity and applicability of an AHD. In general, section 89 concerns the role of the courts in clarifying, where necessary, the validity and applicability of an AHD. In the first instance, it is intended that the informal process set out in section 85(5) would be used for such purposes but referral to the High Court is available where this process cannot produce a result or where more serious issues of legal validity arise that might have implications for directives in a broader sense. It is designated to address a scenario where the will and preference of a directive-maker may not be clear in the AHD or where a legal mechanism is required to determine the validity of the AHD.

Section 89(3)(b)(ii), as amended, provides that in circumstances where there has been an application to the High Court under section 89(2) of the 2015 Act to clarify a question of applicability or validity of an AHD, pending the determination of the High Court, nothing in an AHD will prevent a person from doing any act that he or she reasonably believes necessary to prevent a serious deterioration in the health of the directive-maker or, if the directive-maker is a pregnant woman, a deleterious effect on her pregnancy. The term "pregnancy" has been changed from "unborn" in order to provide a more holistic approach to healthcare for a pregnant woman. In addition, it does not reference the language arising from the previous constitutional position, which could be interpreted in respect of a historical context that no longer exists. I stress that the provision is an interim one, designed to ensure that care can be provided pending the determination of a court. It does not provide a vehicle for a woman's will and preference to be overturned; rather, it provides a legal vehicle where an ambiguity as to will and preference, or the legal question of validity, can be resolved. The High Court will continue to have a role under section 89(2); therefore, this provision is still required, even in light of the deletion of section 85(6). As such, I am not in a position to accept this amendment.

Amendment No. 16, tabled by Senator Mullen, proposes to reverse the change made to section 89(3) on Report Stage in the Dáil. He is seeking to reinstate the original language of "the unborn" as opposed to the current wording of "her pregnancy". This matter was debated by the Senator on Committee Stage when the particular section of the Bill was opposed. There has been some debate, both on Committee Stage and in the intervening period, as to the effect of the change in language from "the unborn" to "her pregnancy" and whether this change is warranted. Let me be clear; the purpose of the change is to ensure that healthcare professionals can provide any treatment that may be required in respect of a pregnant directive-maker, including treatment of the foetus, where the court is deliberating on the applicability or validity of an AHD.

Section 89(2) provides for the consideration, with regard to life-sustaining treatment, by the High Court as to the validity and applicability of an AHD. During this period of deliberation by the High Court, section 89(3)(b)(ii), as amended, empowers the healthcare professional to act and ensure that there is no deleterious effect on the pregnancy. The term "her pregnancy" has been changed from "the unborn" in order to provide a more holistic approach to healthcare for a pregnant woman. Also, it does not reference the language arising from the previous constitutional position, which could be interpreted by a medical professional in terms of a previous legal context that no longer applies. This does not grant any power to alter or set aside an AHD where a clear expression of will and preference is in the creating instrument but it allows for a very necessary interim period when treatment can be provided, pending the court's clarification of any issue regarding the validity or applicability of an AHD.

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