Kathleen Lynch (Cork North Central, Labour)
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It is well established in Irish case law that a person with capacity has the right to refuse all forms of treatment. The ward of court case found artificial nutrition and hydration are considered to be medical treatment as opposed to basic care, and, therefore, a person is entitled to refuse such treatment.

The provisions of the Bill allow a person to make treatment requests in their advanced health care directive, which would, of course, include a request for artificial nutrition and hydration if they so wish. However, a person's autonomy is not absolute and he or she cannot demand that specific treatments or interventions be provided in all circumstances regardless of their effectiveness. The right to request treatment is a power to consent rather than a power to compel.

As outlined in HSE’s national consent policy, a health care professional is not obliged to provide a treatment that is not clinically indicated. This is also in keeping with the Medical Council’s 2009 guidelines, which state that a clinician is not obliged to provide a treatment that he or she considers to be futile or disproportionately burdensome, even where such treatment may prolong the patient’s life. However, a treatment request in an advance health care directive is reflective of that person's will and preferences. Therefore, the provisions state that treatment requests outlined in an advance health care directive will be taken into consideration during the decision-making process, but will not be legally-binding. In situations where a request for treatment in a person's advance health care directive is not upheld, the reasons for not complying must be recorded in that person's health care record. This reasoning must also be explained to that person's designated health care representative if he or she has nominated one.

Given that a request for any form of treatment cannot be legally binding, I cannot accept Senator Mullen's proposed amendment.

Kathleen Lynch (Cork North Central, Labour)
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We will have an amendment to section 77 on Report Stage as we will be moving the decision support services from the Court Service to the Mental Health Commission. People were thinking it was a little inappropriate to have them in the Court Service.

Paschal Mooney (Fianna Fail)
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Amendments Nos. 235 to 238, inclusive, are related and may be discussed together.

Marie Louise O'Donnell (Independent)
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I move amendment No. 235:

In page 88, between lines 18 and 19, to insert the following:“(d) to provide information on the creation of an enduring power of attorney or the making of an advance healthcare directive to enable a person who has capacity to express his or her wishes to be given effect when he or she lacks decision-making capacity;”.

We were under the impression that we would be considering the Bill at 5.30 p.m., which might be the reason some of the other Senators are not here.

This amendment concerns the functions of the director of the decision support services under section 78. I have read about the functions and believe they are excellent. I would, however, like the Minister of State to consider adding to the legislation a function "to provide information on the creation of an enduring power of attorney or the making of an advance healthcare directive to enable a person who has capacity to express his or her wishes to be given effect when he or she lacks decision-making capacity". I would like this to be part of the remit of the decision support services, if possible.

The recommendation of the Council of Europe is that the State should promote self-determination for capable adults in the event of their future incapacity by means of continuing powers of attorney and advance health care directives. I acknowledge that the director is to be an informer, a manager, a supervisor, a guide and a changer, but the legislation could be a little more definite in that he or she could also be an educator. Bearing in mind the Council of Europe's recommendation on the promotion of human rights, I referred when discussing my first amendment, amendment No. 26, to the entitlement to lead one's life in an autonomous manner, which encompasses the taking of independent decisions. The recommendation sets out that member states should provide legislation to allow older persons to regulate their affairs in the event that they will be unable to express their instructions at a later stage.

I know there is nobody here but I have the ear of the Minister of State. The Acting Chairman is on the telephone.

Paschal Mooney (Fianna Fail)
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I am sorry. I was just trying to advise Senators of the change in time which the Senator herself mentioned. She is addressing the Minister of State.

Marie Louise O'Donnell (Independent)
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I was about to tell the House about the demographic profile.

Trevor Ó Clochartaigh (Sinn Fein)
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I am listening.

Marie Louise O'Donnell (Independent)
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Irish society must plan for population 80 and, in particular, have regard to the growing number of people whose capacities will decline as they age. It is necessary, therefore, for the State to facilitate people to plan individually for such an eventuality. The figures included in the national dementia strategy for 2004 suggest that in 2011 there were 47,800 people with dementia. It is believed 152,000 will have dementia in 2046. I am talking about the director being an educator in informing people about their capacity to express their wishes when they are well. This is not stated, although I acknowledge there is reference to the provision of information for relevant persons on the available options, but that is a different matter.

I advocate a national strategy associated with the Think Ahead programme that would involve all relevant organisations, State bodies and workers. It should be part of our lives. I would, therefore, like the Minister of State to consider the amendment.While the director might find it internal to his or her job anyway, it is not written down and it is important. It is all very well for people to make decisions while they are able but it is different when they are not able. This amendment is to encourage people to make the decisions - that link precisely into this Bill - when they are able in order that their rights will be carried out when they are not able. The amendment has been tabled because the Bill could be more specific.

Kathleen Lynch (Cork North Central, Labour)
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The Think Ahead programme is excellent and I assume and imagine that any person who takes up the job as director in this instance will draw on what already has been done as he or she would be foolish not to so do. Amendment No. 235 tabled by Senator O'Donnell proposes an additional function for the director of the decision support service to provide information on the creation of an enduring power of attorney or advanced health care directives. These functions already are encompassed in the functions set out for the director. This is the reason that at the outset of the debate yesterday, the amendments were so comprehensive. I acknowledge it frustrated some Members but the amendments were comprehensive. Under section 78(1)(a), the director will be required to promote public awareness of all matters relating to the needs of persons may require assistance in exercising their capacity. This function encompasses the requirement to provide information to the public on enduring powers of attorney and on advanced health care directives. Similarly, section 78(1)(c) requires the director to give information to relevant persons in respect of their options under the Act. This will include information on creating an enduring power of attorney or an advanced health care directive. As the function already is encompassed in the Bill, I ask the Senator not to press the amendment. While the Senator's points are well made, they are well covered in the Bill.

Amendment No. 236 proposes a new function for the director of the decision support service in providing information to organisations. The existing functions require the director to provide information and guidance to organisations when dealing with persons with capacity difficulties. The new amendment proposes that the decision support service also will have a role in informing and guiding organisations, including State organisations, when dealing with the range of interveners specified under this Bill. It will be obliged to provide information and guidance on dealing with attorneys, decision-making representatives, etc. The intention is that as a result of this information and guidance, organisations will know exactly when to provide information to interveners. This will help to ensure organisations only interact with interveners where those interveners are authorised either to seek information or to make decisions. I believe this point was well fleshed out in respect of the type of information, who should have it, what happens with it afterwards and for what it can be used.

Amendment No. 237 allows the decision support service to charge fees for its services. It is appropriate that the decision support service could have this possibility and is in line with international practice. Some functions it will undertake will be time-consuming and some organisations with which it will interact will be very wealthy as banks, for instance, are potential clients. Where a vulnerable person or a family has limited means, the possibility will be available for the fees to be waived. In amendment No. 238, Senator O'Donnell proposes the director would have a role in enabling investigations of an attorney operating under provisions of the 1996 Act. I admire the Senator's foresight, as one amendment agreed to yesterday-----

Marie Louise O'Donnell (Independent)
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I was about to thank the Minister of State for it.

Kathleen Lynch (Cork North Central, Labour)
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I admire the Senator's foresight. The aforementioned amendment will allow both complaints to be made and investigations against attorneys registered under the 1996 Act. I thank the Senator for raising the issue. Another vitally important issue that was included in one of the amendments yesterday was the provision that the director can have an investigation even where no complaint was made. As the Senator and I are aware, it sometimes is the most vulnerable who do not have anyone to complain on their behalf or who cannot complain themselves. I believe the Bill covers the issues raised by the Senator and I am glad it does. I thank the Senator for having such foresight.

Marie Louise O'Donnell (Independent)
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I am pleased that my proposed amendment in section 78 has been accepted and I thank the Minister of State. It is extremely important the supervisory and investigative functions of a director of the decisions support service include the exercise of those functions in respect of attorneys under the 1996 Act. I had meant to thank the Minister of State for it. I also am pleased to note section 68 provides that a complaint may be made to the director in respect of an attorney under the 1996 Act who was acting outside the scope of his or her powers, not performing his or her obligations or for other reasons as stated in section 68. These are all important safeguarding provisions, as required under Article 12.4 of the UN Convention on the Rights of Persons with Disabilities. I thank the Minister of State and as to the remit, I understand a job is a job and is informative and educative. I would like to have sight of the education aspect. I am sure it will not just be the Think Ahead programme but there will be many other aspects.

Kathleen Lynch (Cork North Central, Labour)
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Yes, that is just one programme.

Marie Louise O'Donnell (Independent)
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I just mentioned that programme in so far as it is a guide for when people lack capacity. However, I understand, in respect of all the amendments, that it will be part of it and I thank the Minister of State for accepting my other amendment and for taking it on board in the spirit of the Bill.

Kathleen Lynch (Cork North Central, Labour)
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I thank the Senator.

Paschal Mooney (Fianna Fail)
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Amendment No. 239 is in the name of Senator Norris.

Paschal Mooney (Fianna Fail)
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The Senator may raise it in the debate on the section.

Paschal Mooney (Fianna Fail)
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I thank Senator van Turnhout for her help. Does the Minister of State wish to respond or to defer?

Kathleen Lynch (Cork North Central, Labour)
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I will respond on Report Stage if the Senator tables the amendment then.

Trevor Ó Clochartaigh (Sinn Fein)
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Senators have noted there may be issues around the financial powers of oversight and management by the court that the House might need to refer to on Report Stage.

Kathleen Lynch (Cork North Central, Labour)
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Would the Senator repeat that please?

Trevor Ó Clochartaigh (Sinn Fein)
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There may be issues around amendment No. 244 which have not been put forward and which Senators might raise on Report Stage. I want to allude to those so they can be looked at on Report Stage.

Paschal Mooney (Fianna Fail)
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When is it proposed to take Report Stage?

Martin Conway (Fine Gael)
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Next Tuesday.

Paschal Mooney (Fianna Fail)
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In accordance with the decision of the House the Seanad shall meet at 10 a.m. on Friday 11, December 2015.