Gerry Horkan (Fianna Fail)
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When the debate adjourned, on 28 September, we were discussing the question "That section 73, as amended, stand part of the Bill". Senator Mullen had concluded his contribution, to which the Minister may now wish to respond.

Roderic O'Gorman (Dublin West, Green Party)
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I note Senator Mullen's opposition to the section and the detailed remarks he made at our previous session. The provision under consideration came about as a result of careful deliberation on the constitutional, legal and clinical considerations arising from the recommendation of the post-legislative scrutiny report on the removal of section 85(6) from the 2015 Act to ensure that pregnant women who have an advance healthcare directive are treated equally to other directive-makers, particularly with regard to their rights to autonomy and bodily integrity. At the time of drafting the 2015 Act, and in to take account of the constitutional position in respect of the unborn under Article 40.3.3°, section 85(6) was drafted so as to limit the rights of directive-makers who were pregnant at the time they lost their capacity by balancing those rights with the then-existing rights of the unborn under the Constitution. Given the changed legal position arising from the removal of Article 40.3.3° from the Constitution, it is now possible to treat pregnant women the same as all other patients when determining the validity and applicability of their advance healthcare directives, AHDs, through the removal of section 85(6) from the 2015 Act. This approach both recognises the autonomy of directive-makers who are pregnant and ensures protection of their recognised right to refuse treatment. If the provisions are deleted, the effect will thus be that pregnant women will be treated the same as any other patient. If their AHDs specifically provide for pregnancy, their wishes will be followed. If they do not, any ambiguity in respect of their wishes will be determined in accordance with section 85(5) of the 2015 Act. At the same time, in circumstances in which there are doubts as regards the applicability or validity of an AHD, it would also be possible to obtain a court determination on the validity or applicability of the AHD pursuant to the general process set out in section 89. These provisions provide safeguards where questions arise as to the will and preference of a pregnant woman who has made an AHD and whether such an instrument should apply in the particular circumstances arising.

With regard to the interaction between the 2015 Act and the Health (Regulation of Termination of Pregnancy) Act 2018, in circumstances in which a healthcare professional withdraws life-sustaining treatment from a patient on the basis of a valid and applicable AHD that then leads to the demise of a foetus, that would constitute neither a termination of pregnancy within the meaning of the 2018 Act or the offence of termination of pregnancy outside the circumstances permitted under that Act. This arises from the previous case law on the withdrawal of medical treatment, which makes clear that such acts are not legally regarded as positive acts committed with the intention of ending the life of a patient as well as the case law recognising patient autonomy and the right of a competent adult with capacity to refuse medical treatment, even where that will involve a risk to his or her life or the health of a foetus.

Rónán Mullen (Independent)
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I thank the Minister for his response. I have not had sight of it. I would like to consider it carefully. It seems to me, however, that he is basing this entirely on a certain view of the demands of equality and autonomy and a certain interpretation of what they mean in this particular circumstance. What he is saying, basically, is that he wants a pregnant woman to be in exactly the same position as any other decision-maker - in other words, people who are not pregnant. The point I made to him on the previous occasion, however, was that it was not necessarily because of the provisions of the eighth amendment that one would have a precautionary provision that, if an AHD were silent as to what was to be done about the refusal of care in an AHD in the event of pregnancy, there would be a presumption in favour of continuing treatment where not to do so would have a deleterious effect on the unborn. I am not saying the Minister is proposing something that is unconstitutional but I would be very interested to hear what his view of the Constitution now is. Does he accept, first of all, that the Oireachtas is free to make whatever provisions it wishes in respect of abortion and treatments that might have an effect protective of the unborn or the opposite? It seems to me that one can assess what he is doing here only in the context of the possible outcomes of the change he is making.

I mentioned the previous day that, to some degree, we all try to avoid the detail of specific cases out of a need for sensitivity when we discuss these kinds of provisions, but there is, of course, another sense in which we can judge these kinds of provisions only in the light of what might actually happen in real-life situations. Has the Minister given consideration to what might happen in real-life situations? The position at the moment, no doubt inspired by the eighth amendment's provisions but not, as I said, required solely by those provisions but by considerations of public policy, is that if an AHD were silent about what was to happen in the event that the person making the directive was pregnant, there would be a presumption. It seems that is good public policy because it seeks to protect life if possible. The Minister is taking that away. What he is leaving us is a situation in which somebody might or might not make an application to the court about an AHD. The Minister is leaving open the possibility for healthcare-givers to continue to give life-sustaining treatment while the court makes a determination on the issue of the AHD. However, we could be talking about a relatively late-term unborn child, if I am not mistaken. The Minister is reducing the potential protection of a child who might otherwise live. He is doing so in the name of a certain idea of pure equality, but he is not reflecting on the real-life circumstances and what might actually happen.Currently, under the 2015 legislation, the presumption would be in favour of giving life-sustaining treatment in order to secure the safety and well-being of a child in utero. Now, the Minister is proposing to take this away. He is proposing to leave it to the possibility that "an interested person" will make an application to court. What if there is a dispute between different interested persons about what is to happen in that situation, about what is to happen to that child? Second, the Minister is leaving it open to the decision of the court and we do not know which judge might be making that decision or what attitude he or she might have. All sorts of issues and doubts come into play about what might actually happen. There are children who might have been saved under the 2015 legislation who will otherwise die, potentially, as a result of the change the Minister is making because he is leaving it open to the question of whether an application is made to the court and to the vagaries of what that court might decide.

I am not suggesting that the Minister will be breaking any law or that if he provides in the way he is doing, there will be some kind of offence that is caught under some other criminal legislation. I am not suggesting that at all but I am asking for consistency with the existing legislation on abortion, which clearly identifies a public policy desirable, which is that unborn children after 12 weeks would not have their lives terminated and that it would be a criminal offence to have their lives terminated except in certain defined circumstances, which the Minister knows. These circumstances are proposed to be limited and concern, for example, treatment necessary to save the life or health of a mother or situations where the baby is not deemed to be likely to survive beyond a certain period. Those are the limited circumstances where abortion is permitted after 12 weeks. Clearly, the law continues to envisage protection for the unborn child. In fact, some would say it envisages substantial protection for the unborn child after 12 weeks. Now the Minister, without any detailed consideration or public discussion, is proposing in separate legislation to bring about a situation where there is less protection, potentially, for certain children after 12 weeks in the womb compared with what is there under the 2015 legislation.

What would be so wrong with continuing to have a presumption in favour of continuing life-saving treatment if there is a pregnancy and where the advance healthcare directive is silent on the question of pregnancy? What would be so wrong with that? The nature of a presumption, of course, is that it may be rebutted. It is not absolute protection and it is not an absolute guarantee that the child's life will be preserved but it is anomalous to have substantial protection for children after 12 weeks in the womb under the abortion legislation and at the same time, to remove protection in the way the Minister is doing, so substantially, so that the question of sustaining a child's life in the womb after 12 weeks might depend on whether an application is made to the court and whether the court so decides. Under the current situation, there is a presumption in favour of preserving the child's life. What is it about abortion that motivates politicians, governments and establishment officials to think so little about the possibility of saving a child's life that they would remove even the presumption that life-sustaining treatment would be continued until such time as it is possible to sustain the child's life?

Roderic O'Gorman (Dublin West, Green Party)
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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.

Rónán Mullen (Independent)
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The Minister misunderstands the basis for my argument. I am not saying that what he is bringing about would be considered under the law as a termination of pregnancy and I am not arguing, at this point, against the provisions of our abortion law generally. I am drawing the Minister's attention to what our abortion law currently provides and arguing that what he is proposing to do does not follow the logic of it. He talks about equality but there is no equality between the woman who has a child that has gone beyond 12 weeks in the womb and the woman who is not pregnant in terms of their desire not to be pregnant. The law continues to insist on the protection of life in a considerable set of circumstances at a certain point. Therefore, it is wrong to just look at it through the cold lens of what strict equality means in every situation because there is not a strict equality in terms of the abortion law itself. A person does not have an absolute right to be as unpregnant as a person who is not pregnant once the baby has gone beyond 12 weeks in the womb. There is considerable legal protection. What I am saying is that there is clearly a public policy preference around the preservation of life. Arguably, it is rooted somewhere in the Constitution, although there are some who argue that the Constitution is completely silent on any rights for the unborn. If one thinks about it, the Constitution can do three things. It can permit something, ban something or mandate something. The Constitution as I understand it is in a neutral space because it leaves to the Legislature the determination of matters in relation to abortion. We are not talking about abortion here. We are talking about situations where an advance healthcare directive mandates the refusal of treatment.Of specific concern to me is where it provides for mandating a refusal of treatment but is silent on what is to happen in the case that the directive-maker is pregnant. I am saying to the Minister that the public policy vision behind the existing abortion law even is such that there is a good involved in protecting human life once it gets to a certain stage in the womb. Surely it follows that the presumption, where it is silent, should be in favour of protecting the unborn child's life in the womb. That is the point I am making.

The Minister makes the point that a person who is compos mentismay refuse treatment, even if that treatment or the refusal of same has a deleterious effect on the unborn. However, that is a different situation because the person is not silent; the person is in a position at that point to give the direction whereas the person is not if not compos mentis. That is the point and they are silent, at least in one part of the section the Minister is removing. There is a substantial difference between a situation where a person who is compos mentisrefuses treatment. People in that situation know they are pregnant and they refuse treatment and the law will respect that refusal; I get that. There is an argument to be made about whether that is disproportionate having regard to the possibility that there might be a late-term or well-established pregnancy and that the child might lose his or her life as a result but I get the fact that the law permits a compos mentisperson to refuse treatment. However, where they have not specified what is to happen in the event of pregnancy then it seems to me that it is more in keeping with what the law currently provides around termination of pregnancy, which is that one protects life to a very considerable degree after 12 weeks, to continue to have a presumption in favour of protecting that life. That is not asking a lot for an unborn child who might survive.

What the Minister is proposing to do is take away that presumption and leave unborn children in a situation where they are at the mercy of an application being made concerning the advance healthcare directive, which is threatening them. That is also subject to getting the right decision around the preservation of their life - because that is what it will amount to - from the court. It seems to me that is simply not decent. It is not decent to take away a presumption in favour of protecting a life and it is not decent to do so purely in the name of some kind of doctrinal version of equality that is divorced from real life human situations.

Let us say, for example, that one has a dispute among family members on what is to happen where a person has made an advance healthcare directive, silent on what is to happen if that person is pregnant. Let us say that dispute causes a delay in the bringing of an application to the court, and as I said the court might not make a decision in favour of preserving the life. Let us look at it in another way; why would one put the father of a child through the grief and stress of having to make an application to the court, simply because the presumption in favour of preserving the child's life has been removed? The Government is putting its vision, doctrine and dogma of equality ahead of the real life grief and trauma that the father of a child might be experiencing because it is forcing such people to have to make an application to the court and to hope the court makes a decision to administer treatment so as to avoid a deleterious effect on the unborn child in question. That lacks decency and humanity and I ask the Minister to think about this again. This has not been thought through properly and it is not decent.

Roderic O'Gorman (Dublin West, Green Party)
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What the Senator has said about the protections that apply after 12 weeks is important. The consequence of the withdrawal of treatment on the basis of an advance healthcare directive does not constitute a termination under our law. Whether that happens before or after the 12-week period is not a termination as our law recognises and it is important that this is clearly stated.

Rónán Mullen (Independent)
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That is agreed.

Roderic O'Gorman (Dublin West, Green Party)
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On the presumption of care for pregnant women and the foetus, we could not proceed as the Senator is suggesting, that is, that we would legislate that a presumption would be made on a pregnant woman who has made an advance healthcare directive but one which does not specifically address pregnancy and that certain things would apply to her. We could not do so as that would be the creation of a new legal standard and it would be one specifying the treatment to be provided to a pregnant woman that would not apply to any other woman who had not made an advance healthcare directive.

The Senator is looking to create a specific treatment of pregnant women under his proposal and it hives pregnant women off in a way we are trying to move away from in the context of this legislation. Pregnant women have the right to set out what treatment they wish to receive within an advance healthcare directive. Where there is vagueness or ambiguity there is a process set out under section 89 of the legislation to address that. That recognises situations of ambiguity, it provides a mechanism to address them and it makes it clear that the level of care can be provided while that ambiguity is being addressed through a court process.

Rónán Mullen (Independent)
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The Minister is forgetting something. I am not proposing to create anything; I am trying to keep what is already there. The Minister is the one who is proposing to step down a protection established in the law, which is a modest enough one, that is, the simple idea that the presumption is in favour of preserving life. That is all. Instead the Minister is potentially leaving a family with a situation where, in already stressful circumstances, they have to make an application to the court to dispute or ask that in the absence of clear provisions in an advance healthcare directive about what is to happen in the case of a pregnancy, treatment would be given, despite a general refusal in the advance healthcare directive, so as to protect the unborn child. The Minister is potentially putting the burden on some family member to have to go to the court in order to vindicate and protect the life of the late-term and unborn child.

I do not know what to believe about what the Government thinks about abortion because things seems to have become so ideological that nothing that could remotely redound to the benefit of the unborn child is to be allowed to be stated in law anymore. The Minister keeps forgetting that I am not talking about this being a termination of pregnancy and that I am not confusing this with the law around abortion. I am trying to draw the Minister's attention to the standards and public policy vision that underlie the law on abortion and I am asking him to draw the conclusion of that about how we should then treat advance healthcare directives. Our law on abortion states that life has value and it is saying an unborn child has a right under law to be protected from the termination of pregnancy to a considerable degree after 12 weeks in the womb. If that is so then surely it follows that in something not connected with termination of pregnancy but something closely related that will potentially involve the termination of a life, there would at least be the presumption that one would give life-sustaining treatment so as to protect the unborn where the advance healthcare directive is silent.

There is another aspect to it that previously required that where the advance healthcare directive said even if there is pregnancy we want to refuse treatment and the current provision is that one goes to the High Court and the Government is proposing to get rid of that as well. Let us focus on the first one. There is still the possibility of an application to the High Court but there is a provision being removed that provides that where an advance healthcare directive provides that even if pregnant treatment should be refused. In those circumstances, the 2015 law provides that such a matter would be determined by the High Court and the Minister is also proposing to remove that. I am not specifically addressing myself to that because it is clearly more clear-cut that people have said they want to refuse treatment. That is closer to the compos mentissituation the Minister described earlier. However, where an advance healthcare directive is silent on what is to happen in the case of pregnancy it seems to me the presumption that life would be preserved should not be removed. This is not a point that is particularly on the ideological end of the spectrum for me to be making.I am sure there are a lot of people who would be proudly pro-choice in their own self-understanding and self-expression who would say that it should at least be the presumption that you would protect life. Because the Minister has an ideological fixation about a kind of equality, however, he is willing to disregard the spirit of what exists in the abortion legislation, which is that life beyond a certain point should be protected where possible. Not only that but he is potentially forcing a family into the situation where they have to rely on some other section and go to the court for a determination about the AHD. That is cruel. Furthermore, he is exposing the unborn child in that situation, potentially a late-term unborn child, to the risk that there will be some kind of a dispute that the application might not be made to the court, or if the application is made to the court that there will be some kind of a dispute and the court washes its hands of it. All of this I find to be quite callous and cruel. I ask that the Minister, at the very least will say he will go back and think about this before Report Stage. That is not a lot to ask.

Regina Doherty (Fine Gael)
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I will ask a question because I have been fascinated while listening. I can see the points that both the Minister and the Senator are making. The Minister has stated that before 12 weeks it is not considered an abortion but thereafter, there is a presumption that the life of the child will be preserved. There is a whole legal quagmire there that may exist. The Minister stated some minutes ago that we did not want to hive pregnant women off to be distinctly different to other women making their advance healthcare directives but being a pregnant woman is distinctly different to being a woman who is not pregnant because there is not just one life, there are two. Why, rather than leaving the presumption of the preservation of the life out there, do we not ask women making their healthcare directives to put in a scenario providing what should happen in the case of them being pregnant, as opposed to allowing it to be left open to legal argument or ambiguity? I do not think there is any woman that would feel different about that. We will be asking people to say what they will do in the case of a heart attack and so on. As being a pregnant woman is distinctly different to being a woman, why do we not simply ask them to make provisions for that case scenario, should it happen?

Gerry Horkan (Fianna Fail)
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The Senator pointed out to the Minister that he might reflect on it before Report Stage.

Erin McGreehan (Fianna Fail)
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We have to listen to Senator Mullen's points. I get what he is saying 100% and I agree with him. Senator Doherty's suggestion is good. It is for everyone to start thinking about if we are making those advance healthcare directives and that is a choice that we would have to stipulate and discuss. As Senator Mullen stated, there cannot be differentiation if there is not a directive there. We have in our law that the life of a child, of a baby, after 12 weeks is different to the life of a baby prior to that. We have that in law and it is for valid reasons. We must look at that and I would appreciate it were the Department to go back and discuss that before we return on Report Stage, in order that all of this ambiguity is picked up because this is a very important issue.

Mary Seery Kearney (Fine Gael)
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We are talking about a very specific situation where the advance healthcare directive is silent. One would imagine that the law as it stands at the moment should be the presumption. I think that is what Senator Mullen is arguing. I have to say that I have sympathy with his position and it is s a really valid argument, rather than us putting the burden in the opposite direction. By reversing that the onus is on a family to make an application to comply with where the law currently stands, when the woman in question does not have capacity, is running contrary to the status quo in the country and what people voted on when they voted in the referendum. To reverse that onus and place it on a family to have to make an application not to terminate or not to have a consequence of termination, I note we have clear situations, where medical intervention is required, that it is not considered termination. The Senator, to be fair, is not disputing that. We seem to be going a step further than is necessary. In family law, we have situations where solicitors, before they issue proceedings for divorce or judicial separation, have a statutory obligation to confirm that mediation, counselling and everything like that has been tried. It would not be without precedent to put in an obligation in the creation of an advance healthcare directive to do exactly what Senator Doherty has suggested and to put in an obligation that a woman is obliged to have a paragraph about this and that anyone who is signing off on a healthcare directive has a duty to make a statutory declaration that the matter was addressed.

Roderic O'Gorman (Dublin West, Green Party)
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For the avoidance of any doubt, where an advance healthcare directive is silent, the existing law and clinical practice apply. In this case, if the advance healthcare directive is silent about a consequence of treatment during pregnancy, the existing clinical practice applies and so the pregnant woman is treated equally to any other pregnant woman in that situation. There is no rebuttable presumption created against that. Where it is silent on the consequence of the woman being pregnant while getting treatment, the usual clinical procedures that doctors, nurses and clinical staff can undertake apply.

Rónán Mullen (Independent)
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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.

Regina Doherty (Fine Gael)
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The Minister is saying the AHD is silent and the current law after 12 weeks would allow he interventions to protect the life of the child distinctly, differently and separately to the life of the mother. What has legally changed since we felt the need and the Attorney General in 2015 would have felt the requirement to put in the exact clause that we are now taking out, which specifically gives the protection to the baby as distinctly different to the mam? If the AHD is silent and the Minister is saying that the current law stands, then what is different today from when we felt the need to have to put in these specific words in 2015 to make sure that the healthcare professionals knew?

Roderic O'Gorman (Dublin West, Green Party)
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As the Senator knows, I was not here at the time of the 2015 legislation but it is my understanding from talking to officials that this provision was seen as a necessity that stemmed from the then constitutional situation. What we are doing now is ensuring that the specific restrictions on the applicability of an AHD to a pregnant person, which is understood as being necessitated by the previous constitutional position and as such put into the 2015 Act, is no longer required within the revised legislation.

To speak to the Senator’s more general point, I recall the fact that an AHD allows a person to set out their treatment in specific circumstances. If the directive is silent on the issue with regard to the interaction of a pregnancy with a particular treatment, it does not apply in that situation and the regular treatments that medical practitioners can undertake will occur. I do not think that the-----

Rónán Mullen (Independent)
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Would the Minister mind repeating that last point?

Roderic O'Gorman (Dublin West, Green Party)
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Pardon?

Rónán Mullen (Independent)
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Would he mind repeating? Just wind it back, if he does not mind, because we all agree that this is important. I just did not quite grasp it.

Roderic O'Gorman (Dublin West, Green Party)
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That is okay. If the advanced healthcare directive is silent on the issue with regard to the interaction of pregnancy with the particular treatment, the existing legal and medical processes apply.

Rónán Mullen (Independent)
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What does that mean?

Roderic O'Gorman (Dublin West, Green Party)
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It means that the doctors and the medical team in that situation would undertake what they would normally undertake. They are not bound by any requirements of the AHD. They can treat just as they would treat in any other situation according to their judgment of the situation.

Rónán Mullen (Independent)
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So he Minister is leaving it up to the judgment now, which in circumstances-----

Gerry Horkan (Fianna Fail)
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Senator.

Rónán Mullen (Independent)
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I am sorry. I will wait until I get called on to speak. I apologise. I did not mean to. If I may-----

Gerry Horkan (Fianna Fail)
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The Senator may. I am just conscious that we have spent 45 minutes on this. I know that it is an important topic, but we have at least 36 more amendments to deal with, as well as another section that is being opposed. The Senator was hoping that the Minister might reflect on this before Report Stage, and he is not going to put the question to a vote. I think we have deliberated well. By all means, the Senator may address his point to the Minister, but I am not sure that we are not going around in circles a little bit at this stage.

Rónán Mullen (Independent)
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I think there is an element of confusion in what the Minister is saying. I can understand him when he says that when the eighth amendment was in place it was seen to be required that there would be this clear statement but what he is ignoring is just because it is maybe not as required now at the constitutional level, that does not mean that it is not desirable. As I said, the existing legislation on abortion clearly points to a certain attitude to the unborn after 12 weeks. That is the first thing. Human decency points to a certain attitude that is more easily shared across society towards later-term pregnancy. We all know where I stand on the protection but that is not the subject of today’s discussion.

I have pointed to the potentially very unhappy effects on a family. I will grant the Minister that the eighth amendment may have necessitated something, but just because that constitutional necessity is no longer there, that does not mean that this is not desirable. It is still desirable, having regard to what the law in other areas provides around the unborn post 12 weeks. It is still desirable because of practice.

The Minister is asking us instead to somehow believe that where the presumption in favour of preserving the life is taken away - and he is physically taking it out of the 2015 legislation - he is trying to just wave it all away and saying, “Oh, do not worry, in clinical practice they will do what they always do and what they currently do”. I do not know what that means. All I know is that the Minister is taking something fairly innocuous and desirable out of the law, which is just that there is a presumption in favour of saving a life. That is not a lot to ask. He is saying, “Oh do not worry”. I think he trying to tell us that in these situations doctors will still disregard the AHD and will preserve the life of the child, even if there is a general refusal of treatment. I do not know whether that is true. He is telling me that it is true. I do not know whether it is true. He is saying that it is up to the decision of the healthcare professional, but I would rather have it in law that there should be a presumption in favour of giving that treatment. I have no idea what those kinds of general, wave-it-away with references to clinical practice mean. I do not know what the Medical Council guidelines are on this subject; I do not know what they will be in five years. All I know is that we are here to try to shape and adjust the law for the common good. I think that is what the Minister should apply his mind to as well. All that I am asking is - and I think there is some support for me in this House - that he will take away our points on this topic and that he will undertake to reflect on it again before Report Stage.

Gerry Horkan (Fianna Fail)
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I thank Senator Mullen. I will bring in Senator Doherty and the Minister might address that point that he is in a position to reflect on it and then, we might be able to move on.

Regina Doherty (Fine Gael)
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The Minister is saying the reason that it is not required is that we now have primary legislation that determines how healthcare services will treat babies older than 12 weeks and, therefore, it is implied by other legislation that a baby that has been in gestation for longer than 12 weeks will be protected regardless of whether it is silent in the AHD or of specific requests by the mother in the AHD. If that is true, then what is the harm in putting it into this legislation that the AHD does not stand if the woman has been pregnant for longer than 12 weeks? It is only reconfirming what is in the current legislation, if that is what the Minister is saying. I do not see what the harm is in then putting it into this legislation.

Mary Seery Kearney (Fine Gael)
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I have a concern with it being left up to a healthcare professional without a direction or an inclusion if we were to end up with a situation such as what happened with Savita Halappanavar, where it is down to the doctors at the time to make decisions because the law is ambiguous. We cannot have any ambiguity. We need a definite position.

Roderic O'Gorman (Dublin West, Green Party)
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The current section 85(6) creates a specific standard that applies solely to pregnant directive-makers. The purpose of the removal of the subsection is to ensure that the current clinical practice applies to pregnant women.It is not being put forward as any sort of weakening of the protections towards a foetus but it allows for clinical policy, which is always more responsive to legislation, to be implemented by clinicians at a particular time. That is the direction we should be allowing. We should be allowing clinical policy to be implemented.

Gerry Horkan (Fianna Fail)
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On the specific point as to whether the Minister is in a position to reflect, between now and Report Stage, on the points Senator Mullen was making.

Roderic O'Gorman (Dublin West, Green Party)
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In terms of the position that Senator Mullen has taken and the concerns that have been raised by other Members, I will reflect on that and come back. We can discuss it further on Report Stage.

Gerry Horkan (Fianna Fail)
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I thank the Minister.

Mary Seery Kearney (Fine Gael)
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Not to be picky but I wish to pick up on the reference to pregnant directive-makers. A person might not fall under the definition under section 82 of the primary legislation regarding AHDs. One makes an AHD when one has capacity to envisage a situation where one may not have capacity. The person may be pregnant at the time the directive comes into being but not at the time it is being created, so we need to be careful that we are not calling the person "pregnant" and for that to become an issue of interpretation as to whether a person was pregnant and envisaged pregnancy. Hence, we come back to the suggestion made by the Leader to provide for a statutory requirement for women creating an AHD to consider what should happen in the event of pregnancy. If that were in place, there would be no ambiguity in respect of what would happen in that situation. It seems to be a cleaner way forward to ensure there is that statutory imperative in place.

Regina Doherty (Fine Gael)
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The reason Members have had such disastrous examples to reference is that doctors, hospitals and clinicians have been allowed to follow clinical policy and the ambiguity of different interpretations of that policy has resulted in women and babies suffering. I do not see the problem with inserting specific wording in an AHD to the effect that if the person concerned is pregnant at the time of a heart attack or whatever else is being determined or listed, then the current law of the land would apply to the clinicians intervening to save the life of the baby if the pregnancy is longer than 12 weeks. The exact same would be true in the case of a woman putting in a line that if she has a heart attack while pregnant, regardless of the age or gestation of the baby, she does not want intervention to happen. That would be illegal and not allowed to stand. The doctors would have to intervene. Given that we know that clinical policy and other legislation requires intervention, I do not see the difference in respect of us being clear in the directives, particularly for women, should they ever become pregnant, that the advance care wishes would be subject to the current legislation. I do not see the problem with being specific.

Rónán Mullen (Independent)
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Not only that, I fear that despite what the Minister has said about going away and thinking about it, it is clear from the last thing he said that he intends that, in future, there will not be a presumption in favour of protecting the life of the unborn. Am I correct in thinking that current clinical practice is guided by the 2015 legislation? Has that section of the 2015 legislation that is being amended been commenced?

Roderic O'Gorman (Dublin West, Green Party)
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The 2015 legislation has not been commenced. That is one of the central reasons for bringing forward this legislation because we do not-----

Rónán Mullen (Independent)
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Basically, the section the Minister is proposing to remove, which is the protection that was inspired by the eighth amendment, as he put it, never came into force. Is that correct?

Roderic O'Gorman (Dublin West, Green Party)
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The Senator asked me to reflect-----

Gerry Horkan (Fianna Fail)
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I am trying to facilitate the debate but it is not a to-and-fro discussion. The Senator should put his questions and I will then let the Minister respond.

Rónán Mullen (Independent)
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I am asking this because the Minister stated that he wants clinical practice to be able to evolve. He is proposing the removal of a presumption in favour of continuing the giving of care to protect the unborn in situations where a directive is silent as to what is to happen during pregnancy. He said that he wants to get rid of this and wants to allow clinical practice to evolve. The only interpretation that a reasonable person can take from that is that he wants it to be open to practitioners not to continue with life-sustaining treatment to avoid a deleterious effect on the unborn. That is why he is getting rid of this. I do not see how he can say there will be the protection or preservation of the life of the unborn in defiance of an AHD refusal of treatment when one has to go to court to make an application. In the absence of an application being made to the court, the default position will be just to carry through the directive. That is what the Minister said. He wanted strict equality between pregnant and non-pregnant persons. The logic of that is there will not be a presumption in favour of protecting the child in that situation because the presumption is that one must act as though the pregnancy was not there and, therefore, one refuses the treatment and the child dies in that situation. That is the logic. He appeared to give the House the impression that continuing treatment tending towards the protection of the unborn child in that situation will continue. I do not understand how he can say that in the light of what he is proposing to remove from the 2015 legislation and the clear requirement for an application to the court to do anything other than what the AHD provides in the case of a refusal of care.

Roderic O'Gorman (Dublin West, Green Party)
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The Senator asked me to reflect on the position and I agreed to do so. He then stated that even though I had agreed to do so, he thinks I have come to a conclusion anyway. If he wishes to take that position, that is fine.

Rónán Mullen (Independent)
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The last thing the Minister stated in his reply worried me.

Roderic O'Gorman (Dublin West, Green Party)
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Throughout this legislation, I have engaged extensively on issues that have been raised. This legislation did not get to this House until now because we were reflecting on other issues and brought forward improvements. With the greatest of respect, I think I have a track record of listening and engaging where that is possible.

Rónán Mullen (Independent)
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Is é tástáil na putóige a hithe.

Roderic O'Gorman (Dublin West, Green Party)
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The amendment relates to further improvements with regard to complaints throughout the Act. The particular amendment relates to complaints in respect of AHDs under Part 8 and will ensure the director of the decision support service will be able to conduct an investigation on his or her own initiative regarding a designated healthcare representative. This was always the policy intention and this provision makes clear that position, thus improving the harmony of investigative powers throughout the Act.

Fintan Warfield (Sinn Fein)
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I move amendment No. 46:

In page 61, lines 9 and 10, to delete all words from and including “Section” in line 9 down to and including line 10 and substitute “Section 89 of the Principal Act is amended by the deletion of subsection (3)(b)(ii).”.

The Bill retains discrimination against pregnant people who should have their AHD. The Minister committed to resolving this issue during pre-legislative scrutiny and the passage of the Bill through the Dáil but the amendment made continues to treat a person's AHD differently once the person becomes pregnant. Pregnancy should not impact on an AHD and it should be within the decision-making powers of the directive maker to stipulate if something is not to apply in the event of pregnancy. Women and people who can get pregnant deserve the security of knowing that the directive will not protect them less if they become pregnant, and that their will and preferences will be respected in all circumstances.

Roderic O'Gorman (Dublin West, Green Party)
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As the Senator suggests, the amendment proposes to amend the Act of 2015 by removing section 89(3)(b)(ii).While I understand the intent of the amendment is to give further effect to the changed constitutional provision and the deletion of section 85(6), which we discussed previously, the amendment is not necessarily following the said proposed deletion. That is an important difference between section 89 and section 85 of the 2015 Act. As distinct from section 85, which concerns the scope of AHDs in the context of pregnancy, section 89 concerns the role of courts in clarifying, where necessary, the validity of an AHD. It is designed to address a scenario where the will and preference of a directive-maker may not be clear in the AHD in question or another scenario where a legal mechanism is required to determine the validity of an AHD. The purpose of changing the term “the unborn” to “her pregnancy” in the amendment Bill is to avoid signalling the language of the previous constitutional position in the Bill’s text. This does not grant any power to alter or set aside an AHD where a clear expression of will and preference is contained in creating the instrument. However, it allows a very necessary interim period where treatment can be provided pending the court’s clarification of any issue regarding the validity or ambiguity of an AHD.

Section 89(2) relates to the role of the High Court, which will be the level required in the court system to receive an application involving considerations related to life-sustaining treatment regarding the applicability or validity of an AHD.

Section 89(3)(b)(ii), as it will be amended, provides that in circumstances where there has been an application under section 89(2) of the 2015 Act and the directive-maker is pregnant, there can be life-sustaining treatment for the mother and treatment to prevent a deleterious effect on her pregnancy. This change of language was chosen so as to avoid a reference to the previous constitutional position. As it will be amended, the section does not prioritise either the rights of the mother or the unborn. It is value-neutral and simply provides that treatment may be provided pending the decision of the High Court on an application to determine the validity of an AHD.

The earlier deletion of section 85(6) ensures that where a pregnant woman has made a valid and clear AHD that covers treatment during pregnancy, that AHD is valid and binding in the manner that all other AHDs are. As such, we would argue that there is no need for the amendment as proposed.

Fintan Warfield (Sinn Fein)
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I will withdraw the amendment, but reserve the right to resubmit.

Rónán Mullen (Independent)
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I would like to speak, but thought not at the same length, if I may.

Mark Daly (Fianna Fail)
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Yes.

Rónán Mullen (Independent)
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I will not speak at the same length as previously because, to some degree, the Minister has answered the question I wanted to ask. On at least two occasions, interestingly, he referred to the provisions that allow for the possibility of giving life-sustaining treatment pending a court determination in relation to an AHD. He envisages that such a determination or court issue will arise where there is a clear statement in the AHD, which kind of throws us back to the previous debate somewhat. As I have said, that is interesting and we will touch on what the Minister will reflect on between now and Report Stage.

It is clearly the intent of the Government to make sure that where life-sustaining treatment is specified, and where there is a clear refusal even in the event of pregnancy, there will not be any second-guessing that. I have concerns about that, although I accept that this concern will not be as broadly held in this House. I feel very strongly that in a situation where a life could be retrieved from a very unhappy situation, surely the family should have some ability to raise that issue. Certainly, with the terms in which the Minister spoke of the court decisions to be made - I do not want to put words in his mouth – he suggested that it is a matter of a technical kind of decision-making by the courts, rather than any second-guessing of the substantial refusal of treatment.

Be that as it may, the Minister is changing the term “the unborn” to “her pregnancy”. He gave us the reason for that, which is to get away from the language of the eighth amendment. Is there any substantial difference? Does the Minister see avoiding a deleterious effect on "her pregnancy” as being in any way different in practice from avoiding a deleterious effect on "the unborn”? Does he see those phrases as completely comprehending the same thing? That is a question I am putting to the Minister.

Just because the phrase “the unborn” is no longer in the Constitution, why does it have to be the case that the phrase cannot exist in legislation in all of these situations? It seems that what is going on is to reduce the concept of the unborn to some kind of property right or bodily appendage. That is the only inference I can draw from why one would go to the trouble of excising the words “the unborn” and replacing them with “her pregnancy”. I asked the Minister whether it will make any substantial difference to what will happen. If it will not, I need do no more than express my personal regret that there is this kind of underlying attitude that nothing that is suggestive of external rights or external dignity to be enjoyed by the child is to be allowed in the terms of our legislation. I regret that. Again, I reiterate the point that it is out of keeping with the spirit even of the termination of pregnancy legislation, which as I have already said at great length, does accord, indirectly at least, through the continuing application of the criminal law to most situations post 12 weeks, some appreciation of the dignity and the demand for care and respect of what the Minister now calls “her pregnancy”, but which to people remains “the unborn”, “the child in the womb” and so on and so forth.

I regret this default to changing language. Perhaps the Minister will tell me that the wording is more precise or removes some mischief, or that some good will be achieved if we change the legislation. However, that is not what he has said. He has said he wants to get away from the language of the eighth amendment. The language of the eighth amendment left very clearly open to the Oireachtas the ability to protect the unborn, which it continues to have through the legislation of 2018. I listened carefully to the Minister’s views. However, I regret this reflex dismissal of references to "the unborn" and I reflect this kind of apparent allergy to any kind of wording that would tend to vindicate the rights or dignity of the unborn in any situation.

Mary Seery Kearney (Fine Gael)
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On this occasion, the term “the unborn” is so unbelievably loaded that I support the amendment. My one question is whether there a conflict in using the word “her” in the term "her pregnancy". Is there a conflict with other gender recognition legislation?

Rónán Mullen (Independent)
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I did not see that one coming.

Roderic O'Gorman (Dublin West, Green Party)
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The Senator is opposing section 74 of the Bill, which relates to the validity of an AHD and the role of the court in this regard. Section 89(2) concerns an application to the High Court for a determination regarding the applicability or validity of an AHD, which itself concerns life-sustaining treatment or the actions of a designated healthcare representative in respect of that directive. Section 89(3) of the 2015 Act is connected to section 89(2) and provides a basis for a healthcare professional to provide treatment to the directive-maker during the time the High Court is considering the directive and outside the context of the directive under consideration. Under section 89(3)(b)(ii) of the 2015 Act, such treatment can be extended to the unborn. The amendment to section 89(3)(b)(ii) of the 2015 Act, as set out in section 74 of this amendment Bill, will change the wording of section 89(3)(b)(ii) so it now uses the term “pregnancy”.To address Senator Mullen's question, this change to the terminology in the Act is to better reflect the changed legal landscape. The term "unborn" was used in the 2015 Act to take account of the legal position arising from Article 40.3.3° of the Constitution. Following the removal of Article 40.3.3°through the 36th amendment, the term is no longer relevant to the functioning of the Act.

At the same time, recognising the matters to be considered by the High Court under section 89(2) of the 2015 Act will still be relevant. After the removal of section 85(6) of the 2015 Act, it is apparent that section 89(3)(b)(ii) will still be important to ensure healthcare professionals can perform any acts they reasonably believe are necessary to avoid a deleterious effect on the pregnancy of the directive-maker while the courts make a determination in this regard. This may be particularly important in the context of clarifying and vindicating the will and preference of the directive-maker. This provision of the 2022 Bill thus both recognises the unique situation that may arise where a directive-maker who has lost capacity is pregnant, while at the same time underlining that the focus is on the will and preference of the directive-maker.

Regina Doherty (Fine Gael)
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What is the Minister's purpose in changing the language from previously specifying that healthcare professionals would intervene to protect or save the life of the unborn, to moving towards changing the language so that healthcare providers would intervene to protect the pregnancy? Are we trying to determine that the word "pregnancy" actually relates to the life of the baby in the womb of the women? A pregnancy is an event, and a long period of growing and lots of other warm, fuzzy stuff women talk about, but it is distinctly different to the life of the baby in the womb. A pregnancy is a term of nine months, or however many weeks it takes for a baby to grow from something as tiny as the head of a pin to what comes out when one's labour has finished. It is distinctly different to the unborn, which goes through completely different phases during that pregnancy. I am not sure if that is what we are saying, when we take out the word "unborn". I completely hear what people are saying about it being a loaded term but it is still a baby. It is not a pregnancy, which is an event that happens over many months. It is not a baby. Is that what we are saying by changing the terminology?

Rónán Mullen (Independent)
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I will follow on from that. Is it now the case that in all our future legislation there will never be anything but references to "the pregnancy", when what is meant is the child in uteroor, in Latin, the foetus, which I think means "little one", that clearly identifies the human entity as the child in utero? Is there are any openness to something more precise, following on from what Senator Doherty said, such as using the words "foetus" or "the child in utero"? Is the Minister in a position to tell us today whether there is any other legislation that mentions what the Constitution used to refer to as "the unborn" in terms other than "the pregnancy" or "her pregnancy"? I will leave that as a question.

I will ask another question. By the way, I marked my opposition to these sections because I am unhappy with certain aspects of them, though not all. I am clearly not opposing the section in general. I could just as easily have spoken to the section without saying I am opposing it but I will oppose it on Report Stage for sure, if there is no change on the other provision we discussed earlier. As I said, I am uncomfortable about the language used. I will ask one other substantive question. Again, as I said, it is so difficult to talk about these issues when there is a myriad of different healthcare situations that can arise, but there is no provision in this section allowing a healthcare professional to give treatment to avoid a deleterious effect on the unborn or on the pregnancy while a court decision is being made around considerations of non-life sustaining treatment. In other words, these are the provisions of section 89(1) that include considerations of an advance healthcare directive that do not relate to life-sustaining treatment but, presumably, to some other kind of treatment.

Could it ever happen that there would be some kind of treatment that would not necessarily be life sustaining for the mother the denial or refusal of which might be damaging to the unborn? Perhaps the answer is never but was any consideration given to that? I am not a medical person. It is clear that the only leeway given to a healthcare professional to continue to give treatment for the sake of the child while a determination is being made by the court only applies to cases where there is a discussion about life-sustaining treatment. I presume that is because there are no circumstances that would involve a directive-maker refusing in advance non-life sustaining treatment and which refusal could potentially harm the child in utero. Does the Minister have an answer to that question? It is noteworthy that the only leeway given is to the healthcare professional in circumstances where the issue before the court involves the refusal of life-sustaining treatment.

Roderic O'Gorman (Dublin West, Green Party)
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Like the Senator, I am not a medical person so I am afraid I am not in a position to give a detailed answer on that particular point.

On Senator Doherty's point, and bearing in mind the agreement on the removal of the term "unborn", when the provision is read in its entirety, it includes a situation where the directive-maker is a pregnant woman and there is a deleterious effect on her pregnancy. We are trying to achieve a situation, where a court case is ongoing regarding ambiguity around the advance healthcare directive, that ensures that protection and relevant treatment are provided during that period. The language substituted, namely, the effect on "her pregnancy", is an adequate replacement in encapsulating those nine months the Senator talked about and the range of circumstances medical professionals need to provide for to make sure adequate treatment is provided. It is an adequate wording and in our view, from a legal perspective, it is an adequate expression to use. Perhaps the Senator disagrees and has alternatives that could be used, but the existing wording captures both the relevant time period and the extent of the needs of the woman in question and, as such, that is why we chose it.

Rónán Mullen (Independent)
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Were the Minister kind enough to come back on Report Stage with specific answers to the questions I asked, I would be very grateful. The question I asked a moment ago might reveal my huge medical ignorance, as I said, but neither of us are medical people and it is very relevant. If it were the case, for example, that there were certain kinds of non-life sustaining treatment the refusal of which could actually endanger the unborn, it might bear on our thinking about the absence of a protection for the healthcare giver in that situation. I assume it is nonsensical to think there would be but I would be grateful for clarification on that before we all vote on this on a later Stage.

In the same way, the Minster said the role of the court would be to resolve an ambiguity. Is it only where there is ambiguity in the advance healthcare directive that the courts would have a role? It is not necessarily ambiguous, on one reading, that an advance healthcare directive is silent on what is to happen in the case of pregnancy. It is silent and it speaks from its silence. A view could be taken that that is not ambiguous but in fact means no care and care is being refused, full stop. Is the courts' role only for the resolution of ambiguities? Is it clear from the legislation, or is there any scope, for the court to have any jurisdiction to overturn the clearly expressed provisions of an advance healthcare directive?

Roderic O'Gorman (Dublin West, Green Party)
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The relevant provisions of section 89(2) set out the situations in which the High Court may make a declaration.The High Court may make a declaration as to whether an advance healthcare directive is valid, an advance healthcare directive is applicable or a designated healthcare representative is acting in according with the relevant powers. Those are the provisions set out by the legislation in respect of the range of declarations the High Court can make.

Regina Doherty (Fine Gael)
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I do not think I am going to change the Minister's mind. I understand the Minister is saying that changing the language means there will be interventions which will protect the woman's pregnancy or the person's pregnancy. By association, we are supposed to assume or come to the conclusion that this means we would be intervening to protect the life of the baby. Have we become so politically sensitive, if that is the right way to put it, that we do not talk about babies in the womb any more? It is bizarre. The healthcare directive, whether silent or not silent, should be all about protecting life. When a person is pregnant, there are two lives involved. We do not need to shy away from mentioning the fact, or being specific about the fact, that there are two lives involved. It is not just the pregnancy we are protecting. The baby is a part of the pregnancy as well as the mother we should be protecting. I do not know why we are so afraid to talk about that in language and legislation any more. It is mad.

Mary Seery Kearney (Fine Gael)
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I will come back to Senator Doherty's view on pregnancy and reiterate the legal definition of a pregnancy, which is that it encompasses the period of time from implantation until delivery. The Bill states: "A woman shall be assumed to be pregnant if she exhibits any of the pertinent presumptive signs of pregnancy, such as misses menses, until the results of her pregnancy test are negative or until delivery." A foetus means "the product of conception from implantation until delivery". I support the proposal to change the word "pregnancy" to "foetus" as being more relevant, correct and legally correct.

Regina Doherty (Fine Gael)
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It should say both. The words "pregnancy" and "foetus" should be included.

Rónán Mullen (Independent)
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Are you saying you would prefer the word "foetus" to "pregnancy"?

Mary Seery Kearney (Fine Gael)
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That is right.

Mark Daly (Fianna Fail)
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Please speak through the Chair.

Mary Seery Kearney (Fine Gael)
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I apologise. In answer to the Senator, I am saying that.

Rónán Mullen (Independent)
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The Minister has the apparatus of State behind him. Would he mind addressing the issues I have raised today on Report Stage? Will he address the specific questions I have asked, including the one about non-life-sustaining treatment?

Roderic O'Gorman (Dublin West, Green Party)
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I will do my best to address those points for the Senator.

Rónán Mullen (Independent)
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I am withdrawing my opposition. I am happy to wait until Report Stage.

Mark Daly (Fianna Fail)
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Amendments Nos. 47 to 50, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 47 proposes to amend section 96 of the 2015 Act, making a minor amendment to the director's investigative powers to facilitate broader improvements to complaint mechanisms throughout the Act. Both this amendment and other amendments in this group seek to allow the director greater control over how to resolve investigations undertaken on his or her own initiative. These include extending powers to reviews of complaints. It will still be necessary for the director's procedures to be published to allow for transparency. However, this amendment facilitates other improvements to complaints provisions in the Bill.

Mark Daly (Fianna Fail)
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Amendments Nos. 51 and 53 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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These amendments provide for minor technical amendments to ensure that the relevant person is a notice party where a temporary prohibition order has been issued by the court.

Mark Daly (Fianna Fail)
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Amendment No. 52 has been ruled out of order. It would require the provision of legal advice and legal aid to the relevant person when an application is made for a temporary prohibition order. The provision of legal advice and legal aid would then implicate a cost on the Exchequer.

Mark Daly (Fianna Fail)
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Amendment No. 54 has been ruled out of order as it includes a potential charge on the Revenue.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment will allow for disabled persons and their representative organisations to be consulted by the director when codes of practice are being developed. Consultation was a strong theme during pre-legislative scrutiny and was also raised during the Dáil debates on this Bill. I am, therefore, pleased to propose an amendment which recognises the importance of the inclusion of disabled persons in the development of the relevant code of practice.

Mary Seery Kearney (Fine Gael)
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I welcome this good amendment. However, the period of time for public consultation on the codes of practice has been disputed by a number of the representative organisations. They have said it was too short and occurred over Christmas, a time when they could not produce the information required. Consultation must be in a form that allows people to receive, digest and comment on the information. I am delighted with these specific inclusions and will, of course, fully support the amendment. However, I think we need to be more sensitive so that next time around, we do not run the consultation over a Christmas period or at a time when people are on holidays. We must ensure that assistance and valuable input from those who are most affected are not in any way diluted or diminished.

Roderic O'Gorman (Dublin West, Green Party)
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I take the Senator's point.

Mark Daly (Fianna Fail)
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Amendments Nos. 56 and 57 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 56 amends section 107 of the 2015 Act. Amendment No. 57 amends section 108 of the 2015 Act. These amendments seek to ensure that appropriate detention review periods are in place for persons whose continued detention may be necessary for treatment and where it is ordered by the wardship of the High Court. This increased frequency of review proceedings will further protect the rights of relevant persons and bring provisions in line with those of the Mental Health Act 2001. It is essential that persons who require ongoing treatment are afforded the same rights and safeguards as others.

Fintan Warfield (Sinn Fein)
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I move amendment No. 60:

In page 71, between lines 26 and 27, to insert the following: “Amendment of section 146 of Act of 2015

91.Section 146 of the Act of 2015 is amended by the insertion of the following:

“(1) Such review will examine the operation, interpretation and accessibility of this Act and make recommendations for reform accordingly. Such review shall include consultation with, and the active involvement of, persons with disabilities through their representative organisations. Such review shall thereafter take place every 3 years.”.”.

Those who campaigned for this legislation specifically argued that a comprehensive review clause was necessary to ensure that the Act remained under ongoing review at regular intervals, given the pace of change in this area globally, as well as advances in practice on the ground. Therefore, we are recommending the addition of a further provision to ensure that the Act is reviewed thereafter every three years. On Committee Stage in the Dáil, the Minister stated that it would not be appropriate to have a rolling review of legislation and that after the initial reviews the stakeholders could decide whether the legislation required further review, amendment or overhaul. This approach, however, is inadequate as stakeholders would not have a legislative entitlement to demand a review. Given that this is an evolving area of law reform, reviews are essential.

Roderic O'Gorman (Dublin West, Green Party)
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I understand that the intention of this proposed amendment is to broaden the review procedures. A review is already provided for in the legislation. The text being proposed by Senator Warfield would have the unintended consequences of restricting a review to only the matters stated. It is important to ensure that review provisions are broad enough to address whatever issues may arise in the context and operation of the Act. I think this proposed amendment would have a limiting role in respect of how the review would operate, so I am not in a position to accept it.

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Fintan Warfield (Sinn Fein)
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Yes. I am still a little confused about why this amendment is not being accepted.

Fintan Warfield (Sinn Fein)
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I move amendment No. 61:

In page 72, to delete line 12 and substitute the following: “(b) a person who, arising from his or her ill health, is resident in a hospital or other similar health care facility or is otherwise (with permissible and practicable decision-making supports and reasonable accommodation consistent with the right to a trial in due course of law) unable to perform the duties of a juror.”.”.

Section 91(b) would introduce a discriminatory prohibition on certain persons with psychosocial or intellectual disabilities serving on juries. This is inconsistent with the principles of the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, which prohibits discrimination based on impairment. Section 13(1) of the UNCRPD expressly requires states to ensure the provision of procedural accommodations to facilitate the role of people with disabilities as participants in legal proceedings. During pre-legislative scrutiny of this legislation, the Joint Committee on Children, Equality, Disability, Integration and Youth expressly recommended, "The Bill should adopt the UNCRPD understanding of disability, especially concerning eligibility for jury service". This was recommendation No. 8. It also recommended that the language used concerning eligibility for jury service should, "be inclusive of a broader range of disabled people and to avoid the use of impairment-based language...which is discriminatory and inconsistent with the 2015 Act".

Roderic O'Gorman (Dublin West, Green Party)
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This amendment proposes further amendments to the Juries Act 1976. The policy and legislative responsibility for that Act rests with the Minister for Justice and the relevant sections of the amendment Bill have been brought forward jointly by myself and the Minister for Justice. Section 91 of the Bill was introduced to remove the prohibition on persons serving on a jury who, in the problematic wording of the original section, and again I am using the original wording, has or had "a mental illness or mental disability" and are receiving medical treatment or are "resident in a hospital or other similar institution".

The intention of the Bill is that capacity to sit on a jury would be assessed on a functional capacity basis. All persons should be eligible for jury service where the court is satisfied they have the capacity to fulfil the duties of a juror. This supports the use of a functional capacity test to allow the court to assess eligibility at the time of service. For that reason, I am not in a position to accept the amendment today.

I should add that my colleague, the Minister for Justice, intends to establish a working group to examine possible reforms to the Juries Act 1976 in the months to come. This review will be wide-ranging and I will ask the Minister to ensure it will review the whole area of capacity to act as a juror, considering the provisions of the Assisted Decision-Making (Capacity) Act 2015.

Fintan Warfield (Sinn Fein)
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I welcome that this working group is going to be set up, but does the Minister accept that this is inconsistent with the principles of the UNCRPD regarding ensuring they are participants in legal proceedings?

Roderic O'Gorman (Dublin West, Green Party)
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We have already brought forward amendments in the Dáil that will significantly address the problematic language that was used and problematic exclusions that were provided for under the 1976 Act. Through use of the functional capacity test and by supporting individuals to be able to meet the functional capacity test and be able to undertake jury duty, this legislation is a significant improvement. Notwithstanding that, however, we can continue to examine this aspect and we have the opportunity to do that now in the context of the work that the Minister, Deputy McEntee, is doing concerning the review of the Juries Act 1976.

Mark Daly (Fianna Fail)
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Amendments Nos. 62, 75, 91 and 80 are related and may be discussed together by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 62 makes consequential amendments to the Courts and Court Officers Act 1995. These amendments are required as the result of other amendments I am moving to the Nursing Homes Support Scheme Act 2009.

Mark Daly (Fianna Fail)
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Amendments Nos. 76 to 78, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Fintan Warfield (Sinn Fein)
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I move amendment No. 76:

In page 75, line 18, to delete “2006;”,” and substitute the following:

“2006;

(hb) in the performance of its functions as the independent monitoring mechanism under the Convention, to ensure extensive and meaningful engagement with all persons with disabilities in the State, in accordance with Articles 1, 4(3), and 33 of the Convention;”,”.

This amendment creates an obligation on the Irish Human Rights and Equality Commission, IHREC, to meaningfully engage with people with disabilities directly in order to obtain information and advice on how the rights of disabled people are being impacted by Ireland's laws and policies, as required by the UN Convention on the Rights of Persons with Disabilities, CRPD. It will ensure the IHREC consults with a wide range of people with disabilities rather than just those who are members of the disability advisory committee, thereby ensuring a larger and more comprehensive range of views from people is included in its assessment of Ireland's compliance with the requirements of the CRPD.

On amendment No. 78, the Minister did not accept this amendment on Committee Stage in the Dáil where he stated there was a need for consistency across legislation. The definition contained in the Disability Act 2005 is well known and well used. However, it is important to note that the 2005 Act was enacted before the drafting and adoption of the CRPD. For this reason, I encourage the Minister to reconsider his approach to the amendment.

On amendment No. 77, the Bill provides welcome clarity on the role of IHREC's disability advisory committee but it would be more appropriate to increase the required proportion of disabled people on the committee from half, as provided for in the Bill, to two thirds of its membership. This would still allow for members from other interested stakeholders and allies, including family members of disabled people, while ensuring that disabled people remain in the clear majority on the committee. The expertise of disabled people is the most relevant kind of expertise for the task of advising on the implementation of the CPRD.

Roderic O'Gorman (Dublin West, Green Party)
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The language used in amendment No. 76 is very definitive. It requires a "meaningful engagement with all persons with disabilities in the State". That is an incredibly broad and onerous obligation to put on IHREC in legislation. It is not generalised; it refers to all persons with disability in the State. IHREC could do a detailed consultation and miss out on engaging with one person. I am not being hyperbolic; this is a possibility based on the language used here. We are not in a position to accept language of such a broad nature.

On amendment No. 78, the definition in the Disability Act 2005 is broadly consistent with a social model conception of disability. It is important that the legal definitions within the Irish Human Rights and Equality Commission Act 2014 are consistent with other definitions contained within primary law. As Senators will be aware, there are important provisions on disability contained within the Equal Status Acts and the Equality Employment Acts and any definition needs to be aligned with them. The meaning that is assigned to "disability" within the 2005 Act is well established, widely known and widely used. While I accept the intention behind this amendment, the term provided in it is not suitable and will not align with other terms used throughout legislation. For this reason, I am not in a position to accept the amendment.

On amendment No. 77, if the Senator is prepared to withdraw this amendment, I will consider the issue of changing the membership requirement from 50% to two thirds. I want to look at the language around that but we can consider the matter.

Mary Seery Kearney (Fine Gael)
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I accept, with regard to amendment No. 76, that the wording is imperfect. To return to our discussion of last week, I have a slight concern that we will bring in legislation, the raison d'être of which is to ensure that people's voices are heard, which, owing to the review of the Mental Health Act, is imperfect because it cannot include everything it would and should include. In that context, we relied on IHREC to merely make a submission, rather than having a proactive engagement with its representatives, in the creation of this legislation. We talked last week about whether there was actual engagement and I did not hear an affirmative answer to that question. From that perspective, given that the function of this entity is to ensure we comply with our international obligations, we should have proactive engagement with its representatives, rather than relying on it to send in a submission in the context of a public consultation or call for submissions. IHREC should have a more engaged role, almost a statutory one, and that is part of what is behind this amendment. I support the spirit of the amendment, although the wording is imperfect.

I acknowledge that the Minister is considering the change proposed in amendment No. 77. This is important. If we are going to live by the adage, "Nothing about us without us", having a committee with a majority of people with a disability, rather than their allies, family members and otherwise, would truly live up to that obligation. It would be an excellent thing for us to do.

Fintan Warfield (Sinn Fein)
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What Senator Seery Kearney has just said speaks to the need for a more diverse Seanad also. I have never tried to get around this place.

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Fintan Warfield (Sinn Fein)
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No. We are discussing people's rights. I am not saying that if we had a more diverse Seanad, a disabled person would be here to talk about this issue. No one would be obliged to do that. I do not talk about everything related to LGBT people. However, if we are to live by that adage, "Nothing about us without us", we need to take a serious look at diversity in this Chamber and among Senators.

Roderic O'Gorman (Dublin West, Green Party)
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If I may briefly speak to the point, it is important to note that in this Bill we are legislating for IHREC to be the monitoring body of our nation's implementation of the convention. IHREC is central to how this legislation and, indeed, how the CRPD will be implemented in this country, as per section 95. Notwithstanding what has been raised regarding the consultation - and I accept the earlier point about it being held over Christmas - IHREC will be central to this and we are legislating to ensure that.

Fintan Warfield (Sinn Fein)
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I will withdraw amendment No. 76.

Fintan Warfield (Sinn Fein)
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I move amendment No. 77:

In page 75, line 31, to delete “at least half” and substitute “two-thirds”.

Fintan Warfield (Sinn Fein)
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I move amendment No. 78:

In page 75, lines 32 and 33, to delete all words from and including “have,” in line 32 down to and including line 33 and substitute the following:

“be persons with disabilities within the meaning of Article 1, United Nations Convention on the Rights of Persons with Disabilities.”.”

Mark Daly (Fianna Fail)
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Pursuant to Standing Order 154, it is reported that the committee has amended the Title to the Bill.

Mark Daly (Fianna Fail)
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When is it proposed to take the next Stage?

Regina Doherty (Fine Gael)
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We are scheduled to complete this Bill next Wednesday. We have an hour and 15 minutes scheduled with a finish time and early signature order of 2 p.m. on Wednesday. Does the Minister propose to come back on sections 73 and 74 before or on Wednesday? How does he propose to address the concerns that were raised today before we resume on Wednesday?

Roderic O'Gorman (Dublin West, Green Party)
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I will consult my team on the issues raised today. I may be in touch with the Leader's office on the scheduling for next week.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed.

Mark Daly (Fianna Fail)
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When is it proposed to sit again?

Regina Doherty (Fine Gael)
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Next Tuesday at 2.30 p.m.