Patrick Costello (Dublin South Central, Green Party) | Oireachtas source

I thank the witnesses for their thought-provoking and excellent evidence and statements. I have many questions but I am not sure I will get through them all in the first round. There might be a second round, but we will see.

Consider the nature of consent, which must be free, informed and voluntary and require the necessary capacity to make a decision. Let me dig into the structure of vulnerability and unmet needs. The issue of unmet needs was also raised by the Irish Human Rights and Equality Commission. One of my questions concerns the point at which unmet needs become associated with coercion and whether this can be assessed. Is it the same for everybody in every circumstance? I would assume not. Is it something we can properly assess? How do we build in a safeguard? Can we actually do so?

There has been some talk about wills, the Succession Act and such measures. Where there is a will, an independent witness gives evidence as to capacity. Is there an argument for requiring an independent witness, perhaps one outside the medical sphere? Acknowledging that the parallel with making a will is incomplete, I am referring to someone other than the treating medical doctor who would act as an independent witness who could also attest to capacity.

On some of the consent issues, Mr. Keyes started by saying that we cannot consent to being hurt. I have a load of questions round that but the most fundamental question is would that become moot in the face of legislative change? If we bring in legislation, would it fundamentally change that position? With DPP. v. Brown it was my understanding that it was the criminal and fraudulent nature of it that eradicated the consent. Mr. Keyes mentioned R. v.Brown in his submission but a lot of people would say that would probably be decided differently because it is more about the House of Lords' squeamishness as to what was going on, rather than the actual issue of consent. Consider also R. v.Wilson, where branding was allowed and the interesting judgment in R. v.Stein where the court said that such things were permissible so long as one could withdraw consent. This then raises the question whereby the law seems a little bit more fluid here, but does the legislative change render it moot? Then there is the withdrawal of consent piece. How important is the ability to withdraw consent to that free, informed capacity to give consent? This then goes into the interaction of the Assisted Decision-Making (Capacity) Act and the other judgments in the courts that we have been dealing with. The courts have set up the difference between acts and omission. I would like to dig into this. If I have made in advance directive asking "Please give me X,Y or Z life saving treatment", then I have lost capacity and say "Now I do not want this" but my previous directive says to give it to me, will the courts step in? One is then into a situation of looking at a positive act to save my life and I am saying "No" based on my current incapacitous position, despite my previous capacitous position where I said "Give it to me." Obviously, this is stepping in to provide treatment to save a life as opposed to stepping in to provide treatment to end a life. There is a similar logic there: will we see the courts saying "Well you said you would sign it when you had capacity". Given that interaction, is it realistic that we would see the courts stepping in on that to make demands of that - if this makes sense - and in a way overriding the withdrawal of consent that happened after the person had lost capacity? There is a lot there. Good luck to Mr. Keyes getting through that in the two minutes left. I apologise.