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 Header Item Credit Reporting Bill 2012: Report and Final Stages (Continued)
 Header Item Estimates for Public Services 2013: Message from Select Sub-Committee
 Header Item Assisted Decision-Making (Capacity) Bill 2013: Order for Second Stage
 Header Item Assisted Decision-Making (Capacity) Bill 2013: Second Stage

Tuesday, 3 December 2013

Dáil Éireann Debate
Vol. 823 No. 2

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Acting Chairman (Deputy Olivia Mitchell): Information on Olivia Mitchell Zoom on Olivia Mitchell A message shall be sent to the Seanad acquainting it accordingly.

Estimates for Public Services 2013: Message from Select Sub-Committee

Acting Chairman (Deputy Olivia Mitchell): Information on Olivia Mitchell Zoom on Olivia Mitchell The Select Sub-Committee on Finance has completed its consideration of the following Supplementary Estimate for Public Services for the year ending 31 December 2013: Vote No. 18.

Assisted Decision-Making (Capacity) Bill 2013: Order for Second Stage

Bill entitled an Act to provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or in the future; to provide for the appointment by such persons of other persons to assist them in decision-making or (subject to the approval of the Circuit Court) to make decisions jointly with such persons; to provide for the making of applications to the Circuit Court or High Court in respect of such persons, including seeking the approval by the Circuit Court of co-decision-making agreements or the appointment by the Circuit Court of decision-making representatives for such persons; to enable, in specified circumstances, informal decision-making to be done in respect of such persons by other persons who are not decision-making assistants, co-decision-makers, decision-making representatives or attorneys for such persons; to provide for the appointment and functions of the Public Guardian in respect of persons who require or may shortly require assistance in exercising their decision-making capacity; to provide for the amendment of the law relating to enduring powers of attorney; to provide for the ratification by the State of the Convention on the International Protection of Adults; and to provide for related matters.

Minister of State at the Department of Health (Deputy Kathleen Lynch): Information on Kathleen Lynch Zoom on Kathleen Lynch I move: "That Second Stage be taken now."

Question put and agreed to.

Assisted Decision-Making (Capacity) Bill 2013: Second Stage

Minister of State at the Department of Health (Deputy Kathleen Lynch): Information on Kathleen Lynch Zoom on Kathleen Lynch I move: "That the Bill be now read a Second Time."

I am delighted to present to the Dáil the much anticipated Assisted Decision-Making (Capacity) Bill 2013. It is fitting it should be debated today on the International Day of People with Disabilities. This Bill is the fulfilment of the Government's commitment in the programme for Government to introduce a mental capacity Bill in line with the UN Convention on the Rights of Persons with Disabilities. We specified that our aim was to “reform the law on mental capacity to ensure the greatest degree of autonomy for people with intellectual disabilities or suffering with mental illnesses”.

The Assisted Decision-Making (Capacity) Bill proposes a fundamental reform of Ireland's laws on capacity. It has been framed to meet Ireland's obligations under the UN Convention on the Rights of Persons with Disabilities which requires State parties to eliminate barriers preventing people with disabilities from enjoying their human rights and fundamental freedoms. Accordingly, the existing wardship system, which supplanted the person's decision-making capacity, is being abolished. It will be replaced by a significantly less intrusive system which is focused on supporting decision-making capacity rather than on supplanting it.

All persons will be presumed to have legal capacity and the right to equal recognition before the law. The Bill proposes to remove the archaic legal architecture which governed this area for too long. The Marriage of Lunatics Act 1811 will be repealed. The Lunacy Regulation Act 1871 will cease to have effect. The Bill is designed to meet the needs of older people with degenerative conditions, people with intellectual disabilities and those with mental health issues. The existing options, namely wardship and enduring powers of attorney, were not sufficiently attuned to their needs. These are diverse groups with very different needs. Accordingly, we have devised a range of decision-making support options to respond to a wide spectrum of capacity needs. A new decision-making assistance option has been designed for those who simply need support with sourcing and interpreting information.

There is a new co-decision-making option which will give those with greater capacity needs the possibility of making joint decisions with a trusted family member or friend. The enduring power of attorney option is being extended to encompass health care. This will enable those with degenerative conditions to undertake advance planning across a wider range of issues. As a last resort, where the person has serious capacity issues, the courts will be able to appoint a decision-making representative to take decisions on the person's behalf. However, in contrast to the current practice under wardship, the decision-making representative will be required to respect the person's wishes, where at all possible. We have underpinned the Bill with guiding principles that must be taken into account for all actions foreseen under this legislation. These are the heart of the Bill and will reach into every decision taken under it.

They require the actions taken under this legislation to reflect the person's will and preferences. They also require that any actions taken must intrude as little as possible onto the person's autonomy. We recognise that vulnerable people can be at higher risk of exploitation. Accordingly, the Bill provides for a series of safeguards. The office of the public guardian, the office proposed to manage this area, will have the duty of supervising those tasked with supporting others. It will be able to investigate complaints and to take action accordingly. We have decided that the agreements to appoint either a co-decision-maker or a decision-making representative must be approved by the Circuit Court. We consider that the courts-based system will allow the person to avail of these more intensive supported decision-making options, secure in the knowledge that these enjoy legal certainty and that any abuse of court orders will bring penalties. A court-based system will enable capacity-related disputes to be adjudicated and instances of exploitation to be prosecuted.

Part 1, sections 1 to 7, inclusive, provides standard provisions relating to citation, commencement and laying of regulations. Section 3 provides for a functional approach to determining capacity. This is a significant step forward from the current wardship model which removes the person's capacity totally to take decisions or to enter legal transactions. Instead, this new approach assesses capacity in a time-specific and issue-specific way. It allows for a person to have capacity in one matter but not in another, enabling the person to retain the possibility of taking some decisions even when needing support on more complex matters. The functional model of capacity represents the most widely accepted modern capacity model internationally and is fully consistent with the UN Convention. Section 4 confers jurisdiction on the Circuit Court to deal with determinations of capacity and to make consequent orders. Matters relating to non-therapeutic sterilisation, withdrawal of artificial life-sustaining treatment or organ donation are reserved to the High Court.

Part 2, section 8, sets out guiding principles which apply to every intervention under the Bill. They are intended to embed the ethos that the person's autonomy is to be safeguarded to the greatest extent possible. The first guiding principle is that a person is presumed to have decision-making capacity, unless it is proven that this is not the case. Legal capacity is, of course, presumed. The second guiding principle is that all practical steps have to be taken to support a person's decision-making capacity before a decision can be taken that he or she lacks capacity. The third is that a person cannot be deemed to lack decision-making capacity just because of a risk that he or she might make an unwise decision.


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