Tommy Broughan (Dublin North East, Labour) | Oireachtas source

I am pleased to have an opportunity to speak on the Assisted Decision-Making (Capacity) Bill 2013. I note that the Minister of State has consulted various interest groups and experts in preparing this complex legislation. I commend her for the energy with which she has taken an interest in this matter over recent years. I congratulate her on bringing this Bill, which has been in gestation for such long time, before the House. It has been repeatedly delayed and is long overdue. Over five years have passed since the scheme of a mental health capacity Bill was published. It is regrettable that it has taken so long to get to the point at which substantive legislation is being progressed through the House.

The key principles of this Bill, as outlined by the Minister of State, represent an important step forward in this whole area. I refer in particular to the decision to bring the wards of court system to an end and provide for a better legal framework. I am pleased that the current all-or-nothing status approach is being abandoned in favour of a more functional approach. I also welcome the section of the Bill clarifying the law in relation to carers. As the previous speaker said, carers are often left in a very difficult situation.

The Bill still requires carers to deal with the legal system, which many people will find quite difficult to do, but it certainly clarifies the law to a considerable extent.

The Bill represents a welcome reform to the law on mental capacity. In Ireland, we have operated under an archaic system, particularly by continuing to have the Lunacy Regulation (Ireland) Act 1871 on the Statute Book. The persistent failure to reform this area has met with criticism internationally, including by the Council of Europe and the United Nations. As the Minister of State has pointed out, the Bill will facilitate Ireland's ratification of the United Nations Convention on the Rights of Persons with Disabilities 2008. It is of course most welcome that the State would ratify the convention. However, concern has been expressed that the Bill does not go far enough to ensure the State is compliant with the convention. I note the Bill makes specific reference to giving effect to the Hague Convention on the International Protection of Adults, which is also welcome.

As has been widely acknowledged, the Bill contains a functional approach to capacity in section 3 and we have rightly moved away from the other status-based approach or the outcomes approaches. This is very welcome because the "best interests" test of capacity was contained in the general scheme of the Mental Capacity and Guardianship Bill 2008. The general approach of looking at functionality in determining an individual's capacity has been recognised as best practice nationally and the paternalistic "best interests" approach is being moved away from.

There are extensive provisions in the Bill with regard to the decision-making assistance agreement under section 10 and the co-decision-making order in section 18. The Bill contains further extensive provisions concerning the power of the court to make orders and appoint decision-making representatives. Of course, there is no automatic right to legal representation in all these categories of cases, which is something the Minister of State might consider for inclusion on Committee Stage. Clear rules are obviously important in this context. However, some experts have called into question whether the operation of some aspects of the Bill actually adopts a functional approach to capacity. Dr. Eilionóir Flynn of the Centre of Disability Law and Policy at NUI Galway has suggested that the new regime under this Bill could still effectively provide for a continuation of facilitating substitute decision-making. She has suggested that the use of the word "guardian" in the office of public guardian due to be established under Part 8 of the Bill is problematic because guardian suggests an approach whereby substitute decision-making would be the norm.

Another concern with the Bill is the future interface between this legislation and the Mental Health Act 2001, which relates to people with mental disorders. However, voluntary patients have few of the safeguards that apply to involuntary patients detained under the Mental Health Act 2001. This is a particular problem for incapacitated compliant patients or the de factodetained. English mental health law has been amended to address concerns about the potential lack of safeguards around administering treatment and the detention of incapacitated compliant patients following the decision of the House of Lords in HL vUnited Kingdom. The relevant legislation in England and Wales was amended after the House of Lords criticised the lack of formal safeguards in place for the applicant's detention in that case. One academic commentator, Dr. Darius Whelan of University College Cork, has suggested that even with the reform to capacity legislation contained in this Bill, the so-called Bournewood gap, identified and mostly remedied under English law, will still persist under Irish law. As the Minister of State knows, the Bournewood gap refers to people who enter institutions voluntarily and later become incapacitated. How will the Bill address the concerns of such citizens?

Age Action Ireland has helpfully prepared a very insightful analysis of the Bill for Deputies. I share some of its concerns about this Bill, particularly in the area of restraint. It has been suggested, for example, that the Bill fails to set out any mechanisms to deal with an unlawful deprivation of a person's liberty and this must be resolved. Again the Minister of State may consider addressing this on Committee Stage. Age Action Ireland has cautioned that in the particular context of older citizens, a misuse of the Bill's provisions for restraining a person could lead to an abject abuse of power. As Deputy Reilly indicated, we have a dreadful history of elder abuse.

A related concern about the Bill is the lack of specificity about the powers of informal decision makers under Part 7. It has been suggested that because informal decision makers are not subject to invigilation by the office of the public guardian, potential problems may arise and the general spirit of the Bill, which is to have supported decision-making and a functional approach to capacity, will be eroded by potential overuse of the informal decision maker's powers.

I am also concerned about the onerous obligations the legislation could impose on some carers, who are already going through a time of very real difficulty when caring for a vulnerable adult or child. A number of commentators have urged that the office of the public guardian must be adequately resourced in order for it to be able to perform its functions satisfactorily. I note we received a basic cost analysis in the very fine document prepared on the Bill by our Oireachtas research staff.

A comprehensive information campaign should accompany the enactment of the Bill so that affected persons will be supported in knowing their duties and obligations: I am sure the Minister of State will do that. In a similar vein, it has been suggested that legal aid for matters arising under this Bill should be fast-tracked, rather than having to go through the regular legal aid process. Perhaps this could be remedied on Committee Stage.

I thank the Ceann Comhairle for indulging me with some extra time, as he often does. Overall, I welcome this Bill. I commend the Minister of State on her extensive efforts. The Bill has been talked about for 20 or 30 years and we finally have it before us. Some of the key concerns identified by experts in this area should be considered and the Bill could be amended on Committee Stage. The scope of the powers of informal decision makers should be more clearly defined and if necessary circumscribed. Amendments should also be made to the provisions of the legal aid legislation to ensure speedy access to legal aid for vulnerable citizens affected by this legislation, particularly as the legal framework for those who may avail of this legislation is becoming much more complex.

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