Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move amendment No. 24:

In page 12, between lines 25 and 26, to insert the following:“ “personal welfare”, in relation to a relevant person, means one or more of the following matters:

(a) accommodation, including whether or not the relevant person should live in a nursing home or residential facility;

(b) participation by the relevant person in employment, education or training;

(c) participation by the relevant person in social activities;

(d) decisions on any social services provided or to be provided to the relevant person;

(e) healthcare;

(f) other matters relating to the relevant person’s well-being;”.

Amendments Nos. 24, 55 and 195 propose a revision of the definition of personal welfare and the removal of the definition from section 25(a) to the general interpretations section, as these provisions extend beyond decisions made by decision-making representatives and include decisions on personal welfare made by co-decision makers, where authorised by a co-decision making agreement, and by attorneys under enduring powers of attorney.

Amendment No. 24 inserts a revised definition of personal welfare into section 2, the general interpretation section. The proposed definition of personal welfare has been significantly recast in the light of concerns raised by stakeholders, particularly in relation to the explicit inclusion of provisions enabling the intervener to decide the persons with whom the relevant person may have contact. The Department of Foreign Affairs and Trade has raised concerns regarding the provision that the intervener could decide whether or not the person may travel outside the State. This provision may also contravene Article 18 of the UN Convention on the Rights of Persons with Disabilities, which stipulates that the relevant person should be free to leave any country, including his or her own.

The recast definition adapts the provisions of the British Columbia Representation Agreement Act 1986, which is considered to constitute good practice in terms of compliance with the UN Convention, and the Ontario Substitute Decisions Act 1992. The definition focuses more on the likely decisions that an intervener would have to make, such as whether the relevant person might have to move to a nursing home or whether the person would participate in employment, training, education or social activities. The issues of diet and dress are encompassed within the general provision enabling the intervener to take decisions relating to the person’s well-being. It is considered preferable not to refer to these issues explicitly, as these are issues on which the relevant person may continue to have the capacity to take his or her own decisions, even when the capacity to take other decisions is seriously diminished. Acceptance of this amendment will result in the deletion of section 25.

Amendments Nos. 55 and 195 are a consequence of the acceptance of amendment No. 24 which will result in the deletion of section 25. Amendment No. 55 proposes the deletion of the definition of personal welfare in section 9, under definitions in relation to co-decision-making, which refers to one or more of the matters referred to in section 25(a). Amendment No. 195 proposes the deletion of the definition of personal welfare in section 39, under definitions in relation to enduring powers of attorney, which also refers to section 25(a).