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

I move amendment No. 38:

In page 14, lines 21 and 22, to delete “decision-making assistance agreement,”.

Amendment No. 38 proposes to remove the reference to "decision-making assistance agreement" as a person will not have to undergo a capacity test to enter a decision-making assistance agreement. If a person believes that his or her capacity is in question or will shortly be in question, he or she is free to decide to enter a decision-making assistance agreement.

Amendment No. 39 extends the provisions of this section to the creation of advance health care directives.

Amendments Nos. 40 and 42 propose to tighten the capacity test that will apply in the Bill. The Bill contains a presumption of capacity unless the contrary is shown. My objective in this section is to ensure the vast majority of persons will be able to meet the capacity test and be deemed to have capacity.

The aim of the capacity test is to ensure a person has the capacity to make a specific decision. It is not a mechanism for declaring a person to lack capacity for ever more. The first amendment is that the person needs to understand information relevant to a decision at the time a decision is to be made. This amendment is intended to ensure a person is not expected to understand and retain information for months in order to be deemed to have capacity. The test is directly linked to the type of decision and the time when it has to be made.

In a similar vein, amendment No. 41 seeks to make clear that the test relates to a particular decision rather than to decisions in general. A person may be found to need support to make a specific decision. That may not have implications for the person’s ability to make other decisions.

Amendment No. 43 proposes that the person needs to have capacity to retain information long enough to make a voluntary choice. This is to ensure a person could not be deemed to lack capacity if he or she could not retain information relevant to the decision for a significant period. The aim is to tie the test directly to the demands of the decision needing to be made, in line with the functional approach being adopted.

Amendment No. 44 is to correct a typographical error.

Amendment No. 45 proposes a change of terminology recommended by disability stakeholders.

As members know, we have always proposed that the capacity test should be a functional test whereby the person’s capacity is assessed against the demands of the decision or decisions needing to be made. Amendment No. 46 seeks to make even clearer that this is a functional test which is not based on whether a person has a particular condition.

The new provisions make clear that the capacity test is time-limited and issue-specific. A person, even if found not to have the capacity to make a particular decision, will still have the possibility to make that decision or category of decisions at another time. Similarly, even if the person is found not to have the capacity to make a decision on a particular issue, such as on a complex financial matter, for instance, that person still retains the capacity to take other decisions, such as on personal welfare. These provisions illustrate the difference between the capacity test as proposed and the on-or-not regime in operation under the Lunacy Regulation (Ireland) Act 1871 which removes the person’s capacity to take all decisions once declared a ward of court.

The purpose of amendment No. 47 is to remove the test in order that matters can be decided on the balance of probabilities. As there is a presumption of capacity in section 8(2), the starting point is that the person has capacity unless that is demonstrated otherwise.

The test must, therefore, be that the person has been demonstrated not to have capacity on the issue on which a decision is needed.