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

I move amendment No. 169:

In page 41, lines 35 and 36, to delete “Without prejudice to the generality of section 25(a)(ii), nothing” and substitute “Nothing”.

This amendment would prevent a decision-making representative from having the power to prohibit a particular person from having contact with a person lacking capacity. This is to ensure that the person with capacity difficulties is not prevented from seeing friends or family or potentially isolated from friends or family by a decision-making representative.

Amendment No. 170 is an additional safeguard to prevent unnecessary intrusion by a decision-making representatives into the decision-making autonomy of a person with capacity difficulties. This is in line with the Bill's ethos to minimise any intrusion into the decision-making autonomy of a person. The amendment would prevent a decision-making representative from taking decisions other than those conferred by the court, as specified in the decision-making representation order.

A decision-making representative authorised to make decisions in regard to the personal welfare of a person lacking capacity would not, due to this provision, be able to take decisions on that person's property and affairs. For example, amendment No. 171 sets out the hierarchy of decision-making that would apply in situations where a person had made an advance health care directive. An advance health care directive would take precedence on decisions relating to health care. Amendment No. 172 prohibits a decision-making representative from being able to consent to the withdrawal of life-sustaining treatment for a person lacking capacity.

Amendments Nos. 174, 175 and 179 propose to limit the circumstances in which a decision-making representative can use restraints or authorise the use of a restraint. This is in order to align the Bill with Government policy that restraint should not be used where possible, or if necessary, only in very limited circumstances. The amendments propose that restraints can be used only where there are exceptional emergency circumstances and where the decision-making representative believes there is an imminent risk of serious harm to the person lacking capacity or to another person. They require that the restraint be immediately ceased when no longer necessary to prevent the imminent risk of serious harm to the person lacking capacity or to another person.

Amendments Nos. 176 and 177 distinguish between restraint and an action which may restrict a person’s movement but which is intended to help the person, such as where a support is used to prevent the person from falling out of a chair, for instance. Restraint is therefore defined as an action that is intentional and designed to restrict voluntary movement rather than to restrict involuntary tremors or spasms.

I believe my proposed amendments Nos. 174 and 175 limit the use of restraint further than is proposed in Deputy Mac Lochlainn’s amendment No. 173. I ask the Deputy not to press that amendment and to support our amendments.

I am prepared to accept Deputy Mac Lochlainn’s amendment No. 178, as it would enable chemical restraint to be added to the definition of restraint and I may bring an amendment forward in this regard on Report Stage.

Amendment No. 180 is technical and proposes to move the provision requiring the director of the decision support service to establish a register of decision-making representation orders from section 56 to this Part as it is more appropriate that the provision be included with other provisions relating to decision-making representation.

I propose to discuss amendments Nos 204 to 208, inclusive, together as the new provisions proposed for attorneys in regard to the use of restraint are the same as those to apply to decision-making representatives. The intention, as for decision-making representatives, is to restrict the use of restraint in line with Government policy. As a result, it is proposed that restraint could be used or authorised by an attorney only in exceptional emergency circumstances to prevent an imminent risk of serious harm to the person lacking capacity or to another person. Amendment No. 208 requires that the restraint be ceased immediately on being no longer necessary to prevent an imminent risk of serious harm to the person with capacity difficulties, or to another person. Amendments Nos. 206 and 207 distinguish the term "restraint" from actions taken to support a person affected by involuntary movement. Restraint is defined as an intentional action intended to restrict a person’s voluntary movement.