Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I shall address amendment No. 9. It adds a new subsection to section 21, which I assume is an alternative to amendment No. 7, also proposed by Deputy O'Brien. The amendment includes a declaration that a relevant person has capacity unless the contrary is shown. I fully appreciate what the Deputy is trying to achieve here and I received legal advice on the need for such a provision as there is similar declaration in the Law Reform Commission, LRC, proposals. The LRC proposals state that a person's lack of capacity may arise from a disability and therefore, the statement that a disability of itself does not give rise to a lack of capacity is required. It is complicated and it is not that we have not considered it or looked at it carefully but the two categories are necessary because the protected person is defined here as one who lacks capacity and that is why we need to have the protected person definition included here and dealt with. The relevant person is the person who is under supervision of care of the person in authority, and this distinction is to avoid exploitation by that person in authority. I am advised that both categories are necessary. It is to have the full protection for people in both sets of circumstances that we have dealt with it in the Bill in this way. It is definitely in line with the UN convention. We have considered the points being made by the Deputies and I have gone through each of them. Amendment No. 10 is helpful. It is to make sure that a person has the necessary protection and the amendment covers the engagement, by the person in authority, in a sexual act with the relevant person. The person in that circumstance has the capacity but he or she is open to exploitation because of the dependent relationship. One can imagine situations where that might occur; there is capacity but there is dependency. This would protect and differentiate between the protected person who lacks capacity and the protected person who has capacity, and it is in order to protect both categories that we have the different definitions in the Bill.