Ms Clíona de Bhailís:

I will come in on the point the Deputy raised about the Mind the Gap report and the applicability of the assisted decision-making Act to those under the age of 18. Our thinking behind some of the comments in that report and in our recent submission to the committee was predominantly around the area of healthcare decision-making. Under the current law, although it is a piece of criminal law, it is broadly understood that 16-year-olds and 17-year-olds can consent to medical treatment. That is further reflected in our national consent policy and understood in that sense as well.

Other witnesses mentioned this issue to the committee yesterday in the context of mental health and the need to provide additional safeguards. Our thinking was that if we were, for example, to extend to this age group the guiding principles under specific parts of the assisted decision-making Act, such as the advanced healthcare directives, it would provide additional safeguards for the upholding of their rights and the provision of necessary supports they might use in a way they do not currently have. While they are seen to be able to consent in many instances and may be subject to capacity assessments because the functional test in part of Irish law and case law, and is possibly already in use, they may not have the presumption of capacity that is to be found under the assisted decision-making Act. They may not have the duty to take all reasonable steps and the other issues we find in there, which would be very welcome for them.

The committee heard in Professor Eilionóir Flynn's statement that we are not happy about the functional test and its compliance with human rights legislation. If we are doing it, we want to put as many other principles and safeguards in place as possible and further a culture of support and empowerment, rather than one of capacity assessments.