Mr. Niall Brunell:

I want to take the opportunity to revisit one aspect of the discussion on safeguarding and deprivation of liberty. The topic has been well ventilated at this stage but it has been suggested that one could go further and look at a prohibition on restraint. Perhaps for the committee's future deliberations on this it might be useful to elaborate a little bit on some of the considerations that we had around that. It was something we considered and then we eventually found that on balance it was a more appropriate fit for the Act to remain silent on it. One of the issues that is quickly encountered when looking at a prohibition on restraint is the range of individuals who could act as decision supporters and the range of individuals, and different policy and ultimately ethical considerations around depriving any person of their liberty. At the hearing yesterday it was mentioned that there is a huge difference in somebody who is wrongfully restrained in certain circumstances - and in the vast majority of cases we would all agree that it is always wrongful to deprive somebody of their liberty. This becomes more complicated in a situation where, for example, somebody who has advanced Alzheimers is being cared for at home and, for their own safety, their children lock the door to the house. Legally that is depriving somebody of their liberty but in many cases it might be the appropriate thing to do. If we say that a decision-making representative, DMR, can never deprive somebody of their liberty, what if the DMR is the child in such an instance? The whole area becomes very complicated very quickly. It is not an area that we could look at in absolute terms. It does deserve its own dedicated piece of legislation and its own considered policy response. Similarly, deprivation of liberty has arisen in the context of the Mental Health Act. The Irish Human Rights and Equality Commission has also spoken about this. Assisted decision-making is first going through the legislative process and a number of instruments across the system which will be needed for further UNCRPD realisation including reform of the Mental Health Act and protection of liberty safeguards being won, and there is a long and ongoing and very close conversation between the Departments involved on which aspects of which articles are appropriate to which specific Acts. On balance, it was decided to take out deprivation of liberty or protection of liberty from this Act because the Assisted Decision-Making (Capacity) (Amendment) Bill 2021 is about assisted decision making and it quickly becomes complicated by bringing in other concerns that deserve their own dedicated policy response.