Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I will begin by recalling what the principles in the 2015 Act state on this point. Section 8 contains the guiding principles. Section 8(1) provides: "The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly." Section 8(2) provides: "It shall be presumed that a relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act." It is important that the 2015 Act that we are amending does contain a presumption of capacity. That is set out in the legislation at the moment. As all present are aware, that does not currently apply because that legislation has not been initiated, but that is our starting point. When the Bill is passed, that will be the starting point.

I am not in a position to accept the amendment because, as drafted, it does not align with the overall architecture of either the 2015 Act or the Bill. It would require significant policy and drafting work to give it effect because the functional model that we are seeking to create through both the 2015 Act and to initiate through the Bill is central to the fabric of the 2015 Act. The fundamental restructuring this amendment represents would make the Bill basically unworkable and that would prolong the abolition of wardship. I think all present agree that wardship needs to be removed.

Beyond that technical element, I do not see the need for the amendment at a policy level. It appears to be based on an assumption that the functional model is not compliant with the UNCRPD on the basis that section 3 does not specifically identify the right to hold and exercise legal rights and obligations. I know that argument has been summarised in the past as the idea that the 2015 Act equates mental capacity with legal capacity, but I do not think this is the real implication or action of the 2015 Act. Taken as a whole, the Act and the Bill provide for the component parts of legal capacity in a way that is compliant with the UNCRPD and has significant and robust safeguards taken on board. The place of the functional capacity model in the Act is designed to maximise a person's decision-making capacity in a manner that explicitly privileges and provides a framework to enforce and safeguard the person's explicit will and preference. This is contrary to the prevailing system of wardship. Assisted decision-making will allow a person to hold and exercise legal rights and obligations. I appreciate the intent of the amendment. I do not think examining section 3 in isolation is helpful in assessing the Act's overall compliance with the UNCRPD. The manner in which the Act as a whole operationalises the functional model is CRPD-compliant and meets the requirement of both Article 12 of the CRPD and general comment No. 1.

On a final point, the term "best interpretation" that is used in the amendment is not a term that is used elsewhere in the 2015 Act and it is unnecessary, given the application of the will and preference that is set out in the guiding principles of the Act. We think that approach gives better legal clarity on the issue as is currently set out in the section. For that reason, I do not propose to accept the amendment.