Ms ?ine Flynn:

The functional assessment - and we have heard from our colleague in the International Disability Alliance - attracts quite a bit of comment. General Comment No. 1 of the Committee on the Rights of Persons with Disabilities, which was published in 2014, made certain propositions that the functional assessment of capacity must be departed from and, incidentally, that substituted decision-making is not permitted. General Comment No. 1 is not legally binding. However, it is an important and influential document. General Comment No. 1 is divisive - I do not know whether our colleague would agree - and most states parties to the convention are not in strict compliance with it. I am open to correction, but I gather that perhaps only three states parties are compliant with it.

The functional assessment is something that was broadly debated in the run-up to the enactment of the principal Act in 2015. That legislation went through something like 14 different debates, and to good effect. The Act reflects improvements which flowed from those debates. This legislation was originally called the mental capacity and guardianship Bill, whereas now it is an Act which focuses on the importance of supporting decision-making and the concept of will and preference is the golden thread that runs through it. If we were to take the functional assessment out, a few things would flow from that. We would effectively be dismantling much of what is core to the Act. Perhaps that would be worth doing, but we could not do that and have urgent commencement. We would be fundamentally rewriting the Act if it were to be taken out. The functional assessment has been with us in common law since 2008. It is an argument and it is forcefully argued in some quarters. I do not encounter it in our stakeholder engagement, but if it were to be-----