Ms ?ine Flynn:

As much as Deputy Cairns, we were spectators.

I will make a few more observations on the functional test. It is important to consider what it replaces. As stated, it was already common law, but what we see with this Act is a move away from the binary approach in wardship under the Lunacy Regulation (Ireland) Act 1871. That is not a functional approach. It has been described as a blunt instrument because it is a form of plenary guardianship that identifies someone as being of unsound mind and incapable of managing themselves and their affairs. What is distinct about the functional test is that it is time specific and issue specific. It asks what needs to be decided, at the time it needs to be decided.

Another point that might count in favour of the way our Act is formulated is that it is specifically not a medical test. There is no diagnostic component. It is not the case, therefore, that incapacity is being linked to - as in the Mental Capacity Act in England and Wales - a defect or impairment in the functioning of the mind or brain. It is consciously a demedicalised test.

Then there is the formula, namely, understand, retain, weight up and communicate, which has been with us already at common law since the case in 2008. There are also extra protections supplied in section 3 of the Act, which sets out the functional test so that information has to be explained in a way that is appropriate to the person and his or her circumstances and it does not matter if the person can only retain the information for a short time. There are additional protections contained in section 8 of the Act, including the presumption of capacity and importantly, and this is really central to the Act and is in fact reflected in its Title about assisting, the brackets around capacity are important. All practicable steps must first be taken to help a person to make their own decision and an unwise decision does not mean the person lacks capacity. The Deputy touched on this fear that third party providers might apply the functional test in a discriminatory fashion and in some way restrict a disabled person's rights. There are a number of points there. First, capacity is not assessed as a first step, of course one does not, the person is supported in his or her autonomous decision-making as far as possible. The Act is not prescriptive or exhaustive about who may assess capacity because knowing whether somebody understands the information relevant to a decision should be something that resides with the person who is engaged in that conversation and knows what understanding that information should consist of. When we are engaging with stakeholders, including service providers, if they are going to assess somebody's capacity, which is not something you do first, we ask them what are they going to do after that. We make that point strongly. It cannot be a way of bringing down the shutters on somebody. I think this was stated in the original debate leading up to enactment back in 2015 but the test is with a view to putting in place appropriate supports and our Act is quite ambitious in putting in place three different tiers of support. Of course opinions differ on this and general comment No. 1 strongly says one should not assess capacity. I am not sure where that has been applied in practice and perhaps our colleague can help us. What does never assessing capacity consist of? There are thousands of pages in literature about this and full three-day conferences devoted to what proper compliance with Article 12 consists of. I do not claim that this is perfect legislation but it is ambitious, progressive and necessary legislation and in the debates about the amending legislation, there was a return to some very fundamental arguments that were made and not followed when the Act was first enacted and the opportunity was taken to reinsert some of those arguments which are not actually contained in the amendment Bill at all. All of this should be kept under review and this may not be the legislation for all time. It had better not last 150 years like the last Act. This is where we are at the moment. For as long as we do not commence the 2015 Act, we are still in 1871.