Jennifer Whitmore (Wicklow, Social Democrats)
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I move amendment No. 4:

In page 6, after line 34, to insert the following: “Amendment of section 3 of Principal Act

5.The Principal Act is amended by the substitution of the following section for section 3:

“Recognition of legal capacity

3. (1) ‘Legal capacity’ means the ability to hold rights and duties and to exercise these rights and duties.

(2) The exercise of legal capacity may be achieved either:

(a) by the relevant person, acting legally independently, and with decision-making supports and reasonable accommodation as needed; or alternatively,

(b) by the person(s) appointed to support the relevant person in exercising his or her legal capacity.

(3) Where capacity falls within the purview of paragraph (b) there shall be a requirement that the decision be guided by the decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).

(4) In applying subsection (3), ‘best interpretation’ means the interpretation of the relevant person’s behaviour and/or communication that seems most reasonably justified in the circumstances.

(5) Decision-making assistants, co-decision-makers, decision-making representatives, attorneys, or designated healthcare representatives must be able to provide a reasonable account of how this interpretation was arrived at.”.”.

The amendment responds to a key concern raised during pre-legislative scrutiny and relating to the presumption of capacity. There must be no ambiguity on this issue. Unfortunately, there will be such ambiguity unless a specific amendment is added to copper-fasten the right of presumption of capacity and the importance of will and preference. Independent Living Movement Ireland was clear on the need for the Bill to provide for the presumption of capacity and the protection and promotion of a person's will and preferences. It called for specific reference in the legislation in respect of the aim of legislation to ensure the autonomy of disabled people to live the lives of their choosing. The issue is that, under the current legislation, the decision support services were able to draw up draft codes of practices that allowed a wide range of actors, including legal practitioners, financial professionals and healthcare professionals, to carry out assessments of capacity as they see fit. Those individuals can then make decisions regarding whether to respect the decision of the relevant person based on their assessments and without any recourse to or oversight by the courts.

The draft codes are a separate but related matter. Numerous stakeholders raised concerns in this regard. The key, however, is that the codes and their implications for the rights of disabled people and others were possible under the 2015 Act. Without amendment, there is the potential for a large number of unqualified people to make assessments based on an individual's capacity. The Minister may disagree with that interpretation. Even if he does, however, the key point remains that there is scope for interpretation of what needs to be a cast iron right. The law should operate from the position that all individuals have capacity unless it is proven otherwise, in a manner similar to the presumption of innocence in the legal system. The amendment is designed to guarantee the recognition of capacity and proportionate protection of that capacity. The Minister is aware of the shortcomings of the 2015 Act in respect of presumption and the protection of capacity. The amendment addresses that issue.