Dr. Simon Mills:

I do not disagree with any of that. The main point I would make about capacity elides into a question that Senator Ruane asked earlier about the coexistence of physical illness and psychiatric illness.

Clearly, where somebody with a physical illness that fulfils the criteria that may be set down by legislation also has a psychiatric illness, the psychiatric illness will not exclude them availing from the legislation if they meet the criteria under any physical grounds that are set out, unless the nature of the psychiatric disorder is such that they lack capacity. It is fair to say that under most models of capacity that are now adopted by the courts, and certainly in this jurisdiction after the decision of Fitzpatrickv. F.K. and in the assisted decision-making legislation, the mere fact that a person has a mental disorder does not mean that person lacks capacity. It will be about the condition that person has and whether that undermines their ability to make a decision. It may well be for many conditions that as the condition is treated, a person’s capacity may return.

The Deputy asked us to comment on the paragraph. I could go through it sentence by sentence and spend ten minutes on each one. Is there a particular point the Deputy would like me to comment on in respect of that paragraph or something he takes out of it that he would like me to deal with? It is an interesting paragraph. In respect of many sentences, there could be reasonable disagreement. Does the Deputy have a question?