Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am delighted to present to the Dáil the much anticipated Assisted Decision-Making (Capacity) Bill 2013. It is fitting it should be debated today on the International Day of People with Disabilities. This Bill is the fulfilment of the Government's commitment in the programme for Government to introduce a mental capacity Bill in line with the UN Convention on the Rights of Persons with Disabilities. We specified that our aim was to “reform the law on mental capacity to ensure the greatest degree of autonomy for people with intellectual disabilities or suffering with mental illnesses”.

The Assisted Decision-Making (Capacity) Bill proposes a fundamental reform of Ireland's laws on capacity. It has been framed to meet Ireland's obligations under the UN Convention on the Rights of Persons with Disabilities which requires State parties to eliminate barriers preventing people with disabilities from enjoying their human rights and fundamental freedoms. Accordingly, the existing wardship system, which supplanted the person's decision-making capacity, is being abolished. It will be replaced by a significantly less intrusive system which is focused on supporting decision-making capacity rather than on supplanting it.

All persons will be presumed to have legal capacity and the right to equal recognition before the law. The Bill proposes to remove the archaic legal architecture which governed this area for too long. The Marriage of Lunatics Act 1811 will be repealed. The Lunacy Regulation Act 1871 will cease to have effect. The Bill is designed to meet the needs of older people with degenerative conditions, people with intellectual disabilities and those with mental health issues. The existing options, namely wardship and enduring powers of attorney, were not sufficiently attuned to their needs. These are diverse groups with very different needs. Accordingly, we have devised a range of decision-making support options to respond to a wide spectrum of capacity needs. A new decision-making assistance option has been designed for those who simply need support with sourcing and interpreting information.

There is a new co-decision-making option which will give those with greater capacity needs the possibility of making joint decisions with a trusted family member or friend. The enduring power of attorney option is being extended to encompass health care. This will enable those with degenerative conditions to undertake advance planning across a wider range of issues. As a last resort, where the person has serious capacity issues, the courts will be able to appoint a decision-making representative to take decisions on the person's behalf. However, in contrast to the current practice under wardship, the decision-making representative will be required to respect the person's wishes, where at all possible. We have underpinned the Bill with guiding principles that must be taken into account for all actions foreseen under this legislation. These are the heart of the Bill and will reach into every decision taken under it.

They require the actions taken under this legislation to reflect the person's will and preferences. They also require that any actions taken must intrude as little as possible onto the person's autonomy. We recognise that vulnerable people can be at higher risk of exploitation. Accordingly, the Bill provides for a series of safeguards. The office of the public guardian, the office proposed to manage this area, will have the duty of supervising those tasked with supporting others. It will be able to investigate complaints and to take action accordingly. We have decided that the agreements to appoint either a co-decision-maker or a decision-making representative must be approved by the Circuit Court. We consider that the courts-based system will allow the person to avail of these more intensive supported decision-making options, secure in the knowledge that these enjoy legal certainty and that any abuse of court orders will bring penalties. A court-based system will enable capacity-related disputes to be adjudicated and instances of exploitation to be prosecuted.

Part 1, sections 1 to 7, inclusive, provides standard provisions relating to citation, commencement and laying of regulations. Section 3 provides for a functional approach to determining capacity. This is a significant step forward from the current wardship model which removes the person's capacity totally to take decisions or to enter legal transactions. Instead, this new approach assesses capacity in a time-specific and issue-specific way. It allows for a person to have capacity in one matter but not in another, enabling the person to retain the possibility of taking some decisions even when needing support on more complex matters. The functional model of capacity represents the most widely accepted modern capacity model internationally and is fully consistent with the UN Convention. Section 4 confers jurisdiction on the Circuit Court to deal with determinations of capacity and to make consequent orders. Matters relating to non-therapeutic sterilisation, withdrawal of artificial life-sustaining treatment or organ donation are reserved to the High Court.

Part 2, section 8, sets out guiding principles which apply to every intervention under the Bill. They are intended to embed the ethos that the person's autonomy is to be safeguarded to the greatest extent possible. The first guiding principle is that a person is presumed to have decision-making capacity, unless it is proven that this is not the case. Legal capacity is, of course, presumed. The second guiding principle is that all practical steps have to be taken to support a person's decision-making capacity before a decision can be taken that he or she lacks capacity. The third is that a person cannot be deemed to lack decision-making capacity just because of a risk that he or she might make an unwise decision.

The fourth principle is that interventions should be made only if absolutely necessary. The fifth principle is that interventions, where necessary, must be made in a way that is least restrictive of a person's rights and freedom of action. They must respect the person's right to dignity, bodily integrity, privacy and autonomy. The sixth guiding principle is that the person must be permitted, encouraged and facilitated, as far as possible, to participate in these decisions. The next principle is that any intervention must give effect, as far as possible, to the person's current will and preferences. In situations where it is not possible to ascertain the person's current wishes, the intervention must give effect to the person's past will and preferences, where they are known. Interventions must take into account the person's beliefs and values where they are known. The penultimate guiding principle encourages consultation of anyone with a genuine interest in the welfare of the person, such as those involved in helping the person, a family member, carer or health care worker. The more that is known of the person, the greater the possibility of taking decisions in line with the person's wishes. Finally, no action should be taken if the matter is not urgent, or if the person is likely to recover capacity shortly.

Part 3, containing sections 9 to 12, provides a statutory framework for decision-making assistance agreements. These are formal agreements made by persons with capacity difficulties to appoint a trusted person to act as their decision-making assistant. Decision-making responsibility remains with the person, called in this case the "appointer". The decision-making assistant's task is to access information or to help the person to understand, make or express a decision. The form and formalities of decision-making assistance agreements will be set out in regulations to be made by the Minister. Section 12 proposes safeguards that prevent specified persons - such as nursing home personnel - from being appointed as decision-making assistants. Further safeguards are outlined in the provisions concerning the office of the public guardian.

Part 4, containing sections 13 to 32, outlines the provisions that apply when a person needs to avail of one of the court-approved support options. Section 15 gives the Circuit Court the power to make capacity declarations. There are two types of declaration that it may make: first, that a person has capacity to make a particular decision if supported by a co-decision maker; or second, that a person lacks capacity to make a particular decision even with the support of a co-decision maker. The latter declaration is made when the impairment of the person's capacity is such that it is necessary to appoint a decision-making representative. Sections 16 to 22 provide for co-decision-making agreements in which a person appoints a trusted family member or friend as a co-decision maker to make joint decisions with him or her. The form and formalities of co-decision-making agreements, and the range of personal welfare and property matters that may be included, will be set out in regulations to be made by the Minister. In situations where the person lacks capacity and cannot avail of the decision-making assistance or co-decision-making options, section 23 provides for a decision-making representative to be appointed to take specified decisions on a person's behalf. The court can specify whether the decision-making representative may take decisions on the personal welfare or the property and affairs of a person. A decision-making representative must abide by the guiding principles. The functions of decision-making representatives will be as limited in scope and duration as reasonably practicable. Section 29 provides that declarations of incapacity will be subject to regular review, as required under Article 12 of the UN convention. Section 32 makes it easier for those involved in capacity cases to access the civil legal aid scheme. The decision to grant legal aid will not depend on the likelihood of success in the proceedings.

Part 5, containing sections 33 to 37, sets out how the Bill's provisions will apply to existing wards of court. Each ward will be reviewed in accordance with the provisions of the new system and can be either discharged from wardship or migrated to the new decision-making support options. Part 6, containing sections 38 to 52, re-enacts the provisions of the Powers of Attorney Act 1996, but requires those vested with enduring power of attorney to comply with the guiding principles and subjects them to the supervision of the office of the public guardian. Section 41 extends enduring powers of attorney to include decisions on health care matters. Part 7, containing sections 53 and 54, provides informal decision makers with protection from civil and criminal liability if they need to take decisions on routine matters relating to the personal welfare or health care treatment of a person with capacity difficulties.

The Bill also allows an informal decision to be made without liability, pending a court decision, where this is needed for life-sustaining treatment or where the person's condition would seriously deteriorate if an action were not undertaken. However, the guiding principles apply in all instances. The wishes of the person must continue to be taken into account. These provisions are not to be used to circumvent the rights of people with capacity difficulties.

Part 8, containing sections 55 to 64, provides for the office of the public guardian to be established within the Courts Service and for a public guardian to be appointed. The public guardian will be independent and appointed for a renewable six-year term on terms and conditions determined with the Minister's consent and in consultation with the Minister for Public Expenditure and Reform, under section 57. The staff of the office of public guardian will be staff of the Courts Service. The functions of the public guardian, as outlined in section 56, will be to promote public awareness of the legislation and to provide advice and guidance to public and private sector bodies in this regard. The public guardian will supervise co-decision makers, decision-making representatives and attorneys appointed under enduring powers of attorney in exercising their duties. He or she will have the power to deal with complaints against them. The public guardian will prepare codes of practice under section 63 such as for health care workers or for financial institutions. Codes of practice are envisaged as a means of getting organisations to adopt practices that support vulnerable people and respect their rights.

Part 9, containing sections 65 to 69, provides safeguards to protect against the arbitrary deprivation of liberty of persons lacking capacity who are being treated for a mental disorder. Section 67 provides that the procedures set out by the Mental Health Act 2001 will apply to decisions relating to such treatment. Sections 68 and 69 aligns the provisions for review by the wardship court of orders detaining persons in approved and non-approved centres with those in the Mental Health Act 2001. The cases of persons so detained will be reviewed within three months and then within six months.

Section 104 of Part 11 ensures that there is no conflict between the Bill and the Mental Health Act 2001 with respect to the treatment of a patient for a mental disorder. These sections will be re-examined on completion of the review by the Department of Health of the operation of the 2001 Act which is currently under way. Part 10, containing sections 70 to 102, gives effect in the State to, and allows for the ratification of, the Hague Convention on the International Protection of Adults, which Ireland signed in 2008. The convention sets the legal framework for dealing with cases involving individuals with capacity difficulties where there is an international dimension to their situation. Part 11, containing sections 103 to 114, contains miscellaneous provisions. Section 103 prevents a third party from giving consent on behalf of a person with capacity difficulties to be a participant in a clinical trial. Section 106 retains the law in force concerning capacity in relation to marriage, civil partnership, judicial separation, divorce or non-judicial separation agreements, dissolution of a civil partnership, the placing of a child for adoption, the making of an adoption order, guardianship, sexual relations, voting or serving on a jury.

Section 107 provides that applications relating to a person's capacity should be heard in the person's presence unless such attendance would have an adverse effect on the person's health or if he or she is unable or unwilling to attend for a good and substantial reason. Section 108 retains the existing law concerning the capacity of a person to make a will but allows the High Court to alter a will where exceptional circumstances have arisen since the person lost testamentary capacity and where the interests of justice so demand. Section 109 allows a decision of the Circuit Court under the Bill to be appealed to the High Court and for any decision made by the latter under the Bill to be appealed to the Supreme Court on a point of law only.

Section 110 provides that the Lunacy Regulation (Ireland) Act 1871 will cease to have effect from the commencement of the Bill except for ongoing cases. Subsection (2) preserves the validity of any existing decision under the 1871 Act but allows for such decisions to be reopened in certain circumstances. Section 111 allows the specialist judges appointed under the insolvency legislation to perform and exercise the functions, powers and jurisdiction conferred on the Circuit Court by this Bill in regard to capacity matters. Section 113 makes it an offence for a decision-making assistant, co-decision maker, decision-making representative, attorney or informal decision maker of a relevant person to ill treat or wilfully neglect a person with capacity difficulties, and sets out the penalties that will apply for such an offence.

Section 114 requires the Minister to review the functioning of the Act before the fifth anniversary of its date of enactment. In addition to the provisions contained in the published document, provisions on advance health care directives will be incorporated into the Bill on Committee Stage, in line with the Government's decision of March 2013.

This legislation has benefitted greatly from the advice and expertise of many people. I thank the Joint Oireachtas Committee on Justice, Defence and Equality, in particular, for organising a call for submissions and holding hearings last year on the general scheme. Its report made an important contribution to defining our approach to the Bill. We have consulted a wide range of interest groups at each stage of the drafting process, as the needs we seek to address are so diverse. The consultation symposium held last September, attended by more than 175 people, gave us invaluable feedback on our proposals. What has been proposed in this Bill represents international best practice. Nevertheless, international legislation in this area is rapidly evolving and new approaches are being developed all the time. As such, we remain open to hearing new ideas and taking advice from stakeholders. We are prepared to work constructively with Members to improve the Bill when it goes to Committee Stage.

Most of us know someone with capacity difficulties or may ourselves experience capacity problems at some stage. This legislation potentially affects all of us. It is estimated that there are 200,000 people in Ireland with capacity issues and this figure is set to increase steeply over the next decades as the population ages. The Bill seeks to create a new world in which a person's right to make decisions is respected and safeguarded. It will involve a fundamental culture change. For too long, we have taken for granted that decisions should be taken on behalf of people with capacity difficulties. It will take time to get the supports precisely right and to change existing practices. The journey will not always be easy. The late American actor Christopher Reeve, who fought fiercely against the limits of spinal injury, once said: "So many of our dreams at first seem impossible, then they seem improbable, and then, when we summon the will, they soon become inevitable." It will be a proud day for me when it becomes inevitable that those with capacity difficulties are enabled to make their own decisions. We will all benefit from the flowering of self-confidence that comes to a society where everybody gets the chance to decide what is best for him or her. I commend the Bill to the House. It is about time we allowed people the right to make the wrong decision.

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