Pádraig Mac Lochlainn (Donegal North East, Sinn Fein) | Oireachtas source

I welcome the Bill, although it has taken considerable time to get to the House. I acknowledge that much of this time has been spent consulting with stakeholders and the experts in the field. It is important to stress to all Deputies the importance of speaking with our partners in the NGO community and to the experts working in these fields. We may be the people tasked with legislating, but we are not the experts. We need to ensure we are speaking to the people who know what they are talking about.

Once again, we are here discussing rights. As a republican, I believe that all citizens are equal and that we need to work to ensure that all citizens on this island are afforded the rights they so justly deserve. The United Nations Convention on the Rights of Persons with Disabilities states that all persons with disabilities must have equal recognition before the law. This means that those with diminished capacity must be given the same legal rights as everyone else. As we all know, Ireland has signed this convention, but cannot ratify it until new capacity legislation is in place. This is because without legal capacity, other rights guaranteed by the convention cannot be achieved. The legislation in this area is old and archaic, dating back to 1871, and is much in need of reform.

The Bill as presented is much improved from its predecessor, the Scheme of Mental Capacity Bill 2008. There are a number of important changes included in this Bill which I and my party welcome. In particular, I welcome the fact that, at its core, this Bill affords the opportunity for an individual to make legally binding agreements with others to assist and support them in making their own decisions. I am firmly of the belief that everyone should have the right to benefit from assisted decision making. Therefore, we welcome entirely the provisions of this Bill, but we believe the positive support measures contained within it should be open to all as well as being accessible, inexpensive, easy to use and flexible. We also need further clarity on the legally binding nature of assisted decision-making agreements.

Access to supports should not be based simply on a functional assessment of mental capacity. There has been a suggestion that the Bill could use a lower threshold for ability to make an assisted decision-making agreement that has been successfully adopted in British Columbia. This would make such support measures accessible to more people, while retaining safeguards to protect against abuse. We will try to develop this on Committee and Report Stages, but is this something the Minister of State and the Minister might consider? It is something I may seek to amend on Committee Stage.

There is no doubt individuals who currently have a good network of support will find this Bill beneficial. However, can we enhance it by introducing a positive obligation on State bodies to provide individuals with opportunities for developing natural supports which can be then used as the basis for creating legally binding agreements? Another important addition would be to give people more choice and control in deciding who will assist them with making these very important decisions. Many organisations involved in this area have argued that the substantive provisions dealing with decision-making representatives and informal decision makers should be amended to place a stronger emphasis on the will and preferences of the person.

The Bill provides a broad range of powers to informal substitute decision makers, who are not subject to the same scrutiny as other kinds of substitute decision makers under the Bill. This concerns me.

Is there a risk the wide scope of powers given to informal decision-makers could undermine the positive support provisions of the legislation, such as the assisted and co-decision making agreements?

I concur with those who argue these powers must be significantly restricted in scope, and accompanied by a duty to explore assisted or co-decision making with the individual as an alternative. I have spoken to a number of organisations which argued that people should have a real ability to challenge decisions made under the Bill. In particular, people who are subject to more restrictive measures under the Bill must have a real ability to challenge the appointment of substitute decision makers as well as the decisions they make. This should include the right to independent advocacy for people subject to the Bill, including the immediate and full commencement of the personal advocacy service provided for in the Citizens Information Act 2007, and learning from the valuable experience of the National Advocacy Service. Further safeguards are needed to address conflicts of interest between the individual and substitute decision makers.

There should also be an obligation on State bodies to investigate cases where there may be a conflict between the person and the substitute decision maker. The legal aid provisions of the Bill must be strengthened to ensure an automatic right to legal representation, regardless of means, when an application is made to court for a declaration of an individual's mental capacity for a decision. This is essential to ensure effective access to justice for people affected by the Bill. The costs of court applications and expenses of decision making assistants, co-decision makers, and decision making representatives should not be automatically taken from the individual's estate. This will pose a significant financial barrier to people seeking to realise their rights under the Bill.

The Bill must interact with the Mental Health Act and other relevant areas of law. The lack of interface between the Assisted Decision-Making (Capacity) Bill and the Mental Health Act 2001 must be addressed, ensuring people treated in approved centres can benefit from the positive provisions of the Assisted Decision-Making (Capacity) Bill. The Mental Health Act should be amended to reflect the provisions of the capacity legislation.

A commitment to reform other laws relating to legal capacity excluded from the provisions of the Bill must be made by Government to ensure compliance with the UN Convention on the Rights of Persons with Disabilities. This includes laws on consent to sex, voting, jury service, marriage and civil partnership. The Bill must provide safeguards for people who are detained against their will, no matter where the detention happens. The Bill does not acknowledge that people who are not wards or detained under the Mental Health Act can be unlawfully detained, such as people de factodetained in residential services. Neither does it provide any safeguards or mechanisms for the individual to challenge this deprivation of liberty. This needs to be amended to comply with recent jurisprudence of the European Court of Human Rights.

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