Anne Ferris (Wicklow, Labour) | Oireachtas source

This is a difficult subject to legislate for. It is a complex area, affecting a wide range of people with different needs. No matter how it is written, it will never be able to provide an acceptable answer in all situations. It is an area of our legislation that will require on-going monitoring and improvement as its consequences and effects become apparent. In this regard I welcome the inclusion in the Bill of a new office of public guardian to monitor the progress of the legislation. I expect the new office to commence with the clear understanding that this legislation is not written in stone and will need to be updated from time to time to ensure that one of the most basic human rights that a person can make is upheld, that is, the right to make a decision. I would prefer it if the remit of the office of public guardian was extended to monitor the role of informal decision makers.

The risk that any one of us might find ourselves in a situation with reduced capacity to make a decision is never far away. Every time I take my car out onto the road there is a risk that an accident could leave me with reduced decision-making capacity. Age Action Ireland tells us that by 2041, three times as many people in Irish society will be living with dementia. That could include me or any Member present.

The Bill starts out with a presumption of decision-making capacity. Every adult under law will be presumed to have the capacity to make a decision unless their capacity is questioned. That is a vital part of the legislation. Every doctor, nurse, lawyer, garda and family member involved in a situation where a person's decision-making powers are being questioned must first start at the place where the ability to make a decision is automatically presumed and this presumption has legal protection. From that point, it would represent a major legal jump to get to the position of assuming that a person needs assistance to make what could be a life-altering decision and an even greater legal jump to appoint another person, however temporarily, to make decisions on their behalf.

Newspapers last week reported a distressing case in England. In August 2012, Essex social services obtained a High Court order to forcibly sedate a heavily pregnant woman and carry out a Caesarean section to take her child from her. The woman, it was reported, was an Italian national, a mother of two and an airline cabin crew member on a training course in England when she had a mental breakdown. We are told that she was kept in the dark about the legal proceedings and was sedated. When she woke up her child had already been delivered by Caesarean section and taken into care.

Fifteen months later, the child still is in care and may be placed for adoption. Her Italian lawyers are now fighting to have the baby girl returned to her.

In general, I am wary of analysing cases involving child safety issues and vulnerable people, particularly when privacy laws mean that much of the information about these cases is not publicly available. While not all the facts of this case are available, the facts, as reported by the media in respect of the decision-making rights of the woman, appear to be truly shocking. Her lawyers are claiming that all these significant, life-changing decisions were taken on her behalf in a foreign country without any contact having been made with her next of kin in Italy. She was not represented before the court that had ordered her baby to be removed because she had been deemed not to have any legal capacity because of her reduced mental capacity. This is an extreme and shocking case and, as I noted, not all the facts are available but they illustrate clearly the reason the highest legal protection possible must be given to people who find themselves in a situation of reduced decision-making capacity.

The Bill before Members today represents a marked improvement on the existing wards of court system, which automatically removes legal capacity from persons with diminished mental capacity. The new legislation changes that position and offers support to those who need help to exercise their legal capacity. I welcome the spirit of this legislation and trust that its implementation is something the Department of Justice and Equality, as well as the new office of public guardian, will be monitoring closely and carefully to ensure this basic human right is protected for all citizens.

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