Bernard Durkan (Kildare North, Fine Gael) | Oireachtas source

I congratulate the Minister of State on introducing the Bill. It goes without saying that the Acts of 1811 and 1871 are somewhat out of date like much other legislation. It is a worthy decision to bring the Bill before the House. Other speakers have already referred to its merits and demerits and, of course, there are always swings and roundabouts with such legislation. In the course of our constituency work we have all come across cases where there was an obvious need for somebody to have assisted another person in making a decision at a particular time. Other cases have come to our attention where the intervention, allegedly to assist the person who required the decision-making assistance, resulted in the person not receiving the best advice in his or her interest, and ending up in court and eventually in family disputes and so on.

In these cases we need to recognise the necessity to ensure that the person, who is deemed to require assistance in making a decision, gets that advice impartially in his or her interest with due regard for natural justice and the law. For instance there would not be much sense in a vulnerable person receiving advice that was legally wrong and that could lead that person into difficulty at a later stage. The presumption is that this legislation will be able to cross that particular Rubicon and deal with that vulnerable person, regardless of whether he or she has a disability from birth or as a result of an accident. We have all come across cases where a person as a result of an accident found himself or herself vulnerable and totally dependent on those around him or her. Sometimes helpful family members become involved in a way that is not to the advantage of the person with the particular disability. Sometimes non-family members become involved by way of association or whatever, ultimately leading to the person with the disability ending up in a far greater disability.

I strongly support the legislation and the concept behind it. However, due regard must be given to the need to monitor on a fairly regular basis the legislation as it applies in order to ascertain the extent, if at all, to which it is operating properly and working smoothly. The decision-making capacity is presumed unless the contrary is shown, but shown by whom? Is it on medical evidence, legal evidence, history or some other basis?

While I know the criteria set out in the Bill, can we be certain that due regard will be had for natural justice and the course of law in all cases of a person on whose behalf a decision will be made, or who will be assisted in that decision? The Bill provides correctly that no intervention will take place unless it is necessary. That goes without saying. It also provides that a person will be treated as unable to make a decision only where all practicable steps to help that person make a decision have been unsuccessful. That is good but the devil is in the detail. How does one come to that conclusion? Will the Minister of State in her reply give some indication as to the swings and roundabouts and the cross-checks that will apply in that situation? I am sure that everybody in this House has dealt with cases where advice was given to a person who was vulnerable at a particular time, whether suffering from a mental or physical disability which was shown to be wrong at a later stage. That does not necessarily mean that the person giving the advice and assistance will be the beneficiary. The advice can be wrong and not to the advantage of the person in need of that decision-making assistance. Any act done or decision made under the Bill must be done or made in a way that least restricts a person's rights and freedoms. That goes without saying.

The Bill proposes certain decision-making support options: assisted decision-making and co-decision making, which could involve family members or a group of people. This is along the same lines as the wards of court. The wards of court system has been greatly beneficial in defending the rights and entitlements of vulnerable people. It has also been shown not to be accessible and not capable of dealing with situations that emerge over time and we need to keep that in mind.

In respect of powers of attorney how can one be absolutely certain that the powers of attorney are given with due observance of the law? For example, I have dealt with cases, and I am sure that the Ceann Comhairle must have come across them too, in which it has been suggested to me that when the person granted power of attorney it was contended that he or she was not in a position to make the decision to confer power of attorney on anybody. There have also been numerous cases in which a family becomes entangled in a legal argument after the death of the unfortunate person. This all has to be addressed and we find ourselves going back into a maze and ask ourselves how it happened in the first place. It is very difficult to be absolute in the determination of what is right and wrong in this type of situation. Are legal and medical opinions available to those who will assist in the decision-making? Are those who provide the opinions fully aware of their obligations under the proposed legislation when giving their opinion?

An office of public guardian is proposed. This will be set up within the Courts Service to replace the Wards of Court Office to manage capacity-related matters for adults. The office of the public guardian will supervise and handle complaints against decision-making assistants as well as against the co-decision makers, decision-making representatives and attorneys of enduring powers appointed by the court. It will also prepare codes of practice for specific groups and will promote awareness of the legislation among the general public. This will all come under the jurisdiction of the Circuit Court, and I presume of the High Court and ultimately the Supreme Court, in the event of there being a requirement to go there. In a time of restricted finances would it have been possible to consider reference to the Office of the Ombudsman in such situations? It would offer a different opinion. It could be consulted in such situations which could benefit to the whole decision-making process and might have some impact by establishing continuity, in a system that is recognised as having universal application around the country.

My colleague, Deputy Joe Reilly, mentioned abuse. Abuse can come in many shapes and forms. It can be detention against the person's will. It can be the result of a person's being placed in a vulnerable position under the care or control of somebody else who has no such diminished capacity and who may or may not exercise that control in the interests of the vulnerable person. The State in the past has supervised abuse. We have all talked about it in this House. There have been numerous situations in which vulnerable people, children and adults, have been in the custody and care of the State and have been abused to a colossal extent. That is a sad reflection on our society. I hope that this Bill will address that issue in a way that it has not been addressed before and that it will prevent the possibility of a situation arising in which vulnerable people, who need support, care and appropriate treatment, are deprived of their constitutional rights as well as everything else in the course of what follows. I hope that this Bill will address those issues in a fundamental way and protect the rights of the people for whom it is intended in the first place.

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