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

It has been a wide-ranging discussion. As Deputy Stanton said, few other Bills have been so widely consulted on, not just in terms of the politics of this, but in terms of academic input, international input and public consultation. It has been an incredible experience. I am sure the officials in the Department will vouch for the fact the Bill as presented today is not the same Bill we started out with, and, indeed, I am sure it will not be the same Bill we end up with. That is hugely important. In many cases, we come in with legislation and we do not have that type of flexibility because it is usually about finances or pressures from other people or other legislation we have to complete. On this Bill, we have set out to take people's views on board, to listen to their concerns and, where at all possible, to ensure those concerns are reflected in the finished Bill.

We have had a useful discussion. Deputy Boyd Barrett's contribution was interesting from the point of view of personal experience of the people he interacts with. That is what it is really about. It is about people in an everyday setting who find themselves in a position where they are not able to make decisions for themselves. When talking about issues like this, I often say that what it is really about is the right to make the wrong decision. We all make wrong decisions, and while people may come along later and say, "I made a bit of a crock of that", they had the right to do it. That is that this Bill is about. Hopefully, with assistance and input from other trusted people, it will be the right decision. However, those of us who rear children know that no matter what the advice is, from time to time, it is still the wrong decision.

I would like to respond to some of the points made. If I do not respond to all, Deputies should not take it that we did not listen, because we did, and we will be listening even more when it comes to Committee Stage.

We will produce a plain English version of the Bill. When we do, we will run it by the organisations which advocate on behalf of people with disabilities and which have an expertise in this area. As I said in my opening statement, legal capacity is presumed in the Bill. Everyone is entitled to equal recognition before the law. However, I realise that this message may not be clear enough in the published Bill and we are seeking to make this clearer in the final legislation.

I note the comments on informal decision-making, and we will take another look at this aspect. The provisions on informal decision-making were never intended to be a charter to undermine the Bill. They were simply designed to protect individuals, especially health care workers and carers, against liability if they made decisions on a person's welfare in good faith. The intention was that these workers could act for a person's benefit without fearing that they might be sued. However, I see from the feedback we have received that the provisions are too loose and they need to be tightened to reflect more clearly what we are seeking to achieve. I believe we are all seeking to eventually end up in the one space.

We recognise that vulnerable people are at higher risk of exploitation and that safeguards are required. With regard to the office of the public guardian, we are not hung up on the title because titles are one thing we are not hung up on in this legislation. We will look at the name, as Deputy Stanton and others suggest. The office of the public guardian will supervise those tasked with supporting others and will act on complaints. Similarly, those appointed as co-decision makers and decision-making representatives will be accountable to the court for the performance of their duties. Nevertheless, we are listening carefully to the comments that we are receiving about improving safeguards and are carefully considering what we need to do to improve these provisions. Our aim is to have sufficiently robust safeguards to prevent the exploitation of vulnerable individuals, which we would all prefer.

The need to prevent conflicts of interest was also raised. I agree this is an important issue. Conflicts of interest have the potential to do harm to a person with capacity difficulties. This is why we have prevented staff of nursing homes or residential facilities from handling the property and affairs of a vulnerable person. We will also consider if the Bill needs to be strengthened further as regards the prevention of conflicts of interest.

The issue of establishing a separate legal aid scheme was raised in the debate. As I said, we are making it easier for people to access legal aid and removing the merits test. The likelihood of success, which was one of the issues raised, will not be a factor in deciding whether to grant legal aid. We will also examine how court-related processes can be done in a way that minimises court time and expense for the person with capacity difficulties or for their family. However, the number of people who may potentially use these options is such that we do not have the resources to give free legal aid to all of those affected. Many of those who will benefit from the legislation have resources and assets. It would be unfair if those people received free legal aid and prevented others on low incomes from getting the assistance they need.

The issue of deprivation of liberty was raised. I believe, and have always believed, that the issue of depriving a person of their liberty is the most profound and significant thing one can do in any society. The Bill provides safeguards to protect those who lack capacity and who have a mental disorder from being arbitrarily deprived of liberty. We have sought to ensure there is no conflict between this Bill and the Mental Health Act 2001. Of course, as Deputies are aware, the review of the Mental Health Act is currently under way. We will have to revisit the relevant sections of this Bill once that review is complete.

In response to Deputy Ó Caoláin, who made a particular point of this, I cannot say what will come out of the review of the Mental Health Act. I have deliberately kept out of the process. I appointed the group, met them on one occasion and gave them the criteria under which I wanted them to act, but I will not interfere in that process. I will have something to say about it as soon as I see what the group's recommendations are, and whether I agree or disagree with them or think they have gone far enough. However, it is important the process remains clean and uninhibited.

The role of advocacy has also been raised. I agree there is an important role for advocates in supporting people with capacity difficulties and in ensuring their rights are respected. We are considering how the issue of advocacy can be addressed most effectively in the Bill.

The Bill is not cast in stone - we started off with that point in my opening speech and we will finish up with it. We are open to the views of Deputies and of stakeholders as to how the Bill can be improved. What we want to achieve is a legal architecture that promotes respect for the rights and autonomy of people with capacity difficulties in line with the UN Convention on the Rights of Persons with Disabilities. I keep making the point that if someone came to me looking for advice on the bond markets or on what shares to buy, I would readily admit I have no idea.

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