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

Competence is the issue. Over the last two years, we have been told constantly that the Courts Service is not the appropriate place. People did not feel comfortable with the paternalistic approach taken to justice over the centuries by past Governments. There is a perception that the court system is concerned with the imposition of penalty. This legislation is essentially about liberation and allowing people to make decisions for themselves. When we looked at the ideal decision support service we decided it must be stand-alone and independent. Unfortunately, our big difficulty is our inability to create an additional stand-alone body because of a Government decision concerning all legislation. We decided that the Mental Health Commission was the right place because it has the expertise and understands the functioning of capacity. This is essentially what it does. Those Deputies concerned with mental health issues will be aware of its safeguarding role. It is an independent body that has never been afraid to criticise, say something should not have happened and suggest a way to fix it.

I spoke about the work that needs to be done. The Mental Health Commission will have to be rebranded in the coming months. The process of rebranding will involve negotiation but I imagine it will become the Mental Health Commission and the Decision Support Services on Capacity. It is an expert body and understands the situation better than any other group in the country. We all understand that. This will be about safeguarding people's rights. The Mental Health Commission has always had a human rights based position. This is very clearly where this will be centred and we have spoken to the commission and it is very happy to take on the task. It is the group most likely to tell us we are doing the wrong thing, yet in this case it did not because it thinks it is a good fit.

I have spoken to other people with an intense interest in this area, who I will not mention now, as it would be unfair to do so. Yesterday, the morning after the Bill went through its final stages in the Seanad, I spoke to an expert in the area who said the Mental Health Commission is the perfect fit. It will undergo substantial changes in the next couple of years, not in terms of what it does, but what it will be asked to do - its remit will be broadened. It was unhappy about the paternalistic nature of the imposition of penalty by the Courts Service so it is anxious to do this job. It will do a very good job. I understand the concern that all people with difficulties in capacity will be lumped into one area but it will be a separate entity attached to the Mental Health Commission and will not be subsumed by it.

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