Jan O'Sullivan (Limerick City, Labour) | Oireachtas source

Our amendment in this group is amendment No. 4. This group of amendments is around some of the core provisions of the Bill relating to definitions and the burden of proof. Our amendment also uses the term "relevant person" for similar reasons as Deputy Jonathan O'Brien. We have some differences, however, and we want to tease out the interaction between the proposed definitions of capacity on the one hand and, on the other, consent and the reversal of burden of proof. We are concerned that there may be some injustices regarding the burden of proof. The Minister proposes that a person lacks the capacity to consent if he or she, by reason of a mental or intellectual disability or a mental illness, is incapable of understanding the nature or the reasonable foreseeable consequences of a sexual act or of evaluating relevant information for the purposes of deciding whether or not to engage in that act. It is clear that such capacity could be situation-specific. It could come and go and one could have the capacity on one day while not on another. An example might be somebody on medication, who had the capacity while on medication but not when they stopped taking it. Such a person might be in a stable relationship but the partner might not be aware that the other had not taken his or her medication. I do not have a problem with the definition but with the fact that it is combined with the burden of proof being on such a person to know that his or her partner does not have the capacity to consent. I ask the Minister to address that issue in order that we do not inadvertently put somebody in such a situation. Can she tease out this issue? Real issues are involved and we want to make sure we get it right

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