Holly Cairns (Cork South West, Social Democrats) | Oireachtas source

I move amendment No. 5.

In page 6, after line 34, to insert the following:

“Amendment of section 3 of Principal Act

5. The Principal Act is amended by the substitution of the following for section 3: “Recognition of legal capacity

3. (1) ‘Legal capacity’ means the ability to hold rights and duties and to exercise these rights and duties.

(2) The exercise of legal capacity may be achieved either:

(a) by the relevant person, acting legally independently, and with decision-making supports and reasonable accommodation as needed; or alternatively,

(b) by the person(s) appointed to support the relevant person in exercising his or her legal capacity; and

(3) Where capacity falls within the purview of paragraph (b) of subsection (2), there shall be a requirement that the decision be guided by the decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).

(4) In applying subsection (3), ‘best interpretation’ means the interpretation of the relevant person’s behaviour and/or communication that seems most reasonably justified in the circumstances,

(5) Decision-making assistants, co-decision-makers, decision-making representatives, attorneys, or designated healthcare representatives must be able to provide a reasonable account of how this interpretation was arrived at.”.”.

This is a really important amendment. It is focused on removing the functional test of mental capacity as a means of determining whether a relevant person can exercise his or her legal capacity. This approach results in substitute decision-making rather than supported decision-making. The functional test of mental capacity has been found to be contrary to the UNCRPD. The UN committee on the Rights of People with Disabilities states in general comment No. 1:

The functional approach attempts to assess mental capacity and deny legal capacity accordingly. Article 12 does not permit such discriminatory denial of legal capacity but rather, requires that support be provided in the exercise of legal capacity.

The retention of the functional test and substitute decision-making means that the Act is not compliant with the UNCRPD. On Committee Stage, the Minister refused to accept this amendment because he said the functional approach to mental capacity is compliant with Article 12 of the UNCRPD and general comment No. 1. He was incorrect and I hope that in the meantime, he and his officials have consulted those documents. General comment No. 1, which I just quoted, clearly states that functional assessment of capacity should not be used to deny someone's human rights and recognises it is an unreliable method of assessing the inner workings of the human mind, it discriminates on the basis of disability and has been recognised as a subjective method of assessment with individuals receiving different results depending on the person conducting the assessment.

Following pre-legislative scrutiny, the Joint Committee on Children, Equality, Disability, Integration and Youth recommended that the functional test of capacity should be removed and replaced with an obligation to acknowledge, interpret and act upon the relevant person's will and preference in line with the UNCRPD. I have tried to be proactive here and put forward an amendment based on the guidance from the Centre of Disability Law and Policy, which undeniably is the expert in this area. The wording is drawn primarily from a draft statutory framework for legal capacity law reform in Canada.

Another reason the Minister seemed to be opposed to the amendment was due to the subsequent changes it would trigger. If these changes are necessary to ensure the Act is compliant with the convention, then they must be adopted. Related to this was the excuse that these changes would delay the progress of the Bill and prolong the abolition of wardship. The timeline has shifted and seems now to be a moving thing since Committee Stage. The Minister is now proposing transitional arrangements to continue wardship. There is obviously fresh scope to make the necessary amendments. It is far preferable that these amendments take place now to ensure Ireland is as close as possible to compliance with our international obligations. These issues will arise during the review and when Ireland enters into dialogue with the UN committee in Geneva, this will also be raised. We have the opportunity and the responsibility to ensure the Act is compliant with the UNCRPD.

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