Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

This amendment seeks to replace section 3 of the 2015 Act which sets out the functional capacity model with replacement text on legal capacity. As drafted, the amendment does not fit with the overall architecture of the 2015 Act or the amendment Bill. It would require significant policy drafting to give effect to the proposed amendment. As the functional model is core to what the previous administration tried to achieve with the 2015 Act and what we are trying to achieve with the amendment Bill, that fundamental restructure would make the current Bill unworkable and would prolong the abolition of wardship, which is something we all wish to achieve.

As I said on Committee Stage, the amendment seems to be designed towards a view that the functional model is not compliant with the UNCRPD. I do not accept that position nor does the Government. I do not accept the 2015 Act or the amendment Bill as a whole do not provide compliance with Article 12 of the convention. I wish to be very clear that the 2015 Act and the amendment Bill provide a framework for supported decision-making that will provide the components for legal certainty and for compliance with Article 12. While no single section sets this out, the 2015 Act provides for relevant persons to hold and exercise legal rights, responsibilities and duties. Where higher-tier decision supporters may be the people exercising these rights, interests and duties, they are required to do so in a manner that aligns explicitly with the will and preference of the relevant person and a robust and proportionate oversight regime will be in place to ensure that is how the Act is operated.

Where we are not compliant with the UNCRPD is in our continued reliance on wardship. The place of functional capacity model in the Act is designed to maximise a person's decision-making capacity in a manner that explicitly privileges and provides a framework to enforce and safeguard his or her explicit will and preference. Contrary to the prevailing system of wardship, assisted decision-making will allow a person to hold and exercise legal rights and obligations.

While I appreciate the intent of this amendment, I do not think this model, which would, as I said, fundamentally change and remove a central element of what we are trying to achieve, is helpful in terms of achieving Ireland's overall compliance with the UNCRPD. I have spoken on the guiding principles contained in Part 2 of the original Act on a number of occasions. On the guiding principles, section 8(2) states that it shall be presumed that a relevant person falls within paragraph (a) of the definition of relevant person has the capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of the Act. The very centre of the legislation we seek to activate through this amendment legislation is that presumption of capacity.

In terms of general comment No. 1, I would make the point the Deputy is right in her direct quote.

It comes from 2014. It was written prior to our current legislation even being drafted but what I draw attention to is what is currently being said by UN bodies about the Irish legislation. I draw the House's attention to Jonas Ruskus, who is the vice chair of the UN Committee on the Rights of Persons with Disabilities. At the World Congress on Adult Capacity in Edinburgh earlier this month he commended Ireland and the progressive nature of our legislation and praised the introduction of mechanisms for supported decision-making by Ireland. That is not me saying it and that is not the Government saying it; that is the vice chair of the UN committee that oversees the UNCRPD and is responsible for drafting the state reports on each member state recognising the advanced nature of the legislation we have here. However, let us not forget that is legislation that is still not enacted. That is why this Bill is important, that is why the functional test needs to be an element of this Bill and that is why I am not able to accept this amendment.

See this speech in context