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

When the Minister says he does not accept that position, I hope he is aware he is basically saying he does not accept the position of the UNCRPD committee. This issue is very clear. There is no ambiguity. Retaining the functional test makes the Act not compliant with the UNCRPD. We are at risk of repeating ourselves but I am going to because it is important this goes on the record. Paragraph 15 of the UN committee's general comment No. 1 states:

The functional approach attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity.

As the UN committee has made clear, the functional test of mental capacity has no place in a true system of supported decision-making. Then the Minister says what is a breach of the UNCRPD is the wardship. Yes, 100%. I think everybody agrees with him. Why then is he introducing amendments to extend that? He was speaking about the vice chair of the UN committee. I would bet money that if the vice chair of the UN committee saw amendment No. 5 he would support it.

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