Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Obviously, the issue of consultation is a source of concern and many independent agencies have already been established by the Government. The best way to put these concerns is to quote what the respected Senator Jillian van Turnhout said during the Seanad debate:

...it places the service within the remit of the Department of Health rather than the Department of Justice and Equality. Since legal capacity matters should probably be regarded as a matter for the Department of Justice and Equality, I question this move. Could this lead to confusion because decision support issues might be confused with mental health issues? Since the remit of the decision support service is much broader than mental health, I wonder about establishing it under the Mental Health Commission.

I would have thought that this function would have been better established as an independent authority similar to the National Disability Authority with reporting responsibilities to the Department of Justice and Equality.

This move has been made at the very last minute in drafting the Bill without consultation, but we will leave it there, as we have had this discussion already. The points the Senator made are very important. Placing this authority within the Mental Health Commission is not the best fit. This is no reflection on the commission. The Senator has made some key points and expressed them better than I have today. The issue goes beyond consultation and the need for an independent authority. We know that other independent agencies have been established. I can reiterate the points made. The problem is that the reporting mechanism is uner the Department of Health rather than the Department of Justice and Equality. These are legal capacity matters which should not be confused with mental health matters. Senator Jillian van Turnhout made very strong points which have not yet been addressed.

Ruth Coppinger (Dublin West, Socialist Party)
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I want to raise the same issue. I have received a considerable amount of correspondence about this part of the legislation. I spoke earlier to the legislation before it went to the Seanad. However, this issue has only arisen because of the change made latterly by the Government. Groups such as the Centre for Disability Law and Policy in NUI Galway, the National Disability Authority, Inclusion Ireland and many civil society and stakeholder organisations that have an interest in the legislation have all expressed dismay that instead of it being dealt with as a legal issue by the Department of Justice and Equality, it has been switched to the Mental Health Commission. In addition, the service will now not be an independent statutory body with reporting responsibilities to the Department of Justice and Equality. Obviously, this matter was discussed in the Seanad and the Minister of State spoke about it. I read the transcript and get the impression that she is a little embarrassed about the change because she said:

The ideal would be a stand-alone agency. There is no disagreement about it. Unfortunately, the Government has committed not to create any new agencies. Therefore, we had to find something more appropriate.

From this I am guessing that the Government stated, "Oh God, we can't create another quango because every time we do that the public disagrees." In addition, Fine Gael believes the Government should not create different public bodies. If we need a public body, we need one. What is Irish Water in that case? The Government had no problem in establishing an enormous quango that nobody wanted. It is not on principle that the Government cannot create new independent stand-alone agencies.

I ask the Minister of State to listen. The process of consultation with groups has to be taken seriously and many concerns have been expressed. It is also an issue of stigmatising. There are other issues that are not related to mental health. It would be in the best interests of all concerned if the Minister of State reconsidered.

Kathleen Lynch (Cork North Central, Labour)
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I will be brief because I have said as much as I need to say on this issue. The Bill provides that while the decision support service will, in the first instance, lay its report before the Minister for Health, it will also lay it before the Minister for Justice and Equality because the Minister for Justice and Equality has responsibility for the legislation. The Minister for Health simply has responsibility for the Mental Health Commission. That is how it will be done. It is not as if it will be one Department or the other. It is simply the case that the Department of Justice and Equality has responsibility for the legislation and the Minister for Health has responsibility for the Mental Health Commission. The report will then be laid before the Houses of the Oireachtas.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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The Minister of State acknowledges that it would be best if the service was independent. Of course, we cannot do this because we have established that the Government does not establish new agencies but amalgamates them.

Accordingly, we, unfortunately, have to amalgamate this proposed body with the Mental Health Commission. Why did the Minister of State say this in the Seanad and here today when I pointed out Government has established new agencies? The Minister of State also claimed those agencies in question are self-funding, but I have explained the policing authority is not self-funding, while the other two agencies referred to are partially funded by the State. Does she still believe it would be best practice to establish this as an independent authority? Does she acknowledge that the Government has established new agencies? Does the Minister of State not find it alarming that all of the bodies that Deputy Ruth Coppinger and I listed earlier would like this to be an independent authority? The Minister of State indicated not just today but previously, that it would be desirable to have an independent authority but, unfortunately, the reason she gave is the Government does not establish new agencies, it amalgamates them. I have pointed out the Government has established at least three agencies. Is there room for reflection on this? Does she take on board the points made by Senator Jillian van Turnhout in the Seanad that the difficulty here is the Minister of State is conflating different issues by putting them under the Mental Health Commission?

While it is no reflection on the Mental Health Commission, I do not believe in sticking bodies under the one agency and that amalgamating them is the best practice. It certainly is not the best practice in this case. It is not my opinion but that of non-governmental organisations and experts which deal with this area. They feel it is poor practice and not the way to go. They have not been consulted about a serious decision.

Kathleen Lynch (Cork North Central, Labour)
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I am not certain how much more I can emphasise this. The reason I was quoted as saying that was because I said it and I said it again in here this morning. Deputy Pádraug Mac Lochlainn does not have to quote the debate from the Seanad because I said it here this morning. The reason I said it is because I keep hearing about new politics and how we should do politics differently. I believe in having a personal view and being open and honest about what I believe. That is what I practice both in here and outside. It might not sit well with some people but that is what I practice.

In the Chamber, it was sought that the proposed body would be situated within the Department of Justice and Equality. To me, that would have been the wrong place to have it. It was wrong to have it in the courts and it would be wrong to have it within the Department of Justice and Equality. It would send out all the wrong signals.

Deputy Colm Keaveney is correct that the Mental Health Commission is the most independent of bodies. It is the expert body in terms of deprivation and allowing people to be heard. It is the most independent group which I know. This will need rebranding and negotiations in the next six months to figure out exactly how this will fit better than we can envisage now. We will be doing an extensive and comprehensive review paper on the Mental Health Commission and have permission to draw up a general scheme. In the process, there will be questions of what more can it do and what could be done differently. I would not deem to tell the commission because I respect its independence but if it wishes it can have a consultation process around how this will be managed better under its remit. That is as much as we can do on this.

Michael Kitt (Galway East, Fianna Fail)
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Seanad amendments Nos. 139, 165, 166, 251 and 295 and related and may be discussed together.

Seanad amendment No. 217:

Seanad amendment No. 217:

Section 67: In page 75, line 29, to delete “subsection (6)” and substitute “subsection (6)(b)”.

Seanad amendment No. 218:

Seanad amendment No. 218:

Section 67: In page 75, line 38, to delete “(or the person signing on his or her behalf)” and substitute “or the person signing on his or her behalf,”.

Seanad amendment No. 219:

Seanad amendment No. 219:

Section 67: In page 76, line 34, to delete “step-child,”.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Amendments Nos. 254 and 255 are related and may be discussed together.

Kathleen Lynch (Cork North Central, Labour)
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Seanad amendments Nos. 165 and 166 are interesting. They amend the Civil Legal Aid 1995 to ensure people whose capacity is to be challenged or assessed in court have an automatic right to representation by the Legal Aid Board and the board has the right to charge but only to the limit of the fee set by the Legal Aid Board. If one is entitled to free legal aid, then well and good, and the same criteria will apply. There is nothing to prevent people who wish to use their own legal team from doing so. These amendments ensure those who do not have that facility are represented. It is also important that representation at mental health tribunals will also transfer to the Legal Aid Board. These are significant amendments.

Seanad amendments Nos. 254 and 255 provide for minor amendments to the functions of the director of the decision support service. Seanad amendment No. 254 proposes a new function for the director to inform and guide organisations, including State organisations, when dealing with the range of interveners specified under the Bill. This issue came up regularly regarding the educational process that needs to be undertaken. He or she will have to provide information and guidance on dealing with attorneys, decision-making representatives, etc. The intention is that, as a result of this information and guidance, organisations will know exactly when to provide information to interveners.

Seanad amendment No. 255 allows the decision support service to charge fees for its services. It is appropriate that the service has this possibility, in line with international practice. Some of the functions that it will undertake will be time-consuming. Some of the organisations with which it will interact will be very wealthy. Where a vulnerable person or a family has limited means, the possibility will be available for the fees to be waived.

Kathleen Lynch (Cork North Central, Labour)
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I do not want to hold up proceedings but I thank the Deputies opposite who have taken an interest in the Bill. It is technical, long and complex and has been amended dramatically. It is not the same Bill as originally presented. From time to time, it must have seemed cumbersome and difficult to come to terms with. I appreciate their interest because no legislation should go unchallenged through any House of parliament. It makes us think differently and makes us understand things a little bit better.

I thank those who have taken an intense and long interest in this legislation, some of whom are in the Public Gallery today. They have followed and driven the Bill and advised us all along. We are deeply grateful to all of those people. For the organisations that have been waiting on it, it has been a long time coming. As Deputy Keaveney rightly points out, we are repealing the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811. It seems difficult to comprehend now that at the time, legislation that recognised there was a difficulty in some people's lives was considered to be revolutionary. We think differently now, are in a different space and understand more, which is why this legislation is so important. It will allow people to make decisions for themselves even if those decisions are not ones we would make ourselves. It is hugely important to understand that people who may have limited capacity in one area can have complete capacity in another. This defines the level of capacity and is hugely important to allow people to express their will and preference on any given issue. It is also time based.

I am sure the officials from the Department of Justice and Equality who have worked on this for the past four years have been very frustrated by it from time to time but nevertheless have been entirely committed to a good outcome. We are very well served by officials who work in our Departments. For the most part they are invisible and they do not come out and make statements to the papers - or, at least, they do not put their names to them if they do. That is a joke by the way. The people of Ireland can be truly grateful that they work on their behalf. When there is collaboration to do something right and proper, one sees the talent we have in this country coming to the fore. I thank them all because so many people are waiting on this legislation.

I will tell a story I have told in the Seanad. A family came to see me recently - someone they loved very much was awaiting a wardship hearing. The person was an adult and did not want to have that hearing. They had certain limits but were perfectly capable of making decisions and living as complete a life as any one of us. The judge wrote to him and suggested he look for an adjournment because this legislation was coming in. This judge was enlightened and it shows that people we do not even know about were waiting for this legislation and watching it with great interest. Sometimes we think we are talking in a bubble in here but an awful lot of people watch what we are doing.

I wish everyone a very happy Christmas. I hope it will be peaceful and not too many crises will arise. As someone working in the Department of Health, we always dread Christmas week.

I again congratulate on her appointment the first woman in the history of this parliament to become deputy head usher. I foresee great things for her. It is amazing that women now hold such decision-making positions in this country. The next election will see far more of that.

Kathleen Lynch (Cork North Central, Labour)
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I should also have mentioned that Department of Health officials worked very hard on this on the advanced health care directives.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Agreement to the Seanad amendments is reported to the House. A message will be sent to Seanad Éireann acquainting it accordingly.