Catherine Connolly (Galway West, Independent)
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Amendments Nos. 1 to 4, inclusive, are related and may be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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I am glad to be here to speak to the last Stage of the Assisted Decision-Making (Capacity) (Amendment) Bill 2022. It is a key Bill that allows us finally to abolish the Victorian concept of wardship from Irish law and thus enhance our compliance with the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD. It will finally allow for the operation of the Decision Support Service, which creates a tiered level of supports for those with capacity limitations, and it does other things, including increasing our target for the employment of persons with a disability in the public and civil service. It is currently a 3% target and that will rise to 6% by 2025. There has been extensive debate and engagement about this legislation in this House and the other House and there has been engagement with NGOs. We are bringing forward a significant range of amendments that have been agreed in Seanad Éireann to reflect that debate.

Amendments Nos. 1 and 2 add the Courts and Courts Officers Act 1995, the Credit Union Act 1997 and the Nursing Homes Support Scheme Act 2009 to the Long Title. Amendments Nos. 3 and 4 reflect how the Credit Union Act 1997 and the National Disability Authority Act 1999 and the Mental Health Act 2001 should be construed following amendments to be brought to those Acts in the Assisted Decision-Making (Capacity) (Amendment) Bill 2022.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I want to speak briefly, not necessarily to the amendments but in general as this is our last Stage of this Bill, as the Minister has said. It is a welcome development that a lot of younger people cannot believe the old system of wardship is the way things were done in this country. There have been concerns expressed at various Stages, including on Committee Stage, and some of those concerns have been taken on board. There might be some issues to be teased out as the legislation passes. The Decision Support Service will have a key role and interest in consultation and education on the new system and in letting people know and advising them of it. If there are any teething problems or difficulties, it will probably have a key role in that as well. This is definitely a step in the right direction. It is an understatement to say that. The wardship system could not be justified now in any way, shape or form, so it is good it is progressing to this.

Roderic O'Gorman (Dublin West, Green Party)
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We had an extensive debate and the Deputy's colleague, Deputy Ward, raised a number of issues, particularly on the applicability of advanced healthcare directives, AHDs. We have since been able, following on from the amendments made in the Seanad, to broaden out the applicability of AHDs. They do not cover everybody, and if he was here I am sure Deputy Ward would make that point. In the Seanad I read out a communication from the Minister of State, Deputy Butler, on the revision of the mental health legislation, which is in train. Heads of the Bill have been discussed and have gone to a pre-legislative scrutiny process. The Minister of State, Deputy Butler, made it clear the draft legislation has priority drafting for next term. She indicated that clearly and she also indicated clearly that a common approach to everybody in terms of the applicability of AHDs is the objective of the Department of Health in the approach it will take in the mental health reform legislation. That is important and I was glad the Minister of State was able to give us that confirmation on behalf of the Department of Health. The point I was making is that our Department was able to take this a certain amount of the way but the rest of the way would be taken by the Department of Health. It has confirmed it wants to extend AHDs to everybody, that it wants to do this rapidly and that the Bill has priority drafting.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 5, 6, 9 to 12, inclusive, 20 to 24, inclusive, 31 to 35, inclusive, and 40 to 44, inclusive, are related and may be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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These amendments all relate to complaints provisions within the Act and allow for the director to undertake either a review or an investigation of a complaint prior to forming a view as to whether the complaint is well founded. This will reduce the requirement for the Decision Support Service, DSS, to undertake an investigation automatically on each and every occasion a complaint is made, thereby limiting the burden on the service user and the DSS. Amendments to complaints under Part 8 will ensure the director of the DSS will be able to conduct an investigation on his or her own initiative. This is the case in other parts of the Act and the amendments ensure equal treatment of users across the Act. Some necessary technical amendments are also introduced.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I welcome the inclusion of a review or appeal. This is always very important and is something we often look for in various legislation. It is always good practice coming from a trade union background where we regularly relied on the appeals process. It is always good practice to see that being implemented.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment removes the phrase "Act of 2015" from the Act. This is not a phrase that is used elsewhere in the Act and, as such, is being replaced by "Principal Act".

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 8 provides for single capacity assessment under section 29 of the Act of 2015 in line with other capacity assessments required under Part 4. This will ensure only one statement of capacity is required by either a registered medical professional or a class of healthcare professionals to be prescribed by regulation. This will reduce the number of capacity assessments required under Part 4, making it more straightforward for the relevant person to put in place a code decision-making agreement.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 13 to 15, inclusive, are related and may be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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These amendments allow for the making of regulations adding to the list of persons or bodies eligible to make an application directly to the Circuit Court under Part 5. This will be done by removing the requirement for parties to first make an ex parteapplication where appropriate. This will permit the bringing of Part 5 applications in a more streamlined and less burdensome way.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I welcome that because it is expanding the service. That is what we want to see as the whole idea of this. As we move out of the very outdated wardship system, the more people can access this service, the better.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment will allow for the undertaking of court reporting and research under Part 5 and gives powers to make regulations providing for certain classes of persons to make reports on proceedings taking place under Part 5. The necessary access to proceedings will be provided and the identity of persons will kept confidential in such reporting. This point was first raised by Deputy Sherlock on Committee Stage in the House and I am happy to have been able to introduce this amendment on Committee Stage in the Seanad, particularly given the significant value that research can add both in terms of improvement in legislation and creating consistency across the court system. I think the reference was to the family law court reporting system, which has proved to be an invaluable but also confidential mechanism for understanding the approaches adopted in family law cases while still respecting the in camera rule. This allows for something similar to take place in the context of cases decided under the new Part 5 system for decision support.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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This is a really good example of how, when we do the process correctly, there is engagement and back-and-forth, and concerns raised are listened to, it can work very well. We are often critical in this House when stuff does not work well, but in fairness, there are a lot of positive changes in these amendments. Court reporting and research are invaluable. We see so many incidents in family law where the in camera rule can still be respected but the research is done. There are many elements. There is the previous amendment in terms of expanding people who can apply. This is exactly what we want to see happen with this type of legislation. At the risk of welcoming every single amendment, it is good to see when the process works positively, and that should be acknowledged.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 17 to 19, inclusive, are related and may be discussed together.

Roderic O'Gorman (Dublin West, Green Party)
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These amendments extend the capping of decision-making representative fees. Previous amendments provided for the capping of panel member decision-making representative fees and this amendment will ensure limits are imposed on all decision-making representative fees. Regulations will be prescribed to set limits on fees to be charged, which will ensure a proper balance between fair and reasonable rates of remuneration and the interests of the relevant person's estate.

Mattie McGrath (Tipperary, Independent)
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This amendment is very important. Any of us with any court experience, notwithstanding the family courts, knows that fees can be astronomical, so it is very important there is a cap. Many of these people are in a vulnerable situation. While wards of courts in the HSE might be fine, when they exit that, they might not have family or means and may not be able to meet fees. It is a very important measure.

Roderic O'Gorman (Dublin West, Green Party)
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It is important to say that in the vast majority of cases under this legislation, decision-making representatives will not be remunerated for their work because the Act foresees many of them having a close and personal relationship as a condition of their appointment. However, where circumstances require or where it is the express wish of the relevant person, fees are payable and will be met from the assets of the relevant person. In those circumstances, it is vital to set those limits and safeguard those assets.

Mattie McGrath (Tipperary, Independent)
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In a case with which I am dealing and many other cases, the person is not in position to speak to whoever is appointed. What happens if the person is incapacitated to the extent that he or she cannot instruct or make a decision, which is possibly why he or she is a ward of court in the first place?

Roderic O'Gorman (Dublin West, Green Party)
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Under the new system, we are moving away from the ward of court-----

Mattie McGrath (Tipperary, Independent)
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I know that.

Roderic O'Gorman (Dublin West, Green Party)
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-----and we will have the new Decision Support Service. This envisages situations where people might come in initially with a limitation on their capacity. It might be somebody with a lack of capacity because of a condition that is deteriorating or has had a critical accident. In that situation, the director of the Decision Support Service is in a position to make a determination about what level of capacity support is needed for the individual. If the person has lost all capacity, which is the highest level, they will charge a fee.

That will be set out and capped at a particular level. There is much more transparency through the entire system. The capping of fees is also important in making sure there is no room for potential exploitation.

Roderic O'Gorman (Dublin West, Green Party)
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I will speak to amendments Nos. 25 to 27, which address wardship transitional arrangements. Where a wardship application is being processed to completion, as part of these transitional arrangements there is nothing to prevent a person who is the subject of a wardship application from appointing a decision supporter under the 2015 Act. Where an appropriate decision support is appointed, the wardship application must be withdrawn.

Mattie McGrath (Tipperary, Independent)
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I ask the Minister to clarify that point. I just do not understand what he meant.

Roderic O'Gorman (Dublin West, Green Party)
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In the Dáil we inserted a section. We are ending wardship and introducing a new system. There are certain people who have begun the process of a wardship, who are probably some of the most vulnerable people to have begun that process. We want to ensure they can work their way through the wardship process, get the protections, and also be in a position to exit into the new system. We do not want a cliff edge between the old system and the new system for those who have already begun their journey through wardship. Between the original amendment and this amendment, we have provided for a system where someone can enter into wardship for a brief period of time, gain the protections of that and also be able to exit it and avail of the new protections set up under the decision support service.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 28 clarifies the title of a new section being introduced by the Bill. The title will now reflect that the section of the Bill amending the Civil Legal Aid Act 1995 relates to Part 6 of the 2015 Act only. Part 6 of the Act is the Part of the Act which deals with wardship. This is a technical amendment for the purposes of improving the text of the final Act.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 29 corrects a cross-referencing matter in the Bill relating to enduring power of attorney, EPA. The amendment will remove a cross-reference to section 62 of the 2015 Act, which is being repealed by the Bill. This is a technical amendment for the purposes of improving the text of the final Act.

Mattie McGrath (Tipperary, Independent)
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I know the Minister's intentions are good, and I expect the Bill has been thoroughly assessed by the Attorney General, but is the Minister anticipating any legal challenges? The changes being introduced are pretty wide-ranging. The ward of court system needed completely overhauled but there are people transitioning out of it, as the Minister said. I understand from the Minister's remarks that people can still be appointed a ward of court for a short term and then exit the old system and transition into the new system. Is the Minister sure that is legally watertight?

Roderic O'Gorman (Dublin West, Green Party)
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Right now, there is a legal challenge to the existing system-----

Mattie McGrath (Tipperary, Independent)
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I know that.

Roderic O'Gorman (Dublin West, Green Party)
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-----as the Deputy is aware. It is in the back of our minds that the ward of court system is both in breach of the UNCRPD and possibly unconstitutional as well. As the Deputy probably knows, the original Assisted Decision-Making (Capacity) Act was brought in in 2015. It was passed by both Houses and enacted, but the processes were never set up. The Decision Support Service never came into operation. The purpose behind this legislation is to correct and improve a significant number of technical difficulties with the original legislation. We have had significant debate on the Bill in both Houses. I believe, and the analysis has shown, that this is a strong system. I cannot say that there will not be legal challenges. There could well be, but I believe the system we have set up is one that places the needs of those who have a limitation to their capacity at the centre of the system. It is one that builds.

As the Deputy is aware, there are three different levels of support, depending on whether a person has a minor limitation to his or her capacity, all the way up to those most severe cases that we have spoken about. It is an appropriate approach. We have been putting additional financial resources into the DSS over the last two budgets to make it ready for the very significant amount of work it will have. One of the amendments we will speak about shortly adds three additional judges to the Circuit Court in recognition of the role they will have in respect of Part 5 and in making these orders under the DSS. Additional High Court judges will probably also be needed to oversee the transitional arrangements out of wardship. A lot of work has gone in on the legal side and significant work has gone in on the resourcing side to get this new system up and running. There is also provision for reviews. The DSS has to make annual reports. If issues arise, we will address them as they come up.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 30 replaces an incorrect word in the amendment of section 73 of the Act. The word "subsection" is being replaced by "subject", which will clarify the meaning of the relevant paragraph. This is a technical amendment that will improve the final text of the Bill.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 36 modifies a particular cross-reference relating to EPA regulations. The modification will correct a cross-reference in section 79 of the 2015 Act, which is necessary because of the changes previously made to the Bill. This is a technical amendment that will improve the final text of the Bill.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No, 37 provides for a regulation-making power to allow for EPAs executed under the Power of Attorney Act 1996 to be registered under the 2015 Act. That will allow those persons who have already gone to the trouble of creating an EPA to register it with the DSS under the 2015 Act, which provides for more efficient procedures and more robust safeguards than the 1996 Act. Additionally, the director of the DSS will have the power to waive the fees associated with this registration so as to make the process as cost-neutral as possible for the person.

Mattie McGrath (Tipperary, Independent)
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There have been huge issues with the Acts since the 1996 Act. The Minister is saying now he will be able to rectify that under this new piece of legislation. I wonder whether the families who have been traumatised by this and who have been struggling have been abandoned by their legal people. In many cases, a legal person was appointed and took power over the person. I hate to talk about a person like that because he or she is a human with a family. I wonder whether this will be such a smooth transition. Will legal people relinquish that power? If they refuse to transpose, what powers do we have? Is this Bill going to be able to deal with that?

Roderic O'Gorman (Dublin West, Green Party)
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Many Deputies spoke to me in the process of this legislation. Deputy Mattie McGrath mentioned in some of the earlier debates the very difficult cases in which people have been caught up, the lack of appropriate legislation that existed or, indeed, the wardship process, which is an incredibly blunt process. The whole thrust behind what we are trying to do is create a decision support service with a director and staff who are there to have an oversight role in terms of these relationships. Once these decision support representatives are put in place, there is a mechanism for complaints and issues to be raised.

Can I make a commitment that this piece of legislation will solve everything? No, I cannot. However, I do think it is a much clearer system with much greater checks and balances. There will be a much higher degree of regulation. I am hopeful but, more than that, I strongly believe that this new system will provide much greater protection to people whose capacity is reduced and who must rely on others in supporting their decision-making abilities.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 38, 39 and 50 are related and may be discussed together. To give a little warning before amendment No. 38 is formally moved, we are going to run out of time. The Minister has the floor.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 38 provides a regulation to make power for my colleague, the Minister for Health, to establish a register of advanced healthcare directives under the 2015 Act. This register will be maintained by the decision support service and will support the alignment of Part 8 of the Act with other parts governing decision support arrangements. The amending provisions will also specify what the content principles and policies of the regulations should be.

Mattie McGrath (Tipperary, Independent)
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I will make a brief comment. This is such an important piece of legislation that means so much to so many families and individuals. It is a pity to have it guillotined and that we will not get to discuss some of the amendments, albeit there are not many people in the Chamber. The amount of time allowed is ridiculous, to be honest.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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As we are running out of time, I will just say we have had a number of discussions on this now through the various Stages, Second and Committee Stages. I have nearly forgotten what the different processes and Stages are at this time of night. There has been a huge amount of discussion on the issues.

As I said earlier, the decision support service will be key in all this. If there are any concerns, it is certainly the body to go to first. I know the legislation is also potentially up for review if there are any major difficulties but in fairness, there have been an awful lot of discussions. As I said, there have been many really good, positive changes such as extending it out for people, the capping of fees and the appeals processes. They are all really welcome and certainly much better than the old wardship system we have seen. At least we are seeing it progress now. It has been on the books since 2015 so it is welcome. That should be acknowledged, in fairness.

Catherine Connolly (Galway West, Independent)
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Unfortunately, we are out of time. The time permitted for this debate having expired, I am required to put the following question in accordance with an Order of the Dáil of 13 December: "That the Seanad amendments not disposed of are hereby agreed to in committee and agreement to the amendments is accordingly reported to the House."

Catherine Connolly (Galway West, Independent)
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A message will be sent to the Seanad acquainting it accordingly.