Mary Henry (Independent)

Exactly. We should be capable of replacing it, particularly in light of the expert guidance provided in the report to which I refer.

I am glad Senator Lydon is present. The LRC's report discusses the sort of approach that should be adopted regarding people's capacity to do things. It states that the status approach to capacity involves making an across-the-board assessment of a person's capacity and that it views capacity in all-or-nothing terms and involves concluding that a person has no legal capacity based on the presence of a disability, rather than an assessment of his or her decision-making capabilities. The report also refers to the functional approach and states:

The functional approach to capacity involves an issue-specific and time-specific assessment of a person's decision-making ability. It is related to ability to make a particular decision at the time it is to be made. This is in sharp contrast to the all-or-nothing, one-off nature of a status approach to capacity.

The LRC recommends that we should choose the latter approach, whereby an adult's legal capacity is assessed in respect of the making of a decision at the time it is to be made.

Given that we are being provided with such guidance, why are we being so slow in respect of taking action in this important area? The commission has recommended that where inappropriate terminology is used in existing legislation in respect of people who lack capacity, such as in the Lunacy Regulation (Ireland) Act 1871, this should be repealed and replaced. In addition, it provides guidelines as to what action should be taken in this regard. I recently asked the Leader whether the Minister of State, who is also Government Chief Whip, might add this — he is lifting his eyes to heaven — to the already quite long list of legislation to be dealt with before the end of the session.

Another item of legislation about which I am concerned is the Marriage of Lunatics Act 1811. What is the meaning of that Act?