Feargal Quinn (Independent)

I second the motion and welcome the concept of the Bill. It will update the legislation on incapacity. I appreciate Senator Henry asking me to second this motion because I had to study the subject. This opened my eyes to the work undertaken by the Law Reform Commission, which initiated many of the ideas in the Bill. I welcome Ms Patricia T. Rickard-Clarke, who is present in the Distinguished Visitors' Gallery.

I was stunned when I first read this legislation. I was surprised by two aspects of existing law, language and age. The Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811 are still in force. This language comes from another era and is unacceptable in modern days. It is similar to bear baiting, cock fighting and public executions. This Bill aims to change the attitude to, and decision making for, people who do not have full mental capacity. This involves moving from a status approach which referred to people as mad, to use the word applied in those days, to a functional approach which acknowledges levels of incapacity. The approach used to be black and white, defining someone as sane or not.

We all know elderly people who have reached a stage at which they live a normal everyday life but whose mental capacities are slipping, either in respect of their memories or of repeating themselves. In the old days those people would have been regarded as insane. The crucial aim of this legislation is to propose that there are levels of incapacity, especially among the elderly. Senator Henry used the word "dignity" and it is used in the Bill where the individual's human rights are uppermost.

I refer to the existing legislation as belonging in the past because it is so unsuitable today. We all know of people who do not have 100% mental capacity. I met a former Member of this House recently who is in his 90s and has 100% of his capacity so let us not assume that everyone's capacity diminishes as they get older. To a large extent, however, older people lose mental capacity and memory and because of that, in the past they were ostracised.

I was jolted on reading the Bill to discover that I had probably broken the law. Some years ago a couple asked me to become an executor of their will. The man died and his widow began to have some difficulty such that she was not able to make decisions for herself. I arranged for her to go into a nursing home and later for her house to be sold. I did that without any authority. The lady should have been made a ward of court and it may well have been that I could have influenced the President of the High Court. I did not realise that I was acting without the legal authority to do so. The situation lasted for some time. There must be many others like me who did not know that the law provides that if one loses one's mental capacity the President of the High Court makes one a ward of court and he or she becomes one's guardian. That lady was not by any means mad or a lunatic, in the terms of the 1811 legislation. She was losing some capacity and lived a good life for the remainder of her years.

Although a small portion of one's faculties is harmed, one loses all of one's rights when the President of the High Court makes one a ward of court. This Bill seeks to replace that system with a new one that includes the guardianship board, the health care group, the personal guardian and the office of the public guardian. This system will consider all aspects of the individual and introduce the least intervention possible. It will help those guardians, probably family members, to make and implement decisions.

The guardian, for example, might take into account the fact that someone early in life has said that in the event of becoming ill, he or she wants to stay in his or her home rather than go to a nursing home if he or she has the facilities to do so. The same is true of someone who says that he or she does not want to have a hip replacement in the event that is suggested. The guardian can help to make decisions in these situations. For a simpler matter such as the flu injection there would not be a need for this help or decision making but the law needs changing. The European Union forced the British to change their legislation because it had not been updated quickly enough. We may not be in that situation yet but we soon will be. We cannot possibly continue to act according to legislation passed in 1811 and 1871.

This Bill is worthy of Government support. I hope the Government will take it into account, ideally by accepting and passing it as quickly as possible. It is the right thing to do and we should not be forced into doing it. If we do not pass this Bill, we will rob the older people who need this legislation of their dignity. I urge the Minister of State to accept the Bill.