Maurice Cummins (Fine Gael)

I compliment the Law Reform Commission on its various publications dealing with this subject and I pay tribute to Senator Henry for bringing this Bill before the House. I strongly support the Mental Capacity and Guardianship Bill, which is a long overdue replacement for the outdated wards of court system currently in place. We need not look beyond the title of the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811 to recognise that any Act incorporating the term "lunacy" has no place in 21st century Ireland and is in definite need of attention.

The Bill is an important step in providing protection and certainty to vulnerable adults and their families. It is estimated that more than 2,000 people in Ireland are wards of court. Under current legislation, these people lose complete control over all aspects of their financial and personal life. They are stripped of many of their basic human rights and live life devoid of the level of dignity and equality they deserve. The Bill proposes the introduction of a new, more functional way of considering the capacity of an individual to make financial, personal and health care decisions. Rather than focusing on the lack of capacity an individual might have, the Bill proposes that unless the contrary is established, every individual will be presumed to have full capacity to make a decision affecting him or her.

This is a very important proposal as obviously the capacity of an individual to make decisions varies significantly from person to person. Some individuals covered by this legislation may be suffering from mental illness, others may have sustained a brain injury following an accident and others are elderly people who have lost certain mental faculties as part of old age. Some of these people may be able to make minor decisions like running a small bank account but may not be able to take care of more complicated financial affairs. Where an individual is capable of making decisions relating to his or her life, it is important we support their ability to do so and provide the person concerned with the quality of life and dignity they deserve.

The introduction of a guardianship system consisting of a guardianship board of three people is a positive proposal that would support this new way of looking at capacity. The guardianship board would consider the capacity of the individual concerned, appoint a personal guardian where necessary and monitor the required level of involvement of this guardian in an individual's personal, health and financial affairs. This is a fair and practical system which provides for flexibility as the nature of a person's capacity changes over time. It is a system that would definitely support the rights of a vulnerable individual.

An important aspect of the Bill relates to the health of the individuals covered by this legislation. It is archaic that, previously, it was entirely possible that a vulnerable person considered a ward of court could have been subjected to major medical interventions such as sterilisation without their consultation or consent. This Bill rightly proposes that decisions relating to non-therapeutic sterilisation, the withdrawal of life sustaining treatment and organ donation will require a decision from the High Court.

The subject of mental health has been given substantial attention by the Fine Gael Party. Fine Gael and the Labour Party have published a policy document setting out our priorities in this area. Reaching Recovery was published last September and includes a number of commitments by Fine Gael and the Labour Party on what we will do when elected to Government to improve the lives of the many people who suffer from mental illness. Although mental health is central to our well-being, the treatment of mental illness and the promotion of good mental health do not receive the same attention, investment and resources as physical illness. Fine Gael and Labour recognise that the mental health services have been neglected and under-funded and are resolved to change this.

We will build and foster positive mental health throughout the community and provide accessible, community-based, fully staffed, multidisciplined services for people with mental illness. The provision of these services will be brought at least on a par with the general health services in hospital and community services. To build that positivity, we must deal with the issue of guardianship for persons of diminished capacity. That is why this Bill is so important. Following the report of the Law Reform Commission in this area, it is disappointing the Government has not seen fit to bring forward any proposals to deal with the issues concerned. For example, the simple issue of mental capacity remains improperly defined in the law. Much of the existing legislation uses out-dated or inappropriate language. There is no single person or body, independent of the Government that can make guardianship orders, intervention orders, or appoint personal guardians. That is why I particularly welcome the proposed establishment of a guardianship board in Part 3.

Personal guardians are an innovative instrument that can be used to help and guide persons who suffer from a mental disability. I am aware of many families who find themselves in a position where the making of a guardianship order would solve many of their problems and concerns. Furthermore, Senator Henry's proposed public guardian instrument, established in Part 5, is a reassuring safeguard against any abuse by an unscrupulous person who becomes a personal guardian. These safeguards are paramount if families and friends are to have true faith in the system outlined in the Bill and to benefit from the reassurance that they provide.

The Fine Gael Party supports the Bill's proposed structures. We have also made a specific commitment to put in place multidisciplinary community mental health teams, therefore, reducing the need for inpatient care and to close those psychiatric institutions which are inappropriate for their purpose and undermine the dignity of their patients.

Measures like these, in tandem with the provisions of Senator Henry's sensitive and progressive legislation, will allow us to construct a society in which mental health is treated with dignity, compassion, but with clear guidelines and clarity for family members and next-of-kin.

I commend the Bill to the House and I hope the Government will accept it. The Minister of State claims the Government will introduce similar legislation but God only knows when it will be published. It would be appropriate for the Government to accept this worthy Bill.