Jim Walsh (Fianna Fail)

I commend Senator Henry for pioneering this legislation. She has on many occasions brought the issue of mental health to the forefront in an enlightened way. It is to our benefit that she has taken an initiative in this area. As she stated the reform of the law on legal capacity is overdue. I am glad the Minister of State concurs with the Bill.

The Law Reform Commission recommended comprehensive reforms in this area and which embrace a wide range of matters such as mental capacity, powers of attorney and testimony capacity. It recommended replacing the wards of court arrangements for incapacitated adults in its entirety. The report, published on 18 December 2006, sets out how the law should approach the concept of capacity to make decisions and what structures are needed to support vulnerable persons when it comes to make decisions. There were 63 wide-ranging recommendations, particularly for the provision of new guardianship and decision-making arrangements for people whose decision-making capacity may be temporarily or permanently impaired. It includes a draft scheme of legislation on which I believe Senator Henry's Bill has drawn.

The wards of court system is headed by the President of the High Court with the support of the office and registrar of wards of courts. Approximately 2,000 persons are in court wardship, the majority of whom are adults. It caters for minors who may not have mental capacity problems. The purpose of wardship is to protect the person and the property and to manage it for the benefit of his or her dependants. The President of the High Court has regard to the wishes of the ward and his or her family. It is important this is retained in a new system. Only in exceptional circumstances does the president deviate from those wishes. It covers such matters as the sale of assets of the ward, suitability of accommodation, power of the ward's fund to purchase suitable accommodation, payment of allowances to a ward or dependant relatives, and decisions with regard to health care. It operates under a committee of the person or estate of the ward which in turn acts under the directions of the court.

The basis for the wardship system is contained in the Lunacy Regulation (Ireland) Act 1871. A major difficulty is the terminology in that title which contains an element of stigma and its pejorative meaning is unacceptable. It also colours the views of relatives and third parties. While it is archaic in nature, it has operated for great benefit for the protection of the incapacitated individuals. The system must be modernised. Senators Henry and Quinn referred to the dignity of the individual, which should be a guiding influence in making legislation.

The Bill will change the current system with two statutory agencies, a guardianship board and an office of public guardian. The Bill sets out limitations on the liabilities for persons who make decisions. The Minister of State drew attention to section 8(4). It states:

Where an act to which this section applies involves expenditure, it shall be lawful for the individual to apply money in the other person's possession for meeting the expenditure and if the expenditure is borne by the individual for the other person, it shall be lawful for the individual to reimburse himself or herself out of money in the other person's possession or to be otherwise indemnified by the other person.

Undoubtedly that would be an essential component and responsibility. However, where cash and assets are involved, secure safeguards need to be in place. Under the current system, people, who may not have been of full capacity, were deprived of assets by unscrupulous relatives. The section needs to be tightened.

Many sections set out guiding principles which establish an incremental approach to an intervention under the Bill, limit the scope of the Bill to adults, establish an assumption of capacity until the contrary is established and define capacity for that purpose. The establishing of assumption of capacity until the contrary is found is an important aspect of this legislation. Intervention should take place only where it is absolutely necessary.

Reading the Law Reform Commission's report, I was impressed to discover the inclusion in a Scottish Bill of five general principles in this regard. This issue goes to the heart of State involvement in the lives of citizens. I am firmly of the view that the State should be minimalist in its interference in people's lives. This is an issue that has arisen in the context of the debate on the constitutional amendment on children. I contend that the State should intervene only when it is absolutely essential to do so and should not place itself in the position of parents or others who make decisions in regard to children.

The Law Reform Commission report states:

In Scotland section 5 of the Adults with Incapacity (Scotland) Act 2000 sets out five general principles which govern all interventions in affairs of an adult under that legislation. The statutory principles which are broader than a "best interests" test aim to ensure that the adult is consulted, as well as anyone else with an interest in the adult. The relevant principles which are to be respected can be summarised as:

There is to be no intervention unless the intervention will benefit the adult and that benefit cannot reasonably be achieved by other means.

The intervention must be the option which is least restrictive of the person's freedom, consistent with the purpose of the intervention.

In deciding on any intervention, account must be taken of the adult's past and present wishes, beliefs, values and feelings so far as they can be ascertained.

Account must be taken of the views of the adult and relevant others (including the nearest relative and primary carer) where it is reasonable and practical to do so.

Persons holding powers of attorney or acting as guardians must encourage the adult to use existing skills and to develop new skills concerning his or her property, financial affairs or personal welfare.

There is much wisdom in these five general principles. They should be applied in the case of vulnerable adults. Moreover, in all cases where the State is deemed to have responsibility to intervene, it would be valuable to apply them as a litmus test for how and when it should intervene.

I compliment Senator Henry on her initiative in bringing forward this Bill. I note the Minister of State's comment that if the matter is not pressed, the Bill may remain on the Order Paper. More interdepartmental work is required to refine aspects of it and to add to its general content.