David Norris (Independent)

I move amendment No. 22:

In page 28, subsection (5), line 39, after "person" to insert the following:

"and particular regard to the expressed, verbal or written wishes of the person".

The amendment relates to the important matter of taking into account the expressed wishes of a person, whether verbal or written. It refers specifically to subsection (5) which states: "If the court is satisfied that the relevant person concerned is incapable, for the time being, of making a decision to which this section applies, and the court determines that it is in the best interests of the relevant person concerned having regard to the circumstances of the person, the court may appoint a care representative in accordance with this section". The amendment proposes to insert the words "having regard to the circumstances of the person" after the words "relevant person concerned" in the subsection. I am not certain the legislation covers or envisages a case in which, for example, a person going into care has made the equivalent of a living will in which he or she indicated a wish not to be resuscitated. Such a wish is perfectly reasonable and should be taken into account.

Amendment No. 25, which also addresses a substantial matter, proposes to insert the following new subsection:

"(44) (a) The assessment officer should be obliged to provide an education service where it is guaranteed a person with appropriate expertise would assist in the carrying out of the assessment.

(b) The assessment officer should ensure that the person carrying out an assessment would communicate with the applicant in a manner which facilitates appropriate participation, promotes dialogue about the nature of the assessment and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the provision of services to meet his or her needs.".

I referred to the possibility of somebody having a stroke or suffering aphasia. People with the latter condition retain their logical capacity but the speech sector of the brain is damaged and they are not in complete control of their capacity to express themselves. In other words, they are trapped and while they know what they want, they have considerable difficulty in expressing it, which does not mean it is inexpressible. What is needed is professional assistance to ensure the intention and wish of the person is discovered and, if possible, acted upon. The person should be someone who is able to conduct a professional assessment, is knowledgeable, has experience of working with people with these types of conditions and is able to pursue any method or contact that would be able to draw forth the information sought. While some conditions, for instance, mental difficulties, stroke and so forth, may be untreatable and irreversible, their impact can be minimised by ensuring this type of professional person is available. The capacity, for example, of a person with short-term memory deficit to make a particular decision can be improved, as has been demonstrated, if trained in suitable techniques by an occupational therapist or physiotherapist. This is a classic practical example of how a person who apparently cannot make an informed decision can be assisted practically by a professional to make and communicate a decision.

Many communication difficulties arise from physical disabilities and can be overcome. This emphasises the importance of recognising the true basis of what is only an apparent incapacity. There should, therefore, be careful assessment of speech, language functioning, hearing and, if appropriate, sight. One must choose the best location, as has been noted, and it may be appropriate to have assessments done in the person's home given that tension, worry, anxiety and stress can also be factors.

It is important that ancillary services are provided while the assessment is being made. The nursing and midwifery council's guidance for the care of older people, which was published in 2009, suggests there may be physical barriers to communicating with older people. These include hearing loss, visual impairment, cognitive impairment, aphasia and loss of ability to speak or understand words. As it may take longer for a frail older person to process information, it is vital to ascertain who is the main carer and inspect the carer's knowledge and experience of caring for the person concerned as the carer will be best able to explain how to communicate with the person. In other words, the carer will have had long experience of dealing with the person in question and will, therefore, know his or her quirks and how to understand the signals he or she is giving.

Many recent media reports have raised concerns about literacy and numeracy, specifically among adults. If one is trying to obtain information from people about mathematical concepts such as sums of money, percentages and so on, one must be certain they understand the issue and are able to provide rational answers. I have been provided with curious and worrying statistics in this regard. For example, research published in 2008 showed worrying numeracy trends. Less than 60% of those with a primary education or no education were able to give a correct answer to the question, "What is 10% of 1,000?" I failed arithmetic but even I know that 10% of 1,000 is 100. The Minister of State will confirm that is the case. Even a dodo like me could work out the answer to that question, whereas 60% of people with a primary education or little education could not do so. While it may be wonderful that 90% of those with third level education could answer the question, it is even more worrying that 10% of those with university degrees could not provide a correct answer when asked what is 10% of 1,000. These people have not had a stroke, suffered brain damage and so forth. It is important to examine the capacity to explain this issue to people and obtain a proper and appropriate response from them.

We must also take into account that difficulties are sometimes caused by inadequate education and information. People also become flustered under interrogation. For this reason, taking the advice of someone who knows the person is a useful suggestion. When people are cross-questioned on programmes such as "Mastermind", "Today with Pat Kenny" or "Mooney", they are often unable to answer simple questions. People in radioland ask what kind of eejits cannot answer simple questions. The problem is that they know the answer but find it impossible to give it because of stress.

We also ought to take into account that other, quite recent legislation contains these kind of provisions for providing an education service, for example, the Disability Act 2005, in which the assessment officer is obliged to provide an education service where it is guaranteed that a person with appropriate expertise could exist in the carrying out of these kinds of procedures. For that reason, it seems that the Bill, to which I have given a general welcome, is incomplete without a clause that copperfastens the capacity for people to have assisted decision making.