Áine Brady (Kildare North, Fianna Fail)

Amendment No. 22 obliges the courts to have regard to the wishes of the person who is the subject of the application when appointing a care representative. The care representative has a limited function under section 21 which extends only to matters relating to ancillary State support and the creation of a charge. However, the Senator's proposal represents a further safeguard for the person and is consistent with the guiding principles contained in the proposed mental capacity legislation. As such, I accept this amendment in principle.

Amendments Nos. 23 and 24 seek to exclude explicitly from the categories of care representative any medical practitioner involved in the assessment of the person's capacity. This is consistent with the overall policy intention of section 21 and I am happy to commit to considering its inclusion on Report Stage. I will, therefore, accept this amendment in principle.

Amendment No. 25 proposes to stipulate that an assessment officer must have sufficient expertise, must sufficiently communicate with the applicant and must note the applicant's needs or preferences regarding the provision of services. On the final point, it should be highlighted that the assessment of capacity will relate only to the issue of ancillary State support and the placing of a charge against the person's asset. This is the only aspect of a person's capacity which is being examined. As such, a person's power to state the preferences regarding services should not be affected by the care representative process. Moreover, the acknowledgement of a person's preference regarding services is a much wider issue which extends beyond the scheme. The scheme is fundamentally a scheme of financial support. However, within the legislation this issue is acknowledged in section 5 which enshrines the principle of patient choice for all applicants.

On the issues of expertise and communication, I can assure the Senator that medical practitioners undertaking functional assessments of capacity will be bound by their own code of ethics and will ensure such assessments are undertaken in a thorough and robust manner. Moreover, the functional nature of the assessment requires that a person must be provided with all relevant information in a manner which is most easily accessible for him or her and that the person must be supported to communicate his or her decision in any way possible. For these reasons, amendment No. 25 is unnecessary. However, I can advise the House that the Department of Health and Children is working on guidance documentation which will support medical practitioners in undertaking assessments under section 21 and will highlight all of these important considerations associated with the functional test of capacity.