Áine Brady (Kildare North, Fianna Fail)

Amendment No. 17 obliges the court 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 very limited function under section 21 which extends only to matters relating to ancillary State support and the creation of a charge. However, the proposal represents a further safeguard for the person and is consistent with guiding principles contained in the proposed mental capacity legislation.

Senators will note that the proposal reflects my commitment to accept, in principle, Committee Stage amendment No. 22 by Senator Norris. Accordingly, I ask Senators to support this amendment in place of amendment No. 18.

Amendment No. 19 similarly reflects a commitment, in principle, made on Committee Stage. It explicitly excludes 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 mirrors the intent of amendment No. 20. I therefore ask Senators to support this amendment in place of amendment No. 20.

Finally, amendment No. 21 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 decisions concerned.

With regard to the issues of expertise and communication, medical practitioners undertaking functional assessments of capacity will be bound by their own code of ethics and ensure such assessments are undertaken in a thorough and robust manner. Moreover, the functional nature of the assessment absolutely requires that a person must be provided with all relevant information in a manner which is most easily accessible for them and that he or she must be supported to communicate his or her decision in any way possible. The person's needs and preferences in respect of the decision will be noted by the practitioner. Amendment No. 17 also ensures these will be formally noted by the court.

For the reasons I have outlined, amendment No. 21 is unnecessary. However, the Department of Health and Children is working on the guidance documents which will support medical practitioners in undertaking assessments under section 21 and highlight all of the important considerations associated with the functional test of capacity.