Dermot Ahern (Louth, Fianna Fail)

The purpose of the first amendment is to clarify who may make a victim impact statement on behalf of a person with a mental disorder, whether that person is a child or an adult lacking capacity. As subparagraph (II) is currently framed, the person himself or herself, a guardian or a family member may make this statement. The inclusion of guardian with respect to adults lacking capacity presents some difficulties. The Bill defines "guardian" in this circumstance as a legal guardian. However, unlike children with mental disorders, adults lacking capacity do not, in many instances, have legal guardians and the term has very limited practical meaning with respect to adults. This situation is to be remedied by the mental capacity Bill which is being drafted and intended to replace the wards of court system with a system of personal guardianship. I intend to consider whether the personal guardian envisaged in the mental capacity Bill could be given the additional role of making a victim impact statement on behalf of an adult with a mental disorder, should the need arise. This would be done in the Mental Capacity Bill. In the interim my proposal is that subparagraph (ii) be substituted with a provision such that in the case of an adult person with a mental disorder not resulting from the offence concerned, a person or a family member may make the victim impact statement. In essence the term "guardian" is removed. In the case of a child with a mental disorder, his or her parent or guardian may make the victim impact statement. The term "guardian" is retained in this case as its meaning is clear but "family member" is removed. I intend to remove "family member" in this case to bring the section into line with the provisions of subparagraph (i) which apply to children under the age of 14 years who do not have a mental disorder, having regard to the broad meaning given to "guardian" and the inclusion of a specific reference to the child's parents. This is achieved by amendment No. 11.

Amendment No. 14 is consequential and deletes the definition of "guardian" as it relates to a person with a mental disorder. The definition of "guardian" as it relates to a child is retained. Given the nature of the task at issue, that is, making a victim impact statement, I believe it is appropriate to ensure flexibility as regards who may make such a statement on behalf of a vulnerable victim. I am satisfied, bearing in mind the wide definition given to "family member" for the purpose of this section, that my proposal achieves this in respect of an adult victim with a mental disorder. I am equally satisfied this aim is achieved in respect of a child victim with a mental disorder. I strongly suggest the House accepts these amendments. The scheme of the Mental Capacity Bill was published in 2008 and the drafting has commenced in the Attorney General's office. We hope to publish that Bill in early 2010.