Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I thank everyone for the constructive debate. I welcome those interested parties in the Public Gallery who have been a significant part of this development. Their advice and input have had a major impact on the development of this Bill. It is a Bill that has developed, which is probably a first in this country in respect of the amount of time it has taken, the number of people who were listened to and the number of different opinions involved. We started off with best interest and it turned into will and preference. We changed so many things along the way. I am probably wrong on this but I think we had 164 amendments on Committee Stage in the Dáil, which was unique, and they were all from the Government side. I think four came from the Opposition. I may be wrong on that but it was there or thereabouts. That is significant.

The Assisted Decision-Making (Capacity) Bill 2013 is a pioneering piece of legislation that will institute a comprehensive reform of the law on capacity. The legislation is exceptionally complex but none the less, it should be easily explainable. One does not need to go into the detailed legal nuances to make the legislation understandable to the people it will affect the most. The potential beneficiaries are very wide-ranging and range from older people with dementia to people with intellectual disabilities and those with mental health issues. The solutions that will suit some people will not always suit others. The problems that need to be solved are also complex. I believe we have achieved a good balance in terms of respecting the rights of vulnerable persons and putting in place adequate safeguards as many of the decisions that need to be taken will have financial or legal implications. The legislation's solutions must be robust.

I have listened carefully at each stage of the process, including this evening. I have worked actively to respond to the concerns raised whenever possible. My starting point has always been to defend the person's right to autonomy wherever possible. People who know me will understand where I am coming from in that respect. Work on this Bill has not finished and I plan to introduce further amendments on Committee Stage.

I will deal with some issues raised but I am not sure if I will get to all of them. In response to Senator Bacik, we are considering an amendment on Committee Stage relating to legal aid. In respect of the concept of capacity and the mechanism by which capacity is assessed, legal capacity is presumed in the Bill. The person continues to hold legal capacity. The functional test is a nuanced test. The person is assessed with regard to his or her ability to understand information, retain it in a way that will allow him or her to make an informed decision and communicate that information. This is very important.

The new system will be time-specific and issue-specific. I very much take on board the points made by several contributors, including Senator O'Donovan, namely, about those of us who are always presumed to have capacity and how somehow or other that is unquestionable. I am not sure what use I would be in the World Bank in Zurich. It is time-specific and issue-specific and that is very important.

The issue of wards of court has come up on several occasions. We would be talking about people who have significant resources and how we need to be very careful and protect them not from making the wrong decision, because we all make wrong decisions, but to ensure that as far as possible, we as legislators and law makers have done our duty in respect of protection. I have been hearing concerns about wards of court, not just tonight but for a number of months.I am aware of the concerns of families of wards of court. Those concerns have been communicated to the Department of Justice and Equality and to the Courts Service. The Committee of Public Accounts exercise is separate from the Bill. The focus in this Bill is not on the current system of wardship but on its abolition. The focus is on restoring autonomy to the person to the greatest extent possible. Whereas I hear what people are saying in terms of investments that did not quite give the return or yield that was expected, nevertheless that is not for this Bill. However, I hear the message.

We should also say that in terms of the three years regarding wards, some people will be ready to come out of wardship as soon as the Bill is enacted. When they are ready that is fine. Other people will not be ready until the final phase of the three years. It is about ensuring there is a mechanism in place to support people.

As to the issue raised by Senator Moran, it will be duty of the director of the decision support services to not just undertake a public information campaign, but also to help people along the road in terms of information for them and their families on how they exit wardship and what structure they need to put in place.

The issue regarding chemical restraint is included in the Bill. Sometimes that has been lost but I take Senator O'Donnell's point very clearly. We need to define what we mean by "chemical restraint". Is the administering of two sleeping tablets at night chemical restraint? Is it more profound than that? I take the issue on board and accept that fully.

As to organ donation, it seems that the draft human tissue Bill will allow under exceptional circumstances, and subject to High Court approval, an incapacitated individual to donate an organ. That is something that could be teased out when that Bill comes before the House. I know the House will have a particular interest in that Bill.

I hope Mervyn Taylor does not feel disabused or abused by his being mentioned on several occasions. He is equally as committed and is great at giving advice in terms of complex issues such as this. We should be thankful to him and it is unfortunate that he would have the same name as someone who is probably remembered by politicians more than others.

Reference was made to the use of the Circuit Court rather than the High Court. That is the case in terms of access more than anything else. It usually takes much longer to get to the High Court. Senator Moran referred to people who have a loved one who is now in that position or who could be in that position in the future. It is essential that we now that the law will protect. That is essential.

A Sinn Féin Senator asked if the Bill is the only step remaining in terms of ratification. No it is not. No later than last month, a week and a half ago, the roadmap for ratification was approved by the Government. There are other issues but this Bill is the significant step that needed to be taken.

I spend my life trying to bring people with me rather than rowing with them. This complex legislation is to a great extent legally intrusive because it is changing so much and demanding that we change. The officials and I have spent two years ensuring this does not become a stick to beat anyone with or become an argument. For so long in this country we have used fear in order not to do anything. We cannot have that anymore.

Basic care is care that is provided in order to keep a person comfortable and, as such, it is separate and distinct from treatment. From a legal perspective in Ireland as outlined in the ward of court case, artificial nutrition and artificial hydration are considered to be medical treatments as opposed to basic care. Therefore, artificial nutrition and artificial hydration could be refused under an advanced health care directive. For the purpose of this Bill, basic care includes but is not limited to warmth, shelter, oral nutrition, oral hydration and hygiene measures, but does not include artificial nutrition or artificial hydration.

An advanced health care directive refusing basic care would not be applicable and would not be upheld. This is in line with the view of the Law Reform Commission and the Oireachtas Joint Committee on Justice, Defence and Equality which have recommended that legal provisions should be implemented to enable individuals to refuse treatment in an advanced health care directive, but not to refuse basic care. A code of practice to accompany the advanced health care directive provision will further clarify what constitutes basic care in the context of the legislation. A refusal of treatment in an advanced health care directive, even if it results in death, is clearly distinct from permitting euthanasia or assisted suicide. It should be emphasised that any wishes or preferences outlined in an advanced health care directive must be legal within the jurisdiction. That is our greatest protection. Accordingly, an individual cannot compel another person to undertake illegal treatment demands such as a request for euthanasia or assisted suicide. We have had recent examples of this very rigorously tested in the courts and the courts have ruled that this is the position.

I will look into the implications of ratification for children with special educational needs. The aim is to ratify next year. The Government has published a roadmap as I have said, and that has been approved by the Cabinet. I have already said the decision support services will have the role of providing information to former wards and their families and directing them to sources regarding financial expertise. They will talk people through all the support options available.

I think it is essential to deal with the mental health issue. When the expert group was put together to review the Mental Health Act, part of its instructions was that it would need to be conscious of the fact that this legislation was coming on stream and it needed to dovetail one with the other. I recently received Government approval to proceed with a general scheme of a Bill to amend the Mental Health Act 2001 based on the recommendations in the expert group report published in March this year. The report contains 165 recommendations, a number of which relate to the assessment of capacity.

It is quite interesting to read the recommendations. The expert group acknowledged in its report that when revised mental health legislation is being framed a further look at the final proposals in the capacity Bill will be required. I am quoting from memory, and do not hold me to it, but the group recommended that one may well lack capacity when one is being admitted to an acute unit, but that capacity must be continuously assessed so that when it first returns one's rights are returned to one. The group's recommendations are very interesting and nuanced. I do not think it will cause us problems regarding this capacity legislation. However, we will have to take a look at both Bills to see how they dovetail and ensure one does not contradict the other.