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

I also acknowledged Mr. John McCarthy. I am not certain if he would agree with our interpretation of where he is now, but I am sure that if he weas still around, he would, at least, be half happy.

On amendment No. 3, as Senator Colm Burke outlined, it is hugely important that we be very clear about the interpretation of someone's will and preferences. I fully acknowledge that we can never get it entirely right and that there will always be circumstances where we will get it wrong. Mr. John McCarthy's book which is on my shelf constantly reminds me of the human condition. We are human and will get it wrong. I do not know why we are ever that surprised by this.

Senators Jillian van Turnhout and Katherine Zappone have proposed amendment No. 3 to introduce a definition of "best interpretation". I cannot accept the amendment because my entire focus in the Bill is on ensuring people have the ability and are helped as much as possible to make decisions for themselves, sometimes in very difficult circumstances. Section 3 provides that where a person's capacity is being assessed, he or she can be deemed to have capacity if he or she can communicate his or her decision by talking, writing, using sign language, assistive technology or any other means, including by means of a third party who knows him or her well and knows what his or her will or preferences would be in the circumstances. Again, I am not certain people will always get it right, but they can only do their very best in the circumstances.

The provision in section 3(2) encompasses much of what the Senators are seeking to achieve. The proposed definition is somewhat unclear in terms of who would interpret it. One issue about which I have concerns is the idea that gestures and actions should be included, without proper safeguards, in a definition of best interpretation. The decisions which need to be made will often have serious legal consequences for the person concerned or another party. The sale of a house, for instance, may leave the person concerned without a home. It is crucial, given the seriousness of the decision, that his or her will and preferences be absolutely clear. Communication through gestures and actions could be misinterpreted if they were not clearly understood. As Senator Colm Burke says, they could be misinterpreted deliberately. In some cases, non-verbal communication will work. We all know people who are non-verbal but who can make their meaning very clear. We see this every day. In some cases, though, it may give rise to misunderstandings. Therefore, a general definition would need to be workable in all cases.

I suggest it would be more appropriate for the director to provide information on communication methods in a code of practice that would enable organisations to have clear information on how to approach communications which might involve the use of assistive technology or non-verbal communication. For these reasons, I cannot accept the amendment, while appreciating exactly what the Senators are seeking to do. I think we have covered as much as possible. The director will have a further part to play in terms of how non-verbal communication can be interpreted.