David Norris (Independent) | Oireachtas source

Well then the amendment also needs a definition of "legal capacity" because, as I understand it, Senator van Turnhout is moving in certain circumstances away from mental capacity towards legal capacity, and she cites in support of her evidence two human rights scholars who have described mental capacity in these instances as being meaningless. The amendment requires also a definition.

It seems to be a reasonable amendment because it is only with regard to a situation of last resort - in other words, where everything else has failed and we have a situation where the individual centrally concerned does not have the capacity, whether legal or mental, to make a decision, so no decision is made and the person is left in limbo. We obviously need somebody to be able to make that decision. This is where the phrase "legal capacity" comes in. The history of the patient and his or her past decisions and attitudes is used to assess what type of decision he or she might have made in the circumstances. In addition to this, under subsection 3 people must be able to provide a reasonable account of the reasons they arrived at a decision. This seems to be a reasonable amendment. It covers a situation where no decision involving the person can be arrived at.

This deals with legal and mental capacity and assisted decision-making, and I have some remarks on what the Minister of State said about the independent agency. Let the record show the Minister of State said of course it should be an independent agency. This is a very honest point and I salute the Minister of State for making it, but in legislation and in the Seanad, what we need is to hold the Government to what is best for the citizen and not what was said in a radio interview as a result of a media blitz on quangos. People say they will never establish another one. Really? Not even if it is necessary? Not even if it is in the best interests of patients? The Minister of State said it was the best interests of patients. I do not think this is proper; we should have what is best for the individual. The Minister of State also failed to give what, to my mind, was adequate reassurance about the funding. She said it would happen if people believed in this, and there is an element of conditionality already. Not everybody, presumably, does believe in this. I am a little bit concerned. The amendment goes a long way towards strengthening the Bill and I certainly support it.