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

Senators van Turnhout and Zappone propose in amendment No. 6 to change the approach to capacity in section 3. The Bill is based on the premise that a person has capacity unless otherwise determined. We did not think it needed to be explicitly spelled out. Legal capacity, as I previously indicated, is implicit. I agree with most of what Senator Norris said, except that the amendment is necessary. Section 8 provides for a series of important principles which require interventions to intrude as little as possible on a person’s rights. It also provides that the intervener must pay due regard to the person's will and preferences. They are placed at the heart of the Bill. In a situation where someone cannot clearly make a decision, it must be made by someone who has known the person, or can presume what the person's will and preference would have been in certain circumstances.

The Bill is intended for a large potential target audience. It includes a range of support options for people who have capacity difficulties but who can still exercise capacity. It proposes the assisted decision-making option to support them in taking their own decisions. The co-decision-making option has been moved out of the courts, and is a second option whereby the person can take decisions jointly.

The Senators' intentions in their amendment are already encompassed in the architecture of the Bill. However, the capacity test, which they propose to delete, is a vital part of that architecture. If a person’s right to the presumption of capacity is to be guaranteed, it follows that the appointment of a decision-making representative, an attorney or a designated health care representative can be undertaken only when the person has been found to lack capacity. This is an essential point. There has to be a solid legal basis if one person is taking decisions on behalf of another person. We have had this discussion here on many issues in the past. This cannot be done lightly. I agree with the Senators that, as they say in their amendment, this is a situation of last resort.

It is not feasible to limit the decisions needing to be taken on behalf of a person lacking capacity to those on which the person’s will and preferences are known. I will use the same example as I gave last week.A man who is in a persistent vegetative state since the age of 20, for instance, may have expressed no views on the sale of a property that has come to him on the death of a family member. There may be absolutely no way of ascertaining his will and preferences. A similar set of circumstances may apply for some people with dementia.

The existing provisions strike the right balance between the assertion of the person’s presumption of capacity and the decisions needing to be taken as a last resort when the person has lost capacity. The capacity test is a key part of that process. It has been refined to make clear that the test is time specific and issue specific. This is essentially where we have gone further than anywhere else. We do not expect people in these circumstances to have capacity across a range of areas; we are talking about particular decisions that need to be made in particular circumstances. That is essential and a key component of this Bill. It is about enabling people to make decisions for themselves on particular issues at a particular time. That is considerably important but we cannot remove the capacity test and presume capacity when people may not have it in certain circumstances. As the removal of the capacity test could create many unintended consequences, I cannot accept the Senator’s amendments. I hope my explanation rings true for her.