Michael McDowell (Independent) | Oireachtas source

That is for the person in authority. What we are talking about here are male orderlies in a nursing home or something like that. They would fall into the person in authority category here because they are under a contract of services with a person under their care.The significance of this is that the relevant person must have:

(a) a mental or intellectual disability, or

(b) a mental illness,

which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation.

That is a very different concept from the other section which refers to people being incapable of "understanding the nature, or the reasonably foreseeable consequences, of that act..."

I wish to raise another point. There is no "or" after section 21(7)(a). Therefore, section 21(7)(a) and section 21(7)(b) seem to have to be taken cumulatively. However, there is an "or" after section 21(7)(b), which means that it has to be taken disjunctively. That is a strange definition and seems to be faulty. I draw the Minister of State's attention to the wording of section 21(7), which states:

For the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of—

(a) understanding the nature, or the reasonably foreseeable consequences, of that act,

(b) evaluating relevant information for the purposes of deciding whether or not to engage in that act, or

(c) ...

The real question is: are (a) and (b) cumulative or are they disjunctive? Does either of them suffice or must both be proven? I do not like the way it is drafted.