Fintan Warfield (Sinn Fein) | Oireachtas source

I move amendment No. 4:

In page 8, after line 35, to insert the following: “Amendment of section 3 of Principal Act

5.The Principal Act is amended by the substitution of the following section for section 3:

“Recognition of legal capacity

3.(1) Legal capacity means the ability to hold rights and duties and to exercise these rights and duties.

(2) The exercise of legal capacity may be achieved either—

(a) by the relevant person, acting legally independently, and with decision-making supports and reasonable accommodation as needed, or

(b) by the person(s) appointed to support the relevant person in exercising his or her legal capacity, and

(c) where capacity falls within the purview of paragraph (b) there shall be a requirement that the decision be guided by the decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s),

in applying paragraph (c), ‘best interpretation’ means the interpretation of the relevant person’s behaviour and/or communication that seems most reasonably justified in the circumstances. Decision-making assistants, co-decision-makers, decision-making representatives, attorneys, or designated healthcare representatives must be able to provide a reasonable account of how this interpretation was arrived at.”.”.

I apologise; I am searching for my note. I am keeping in my back pocket the right to call a quorum today in case I need more time to look for it. If I call a quorum, Senators will know what I am doing. The proposed amendment calls for the deletion of lines 36 to 40. There are concerns both in terms of process and the impact it will have on the human rights of people with disabilities, older people and people with experience of mental health services. At a procedural level, this amendment, which has significant implications for the rights of disabled and older people, was introduced on Report Stage in the Dáil. It was not properly discussed as the debate was guillotined prior to the full reading of all the proposed amendments. Making such a drastic provision without the full input of both Chambers of the Oireachtas is problematic.

More fundamentally, by retaining and recognising inherent jurisdiction within the Act, the State risks undermining the entire rights-based system of supported decision-making which it seeks to create, and allows the court to continue in parallel a secondary system with little guidance or oversight. This effectively overrides the Assisted Decision-Making (Capacity) Act and its principles, especially the central guiding principle of respect for the will and preferences of the person. Indeed, family members or service providers can avoid the entire system if they have the resources to commence proceedings seeking orders from the High Court under the inherent jurisdiction. Under the inherent jurisdiction, the court has no obligation to consider the will and preferences of those of whom it makes orders regarding their detention and treatment without consent. This provision has been of significant concern to human rights activists but also to lawyers practising in the area. It was noted by Ciara O'Dowd that instead of using inherent jurisdiction to fill any lacunas in legislation, the Government in recognising it within legislation is effectively nullifying the Act with regards to treatment and detention. This amendment was inserted into the Bill and will undermine the entire rights-based system the Government is purporting to create. It should therefore be removed. Its removal from the Bill does not mean that the inherent jurisdiction will cease to exist or can never be used but it sends a powerful signal that it is not to be considered as a means to circumvent the positive and rights-affirming aspects of the Assisted Decision-Making (Capacity) Act.