Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I am speaking specifically here, by leave of the Chair, to amendment No. 4 by way of a discussion on the section. That amendment seeks to replace section 3 of the 2015 Act, which sets out the functional capacity model, with a replacement text on legal capacity. The amendment mixes two separate provisions. As Senator Warfield is aware, the Assisted Decision-Making (Capacity) Act 2015 provides for a presumption of capacity in section 8(2) dealing with the guiding principles. Section 8(7) already requires an intervener to give effect to the relevant person's will and preference. As such, the provision proposed by the Senator with regard to the recognition of legal capacity is already contained in the original 2015 Act and, importantly, the commencement of the 2015 Act will remove wardship, thereby removing a system which explicitly removed a person's legal capacity. I completely recognise the importance of legal capacity, not least under the UN CRPD.It is the position of the Government that the operation of the functional model is qualified in an important and rights-based fashion in the Irish context by that explicit respect for a person's will and preference throughout the operation of the functional capacity model in both the 2015 Act and the amending legislation.

Section 3 has a different purpose. It is to provide a test that will apply where an intervenor seeks to intrude on the decision-making autonomy of a relevant person. Such a test is necessary to protect the rights of the relevant person as a decision-making supporter should not be appointed unless absolutely necessary. Removing that test could lead to a situation in which decision supporters would take it upon themselves to take decisions on behalf of another person unnecessarily, even with good intentions. Respecting the person's autonomy is a key value underpinning the 2015 Act.

The Senator's provisions imply a test is needed. The subsection 2(b) they propose refers to the appointment of a person to support the relevant person in exercising his or her legal capacity. Inevitably, the appointment of such a person would involve some form of process that would most likely be based on a set of criteria by which that person's situation was evaluated. What section 3 provides is such a set of criteria, putting in place the limited circumstances in which a decision supporter can be appointed with authority to help another person with decisions.

The place of the functional capacity model in the Act, uniquely qualified by the will and preference in the Irish context, is designed to maximise a person's decision-making capacity in a manner that explicitly privileges their explicit will and preference. It is contrary to the prevailing system of wardship. Assisted decision-making will allow a person to hold and exercise legal rights and obligations. While I appreciate the intent of the amendment being discussed, examining section 3 of the Act in isolation is not helpful in assessing the Act's overall recognition and enabling of legal capacity.

On a technical note, there is language in the proposed amendment that I could not accept. It is not appropriate that a decision-making assistant would guide the decision of a relevant person. This could be construed as leading a decision and is beyond the remit of a role, which is to assist a relevant person in their own decision-making. The term "best interpretation" is not a term used elsewhere in the 2015 Act. It is problematic and unnecessary given the application of will and preference set out in the guiding principles section of the Act and the superior legal clarity provided by the existing section. For that reason, I am not in a position to accept the amendment.