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

This amendment seeks to replace section 3 of the 2015 Act, which sets out the functional capacity model, with a replacement text on legal capacity. I would argue that this amendment mixes two separate provisions. As the House will be aware, the 2015 Act provides for a presumption of capacity in section 8(2), which deals with the guiding principles. Section 8(7) already requires an intervener to give effect to the relevant person's will and preferences. As such, the provisions proposed by the Senator with regard to the recognition of legal capacity are already contained in the 2015 Act. Importantly, the commencement of the 2015 Act will remove wardship, thereby removing a system which explicitly removes a person's legal capacity. I recognise the importance of legal capacity, not least under the UNCRPD. 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 explicit reference to a person's will and preference throughout the operation of the functional capacity model in both the 2015 Act and the amending Bill before us today.

Section 3, which this amendment proposes to replace, has a different purpose. Its purpose is to provide a test that will apply where an intervener 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 proposed provisions imply a test is needed. The proposed amendment provides in subsection 2(b) for the appointment of a person to support the relevant person in exercising 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. Section 3 provides 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. While I appreciate the intent of the amendment, examining section 3 in isolation is not helpful in assessing the Act's overall recognition and enabling of legal capacity.

The Senator spoke about the language. I have flagged these points previously but the issues are still present. On a technical level, there is language in the proposed amendment that we cannot 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 the role, which is to assist a relevant person in their own decision-making. The requirement that the decision be guided by the decision-maker is contained within the amendment. The term "best interpretation" is also not 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, section 8, and the superior legal clarity provided by the existing section. For that reason, I am unable to accept the amendment.