Seanad debates

Tuesday, 1 May 2012

Adjournment Matters

Mental Capacity Legislation

5:00 pm

Photo of Mark DalyMark Daly (Fianna Fail)
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I welcome the Minister of State back to the House and thank her for coming. I ask her to provide an update on the mental capacity Bill 2008. The Minister is, I am sure, well aware of the parameters of this Bill. My understanding is that it was to be published in April 2012. Could the Minister provide an update to the House about whether this is on target?

6:00 pm

Photo of Kathleen LynchKathleen Lynch (Cork North Central, Labour)
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I am taking this on behalf of my colleague Deputy Alan Shatter, Minister for Justice and Equality, who is unavailable at present, as I am sure the Senator will understand.

I thank Senator Daly for raising this important subject. It is particularly appropriate that he is raising it today, as earlier today the Joint Committee on Justice, Defence and Equality launched its report on the hearings on the scheme of the mental capacity Bill. I welcome the committee's report and I assure Senators that the observations made in the report will be given full consideration in the finalisation of the text of the Bill.

When coming into office, the Government made a firm commitment in the Programme For National Recovery to introduce a mental capacity Bill that is in line with the UN Convention on the Rights of Persons with Disabilities. The Government legislation programme published on 17 April indicates that the Bill is expected to be published in this session. I am pleased to inform the House that drafting is being finalised and that the Minister expects to bring the text of the Bill to the Government for approval in the next few weeks.

The purpose of the Bill is to establish a comprehensive framework to support persons lacking the mental capacity required to exercise their legal capacity. The Bill will reform the law in respect of adults who are vulnerable in the sense that they may lack some or all capacity to make important decisions for themselves. It will modernise the laws on capacity, some of which date back 200 years, and will bring Irish capacity legislation into line with current thinking and modern legislative frameworks worldwide.

In summary, the main purposes are to provide for supported decision-making for persons lacking capacity; to reform and replace the adult ward of court scheme with a new statutory framework governing decision-making on behalf of persons who lack capacity; to change existing law on capacity, shifting from the current all-or-nothing approach to a flexible, functional one whereby capacity is assessed on an issue and time-specific basis; to provide that where it is not possible to support a person in exercising capacity, the court or a personal guardian appointed by the court will act as a substitute decision-maker; to clarify the law for carers who take on the responsibility for persons who lack capacity; to establish an office of the public guardian responsible for the supervision of personal guardians and people conferred with enduring powers of attorney; and to repeal and subsume the provisions of the Powers of Attorney Act 1996 so that its provisions are brought into line with the general principles and best interests of the provisions of the Bill.

The guiding principles set out in the scheme of the Bill reflect the convention's principles of respecting the dignity and autonomy of each individual, including the freedom to make his or her own choices. The intention is that the Bill will specifically support the right set out in the convention to equal recognition before the law for all persons. There has been some delay in publishing the Bill, due in large part to the prioritisation of legislation required under the EU-IMF programme of financial support. However, the time has been well spent in fine-tuning policy. Since the general scheme was published in 2008, work on the text of the Bill has been informed by developing thinking in the field, not least the philosophy enshrined in the UN Convention on the Rights of Persons with Disabilities.

As a result of consultation and submissions received, the text has undergone some significant changes which the Minister, Deputy Shatter, will shortly put to the Government for approval.

Photo of Mark DalyMark Daly (Fianna Fail)
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I thank the Minister of State for her reply.